text
stringlengths 8
185k
| embeddings
sequencelengths 128
128
|
|---|---|
FrauEnthal, J.
This was an action instituted in the chancery court by IT. C. Thornton, the plaintiff below, to foreclose a mortgage executed iby A. D. Henry to him on one surrey and one mare to secure the payment of a note. The mare was at the time of the institution of the suit in the possession of J. H. Findley, who was also made a defendant. The defendant Henry made default, but the defendant Findley filed an answer, in which he claimed a superior lien upon said mare for indebtedness due by said Henry to him. It appears from the testimony that Findley sold and delivered the mare to Henry on April 12, 1908, for $150, a part of which purchase money was paid in cash, and for the balance thereof he executed a note to Findley with one J. S. St. Clair as surety thereon, due eight months after date. At the time of the sale there was a verbal agreement between the parties that the title to the mare should remain in Findley until the payment of the note. On April 18, 1908, Henry purchased a surrey from the plaintiff, and to secure the payment of a note given therefor and other indebtedness he executed to him a mortgage on said surrey and said mare. This mortgage was duly acknowledged and recorded on April 18, 1908.
Thereafter from time to time Henry made payments to Findley upon the note executed by him to Findley for the mare, amounting in the aggregate to $43, and on December 31, 1908, executed a new note for the balance thereof, $107, due one year after date, with the said St. Clair as surety thereon, and at the same time executed a mortgage on said mare to secure the payment of this last note. This mortgage to Findley was not recorded until August 27, 1909. At the time of the execution of the second note to Findley the first note executed by Henry to him for the mare was thus paid, but at that time there was no agreement, either written or verbal, that the title to the mare was thereafter reserved in the vendor. In October, 1909, Henry turned the possession of the mare over the Findley upon me note and mortgage executed by him to Findley.
The chancellor entered a decree foreclosing both mortgages, but declared that Findley was entitled to a superior lien upon the mare under the mortgage executed by Henry to him. From that portion of the decree giving to Findley a superior lien upon the mare the plaintiff has appealed to this court.
The plaintiff had the right to institute suit in the chancery court for the foreclosure of his chattel mortgage. This was one of the remedies which he had a right to pursue, and a court of equity possesses the jurisdiction to foreclose a chattel mortgage. A mortgagee of chattels may pursue any of the remedies to which he is entitled; he may sue at law for the recovery of the chattel, or for its conversion, or he may sue in equity for the foreclosure of the lien which he has thereon by virtue of the mortgage.
In Jones on Chattel Mortgages (5 ed.), § 758, it is said: “He has the same right that a mortgagee of real property has to pursue all his remedies. He may maintain a suit at law to recover the mortgage debt and also a suit at law to recover possession of the mortgaged property, and at the same time proceed under a statute or in equity to foreclose the mortgage. In the absence of any controlling statute the foreclosure of a chattel mortgage is inherently a matter of equity jurisprudence.”
The sole question, then, involved in this case relates to the priority of the rights and liens of the plaintiff and the defendant Findley upon the mare. On April 12, 1908, Findley sold the mare to Henry, but at the time reserved the title thereto in the vendor. This was a conditional sale whereby the full title did not pass to the vendee, hut upon the maturity of the first note given therefor the vendor had the right to determine whether the sale should be conditional or absolute, and, until he did so elect to determine, the title still remained in him, in event the purchase money for the mare was not paid at or before the maturity thereof. But by the contract of sale, although conditional, Henry obtained an interest in the mare. He had paid a part of the purchase money at the time he bought the mare, and he had an interest therein which he could mortgage. Sunny South Lumber Co. v. Neimeyer Lumber Co., 63 Ark. 268; Snyder v. Slatton, 92 Ark. 530.
Henry had therefore a right to execute a mortgage upon the mare to the plaintiff on April 18, 1908, before which time he had purchased, though conditionally, the mare and had the possession thereof; and by virtue of such mortgage the plaintiff became entitled to a lien on all the interest which Henry then owned in the mare or which he might thereafter acquire. When the indebtedness due to Findley, the vendor, for the purchase money of the mare matured, and was not paid, he had the right to elect whether he would treat the contract for the sale at an end and thus cancel the debt, or whether he would insist on the existence and payment of said indebtedness and thus affirm the sale and make it absolute. At the time when Findley took the second note from Henry for the mare, the indebtedness for the original purchase money had matured, and part thereof had been paid. At that time two courses were open to him to pursue: either to treat the sale at an end and to reclaim the property, or to consider the condition waived and to seek payment of the price either in cash or by note or other property. And, as a general rule, if the vendor takes a mortgage or other security for the price without then -reserving title, such act will be regarded as a waiver of the condition of the original sale and an election to consider the sale as absolute. In the case of Edgewood Distilling Co. v. Shannon, 60 Ark. 133, it was held that where a vendor of personal property, sold conditionally, sued to recover its possession, and there was evidence tending to prove that after the sale the purchase money was paid partly in cash and by the execution of a new note, the vendee’s title became absolute unless there was an agreement for a reservation of -title in the vendor at the time of the execution of the second note therefor. Dudley E. Jones Co. v. Daniel, 67 Ark. 206; Butler v. Dodson, 78 Ark. 569; Baker v. Brown Shoe Co., 78 Ark. 501; 35 Cyc. 675.
In the case at bar, when Findley took the second note on December 31, 1908, for the balance due upon the purchase money of the mare, there was no agreement that he reserved title thereto until the payment of that note. On the contrary, he took a mortgage upon the mare in order to secure the payment of the note, and we think that he then waived any condition reserving title and elected to .-consider the sale absolute. The absolute title to the mare then vested in Henry, and Findley had then and thereafter only a lien thereon by virtue of the mortgage executed to him. That mortgage was not recorded until August, ■1909. Under our mortgage act (Kirby’s Digest, § 5396), the filing or recording of a chattel mortgage is as essential to its validity as against third persons as any other element entering into the execution and making of a valid chattel mortgage. It is not a valid lien against other mortgagees, purchasers or creditors acquiring liens thereon until it -is- filed in the recorder’s office, as provided by statutory law. Fry v. Martin, 33 Ark. 203; Dodd v. Parker, 40 Ark. 536; Turman v. Bell, 54 Ark. 273; Ringo v. Wing, 49 Ark. 457; Smead v. Chandler, 71 Ark. 505. “As between conflicting mortgages, the one first filed for record will have priority.” Mitchell v. Badgett, 33 Ark. 387.
But it is urged that the mortgage given to Findley was executed at the same time when the sale became absolute, and should therefore have precedence over a mortgage executed prior to that time. It is held that a mortgage given to a vendor of land for the purchase money thereof is superior to a lien acquired prior to the execution of the deed therefor where the mortgage for the purchase money is given and recorded on the land at the same time that the deed is executed therefor. But this is held upon the principle that the execution of the deed and mortgage to the vendor and the record of such mortgage are simultaneous acts, and the title to the land does not for a single moment rest in the purchaser, but merely passes through his hands and vests in the mortgagee without stopping at all in the purchaser; and that during such instantaneous passage a lien acquired before such time by another cannot attach to the title. But in such cases the passing of the title to the vendee, the mortgage back of the property by the vendee to the vendor, and the record of such mortgage must all be done simultaneously. For, if the title rests even for a short time in the vendee, with no valid lien thereon in favor of the vendor, then a prior lien secured- by another on such property will have precedence over a mortgage subsequently secured by the vendor. It is upon this principle that the -cases of Blevins v. Rogers, 32 Ark. 258, and Cohn v. Hoffman, 50 Ark. 108, were decided. But in‘ the case at bar the unconditional title to the property vested in the vendee, Henry, on December 31, 1908, and the mortgage executed for the purchase money was not filed for record until the following August. During all that time the title rested in Henry, and the mortgage given by him to Findley was not during that time valid as against third persons who secured or had secured liens thereon. It follows that, as between the mortgagees, Thornton and Findley, the priority of their liens is determined by the priority in the time of the filing of their mortgages, and, the mortgage of Thornton being filed first in time, it is first and prior in law.
The decree is reversed, and this cause is remanded with directions to enter a decree in favor of the plaintiff. | [
115,
108,
24,
108,
90,
112,
-86,
-102,
-53,
8,
35,
83,
-19,
-58,
0,
101,
-27,
109,
113,
105,
-25,
-77,
99,
83,
-46,
-13,
-63,
93,
-75,
-52,
-32,
-43,
12,
32,
-64,
85,
-58,
-126,
-63,
82,
14,
-123,
-101,
-27,
-37,
80,
52,
-69,
124,
77,
49,
-50,
-81,
47,
54,
127,
77,
42,
-23,
13,
-48,
105,
-117,
-115,
125,
6,
-79,
102,
-98,
71,
-54,
-50,
-104,
49,
16,
-7,
122,
-74,
-126,
84,
68,
11,
40,
98,
38,
17,
69,
121,
-16,
-88,
38,
127,
-100,
-90,
-47,
120,
2,
107,
-97,
-99,
120,
80,
70,
126,
-26,
-123,
29,
104,
19,
-114,
-42,
-125,
46,
124,
-98,
3,
-9,
-109,
53,
112,
-114,
-96,
92,
34,
41,
-101,
-116,
-3
] |
Hart, J.,
(after stating the facts). 1. Counsel for appellant contend that the court erred in telling the jury that the burden of proof was upon appellant to show contributory negligence; but the decisions of this court are adverse to their contention. Aluminum Co. of N. A. v. Ramsey, 89 Ark. 522 and cases cited; St. Louis, I. M. & S. Ry. Co. v. Sparks, 81 Ark. 187.
2. Counsel for appellant also urge that the court erred in refusing certain instructions on the duty of appellee to look and listen while crossing the track of appellant. Other instructions given at the request of appellant fully covered this phase of the case, and it was not error to refuse to multiply instructions on ■the same point. Jones v. Nichols, 46 Ark. 209; Aluminum Co. of N. A. v. Ramsey, supra.
3. Counsel for appellant insist that the court erred in its instruction on contributory negligence. We do not deem it necessary to set out the instruction. It is copied from one given in the case of St. Louis, I. M. & S. Ry. Co. v. Fambro, 88 Ark. 16, and is substantially correct. If counsel for appellant had any objection to the verbiage, this defect should, according to the settled rules of the court, have been met by specific objection.
4. Counsel for appellant with much force urge that the verdict is without evidence to support it because the appellee was guilty of contributory negligence. While the question is close, we think that, when the testimony is considered in the light of all the attendant circumstances adduced in evidence, it can not be said that there is no substantial evidence to warrant the verdict.
The evidence for appellee shows that neither the whistle was sounded nor the bell rung for the crossing; and while the omission of the engineer to give these statutory signals did not relieve appellee of the duty of looking and listening for the approach of trains, yet they are warnings which he had a right to rely on in determining whether a train was drawing near. According to appellee’s own testimony, his view of an approaching train from the east was obstructed by box cars/- both on the south and middle tracks. In such case, while the traveler must not relax his endeavor to see approaching trains, yet necessarily he relies to a great degree upon his sense of hearing to discover the approach of a train, and in doing this he listens not only for the noise made by the running of the train but for the signals which the engineer is required to give by ringing the bell or sounding the whistle for the crossing. Appellee’s testimony tends to show that he was in possession of all his faculties and continually exercised them, during his passage over the crossing. The testimony adduced 'by him shows that the headlight was dim, and on that account its rays did not warn him. It is ad mitted that the steam had been shut off, and that the train was drifting or gliding in, and on this account the jury might have inferred that the train came in with little noise, and no smoke escaping to give warning of its approach; that it had rounded the curve before appellee came upon the crossing, and that for this reason he could not see it on account of the box cars obstructing his view. If he could not have seen it after it passed the curve, the jury might have found that it would have done no good for him to have stopped his wagon between the south and middle tracks to have tried to look between the box cars on those tracks.
It will be remembered, too, that the engineer and fireman, although they testify that they were keeping a lookout, did not see appellee or his team until just as they were struck. We think, under all the evidence, that the question of contributory negligence was one for the jury.
“It is too well established by the decisions of this court to need the citation of authority that a traveler along a highway, attempting to cross a railroad track, must look and listen for the approach of trains, otherwise he is guilty of contributory negligence, and can not recover damages on account of injury resulting therefrom. Unless, however, the undisputed evidence shows that the traveler did not look and listen, then it is a question of fact for the jury to determine, from all the facts and circumstances, whether the precautions which he exercised in that respect were sufficient to acquit him of any charge of negligence.” St. Louis, I. M. & S. Ry. Co. v. Garner, 90 Ark. 19; see also St. Louis, I. M. & S. Ry. Co. v. Dillard, 78 Ark. 520; St. Louis & S. F. Rd. Co. v. Wyatt, 79 Ark. 241; St. Louis, I. M. & S. Ry. Co. v. Hitt, 76 Ark. 227.
5. Counsel for appellant contend that the court erred in admitting the testimony of Calvin Sellers. We do not think so. While the witness was not in a wagon at the time he made his observations, as was appellee while crossing the track, still the testimony of appellee shows that he could not see over the box cars when in the wagon on the south track. Sellers’ testimony only tended to show at what point the main track would come into the line of vision of a person crossing the south track. He fixed that point with an instrument, and then measured the distance to it from where he was standing on the south track when he fixed it. The calculations he made were such as might have been made by the jury. The point was, where could the main track be seen after the traveler had passed the point where his vision was not obstructed by the box cars? It made no difference whether Sellers was high or low; he was only testifying as to the point the main track could be first seen when the obstruction to the vision caused by the box cars had been passed. The jury were entitled to give it whatever weight it carried.
The judgment will be affirmed. | [
-80,
-22,
-52,
-81,
10,
98,
58,
-56,
101,
-95,
39,
-45,
-19,
-62,
-103,
55,
-10,
63,
81,
43,
84,
-93,
31,
-46,
-14,
-105,
114,
-108,
53,
107,
102,
-34,
77,
96,
74,
-43,
103,
74,
-59,
90,
-50,
-115,
-86,
97,
57,
-16,
32,
115,
20,
79,
49,
-34,
-13,
42,
24,
-57,
44,
46,
107,
53,
-64,
112,
-102,
13,
127,
0,
-79,
52,
-103,
39,
-40,
29,
-120,
-79,
1,
-72,
115,
-90,
-126,
-10,
107,
-103,
-120,
98,
102,
33,
29,
39,
60,
-104,
62,
90,
31,
-89,
18,
9,
73,
47,
-73,
-3,
125,
84,
54,
122,
-28,
85,
95,
100,
1,
-113,
-76,
-80,
-35,
116,
-110,
-61,
-21,
-127,
18,
112,
-52,
-86,
94,
69,
26,
-101,
-50,
-90
] |
McCurroch, C. J.
Plaintiff, W. H. Bolin, received injuries while working for the defendant, A. L. Clark Lumber Company, a -corporation, in the operation of a railroad in Pike County, Arkansas, and instituted this action against defendant to recover damages. He alleges in his complaint that -his injuries resulted from a negligent act of his fellow-servants, while he and they were working together in this discharge of their duties. Defendant denied the allegations of negligence, and also pleaded contributory negligence and assumption of the risk upon the part of the plaintiff. Plaintiff recovered judgment below, his damages being assessed at the sum of $1,000, and the defendant appealed.
The principal contention is that the evidence is legally insufficient to sustain the verdict, in that it fails to show any negligence on the part of the -other employees of defendant. Plaintiff’s -injury occurred in -this wise: He and his fellow-employees were engaged in unloading steel rails from a flat car. The -rails Weighed about six hundred pounds each. He and one of the other workmen were together unloading rails on the left side of the car, using crowbars for that purpose, the plaintiff standing at one end of the car and the other man a-t the -other, and rolling the rails -off with the crowbars. A crew consisting of five or six men -were working together on the -other side of the car unloading rails, employing, however, a different method from that used by plaintiff and his companion. All of them would stand at -one end of the car and lift an end of a rail and throw it to the ground, leaving the other end to roll -or slide off. These men lifted a rail, and attempted to throw it off, but failed to raise it -high enough, and, instead of falling off in the usual manner, it caught -on the socket for the standards on the si-de of the -car, and -one end swung around and struck plaintiff on the jaw and knocked him from the car, severely injuring him.
It is insisted that the negligence of these men -consisted in failing to lift the rail hi-gh enough to throw it clear of the socket; and we are -of.-the opinion that -these -circumstances proved in the -case justified the jury in finding that they were guilty of negligence. There was little or no dispute as to the real facts of the case, but it was a matter proper for submission to the jury to draw the inference from these facts whether or not the acts constituted negligence. We conclude, therefore, that the evidence was legally sufficient to warrant the verdict, and it should not be disturbed. Under the statutes of this State, the defendant is required to respond in damages for injuries caused by the acts of its servants who were fellow-servants of the plaintiff. Acts of 1907, p. 62; Soard v. Western Anthracite Coal & Mining Co., 92 Ark. 502, and cases cited.
Error of the court is assigned in its refusal to give the seventh instruction requested by defendant, which is as follows: “If, after a full consideration and comparison of all the evidence, you are in doubt as to whether the defendant was negligent, then the plaintiff has failed to make out his case as required by law, and your verdict should be for the defendant.” This instruction was incorrect, and the court properly refused to give it. It erroneously placed upon plaintiff the burden of proving his case beyond a reasonable doubt.
Error is also assigned in the court’s refusal -to give the following instruction requested by defendant: “You are instructed as a matter of law in this case that there is no evidence that the defendant, A. E. Clark Lumber Company, was guilty of negligence; but the law makes the defendant liable for the negligence of the fellow-servants of the plaintiff. You are told that, this being true, if you believe from the evidence that the negligence of the fellow-servants of plaintiff caused the injury, such servants' would be just as much liable to the plaintiff as the defendant would be. So in this case, if you believe from the evidence that the plaintiff’s co-laborers were guilty of negligence causing the injury to plaintiff, the measure of damages against the defendant is for no greater sum than it would be against the co-laborers if they were defendants.” Whilst the same measure of damages is applicable to a suit against a corporation as to one against its servants who caused the injury, yet it does not follow that it is necessary to so declare the law to the jury, who are presumed to be of sufficient intelligence to apply the law alike to all litigants. The court gave the jury correct instructions as to the measure of damages in the case, and it would be a great stretch to hold that the defendant was prejudiced iby the court’s refusal to tell the jury that its liability was no greater than that of its servants who were guilty of the negligent act which caused the injury.
It is urged that a certain remark of counsel was prejudicial, and that the judgment should be reversed because the court failed to administer a more severe rebuke to counsel in excluding the remark from the consideration of the jury. The remark objected to is as follows: “Gentlemen of the jury, you all remember when Brother Tompkins appeared in a different attitude in this class of cases.” When objection was made by defendant’s counsel, the trial judge said, addressing plaintiff’s counsel: “I expeot, judge, that was wrong; this case should be tried only on the facts here shown.” Now, it is evident that the remark of the counsel in his argument was intended as a matter of pleasantry, referring, doubtless, to the fact that Mr. Tompkins had previously appeared on the other side of personal injury cases. We cannot see how the jury could have treated the remark otherwise than as having been made in a spirit of levity. It is impossible to discover how any prejudicial effect could have resulted from it, viewing it in any light.
We see no error in the record, and the judgment is affirmed. | [
48,
106,
-72,
-116,
8,
107,
42,
26,
121,
-125,
101,
83,
-19,
-59,
9,
99,
-29,
125,
-15,
51,
-12,
-93,
3,
-61,
-46,
-73,
-69,
-123,
-110,
74,
100,
118,
77,
48,
-54,
-43,
-57,
64,
-59,
-100,
-114,
4,
-38,
-24,
121,
80,
48,
126,
-28,
79,
49,
-98,
107,
42,
28,
-61,
41,
60,
107,
61,
-47,
121,
-126,
5,
69,
18,
-93,
6,
-98,
33,
-40,
57,
-40,
53,
58,
-72,
114,
-74,
-126,
-44,
105,
-87,
12,
102,
102,
32,
29,
-25,
104,
-72,
47,
-66,
-115,
-91,
-80,
40,
11,
15,
-105,
-107,
114,
84,
22,
122,
-16,
77,
29,
108,
-121,
-113,
-44,
-112,
15,
100,
20,
-95,
-53,
-91,
22,
101,
-36,
-78,
93,
5,
19,
27,
-97,
-74
] |
BART F. VIRDEN, Judge
hThe Sebastian County Circuit Court terminated the parental rights of appellant Angel Sims Duncan to her two children, N.D. (DOB: 9-23-2014) and Z.D. (DOB: 12-23-2015). Diitfc'an challenges the statutory grounds supporting termination and the trial court’s best-interest finding. We affirm.
I. Procedural History
On December 17, 2014, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect as to N.D. In an affidavit attached to the petition, family service worker Courtnee Boerjan attested that a protective-services case had been opened when N.D. tested positive for THC at the time of her birth. Duncan initially tested positive for only THC, but subsequent tests were positive for other illicit 1 adrugs, including amphetamines, methamphetamine, and phencyclidine (PCP). An ex parte order for emergency custody was entered, and the trial court later found that probable cause existed for issuance of the emergency order.
In an adjudication order entered April 24, 2015, the trial court found that N.D. was dependent-neglected due to Duncan’s drug abuse. The goal was reunification, and the trial court ordered Duncan to comply with several conditions, including recommended drug treatment. In a review order dated September 11, 2015, the trial court found that Duncan was in her third drug-treatment program and had only four negative drug screens since the case was opened. The trial court also noted that Duncan was pregnant and due to give birth in December 2015.
When Z.D. was born, DHS took a seventy-two-hour hold on him. On December 29, 2015, DHS filed a petition for emergency-custody and dependency-neglect as to Z.D. In an affidavit attached to the petition, family service worker Natosha Mantooth attested that Duncan had tested positive for methamphetamine , while ; in residential treatment on September 23, 2015, and that Duncan repdrted that she had relapsed in November 2015 while pregnant by taking Xanax not prescribed to her. An ex parte emergency custody order was entered. The trial court subsequently found probable cause for issuance of the order.
On January 7, 2016, the trial court entered a permanency-planning order pertaining to N.D. The trial court found that DHS had made reasonable efforts to provide family services to achieve the goal of reunification. The trial court noted that Duncan had complied with several case-plan goals and court orders. She was further ordered, among other things, |sto submit to random drug screens and hair-follicle tests, complete drug treatment, and attend Narcotics/Alcoholics Anonymous (NA/AA) meetings at least twice per week.
On April 7, 2016, Z.D. was adjudicated dependent-neglected due to Duncan’s stipulation of parental unfitness and inadequate supervision due to her substance-abuse issues. A fifteen-month review order was entered the same day indicating that Duncan had only partially complied with the case plan. She was again ordered to complete a drug-and-alcohol assessment and follow the recommendations.
DHS filed a petition for termination of parental rights on May 23, 2016, alleging grounds under Ark. Code Ann. § 9-27-341(b)(3)(B) (Supp. 2015), including (i)(a) (twelve-month/failure to remedy), (ii)(o) (failure to provide significant material support), (vn)(q) (other subsequent factors or issues), and (ix) (a)(8) (aggravated circumstances). A hearing on DHS’s petition was held July 8, 2016.
II. Termination Hearing
Duncan testified that she was twenty-nine years old and that she had been dealing with drug addiction since she was fifteen. She said that the longest period that she had remained sober was three years. Duncan stated that she regretted “shooting up” with drugs throughout her pregnancy with N.D.
Duncan stated that she is currently in drug treatment and attends group and individual counseling twice per week. She said that she last used THC at the end of March 2016. She claimed that she had remained “clean” from September through December 2015 but had relapsed on “weed” and methamphetamine after she had given birth to Z.D. Duncan testified that she did not think she would have relapsed had she been given the opportunity [4to take Z.D. home with her. Duncan said that if she were drug tested that day, the result would be negative. She asserted that her drug use was not a problem.
As for her employment, Duncan said that she was still “fighting” for disability benefits due to her diagnoses of post-traumatic stress disorder, anxiety, and a personality disorder. Duncan stated that she had acquired a two-bedroom home through HUD (Housing and Urban Development Department) and that she now has transportation because her stepfather had given her a van. Duncan said, “I just want to be' a mother to my kids, something that I didn’t have.” She asked for more time to reunify with N.D. and Z.D.
Mantooth, a DHS family service worker, testified that Duncan was a no-show for her hair-follicle tests on January 15, 2015; June 5, 2015; February 9, 2016; April .27, 2016; and June 30, 2016. She said that Duncan’s last positive drug screen for THC was on June 14, 2016. Before that, she was positive for amphetamines on April 8, 2016. On March 29, 2016, Duncan was positive for methamphetamine and amphetamines.
In describing Duncan’s drug-treatment history, Mantooth testified that Duncan initially had an assessment with Horizon on January 2, 2015, but that she did not complete that program. She entered Gateway around May 21, 2015, but did not comply due to behavioral issues. Duncan went to Decision Point on August 22, 2015, and was discharged due to smoking or being caught with cigarettes. She entered Gateway again on September 22, 2015, but left on October 15, 2015, due to behavioral issues. Mantooth said that Duncan is currently enrolled at Horizon.
Mantooth testified that she was concerned about the inconsistency of Duncan’s behavior and that she did not think N.D. should wait any longer to see whether Duncan’s | ¿fifth attempt at drug treatment would be successful. Mantooth further stated that, if Duncan could not prove her sobriety to regain custody of N.D., DHS should not be required to “start that all over again” to see whether Duncan could maintain her sobriety for Z.D.
Mantooth stated that, regarding Z.D.’s father, Duncan had told her that she was aware that he had been charged with promoting prostitution and that she had worked for him. Mantooth took that to mean that Z.D.’s father was Duncan’s “pimp.” Earlier, Duncan had testified that she was aware that Z.D.’s father “went down” for child endangerment in 2013 but that she did not have any concerns with his being awarded custody of Z.D. because, when he interacts with his other kids, “there is no doubt that he’s a good dad.”
According to Mantooth, while Duncan was excited to see N.D. at visitation, N.D. did not want to go to her mother and at times cried and “[threw] a fit” until the foster parents stepped in to calm her. Mantooth said that “everything about [Duncan’s children] makes them adoptable.” She described the children as “always happy”; she pointed out that the children were young; and she said that they had no medical or emotional issues that would prevent their adoption. Mantooth testified that the children are currently in a placement where the family has expressed interest in adopting them.
Rebecca Hamilton, foster parent to N.D. and Z.D., testified that the children are thriving in her home. She was concerned, however, about visitation between Duncan and N.D. She said that N.D. had begun pulling out chunks of her hair before and after visitation. Hamilton said that, after N.D.’s visits with Duncan had been discontinued, N.D. stopped pulling out her hair.
Ifilll. Order Terminating Parental Rights
The trial court found grounds for termination of Duncan’s parental rights under Ark. Code Ann. § 9-27-341(b)(3)(B)(i)faj and 9-27-341(b)(3)(B)(k)fa)(3jfB]. Specifically, the trial court found that N.D. had been adjudicated dependent-neglected due to the mother’s substance-abuse issues and had been out of Duncan’s custody for over a year. The trial court found that DHS had offered numerous services to achieve reunification. The trial court further found that Duncan had recently acquired stable housing through HUD and had completed parenting classes but that she had not obtained and maintained employment. The trial court found that, although Duncan had complied by submitting to drug tests, she had continued to test positive “for methamphetamines, among other things,” and had not completed drug treatment. The trial court concluded that Duncan was still in no condition to have the children returned to her.
The trial court also found aggravated circumstances in that there was little likelihood that additional services would result in successful reunification between Duncan and her children. The trial court found that DHS had provided many services, including case-management, clothing vouchers, visitation, PACE (Project for Adolescent and Child Evaluations), referrals for parenting classes, hair-follicle testing, counseling, random drug screens, inpatient drug treatment, and transportation. The trial court noted that Duncan had been receiving services over the course of almost nineteen months but had failed to remedy her situation. The trial court concluded that there was little likelihood that offering |7additional services would result in reunification in a time-frame consistent with the children’s ages and developmental needs.
Finally, the trial court found that it was in the children’s best interest to terminate Duncan’s parental rights. The trial court specifically found that the children are adoptable and that the children would be at risk of serious harm if returned to Duncan because she still has substance-abuse issues after numerous attempts at drug treatment.
IV. Standard of Review
Termination-of-parental-rights cases are reviewed de novo. Tillman v. Ark. Dep’t of Human Servs., 2015 Ark. App. 119, 2015 WL 831629. Grounds for termination of parental rights must be proved by clear and convincing evidence, which is that degree of proof that will produce in the finder of fact a firm conviction of the allegation sought to be established. Id. The appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In resolving the clearly erroneous question, we give due regard to the opportunity of the trial court to judge the credibility of witnesses. Id.
In order to terminate parental rights, a trial court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted, and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-|s341(b)(3)(A)(i) & (ii). The trial court must also find by clear and convincing evidence that one or more statutory grounds for termination exists. Ark. Code Ann. § 9-27-341(b)(3)(B). Proof of only one statutory ground is sufficient to terminate parental rights. Tillman, supra. Termination of parental rights is an extreme remedy and in derogation of a parent’s natural rights; however, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Id.
V. Discussion
A. Statutory Grounds
As for N.D., Duncan argues that, although N.D. tested positive at birth for THC, she was not removed from the home because of Duncan’s THC use; rather, she was removed when Duncan tested positive for methamphetamine. Duncan contends that, at the time of the termination hearing, she had remedied her use of methamphetamine in that she had last tested positive for that drug in March 2016. Duncan contends that the trial court erred in not considering evidence of her recent sobriety and by speculating that she would relapse in the future.
N.D. was removed from Duncan’s care in December 2014 due to Duncan’s illegal drug abuse in general. The termination hearing was held in July 2016. During the time that N.D. was out of Duncan’s custody—over eighteen months—Duncan attempted drug treatment unsuccessfully four times. At the time of the hearing, Duncan was making her fifth attempt to complete drug treatment. Even though Duncan had received some drug treatment and was attending NA/AA meetings and counseling, she continued to test positive for illegal drugs, including a positive test for THC only one month prior to the termination | shearing. We concede that Duncan had several negative drug tests just prior to the termination hearing, but evidence that a parent begins to make improvement as termination becomes more imminent will not outweigh other evidence demonstrating a failure to comply and to remedy the situation that caused a child to be removed in the first place. See, e.g., Tillman, supra. We cannot say that the trial court clearly erred in finding this ground as to N.D.
Duncan contends that there was no evidence to support the aggravated-circumstances ground, which applied to both ■children. Duncan asserts that the evidence showed that she had achieved sobriety and was continuing to work on maintaining that sobriety. Duncan argues that, in the rush to achieve permanency for juveniles, the ability of parents like Duncan to demonstrate sobriety and stability is often inhibited. She argues that it should not be enough to say that the possibility of another relapse proved this ground.
There must be more than a mere prediction or expectation on the part of the trial court that additional reunification services will not result in successful reunification. Yarborough v. Ark. Dep’t of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (2006). After Z.D. was born, there were eleven positive drug screens between January 4, 2016, and April 8, 2016. After that, Duncan tested negative from April 14 through June 10. On June 14, 2016, however, after DHS had filed its petition to terminate her parental rights, Duncan tested positive for THC. The trial court was apparently not convinced that Duncan had “achieved sobriety” given that she could stay sober for only approximately two months at a time. Duncan had failed in her first four attempts to complete drug treatment for reasons that appeared to be within her control. We cannot say that the trial court clearly erred in | ^determining that more services, given her history of failure with drug treatment, would result in successful reunification with both N.D. and Z.D.
B. Best-Interest .Determination
Duncan does not challenge the adopta-bility finding of the best-interest analysis; instead, she contends that finding potential harm based on the mere possibility of a future relapse is too speculative to support such a finding.
Potential-harm evidence must be viewed in a forward-looking manner and considered in broad terms. Tillman, supra. A parent’s past behavior is often a good indicator of future behavior. Shaffer v. Ark. Dep’t of Human Servs., 2016 Ark. App. 208, 489 S.W.3d 182. There are many 'cases that stand for the proposition that continued drug use by a parent demonstrates potential harm. Jones v. Ark. Dep’t of Human Servs., 2016 Ark. App. 615, 508 S.W.3d 897; Jackson v. Ark. Dep’t of Human Servs., 2016 Ark. App. 440, 503 S.W.3d 122; Tillman, supra; Allen v. Ark. Dep’t of Human Servs., 2011 Ark. App. 288, 384 S.W.3d 7. We cannot say that the trial court clearly erred in determining that termination of Duncan’s parental rights was in the children’s best interest.
Affirmed.
Harrison and Glover, JJ., agree.
. THC, or tetrahydrocannabinol, is the active chemical in marijuana.
. Although the trial court found that the twelve-month/failure-to-remedy ground also applied to Z.D., we agree with the State’s concession that this ground could not have applied to Z.D. in that he was only six months old at the time of the hearing. | [
-79,
-20,
-11,
108,
58,
-31,
14,
24,
83,
-105,
-27,
115,
-17,
-10,
21,
105,
-120,
47,
96,
105,
-47,
-74,
83,
64,
66,
-9,
56,
-42,
-77,
75,
108,
-36,
93,
112,
-118,
-43,
66,
64,
-17,
24,
-126,
1,
-117,
109,
83,
-126,
44,
47,
26,
15,
53,
-97,
-109,
44,
25,
-54,
76,
78,
89,
60,
88,
-32,
-37,
23,
-1,
22,
-95,
-28,
-111,
-123,
-40,
62,
-64,
48,
1,
-24,
51,
54,
-122,
116,
70,
25,
-123,
96,
-30,
-128,
28,
-27,
-4,
-120,
-66,
-82,
-99,
-90,
-102,
121,
67,
15,
-74,
-75,
94,
22,
14,
-6,
107,
-89,
100,
108,
-124,
-50,
18,
-127,
69,
-120,
92,
35,
-29,
-59,
48,
85,
-49,
-90,
84,
84,
123,
-37,
-82,
-46
] |
Smith, J.,
(after stating the facts). Appellant insists there was a defect of parties in that the court undertook to render a final decree both as to the title to the property, and the accounting for the rents, when a number of the Feild heirs were neither parties plaintiff nor defendant. Appellant also says this action is barred by laches. But we find it unnecessary to consider either of these questions, as we think the chancellor’s finding that there was a trust in the land in favor of the heirs of Silas Feild is contrary to the preponderance of the evidence.
Appellees insist that appellant was the agent of the heirs and the administrator, and that as such he could purchase only for his principals, and that the proof shows the money used in the purchase of the lands was secured from Luchesi by an arrangement between the parties for the specific purpose of purchasing for the estate, and that the money was used for this purpose, and that the purchase with this intention made with money raised by appellees for that purpose constituted appellant a trustee, and that he holds the title as such. The reported cases all hold that evidence to establish the existence of such trust must be clear, positive and satisfactory, and some cases say that the evidence must be so clear and positive as to leave no doubt; and all the cases agree that a mere preponderance of evidence is not sufficient to engraft a trust upon property conveyed by deed c.ontaining no recognition of the trust. And we think this evidence is not sufficient to meet that requirement. In our opinion as much as can be said of this evidence and its sufficiency (and we do not decide even that), is that appellant proved recreant to his promise to convey this title to the Feild heirs, or to distribute-the proceeds of the sale of this property among them.
The agreement between these parties, if the facts were a® appellees contend, is not enforceable as con stituting an express trust for the reason that the entire agreement rests in parol. Nor can the evidence in this case be said to constitute a resulting trust because the purchase money was furnished by appellant, and was raised by him through a mortgage which he gave on his own home. This was done after the administrator and heirs had failed in their efforts even to raise the money with which to pay the interest on the mortgage debt. Every one, including Luchesi, to whom application was made for the loan of money, declined to make it upon the security offered, and the entire Feild estate appeared to be imperiled. The mortgage indebtedness, exclusive of interest and costs of suit, was $4,000, and • appellant bought only a portion of the property sold at the foreclosure sale, and the property which was bought by him for $2,615, together with the other property sold, brought the amount of the mortgage indebtedness, including the costs and interest, and at the sale there was competitive bidding, and a large part of the property was bought by the widow of Silas Feild, who was-also the widow of one' of his sons, and the mother of several of the heirs interested in this estate. The exact amount of money which appellant would require could not be known, and was not known until after the sale, when he borrowed from the Pulaski Trust Company the money with which to make his payment. This loan was made to appellant individually upon the use of his individual property as security, and even though an agreement might have existed at.the time of this sale to hold the property as trustee for the Feild heirs, such an agreement would not constitute a resulting trust. Discussing this question in the case of Grayson v. Bowlin, 70 Ark. 145, Mr. Justice Battle, speaking for the court, said: “This court, in Sale v. McLean, 29 Ark. 612, and in Duval v. Marshall, 30 Id. 230, said, in •effect, that, in order to create a trust of this nature (resulting trust), payment of the purchase money must be made at the time of the purchase. By this it was meant that the trust must arise, if at all, from the original transaction at the time it takes place, and at no other time; and that it ©an not be mingled with any subsequent dealings. Some of the cases use the language, ‘at the date of the payment of the purchase money; ’ others, ‘ at the time of the execution of the conveyance. ’ But all of them mean the same thing, namely, that it is impossible to raise a resulting trust, so as to divest the legal estate of the grantee or his heirs, by the subsequent application of the funds of a third person to the satisfaction of the unpaid purchase money. Botsford v. Burr, 2 Johns. Ch. 406; Rogers v. Murray, 3 Paige, 390; Leading Cases in Equity, supra, 338. The trust arises out of the circumstances that the money of the real purchaser, and not of the grantee in the deed, formed the consideration of the purchase, and became converted into land.” And that opinion quoted with approval the following language from the case of Bland v. Talley, 50 Ark. 71: “Now, a parol agreement that another shall be interested in the purchase of lands, or a parol declaration by a person that he buys for another, without an advance of money by that other, falls within the statute of frauds, and can not give birth to a resulting trust.” Nor can it be said that a trust ex maleficio arose from the facts of this transaction. The essentials of such a trust were discussed in Spradling v. Spradling, 101 Ark. 451, in which case it was said: “* * * There is no testimony indicating that the husband fraudulently induced the wife to have the deed made to him by reason of a promise that he would convey the land to, or hold it for, the children. There is no testimony that he acquired the title by any intentionally false or fraudulent promise, so that it could be said that a trust ex maleficio arose from the transaction. To create such a trust, the mere verbal promise, and its breach, is not sufficient. There must be some element of fraud practiced whereby the execution of the deed is induced; and in the case at bar, there is not a tittle of testimony indicating that any such fraud was practiced by the husband upon the wife in obtaining this deed. 3 Pomeroy Eq. Jur., § 1056.”
Discussing the proof necessary to establish a trust ex maleficio, Mr. Justice Riddick, in the case of Ammonette v. Black, 73 Ark. 313, said: “There must, of course, in such cases be an element of positive fraud by means of which the legal title is wrongfully acquired, for, if there was only a mere parol promise, the statute of frauds would apply.”
Both of the opinions of this court quoted from, cite with approval section 1056, 3 Pomeroy, Equity Jurisprudence, which reads as follows: “The foregoing cases should be carefully distinguished from those in which there is a mere verbal promise to purchase and convey land. In order that the doctrine of trusts ex maleficio, with respect to land, may be enforced under any circumstances, there must be something more than a mere verbal promise, however unequivocal, otherwise the statute of frauds would be virtually abrogated; there must be an element of positive fraud accompanying the promise, and by means of which the acquisition of the legal title is wrongfully consummated. Equity does not pretend to enforce verbal promises in the face of the statute; it endeavors to prevent and punish fraud, by taking from the wrong-doer the fruits of his deceit, and it accomplishes this object by its beneficial and far reaching doctrine of constructive trusts. ’ ’
It follows from what we have said, the chancellor erred in his finding that appellant held the interest to the property in question as trustee, and in his directions that an accounting be had of the proceeds of the sale and disposition of the trust property, and his decree to that effect will therefore be reversed and the cause remanded with directions to the chancellor to dismiss the complaint for want of equity.
Kirby, J., dissents. | [
49,
124,
-52,
-68,
26,
96,
-86,
-102,
-31,
-85,
39,
83,
-19,
74,
20,
43,
-28,
105,
97,
106,
-42,
-77,
70,
3,
-14,
-77,
-37,
-35,
-75,
-51,
-10,
93,
76,
32,
-62,
-35,
102,
-117,
-43,
80,
14,
-115,
-118,
69,
-39,
80,
52,
55,
84,
77,
117,
-38,
-77,
44,
57,
71,
9,
46,
75,
61,
-16,
120,
-66,
-123,
91,
7,
-79,
53,
-4,
75,
-54,
42,
16,
121,
1,
-24,
115,
-74,
6,
116,
13,
27,
40,
98,
98,
1,
113,
-3,
-80,
-104,
46,
110,
13,
-89,
83,
88,
-31,
41,
-74,
-33,
116,
0,
38,
-10,
-26,
-99,
25,
100,
13,
-113,
-42,
-125,
29,
60,
-104,
1,
-2,
17,
16,
112,
-49,
-30,
92,
99,
26,
-101,
-114,
-69
] |
Kirby, J.
This is a contest of the will of Emanuel Boone. The testator gave to his children and grandchildren, named in the will, $5 each, and to Emanuel Boone, the son of William H. Boone, designated in the will as his nephew, $100, and left the bulk of his estate to his widow, Sarah Boone, who was named executrix of the will. He disposed of his home place, containing thirty acres, by paragraph 4 of the will as follows: “I hereby devise and -bequeath my home place, containing thirty (30) acres, more or less, to my wife, Sarah Boone, to be held by her for her sole use and benefit during her natural life, and at her death I desire that said land be turned over to the proper authorities of the city nearest to said land for the purpose of a public park (and that the same be maintained as a public park) under the name of “Boone Park,” for the use and benefit of the public, forever, by said city; but I desire that they do not disturb the natural outlines of the land more than is necessary to make driveways through and over said land.” In the seventh paragraph, he devised thirty-five (35) acres of land to his wife so long as she should remain single, authorizing her to sell it,- or any part thereof, during her widowhood after it was first appraised by three persons, naming them, and directing that out of the proceeds, after paying the expenses, she should retain one-third and divide the other two-thirds equally among his heirs, named in section 2 of the will.
W. H. Boone et al. filed a contest, alleging as grounds therefor:
First. That the testator was without testamentary capacity, and not of sound and disposing mind and memory.
Second. That he was unduly influenced by his wife and Charles Vestal and others unknown.
Third.. Denied the capacity of the city to take and hold the land proposed to be granted for a park under the laws of the State, -and 'alleged other inconsistent provisions of the will.
The will was admitted to probate by the probate court, and upon appeal to the circuit court a trial by jury resulted in favor of its validity, and from the judgment this appeal is prosecuted.
The testimony is voluminous, and, upon the question of testamentary capacity, conflicting and contradictory.
Upon the part of the contestants, children, relatives and heirs, it tends strongly to show that the testator was weakened in mind -and -body with the weight of years; that he had -suffered two strokes of paralysis along-about 1903 and 1904, which further impaired his mind, and that the effect of the last was decidedly noticeable by the drawn condition of Ms face and the twitching of the muscles. That Ms memory was impaired to tie extent that in June, 1904, he failed to recognize one of Ms children, Mrs. McClellan, on Main Street until after she had shaken hands with Mm and called him “father,” and “He recognized me then and cried and wiped the tears from Ms eyes” and said that he failed to recognize another on another occasion, and that he had forgotten and did not recognize a grandcMld until she called his attention to her identity.
Some of these witnesses stated that the Faucettes, who had been mayors of Argenta, were frequent visitors at the house of the testator before the maMng of the will, and often dined with him, and that their pictures were found in the rooms of Ms home.
Mrs. Bay Williams, a granddaughter, said that after her grandfather had a stroke of paralysis in 1903, “I noticed a twiitcMng of Ms lips after the stroke, and he was quick to cry about things. I have seen him sob all alone in the room, and would be twirling his hands and would be chuckling to Mmself, and would cry when no one was around Mm or doing anytMng to hurt Mm, and no one was talking to Mm. I think it was in 1904 he had the second stroke. He seemed to be worse then than before, and I noticed that grandma cared for him very, very closely.” TMs witness overheard a conversation, in 1904, between W. H. Boone, who was at the testator’s home with Ms wife, in which the testator was praising Ms home property and asking Ms son how he thought it would do for a park. It was shown that he had also mentioned to many others that parks were good tMngs for the people and ought to be provided by cities.
Most of the children testified that he was not competent to transact business after the second stroke of paralysis, and that, although he could do the little chores about the house, they did not regard him competent to attend to matters of any importance.
Two experts testified upon hypothetical questions submitted to them that the testator was not of sound and disposing mind and memory.
On the other hand, his banker, his groceryman, and the merchants with whom the testator did business, testified that he was a gardener and truck farmer, and others of his friends and neighbors testified that there was no drawn condition of his face nor twitching of the muscles noticeable, .and that while he had grown old and was getting feeble, that his mind ;and memory were not materially impaired, if at all. His widow stated that she did not know of his ever having had a stroke of paralysis, and also a woman who had been his nurse in a time of sickness.
A. J. Mercer, one of the witnesses to the will, and cashier of the Peoples Savings Bank since 1902, stated he had known the testator from 1896 to his death, that he was a customer of the bank from 1902; that he had done some business for him as an abstracter before that time; that ‘ ‘ he kept an account with cur bank from 1902 and a little before that, until his death.” The account was not very large. “I witnessed his will at his request. The will is undated, but judging from records in the bank it was signed on May 22, 1905. The other witness, Mr. Stevenson, who was at the time paying teller in the bank, said he talked to him about making the will. He was probably in the bank five or six 'times in regard to it. I wrote out the draft of the will myself. There was more than one draft of it made. He discussed with me how he wanted to distribute his property. He came in first and gave us a general idea of what he wanted. I think he was perfectly intelligent and rational at the time. He took a draft of the will which I had prepared and went off with it and afterward brought it back and talked over what changes he wanted made. My recollection is there was no material change. Afterward I copied it as he decided he wanted it, and as it is now. I considered him rational at the time from my dealings with him and from my conversation with him. I couldn’t say now whether he gave the name to me ‘Joseph H.’ and I wrote it ‘Joseph E.’ Boone. The first consideration was that he stated that his children had never done anything for him and they had been provided for most of them during their lifetime, and a hesitance in not sighing the first will was that he was not sure of the names of his grandchildren. He afterward brought these corrected names. He gave me a list of them and seemed to want to take a list and see whether the names were correct. In the second paragraph where he mentions ‘my nephew, Emanuel, son of Will H. Boone,’ he might just have said he was a child of so and so; I expect I didn’t hear any better than that. I didn’t stop to think, I guess.”
R. E. Stevenson, the other witness to the will, stated that after it was executed he heard a great deal of talk about the testator. “His son, Will Boone, came to me several times and asked me if I didn’t think the old gentleman of unsound mind, or words to that effect. I told him that I didn’t think so at the time he signed the will, and I don’t think so yet. I told him that he appeared to be getting kind o’ old, and I don’t remember the exact words I used — I think a little bit senile — but I didn’t say that I wouldn’t have witnessed the will. The testator was back and forth probably a month discussing the .making of his will,' and it was all in typewritten form and ready for signature when I was called in to witness it.”
W. E. Lenon stated that he had known testator for about fifteen years and knew him while engaged in the abstract business. Saw him in their bank frequently from 1904 to 1906. He was a depositor. “I never noticed any twitching in hi-s face. He was.an elderly gentleman, and a little feeble; but nothing more than ordinary for a man of that age. He drew checks on the bank. I knew Ms signature. His book shows last balance, $669.49, on October 6,1907.” His account was continued in the name of Mrs. Boone as executrix. “A few months before he made his will he talked to me about making it. At that time I noticed nothing in Ms speech or conduct to indicate that he was not a perfectly rational man and knew what he was doing. In all my conversations with him, I never noticed anything except that he was just an elderly gentleman, in feeble condition and yet very rational. I had that-same opinion about his sanity when he talked to me about making the will. * * * I don’t recollect whether he discussed with me about giving this land to the city of Little Bock or Argenta for a park.”
Mrs. Underwood knew the testator three or four years before his 'death, and assisted his wife in nursing. him when he was sick. She said: “His ability to get around and walk and carry on the affairs of life were good. He was never sick during that .time, to my knowledge, except a little cold or something of that kind. He attended to all his business, did not limp, there was nothing the matter with his arm. His face was not the least bit drawn and I never saw any twitching of the muscles; I saw him every day and sometimes two or three times a day for a year; lived just across the street from him for a year, two or three years before his death. I talked with him, visited back and forth; his speech was distinct and his conversation intelligent, very much so; he read the papers and kept posted on current events and was an intelligent conversationalist. ”
J. G. Vog’el, a merchant in Argenta for twenty-eight years, who bought vegetables and berries from the testator and sold him groceries until a short time before he died, said: “He certainly was able to attend to his business in every respect, and to take care of his own interest at any and all times. The last time he was in my store was about thirty days before he died. He bought five gallons of oil and I started to pick up the can and take it out and he said, ‘No, no; I can get into the.buggy;’ 'and he got into the buggy unassisted. There was nothing the matter with him that I could see in any shape, form or fashion; he was getting along in years naturally. I think he was better preserved mentally and physically than one out of a great many thousand men who reach the age of -seventy-eight or seventy-nine. I could observe nothing wrong with his mind or his conversation or his demeanor. Never noticed any twitching or drawing of his face. Sometimes he would come to my place of business every day, in the fall maybe two or three times a week. When he would come across the river he would stop in my store. I never knew any one that was more industrious and thrifty.”
Others who had known him long and traded with him never noticed that his face was drawn or that the muscles twitched, and reg-arded him at the time of his death a rational man of good sense.
O. J. Kramer stated he had been in the grocery business in Little Bock for thirty years, and was acquainted with the testator for about ten years and had business with him for five Or sis years, up to the time of his death. “He seemed to always know what he was doing. He would leave the goods there, go on Fifth Street, come back and we would settle the price at whatever they gave him on Fifth Street. He seemed rational. I spent a good deal of time talking to him, but not about making his will. He was always sane with me so far as the transactions and discussions I had with him. I never heard there was anything the matter with him until I was summoned here as a witness at the first trial. ’ ’
The widow testified that testator had never had a stroke of paralysis; that he sometimes got overheated in the fields, came in warm 'and would sit down a while. He was never sick any time until his last illness. He took sick on August 5 and died on the 22d, 1906. Never talked to her about making his will. Neither side of his face was drawn and there was no twitching of the muscles of it. She knew both Will and Jim Faucette by sight, but neither of them had ever been in the house prior to Mr. Boone’s death. She did not know Mr. Faucette until he called to see her when the trial was set for November.
J. P. Faucette, the present mayor of Argenta, stated he was not acquainted with testator during his lifetime, never had seen him that he knew of, nor had any con versation with him. Was never on his place during his lifetime; he had 'seen it frequently-' — knew where it was. He never gave a picture of his to- any of the Boone family, and, if they had one, he knew nothing whatever of it.
W. C. Faueette stated that he was mayor of Argenta from April, 1904, until January, 1911; that he was not acquainted with the -testator, never had any conversation with him about this will, nor any other subject, was never at his residence during his lifetime, and that there was no picture of his in his house. Didn’t know anything about the will until he read it in the newspapers, that he never saw 'his own picture in the newspaper, although they had a good deal to say about him.
Charles Vestal testified he lived on the property adjoining the testator, his nearest neighbor, and knew him well. “I must have known him -over thirty years. I thought he had a good mind 'and entirely sane. I never talked to him about giving any part of his property to the city.”
The testator, shortly after his last marriage, had had some litigation with his children and heirs about some property they claimed had belonged to their mother. This litigation was compromised and the property divided.
The jury found upon conflicting 'testimony in favor of the validity -of the will, ,and there is ample evidence to sustain their verdict. The decided preponderance of the testimony of witnesses not interested in the result and acquainted intimately with the testator, -shows -that he was of sound and disposing mind at the time- of the execution of the will, and there is no testimony whatever tending to show that there was any undue influence exerted by Charles Vestal and Sarah Boone, the Faucettes or any one else, in procuring the execution of the will. The testator was old and he gave valuable property that his children expected would come to them to the city nearest which it was located for a park to be named “Boone Park,” and kept for the benefit of the public and in commemoration of the donor. His disposition to benefit his fellow-man and to erect a monument to his own memory in passing through this life was stronger than his inclination to take care of and further provide for his own children, who had long been away from his home and established families of their own. He had a right to do this, if his capacity was sufficient in law. In McCulloch v. Campbell, 49 Ark. 367, the court said that old age, physical infirmities, and even partial eclipse of the mind would not prevent the testator from making a valid will, if he knew and understood what he was doing— if he could retain in his memory without prompting the extent and condition of his property and comprehend to whom he was giving it and be capable of appreciating the deserts and relations to him of others whom he excluded from participation in his estate. Ouachita Baptist College v. Scott, 64 Ark. 351; Hall v. Perry, 47 Am. St. 354, 28 A. & E. Enc. of Law, 74; Leeper v. Taylor, 47 Ala. 221.
It is apparent that the testator retained in Ms memory the condition and extent of his property without prompting from any one and without any suggestions as to the disposition thereof. He went to the cashier of Ms bank, with whom he had long dealt, and told Mm he desired to make -a will and what disposition he expected to make of Ms property. He discussed it with him several times, and a rough draft of the will was then made, which he took away with Mm and kept for a time and then returned and suggested such further amendments and corrections as he wanted made. He knew he was giving the bulk of his estate to Ms wife and intended to do so, and doubtless preferred to perpetuate Ms name in the gift to the city of the home place for a park to be called “Boone Park,” instead of to provide further for his children, all of whom were grown and had long since gone from his home and established homes of their own, and who had also sued him to prevent the disposition of certain property that they claimed belonged to them as heirs of their mother. His mind doubtless was not as good as in the days of his youth and vigorous manhood, but the most that could be gathered from the testimony reía tive to the impairment of his mind was here and there an instance of absent-mindedness, if the testimony of the contestants had been believed.
The fact that the testator omitted the “n” in his signature in writing his first name, Emanuel, on one of the sheets of the will, in no wise affects its validity, for there is no contention even that he did not intend to and that he did not sign the will. The whole testimony on that point shows that he intended to and did sign it. 40 Enc. 1107; Plates’ Estate, 148 Pa. St. 55; Sheehan v. Kearney, 35 L. R. A. 103; Word v. Whipps, 28 S. W. 151.
Neither did the designation of his son’s son in the will as his nephew instead of his grandson affect its validity, for he gave the names of both and showed that one was the son of the other, and the mistake was a clerical error easily apparent and the beneficiary was sufficiently designated.
It is earnestly contended also that the court erred in not instructing the jury that the will was void as to one of the contestants, a granddaughter, whose name was omitted therefrom, and also that it was the court’s duty .to instruct the jury..that the city of Argenta, the nearest to the property devised for the park, was incapable of taking under the will under the laws of the State. There was no necessity for the court to submit to the jury the question of Lucy Russell’s, ;a granddaughter whose name was not mentioned in the will, rights thereunder, since there was no contention made by any one that the will was not ineffectual as to her. The fact was in evidence to the jury, and contestant had whatever benefit might arise from it in the argument. The instruction to the jury would only have been confusing and would not have conduced to any clearer understanding of the issues involved. Contestants did not <ask the court to instruct the jury that the city of Argenta could not under the law hold this property and maintain it as a park under the provisions of the will, .and can not, theref ore, 'Complain of the court’s failure to do so if such was the law. It could make no difference in the question of the testator’s ca- pacify and the validity of the will if the city was without power to take the benefit of the gift, which we do not decide, 'and make a park upon the lands devised for the purpose, for if it had had no such power and could not have held them, then they would have reverted to the heirs of the testator, these contestants, in any event, because of the failure of the devise to the city..
We do not consider the other objections urged of sufficient importance to discuss them at length, it being sufficient to say that the issues were submitted to the jury on proper instructions and we find no prejudicial error in the record. The judgment is affirmed. | [
-15,
108,
-100,
58,
-86,
-80,
42,
-104,
99,
-53,
39,
91,
-5,
-46,
81,
41,
-13,
111,
81,
107,
-58,
-93,
31,
-126,
82,
-13,
-5,
-49,
33,
-60,
-9,
87,
76,
100,
-56,
-35,
66,
74,
-23,
80,
-116,
12,
-117,
105,
-39,
-32,
54,
-65,
116,
26,
117,
-102,
-13,
44,
61,
-26,
-20,
44,
-37,
-67,
89,
-72,
-97,
-121,
-1,
18,
16,
55,
-104,
-125,
74,
104,
-112,
125,
-128,
-24,
83,
54,
6,
116,
75,
-117,
8,
98,
103,
16,
109,
-17,
-16,
-118,
7,
112,
15,
-89,
-74,
73,
66,
0,
-66,
-99,
81,
16,
-117,
-14,
-20,
20,
28,
104,
14,
-113,
-42,
-95,
-113,
124,
-116,
18,
-5,
47,
0,
81,
-51,
-26,
93,
37,
53,
-101,
-115,
-70
] |
Hart, J.
Appellee instituted this action against appellants to recover an amount due for the purchase price of a tract of land in Crawford County and to foreclose a vendor’s lien therefor. A decree was entered by the chancellor in favor of appellee, and, to reverse that decree, this appeal is prosecuted..
The facts are as follows:
Appellee entered into a written contract with the appellants whereby he sold them a tract of land for $1,500. In accordance with the contract, he executed to the appellants a deed and delivered to them possession of the premises. Appellants refused to pay all of the purchase money, and claim they are entitled to a deduction of fifty dollars for certain property on tbe place when they purchased it which was used or destroyed by ■appellee. The property in question consisted of an orchard sprayer and harrow which appellee took away from the premises and some fence posts which he burned up. The fence posts had been brought by appellee from another place to the one in question and had never been fixed in the ground. The sprayer and harrow were used by him in his orchard when he thought necessary. None of these articles were fixtures and did not pass by a sale of the land by appellee to appellants. Therefore, he had a right to remove them from the premises or to do anything else he pleased with them.
The decree will be affirmed. | [
-16,
108,
-40,
12,
42,
-32,
104,
-104,
70,
-95,
39,
-45,
111,
-62,
0,
111,
-26,
121,
96,
120,
69,
-78,
79,
2,
-10,
-69,
-37,
-35,
-67,
79,
-26,
-41,
12,
96,
-62,
85,
98,
-94,
-91,
-36,
-114,
-121,
-101,
108,
-47,
66,
52,
-85,
116,
75,
117,
-113,
-5,
44,
21,
-61,
73,
44,
-21,
57,
81,
-8,
-69,
13,
95,
7,
17,
37,
-104,
67,
-56,
106,
-112,
49,
3,
-24,
115,
-74,
-122,
116,
11,
-101,
-120,
34,
102,
32,
-8,
-1,
56,
-104,
42,
94,
-99,
-90,
-47,
88,
66,
41,
-82,
-97,
124,
-106,
-73,
-10,
-18,
-123,
-99,
108,
3,
-50,
-44,
-77,
-113,
120,
-118,
3,
-17,
-89,
49,
112,
-49,
-94,
93,
103,
55,
-101,
-116,
-5
] |
Kirby, J.
(after stating the facts). It is contended for reversal (1), that the appellees were not entitled to recover, not being the parties aggrieved, since no money or fare in fact was paid by either o.f them and (2) that the law prescribing the penalty and attorney’s fee is unconstitutional and void. Section 6620, Kirby’s Digest, provides: “Any of the persons or corporations mentioned in 6611, 6612, 6613 and 6614, that shall charge, demand, take or receive from any person or persons aforesaid any greater compensation for the transportation of passengers than is in this act allowed or prescribed, shall forfeit and pay for every such offense any sum not less than fifty dollars, nor more than three hundred dollars and costs of suit, including a reasonable attorney’s fee, to be taxed by the court where the same is heard on original action, by appeal or otherwise, to be recovered in a suit at law by the party aggrieved in any court of competent jurisdiction. And any officer, agent or employee of any such person or corporation who shall knowingly and wilfully violate the provisions of this act, shall he liable to the penalties prescribed in this section to be recovered in the same manner (e), Act April 4, 1887.”
The larw provides further: “The -maximum sum which any corporation, officer of court, trustee, person or -association of persons operating a line -of railroad in' this State shall be authorized to collect for carrying each passenger over said line within the State in the manner known as first-class passage is fixed at the following rates * * * On lines over 85 miles in length, two cents per mile or a fraction thereof, and for carrying children in charge of an adult there may be charged and collected one-half -of the albove named rates for such of said children as may be under the age of twelve years and over the age of five years, and for such of said children as may be under the age of five years no charge whatever shall be made beyond what is collected from the adults who may have charge of them.” Section 6611, Kirby’s Digest, as amended by act February 9, 1907.
There is no merit in the contention that these minor appellees are not the persons aggrieved by the overcharge of fare since such overcharge was not paid by them, but by the persons in charge of -them, the grandmother in the one case and the mother in the other. The persons referred to in the first part of the section of the statute providing the penalties, are those intended to become passengers, and it can make no difference to the railroad company by whom the fares were actually paid, and since they were paid, and for the minors, they are the parties aggrieved within the meaning of the statute and entitled to recover the penalties. St. Louis, I. M. & S. Ry. Co. v. Freeman, 95 Ark. 219; St. Louis, I. M. & S. Ry. Co. v. Frisby, 95 Ark. 283.
It is next contended that the penalties prescribed for the violation of said section 6620, Kirby’s Digest, are so enormous, arbitrary and oppressive, and so in excess of any /amount allowed iby law to be recovered for the infliction of equal injury under any other eircum stances or conditions as to deprive the defendant of its property without due process of law, and deny it the equal protection of the laws in violation of section 1 of the Fourteenth Amendment to the Constitution of the United States. Neither is this contention warranted. No claim whatever is made that the maximum rate fixed by law for the carrying of passengers, deliberately violated by the railroad company is unreasonable or insufficient to produce a reasonable return upon its investment, and this is not an attempt to question the sufficiency of the rate. It is commonly known that carriers are not prone to adhere uniformly to rates lawfully prescribed and it is necessary that deviation from such rates be discouraged and prohibited by adequate liabilities and penalties, and we regard the penalties prescribed as no more than reasonable and adequate to accomplish the purpose of the law and remedy the evil intended to be reached. They can not, in our opinion, be regarded as so enormous, excessive and arbitrary as to deprive the carrier of its property without due process of law or deny it the equal protection of the law, contrary to the Fourteenth Amendment of the Constitution of the United States, and within the authority of Mo. Pac. Ry. Co. v. Tucker, 230 U. S. 340; Ex parte Young, 209 U. S. 123. As said by this court in St. Louis, I. M. & S. Ry. Co. v. Frisby, supra, “The statute is directed against the railway company and its object is ‘to compensate the party injured for his expenses in the prosecution and to compel the payment of such a sum by the company violating the law as will effectually stop the practice.’ ” Fetter on Carriers of Passengers, § 263; St. Louis, I. M. & S. Ry. Co. v. Waldrop, 93 Ark. 42.
We find no error in the record and the judgment in each case is affirmed. | [
-16,
-8,
-34,
-68,
41,
96,
43,
-112,
-45,
-13,
-89,
83,
-117,
-64,
17,
51,
-9,
-83,
116,
59,
-42,
-89,
87,
-93,
-70,
-109,
113,
-57,
49,
77,
110,
-9,
4,
48,
-22,
-11,
103,
75,
-43,
-12,
-54,
10,
40,
109,
-7,
5,
52,
105,
22,
15,
49,
-114,
-77,
42,
24,
113,
-88,
47,
43,
-71,
-125,
49,
-106,
-121,
71,
2,
33,
52,
-104,
-121,
-20,
62,
16,
17,
1,
-56,
115,
-90,
-126,
-42,
41,
-103,
-51,
96,
101,
-91,
-27,
-27,
-68,
-116,
46,
-8,
-67,
-89,
-48,
120,
3,
-51,
-105,
-35,
64,
68,
-113,
122,
-6,
68,
23,
36,
1,
-113,
-108,
-93,
-3,
102,
-116,
6,
-49,
-89,
19,
97,
-54,
50,
95,
71,
50,
-101,
31,
-36
] |
Hart, J.,
(after stating the facts). Counsel for defendant seek to uphold the judgment upon the doctrine of the presumption of a grant after a long lapse of time. In discussing this question, in the case of Fletcher v. Fuller, 120 U. S. 534, at page 545, Mr. Justice Fields, speaking for the court, said:
“When, possession and nse are long continued they create a presumption of lawful origin; that is, that they are founded upon such instruments and proceedings as in law would pass the right to the possession and use of the property. It may be, in point of fact, that permission. to occupy and use was given orally, or upon a contract of sale, with promise of a future conveyance, which parties have subsequently neglected to. obtain, or the conveyance executed may not have been acknowledged, so as to be recorded, or may have been mislaid or lost. Many circumstances may prevent the execution of a deed of conveyance, to which the occupant of the land is entitled, or may lead to its loss after being executed.”
Again, at page 551 the learned judge said:
“The general statement of the doctrine, as we have seen from the' authorities cited, is that the presumption of a grant is indulged merely to quiet a long possession which might otherwise be disturbed by reason of the inability of the possessor to produce the muniments of title, which were actually given at the time of the acquisition of the property by him or those under whom he claims, but have been lost, or which he or they were entitled to have at that time, but had neglected to obtain, and of which the witnesses have passed away, or their recollection of the transaction has become dimmed and imperfect. And hence, as a general rule, it is only where the possession has been actual, open and exclusive for the period prescribed by the statute of limitations to bar an action for the recovery of land, that the presumption of a deed can be invoked. But the reason for attaching such weight to a possession of this character is the notoriety if give® to the claim of the occupant; and, in countries where land is generally occupied or cultivated, it is the most effective mode of asserting ownership. ’ ’
In United States v. Chaves, 159 U. S. 452, Mr. Justice Shiras, after discussing the question of fact as to whether or not the evidence was sufficient to show affirmatively that the claimant obtained title from the Mexican Government, said, in reference to the power of the court to presume a grant upon proof of long continued possession, the following:
“It is scarcely necessary for us to consider such a question, because, as we have seen, there is ample evidence from which to find that these settlers were put in juridical possession under a grant from the Governor of New Mexico, who, under the laws then in force, had authority to make the grant. However, we do not wish to be understood as undervaluing the fact of a possession so long and uninterrupted as disclosed in this case. Without going at length into the subject, it may be safely said that by the weight of authority, as well as the preponderance of opinion, it is the general rule of American law that a grant will be presumed upon proof of an adverse, exclusive and uninterrupted possession for twenty years, and that such rule will be applied as a presumptio juris e,t de jure, wherever, by possibility, a right may be acquired in any manner known to the law. 1 Greenleaf, Ev. (12 ed.), § 17; Ricard v. Williams, 7 Wheat. 59, 109; Coolidge v. Learned, 8 Pick. 503.
“Nothing, it is true, can be claimed by prescription which owes its origin to, and can only be' had by, matter of record; but lapse of time accompanied by acts done, or other circumstances, may warrant the jury in presuming a grant or title by record. Thus, also, though lapse of time does not, of itself, furnish a conclusive bar to the title of the sovereign, agreeable to the maxim, nullum tempus occurrit regi; yet, if the adverse claim could have a legal commencement, juries are advised or instructed to presume such commencement, after many years of uninterrupted possession or enjoyment. Accordingly, royal grants have been thus found by the jury, after an indefinitely long continued peaceful enjoyment, accompanied by the usual acts of ownership. 1 Greenl. Ev., § 45.”
The presumption of a grant from long continued possession is one of fact, 'and it is for the jury or court trying the ease to determine the effect of the evidence in support of the presumption.
It is contended by counsel for plaintiff that the records of the State Land Office conclusively show, as a matter of law, that no deed could have ever been issued by the State to Eppy White; but we do not agree with them in this contention. It was admitted by the Commissioner of State Lands that there was some confusion from the records in his office as to whether the entry by Eppy White was for the northwest quarter of the northeast quarter or the northeast quarter of the northeast quarter. It is true, he states that in his opinion the letter i£S” was placed on the northwest quarter of the northeast quarter by mistake and should have been placed on the northeast quarter of the northeast quarter. He gave his opinion that this was a mere clerical error, because there was no other record in the land office tending to show that Eppy White had entered the land in controversy; that on the other hand there was a record in the land office showing that Eppy White had made application to purchase the northeast quarter of the northeast quarter and that the same had been sold to him. He admits, however, that it was the practice in the land office to place the letter ££S” on the original plat on the subdivision of land when it was sold by the State, and that pursuant to this custom the letter ££S” was placed on the northwest quarter of the northeast quarter. He also admits that by reason of this confusion of the records one of the clerks in his office sold the northeast quarter of the ^northeast quarter of said section 6 to Oscar Winn. Then, too, the Auditor of State Lands, pursuant to statute, certified to the county clerk of Yell County, in which the lands were situated, that the northwest quarter of the northeast quarter, or the land in controversy, had been sold to Eppy White and was subject to taxation. The date of this certificate is 1868. Therefore, we are of the opinion that the. circuit court might reasonably have inferred that the record of the State Land Office did not show, as a matter of law, that the land in controversy had not been sold to Eppy White. When we consider the further fact that the land has been in possesison of Eppy White and his grantees ever since the year 1857, and that these parties have cleared the land, made improvements on it, cultivated it, and paid taxes on it, we think the circuit court' was justified in finding that a grant had been made to Eppy White. In addition to this, Bichará Ellison testified that he had seen, among the papers of his father, a deed to this land from the State to Eppy White. Eppy White and his grantees have been in the exclusive and uninterrupted possession of the land for over half a century, and they are all, except the defendant, Laura West, now dead. She was too young to remember anything about the original entry; and when all the facts and circumstances adduced in evidence are considered, we are of the opinion that the court was justified in finding that a grant of the land had been made by the State.
It follows that the judgment must be affirmed. | [
-16,
111,
-36,
63,
-54,
-16,
42,
-72,
97,
-22,
99,
83,
109,
-46,
-107,
61,
-9,
109,
85,
107,
70,
-73,
71,
81,
112,
-13,
90,
93,
53,
-19,
102,
68,
76,
48,
-62,
-43,
-58,
-24,
-111,
90,
-114,
-123,
-104,
101,
-31,
104,
48,
35,
16,
14,
97,
87,
-13,
42,
81,
87,
104,
40,
75,
61,
-64,
-24,
-97,
-91,
-5,
22,
-95,
39,
-92,
65,
-24,
-116,
-120,
89,
1,
-8,
123,
-74,
-110,
-12,
75,
27,
-88,
102,
98,
-96,
108,
-17,
-71,
-104,
14,
-74,
7,
-90,
80,
80,
74,
105,
-90,
-33,
125,
20,
36,
100,
-30,
4,
95,
108,
11,
-113,
-42,
-77,
13,
114,
-102,
3,
-41,
-127,
96,
112,
-52,
-62,
92,
97,
121,
-101,
-114,
-7
] |
Wood, J.,
(after stating the facts). The court did
not err in overruling the appellant’s motion to set aside his plea of guilty entered at a former term of the court, and in sentencing appellant upon such plea. The appellant was twenty-four years of age. He was advised by the court of the legal consequences of such plea.
The statute provides for the appointment of counsel upon the request of one who has been indicted for a felony where he is unable to employ any. Kirby’s Digest, § 2273. Appellant made no request for the court to appoint counsel to defend him. On his motion to set aside the plea of guilty, he did not offer to introduce any testimony that tended to prove that he was not guilty of the crime charged, and his testimony was not sufficient to show that he was induced to enter a plea of guilty under a misapprehension of-the facts. His plea of guilty was entered voluntarily, and there is nothing in the record to show that the plea was improperly entered. It was within the discretion of the court, under the evidence adduced, to allow appellant to withdraw his plea of guilty entered at a former term, or to refuse to allow him to do so. There was no abuse of the court’s discretion. Joiner v. State, 94 Ark. 198.
This court has held that sentence may be pronounced on a plea of guilty at a term subsequent to that at which the plea was entered. Thurman v. State, 54 Ark. 120; Greene v. State, 88 Ark. 290; Joiner v. State, 94 Ark. 198; State v. Wright, 96 Ark. 203; Barwick v. State, 107 Ark. 115.
The judgment is affirmed. | [
48,
-30,
-36,
-67,
11,
96,
58,
-72,
88,
-13,
103,
83,
-17,
94,
16,
125,
115,
93,
85,
57,
-59,
-73,
55,
97,
-77,
-109,
113,
-41,
-65,
79,
-68,
-100,
67,
48,
82,
-43,
102,
-56,
-27,
88,
-114,
-123,
-118,
100,
-30,
67,
48,
71,
28,
15,
49,
-98,
-13,
42,
16,
-55,
43,
108,
77,
-67,
80,
17,
-104,
13,
-81,
20,
-93,
52,
-68,
2,
120,
54,
-36,
57,
1,
-24,
115,
22,
-126,
-44,
111,
-103,
8,
106,
98,
35,
-67,
111,
-68,
-63,
62,
46,
-99,
-90,
-16,
89,
75,
73,
-105,
-67,
115,
20,
46,
-8,
-16,
4,
57,
108,
9,
-122,
-16,
-73,
-49,
117,
-106,
-77,
-21,
5,
16,
117,
-52,
-30,
92,
79,
50,
-45,
-116,
-12
] |
Hart, J.,
(after stating the facts). It is claimed by the plaintiffs that A. C. Hill derived title to the lands in controversy by mesne conveyances from the United States, and this may be assumed to be true. On the 5th day of November, 1880, A. C. Hill and his wife conveyed the land in controversy to Clayton Cotton, and the deed was duly recorded. At the time Clayton Cotton was 12 or 14 years old. The consideration recited in the deed was $75, the receipt of which is acknowledged.
For the plaintiffs, Z. R. Cotton testified that he was present when the deed from A. C. Hill and wife to Clayton Cotton was executed. That his father said that he wanted his son; Clayton Cotton, to keep the land, as the money which was paid for it came from Clayton Cotton’s mother. That she owned a tract of land in Montgomery County, Arkansas, which she sold before her death, and that he, Zara L. Cotton, got the money for it. That he wanted Clayton to keep this tract of land in remembrance of receiving something from his mother. That previous to this his father, Zara E. Cotton, had given to another brother and to himself 40 acres of land each. Witness further testified that Clayton Cotton was a half-brother to him and the other plaintiffs, being a son by the first wife of Zara L. Cotton. That the mother of Clayton Cotton died in 1868, and that Clayton Cotton never married, and died on April 10, 1893, age 25 years, in the State Insane Asylum. He does not state whether or not E. W. Dollarhide was present when the deed from A. C. Hill was executed to Clayton Cotton.
For the defendants, E. W- Dollarhide states that he was present when the deed from A. C. Hill and wife to Clayton Cotton was executed. He states that Zara R. Cotton was not present, and that the only persons present were Zara E. Cotton, A. C. Hill and himself. He stated further that both Hill and Cotton said that the former was indebted to the latter, and wished to pay the debt by conveying the land in question in satisfaction of it. That Cotton did not want the deed made to himself on account of being in debt, and that they both asked him about the ad-visibility of making the deed to Cotton’s wife. That he advised them against that course, and that, after some discussion, they concluded to make the deed to Clayton Powell, who was at the time 12 or 13 years old, and that the deed was so executed, the consideration for the deed being the debt due by A. C. Hill to Zara E. Cotton: He further testified that at that time Clayton Cotton had no means of any kind. He also stated that he is now a practicing attorney, but was not when the deed was executed, but that Cotton and Hill were.
On the 2d day of July, 1901, Zara E. Cotton and wife by quitclaim deed conveyed the land in controversy to E. E. Scbuman, and the defendants derived their title by mesne conveyances from her.
' Zara L. Cotton died on the 4th day of September, 1906, and this action was commenced on August 10, 1909. It will be noted that Clayton Cotton had no means with which to purchase the land, and it is not claimed that he paid anything for it. The plaintiffs claimed that the purchase money of the land was received from his mother’s estate. On the other hand, defendants claim that it was paid by the father. E. W. Dollar-hide and Zara R. Cotton were the only two witnesses who testify on that point, and they flatly contradict each other. Both their statements can not be true. Zara R. Cotton was a party to the suit and interested in the result. In any event the chancellor found this disputed question of fact in favor of the defendants; and it is well settled in this State that the findings of fact made by a chancellor will not be disturbed on appeal unless it appears that they are against the preponderance of the evidence.
But it is insisted by counsel for plaintiffs that the testimony of E. W. Dollarhide is incompetent within the rule announced in Waldroop v. Ruddell, 96 Ark. 171; Seawell v. Young, 77 Ark. 309; King v. Slater, 94 Ark. 589, and other like decisions of this court where it is held that declarations of a decedent going to show the character and extent of his possessions are competent, but that his declarations as to title are not competent because they are self-serving declarations. We do not agree with counsel in their contention. Dollarhide testifies that he was present when the contract was made for the purchase of the land, and his testimony is as to conversation» and transactions that took place between Hill, the vendee, and Cotton, the purchaser of the land, at the time the coircract of purchase and sale was made. It was testimony then of matters within his own personal knowledge. Such • testimony was admitted in the case of Rastman v. Powell, 51 Ark. 530, where the father purchased the land and took the deed in the name of his daughter, for the purpose of showing an advancement and to contradict the claim that there was a resulting trust in favor of the father. See also Robinson v. Robinson, 45 Ark. 481.
It follows that the decree of the chancellor must be af firmed; for the law of the case is settled by the decision in the case of Galloway v. Robinson, 19 Ark. 396. There the court held:
“Where the father advances the money for the purchase of lands and takes the deed in the name of the son, upon the death of the son without issue, the lands vest in the father in fee. In such case the lands come to the son ‘on the part of the father’ by gift, and were not a new acquisition by the son, within the contemplation and meaning of the act of descents and distributions of this State.”
It is, however, contended by counsel for plaintiffs that this case is overruled by later decisions of this court. In the first case referred to, Magness v. Arnold, 31 Ark. 103, the court did not decide whether the land was ancestral or a new acquisition because it was not necessary to do so. If the land was ancestral estate, it came from the father, and so the mother only took a life estate whether it was an ancestral estate or a new acquisition. Hence the court did not decide that question, and a careful reading of the opinion will show that fact.
In the case of Hogan v. Finley, 52 Ark. 55, the land was donated under the laws of the State. It is true the father paid the donation fees and had the deed made to his son; but the court held that, the father not having paid any consideration for the land, it could not be a gift from him and in consequence a new acquisition. So in the case of Wheelock v. Simons, 75 Ark. 19, the daughter took as a purchaser under a will from a stranger to the blood, and the court held in such case that the estate was a new acquisition.
This court has frequently held that the purchase of land by a father and conveyance to his son by his direction is, in the absence of proof to the contrary, presumed to be an advancement, and not a trust. White v. White, 52 Ark. 188; Eastham v. Powell, 51 Ark. 530; Bogy v. Boberts, 48 Ark. 17; James v. James, 41 Ark. 301; Kemp v. Cossart, 47 Ark. 62.
“An advancement is an irrevocable gift in praesenti of money or property, real or personal, to a child by .a parent to enable the donee to anticipate his inheritance to the extent of the gift.” 14 Cyc. 162.
Advancements are chargeable to the child in the distribution of the donor’s estate. Goodwin v. Parnell, 69 Ark. 629; Culber house v. Culberhouse, 68 Ark 405; Kemp v. Cossart, 47 Ark. 62.
We are of the opinion that the land in controversy came to Clayton Cotton from his father within the meaning of our statutes of descents and distributions, as construed in the case of Kelley’s Heirs v. McGuire, 15 Atk. 555, and that, upon the death of Clayton Cotton, the title in fee vested in his father, Zara L. Cotton. Zara L- Cotton conveyed the land by quitclaim deed to E. E. Sehuman, and the defendants derived their title by mesne conveyances from her. Hence the plaintiffs have no title to the lands, and, as above stated, the decision of the chancellor was correct. The decree will be affirmed. | [
112,
110,
-4,
47,
40,
-32,
10,
-70,
79,
-94,
-96,
83,
-21,
94,
25,
37,
-93,
41,
81,
105,
70,
-74,
17,
5,
-14,
-77,
123,
-43,
51,
-51,
102,
86,
77,
32,
-118,
93,
-29,
96,
-27,
90,
-50,
-128,
-85,
64,
-111,
-64,
52,
-81,
4,
75,
81,
-82,
-77,
41,
53,
119,
72,
46,
107,
-88,
88,
-32,
-113,
-122,
-1,
30,
16,
-26,
-68,
-123,
-54,
106,
-112,
53,
1,
-84,
115,
-76,
-122,
116,
79,
-119,
12,
38,
-25,
49,
-27,
-81,
56,
-120,
63,
-2,
-115,
-90,
-64,
72,
67,
76,
-66,
-99,
78,
64,
-90,
-16,
-8,
29,
92,
104,
45,
-49,
-106,
-95,
45,
56,
-100,
-109,
-61,
15,
48,
113,
-51,
-94,
76,
69,
125,
-101,
7,
-78
] |
MIKE MURPHY, Judge
h Monty Payne was serving a five-year suspended sentence stemming from a 2013 guilty plea to breaking or entering (a Class D felony) and theft of property (a Class A misdemeanor) when a Boone County jury found him guilty of possession of methamphetamine and drug paraphernalia. The circuit court revoked Payne’s suspension on the basis of these convictions and sentenced him to six years’ imprisonment to run concurrent with the terms of imprisonment announced in case no. 05CR-15-79. Payne now appeals, arguing the revocation was in' error because (1) there was insufficient evidence to support the convictions and (2) the State had failed to prove that Payne had received the written conditions of his suspended sentence. We affirm the sentences as modified.
To begin, we note that this is a companion case to Payne v. State, 2017 Ark. App. 263, 520 S.W.3d 719, 2017 WL 1536171, also handed down today. The background, facts, and procedural history are set out in detail in that opinion and do not bear repeating here. In that appeal, as in this one, Payne 12first challenges the sufficiency of the evidence to support his possession convictions. Because the revocation of Payne’s suspended sentence was based on those possession convictions, it stands to reason that if there was not enough evidence to support those convictions, there is not enough evidence to support the revocation.
The standard of review for a challenge to the sufficiency of the evidence on appeal is different for convictions and revocations. To support a conviction, we review the evidence most favorable to the State for substantial evidence. Perez v. State, 2016 Ark. App. 291, 494 S.W.3d 431. In revocation proceedings, however, we look to see only if the trial court’s decision to revoke is supported by a preponderance of the evidence. Stinnett v. State, 63 Ark. App. 72, 973 S.W.2d 826 (1998). Evidence is substantial if it is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resorting to speculation or conjecture. Perez, supra. On the other hand, a preponderance of the evidence is evidence which, when weighed with that opposed to it, has more convincing force and is more probably true and accurate. Meador v. State, 10 Ark. App. 325, 664 S.W.2d 878 (1984). Thus, evidence that may not be sufficient to convict can be sufficient to revoke, due to the State’s lower burden of proof. Bradley v. State, 347 Ark. 518, 521, 65 S.W.3d 874, 876 (2002).
In Payne v. State, 2017 Ark. App. 263, 520 S.W.3d 719, we reviewed the challenge to the sufficiency of the evidence using the higher standard and held it sufficient to support the convictions. For the reasons set out in CV-16-948, we affirm the circuit court’s order on Payne’s first point.
IsPayne next argues that, because there was no proof introduced at the revocation hearing that he had ever been supplied with written conditions of his suspended sentence, the court had no authority to revoke his suspension. He cites Ross v. State, where our supreme court reversed a revocation of a suspended sentence when there was no evidence introduced at the revocation hearing that the appellant, who had committed a crime, had violated a written condition of his suspended sentence. 268 Ark. 189, 594 S.W.2d 852 (1980). We are unable to reach this point, however, because Payne did not preserve it for our review. The State correctly notes that this argument was not presented to the trial court, and we are consequently unable to consider it for the first time on appeal. See, e.g., Whitener v. State, 96 Ark. App. 354, 241 S.W.3d 779 (2006).
Finally, we note that, while it was not argued to this court, the circuit court’s April 12, 2016 order is illegal on its face regarding the misdemeanor. The issue of an illegal sentence is an issue of subject-matter jurisdiction that this court may raise sua sponte, even if not raised on appeal and not objected to in the circuit court. Harness v. State, 352 Ark. 335, 101 S.W.3d 235 (2003); Wright v. State, 92 Ark. App. 369, 214 S.W.3d 280 (2005).
Arkansas Code Annotated section 16-93-308(d) provides that
[i ]f a court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his or her suspension or probation, the court may revoke the suspension or probation at any time prior to the expiration of the period of suspension or probation.
Payne’s October 2013 sentencing order provided that he serve 60 months’ suspended imposition of sentence for the felony charge and 12 months’ suspended imposition of sentence for the misdemeanor. The sentences were to run concurrently; thus, the twelve-month sentence for the misdemeanor was completed before the State even filed its first | ¿petition to revoke Payne’s suspended sentence in December 2014. Consequently, the revocation of probation for the misdemeanor resulted in an illegal sentence.
The judgment is modified to delete the revocation and sentence for misdemeanor theft of property.
Affirmed as modified.
Abramson and Hixson, JJ., agree. | [
48,
-18,
-3,
60,
10,
-31,
27,
-66,
67,
-113,
118,
115,
39,
-62,
4,
115,
-62,
79,
68,
105,
-62,
-73,
103,
-47,
34,
-13,
-40,
-41,
-15,
111,
-28,
85,
12,
112,
-14,
-43,
102,
-54,
-37,
88,
-114,
3,
-101,
-27,
83,
-48,
40,
33,
17,
15,
33,
-97,
-30,
40,
24,
-49,
73,
44,
75,
44,
88,
-47,
-40,
15,
-21,
20,
-109,
-76,
-99,
6,
-40,
63,
28,
49,
17,
-24,
115,
-74,
-122,
84,
77,
-101,
44,
34,
34,
1,
24,
-51,
-88,
-120,
15,
42,
-101,
-90,
-104,
9,
75,
77,
-106,
-3,
98,
20,
12,
-2,
119,
29,
81,
44,
37,
-33,
-112,
-95,
9,
56,
-110,
-13,
-21,
37,
80,
116,
-51,
-30,
92,
22,
25,
-37,
-26,
-74
] |
RAYMOND R. ABRAMSON, Judge
11 This is the second time this case is before us on appeal. In the first appeal, our court dismissed for lack of a final order. Panhandle Oil & Gas, Inc. v. BHP Billiton Petroleum (Fayetteville) LLC, 2016 Ark. App. 376, 499 S.W.3d 667 (Panhandle I). We now have a final order; appellant Panhandle Oil and Gas, Inc. (Panhandle), has again appealed three dismissals of their claims against appellee BHP Billiton Petroleum Fayetteville (BHP) from the Faulkner County Circuit Court. On appeal, Panhandle argues that-the circuit court abused its discretion in granting two motions to dismiss pursuant to Rule 12(b)(6) of the Arkansas Rules of Civil Procedure and that the circuit court erred by dismissing its claims against BHP in the third amended complaint pursuant to Rule 41(b) of the Arkansas Rules of Civil Procedure. For the following reasons, we affirm in part, and reverse and remand in part.
lal. Procedural History
As our court noted in Panhandle I, the procedural history of this case is rather complex. We provided a recitation of the facta in that opinion and do so again here. In May 2005, Panhandle and separate defendant Chesapeake Exploration, LLC (Chesapeake), entered into a written agreement (the May 2005 Agreement), which stated that Chesapeake would provide wellbore proposals to Panhandle for oil and gas wells in certain identified sections of land in Arkansas where Panhandle owns forty or more net mineral acres and Chesapeake desires to drill a well. Upon receiving a wellbore proposal, Panhandle would then decide if it wanted to participate in the well. Panhandle argues that the obligations of Chesapeake (and its assigns) included two things: (1) submit a well proposal in the event a well was to be drilled; and (2) in the event Panhandle elected to participate in a well, execute a wellbore assignment of any “Retained Interest,” which was a defined term. The contract was designed to allow Panhandle to participate in the development of its minerals even though Panhandle itself would not drill the well.
Panhandle claims that, beginning in 2009, it began experiencing significant delays in receiving well proposals and other pertinent information. In an effort to remedy this, Panhandle and Chesapeake entered into another agreement, which is referred to as “the August 2010 Agreement,” in order to establish Panhandle as a record working-interest owner in certain listed sections. On January 1, 2011, Chesapeake assigned its remaining interest in the Panhandle Leases to BHP. On January 14, 2013, Panhandle filed suit against | ^Chesapeake based on Chesapeake’s alleged breaches of the May 2005 Agreement and also named BHP as a defendant. In its first amended complaint, filed on June 21, 2013, Panhandle asserted causes of action against BHP for breach of the May 2005 Agreement, specific performance of the same, an equitable accounting, and unjust enrichment. On July 11, 2013, BHP moved to dismiss the causes of action against it in the first amended complaint under Rule 12(b)(6) of the Arkansas Rules of Civil Procedure for failure to adequately state a claim. BHP argued that the first amended complaint sought to extend the May 2005 Agreement beyond its written terms, failed to allege sufficient facts— including an adequate basis to support successor liability—and failed to allege claims for an equitable accounting or unjust enrichment. After Panhandle responded on July 25, 2013, the circuit court heard oral arguments on the issues raised in the motion and response. On October 31, 2013, the circuit court dismissed BHP from the case by stating, without further explanation, that the Rule 12(b)(6) motion was granted.
On November 21, 2013, Panhandle filed its second amended complaint, pursuant to Rule 15(a) of the Arkansas Rules of Civil Procedure, asserting claims against both BHP and defendant Chesapeake. The claims in the second amended complaint were nearly identical to the claims made in the first amended complaint. The only changes were to include various argumentative and conclusory allegations in response to BHP’s previous motion to dismiss and to state new claims for reformation in which Panhandle specifically requested that the | ¿terms of the May 2005 Agreement and the August 2010 Agreement be expanded in order to impose new contractual obligations on BHP. On December 23, 2013, BHP filed a motion to dismiss Panhandle’s second amended complaint pursuant to Rule 12(b)(6) of the Arkansas Rules of Civil Procedure for the same reasons previously argued to the cireuit court. Panhandle filed a written response to the motion, and the circuit court held a hearing on February 24, 2014. On March 17, 2014, the circuit court, without further explanation, granted BHP’s motion to dismiss the second amended complaint, finding it had failed to state facts upon which relief could be granted as to BHP.
On April 9, 2014, Panhandle filed its third amended complaint. On May 16, 2014, BHP moved to dismiss or strike this third iteration of Panhandle’s claims against it because Rule 41(b) of the Arkansas Rules of Civil Procedure directs that the circuit court’s second order of dismissal should be deemed as an adjudication on the merits, and consequently is a dismissal with prejudice. Therefore, BHP argued, the circuit court was barred from taking _Jjup Panhandle’s reasserted allegations. On June 5, 2014, Panhandle filed a response to BHP’s motion; within its response was a request that the circuit court reconsider and vacate the March 17, 2014 dismissal.
On December 29, 2014, after the issue was briefed by both parties, the circuit court, in a letter opinion, granted BHP’s motion and denied the request for reconsideration of the dismissal of the second amended complaint that was included in Panhandle’s response to the motion to dismiss the third amended complaint. After a settlement, Chesapeake was dismissed in August 2015, and the circuit court entered an order and judgment on September 26, 2016, reflecting the contents of the December 29, 2014 letter opinion. This timely appeal is now properly before our court.
In Panhandle’s notice of appeal filed September 29, 2016, Panhandle appeals the two consecutive Rule 12(b)(6) dismissals by former Judge Maggio of claims asserted against BHP, and the Rule 41(b) dismissal by Judge Murphy, all of which became ripe for postjudgment appeal after the combination of Panhandle’s dismissal of Chesapeake and the order and judgment entered on September 26,2016.
Panhandle maintains that in order to properly dismiss its claims against BHP under Rule 12(b)(6), Judge Maggio had to find that Panhandle failed to (1) state general facts upon which relief could have been granted against BHP or (2) include specific facts pertaining to one or more of the elements' of one of its claims after accepting all facts contained in the complaint as true and in the light most favorable to the non-moving party. Bethel Baptist Church v. Church Mut. Ins. Co., 54 Ark. App. 262, 265, 924 S.W.2d 494, 496 (1996). Both of the orders dismissing BHP pursuant to Rule 12(b)(6) provide that Panhandle “fail[ed] to Instate facts upon which relief can be granted against BHP” but provide no further explanation. The circuit court was not specific in either order as to why or how the pleading was inadequate, though we note this is not required when dismissing a case pursuant to Rule 12(b)(6).
II. Standard of Review
This court has often stated the standards to be applied in reviewing a dismissal order under Rule 12(b)(6), and we look to the four corners of the complaint. See Peck v. Peck, 2016 Ark. App. 423, 502 S.W.3d 553. In reviewing a circuit court’s decision on a motion to dismiss under Rule 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Neal v. Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994); Gordon v. Planters & Merchants Bancshares, Inc., 310 Ark. 11, 832 S.W.2d 492 (1992); Battle v. Harris, 298 Ark. 241, 766 S.W.2d 431 (1989). In viewing the facts in the light most favorable to the plaintiff, the facts should be liberally construed in the plaintiffs favor. See Biedenharn v. Thicksten, 361 Ark. 438, 206 S.W.3d 837 (2005).
In deciding dismissal motions, the circuit court must look only to the allegations in the complaint. Neal v. Wilson, supra; Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248 (1993); Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992). In order to state a cause of action, the complaint must allege facts and not mere conclusions. Ark. R. Civ. P. 8; see also Hollingsworth v. First Nat’l Bank & Trust Co., 311 Ark. 637, 846 S.W.2d 176 (1993); Rabalaias v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985). When a complaint is dismissed without prejudice, the plaintiff has the option of pleading further or appealing. Hollingsworth, supra.
Arkansas is a fact-pleading state, and this court looks to the underlying facts ^supporting an alleged cause of action to determine whether the matter has been sufficiently pled. Brown v. Tucker, 330 Ark. 435, 954 S.W.2d 262 (1997). As our supreme court noted in Ballard Group, Inc. v. BP Lubricants USA, Inc., 2014 Ark. 276 at 5, 436 S.W.3d 445, 449,
[generally speaking, the granting of both a Rule 12(b)(6) dismissal and a Rule 41(b) dismissal are reviewed under the abuse-of-discretion standard. J.B. Hunt, LLC v. Thornton, 2014 Ark. 62, 432 S.W.3d 8 (Rule 12(b)(6)); Jonesboro Healthcare Ctr., LLC v. Eaton-Moery Envtl. Servs., Inc., 2011 Ark. 501, 385 S.W.3d 797 (Rule 41(b)). However, when this court must construe a court rule, our appellate review is de novo. Jonesboro Healthcare Ctr., 2011 Ark. 501, 385 S.W.3d 797. Thus, in this case, we must determine whether the circuit court abused its discretion in dismissing the complaint; if it did not, then we determine whether the circuit court erred in applying the two-dismissal rule as expressed in Rule 41(b).
The same reasoning is applicable in the instant case, and so we turn to the causes of action at issue here, and we address them individually as to whether they were properly dismissed under Rule 12(b)(6) and ultimately Rule 41(b).
A. Specific Performance/Breach of Contract
Panhandle alleged in both its first amended complaint and second amended complaint that it sought specific performance requiring the defendants to satisfy their contractual obligations under the May 2005 Agreement. In a contract-based case, pleadings “are to be liberally construed and are sufficient if they advise a defendant of his obligations and allege a breach of them.” Rabalaias, 284 Ark. at 528, 683 S.W.2d at 921. This applies whether or not the contract-based theory is specific performance or breach of contract, even though the remedies differ. As explained in Mitchell v. House, 71 Ark. App. 19, 21, 26 S.W.3d 586, 587 (2000), “[sjpecific performance is an equitable remedy which compels performance of a contract on the precise terms agreed upon by the parties.” Whether specific performance should be awarded in a particular case is generally a question of fact. Id.
|sThe pleading requirements for breach-of-contract claims differ slightly, but the threshold for pleading such a claim is not high. To state a claim for breach of contract, “the complaint need only assert the existence of a valid and enforceable contract between the plaintiff and defendant, the obligation of defendant thereunder, a violation of the defendant, and damages resulting to the plaintiff from the breach.” Rabalaias, 284 Ark. at 528-29, 683 S.W.2d at 921.
Here, we hold that both the first amended complaint and the second amended complaint included sufficient factual allegations to state claims for specific performance as well as breach of contract. In both pleadings, Panhandle identified the contract, BHP’s obligations thereunder, how BHP breached, and finally how Panhandle was damaged.
We agree with Panhandle that the factual allegations in both the first amended complaint and the second amended complaint gave BHP fair notice of the claims and the grounds upon which those claims are based. See Goldsby v. Fairley, 309 Ark. 380, 384, 831 S.W.2d 142, 144 (1992). Accordingly, we conclude that the circuit court abused its discretion in twice dismissing the specific-performance and breach-of-eontract claims pursuant to Rule 12(b)(6).
We also note that both parties devote significant attention to the defense of successor liability in their respective briefs. Specifically, BHP argues that Panhandle failed to allege facts that BHP assumed the liabilities of Chesapeake, while Panhandle maintains that the circuit court’s “apparent acceptance of BHP’s successor liability argument” constituted an abuse of discretion. In both of its orders granting BHP’s two separate motions to dismiss, the circuit court did not expressly address successor liability. However, because we treat the Rfacts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint, we conclude that Panhandle alleged sufficient facts in its complaints to establish that BHP assumed Chesapeake’s liabilities—at least sufficient enough to survive a 12(b)(6) motion. Accordingly, we hold that Panhandle pled sufficient facts upon which relief can be granted, and BHP’s factual arguments regarding successor liability are not germane for a motion to dismiss pursuant to Rule 12(b)(6),
B. Reformation
Panhandle’s claims of reformation of the May 2005 Agreement and reformation of the August 2010 Agreement are pled only in its second amended complaint. Reformation is an equitable remedy that is available when the parties have reached a complete agreement but, through mutual mistake, the terms of their agreement are not correctly reflected in the written instrument purporting to evidence the agreement. Lambert v. Quinn, 82 Ark. App. 184, 798 S.W.2d 448 (1990). A mutual mistake is one that is reciprocal and common to both parties, each alike laboring under the same misconception in respect to the terms of the written instrument. Yeargan v. Bank of Montgomery Cty., 268 Ark. 752, 595 S.W.2d 704 (Ark. App. 1980). A mutual mistake must be shown by clear and decisive evidence that, at the time the agreement was reduced to writing, both parties intended their written agreement to say one thing and, by mistake, it expressed something different. See Lambert, supra. Whether a mutual mistake warranting reformation occurred is a question of fact. Id.
Panhandle’s second amended complaint set forth two reformation claims: (1) an alternative request for reformation of the May 2005 Agreement based upon an unforeseen regulatory change in circumstances, which Panhandle intended to request if the circuit court [ 10found that the May 2005 Agreement limited Panhandle’s participation rights to “Chesapeake-drilled” wells; and (2) a request for reformation of the August 2010 Agreement based upon a mutual mistake of the parties.
We first look at the facts pled in Panhandle’s second amended complaint regarding the August 2010 Agreement. Panhandle pled a mutual mistake with respect to this agreement which BHP does not dispute. The parties to the August 2010 Agreement intended that the execution of that agreement would establish Panhandle as a record working-interest owner in all relevant sections, but certain sections were left out by mistake. Panhandle identified the sections that were mistakenly omitted in paragraph 42 of its second amended complaint. Panhandle asserted that the wells at issue were all drilled in, or associated with, the identified sections, and therefore the August 2010 Agreement did not fix all the problems it was designed to fix. We hold that Panhandle was not required to plead anything more, and as such, we reverse the circuit court’s decision to dismiss the reformation claim as to the August 2010 Agreement.
As to Panhandle’s alternative request for reformation of the May 2005 Agreement, Panhandle argues that its factual allegations established an unforeseen change in circumstances that authorized reformation. Treating the facts alleged in the complaint as true and viewing them in the light most favorable to the plaintiff as we are required to do, we will construe the pleadings liberally and resolve all reasonable inferences in favor of the complaint. See J.B. Hunt, LLC v. Thornton, 2014 Ark. 62, 432 S.W.3d 8. Our court also looks to the underlying facts supporting an alleged cause of action to determine whether the matter has been sufficiently pled. Perry v. Baptist Health, 358 Ark. 238, 189 S.W.3d 54 (2004). While Panhandle does not use the phrase “mutual mistake” with regard to its reformation claim as to the May 2005 Agreement, we conclude its.facts as pled alleged a mutual mistake of the parties.
The complaint sets forth facts that establish that the parties made a mutual mistake in the May 2005 Agreement; when the agreement was executed, the parties believed Chesapeake would be the only party drilling wells on the tracts covered by that agreement. Whether either party to the May 2005 Agreement contemplated that leasing and drilling activity would become so popular that other operators would be awarded drilling rights in, or associated with, the leased sections is a question of fact that is inappropriate for a Rule 12(b)(6) dismissal. Accordingly, we reverse the circuit court’s dismissal of Panhandle’s reformation claims that were alleged in its second amended complaint.
C. Equitable Aecounting/Appointment of a Special Master
In both its first and second amended complaints, Panhandle attempts to bring a separate claim for an equitable accounting and argues that it is entitled to have a special master appointed to conduct a full and complete accounting of defendants with respect to all revenues, profits, and other activities for the wells. However, Arkansas law is clear that an equitable accounting is a remedy and not a proper cause of action. In re Estates of McKnight v. Bank of Am., N.A., 372 Ark. 376, 380, 277 S.W.3d 173, 177 (2008). Therefore, we hold that the circuit court did not abuse its discretion when it twice dismissed Panhandle’s equitable-accounting claims under Rule 12(b)(6).
|12P. Unjust Enrichment
In both its first amended complaint and second amended complaint, Panhandle pled unjust enrichment, premised on the assumption that the circuit court might find the parties’ written agreements inapplicable or unenforceable. Arkansas permits a complaint to state alternative legal theories even if those theories are inconsistent with one another. Hoyle v. Faucher, 334 Ark. 529, 975 S.W.2d 843, 845 (1998); Albright v. S. Farm Bureau Life Ins. Co., 327 Ark. 715, 940 S.W.3d 488, 490 (1997). Pleading alternative legal theories does not negate either theory’s viability. Id. Our appellate courts have allowed litigants to proceed under an alternative theory of unjust enrichment when there is a dispute as to a written agreement’s applicability or enforceability. See, e.g., Campbell v. Asbury Auto., Inc., 2011 Ark. 157, 381 S.W.3d 21, 36; QHG of Springdale, Inc. v. Archer, 2009 Ark. App. 692, 373 S.W.3d 318.
Here, the circuit court presumably accepted BHP’s argument that the May 2005 Agreement was unenforceable as against BHP or that there had been no breach of the May 2005 Agreement. As Panhandle argues, this should have opened the door for a viable unjust-enrichment claim because the May 2005 Agreement either did not fully address the subject matter of the lawsuit, or BHP’s disputed performance would eventually be compelled under protest. See QHG of Springdale, Inc., supra.
In both the first amended complaint and the second amended complaint, Panhandle identified which wells were at issue, based on its then existing knowledge, by well name, well number, and spud/drill date. In its complaints, Panhandle also identified what it believed it was entitled to from either Chesapeake or BHP—or both. We believe the facts | i,<¡pled by Panhandle are sufficient to state a claim for unjust enrichment; accordingly, we hold that the circuit court abused its discretion in dismissing Panhandle’s alternative claim for unjust enrichment on two occasions.
III. Rule 41(b)
We turn now to the circuit court’s dismissal pursuant to Rule 41(b), or what is commonly referred to as “the two-dismissal rule.” Rule 41 provides in pertinent part,
(b) Involuntary Dismissal. In any case in which there has been a failure of the plaintiff to comply with these rules or any order of court or in which there has been no action shown on the record for the past 12 months, the court shall cause notice to be mailed to the attorneys of record, and to any party not represented by an attorney, that the case will be dismissed for want of prosecution unless on a stated day application is made, upon a showing of good cause, to continue the case on the court’s docket. A dismissal under this subdivision is without prejudice to a future action by the plaintiff unless the action has been previously dismissed, whether voluntarily or involuntarily, in which event such dismissal operates as an adjudication on the merits.
Ark. R. Civ. P. 41(b) (2016).
This rule essentially mandates that a second dismissal of a lawsuit operates as an adjudication on the merits and must be with prejudice if the previous dismissal was a result of the plaintiffs failure to comply with the rules. The purpose of the two-dismissal rule is “to prevent unreasonable use of the plaintiffs unilateral rights to dismiss an action prior to the filing of the defendant’s responsive pleading” and “to prevent delays and harassment by plaintiffs seeming numerous dismissals without prejudice.” Richard v. Union Pac. R.R. Co., 2012 Ark. 129, at 7-8, 388 S.W.3d 422, 426. Our supreme court has concluded that the second Rule 12(b)(6) dismissal of claims is a dismissal with prejudice. See Ballard Group, supra.
|uAs noted above, our standard of review here is twofold. Normally, a Rule 41 dismissal is reviewed under an abuse-of-discretion standard. See Jonesboro Healthcare Ctr., LLC v. Eaton-Moery Envtl. Servs., 2011 Ark. 601, 385 S.W.3d 797. When this court must construe the meaning of a court rule, however, our review is de novo. Richard, supra. Because we have concluded that the claim for equitable accounting/appointment of a special master was twice properly dismissed pursuant to Rule 12(b)(6), we hold that the Rule 41(b) dismissal of this claim with prejudice was appropriate. That part of the Rule 41(b) dismissal is therefore affirmed. However, because we conclude that the circuit court abused its discretion in dismissing the claims of specific performance, breach of contract, reformation of the May 2005 Agreement, reformation of the August 2010 Agreement, and unjust enrichment pursuant to Rule 12(b)(6), we hold that the Rule 41(b) dismissal is also improper as to those claims, and we therefore reverse and remand.
Affirmed in part; reversed and remanded in part.
Klappenbach and Vaught, JJ., agree.
. Due to a mutual mistake of the parties to the August 2010 Agreement, eight leased sections in which Panhandle owned forty or more net mineral acres were inadvertently omitted from the agreement.
. BHP was not a party to the May 2005 Agreement but was named as a defendant in this lawsuit. In its amended complaint, Panhandle notes that BHP purchased Chesapeake’s interest in the Panhandle Leases (after intervening conveyances) on January 1, 2011, By doing so, Panhandle argues, BHP assumed all of Chesapeake's rights and obligations under both the May 2005 Agreement and the August 2010 Agreement.
. Panhandle has never alleged that BHP breached the August 2010 Agreement.
. Judge Mike Maggio was the original circuit judge on this case. One week after the March 17, 2014 dismissal order, the Arkansas Supreme Court entered an order suspending Judge Maggio from the bench. On July 14, 2014, the Chief Justice of the Arkansas Supreme Court assigned Judge Rob Wyatt of the 11th Judicial Circuit West to hear the case, and the attorneys were notified by the Faulkner County Circuit Clerk of the appointment, In an order filed on August 19, 2014, Judge Wyatt set a motion hearing for Monday, September 22, 2014. Judge Mike Murphy, who had been elected to the 1st Division Circuit Court of the 20th Judicial Circuit in May 2014, was appointed by Governor Mike Beebe in September 2014 to fill the vacancy in the 2nd Division Circuit Court to finish out that term. Therefore, on September 22, 2014, the Chief Justice terminated Judge Wyatt's assignment of the case. Judge Murphy remained the circuit judge assigned to this case until he was sworn in as a judge on our court on January 1, 2017, after being elected to the Court of Appeals, District 2, Position 2, in May 2016.
. - We note that we are not precluding Panhandle from seeking the remedy of an equitable accounting, but only recognizing that it cannot be asserted in a complaint as a cause of action. | [
112,
108,
-14,
13,
104,
-32,
48,
-70,
89,
-85,
117,
83,
45,
-14,
-107,
121,
-29,
91,
-31,
-23,
-74,
-93,
73,
80,
-29,
-13,
49,
103,
-8,
-17,
-92,
-42,
92,
96,
-54,
-43,
-60,
66,
-21,
88,
-90,
1,
-7,
96,
113,
-45,
56,
99,
18,
79,
81,
-124,
-13,
45,
24,
-29,
-116,
46,
-35,
44,
82,
122,
-54,
15,
127,
20,
-127,
-44,
-104,
7,
-40,
126,
-112,
48,
40,
-72,
114,
38,
-122,
116,
11,
25,
-84,
36,
99,
35,
-108,
-81,
-36,
-88,
54,
-2,
-115,
-90,
-126,
41,
10,
3,
-73,
-73,
126,
6,
7,
126,
-18,
-123,
-33,
-4,
-105,
-122,
-110,
-95,
15,
-19,
-100,
51,
-21,
17,
52,
118,
-51,
-22,
84,
69,
113,
-33,
-114,
-70
] |
N. MARK KLAPPENBACH, Judge
11 After his vehicle was searched following a traffic stop, appellant Marcus Christopher was charged with possession of cocaine with the purpose to deliver, possession of marijuana with the purpose to deliver, and possession of drug paraphernalia. The Nevada County Circuit Court denied appellant’s motion to suppress the evidence seized during the search, and appellant entered conditional guilty pleas to the charges. On appeal, he argues that the trial court erred in denying his motion to suppress because the warrantless search of his vehicle was illegal. We disagree and affirm the convictions.
Deputy Preston Glenn of the Nevada County Sheriffs Department and Lieutenant Wesley Turner of the Prescott Police Department provided testimony at the suppression hearing. Turner testified that on the afternoon of March 6, 2015, Glenn called to advise him |athat he had received reports that someone driving a black Kia Spectra in the area was acting suspicious. The vehicle was reported to be circling blocks, which Turner said was something drug dealers sometimes do. Glenn initiated a traffic stop on the vehicle after observing that one of its brake lights was not work ing. After driving a couple hundred yards, appellant stopped in a parking lot. When Glenn approached the vehicle and asked appellant for his driver’s license, he smelled a very strong odor of marijuana emitting from the vehicle. Glenn said that the odor gave him probable cause to search the vehicle, so he asked appellant to step out. Turner arrived on the scene to assist Glenn, and other officers were called for backup because a crowd of people, including relatives of appellant’s, had gathered in the parking lot. Glenn testified that he spoke with appellant at the back of the car and handcuffed him to detain him.
Turner testified that when he arrived at the stop, he looked through the back-passenger window of appellant’s vehicle and saw a Crown Royal bag that appeared to contain a bottle of whiskey. Turner asked appellant if the seal had been broken on. the bottle; appellant said it had not and then stated that there was no alcohol in his car. In order to see what was in the bottle, Turner opened the car door and detected a strong odor of marijuana. He discovered that the Crown Royal bag contained marijuana packaged in plastic wrap. When he opened the door, Turner had not been informed by Glenn about the smell of marijuana or instructed to conduct a search. Turner showed Glenn what he had found, appellant was arrested, and Glenn then searched the vehicle and seized more drugs and drug ^paraphernalia. Turner testified that appellant was handcuffed after the marijuana had been found. The trial court denied the motion to suppress upon finding the existence of probable cause and exigent circumstances to support the warrantless search.
In reviewing a trial court’s denial of a motion to suppress, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical fact for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court and proper deference to the trial court’s findings. Johnson v. State, 2014 Ark. App. 567, 444 S.W.3d 880. Arkansas appellate courts defer to the superior position of the trial court to evaluate the credibility of witnesses at a suppression hearing. Id. We will reverse the denial of a motion to suppress only if the ruling is clearly against the preponderance of the evidence. Id.
Appellant argues that the officers conducted a pretextual stop in order to search his vehicle for drugs. He suggests that Deputy Glenn attempted to conceal this fact because he did not testify about the prior reports of a suspicious vehicle. A pretextual traffic stop, however, is not unconstitutional. State v. Mancia-Sandoval, 2010 Ark. 134, 361 S.W.3d 835. As long as the police officer had the proper probable cause to make the traffic stop, the officer’s ulterior motives will not render the stop unconstitutional. See id. Here, Glenn had probable cause to believe that appellant had violated the traffic law requiring functioning brake lights. See Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004); Ark. Code Ann. § 27-36-216 (Repl. 2014). Therefore, there is nothing inherently unconstitutional or invalid |4about the initial traffic stop.
Appellant next argues that Turner had no probable cause to search the vehicle based on his observation of the Crown Royal bag and that Glenn’s subsequent search was tainted by Turner’s illegal search. Although Turner had not yet detected the odor of marijuana when he initiated the search, probable cause is assessed based on the collective knowledge of the police, not solely on the knowledge of the officer making the stop or arrest. Jones v. State, 2011 Ark. App. 683, 2011 WL 5429498. At the time Turner initiated the search, Glenn had already decided to search the vehicle based on the odor of marijuana he identified when he asked appellant for his driver’s license. We have held that the odor of marijuana coming from a vehicle is sufficient to arouse suspicion and provide probable cause for the search of that vehicle. Lopez v. State, 2009 Ark. App. 750, 2009 WL 3762915. Accordingly, we agree with the trial court that probable cause existed for this search.
Appellant also argues that there were no exigent circumstances to warrant the search because there was no threat of destruction or removal of evidence. We disagree. Arkansas Rule of Criminal Procedure 14.1(a)(i) (2016) allows for a war-rantless search of a readily movable vehicle that an officer has reasonable cause to believe contains evidence subject to seizure where the vehicle is in an area open to the public. Because a vehicle is readily movable by any person, not just the suspect, exigent circumstances allow the vehicle to be searched at the scene. McDaniel v. State, 337 Ark. 431, 990 S.W.2d 515 (1999). Appellant’s vehicle was in a parking lot open to the public and was readily movable, especially with his ^relatives among the crowd of people that had gathered; no further exigency was required to search it. See Vega v. State, 56 Ark. App. 145, 939 S.W.2d 322 (1997).
While appellant also points out the discrepancy in the testimony concerning the point at which he was handcuffed, he cites no authority to support his contention that handcuffing him prior to the search “would have been illegal” and provides no argument that this would have rendered the search unconstitutional. We hold that the denial of appellant’s motion to suppress was not clearly against the preponderance of the evidence, and we affirm appellant’s convictions.
Affirmed.
Whiteaker and Brown, JJ., agree.
. The additional charges of driving with a suspended license and defective brake light were nol-prossed. | [
113,
-20,
100,
-100,
58,
96,
-117,
56,
72,
-89,
-12,
19,
-83,
-46,
20,
51,
-5,
31,
117,
-55,
-33,
-74,
7,
51,
-14,
-9,
88,
-63,
49,
75,
-51,
-44,
29,
48,
-85,
69,
70,
73,
-74,
88,
-114,
1,
-111,
114,
50,
80,
-92,
59,
22,
15,
97,
22,
-29,
14,
25,
-21,
109,
108,
11,
-67,
-56,
-8,
-67,
31,
-49,
22,
-125,
36,
-117,
-121,
-40,
74,
-100,
17,
17,
-23,
115,
-78,
-112,
116,
7,
-101,
-116,
36,
98,
33,
29,
-84,
-20,
-116,
62,
-67,
-105,
39,
-40,
73,
105,
5,
-106,
-99,
108,
18,
14,
-18,
91,
84,
93,
108,
2,
-50,
-68,
-127,
13,
48,
-98,
120,
-49,
97,
48,
32,
-51,
-30,
92,
116,
113,
-71,
75,
-105
] |
KENNETH S. HIXSON, Judge
| t Appellant Monty Payne was convicted by a jury of possession of methamphetamine and possession of drug paraphernalia. On appeal, Mr, Payne challenges the sufficiency of the evidence to support his convictions. Alternatively, Mr. Payne contends that the trial court erred in denying his posttrial motion for a new trial. We affirm.
When sufficiency is challenged on appeal from a criminal conviction, we consider only that proof that supports the verdict. Perez v. State, 2016 Ark. App. 291, 494 S.W.3d 431. We view the evidence, and all reasonable inferences deducible therefrom in the light most favorable to the State. Id. We will affirm if the finding of guilt is supported by substantial evidence. Id. Evidence is substantial if it is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resorting to speculation or conjecture. Id. The weight of the evidence and credibility of the witnesses are matters for the factfinder. Simpkins v. State, 2010 Ark. App. 723, 2010 WL 4345687.
[ 2On March 15, 2015, Monty Payne was driving his truck on Highway 7 in Boone County. Donald Miller was riding as a passenger in the front seat of appellant’s truck.
Officer Gene Atwell of the Boone County Sheriffs Department was patrolling that day. Officer Atwell stopped Mr. Payne’s truck after he saw the truck swerve left of the center line. During the stop, Officer Atwell found a glass pipe and a baggie containing a white powdery substance on the ground on the passenger’s side of the truck. Officer Atwell, testified that he field tested the powdery substance and that it was positive for methamphetamine. The baggie was later sent to the crime lab, where a chemical test showed that it contained 0.3448 grams of methamphetamine.
Officer Atwell was wearing a body camera and the traffic stop was recorded. On the recording, Mr. Payne told Officer At-well that he did not have any drugs in the truck, and he denied throwing anything out the window. Mr. Miller also denied throwing anything out the window, and he told Officer Atwell that as they were being pulled over Mr. Payne had thrown a pipe out the window.
With Mr. Payne’s consent, Officer At-well ran his drug dog through the truck and the dog alerted near the front driver’s-side door. Officer Atwell conducted an inventory search but did not find any more drugs. However, at the time the truck was being loaded on to the wrecker to be towed, Mr. Miller advised Officer Atwell that Mr. Payne had popped the driver’s-side door panel off, shoved something into the door paneling, and then popped it back on.
Officer Jason Brisco obtained a written waiver from Mr. Payne to search the truck in the impound yard on the following day. During his search of the vehicle, Officer Brisco Isfound two baggies containing white residue and two syringes located in the driveris door between the door panel and the metal outer frame. According to Officer Brisco, one of the syringes appeared to have blood on it and the other appeared to have been just used. Officer Brisco testified that based on his experience the syringes were items of drug paraphernalia. Officer Brisco indicated that the residue in the baggies appeared to be methamphetamine and that it field-tested positive for methamphetamine.
Donald Miller testified as a defense witness. Mr. Miller, stated that, as they were being stopped by the police, Mr. Payne was throwing items out the passenger’s window. Mr. Miller stated that he did not throw anything out the window. Mr. Miller also indicated that Mr. Payne had hidden some items in the driver’s-side door panel.
On cross-examination, Mr. Miller testified that he had smoked methamphetamine with Mr. Payne on several occasions using the pipe that was seized by the police. Mr. Miller stated that the pipe was not his, and that he believed that it belonged to Mr. Payne. Mr. Miller testified that he had not been charged in relation to this incident and that he was not promised anything in exchange for his testimony.
In this appeal, Mr. Payne challenges the sufficiency of the evidence to support his convictions for possession of methamphetamine and possession of drug paraphernalia. Pursuant to Arkansas Code Annotated section 5-64-419(a) and (b)(1)(A) (Repl. 2016), it is a Class D felony to possess less than two grams of a controlled substance that is methamphetamine. Pursuant to Arkansas Code Annotated section 5-64-443(a)(2), it is a Class D felony to possess drug paraphernalia with the purpose to use the drug paraphernalia to inject, ingest, inhale, or otherwise introduce into the human body methamphetamine. 14Mr. Payne argues that there was insufficient evidence that he committed either of these offenses because there was a lack of proof that he was in possession of methamphetamine or that any of the items seized by the police were drug paraphernalia. Mr. Payne asserts that the only item sent to the crime lab was the baggie of white powder that had been thrown from the truck, and that although the powder was positive for methamphetamine, there was an issue as to its ownership and it was found on the passenger’s side as opposed to Mr. Payne’s side of the vehicle. Mr. Payne further contends that because none of the other seized items were tested at the crime lab to establish their identity, or whether the pipe had actually been used to ingest controlled substances, none of those items could support either conviction.
It is not necessary for the State to prove literal physical possession of contraband in order to prove possession. Polk v. State, 348 Ark. 446, 73 S.W.3d 609 (2002). Rather, possession may be proved by constructive possession, which is the control or right to control the contraband. Id. On this record, we hold that there was substantial evidence that Mr. Payne was in possession of both methamphetamine and drug paraphernalia.
The evidence viewed in the light most favorable to the State established that, upon being pursued by the police for a minor traffic infraction, Mr. Payne began frantically tossing and hiding items in an attempt to conceal them from the police. According to Mr. Miller, Mr. Payne threw some things out the passenger’s side window, which were recovered by the police during the stop. These items included a baggie containing a small amount of methamphetamine as well as a pipe. Mr. Miller testified that the pipe was not his, that he believed it belonged to Mr. Payne, and .that they had both used the pipe to smoke | .¡methamphetamine on multiple occasions. Pursuant to Arkansas Code Annotated section 5-64-101(12)(B)(xii)(a), “drug paraphernalia” includes an object used in inhaling a controlled substance, such as a pipe. Arkansas Code Annotated section 5-64-101(12)(C)(iv) provides that, in determining whether an item is “drug paraphernalia,” the proximity of the object to a controlled substance is a relevant factor to consider. In this case the pipe was located with the methamphetamine found outside Mr. Payne’s truck, and there was testimony that Mr. Payne was in control of these items and threw them out the window. Therefore, we conclude that there was substantial evidence beyond speculation or conjecture that Mr. Payne was in possession of methamphetamine and drug paraphernalia.
Mr. Payne also argues on appeal that the trial court erred in denying his motion for a new trial. After the jury returned its guilty verdicts, but before the sentencing order was formally entered, Mr. Payne filed a motion for a new trial pursuant to Arkansas Rule of Criminal Procedure 33.3 and Arkansas Code Annotated section 16-89-130. Mr. Payne’s motion was based,,on his claim that Donald Miller had recanted portions of his testimony at trial, and that this recantation of testimony constituted newly discovered evidence that had impacted the outcome of the trial. Attached to appellant’s motion was a recording of a posttrial conversation between appellant’s counsel and Mr. Miller, which was recorded at the jail, wherein Mr. Miller stated that had he lied at trial about the pipe and methamphetamine found outside the truck belonging to Mr. Payne, and that in fact these items belonged to him. In that same conversation, Mr. Miller denied ownership of the- contraband Mr. Payne had hidden in the door-panel.
RThe trial court held a hearing on appellant’s motion for new trial. At the hearing, Mr. Payne testified that, after he was convicted, he was sharing a jail cell with Mr. Miller and that Mr. Miller approached him, stated that he had lied at trial, and asked to speak with Mr. Payne’s attorney. Mr. Miller also testified at the hearing on appellant’s motion for new trial, and he admitted having a recorded conversation with appellant’s attorney while he was in jail, but he denied that he had asked to speak with appellant’s counsel. Instead, Mr. Miller stated that he was asked to speak with appellant’s counsel. At the hearing, Mr. Miller invoked his Fifth Amendment right against self-incrimination and refused to recount any details of his conversation with appellant’s counsel. At the conclusion of the hearing, the trial court denied Mr. Payne’s motion for new trial, finding that the circumstances surrounding the newly discovered evidence were totally lacking in credibility.
Mr. Payne now argues that this ruling by the trial court was erroneous. He contends that he should have been afforded a new trial because it was likely that the recanted testimony was pivotal to the jury’s deliberations and its subsequent guilty verdicts.
In Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996), our supreme court stated that newly discovered evidence is the least favored ground for a new trial motion. When a new trial is denied on this ground, we will reverse only for an abuse of discretion. Misskelley, supra. To prevail, the appellant must show that the new evidence would have impacted the outcome of his case, and that he used due diligence in trying to discover the evidence. Id. Moreover, a trial court’s factual determinations on a motion for new trial will not be reversed unless clearly erroneous, and the issue of witness credibility is for the trial court to weigh and assess. Smart v. State, 352 Ark. 522, 104 S.W.3d 386 (2003).
17Under the circumstances presented in this case, we hold that there was no abuse of discretion in the trial court’s denial of Mr, Payne’s motion for a new trial. Mr. Miller testified at Mr. Payne’s trial only because he was called as a defense witness. Mr. Miller’s testimony at trial was consistent with what he had told the police at the scene of the investigation. Both at trial and in his posttrial recorded conversation with appellant’s counsel, Mr. Miller consistently stated that he had smoked methamphetamine with Mr. Payne many times using the pipe that was found outside of Mr. Payne’s truck. He also consistently denied ownership of the contraband found in the door paneling. At the hearing on appellant’s new-trial motion, Mr. Miller testified that he had spoken with appellant’s counsel at the jail only because he was asked to speak with him, and at the hearing he invoked his Fifth Amendment' right against self-inerimination, refusing to discuss the details of that conversation. Even if it could be said that there was a recantation on the part of a witness, it is the duty of the trial court to . deny a new trial where it is not satisfied that the recanting testimony is true, especially where it involves a confession of perjury. Cooper v. State, 246 Ark. 368, 438 S.W.2d 681 (1969). Here, the trial court did not believe that Mr. Miller’s recantation was truthful. The question of whether a new trial is granted on this ground depends on all the circumstances of the case including the testimony of -the witnesses submitted on the motion for new trial, and the answer lies largely within the discretion of the trial court. Id We conclude that the trial court in this case committed no |serror in finding that the recantation of testimony lacked credibility and that Mr. Payne failed to present sufficient grounds to support his request for a new trial.
Affirmed.
Abramson and Murphy, JJ., agree. | [
48,
-18,
-23,
-100,
10,
96,
59,
-68,
67,
-85,
116,
115,
-89,
-45,
5,
59,
-86,
79,
84,
99,
-45,
-73,
67,
89,
-78,
-9,
59,
-37,
53,
79,
-92,
84,
13,
113,
-121,
85,
70,
-56,
-1,
88,
-114,
1,
-72,
117,
82,
-106,
-92,
34,
48,
15,
49,
23,
-29,
42,
26,
-57,
73,
40,
75,
-84,
88,
96,
-104,
-115,
-85,
22,
-77,
52,
-107,
9,
-38,
62,
-100,
49,
17,
40,
115,
-90,
-60,
-12,
105,
-103,
8,
96,
99,
1,
24,
-19,
41,
-120,
63,
46,
47,
-89,
-104,
9,
107,
109,
-106,
-67,
118,
52,
14,
-2,
-16,
85,
85,
108,
39,
-42,
-112,
-95,
13,
48,
-110,
113,
-21,
37,
20,
113,
-51,
-30,
124,
21,
88,
-33,
-121,
-74
] |
Hart, J.
Lillian Beeber, Francis M. Chick and Carrie L. Chick instituted this action in the chancery court against R. E. Chambers, R. R. McIntosh and the Tedford Auto Company. The object of the suit was to set aside and cancel a note and mortgage for eight hundred dollars given by Francis M. and Carrie L. Chick to R. R. McIntosh. The complaint alleges substantially the following state of facts:
Carrie L. and Francis M. Chick owned certain real estate in the city of Little Rock, upon which there was a mortgage for six hundred dollars. They listed the property for sale or exchange with the defendant McIntosh, a real estate agent, at twenty-seven hundred dollars. Lillian Beeber owned certain country property which she listed for sale or exchange with the defendant R. R. McIntosh at thirty-five hundred dollars, and there was a mortgage on this property for six hundred dollars. The defendant McIntosh arranged an exchange of the Chick property for the Beeber property, and this exchange was consummated by the execution of deeds between the parties. The Chicks executed a mortgage to R. R. McIntosh for eight hundred dollars on their property. It is alleged in the complaint that McIntosh procured an exchange of the property by means of fraudulent representations, which we do not deem necessary to set out.
The Tedford Auto Company and Tedford answered and filed a cross -complaint, asking for a foreclosure of the eight hundred dollar mortgage. They allege that McIntosh transferred the note and mortgage to the Tedford Auto Company, and it, in turn, transferred them to Ted-ford. They allege that Tedford is a bona fide holder, for value, before maturity, in the usual course of business.
The plaintiffs denied that either Tedford or the Ted-ford Auto Company were bona fide holders, for value, before maturity of the note and mortgage, and allege that the sale and transfer of them to the auto company and to Tedford was a pretended and simulated transfer.
The chancellor, after hearing the evidence, entered a decree cancelling and setting aside the eight hundred dollar mortgage, but found that the Chicks owed to McIntosh the sum of three hundred and fifty dollars as commission for exchanging their property and decreed that this amount should be a lien on their real estate.
The defendant Tedford alone has appealed.
The decree recites that the cause was heard on the complaint, the substituted answer, the cross-complaint of the Tedford Auto Company and W. L. Tedford and the testimony of certain named witnesses. This recital shows that the testimony of witnesses was heard in the cause not in the form of depositions. Murphy v. Citizens Bank of Junction City, 84 Ark. 100. There is copied in the transcript what purports to be this testimony taken down by a stenographer and afterward reduced to writing by him. It is not even authenticated by the stenographer. But, as said in the case of Rowe v. Allison, 87 Ark. 206, even if it were, that would be insuffiicent to preserve oral testimony in a chancery case unless the same was treated as depositions and filed and identified as such. An examination of the purported testimony, as it appears in the transcript, shows that it was taken before the court at the trial of the case by <a stenographer and was afterward reduced to writing by him. No bill of exceptions has been signed by the chancellor or filed with the clerk. The purported testimony does not even show it was. filed with the clerk. There is nothing whatever to show that the testimony was ever filed and made a part of the record in the case. There is nothing to identify the testimony as that heard by the chancellor on the trial of the case. It is not authenticated in any manner. In the case of Beecher v. Beecher, 83 Ark. 424, the court said:
“If oral testimony was taken before the court, it could be reduced to writing and filed as depositions, like depositions taken before any other officer; then it would be identified, and reference to the depositions in the decree would make certain the evidence upon which it. rested. Or it may be reduced to writing afterward and brought into the record by bill of exceptions. In this case neither course was pursued, and hence this unauthenticated testimony which is in the transcript can not be considered. It is no part of the clerk’s duty to certify to oral testimony, and his certificate to it necessarily goes for naught. ’ ’
(2) Therefore, we hold ifchat the oral testimony was not properly brought into the record, and is not now before the court. There is a conclusive presumption that the evidence sustains the decree of the court so far as it is possible for a decree based on the complaint to be sustained by the evidence.
It. follows that the decree will be affirmed. | [
-14,
107,
104,
-82,
72,
-32,
40,
10,
82,
-128,
101,
-41,
-19,
-50,
4,
45,
-25,
93,
101,
107,
21,
-77,
7,
42,
-14,
-77,
-37,
77,
-68,
-51,
-27,
-41,
76,
48,
-62,
29,
-126,
-120,
-59,
28,
70,
-91,
25,
68,
-35,
-48,
52,
-5,
80,
77,
69,
-81,
-73,
44,
53,
74,
108,
106,
127,
57,
-48,
113,
-120,
-115,
95,
23,
17,
70,
-104,
17,
-56,
10,
-112,
53,
25,
-55,
115,
-74,
-122,
116,
79,
-119,
8,
42,
119,
2,
-127,
-55,
-16,
-116,
46,
-14,
-115,
-90,
-14,
72,
19,
41,
-65,
-100,
120,
10,
7,
-4,
110,
-107,
25,
108,
0,
-49,
-44,
-109,
-115,
100,
-102,
11,
-26,
-57,
48,
113,
-51,
-110,
93,
71,
57,
-69,
7,
-76
] |
McCulloch, C. J.
The plaintiff, Phoenix Insurance Company, of Hartford, Connecticut, has been doing a general fire insurance business in the State of Arkansas, and defendants were its local agents at Fordyce, Arkansas, with authority to countersign, issue and deliver policies and contracts of insurance subject to the approval and instructions of the plaintiff.
Defendants issued to the Arkansas Lumber Company a policy of fire insurance in plaintiff company and delivered same with an endorsement thereon waiving, in favor of a certain railway company, a provision in the policy referred to as the subrogation clause. When the issuance of the policy with the endorsement thereon.was reported to plaintiff, it wrote to defendants as its agents demanding that an additional premium of $30 be paid by reason of the endorsement of said waiver on the policy and that the policy be cancelled unless the additional premium be paid. The policy was not cancelled, nor was the additional premium paid. Repeated correspondence was pursued between plaintiff and defendants with reference to the transaction. The correspondence is set forth in the complaint in this action as part of the statement of facts, and shows that defendants were insisting that the additional premium be not charged for the reason that it would cause them to lose the patronage of that customer, and that plaintiff continued to insist upon the collection of the premium or the cancellation of the policy.
The policy was issued on December 22, 1911, and reported to the plaintiff shortly thereafter, and the insured property was damaged by fire which occurred on June 9, 1912, while the policy was in force.
The company made good the indemnity on account of the damage by fire, and this is an action instituted by plaintiff against defendants as its agents to recover the amount plaintiff was required to pay to the assured under the policy, and it is alleged in the complaint that the defendants wrongfully failed and refused to carry out the instructions of plaintiff as their principal and thereby caused loss to plaintiff in the sum paid out under the policy. The allegations of the complaint, after setting forth the facts as hereinbefore recited and the correspondence between the parties, are as follows:
“Notwithstanding the repeated instructions, given said defendants by and on behalf of said plaintiff, as aforesaid, said defendants negligently, wrongfully and wilfully failed to obey the same, and, believing that for them to demand or insist on any additional charge or premium for said waiver of subrogation, would mean the loss of that business, said defendants wholly failed to use due diligence to collect or demand any such additional charge or premium; and for purposes of their own, and in utter disregard of such instructions, negligently, wrongfully and wilfully failed to collect or demand any such additional charge or premium, or to endorse any such upon such policy, or cancel said policy, and thereby left said plaintiff bound upon said risk until said property was destroyed and damaged by fire on June 9, 1912, when plaintiff would not have been bound thereon, had said defendants obeyed said instructions or performed with due diligence their duty in the premises.”
The defendants offered to confess judgment in the sum of $30, the amount of the additional preipium demanded, and demurred to the complaint in so far as it sought to recover damages in excess of that amount. The court sustained the demurrer and' rendered final judgment, from which the plaintiff has appealed.
The complaint undoubtedly states a case of wrongful 'act on the part of the defendants as agents of the plaintiff which caused injury; but the only question involved in this ease is as to what shall be the measure of the recovery.
The trial judge decided that the amount of the lost additional premium sought to be collected was the measure' of recovery, and in this we think he was clearly correct.
It will be noted that the complaint does not state a case where the agent refused to comply with an unequivocal demand or instruction for cancellation of the policy, nor a case where the policy was wrongfully issued or permitted to continue on a prohibited risk; but the facts stated in the complaint are that the plaintiff demanded of the defendants that the additional premium of $30 be collected or that the policy be cancelled. This demand continued over a period of several months and until the fire occurred, nearly six months after the policy was issued. The plaintiff knew, according to the allegations of the complaint, that the policy was still outstanding and had never made an unconditional demand for its cancellation, but merely insisted upon the collection of the additional premium. In other words, the point of controversy between the plaintiff and defendants was concerning the collection of the premium and the violated instructions related to that point only. It is true, according to the allegations of the complaint, there was a demand that the policy be cancelled unless the premium should be paid, but that was only for the purpose of forcing the collection of the premium. Plaintiff did not desire the cancellation of the policy; if it had it could easily have insisted upon immediate cancellation as it had the right to do; but with the knowledge that the agent had neither collected the premium nor cancelled the policy, it continued to couple together the alternative demand for the collection of the premium or the cancellation of the policy.
It is argued that the plaintiff was entitled to show that, if the demand for the premium had been insisted upon, the assured would have refused to pay and would have forfeited the -policy, and that thereby the risk would have been avoided.
The answer to that is that, if cancellation had been sought, the more direct method would have been adopted of merely demanding unconditional cancellation of the policy. ■
Learned counsel for plaintiff rely upon the case of State Ins. Co. v. Jamison, 79 Ia. 245, as sustaining their position.
That case, however, announces a very different principle and one which has no application whatever to the facts of the present case. In that case, the defendant, an insurance agent, issued a policy but wrongfully or negligently withheld from the company a report which would have contained matter that afforded ground for cancellation. In other words, the matter contained in the withheld report made the risk a prohibited one. The plaintiff offered to prove that if the report had been made, disclosing that information, the policy would have been cancelled, and the court held that the proof should have been admitted and that it would have established the fact that the wrongful act of the agent was the proximate cause of the loss to the company under the policy, which it would have cancelled if it had known the facts, and that the agent was liable.
We have a very different case'before us in the present one. This was not a prohibited risk, and it was one which the plaintiff, not only was perfectly willing to carry, but repeatedly expressed its willingness to do so in the correspondence.
By merely insisting on the collection of the additional premium under those circumstances, it would be carrying the rule of measuring, damages beyond that which was reasonably within the anticipation of the parties to hold that the agent is responsible for a loss by fire which occurred during the continued existence of the policy.
Mr. Ostrander states the rule applicable as follows:
“Where a risk is of a class that a company is accustomed to write, but which it has accepted at a lower rate of premium than should have been paid, having’ been misled as to its true character by the representations of the agent, the measure of the agent’s liability on the destruction of the property by fire is not.the sum which the insurer will be required to pay claimant in settlement of the loss, but such sum as expresses the difference between the premium actually paid and such premium as might fairly have been demanded on a correct representation of the hazard.” Ostrander on Fire Ins. (2 ed.) 180.
We are of the opinion that the court took the right view of the law applicable to the facts stated in the complaint and that the demurrer was properly sustained. Judgment affirmed. • | [
-72,
125,
-16,
-116,
-120,
96,
120,
26,
95,
-125,
37,
83,
-7,
-32,
20,
7,
-26,
121,
-43,
106,
-12,
-77,
23,
2,
-46,
-45,
-111,
-59,
-77,
79,
-19,
-1,
72,
40,
-54,
85,
-58,
74,
-123,
-100,
70,
1,
-72,
-31,
-7,
72,
48,
121,
80,
71,
65,
-98,
-13,
42,
25,
-53,
44,
44,
121,
-111,
-45,
121,
-85,
5,
127,
1,
33,
6,
-104,
3,
74,
14,
-112,
53,
25,
-24,
115,
-74,
-90,
100,
79,
-119,
-120,
102,
102,
0,
1,
-25,
-82,
24,
39,
-72,
-115,
-92,
-80,
105,
11,
15,
-77,
-99,
112,
6,
23,
122,
-24,
29,
28,
108,
17,
-121,
-44,
-77,
-57,
108,
29,
3,
-18,
-109,
52,
84,
-50,
-32,
93,
79,
56,
-101,
6,
-115
] |
McCulloch, C. J.
The plaintiff, Mrs. Thomas, claims to have received personal injuries while she was. getting off one of defendant’s trains, and sues to recover compensation for the injuries. She took passage on the train at Tokio and went to McCaskill, which was the station nearest to her home, and after the train came to a stop, while she was getting off, her foot slipped, and she fell against the step, injuring her back. The jury-awarded damages in the sum of $500.
She testified that after the train came to a stop she walked out on the platform and down the steps and that as she went to stepson the box which had been set on the ground by the porter or brakeman in a slanting position her foot slipped from the step of the car and that the box, proving to be an insecure or unstable footing, she fell against the steps and injured- her -back.
Another witness, who was present and saw her get off, said that there was a bunch of cantaloupe seed on one of the steps and that Mrs. Thomas slipped and fell.
The defendant made no serious contention that the plaintiff did not slip and, perhaps, receive some slight injury; but it denied the charge of negligence, and also denied that the plaintiff received any -substantial injuries. Most of the proof was directed to the last mentioned question concerning the extent of the injuries. There is an assignment of error in the admission of testimony directed to that issue. It is contended that the court erred in permitting a witness to testify concerning complaints made by the plaintiff two weeks -after the alleged injury.
The law is settled, we think, by the authorities cited on -the respective 'briefs >of the parties that involuntary exclamations indicating pain -are admissible, whether uttered at the time the injury occurs' or afterward. They are in the nature of verbal acts which go to the jury for what they are worth. On the other hand, it is equally well settled that statements of the injured party merely by way of narrative are purely hearsay, and come within the rule against the admissibility of self-serving declarations.
When the testimony of the witness is examined as a whole, it is clear, we think, that she testified to the plaintiff’s “complainings” merely as involuntary exclamations of pain and, as such, they were competent to be considered by the jury in determining the extent of plaintiff’s suffering.
Another assignment relates to an instruction given by the court, as follows:
“You are instructed that in the operation and management of its trains the defendant owes its passengers the highest degree of care which a prudent and cautious man would exercise reasonably consistent with its mode of conveyance and the practical operation of its trains.”
It is contended that ordinary care is the requirement with respect to a passenger getting on or off a train.
But we have held otherwise in the case of St. Louis, I. M. & S. Ry. Co. v. Woods, 96 Ark. 311, where it was said:
“The higher degree of care is exacted only during the time in which the passenger has givén himself wholly in charge of the carrier, while on the train or getting on or off, for then only is the passenger subjected to the peculiar hazards of that mode of travel against which the carrier must exercise the highest degree of skill and care.”
That, indeed, amounts only to ordinary care, which increases in proportion to the danger. Railway Co. v. Sweet, 60 Ark. 550.
Error is assigned in refusing to give Instruction No. 8, which reads as follows:
“Unless the greater weight of the evidence shows that the defendant’s trainmen knew of the presence of the cantaloupe seed on the steps of defendant’s car, and negligently failed do remove them within a reasonable time after such knowledge, or that the seed had been on the steps of said car for a sufficient length of time as that such trainmen, acting ás reasonably prudent persons, ought to have discovered them within the time they had been there, you should find for the defendant on the alie gation that the defendant negligently allowed cantaloupe seed to be on its steps.”
Thait instruction lays down the correct rule for* measuring the degree of care; but we are of the opinion that there was no prejudice in refusing to give theinstruction, for the reason that there was no attempt to show that cantaloupe seed had been on the steps for so short a time that the trainmen had no opportunity to discover its presence there. The box step had been placed there by some of the trainmen immediately before the plaintiff debarked and the opportunity of the trainmen to discover the presence of the seed was entirely within their knowledge. If it had been shown that the seed were on the steps so short a time that warranted the jury in finding that there was no negligence in failing to discover the condition, then this instruction would have been applicable; but in the present state of the case we do not see how it could have affected the verdict. The refusal to give it was, therefore, not prejudicial.
Another assignment relates to refusal of the court to give an instruction (No. 11) as to the burden of proof being on the plaintiff.
But the refusal to give the instruction was not prejudicial, because the court gave another instruction at the instance of defendant, telling the jury that “unless the plaintiff has shown by a greater weight of the evidence that she was injured by the negligence of the defendant, your verdict should be for the defendant.”
In view of that instruction, which is as favorable as the defendant could have asked, it is unnecessary for us to determine where the burden of proof rests in case of injury to a passenger under circumstances indicated in this record.
Judgment affirmed. | [
-78,
120,
-95,
-81,
42,
96,
40,
-22,
97,
-105,
-91,
115,
-19,
-63,
9,
35,
119,
125,
-47,
43,
87,
51,
6,
67,
-46,
-109,
98,
-57,
-77,
78,
-28,
-10,
77,
50,
-54,
81,
-25,
75,
-42,
60,
-114,
23,
-56,
-64,
57,
24,
52,
123,
-60,
71,
113,
-33,
-25,
106,
28,
-57,
40,
41,
106,
-15,
-47,
113,
-117,
13,
125,
2,
-93,
38,
30,
-121,
-34,
24,
-40,
53,
0,
-72,
114,
-74,
-110,
-44,
105,
-117,
4,
102,
98,
33,
13,
-25,
57,
-72,
111,
90,
-99,
-89,
66,
1,
9,
35,
-65,
-99,
80,
64,
14,
62,
-8,
76,
24,
36,
7,
-113,
20,
-71,
-49,
116,
-100,
-125,
-21,
-69,
22,
97,
-52,
-80,
92,
-121,
56,
-101,
31,
-66
] |
McCulloch, C. J.
This is an action instituted before a justice of the peace of Randolph County by the plaintiff, George Dutton, against the defendants, George W. Million and his wife, Florence Million, to recover the balance of a promissory note executed by the defendants to plaintiff for a part of the price for digging a well. The case wias appealed to the circuit court, and the trial there resulted in a verdict and judgment in favor of the defendants.
The plaintiff was engaged in the business of digging wells, and entered into a. contract with defendant, George W. Million, to dig and curb a well on the latter’s farm. According to the terms of the contract, the plaintiff was to receive a certain price per foot for digging and curbing the well, and that he “guaranteed that he would get water.” When the well was completed, the aggregate price was found to be $120, and the defendant, George W. Million, paid the plaintiff the sum of $25 in cash and executed the note in controversy, in the execution of which his wife joined. The sum of $50 was paid on the note, and this action was, as before stated, instituted to recover the balance. The defendants defended on the ground that the well was worthless by reason of poor workmanship of the plaintiff in curbing it, and that the consideration of the note, therefore, failed to the extent of the unpaid balance.
The testimony adduced by the defendants establishes the fact that after using the well a while the water became wholly unfit for use, many of the witnesses testifying that it had a dry or “irony” taste and looked muddy and dingy. Defendants themselves testified that the water was unfit for use, as stated by the other witnesses, and that it had sand and dirt in it, which spoiled the well. There is also testimony to the effect that the defendant in putting in the galvanized iron casing or curb cut holes in it so as to let the water run into the well, and that this caused the well to fill with seep water and to let sand and dirt into it. Another witness, of experience in the well business, testified to the effect that cutting holes in the casing had the effect of ruining the well. Defendant, George W. Million, admitted that he was present when the well was dug and curbed, and knew the manner in which the work was done, but testified that he had had no experience in the well business and relied entirely upon the skill and judgment of the plaintiff and did not know at the time he made the cash payment and executed the note that the workmanship was unskillful or that the well would prove unsatisfactory.
It is earnestly contended, on behalf of the plaintiff, that the evidence is insufficient to establish the defense, but we are of the opinion that, while the evidence is not entirely satisfactory, there is enough to warrant a submission of the issue to a jury and to sustain the verdict.
In the case of Webster v. Carter, 99 Ark. 458, we held that in an action on a promissory"note the defendant is entitled, by way of recoupment, to abatement for so much of the consideration as had failed; and in disposing of the case, we quoted with approval from the Supreme Court of Alabama in the case of Peden v. Moore, 1 Stewart & Porter, 71, as follows:
“Whenever a defendant can maintain a cross action for damages on account of defect in personal property purchased by him, or for a noncomplianee by the plaintiff with his part of the contract, he may, in a defense to an action upon his note made in consequence of such purchase or contract, claim a deduction corresponding with the injury he has sustained.”
The court submitted this case to the jury upon instructions which permitted them to return a verdict for the defendants if they found that by reason of negligence or unskilfulneSs of plaintiff in putting in the casing the value of the well had been depreciated to the extent of the amount of the ¡balance due on the note.'
The court further instructed the jury that the plaintiff was not bound by his acceptance of the well, even though he was present and knew the character of the material and workmanship, if he was ignorant on the subject and relied entirely upon the representations of the plaintiff as to his skill.
We think those instructions were correct; for if, as contended by defendant, George W. Million, he had no knowledge of the proper method of constructing the curbing, and merely accepted the work because of his reliance upon the representations and superior knowledge of the plaintiff, he would not be bound by his acts, and was entitled to claim a failure of the consideration to the extent of the depreciation of the well caused by unskilful workmanship. Our conclusion is that the case, was submitted under proper instructions, and that there was. enough evidence to sustain the verdict.
The suit was, as before'stated, against the defendant, George W. Million, and ¡his wife, but the verdict of the jury was in favor of the defendant, George W. Million, and omitted any mention of his wife. The judgment followed the form of the verdict’, and was only ip favor of George W. Million. Subsequently, the plaintiff filed a motion to redocket the case as against Mrs. Million and proceed with another .trial against her. The court overruled that motion, and we think that, was correct. The defendants presented a common defense, and the verdict should have been in favor of both if in favor of either. The court should have rendered judgment in favor of both defendants upon the verdict, and the plaintiff can not complain because that was not done. . Moreover, the undisputed evidence in the case showed that the defendant, Mrs. Million, was not liable on the note, as it was executed jointly with her husband and not with reference to her separate estate nor for the benefit thereof.
Judgment affirmed. | [
-16,
104,
-80,
-51,
-86,
-96,
42,
-102,
73,
35,
-11,
87,
-1,
-62,
16,
97,
-29,
125,
85,
107,
-25,
-78,
3,
70,
-77,
-13,
-95,
95,
50,
93,
-4,
85,
76,
52,
-54,
25,
-62,
-86,
-63,
-36,
-114,
14,
-55,
-18,
-39,
72,
54,
107,
80,
73,
113,
-122,
-26,
46,
21,
-49,
41,
60,
-19,
57,
89,
-32,
-69,
-115,
29,
4,
-112,
86,
-112,
83,
-22,
30,
-104,
-75,
-120,
-88,
114,
-90,
-122,
116,
11,
-69,
12,
118,
102,
49,
-91,
-81,
8,
-84,
15,
-34,
-119,
-89,
-14,
96,
-69,
107,
-66,
-99,
122,
-104,
-106,
-14,
104,
-123,
24,
44,
3,
-97,
-42,
-95,
15,
-2,
-36,
19,
-17,
3,
52,
116,
-49,
-78,
92,
15,
113,
-101,
15,
-45
] |
McCulloch, C. J.
The plaintiff was struck, knocked down and seriously injured by one of the defendant’s freight trains in the railroad yards at Gurdon, and he instituted this action to recover damages on account of such' injuries.
He was going down a pathway between the main track and a sidetrack for the purpose of boarding a train, when he stumbled over a pile of coal, about two feet high, in the pathway, and fell under the slowly moving freight train on the main track, and one of his legs was cut off just below the knee, and the other foot was cut through just about the instep. This occurred about midnight. The pile of coal which obstructed the pathway fell from the coal chute while the men were placing coal in the engines. It was about 2,500 feet south of the station at Gurdon, and the freight train had stopped at the coal chute for the purpose of taking on coal.
Plaintiff was employed by defendant railway company in the supply department, his duties being to travel with the supply cars and distribute oil. He had been to El Dorado with his oil cars, and returned to Gurdon en-route to Argenta. It was Saturday night, and he was to join the oil cars at Argenta on Monday morning, to go to McGehee, on another division of the road. The foreman of his department also accompanied the cars, and plaintiff obtained permission of the foreman to leave the oil cars at Gurdon and make his way back to Argenta that night on another train without waiting for the cars to be transported the next day. Plaintiff, after getting his lunch at an eating house near the station at Gurdon, saw the freight train stop at the coal chute, and decided to go down there and board the caboose to ride to Little Rock. He had a pass which permitted him to ride on all kinds, of trains, including through freight trains. He started down the track hurriedly to reach the caboose before the train moved, and when he got nearly to the engine, the train started, and he quickened his gait and was going, as he describes it, “in a trot,” when he stumbled over the pile of coal and fell. The train was going very slowly when plaintiff fell, and his feet were thrust under the train and the wheels struck him before he could extricate himself.
The evidence tends to show that the pile of coal fell from the chute and had accumulated there for a day or two. There was a space of nine feet between the main track and the passing track, and there was a well beaten path along there which was used by employees, and also by the public to some extent. There was a sign there, erected by the company, warning trespassers from the tracks and right-of-way.
Plaintiff testified that he had been to Gurdon a time or two before, and had seen employees and others walking along that path. He stated also that he had seen employees get off trains down at the coal chute and walk up to the depot along that path.
The only charge of negligence against the company is in permitting the pile of coal to accumulate in the path and in allowing it to remain there as an obstruction to those who attempted to use the path.
Plaintiff had the right to ride on freight trains, and it can not be said that he was not traveling on the business of the company in returning from Gurdon to Argenta. But he was not required to travel on that particular train. He was not acting under the immediate command of his superior when he undertook to board the train. While he had the right to board the freight train wherever it might be found for the purpose of riding on the company’s business, the pass which• enabled him to ride on through freight trains was not an invitation to board them wherever found. In other words, his right to board freight trains wherever found did not imply an obligation on the part of the company to furnish him a safe place and opportunity to board them. If he saw fit to board a freight train away from the station at a tank or coal chute, he did so at his own risk, unless the servants of the company were guilty of some negligence in the operation of the train which resulted in his injury. So, the fact that the plaintiff was going down the path for the purpose of boarding the train adds no strength to his cause of action, and his right to recover must exist, if at all, upon the obligation of the company to keep the path clear for the benefit of any one who saw fit to use' it.
Now, the evidence establishes the fact that, notwithstanding the warning posted by the company, the path was a well beaten one, and was frequently used by employees and oftentimes by any one else who saw fit to use it. This, however, was, at most, only a license which was extended, notwithstanding the warning, if the path was used openly with the acquiescence of those in charge of the yards.
It is well settled, however, that a bare licensee under 'circumstances of this kind is not entitled to any affirmative act of protection on the part of the owner who grants the license. In this respect the case stands the same as if some one else owned the premises instead of the railway company.
“The bare permission of the owner of private grounds to persons to enter upon his premises does not,” said this court in the case of St. Louis, I. M. & S. Ry. Co. v. Dooley, 77 Ark. 561, “render him liable for injuries received by them on account of the condition of the premises.”
In that case the defendant, the railway company, had erected a stile over a fence along the right-of-way and permitted the same to get out of repair, and the plaintiff was injured on account of the breaking down of the steps. The question arose whether the company had invited the public to use the steps, and there was enough evidence to show such an invitation, and the company was held liable, but in doing so, this court unqualifiedly laid down the rule that the granting of a mere license to use a way through an owner’s premises does not imply an obligation to keep the same in repair.
The same principle was announced by this court in the recent case of Chicago, R. I. & P. Ry. Co. v. Payne, 103 Ark. 226. There the public had been permitted to use, with the acquiescence of the company, a road or path along the right-of-way, and negligence was ascribed in allowing a ditch across the right-of-way to get out of repair, on account of which the plaintiff was injured while attempting to pass along. The court said:
“The undisputed evidence shows that appellee was a mere or bare licensee- She was using the footpath upon appellant’s right-of-way for her own convenience, and not for any purpose connected with the business of appellant, or for the common interest or mutual benefit of appellant and appellee. Appellant did no affirmative act to compel or induce appellee to use the footpath upon its right-of-way. It merely acquiesced in such use by appellee and the public. Under such circumstances, it can not be said that there was any implied invitation upon the part of appellant for the use of its right-of-way by appellee. Appellant therefore' did not have to exercise ordinary care to make the pathway safe for appellee. As appellant had done nothing that could be construed as an invitation to appellee and the public to use its right-of-way for a footpath, appellant was not negligent, because, in draining its right-of-way, it failed to exercise ordinary care to make and leave the footpath safe for appellee.”
Now, in the present case, there is not the slightest evidence to indicate that the pathway was used in a way that an invitation can be implied on the part of the railway company to the public or its employees to use it. The use was, at the most, merely permissive, and those who used it were licensees, who took the privilege with its concomitant peril.
Neither was there any command or invitation to the plaintiff to use the path for the purpose of reaching the freight train, and he was -a mere licensee in going down there to board that train. As we have already seen, the company owed him no duty to furnish him a safe place to board the train at the coal chute or at any place other than at the station, and when he chose to board the train at that place, he did so at his own risk.
We are unable to discover any theory in the law upon which plaintiff is entitled to recover damages, and as the' evidence is undisputed, no useful purpose would be served in remanding the case for a new trial. The judgment is therefore reversed and the cause dismissed. • | [
-80,
120,
-80,
-116,
58,
104,
42,
-118,
97,
-125,
-27,
-45,
-51,
-124,
9,
97,
-30,
125,
-11,
47,
116,
-109,
3,
-93,
-109,
-109,
51,
-121,
18,
75,
108,
86,
77,
80,
-54,
85,
-90,
72,
-63,
28,
-114,
36,
-24,
-24,
57,
8,
52,
122,
20,
15,
113,
-98,
-38,
42,
24,
-24,
41,
61,
111,
-84,
-47,
113,
-125,
5,
117,
16,
-95,
68,
-98,
7,
122,
26,
-40,
-75,
0,
-68,
114,
-90,
-110,
-12,
105,
-101,
12,
102,
98,
33,
13,
-89,
44,
-72,
47,
-70,
-113,
-91,
-90,
1,
35,
7,
-105,
-99,
74,
-41,
30,
-6,
-24,
77,
25,
44,
-121,
-53,
-108,
-127,
111,
100,
-44,
55,
-53,
37,
52,
100,
-52,
-78,
92,
7,
59,
-101,
31,
-41
] |
Kirby, J.,
(after stating the facts). Neither of the appellants complain of the instructions given the jury-on the part of the appellee, both insist that the verdict is excessive, and each contends that but for the negligence of the other, the accident would not have occurred, and that any negligence on its part was not the proximate cause of the injury. There is no doubt but that those in charge of the.Cotton Belt train, by keeping a lookout, could and would have seen the Iron Mountain train approaching the crossing in time to have -avoided the injury by stopping the train if they had been in the exercise of ordinary care. Neither is there any doubt but that the enginemen of the Iron Mountain train could also have discovered the Cotton Belt train by the exercise of ordinary care in time to have prevented the collision. Both of the railroad companies were negligent, and but for the negligence of each, the collision would not have occurred, and the concurring negligence of both produced the injury for which both are liable. Cyc. lays down the following general rule: “ * * * Where an injury is sustained by reason of the joint or concurrent negligence of two railroad companies, * * ' * plaintiff may sue both jointly, and it is not necessary that there should be a breach of a joint duty or any concerted action on the part of the defendants, but it is sufficient if their several acts of negligence concur and unite in producing the injury complained of; nor is it material that one of the defendants owed the plaintiff a higher degree of care than the other.” 33 Cyc. 726.
In City Electric Street Railway v. Conery, 61 Ark. 381, where -an injury was received by coming in contact with a telephone wire charged with electricity communicated from a trolley wire, the court said: “If the injury was the result of concurring negligence of the two parties, and would not have occurred in the absence of either, * * # the negligence of the two was the proximate cause of the same, and both parties are liable.” See, also, St. Louis, I. M. & S. Ry. Co. v. Shaw, 94 Ark. 15; St. Louis S. W. Ry. Co. v. Mackey, 95 Ark. 297; Strange v. Bodcaw Lumber Company, 79 Ark. 490.
It is contended that the damages are excessive, and this contention must be sustained. The appellee was sixty-two years old with a life expectancy of virtually thirteen years, and -earning $1,600 a year salary at the time of the injury. He is permanently and totally disabled from performing manual labor, and can not resume his duties as conductor, in which he had been engaged for twenty years or more. He suffered great pain from the dislocated shoulder, the broken ribs, the cut on the back of his head and other bruises, and had an attack of peritonitis before his recovery, and was confined» to his bed for about three months. His wounds are all healed, but he still suffers from neuritis, and will probably continue to do so throughout his life. The pain is worse during bad weather. Appellee had passed beyond life’s meridian well down on the further slope. There was no hope of promotion in prospect for him,-and but thirteen years of life in expectancy. It is possible, but not probable, that he would have continued physically able td discharge the duties of his position, and retained it until the age of seventy-five, the end of his expectancy. Virtually, $14,100 will purchase an annuity that would yield $1,600 a year, the amount of salary appellee was receiving, but this -estimates the entire life expectancy at the full salary for the period without taking into consideration, as ought to be done, the probability of loss of time from sickness, loss of position and decreased physical force with advancing years, and the jury allowed even more than this, and their verdict is excessive. Appellee’s business at Holly Grove, it is true, was shown to be yielding him an income also, but the injury can not be said to have caused him loss on that account, for he was not personally conducting the business, and so far as the proof shows, he can devote more directing attention to it now than he was doing before the injury.
The jury awarded $20,000 damages for pain and suffering. Appellee is well of his injuries now after three months of suffering and confinement to his bed, save for the neuritis that will probably afflict him to the end. He suffered much, but, as said in St. Louis, I. M. & S. Ry. Co. v. Brown, 100 Ark. 124, “There is no market where pain and 'Suffering are boug’ht and 'sold or any standard by which compensation for it can be definitely ascertained and the amount actually endured determined,” and compensation therefor must be considered on a reasonable basis, and the jury can not give any amount they please, although the amount of damages must be left largely to the reasonable discretion of the jury. The court is of the opinion that the amount awarded for pain and 'suffering is excessive also. St. Louis, I. M. & S. Ry. Co. v. Brown, 100 Ark. 123; Aluminum Company v. Ramsey, 89 Ark. 541. Upon the whole case, our conclusion is that the award of damages for each cause of action is excessive, and that the judgment for both causes should be, and is reduced, to $20,000, and as modified, it will be affirmed.
It is so ordered. | [
-16,
104,
-100,
-113,
88,
96,
58,
-86,
97,
-79,
-90,
-45,
-49,
-63,
-103,
55,
-10,
-65,
81,
59,
116,
-29,
3,
2,
-38,
-109,
115,
-124,
-107,
106,
102,
-10,
77,
48,
-53,
-43,
103,
74,
69,
92,
-58,
20,
-86,
100,
25,
50,
116,
114,
20,
95,
81,
-98,
-45,
42,
24,
-41,
105,
46,
-21,
-19,
-46,
113,
-118,
5,
118,
0,
49,
36,
-104,
-89,
-116,
24,
-104,
53,
3,
-72,
115,
-90,
-109,
-44,
105,
-117,
12,
-26,
98,
33,
5,
107,
-68,
-120,
46,
118,
15,
-89,
54,
8,
-85,
47,
-73,
21,
70,
52,
-106,
-2,
-3,
13,
95,
116,
-127,
-114,
-108,
-80,
-3,
102,
-98,
-121,
-21,
-93,
50,
97,
-52,
-78,
94,
5,
19,
27,
31,
-82
] |
Kirby, J.,
(after stating the facts). The court erred in not sustaining the demurrer to the complaint because of the defect of parties. The suit was brought by the materialman, with whom the owners had made no contract and from whom they had purchased no materials, against them to fix a lien against their property for the amount claimed to be due for materials furnished the contractor, of which they knew nothing, that were alleged to have been used in the construction of the improvement. Section 4978, Kirby’s Digest, provides that when a, lien is filed under the provisions of the law by a person other than a contractor, “it shall be the duty of the contractor to defend any action brought thereupon, at his own expense; and during the pendency of such action, the owner may withhold from such contractor the amount of the money for which such lien shall be filed; and in case of judgment against the owner or his property upon the lien, he shall be entitled to deduct from any amount due by him to the contractor the amount of such judgment and costs, and, if he shall have settled with the contractor in full, shall be entitled to recover back from the contractor any amount so paid by the owner for which the contractor was originally liable. ’ ’
No notice was given by appellee of an intention to claim a lien for the materials furnished, and no statement of account and the amount claimed due was filed with the circuit -clerk within. ninety days after the last materials were furnished to the contractor, and it is questionable whether the suit was commenced in time, depending upon whether the improvement was in charge of the contractor’s foreman for one week after he abandoned tbe job, during which materials were furnished, or Doctor Simpson, the husband of the owner. The evidence is conflicting on this point, and we can not say that the chancellor’s finding is clearly against the weight 'of it. This court has determined.-that the commencement of a suit by the material furnisher within ninety days after the last materials are furnished fixes a lien against the owner’s property and dispenses with the necessity of ten days’ notice to the owner of an intention to claim a lien and the filing of the account upon which it is claimed with the circuit clerk. Anderson v. Seamans, 49 Ark. 475; McFadden v. Stark, 58 Ark. 7.
The contractor was a necessary party and should have been made codefendant with the owners, who knew no tiling about what amount of materials had been furnished, nor how much of the materials furnished had gone into the construction of the improvement. He was a necessary party, both for his own and the owner’s protection. The owners had the right to look to him for the payment of any judgment that might be recovered against their property for materials furnished, having contracted with him to supply such materials and paid him the contract price for the improvement, and can not be compelled to resort to another action against the contractor for the recovery of such sum of money in which the contractor would be at liberty to claim that he did not owe the materialman the amount for which the judgment was rendered and the lien enforced. It is the intention of the law to have the contractor to defend all such actions and be bound by the judgment rendered. Kirby’s Digest, § 4978; Horstkotte v. Menier, 50 Mo. 159; Janes Sons Co. v. Farley, 76 S. E. 169; Augir v. Warder, 70 S. E. 719; Clayton v. Farrar Lumber Co., 45 S. E. 723; State Bank v. Plummer, 129 Pac. 819; Boissot on Mechanics’ Liens, § 537; Phillips on Mechanics’ Liens, § 397.
The undisputed testimony shows that Doctor Simpson made the contract with T. J. Evans to remodel the home situated on lots belonging to his wife, agreeing to pay him a certain amount for the completed improvement, all materials to be furnished by the contractor, and that the lumber, for the price of which ajien is attempted to be enforced herein, was furnished to the contractor by appellee, and not to the owners. And although the bringing of this suit within ninety days of the date the last materials were furnished dispensed with the necessity for giving notice and filed the lien with the circuit clerk,' so far as the owner was concerned, the law requires that an action to enforce such lien shall be commenced within fifteen months after it is filed, and the contractor is a necessary party to such suit as already stated. The decree will be reversed because of the failure to make the contractor a party, but wifi not be remanded for that purpose and further proceedings since the time for beginning suit to enforce the lien has already expired, and the fact that the suit was sooner brought against the owners can not relieve against the limitation, because the joining now of the necessary party, without which judgment should not be rendered, would but be in effect a new action begun after the expiration of the time. The decree is reversed and the cause remanded with directions to render judgment and enforce the lien for the amount only of $29.36, ■the balance remaining due upon the materials furnished and used by Doctor Simpson in the completion of the work. | [
-112,
106,
-36,
-35,
-70,
32,
42,
-40,
81,
1,
103,
87,
-19,
-58,
92,
103,
-16,
109,
116,
106,
94,
-93,
43,
98,
-46,
-77,
113,
85,
49,
77,
-44,
-36,
76,
52,
-62,
-43,
70,
10,
-63,
-48,
-126,
5,
11,
-19,
-7,
96,
36,
90,
84,
15,
49,
-74,
50,
46,
17,
-49,
74,
40,
109,
59,
-64,
-15,
-102,
5,
127,
21,
-79,
87,
-99,
103,
-8,
13,
-128,
-72,
0,
-19,
113,
-74,
-126,
117,
75,
-103,
9,
98,
99,
34,
77,
111,
-52,
-104,
15,
-14,
31,
-90,
-77,
73,
11,
105,
-65,
-99,
125,
4,
-28,
122,
-26,
28,
89,
108,
3,
-118,
-44,
-14,
15,
116,
-104,
-119,
-50,
-121,
48,
112,
-51,
-84,
92,
67,
51,
123,
-98,
-6
] |
Kirby, J.,
(after stating the facts). It is contended that the decree of foreclosure of the lien, and, the sale thereunder, of the land for delinquent taxes, are void because an affidavit in proof of the publication of the notice of the pendency of the suit shows it was published twice only instead of four times, as the law requires, and ■because of appellant ’a attempt to pay the taxes in proper time and failure to do so by reason of the collector’s mistake. The decree in the foreclosure proceeding recites: “Upon call of this cause it appearing that all persons and corporations having or claiming interest in any of the lands hereinafter described have been fully and con structively summoned as required by law, and that said interested persons' .and corporations come not but make default.” Tbe commissioner’s sale for tbe collection of delinquent taxes in tbe drainage district under wbicb appellant claims title, was made under Act 111 of tbe Acts of 1907, section 7 of wbicb provides: “Notice of tbe pendency of such suit * * * (for tbe foreclosure of tbe lien) shall be given by publication weekly for four weeks prior to tbe day of tbe term of court on which final judgment may be entered for tbe sale of tbe land, in some newspaper published in tbe ¡county where such suit miay be pending.”
The court acquired jurisdiction under the law for enforcing the payment of the delinquent levee taxes by foreclosure of the lien upon the publication of the notice of the pendency of the suit as provided in said act, and its decree recites that all parties interested in the lands described and proceeded against “have been duly and constructively summoned as required by law. ’ ’ This was a fact necessary to be found by the court in order to establish its jurisdiction .and its finding and the recital of the decree that all parties “have been duly and constructively summoned as required by law” is conclusive of the fact upon a collateral ¡attack. McLain v. Duncan, 57 Ark. 49; McConnell v. Day, 61 Ark. 464; Porter v. Dooley, 66 Ark. 1; Porter v. Tollman, 68 Ark. 211; Palmer v. Ozark Land Co., 74 Ark. 253; Pattison v. Smith, 94 Ark. 588.
Appellee attempts to show in this an entirely different proceeding, that tbe judgment of tbe court condemning the lands to sale for payment of tbe delinquent taxes was without jurisdiction for failure to give notice of tbe pendency of tbe suit by publication as the law requires, notwithstanding tbe recitals of tbe decree that such notice bad been duly given, by introducing what purported to be an affidavit in proof of tbe publication of such notice, showing only that it was published two times instead of four, as tbe statute provides.
The decree attacked makes no mention of this affidavit or proof of publication of notice, and its recitals relative to the publication are conclusive and can not be impeached in this proceeding. This is but a collateral attack upon a judgment of a domestic court of general jurisdiction and “it is well settled that every presumption will be indulged in favor of the jurisdiction of such court and the validity of the judgment which it enters and, unless it affirmatively appears from the record itself that the facts essential to the jurisdiction of such court do not exist, such collateral attack against the judgment rendered by it will not prevail. A judgment or decree entered upon constructive service, by publication will be given the same conclusive effect and is entitled to the same favorable presumptions as judgments on personal service.” Crittenden Lbr. Co. v. McDougal, 101 Ark. 395.
It is true that a judgment may be attacked collaterally where “by the record it is shown that there was want of jurisdiction by the court rendering it, either of the subject matter or of the person of the defendant.” The affidavit in proof of the publication of the notice of pendency of the suit is not .a part of the record, however, from which it can be shown that there was want of jurisdiction by the court rendering the decree, no mention or recital of such proof of publication being found therein. Another affidavit or other proof of the publication than the one presented here could have been filed in the other case and it is conclusively presumed, as against this collateral attack, that the notice was published and that all persons interested were, as the decree recites, ‘ ‘ duly and constructively summoned as required by law. ’ ’
The evidence is not sufficient to show such an attempt to pay the taxes levied against the property ias. would prevent a forfeiture, or its being returned delinquent and sold for the failure to pay. Appellee Gunn testified that he lived in Rector and, desiring not to go to' Piggott for the purpose of paying his taxes, asked O. A. Cargill, the county treasurer,. to see the collector and have him to make out the receipt for his taxes -and send it to the Bank of Rector for collection. That he mailed him a list containing the numbers of !his property and the tax receipt came to the Bank of - Rector and he paid it and did not examine it, nor know that the lots in controversy were not included in the receipt, till this suit was brought. He produced a slip of paper containing the correct numbers of these lots, with others, and -said it was pinned to the tax receipt when he paid the money and got it from the bank. Car-gill testified that -a list was mailed to him that looked like the one produced, -but he couldn’t say if it was, and that he turned it over to the collector with directions to issue the receipt and mail it to the Bank of Rector for collection. The -collector did not testify. There was nothing to prevent appellee from examining his tax receipt to ascertain if it contained all his lands, and the negligence or carelessness of others who were accomodating him in the matter will not relieve against his own in failing to do so.
It follows that the chancellor erred in dismissing the complaint and cancelling appellant’s deeds and the decree is reversed and the -cause remanded with direction to enter a decree awarding the possssion of the lands described to appellant. | [
-12,
-20,
-44,
124,
10,
-64,
58,
-88,
-40,
-77,
38,
83,
77,
2,
16,
45,
-25,
57,
117,
120,
68,
-90,
11,
67,
82,
-77,
-47,
-35,
49,
77,
-10,
-42,
76,
48,
-54,
-11,
102,
106,
-57,
-34,
78,
11,
-119,
85,
-55,
64,
116,
75,
120,
79,
117,
-66,
-29,
46,
17,
75,
72,
44,
-55,
-75,
64,
56,
-70,
7,
127,
7,
33,
7,
-104,
99,
106,
-118,
-112,
56,
5,
-24,
59,
54,
-122,
-12,
9,
27,
9,
102,
98,
18,
-19,
-19,
-68,
-72,
46,
-10,
29,
-90,
-112,
88,
3,
41,
-65,
-99,
124,
64,
14,
-2,
-18,
-123,
31,
108,
15,
-50,
-42,
-89,
11,
116,
-104,
27,
-57,
-89,
48,
113,
-51,
-90,
94,
-61,
18,
-101,
-114,
-35
] |
Smith, J.,
(after stating the facts). Provision was made in our present Constitution for the management of the internal affairs of the counties by the creation of county and quorum courts for that purpose. Section 28 of article 7, of the Constitution of 1874, provides: “The county courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants, the apprenticeship of minors, the disbursement of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties. The county court shall be held by one judge, except in cases otherwise herein provided.”
Section 30 of article 7 of the Constitution provides for the levy of taxes and the making of appropriations for the expenses of the county.hy the quorum court.
The Constitution contemplates that these two courts shall have exclusive jurisdiction in all matters relating to the levying of county taxes, and the making of appropriations for the expenses of the county, and the disbursement of money for county purposes. The Legislature would be unduly burdened, if it was required to consider the merits of the various local affairs of the respective counties, and no such authority was given it. It is within the province of the Legislature to determine the various purposes for which, and the order in which, the quorum court may make appropriations for the various county purposes, and the Legislature has done this in section 1499 of Kirby’s Digest. This section is subject to the Legislature’s right to amend as it may deem proper to do; but while it may enumerate, or limit, those purposes for which the county may expend its revenues, it can not itself make these appropriations, otherwise a conflict of authority and of action might arise between the quorum courts and the Legislature, and the Constitution has undertaken to avoid this condition by vesting the exclusive authority to make these appropriations in the courts of the counties.
We think the act of the Legislature above mentioned validating the appropriation and directing the county judge of Craighead County to make an order, directing the issuance of warrants of that county, is ineffective, and does not validate the action of the quorum court in making this appropriation. If the Legislature had the authority to direct the county judge to issue this .warrant, pursuant to the action of the quorum court in making this appropriation, then it would have had the right to make this appropriation in the first instance, independent of the action of the quorum court, and as we have said, no such authority is vested in the Legislature. It may be true the Legislature could authorize the county court of any particular county to establish a school, or other institution, to respond to the particular needs of that county, and might authorize a quorum court to make the necessary appropriations for its support and maintenance. But we are not called upon here to decide whether this could he done or not, for this is not what the Legislature here undertook to do. The agricultural school of the First District, located in the city of Jonesboro, is in no sense an institution of .that county, and its support can not be a county purpose. A study of the act authorizing the establishment of this school makes it entirely clear that this school is a State institution. No officer of Craighead or any other county as such, has any voice in its control or management. The trustees vested with the control and management of the institution are appointed by the Governor of the State, subject to the concurrence and approval of the Senate, and any vacancy which may occur on the board of trustees is similarly filled, and these trustees have the entire control and management of the institution, and they employ the teachers and prescribe the course of study. The State has reserved to itself the right to complete control over this institution, and has assumed the burden of its maintenance, and appropriations were made therefor, not only in the •act creating the district school, but in subsequent acts of the General Assembly. It is true the institution is located in Craighead County; but it was required that the school be located in some one of the counties constituting’ the First Agricultural School District, and Craighead was one of those counties, and all of those counties are parts of the State. A discretion was vested in the trustees, in the location of this institution, and they were directed to consider inducements which should be offered for its location; but the inducement contemplated was, of course, only such as might be lawfully made. It may be true, as appellant offered to prove, that Craighead County will derive certain benefits which will not be enjoyed by other counties of the State in that district, because of the location of the school in that county. Such institution located there is more accessible to the people of that county; but such benefit does not deprive the institution of its character as a State institution. The act creating this institution necessarily contemplated that it was desirable that the institute should have as large attendance as possible, and it may be true of this institution, as it is of most other institutes of learning, that it will be more generally patronized by residents of territory immediately adjacent to it, than by citizens of territory more remote. But no right so to patronize and enjoy the benefits of the institution are conferred exclusively upon the people of Craighead County. Upon the contrary, section 9 of the original act provides that the tuition of the school shall be free, and that the trustees may limit the number of students from time to time, according to the capacity and means of the institution, and' shall make rules of admission so as to equalize as near as practicable the privileges of the school among the counties, according to population. It is thus seen that if Craighead County was permitted to make this donation, its citizens would acquire no greater rights to the use of the facilities.of the school, than those enjoyed by the citizens of other counties.
In 1899, the Legislature of the State of Florida enacted a law in regard to -the militia of that State. It contained the following provision: “It shall be the duty of the board of county commissioners in each county in which there is a company, or battery of State troops, to provide each company or battery with an armory suitable for its meetings and drills and the safe storage of arms and equipments.” In a proceeding to compel the commissioners of a county in that State to erect an armory,it was contended this act was void because it violated the provisions of section 5 of article 9 of the Constitution of that State, which reads as follows: “The Legislature shall authorize the several counties and incorporated cities or towns in the State to assess and impose taxes for county and municipal purposes, and for no other purposes, and all property shall be taxed upon the principles established for State taxation. But the cities and incor porated towns shall make their own assessments for municipal purposes upon the property within their limits.” * * * The Supreme. Court of that State, in the case of State ex rel. Milton v. Dickenson and others, 60 L. R. A. 539, 44 Fla. 623, held this act to be unconstitutional, and in so doing, said: “No body of the State militia, in other words, has any prescribed function or duty to perform exclusively in or for any particular county in the State, that it is not under equal obligation to perform in or for any other county of the State wherever the exigency may arise for its exercise. And whenever and wherever it is so called upon to act, it is there as the representative of the State’s supreme sovereignty, and not as that of the county in which it acts. The place of resi- ' dence of its individual members has nothing whatever to do with fixing its status, either as a State or county institution. The conclusion reached is that the militia of the State, and'every part thereof, is essentially and necessarily a State institution, or, rather, an arm of the State Government, resort to which can only be had upon the failure of all other governmental authority; and that it can be, and should be, in the very nature of things, wielded only by the supreme sovereign power of the State; that it is in no sense such a county institution or establishment as that any particular county can exclusively be either authorized, or required, to impose taxes for its, or any part of its, maintenance. It is essentially a State institution, taxation for the support and maintenance of which can be imposed only by the State, and, when so imposed, such taxation is required by paragraph 1, of article 9, of our Constitution, to be at a uniform and equal rate upon all the taxable property throughout the State, and can not for such purpose be confined to or burdened upon the property in any. one county, to the exclusion of any or all the other counties of the State.”
Among other cases cited in that opinion in support of the language which we have quoted is the case of Hutchinson v. Ozark Land Co., 57 Ark. 554. This Hutchinson case, supra, involved the validity of a tax sale where the county court of Clay County, which county is divided into two judicial districts, had levied a higher tax for county general purposes in une district than in the other. Because of this inequality, that sale was held void, and Justice Mansfield there said: “If the taxes levied in the two judicial districts of Clay County were not county taxes within the meaning of the Constitution, then the county court has no power to levy them, and they were for that reason illegal. But if they were levied for county purposes, that made them county taxes, and the nature of such taxes required them to be imposed by a levy applicable to the entire county.”
The validity of the appropriation of the quorum court of Craighead County depends upon the decision uf the question whether or not the location and maintenance of this school was a county purpose, and a majority of the court are of the opinion that it was not; but that the school is one of the institutions of the State, and as such, the burden hot only of its maintenance, but of its erection, must be borne by the State at large. Cotham v. Coffman, 111 Ark. 108; 163 S. W. 1183.
The judgment of the court below is therefore affirmed. | [
116,
-24,
-36,
-4,
10,
-32,
19,
24,
67,
-69,
101,
-105,
-21,
-102,
0,
119,
-93,
47,
117,
107,
-59,
-9,
119,
67,
-80,
-13,
-41,
-41,
-74,
111,
-2,
-3,
76,
48,
74,
85,
70,
-30,
-57,
-44,
-122,
-119,
42,
-55,
-64,
-64,
52,
3,
86,
15,
117,
79,
-13,
44,
24,
67,
-23,
44,
89,
-84,
81,
-16,
-98,
-115,
93,
5,
17,
103,
-119,
3,
-24,
14,
24,
57,
64,
-8,
59,
-94,
-110,
-44,
15,
-103,
41,
-30,
96,
-128,
-20,
-5,
88,
-120,
30,
-37,
-65,
-25,
-110,
121,
122,
40,
-74,
31,
85,
-48,
11,
116,
-26,
-123,
95,
102,
-125,
-81,
-108,
-89,
-123,
60,
-120,
2,
-57,
-93,
48,
113,
-49,
-6,
94,
-57,
17,
27,
-114,
-72
] |
McCulloch, C. J.
Appellant railway company was convicted of violating the statute (Act No. 67, Acts 1913, approved February 20, 1913), which requires all railway companies operating roads one hundred miles and over in length to use crews of six men composed of an engineer, a fireman, a foreman and three helpers, while doing •switching in terminals or yards in cities of the first and second class. The act contains four sections and reads as follows:
“An Act for the better protection and safety of the public.
“Section 1. That no railroad company or corporation owning or operating any yards or terminals in the cities within this State, where switching, pushing or transferring of cars are made across public crossings within the city limits of the cities, shall operate their switch crew or crews with less than one engineer, a fireman, a foreman and three helpers.
“Sec 2. It being the purpose of this act to require all railroad companies or corporations who operate any yards or terminals within this State who do switching, pushing or transferring of cars across public crossings within the city limits of the cities to operate said switch crew or crews with not less than one engineer, a fireman, a foreman and three helpers, but nothing in this act shall be so construed as to prevent any railroad company or corporation from adding to or increasing their switch crew or crews beyond the number set out in this act.
“Sec. 3. The provisions of this act shall only apply to cities of the first and second class, and shall not apply to railroad companies or corporations operating railroads less than one hundred miles in length.
“Sec. 4. Any railroad company cr corporation violating the provisions of this act shall be fined for each separate offense not less than fifty dollars, and each crew so illegally operated shall constitute a separate offense.”
Appellant violated the terms of the statute for a day in switching cars in the city of Hot Springs, and on the trial of the case the court imposed the minimum fine. It is conceded that the terms of the act were violated, but appellant challenges its constitutionality on four grounds, namely, that the provisions with reference to the length of miles of road within the reach of the statute constitutes an unjust classification and in effect denies the equal protection of the laws, to railroads one hundred miles in length; that the statute is arbitrary and unreasonable as a police regulation in requiring the specified number of employees without necessity therefor; that the act operates as an interference with interstate commerce; and lastly, that the penalty imposed is so excessive that it in effect deprives the’ company of the opportunity to contest its validity without subjecting itself to unreasonable penalties.
The court heard the testimony of a large number of witnesses introduced.by the respective parties.to the litigation, and there is a wide conflict in the testimony as to whether there is any real necessity for requir ing more than two helpers. The witnesses introduced by appellant are its officers and employees, and those of other roads, all -of them being men of wide experience in switching cars in terminals; they all testified that there was absolutely no reason for requiring more than five men in the -switch crew, and that switching could be more speedily and safely done with five men than with six. • On the other hand, the State introduced a number of men now engaged as switchmen in yards and they all testified that it is necessary, in -order to give proper protection at -crossings, to have the additional man. It is unnecessary for a statement of the conclusions as to the validity of the law to state where the preponderance of the testimony lies, it being sufficient to say that it fails to show that the Legislature had no grounds for adopting this requirement -and enacting it into a statute. There appears to be some grounds for requiring the extra man in the crew to protect the public at crossings, and the requirement is not arbitrary; therefore it is our duty to accept the determination of the lawmakers as to the policy and expediency of the statute. The testimony in the case is very voluminous, but an analysis of it would serve no useful purpose; and, notwithstanding the -elaborate argument made by counsel on both sides of the case, we deem it sufficient to say that every point raised is decided adversely to appellant’s contention -by this court, and the Supreme Court of the United States, in the case of Chicago, R. I. & P. Ry. Co. v. State, 86 Ark. 412, and 219 U. S. 453. The case cited involved the constitutionality of the statute requiring railway companies, whose line or lines are fifty miles or more in length, -to -equip freight trains consisting of twenty-five cars or more, with crews composed -of an engineer, -a fireman, a conductor and three brakemen. There was in that case, as in this, a wide conflict in the testimony as to the necessity for and justice of such law; but both this court and the Supreme Court of the United -States held in effect that the lawmakers were the judges of the policy and expediency and necessity for the law, it not being shown that it was entirely arbitrary and without foundation. The proof in the present case varies from that' in the other case only in degrees, and to hold that this act is invalid would be a distinct departure from the principles announced in the former case.
Learned counsel for appellant contend that the only reason stated by the State’s witnesses why the provisions of the statute are necessary is that flying or drop switches at crossings can not be safely made without the assistance of the third helper, and that this reason is unsound'because the evidence adduced by appellant shows that such method of switching at crossings is expressly forbidden by the rules of the companies. Conceding that this is the only reason stated by the witnesses, it does not follow that the existence of the rules of the companies forbidding such methods of switching obviates the necessity for requiring the employment of the third helper. There is testimony tending to show that the rule is habitually violated, with the knowledge of the superior officers of the railway companies, and the lawmakers had the right to take those facts into consideration m legislating for the protection of the public, or even for the protection of employees who were permitted to habitually violate the rules. Questions of assumed risk and contributory negligence do not necessarily enter into the consideration of questions of expediency in enacting statutes for the protection of human life. The lawmakers can disregard those questions entirely and, as a police regulation, prescribe specific acts of care to be observed for the safety of employees or of the public.
It is insisted that the classification upheld in the former ea®e does not justify the (classification prescribed in the present act for the reason that the conditions are different, the former being a classification with respect to crews of trains while operating out on the road, whereas the present statute only applies to switching in the yards or terminals. We are of the opinion that the reason found in the other case for that classification applies with equal force to the present case, for it may be seen that there is more work demanded in switching cars on a road many miles in length, where the trains are run more frequently and consist of more cars, than on a short line doing perhaps only a local business.
Attention is called to one or more situations in the State which show the unreasonableness of the classification by reason of the fact that, on account of the peculiar conditions, short roads do as much switching as longer ones. The principal instance cited is at Helena, where a road only a few miles in length, located entirely within the corporate limits of the city of Helena, does a large amount of switching for connecting trunk lines. The validity of the statute can not be thus tested by exceptional cases, for the lawmakers are presumed to legislate with reference to general conditions and not to exceptional cases, and this, they have the power to do.
“It is almost impossible, in some matters, to foresee ■and provide for every imaginable and exceptional case,” said the Supreme Court of the United States, in the case of Osan Lumber Co. v. Union County National Bank, 207 U. S. 251, ‘‘and the Legislature ought not to be required to do so at the risk of having its legislation declared void, although appropriate and proper upon the general subject upon which such legislation is to act, so long as there is no substantial and fair ground to say that the statute makes an unreasonable and unfounded general Classification, and thereby denies to any person the equal protection of the laws. In a classification for governmental purposes, there can not be an exact conclusion or inclusion of persons and things.”
In view of the elaborate 'discussion of the questions by this court, and by the Supreme Court of the United States, in the case which we have referred to as decisive of all the questions involved, a further discussion is unnecessary at this time. We find that appellant’s attack upon the validity of the act is unfounded.
The judgment is therefore affirmed. | [
48,
-6,
-40,
-20,
58,
96,
24,
-102,
123,
-71,
-91,
-45,
-83,
68,
4,
49,
-29,
117,
81,
47,
-11,
-126,
6,
35,
-109,
-45,
-7,
-57,
55,
75,
-20,
119,
76,
16,
-54,
81,
-58,
74,
-59,
-98,
-50,
37,
-38,
-31,
89,
80,
52,
123,
20,
111,
113,
-98,
-93,
42,
24,
-54,
44,
126,
109,
-84,
-63,
121,
-77,
5,
101,
4,
33,
36,
-103,
5,
-24,
63,
28,
21,
-102,
-8,
115,
-90,
-110,
-12,
75,
-39,
76,
34,
98,
1,
21,
-89,
-116,
-84,
14,
-70,
-119,
-121,
-76,
17,
35,
79,
-109,
-107,
64,
22,
15,
-2,
122,
-43,
17,
124,
-123,
-113,
-76,
-125,
109,
100,
-108,
55,
-54,
33,
16,
112,
-54,
-78,
95,
7,
51,
-101,
79,
-43
] |
McCulloch, C. J.
This is an appeal from the judgment of conviction of the crime of assault with intent to commit rape. Appellant was seventy-four years of age at the time the crime was alleged to have been com mitted, and the accusation is that the assault was made upon a young woman in the city of Paragould.
The testimony is conflicting, but is sufficient to warrant the finding that he made the assault with intent to have carnal knowledge of said female forcibly and against her will.
The evidence of the injured female is that she resisted successfully, and that the appellant finally desisted before the consummation of the enforced act of intercourse.
Appellant’s testimony tended to show that on account of his extreme age and failing powers, he had lost all desire for sexual intercourse, and was physically unable to consummate such an act. In the trial of the case, his attorney asked the court to give an instruction to the jury to the effect that the offense was not complete unless the accused was capable of consummating the act of intercourse — in other words, that impotency was a defense to the charge of assault with intent to commit rape.
Our statute defines an assault as “an unlawful attempt, coupled with present ability to commit a violent injury on the person of another.” Kirby’s Digest, § 1583. That definition has been applied by this court in determining the essential elements of the crime of assault to commit murder, the court holding that “both the intention and the ability to commit a battery are necessary to constitute an assault.” Pratt v. State, 49 Ark. 179.
Professor Wharton, in his work on Criminal Law (eleventh edition, Vol. 1, § 690), lays down the rule broadly that impotency is a sufficient defense to an indictment for the consummated crime of rape, though not for an assault with intent to rape.
In another part of the same volume (section.223), he says: “If there be juridical incapacity for the consummated offense (e. g. infancy), there can be no conviction of the attempt; and, therefore, a boy under fourteen can not, according to the prevalent opinion, be convicted of an attempt to commit a rape, as principal in the first degree. It is otherwise when the incapacity is merely ner vous or physical. A man may fail in consummating a rape from some nervous or physical incapacity intervening between attempt and execution. But this failure would be no defense to the indictment for the attempt. At the same time there must be apparent capacity. ’ ’
Mr. Bishop also lays down the rule that impotency is no defense to the charge of assault with intent to commit rape.
The decisions on this subject are neither abundant nor clear, but we are convinced that the rule stated above by the learned text writers is the sound one, and that mere impotency on account of failing powers from old age is no defense to the crime of assault with intent to rape. The essence of the crime is the violence done to the person and feelings of the injured female. Complete consummation of the act of sexual intercourse is not essential even to the crime of rape; a partial penetration, without emission, being sufficient to make that crime. It follows, therefore, that the crime of assault with intent to commit a rape may be complete even though the perpetrator lacks physical vigor to consummate the act.
Appellant testified in his own behalf, and on cross-examination, counsel for the State drew out the fact that several years ago appellant had been convicted of a similar offense, alleged to have been committed on the person of another woman, and sought to draw out from him an admission that he had committed the offense. Appellant admitted that he had been so convicted, but denied that he was guilty of the charge. Objection was made to this line of examination, and an exception was duly saved, and is now pressed as grounds for reversal.
Counsel for appellant rely upon the statute of this State (Kirby’s Digest, § 3138, as amended by the Act No. 52, of 1905, p. 143), which declares that “A witness may be impeached by the party against whom he is produced, by contradictory evidence by showing that he has made statements different from his present testimony, or by evidence that his general reputation for truth or morality render him unworthy of belief, but not by evidence of particular wrongful acts, except that it may be shown, by the examination of a witness, or record of a judgment, that he had been convicted.of a felony.”
That 'statute has no application to the cross-examination of a witness for the purpose of testing his credibility. On the contrary, it has been held that the defendant in a criminal prosecution, when he takes the witness stand, places himself in the attitude of any other witness, and that he may be interrogated concerning specific acts of his own for the purpose of testing his credibility. Hollingsworth v. State, 53 Ark. 387. He can not be asked about a mere accusation or indictment (Benton v. State, 78 Ark. 284), but for the purpose of testing his credibility, he may be asked about a judgment of conviction. Vance v. State, 70 Ark. 272. Such matters are collateral to the issue and affect only the credibility of the accused as a witness, but are nevertheless competent for that purpose.
We are therefore of the opinion that there is no error in the record; and as the evidence was legally sufficient to sustain the conviction, the judgment must be affirmed.
It is so ordered. | [
-80,
-18,
-103,
-66,
42,
112,
10,
60,
16,
-77,
55,
-13,
-81,
-36,
4,
123,
54,
127,
68,
41,
-99,
-73,
23,
65,
-14,
-13,
59,
-41,
51,
-49,
-2,
-12,
0,
114,
-62,
85,
98,
-117,
-15,
-36,
-126,
-99,
-119,
-24,
49,
-118,
52,
59,
84,
14,
49,
30,
-45,
42,
28,
-49,
-87,
104,
75,
-67,
-56,
-12,
-119,
37,
-19,
20,
-93,
54,
-68,
3,
-16,
30,
28,
-111,
0,
-8,
58,
-106,
-126,
116,
127,
-117,
-116,
96,
98,
-96,
43,
-33,
-127,
-87,
15,
126,
-75,
-124,
90,
1,
104,
97,
-73,
-101,
-12,
116,
44,
-16,
115,
-51,
51,
-20,
-115,
-109,
-108,
-79,
-50,
100,
82,
-79,
-29,
61,
0,
117,
-49,
-26,
88,
81,
122,
-101,
-82,
-110
] |
Kirby, J.,
(after stating the facts). It is contended for reversal that the telegram was not a proper message to transmit, and that the company had a right to refuse to send it. The law allows a telegraph company to refuse to send a message that is obscene, slanderous, blasphemous, profane, indecent, or the like, but this message was not of that character and was entitled to be transmitted. Even if the purpose of the sender was to report the conduct of the agent to his superior it did not affect bis right to recover the penalty prescribed by the statute for the wilful refusal to send the telegram. Western Union Tel. Co. v. Lillard, 86 Ark. 211; Railway Co. v. Smith, 60 Ark. 221; Railway Co. v. Trimble, 54 Ark. 354.
Neither do we find it necessary to decide whether or not instruction numbered 5 was a correct declaration of the law, or whether the one on that subject requested by appellant should have been given. Under the circumstances of this case the difference between the two instructions was not material and could not have influenced the jury in reaching its verdict. They evidently believed the statement of appellee and his witnesses about the transaction, which was so radically different from the version given by the agent that the instruction given by the court could not have been prejudicial if it was incorrect.
The issues in the case were fairly presented by the instructions declaring the law, and we find no prejudicial error in the record.
The judgment is affirmed. | [
-80,
-4,
-40,
-65,
10,
96,
58,
-110,
17,
-79,
-90,
83,
73,
-43,
-99,
59,
-109,
105,
-47,
121,
-44,
-89,
127,
97,
-10,
-45,
115,
-43,
-75,
127,
-18,
-20,
77,
112,
-54,
-43,
102,
74,
77,
-36,
-50,
22,
9,
-29,
-103,
16,
36,
111,
16,
79,
113,
-49,
-13,
46,
24,
-62,
-87,
42,
105,
-67,
-62,
49,
-70,
79,
109,
4,
-93,
36,
-104,
39,
-8,
44,
24,
49,
1,
-24,
117,
-90,
-126,
116,
111,
105,
-123,
98,
98,
-96,
76,
99,
-116,
-120,
46,
-2,
-99,
-26,
-108,
40,
9,
109,
-105,
29,
2,
4,
7,
-6,
90,
-115,
21,
108,
9,
-113,
-12,
-89,
-19,
102,
-98,
95,
-21,
-109,
18,
116,
-116,
-94,
93,
67,
54,
-101,
-114,
-11
] |
Kirby, J.,
(after stating the facts). The appellee’s right to recover does not appear to be seriously controverted, but appellant contends strenuously that it is not liable for the injury. It insists that the testimony of the witnesses relating to the conference with Clayton and the alleged agreement by him for the railroad company to remove the piling and allow the dredge boat to cross under the trestle, if the ditching contractors would change the line of the ditch to a right angle and cross there instead of as surveyed, was incompetent and prejudicial. It is true the officials of the railroad company, having the authority to make such an agreement, testified that Mr. Clayton, the engineer who held the conference with the ditching contractors relative to the crossing of the railroad track, was without any authority to agree for the railroad company to remove the piling in consideration for having the 'ditch or canal put through the railroad right-of-way at right angles rather than as planned, but all admit that the conference was held and that Clayton reported that the ditching contractors had agreed to the ■suggestion of putting the ditch or canal through the right-of-way at right angles and under the trestle. In any event, on the day which was agreed upon by the general superintendent, at McGehee, with Mr. Carter, of the ditching contractors, Sunday, March 30, the railroad company had its wrecking and bridge crews on hand to assist in the crossing of its track by the dredge boat. It removed the deck of the bridge, and, in fact, engaged under the direction of its superintendent of the bridge and building department in helping to remove the piling with its wrecking outfit, and it is not material whether it had agreed to remove the piling or not, since it was there engaged in the work. Both the defendants, Hahn & Carter and the railroad company, were engaged in the work of removing the piling at the time of the explosion and injury to the appellee, and both deny having caused it. Each insists that it was the other’s duty, and that the other alone was engaged in removing the piling, and that it was assisting for accommodation purely.
It does not appear to us important whether there was an 'agreement on the part of the railroad company to remove the piling or not, for it sent its bridge and wrecking crew out there for the purpose of allowing the dredge- boat to go through, and these crews were engaged in the actual work of removing the piling, and it was within the scope of their employment to use any method chosen by them as best suited for the purpose, and whether the railroad company agreed beforehand to remove it or voluntarily undertook to do it after it became apparent that it was necessary to facilitate the work, can make no difference in appellee’s right to recover, if they were responsible for the wrongful act which caused his injury.
Mr. Land, the railroad company’s superintendent, admits that he suggested that dynamite should be used, and, although he denies having directed its use, no one else -suggested it, and Franklin swears that Land asked for the dynamite, which he procured for him, and then asked if he could get some one to shoot it, and that Franklin, at his suggestion, called for Jones, the negro shot-firer, who “was standing in the crowd of onlookers with his Sunday clothes on, ’ ’ to come 'and do the shooting. It is undisputed that Jones took the dynamite and prepared the shot that caused the injury, with the help of another negro, and fired it. Whose servant was he ? He had been shooting dynamite for Hahn & Carter for some days before this,, and afterward he was in their employ, but these facts alone could not make them responsible for the injury resulting from the explosion. The negro Jones did not volunteer to use the dynamite, took it after it had been procured at the request of the bridge superintendent, and also was asked to shoot it at his request. Franklin’s statement was denied by Land, and it was the province of the jury to decide the question, and they could have found that the railroad company was engaged in removing the piling whether on its own account or in assisting Hahn & Carter to facilitate the passing of the boat through its right-of-way, and that the dynamite was exploded by the direction of its superintendent, and that it was liable for the injury caused thereby. The man who fired the dynamite being at work under the direction of the railroad company at the time determines its liability. Arkansas Natural Gas Co. v. Miller, 105 Ark. 477.
Instruction numbered 4, complained of, told the jury that if the person in charge of the railroad employees and machinery undertook the work of removing the piling, and in so doing used dynamite by the direction of the servant of the railroad company, they should find it liable; but if the jury did not find this fact, as it could have done from the testimony, then to find in favor of the railroad company, and thus submitted fairly the issue to the jury. Under the circumstances, it could not have been influenced, and it did not make any difference whether there was an agreement by Clayton, the engineer of the company, with Hahn & Carter, the ditch contractors, to remove the piling or not, because its servants were actually engaged in the work of removing it, which was within the scope of their employment, and used the dynamite, the explosion of which caused the injury, in furtherance of that purpose.
Other questions are raised, but we do not find it necessary to discuss them. We find.no prejudicial error in the record, and the judgment is affirmed. | [
-16,
120,
-40,
-115,
-6,
106,
58,
26,
89,
-95,
-25,
83,
-115,
-117,
-119,
35,
-25,
-3,
-48,
59,
-9,
-29,
83,
98,
-42,
-109,
115,
-57,
-80,
-50,
-12,
-41,
76,
32,
74,
-43,
102,
72,
85,
92,
-58,
20,
-86,
-23,
-39,
64,
36,
122,
52,
79,
49,
-98,
114,
42,
20,
-57,
-83,
46,
111,
-83,
83,
49,
-120,
-123,
75,
4,
32,
36,
-100,
35,
-4,
24,
-104,
-75,
1,
-88,
115,
-90,
-125,
-9,
67,
-103,
8,
98,
99,
32,
69,
-25,
-20,
-72,
38,
-66,
-115,
-92,
-96,
24,
27,
65,
-105,
-99,
64,
0,
-92,
106,
-2,
76,
95,
108,
3,
-117,
-108,
-15,
-113,
36,
-98,
-121,
-49,
1,
50,
116,
-60,
-74,
93,
101,
18,
-97,
31,
-6
] |
McCulloch, C. J.
This is an action instituted by the plaintiff, C. Floyd Huff, against the defendant, J. H. Hall, to recover possession of an undivided one-third of a certain tract or lot of real estate in the city of Hot Springs, described as lot 1, of block 60, of the city of Hot Springs, as platted by tbe United States Hot Springs-Commission, and also to recover one-third of the rents and profits of said property.
Defendant demurred to tbe complaint, but it does not appear tbat tbe court ever ruled on tbe demurrer, and the defendant filed an answer, and also a cross-complaint, in wbicb be asked tbat bis title to tbe lot described in tbe complaint be quieted and tbat tbe instrument under which plaintiff claims an interest in the property be cancelled as' a cloud on bis title.
Conceding that the allegations of the complaint were not ¡sufficient to give the chancery court jurisdiction, the allegations .of the cross-complaint were sufficient for that purpose, ¡and the court having -assumed jurisdiction for .any purpose, it correctly proceeded to determine 'all the rights -of the parties in the ¡subject-matter of tbe controversy.
Plaintiff claims an undivided interest in the property for and during tbe -life of one B. P. Cooley, and bases tbat claim upon a contract or a deed executed to him by Cooley. Tbe property was owned by one Bina Cooley, a colored woman, who died in tbe city of Hot Springs in tbe year 1907, leaving no children surviving, and tbe title descended to her collateral heirs,
Defendant, J. H. Hall, acquired title by purchase from those heirs.
B. F. Cooley was formerly tbe husband of Bina Cooley, but tbe evidence shows that several years before her death, they were divorced by a decree of the chancery court of Garland County.
Bina Cooley left a considerable estate, composed of real estate in tbe city of Hot Springs, and -at tbe request of B. F. Cooley, tbe plaintiff became tbe administrator of tbe estate of said decedent and took possession of all the real estate and received tbe rents and profits.
Defendant purchased tbe interest of tbe heirs of Bina Cooley in and to the lot involved in this controversy, and commenced, in tbe chancery court of Garland County, an action against B. F. Cooley to cancel tbe latter’s as serted claim to a life estate by reason of being the surviving husband of Bina Cooley.
B. F. Cooley employed plaintiff, Huff, as an attorney, to represent him in that case, and in any other proceedings which might be instituted ‘ ‘ to recover any share or part of the.estate of said Bina Cooley,-deceased,” and executed to said plaintiff a contract or deed, whereby he conveyed to him an undivided one-third interest “in any and all property, of whatsoever kind or character, whether real, personal or mixed, that may be recovered for me from the estate of said Bina Cooley.” In the instrument executed by Cooley, plaintiff, Huff, was expressly authorized to bring suits and other legal proceedings in-connection with said estate, “to sue for and recover such property or to defend any suits in reference to the same; and to collect, receive, recover and receipt for any such property in or out of court as in his judgment may be necessary to settle said estaté,” and that “upon the recovery of any such property, I will promptly make him proper conveyance for one-third interest in accordance with this agreement.”
Plaintiff appeared for B. F. Cooley in the action brought against the latter by defendant, Hall, and assertód the claim of Cooley for a life interest in the property as surviving husband of Bina Cooley. While that cause was pending, a compromise was negotiated between the parties, the same being conducted by plaintiff, Huff, for his client, whereby it was agreed that Cooley should convey to defendant, Hall, his life estate in the lot involved in this controversy, but that said cause should proceed to final decree. Pursuant to that agreement, plaintiff, Huff, prepared, and his client executed, a deed, with full covenants of warranty, to defendant, Hall, whereby -he conveyed the life estate of B. F. Cooley in the property in controversy. That deed was executed on August 29,1908. The litigation, notwithstanding the conveyance, proceeded to a final decree, which was rendered on October 6,1908, whereby Cooley’s life estate as tenant by the cuptesy was declared. Plaintiff testified that the purpose-of Ms client in entering into tMs compromise and conveying Ms interest in tMs lot to defendant, Hall, was to induce the latter to “lay down” on the suit and permit a final decree to go so as to establish Cooley’s right to other property left by his former wife. Defendant, Hall, denied this, but stated that he was advised by Ms attorney that it would be better to let the suit proceed to final decree, notwithstanding the compromise.
The, testimony of defendant shows that there had been a decree for divorce of Bina Cooley from B. F. Cooley, rendered by the Garland Chancery Court several years prior to Bina Cooley’s death; that the decree was omitted from the record, but that subsequent to the commencement of the litigation just described the decree was entered mine pro time. This does not appear to have been denied, and it establishes the fact that B. F. Cooley was not entitled to a life estate in the property of Bina Cooley, and the court should not have so decreed if defendant had properly 'brought out the merits of that controversy. That, however, is not a matter that is material to the present suit, for this is not an effort to set aside the decree in the former litigation between B. F. Cooley and the defendant, Hall.
There is a serious conflict in the testimony, which we do not deem it necessary to attempt to reconcile, for our conclusion is that, even upon the plaintiff’s own statement of the facts, he is not entitled to recover anything, or to assert a lien against the property in the hands of defendant, Hall. The instrument executed to him by Cooley — call it either a contract or a deed of conveyance —does not purport to convey any particular property, but only an undivided third interest in whatever might be recovered in any litigation concerning the property belonging to the estate of Bina Cooley. The instrument amounts only to a sale and transfer, according to the terms of the statute then in force (Kirby’s Digest, $ 4457), of the causes of action of said B. F. Cooley in and to the property belonging to the' estate of said decedent. Plaintiff, therefore, under that instrument, was only en titled to one-third of whatever might he recovered. Now,, there was a decree in favor of Cooley whereby he recov-. ered a life estate in this lot, but, according to the testimony of the plaintiff himself, that decree was collusive and the subject-matter thereof was settled by compromise between the parties long before the rendition thereof. According to plaintiff’s own testimony, that suit was prosecuted to a final decree for ulterior purposes. So the recovery under that litigation was not the lot itself, but the consideration which passed from defendant, Hall, to Cooley, and since the plaintiff consented to the compromise he must, for obvious reasons, look to his client, and not to his client’s adversary, for his part of the recovery. The statute provides that “in case the plaintiff and defendant compromise any suit * * * where the fees or any part thereof to be paid to the attorney for plaintiff or defendant are contingent, the attorney for the party plaintiff or defendant receiving a consideration for said compromise, shall have a right of action against both plaintiff and defendant for a reasonable fee, to be fixed by the court or jury trying the case.” Kirby’s Digest, § 4457.
This statute, of course, is not intended to give a right of action where the cause of action is compromised with the consent of the attorney; and it is undisputed in this case that plaintiff, Huff, not only consented to it, but. that 'he actually negotiated the settlement for his client and prepared the deed.
Moreover, the statute does not, in ease of compromise without consent of the attorney, give a right of action to recover the contingent fee stipulated for in the contract. The measure of recovery in such case is “not a-speculative or contingent fee, but one that is reasonable, considering the importance of the litigation, the benefit secured by it, the amount and character of the attorney’s services, and his learning, skill and proficiency.” Rachels v. Doniphan Lumber Co., 98 Ark. 529.
There is considerable testimony in this case, and, as before stated, it is of a conflicting nature. Defendant, Hall, was, according to the testimony, interested in the property with his father, W. H. Hall, or, perhaps, the testimony establishes the fact that the title was merely taken in the name of defendant, Hall, for his father’s use. That is immaterial in this case. Other property of the estate of Bina Cooley was purchased by W. H. Hall, and there was a controversy between the parties as to other transactions and rights alleged to have grown out of them concerning the purchase of the other property by W. H. Hall.
Plaintiff’s contract with, or conveyance from, B. F. Cooley, was not filed for record until after Cooley executed the conveyance to defendant, Hall, and there is a controversy whether either of the Halls had information as to this contract. "We deem it immaterial whether they knew it or not, for it is not claimed that there was any express contract that either of the Halls should pay the plaintiff any fee for his services in representing Cooley.
We held in the case of Kansas City, F. S. & M. Rd. Co. v. Joslin, 74 Ark. 551, that actual notice of the existence of a contract with plaintiff’s attorney was sufficient to render the defendant liable for a reasonable fee, even though the contract was not filed; but, as we have already said, plaintiff was only entitled to one-third of the recovery in the original action, which was the amount received in the compromise, and this is so even though defendant had actual knowledge of the existence of the contract. Where the case was compromised, his only remedy was that of recovering a “reasonable fee,” according to the terms of the statute, and this even he is precluded from recovering by his participation in the compromise and his consent thereto.
The decree is, therefore, reversed, and the cause remanded with directions to dismiss the complaint for want of equity. | [
-16,
-8,
-95,
125,
56,
-32,
10,
-70,
75,
-93,
102,
95,
-87,
72,
12,
49,
98,
89,
85,
121,
-27,
-74,
82,
35,
-46,
-109,
-31,
71,
48,
-51,
-25,
-10,
76,
41,
-54,
29,
67,
66,
-59,
30,
-114,
1,
27,
64,
-55,
-56,
48,
63,
17,
11,
65,
-113,
-14,
44,
17,
65,
104,
44,
-3,
-87,
80,
-24,
-117,
21,
-3,
6,
33,
118,
-12,
1,
-54,
24,
-102,
48,
0,
-88,
115,
54,
-122,
-44,
79,
-115,
8,
38,
102,
3,
9,
-73,
-96,
-100,
47,
-70,
-115,
-90,
-32,
72,
75,
73,
-76,
29,
80,
-48,
-125,
124,
-18,
-123,
92,
108,
47,
-50,
-42,
-79,
7,
-76,
-99,
3,
-13,
3,
36,
112,
-49,
-94,
93,
71,
48,
-101,
77,
-7
] |
Hart, J.,
(after stating the facts). It is contended by counsel for appellant that the claim of appellees for the value of the curbing is barred by the statute of limitations. To sustain their contention they rely on section 5685 of Kirby’s Digest, which reads as follows: “Within thirty days after the passage of the ordinance mentioned above, the recorder or city clerk shall publish a copy of it in some newspaper published in such town or city for one time; and all persons who shall fail, to begin legal proceedings within thirty days after such publication for the purpose of correcting or invalidating such assessment shall be forever barred and precluded.”
The claim of appellees for the set-off is based on section 5689 of Kirby’s Digest, which reads as follows: “If, in the construction of sidewalks or making other improvement, any owner of taxable property in the district shall be found to have improved his own property in 'such manner that his improvement may be profitably made a part of the general improvement of the kind in the district being also as good as that required by the system determined upon by said board, the board of improvement shall appraise the value of the improvement made by the owner, and shall allow its value as a set-off against the assessment against his property. And in case the owner who has made such improvements shall be found to have failed- to come up to the required standard, the board may allow him the value of the materials thereof, so far as the same may be profitably used in perfecting the system aforesaid, as a set-off against the assessment against his property thus improved. In such cases the board shall issue to the owner a certificate showing the amount of set-off allowed, which certificate shall be received by the collector in lieu of money for the amount named therein charged against said property. ’ ’
It is manifest that section 5685 has no reference to the provisions of section 5689. Section 5685 provides a limitation for the purpose of correcting or invalidating assessments made against the property. Section 5689 has no reference to the action of the assessors. It provides the manner in which a property owner may be allowed compensation for an improvement made by himself which has been used by the board of commissioners in constructing the general improvement. At the time the assessment is made on his property, the property owner could not know whether or not the board of improvement would use in the construction of the general improvement an improvement which had already been made by him. That is, in the present case, appellee could not know at the time the assessment on his property was made whether or not the board of commissioners would use his curbing in constructing the general improvement in the district. He could not know this fact until after the board had determined whether or not it would use it. After he ascertained 'that the board did use the curbing which he had placed in front of his lot, he demanded of the board of improvement that it should allow him the value of his curbing. It is true that he did not make this demand of the board while it was in session, but he did make it to one or more members of the board, and the agreed statement of facts shows that the board declined to make any allowance to him for the value of his curbing, and so notified him. Thus it will be seen that appellee Trout did all that he could do to secure the allowance. It would have been useless for him to file a written application for such an allowance after the members of the board had refused to make it, and it is a maxim, of almost universal application, that the law does not require a vain and useless thing to be done.
In this respect the instant case differs from Board of Improvement District No. 5 v. Offenhauser, 84 Ark. 257. Here the claimant asked the board to make an allowance for his curbing. In that case, the claimant did. not ask the board to make him an allowance, and the court said he was not entitled to a set-off because he did not pursue the method pointed out by the statute. In other words, if the claimant does not ask for an allowance as required by the statute, he is not entitled to it, but if he • does ask the board for an allowance, and it is refused, he may present his claim as a set-off to a suit to'collect his assessment if done in apt time.
It is true that the latter part of section 5689 provides that the board shall issue to the owner a certificate showing the amount of the set-off allowed, which certificate shall be received by the collector in lieu of money for the amount named therein charged against said property. This is done for the convenience of the property owner and under the statute he can present it to the collector in payment of the taxes assessed against him just as county and State warrants may be used in the payment of taxes assessed by the county and State, respectively.
It does not follow, however, that because the board of commissioners refused to make the allowance that the property owner is deprived of the use of his claim as a set-off against the assessment sought' to be enforced against his property. Such holding would leave him entirely without a remedy in case the board of commissioners refused to make him an allowance.
It is insisted by counsel for appellant that appellee’s remedy to compel the board of improvement to make the allowance would have been by mandamus. We do not agree with tbem in tbat contention. Mandamus would have been tbe proper remedy, perhaps, to compel tbe commissioners to act on bis claim, but not to control their action on it.
In the instant case, the board of commissioners did act on bis claim and refused to allow it. Appellee then could present bis claim in an action brought against him, by the board to enforce collection of the assessment made on bis property.
Again, it is contended by counsel for appellant tbat appellee is barred by laches. “Laches, in legal significance, is not mere delay, but delay that works disadvantage to another. So long as parties are in the same condition, it matters little whether be presses a right promptly or slowly within limits allowed by law; but when, knowing bis rights, be takes no step to enforce them until the condition of the other party has in good faith become so changed tbat be can not be restored to his former state, if the right be then enforced, delay becomes inequitable, and operates as estoppel against the assertion of the right. Tbe disadvantage may come from the loss of evidence, change of title, intervention of equities, and other causes; but when a court sees negligence on one side, and injury therefrom on the other, it is a ground for denial of relief.” 5 Pomeroy, Eq. Jur. (3 ed.), section 21.
This quotation from Mr. Pomeroy was approved by this court in the case of Tatum v. Arkansas Lumber Co., 103 Ark. 251. The doctrine bad also already been defined in substantially the same language in the case of Earle Improvement Co. v. Chatfield, 81 Ark. 296.
Appellee Trout paid the assessments for the years 1908, 1909, 1910 and 1911, but refused to pay the assessment for the year 1912, and this suit was instituted for the purpose of collecting that assessment. A period of only four years bad elapsed, and there is nothing in the record to show that the condition of the parties bad been changed in the slightest degree during these four years. No disadvantage had come to appellants from the loss of evidence, change of title, intervention of equity, or from any other cause.
There is nothing in section 5689 from which it may be inferred that the set-off should have been used against the first assessment sought to be enforced against the property owner. In fact, but one assessment of bener fits is made against the property, but the payment thereof may be divided into a series of years.. The assessment is still one assessment. Therefore, had the certificate been allowed by the members of the board, it could have been used in the payment of the assessment for any year.
As we have already seen, the board refused to allow the claim of appellee and we do not think he has been guilty of any conduct that would be the ground of a denial of the relief asked by him. As said by Mr. Pomeroy, laches, in legal significance, is not mere delay, but is that delay which works disadvantage to another.
It follows that the decree will be affirmed. | [
-16,
122,
-36,
-18,
107,
-32,
26,
-104,
105,
-92,
-93,
95,
-17,
-62,
-107,
37,
-1,
109,
85,
42,
69,
-77,
99,
3,
-74,
-13,
-45,
95,
113,
109,
102,
85,
12,
48,
-54,
-75,
102,
75,
77,
92,
-122,
-89,
10,
77,
-7,
64,
52,
107,
110,
15,
49,
-49,
-77,
44,
16,
-57,
-88,
41,
73,
57,
-63,
-24,
-70,
13,
122,
5,
-79,
119,
-68,
67,
-56,
11,
-104,
61,
32,
-24,
115,
-74,
-62,
-20,
15,
-69,
-120,
100,
99,
0,
109,
-25,
-68,
-116,
46,
80,
-83,
39,
-111,
24,
74,
-123,
-73,
-34,
120,
4,
100,
126,
-26,
-124,
95,
108,
-121,
-122,
-108,
-111,
-33,
96,
-120,
-125,
-17,
-121,
18,
113,
-50,
-114,
94,
-28,
54,
91,
30,
-55
] |
Kirby, J.
Appellant was convicted of murder in the first degree on an indictment returned on January 21, 1910, which, omitting the formal parts, is -as follows :
“The grand jury of Logan County and Southern District, in the name and by the authority of the State of Arkansas,' accuse Will Garner of the crime of murder in the first degree, committed as follows: The said Will Garner, on the 15th day of October, 1909, in the county and district aforesaid, unlawfully, wilfully, feloniously, of his malice aforethought and with premeditation, did kill and murder one Floyd Springer by striking and beating him, the said Floyd Springer, in and upon the head and body of him, tire said Floyd Springer, with a club then and there held in the hand of him, the said Will Garner, from the effect of which wound he, the said Floyd Springer, then and there immediately died, against the peace and dignity of the State of Arkansas.”
The evidence in this case is voluminous and mostly circumstantial. The scene of the tragedy was a field belonging to Mr. Roberts, in Logan County, hard by a much-traveled public road and near the wire gate opening from the field into- the road. Floyd Springer, the deceased, Will Garner, the appellant, and O. P. Plamm were at work in the field on the day of the killing. Appellant went to the house for 'dinner for the deceased, and was seen returning between 12 and 1 o’clock, and rode into the field and about thirty yards from the gate, reached down and handed him a bucket containing the dinner. About 1 o’clock a witness saw the deceased and appellant near the gate, and no one else was there, and the horses appeared to be done eating. Mr. Hamm, who went from the field to his dinner, returned about 1 o’clock, and found appellant at the gate sitting by the horses that Springer had been plowing, which were still eating, and asked where Springer was. Appellant said he was gone off with two men to look at some land and told him to watch his team. Witness told him to take this team and go on to work, that it was after 1 o’clock.
About 3 o’clock Mr. Roberts returned and drove out into the field, and when Mr. Hamm came oitt to the end of the row and waited fill appellant drove out too, and asked him where Springer was, he said, “The last time I saw him he was standing over yonder” in a southwesterly direction from us. Mr. Roberts went down that way, and found Springer dead. His skull was crushed in on both sides, his breast considerably bruised, and some marks or little cuts on his throat and neck, all appearing to have been done with a stick or club, the little cuts with the end of it. He was lying on his back with his head on a rail, his hands across his breast, and his feet stretched out toward the west side by side. There were no signs of a struggle, and the blood ran down on the back of the head and neck — was scattered around in every direction from the body. A club or stick with fresh blood on it was found about fifty yards from the body in an old clay root. There was a bottle of morphine found on the body, but no money, and near it a paid note of Springer’s to Revi Green, who saw him tear off his signature and put it in his purse a day or two before when he paid it. The body was lying in behind a briar thicket and tree top, from where they were plowing, which was the only place nearby which would hide a man from view from the public road.
Will Garner, appellant, testified: I am 13 years old; will be 14 the 6th day of May; was born in 1896, at Memphis, Tenn.; left Memphis when I was about 4 years old. I came down here from Shawnee to work in the barber shop. I first met Mr. Roberts at the courthouse. He was appointed to defend me here at the last term of court. After that I went and stayed at his house for about two months; was there when Mr. Springer began to work for him on Monday. Mr. Hamm was working with us. I brushed in oats that morning. I left before the rest of them to get Mr. Springer’s dinner. I don’t recollect whether I met any one going from the field to the house or not. I took the dinner back to the field. When I got back to the field Mr. Springer was sitting down 'by the gate with, two men, whom J. did not know. He ate dinner, and I shucked corn for the horses. The men got up and looked around while he was eating-dinner, and he got up and walked off with them. He told me to watch the horses. They went around the branch, and turned the road. I don’t know how far they went. Finally they came back, and Mr. Springer went with 'them. I did not see him any more until I don’t know just how many minutes. Any way I laid down by a tree, and the horses went around the bend, and 1 saw Mr. Springer and the two men standing by them two racks of wood as I went to get the horses. I came back, and saw Mr. Hamm coming, and the men passed there with a bale of cotton and another man. I did not see Mr. Hamm walking back about this time. I did not see Mr. Springer any more until Mr. Roberts came down there and found him dead. At that time I was plowing. Mr. Hamm asked me where Mr. Springer was, and I told him, and he told me to take his team and come on and plow with it, and I did so. When Mr. Roberts came, I told him that Mr. Springer had gone off with the two men. I did not go to the body until Mr. Roberts called me and iMr. Hamm. Then I went with Mr. Hamm. I did not know he was dead until Mr. Roberts called me. Mr. Roberts told Mr. Hamm and I to stay there until he went to town, and we did so; never done anything but stayed there until 4 or 5 o’clock, and then I took the team out and carried them to the house. I heard Mr. Jones and Mr. McConnell say that that little negro was as liable to do it as any ¡body.”
The other circumstances tending' to connect appellant with the killing were a speck of blood spattered on his cheek and a few specks on one pants’ leg and perhaps a drop on his shoe and six half dollars that were found concealed in his shoe the next morning. Springer was shown to have been paid five dollars in half dollars a few days before the killing, and to have had some silver in his purse when he put the paid note in it after tearing off his signature. Mr. Hamm saw appellant tying his shoe when he put him to work after 1 o’clock, and another witness saw him about 2 o’clock “sitting over on his plow or by it working with his shoe some way,” the day of the killing. Appellant made contradictory statements about how he came by the money, and was contradicted by people from whom he claimed he got it.
The court instructed the jury orally and fully on murder in the first degree, without objections or exceptions, after giving first the following instruction:
“1. If the accused is between the ages of 12 and 14, the presumption is that he is incapable of crime, and the burden is on the State to prove that he has mental capacity enough to know right from wrong in relation to the offense charged. This may may be done by circumstantial evidence, as well as by direct evidence. If over 14 years of age, defendant is presumed to be capable of committing crime. The age and capacity of defendant to commit crime is for the jury to determine. If defendant is answerable to the law, then the law of the case is as follows :” etc.
The judge wrote in the bill of exceptions: “The defendant from appearance might be judged to be from 17 to 18 years old ar time of trial, and jury might so have found.”
The bill of exceptions recites further: After the jury had been out deliberating, they came in and asked the judge if they could convict the appellant of murder in the first degree, and give him a life sentence. The court told them that they could not do this, but that they might convict of murder in the second degree, and fix the punishment in the penitentiary not to exceed twenty-one years.
“Shortly afterwards the court, while the jury was out deliberating, was at recess, and Governor Donaghey was speaking in the court room, and the jury-bailiff informed the judge that the jury desired to report. They were advised that they would be sent for as soon as the speaking was over. Before it was finished the sheriff asked the judge to be excused, that the defendant was about to make a confession, and returned shortly and informed the judge that he had made a confession. The judge directed the sheriff to ask him if he desired to make the statement to the jury, and, being informed that he did, then the judge told the sheriff to inform -the jury that he would send for them soon, and not to report until sent for. When Governor Donaghey finished speaking, the court resumed 'business, and the jury came, and the defendant “and defendant’s counsel were called, and were present during part or all the subsequent proceedings.”
Defendant was informed -by the court that he understood from the sheriff that defendant wanted to make an additional statement to the jury. Defendant said he did, and was told he might do so, but to make no statement but the truth. He stated in substance: “That he was the one who did the murder; that no one helped him; that no men passed; that Springer went to sleep after eating his 'dinner, and defendant was taking Springer’s money from Springer’s pocket, and Springer waked up and accused defendant of it. Defendant denied it, and they jawed a little, and defendant struck Springer in the head with a club shown on the trial. At this time Springer was raising up a little and fell back, and defendant struck him again a time or two with the club, killing him, and that Springer’s head was on the flat rail shown in evidence at the time he was asleep, and fell back on it- when first struck with the club.” No question was asked defendant by any one, except the judge asked about the club and the rail and the position Springer was in when asleep and when struck.”
Counsel for appellant was present at this time, and made no objection and saved no exception, and Mr. Roberts, one of the counsel, stated in open court that he was glad that at last the truth of the matter had come out; that he had tried to get to the .truth, but had not been able to do it.
Mr. Roberts, of counsel for the appellant, in closing the case to the jui-y, turned to -the defendant, and, addressing- him, told him he (Roberts) never expected to have anything more to do with him; that he never wanted to speak to defendant, or defendant to -come in to his presence, no matter what was done in the case, and bade the defendant, in the presence of the jury, court and spectators, a tragic good-bye. This was before the case was first given to the jury.
The following statement is also made in the bill of exceptions by the judge:
“The attorneys having been assigned by the court to defend Garner, and having performed that duty ably, and bidden the defendant good-bye, the court did not feel it .necessary to inform them or State’s counsel that defendant, in his own person, wished to make an additional statement to the jury.
“The statement of the defendant to the jury was, so far as the court could see and know, free and voluntary, and the result of the strain that he had undergone in the trial and the good-bye of Mr. Roberts. The jury retired, and afterward returned into court a verdict, convicting of murder in the first degree. No information that any other verdict was ever agreed on was had by the court, and no other verdict was any time brought into the court or offered to it.”
After further deliberation, .the jury returned into open court a verdict of guilty of murder in the first degree, and on the next day the court passed sentence upon the said defendant, and adjourned until July 30, 1910, and defendant appealed.
The appellant was convicted of a capital offense. No objection was made to the instructions given, and only two objections to the introduction of testimony, and no error was committed in overruling them. Was any error committed by the trial court prejudicial to the rights of appellant that is required to be heard or considered by this court by the act of May 31, 1909, that calls for a reversal of the case?
We think so. Our Constitution guarantees the right of every person on trial charged with a felony “to be heard by himself and his counsel,” and the statute requires the court, if he foe unable to employ, to assign him counsel, at his request, to conduct his defense. The record shows appellant was duly assigned counsel to defend him, but that Mr. Roberts, of counsel for the appellant, in closing the case to the jury, turned to the defendant, and in addressing him told him he (Roberts) never expected to have anything more to do with him; that he never wanted to speak to defendant, or defendant to come into his presence, no matter what was done in the case, and bade the defendant, in the presence of the jury, court and spectators a tragic good-bye.
After this good-bye and after the jury had deliberated on appellant’s case a night and till noon next day, and returned into court and been instructed that they might convict of murder in the second degree and fix the punishment not to exceed twenty- one years in the penitentiary, and retired again and notified the court that they were ready to return a verdict, the court, having had information of -the confession by the appellant, advised them not to report till sent for. Appellant was then brought into court, and allowed to make the confession after being asked by the court if he wished to make a statement and being told to make no statement but the truth. -
“The attorneys having been assigned by the court to defend Garner, and having performed that duty ably, and bidden the defendant good-bye, the court did not feel it necessary to inform them or State’s counsel that defendant, in his own person wished to make an additional statement to the jury.”
Surely this was appellant’s time of greatest need for counsel “to conduct his defense;” but so effectually had they bidden him good-bye that the court concluded their duty discharged, and did not regard it necessary to advise them that he was going to make a confession. He had them called, however, and the record says they were “present a part or all the time” thereafter. After the confession was made, “no question was asked defendant by any one except the judge about the club and the rail and the position Springer was in when asleep and when struck.” The record recites again: “Counsel for appellant was present at .the time, and made no objection, and saved no exception, and Mr. Roberts, one of the counsel, stated in open court that he was glad that at last the truth of the matter had come out; that he had tried to get the truth, but had not been able to do it.” This is the same Roberts, who abandoned the defense in so tragic a manner, now lending his emphatic indorsement to the truth of the confession without in any way trying to discover what means had been used to secure it and whether it was voluntarily made. The most that the record discloses is that appellant’s counsel appeared after the confession was made and before the judge finished questioning him about the manner of the killing.
It is true the record recites that “the statement of the defendant to the jury was, so far as the court could see and know, free and voluntary, and the result of the strain that he had undergone in the trial and the good-bye of Mr. Roberts.” But it also shows no counsel was there to advise him as to whether improper means and inducements had been used to obtain it,' and whether it was voluntarily made, and that the court asked but one question, whether he wished to make a statement, which could not have disclosed the fact. If appellant’s statement that he would not be 14 years of age till May is true (and it is only contradicted by the judge’s opinion that he appeared to be 17 or 18 years old at the time of the trial), the law presumes him not criminally responsible, and that presumption prevails until the evidence clearly establishes that he understood the nature of the offense charged and its consequences. Under our law a minor can not choose his guardian, even with the consent of the court, till he is over 14 years of age, and the courts are required to guard with jealous care and protect an infant when his property is involved, and will it permit them to 'be less careful when his life is at stake? We think not.
It was within the discretion of the learned trial judge to permit the introduction of further testimony after the case was closed and given to the jury and before they had delivered their ■verdict to the court, and we find no abuse of this discretion.
The infant defendant was entitled to have his counsel present "to conduct his defense” and ascertain before its admission whether the confession was voluntarily made, without which it is not probable the jury would have rendered the verdict they did. He did not waive this right when the court asked him if he wished to malee a statement to the jury by answering that he did. The court made no effort, other than this question, to ascertain whether the confession was voluntary, and its admission under the circumstances in the absence of appellant’s counsel was error and highly prejudicial. The case is reversed and remanded for a new trial. | [
-80,
110,
-68,
61,
40,
-32,
42,
56,
-38,
-31,
-10,
90,
77,
-36,
69,
49,
106,
77,
85,
105,
-26,
-73,
91,
-64,
-102,
-13,
-55,
-57,
49,
-52,
-66,
-12,
73,
16,
74,
89,
-93,
106,
-31,
28,
-122,
0,
41,
-16,
91,
-64,
60,
47,
54,
31,
33,
-66,
-69,
42,
53,
-63,
109,
124,
-35,
-82,
64,
72,
-62,
69,
-18,
22,
51,
-94,
-105,
3,
120,
60,
-36,
53,
64,
-20,
83,
54,
-128,
-44,
105,
-119,
12,
98,
102,
49,
93,
13,
40,
-103,
47,
62,
-119,
-89,
-104,
64,
3,
9,
-106,
29,
123,
116,
-118,
-18,
-31,
-52,
25,
120,
2,
-49,
-108,
-95,
-121,
100,
-42,
58,
-53,
29,
52,
114,
-115,
-26,
95,
-92,
114,
-101,
-121,
-47
] |
Hart, J.
Appellant prosecutes this appeal to reverse a judgment against it in favor of appellee for damages received by him while in the employ of appellant and alleged to have been sustained on account of the negligence of appellant.
In June, 1909, appellee was employed at the sawmill of appellant as off-bearer, that is he bore slabs away from the saw. The mill was shut down, and the mill foreman told appellee to lower the shafting. This was done by unscrewing the bars from the bolts and lifting the bolts off. While engaged in unscrewing the nuts, he stood on a plank two inches thick by ten inches wide. The plank.was resting on the beams which cross the mill. The beams were twelve by twelve inches. The planks were on a level, were laid lengthwise, and were 14 feet from the floor. They were supposed to meet on the heavy timbers. Appellee had taken all the nuts off except one; and when he went to step on the. plank that runs along for a man to walk on, it dropped out from under him, and appellee fell to the floor, his feet striking first. 'There was fine sawdust and filings on the plank which fell with appellee from about one-half to one inch thick. Appellee states that this was his first trip up to the slasher scaffold. That be did not put the planks there, and does not know who did. That he does not know how many were laid across the joists. That they were not nailed to the joists. Appellee states that he discovered this fact by examination made sometime after he was injured, but also states that it was not customary to nail the planks to the joists. That he was doing this work at the ■direction of his foreman.
The foreman also testified that he was present and directing appellee about his work when he fell. That he was on a scaffold up under the slasher unscrewing some nuts, and while so engaged the scaffold gave way, and he fell to the floor about 14 feet. That the plank which fell with him was already there and was not placed there by appellee. Appellee also adduced evidence tending to show the character and extent of his injuries, and that they were permanent. No complaint is made that _ the verdict is excessive, and it is not therefore necessary to more particularly describe the extent of appellee’s injuries.
Appellant adduced evidence tending to show that the plank or scaffold which gave way with appellee and caused him to fall was not there when he began the work, but was placed there by himself.
It is first insisted by counsel for appellant that the judgment should be reversed because the court erred in giving the following instruction:
“While it is true that the plaintiff assumed all the risks that were ordinarily incident to the service in which he was engaged, yet he did not assume the risk of any negligence on the part of the defendant or employees. In the absence of knowledge on his part, the plaintiff had the right to presume that the defendant had performed the duties that devolved upon it. One of the duties imposed upon the defendant by law was to exercise ordinary care to provide a reasonably safe scaffold for the plaintiff to work on. A master is bound to exercise ordinary care in .furnishing a safe place to his servant to work on, whether it is of a simple character, or whether it is dangerously situated. Therefore, if you find from the evidence that the plaintiff’s injury was caused by the unsafe scaffold furnished by the defendant on whicih to work, and that plaintiff did not know of its unsafe condition, you will find for the plaintiff.”
They contend that this instruction “ignores altogether the question of whether appellant was negligent in furnishing appellee an unsafe scaffold, and places liability on appellant merely on proof that appellee’s injury was caused by the unsafe scaffold.” That “it is framed in a recital form, so that the conclusion of the instruction is erroneous in assuming that the scaffold was unsafe.” It will be noted, however, that the first part of the instruction told the jury that appellant was only required to exercise ordinary care to provide a reasonably safe scaffold for appellee to work on. Moreover, the court gave numerous instructions at the request of appellant, and in fact gave all instructions asked for by appellant except two, which will be noticed hereafter. In these instructions the jury was told that no presumption of negligence arose from the happening of the accident; that appellee must prove that his injury resulted from the negligence of the appellant, and that such negligence was the proximate cause of the injury; that the appellant only owed the duty to exercise ordinary care to provide a reasonably safe place for appellee to work. The doctrines of assumed risk and of contributory negligence were fully covered; the jury were told that if appellee placed the plank or scaffold which fell under him, he could not recover, and the instructions, when considered as a whole, covered every phase of the case, and were so complete that we can not see how the jury could have been misled by the language in the latter part of the instruction. There was only one disputed question of fact in the case, and that was whether the appellee provided his own scaffold, or whether it was already there when the foreman directed him to unscrew the nuts. From the instructions given at the request of appellant, it is perfectly apparent that, had the court’s attention been directly called to the defect in the latter part of the instruction, such defect would have been corrected.
In the case of St. Louis, I. M. & S. Ry. Co. v. Rogers, 93 Ark. 564, the court recognized the rule of this court that where instructions are conflicting and it is impossible for an appellate court to tell which of them the jury followed, the judgment should be reversed, but said: “There are, however, cases, as we conceive, not inconsistent with this rule, where we have held that the law of the case can not be stated in one paragraph or instruction, and that, though the instructions given may be apparently conflicting, if from the language used or the relation which the instructions are made by the whole charge to bear toward each other it is readily seen that they are to be read together without conflict and as a harmonious whole, and they can be so read, then it is our duty to so treat them.” To the same effect: Kruse v. St. Louis, I. M. & S. Ry. Co., ante p. 137.
When tested by this rule in the light of the facts and circumstances in this case as detailed above, we fail to see how any prejudice could have resulted to appellant. See, also, St. Louis, 1. M. & S. Ry. Co. v. Barnett, 65 Ark. 255, 259, that a general objection was insufficient. The court held:
“The giving of an instruction to the effect that it is the duty of a railroad company to keep its station platform in safe condition for the use of passengers is not cause for reversal where no specific objection was taken to the court’s failure to limit or explain the meaning of the term ‘safe.’ ”
2. Counsel for appellant insist that the court erred in refusing t’he following instruction:
“(11.) You are further told that the plaintiff, by entering the employment of the defendant and engaging in the work of holding the taps of the bolts with a wrench, assumed the ordinary risks and dangers incident thereto, so far as they were known to him and also so far as they could have been known to him by the exercise of ordinary care and prudence; and if you believe from the evidence that the plaintiff at and prior to the fall which injured him knew that the plank was too short, or that it was not securely fastened, or that it was not fit for use as a scaffold, or if he could have known that it was too short, or that it was not securely fastened, or was not fit for use as a scaffold, by the exercise of ordinary care and prudence upon his part, then the plaintiff cannot recover, and your verdict should be for the defendant.”
We cannot agree with them. In the case of Southern Cotton Oil Co. v. Spotts, 77 Ark. 458, the court said: “When acting under the direct commands of the master, before the servant can be said to have assumed the risk, it must be found that he knew of the danger and appreciated it. It is not correct to say, in the language of the instruction just quoted, that ‘he is chargeable with knowledge of such dangers as he might have known and comprehended by the exercise of ordinary care,’ and assumed all the risk incident to the service he was performing. The instruction would have been applicable to a state of fact where tne servant was proceeding in the discharge of his regular duties in the ordinary way, but not where he was proceeding under the command of his master, and in the face of a danger not incident to his ordinary duties.”
In the case at bar, the testimony on the part of appellee shows that he was not doing his ordinary work, but was performing a special task under the direction and supervision of his foreman. The instruction was erroneous in ignoring this feature of the case.
For the same reason there was no error in refusing instruction No. 16.
3. It is urged by couns'el for appellant that the court erred in its .instruction on the measure of damages. The instruction is as follows:
“(3.) If you find for the plaintiff, in assessing his damages you may take into consideration his pain and suffering, both mental and physical, caused by the injury, if any is proved; his probable future suffering as a result of the injury, if any future suffering appears from the evidence to probably result from the injury; his expenses for medical attendance caused by the injury, if any are proved; his decreased earning capacity caused by the injury, if any is proved; his loss of time caused by the injury, if any is proved; and any disfigurement- to his person caused by the injury, if any is proved.”
In cases where the injury is permanent, future suffering may be taken into consideration by the jury in fixing the .amount of damages. Railway Co. v. Dobbins, 60 Ark. 481; St. Louis, I. M. & S. Ry. Co. v. Waren, 65 Ark. 619.
In the case at bar appellee testified that he was 45 years old; that he could not stand on his injured foot for any length of time without suffering pains in his back and hips; that the more he uses it, the greater the pain is. The same physician who examined it six months before the trial testified that he had examined the injured foot two days before the trial. After, stating in detail the injury to the foot, he said that the heel bone had been driven up between the bones of the leg and widened out; that the ankle would never be as good as it was before the injury; that he could not -say to what extent the injuries would be permanent. In conclusion, he stated he did not think the foot of appellee would ever get back to its normal condition.
The defect of verbiage in the instruction should have been met by specific objection. That is to say, while the word “probable” should not have been used in connection with future suffering, because the jury must find from the evidence that he would suffer in the future on account of his injury being permanent, according to the rule of St. Louis, I. M. & S. Ry. Co. v. Barnett, supra, a specific objection should have been made, and the quotation we have heretofore made from the case applies here.
It was competent for the appellee to testify that he was a sawyer, and had been promised that position by appellant when a vacancy occurred, and that this - position carried with it an increase of salary; that, owing to his-injuries, he could not now perform the duties of a sawyer. This was a proper element of damages. Railway Co. v. Sweet, 60 Ark. 550.
4. It cannot be said that the verdict is without evidence to support it. It was the duty of appellant to exercise ordinary care to furnish appellee with a reasonably safe place to work. At the time he was injured, appellee was working under the direct command and supervision of his foreman. The plank which fell with him had been placed there by the directions of appellant to be used for the very purpose for which appellee was using it when he was injured. The planks were covered with fine sawdust, and the jury might have found, as their verdict shows they did find, that the fact that the plank did not extend to the joist was hidden from appellee, and made the question of negligence one for the jury. If the plank only extended to the joist, however close, and was not laid upon it, it is evident that it would fall as a person walking on it approached the end which was not supported by the joist. See Vulcan Construction Co. v. Harrison, 95 Ark. 588; Southern Cotton Oil Co. v. Spotts, supra.
We think the case was fairly tried and submitted to the jury under proper instructions, covering every phase of the case, and the judgment will be affirmed. | [
-112,
122,
-100,
-115,
10,
-30,
106,
-104,
113,
-123,
39,
-45,
-1,
-57,
77,
103,
-75,
125,
117,
59,
84,
-77,
87,
-53,
-42,
-77,
-13,
-108,
-72,
110,
-26,
124,
12,
112,
66,
-43,
-30,
-128,
-51,
92,
-124,
-124,
-86,
-22,
17,
96,
56,
-66,
124,
75,
33,
-98,
-5,
40,
20,
-49,
12,
44,
107,
61,
112,
-7,
-110,
13,
79,
16,
-95,
6,
-100,
1,
-40,
60,
-104,
-79,
0,
-23,
114,
-76,
-127,
116,
11,
-117,
8,
98,
98,
32,
93,
-89,
56,
-8,
46,
-2,
-99,
-89,
-127,
56,
91,
41,
-82,
-99,
122,
20,
54,
126,
-28,
92,
93,
108,
-125,
-121,
-12,
-77,
-49,
96,
-98,
-101,
-21,
-123,
50,
113,
-34,
-94,
94,
37,
115,
31,
-121,
-21
] |
Kirby, J.
This is an action in replevin for the recovery of a bay mare alleged to be the property of appellee. The affidavit was in the usual form. Appellant, denied all the allegations of the complaint and affidavit, and claimed ownership and right to possession of the property.
The evidence tended to show that Mrs. W. E. Hammock raised the mare from a colt, and that she acquired the mother of the colt by swapping an old horse given to her by her mother, and that she always claimed to own and did own her; that her husband, without any authority and without her knowledge, traded the mare in controversy to Rick S'pann for a horse and $25, and that appellant’s husband traded for her that day. No offer of restitution or return of property was made with the demand for the possession of the mare, and 'the delay in bringing suit was claimed to be due to the fact that appellee did not know where the mare was, although she lived within a few miles of appellant. There was an attempt to show such a course of conduct of Mrs. Hammock in permitting her husband to use and deal with the mare as would constitute him her agent. J. W. Hammock, her husband, was permitted to testify over the objection of appellant, not to any question of agency, but that he was induced to take a 'drink by Rick Spann and became so drunk that he was utterly incapacitated to attend to business, and knew nothing whatever about the trade.
The court, among others, gave, over appellant’s objection, instruction No. 7, as follows:
“7. If you believe from the evidence in this case that the plaintiff’s husband was so drunk at the time of the alleged swap with Spann that he did not know what he was doing, then plaintiff would not be bound, even if you should find that he acted as the agent of the plaintiff; but if you find that he was her agent, then it would be her duty to offer to make restitution of the property received, before she can recover in this case.”
The jury returned a verdict for plaintiff, and defendant appealed.
The instruction, while it may be correct as an abstract proposition of law, should not have been given, as there was no evidence upon which to base it. Appellant did not even -claim to have offered to make any restitution of the property, and her theory of the case was that her husband was without authority to trade the animal, and that no offer to return the porperty secured by him was necessary on her part.
It was error to permit her husband, J. W. Hammock, to testify, as she claimed he had no authority to and did not act as her agent in making the trade, and there was no ratification of it shown. The husband is allowed to testify for the wife only in regard to any business transacted by him for her in the capacity of agent. Kirby’s Digest, § 3095, subdiv. 4.
We can not say that these errors were not prejudicial, and the case is reversed and remanded for a new trial. | [
114,
118,
-128,
61,
72,
-32,
42,
-72,
-61,
-115,
119,
-45,
-117,
-62,
0,
51,
-30,
-19,
81,
105,
-42,
-77,
87,
-46,
-14,
-46,
-47,
79,
-75,
78,
-32,
119,
69,
48,
-54,
85,
66,
-118,
-63,
88,
-114,
1,
27,
-19,
-39,
-40,
56,
107,
20,
75,
97,
-114,
-21,
44,
61,
-49,
105,
46,
107,
45,
-56,
97,
-69,
5,
123,
6,
50,
118,
-68,
33,
-40,
110,
-100,
17,
1,
-7,
114,
-74,
-118,
116,
72,
-119,
8,
98,
107,
33,
69,
-23,
-124,
-116,
47,
126,
28,
-90,
-48,
64,
107,
105,
-74,
-99,
80,
-112,
37,
124,
-5,
-39,
29,
104,
2,
-49,
-106,
-77,
15,
36,
-100,
13,
-29,
-73,
31,
117,
-35,
-24,
92,
69,
50,
-101,
-113,
-14
] |
McCulloch, C. J.
This is an action to foreclose a deed of trust conveying certain lands in Jackson County, Ark., in trust to secure the payment of a debt evidenced by a note for the sum of $1,200 executed by A. J. Bell to Geo. C. Griffith. E. R. Wynne, the trustee named in the deed, joins Griffith in the action, which is instituted against Bell and his wife and Chas. E. Robinson, the trustee of his estate in bankruptcy. Plaintiff claims an indebtedness of $850, being the alleged unpaid balance due on the note after crediting it with the sum of $350. The trustee, Robinson, filed answer admitting that the sum of $400 is due on the mortgage and no more. And he also filed a cross complaint against Griffith claiming an indebtedness of the latter to Bell for the purchase price of a lot of piling amounting to more than the balance due on said mortgage debt, and he prayed for a decree against Griffith for the balance. The court on final hearing found in favor of plaintiff in the full amount claimed, and rendered a personal decree against Bell, and also decreed foreclosure of the trust deed.
There is a sharp conflict in the testimony. This much, however, is undisputed: Bell executed the note and trust deed to Griffith to cover a loan of $1,200 to be made to Bell to enable him to purchase a certain tract of land. Griffith was to get the money for Bell, but failed, and let him have only $400 at the time of the purchase of the land, promising to let him have the balance later.
Griffith testified that, in addition to the $400 paid to Bell in cash, he transferred to the latter a tract of standing timber, for which the latter agreed to pay him $450 by having it charged on the mortgage debt. He testified that one Coates first applied to him for the purchase of this timber, but that he declined to sell it to Coates, and told him that if Bell wanted to buy the timber he would sell it to him and credit the price, $450, on the amount which he was to advance to Bell on the loan secured by the mortgage; that afterwards he found Coates cutting the timber and took steps to prevent it, but that Bell called him up over the telephone and expressly agreed to pay for the timber, and that thereupon he sent him the papers transferring the timber. He also testified that subsequently he offered to send Bell a check for $350 to make up the amount of the $1,200 loan, but that the latter instructed him to credit it on the loan, which he did, thus reducing it to the amount claimed in the action.
Bell denied in his testimony that he agreed to pay $450 for the timber, but testified that he sold and delivered to Griffith a lot of piling for which he had not been paid, amounting to the price of $647.91. Griffith denied owing anything for piling except possibly four or five sticks, which had been branded by his agent but which had not been delivered. He testified that he furnished Bell a statement which was correct, and paid him $581.66, the amount of balance due on account. There was some corroboration of the testimony of each party, but we are of the opinion that the finding of the chancellor is not against the preponderance of the testimony.
Defendants insist that the sale of the timber and Bell's alleged agreement to pay the price is within the statute of frauds. The testimony is to the effect that Griffith transferred and delivered to Bell some kind of a writing concerning the sale of the timber, the precise nature of which is not shown in the abstract. We must assume, in the absence of a showing in the abstract, that the writing was sufficient to satisfy the statute of frauds, But, if that be not so, the statute is satisfied by the delivery of the timber to Coates and the agreement of Bell to pay the price, which was charged on the mortgage debt. Coates was, according to the testimony, in possession of the timber, cutting it, and Griffith, on the faith of Bell’s promise to pay, dismissed an action which he had instituted to stop Coates from cutting until the price should be paid.
Finding no error, the judgment is affirmed. | [
80,
121,
-80,
-84,
10,
-96,
10,
-102,
89,
35,
99,
-45,
-21,
6,
24,
41,
-26,
29,
97,
104,
69,
-74,
55,
65,
-45,
-77,
81,
-51,
-79,
95,
-28,
-41,
72,
56,
-38,
93,
-62,
0,
-51,
28,
-98,
-121,
-117,
100,
-39,
64,
48,
43,
84,
11,
117,
62,
-13,
42,
29,
106,
72,
44,
107,
9,
80,
-8,
-70,
4,
95,
23,
1,
102,
-104,
3,
64,
110,
-112,
53,
-120,
-72,
122,
-74,
6,
84,
11,
-99,
12,
102,
102,
32,
100,
-17,
-80,
8,
14,
-106,
-107,
-89,
-64,
72,
3,
105,
-106,
-99,
92,
24,
86,
-10,
-29,
-116,
28,
108,
5,
-49,
-44,
-125,
29,
124,
-108,
11,
-13,
51,
36,
97,
-49,
-30,
92,
71,
58,
-101,
-114,
-11
] |
McCulloch, C. J.
Appellees sued appellant to recover on an oral contract of fire insurance, alleged to have been entered into between them and appellant’s agent a't Prescott, Ark., whereby a certain building and furniture therein were insured against damage or destruction by fire. The policy was not issued, but Blakely, one of appellees, testified that appellant’s agent agreed to insure the property in the amount named for a stipulated premium, and to issue a policy in accordance with said agreement. The agent was the cashier of a bank where appellee had money on deposit, and it was the custom of the agent to issue policies to his patrons and present bills for the premiums on the first day of the succeeding month. No question is -raised in this case as to the failure to pay the premium, nor -is there any question raised as to the authority of the agent to i-ssue policies for appellant or to bind appellant by an oral contract of insurance.
The building which was the subject of the alleged contract of insurance was -a church house. It had been completed except putting in the windows and doors, which were to be placed in the building in a few days so as to complete it. The pews and furniture, which were also insured, were in the building. Appellees had a policy of builder’s -risk insurance in another company, which expired on March 24, 1908, and on that date they applied to appellant’s agent for a regular policy. The evidence shows that the rate was $1.50 per annum for builder’s risk insurance and $1.25 per annum for a regular policy.
Blakely testified that Reagan, the agent of the company, first stated that he would not write regular insurance until the doors and windows were put in, but would give him a builder’s risk policy at the higher rate; that he told the agent he could get a regular policy elsewhere, and that the agent then agreed to issue the regular policy. Mr. Reagan testified that he did not agree to write the policy, but took a memorandum of the amount of insurance, etc., and agreed to write the policy as soon ■ as Blakely let him know that the windows and doors had been put in the building. This conflict in the testimony must, of course, be treated as settled by the verdict of the jury.
During the course of examination of Mr. Reagan as a witness, appellant’s counsel offered to propound the following question, which the court on objection of appellees excluded: “What was your instruction from this particular company, and what was your authority to issue a policy on an uncompleted building, as this was, or did you have any ?” The witness was not permitted to answer, and it it not shown here what the answer would have been. No offer was made to prove any specific fact by the witness in response to the question. This court reverses only for prejudicial errors, and, unless prejudice be shown, an erroneous ruling miust be treated as harmless. In order to obtain a review of the ruling of a trial court, it must be shown what the testimony was, or at least an offer must be made to prove certain material facts; otherwise we might reverse a case on account of the refusal of the court to permit a question to be propounded which would not have elicited any material fact. Meisenheimer v. State, 73 Ark. 407; Boland v. Stanley, 88 Ark. 562; Aetna Indemnity Co. v. Little Rock, 89 Ark. 95.
But, even if it had been shown by the witness that his instructions were to issue regular policies only on completed buildings, that would not have availed appellant anything as a defense to this action. The agent in question was authorized to enter into contracts of insurance — to issue regular policies and builder’s risk policies, the only difference, so far as this case is concerned, being the slight difference in the rate of premium. The building was nearly completed, would be so in a few days; and if the agent with full authority to issue policies saw fit to waive the incompleteness of the building and the difference in the premium, and entered into a contract for the issuance of a regular policy, the company is bound, notwithstanding the violation of instructions. People’s Fire Ins. Ass’n v. Goyne, 79 Ark. 315.
It is argued that the 'contract was too indefinite to be enforced, in that it failed to state the length of time the policy was to continue. Blakely testified that the premium was to be $1.25 per thousand. If we can not infer that the agreement was for an annual policy, we certainly must assume that it was for a period of time long enough to carry it beyond the date of the fire, which occurred three days after the insurance contract was made.
In a very similar case where the point was made, no time having been agreed on but that the parties having spoken of the premiums as so much per cent., without adding “per centum,” Mr. Justice Bradley, delivering the opinion of the Supreme Court of the United States, said: “We think it perfectly manifest, from ail the evidence taken together, that the parties meant and intended an insurance for a year, and had nothing else in their minds. This is the inference to be drawn from all their conduct, conversations and correspondence; and we should be sticking in the bark to ignore it.” Evans v. Home Ins. Co., 94 U. S. 629.
The instructions correctly submitted to the jury the question whether or not the agent of the company entered into a contract with appellees for the insurance of the property for a definite time oh the specified terms. The refused instructions were fully covered by those given, and we find no error. Affirmed.
Hart, J., concurs in the judgment. | [
-80,
125,
-16,
-83,
8,
32,
120,
26,
95,
-95,
-91,
91,
-23,
-58,
4,
71,
-10,
121,
69,
104,
-106,
-93,
23,
2,
-46,
-65,
-45,
-59,
-79,
91,
-12,
-9,
64,
40,
-54,
85,
-94,
74,
-59,
28,
-50,
-124,
-120,
-20,
-39,
80,
48,
123,
84,
75,
33,
-105,
-45,
42,
21,
-53,
45,
46,
107,
-87,
-15,
-15,
-117,
13,
127,
21,
-95,
103,
-102,
5,
-24,
14,
-104,
53,
16,
-8,
115,
-90,
-122,
100,
111,
-119,
-120,
102,
102,
32,
41,
-17,
-21,
9,
39,
-114,
-99,
-91,
-78,
89,
42,
13,
-73,
29,
112,
0,
5,
120,
-16,
-36,
29,
108,
1,
-113,
-44,
-77,
-21,
126,
-99,
-125,
-1,
3,
39,
113,
-49,
-96,
92,
79,
122,
-101,
14,
-51
] |
LARRY-D. VAUGHT, Judge
| í Appellant Eugenia Robinson appeals the September 20, 2016 order of the Union County Circuit Court terminating her parental rights to her two children, D.R. and J.R., ages two and a half and ten months, respectively. Pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6—9(i) (2016), Eugenia’s counsel has filed a no-merit brief and a motion to withdraw, alleging that there are no meritorious grounds for appeal. After a full examination under the proper standards, we hold that counsel provided a compliant no-merit brief demonstrating that an | ?,appeal would be wholly without merit and that counsel’s motion to be relieved should be granted.
The Department of Human Services (“DHS”) removed D.R. from the custody of her father, Cantobie Robinson, on December 29, 2015, after learning that Cantobie went to the local DHS office with D.R. and advised that he did not have housing or food for her. He advised that they had been spending the night at the Salvation Army for the past ten days; however, they were not permitted to stay there during the day. He reported that he had nowhere to keep D.R; during the day. Cantobie tested positive for marijuana. He also reported that Eugenia, who was three months pregnant, had left him and D.R. and was living with Mark Eutsey. DHS also learned that Eugenia and Cantobie’s parental rights to A.R., an older sibling of D.R.’s, were involuntarily terminated in April 2014 based on the grounds of abandonment and aggravated circumstances along with a finding that termination was in A.R.’s best interest.
D.R. was adjudicated dependent-neglected on February 29, 2016, due to Eugenia and Cantobie’s lack of suitable housing and their lack of a plan to secure suitable housing. The adjudication order also provided that both Eugenia and Cantobie tested positive for THC. The court set a goal of reunification and ordered the Rob-insons to follow the case plan, obey all court orders, and cooperate with DHS; obtain and maintain stable, clean, adequate, and suitable housing and keep all utilities on; obtain and maintain stable employment or otherwise provide adequate income to support D.R.; complete parenting classes; submit to random drug screening and test negative; undergo a psychological evaluation; complete a drug assessment and follow the recommendations; not use or possess any illegal drugs; and attend and | sparticipate in individual counseling. DHS had no further contact with Cantobie after February 29, 2016.
On June 21, 2016, Eugenia gave birth to J.R. The following day, DHS removed J.R. from Eugenia’s custody after learning that Eugenia was still living with Eutsey, who was not J.R.’s father and who would not permit DHS to enter his home for DHS visits in connection with D.R.’s case. J.R. was adjudicated dependent-neglected on August 1, 2016, due to Eugenia’s lack of suitable housing at J.R.’s birth and Canto-bie’s lack of contact with DHS since February 2016. The Robinsons were ordered to follow the same case plan established for D.R.
DHS filed a petition to terminate Eugenia and Cantobie’s parental rights on August 1, 2016. DHS alleged that termination was in the children’s best interest, and the grounds alleged against Eugenia were: (1) Arkansas Code Annotated section 9-27-841(b)(8)CB)(faO(a)(S)(A), (5)© (Repl. 2016), which allows for termination if the parent has subjected the juveniles to aggravated circumstances where a judge has made the determination that there is little likelihood that services to the family will result in successful reunification; and (2) Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix) (a)(£), which allows for termination if the parent has previously had parental rights involuntarily terminated as to a sibling of the juveniles.
Following a termination hearing, the circuit court found that the statutory grounds DHS alleged against Eugenia had been proved and that it was in the children’s best interest to terminate parental rights, considering the likelihood that they would be adopted and the potential harm caused by returning them to Eugenia’s custody. The circuit court entered its order granting the petition to terminate parental rights on September 20, 2016. This no-merit appeal followed.
|Jn compliance with Linker-Flores and Rule 6-9(i), Eugenia’s counsel has examined the record for adverse rulings and has adequately discussed why there is no arguable merit to an appeal of the decision to terminate Eugenia’s parental rights, noting that there were no other adverse rulings or evidentiary objections. We agree that an appeal from the termination decision would be wholly without merit.
Pursuant to Arkansas Code Annotated section 9-27-341(b)(3)(A), an order terminating parental rights must also be based on a finding that termination is in the child’s best interest, which includes consideration of the likelihood that the juvenile will be adopted and the potential harm caused by returning custody of the child to the parent. Vasquez v. Ark. Dep’t of Human Servs., 2009 Ark. App. 575, at 5-6, 337 S.W.3d 552, 556. The harm referred to in the termination statute is “potential” harm; the circuit court is not required to find that actual harm would result or to affirmatively identify a potential harm. Id. at 6, 337 S.W.3d at 556. In addition, the proof must establish at least one of several statutory grounds. Ark. Code Ann. § 9-27-341(b)(3)(B).
Here, DHS presented evidence that the children are likely to be adopted. Crystal Williams, the DHS adoption specialist, testified that the children’s foster parents were interested in adopting them and that more than 389 families were identified as interested in adopting a sibling group of two children matching D.R.’s and J.R.’s characteristics. This court has held such evidence sufficient to support this element , of the best-interest analysis. Davis v. Ark. Dep’t of Human Servs., 2009 Ark. App. 815, at 10, 370 S.W.3d 283, 288.
The evidence also supports a finding that returning the children to Eugenia presented a risk of potential harm. DHS ■ supervisor and acting caseworker Mydea- , na Bridges testified that |fiEugenia tested positive for drugs at the onset of the case and continued to test positive for drugs. She admitted using marijuana during her pregnancy with J.R. and showed no remorse for it. The most recent drug test was performed on August 30, 2016—just days before the termination hearing—and Eugenia was positive for THC. We have held that continued drug use demonstrates potential harm sufficient to support a best-interest finding in a termination-of-parental-rights case. Tillman v. Ark. Dep’t of Human Servs., 2015 Ark. App. 119, at 9, 2015 WL 831629 (citing Allen v. Ark. Dep’t of Human Servs., 2011 Ark. App. 288, 384 S.W.3d 7).
Further, Bridges testified that Eugenia failed to obtain and maintain stable housing. In June 2016, soon after having J.R., Eutsey told Eugenia she had to move out. Eugenia moved into the home of a friend, but Eugenia was asked to leave that home because she reportedly stole some of the homeowner’s marijuana. Eugenia reported to Bridges thereafter that she had been living in an abandoned house without the owner’s permission. Eugenia informed DHS that she had to “time her entry and leaving of the home so that the owners [would not] see her.” Bridges testified that Eugenia was living in the abandoned home at the time of the termination hearing and that she did not believe Eugenia would be ■ able to secure stable housing within the next four months. Potential harm must be viewed in a forward-looking manner and in broad terms, including the harm the child suffers from the lack of stability of a permanent home. Wallace v. Ark. Dep’t of Human Servs., 2015 Ark. App. 481, at 12, 470 S.W.3d 286, 293. Eugenia has been, and continues to be, unable to provide her children with a stable home—a child’s basic need.
| flThere are other factors to support the circuit court’s potential-harm finding. Eugenia remained married to Cantobie despite knowing that he used illegal drugs and suffered from mental-health problems and despite her claims that he emotionally and physically abused her. Eugenia also suffers from bipolar disorder, yet she reported that she had not taken her medication for the disease since 2013. Eugenia’s drug use and overall instability demon strated the risk of potential harm to D.R. and J.R. if they were returned to her. Accordingly, we hold that there is no merit to the appeal of the circuit court’s best-interest finding.
For grounds, the circuit court found that the children had been subjected to aggravated circumstances and that Eugenia’s parental rights to a sibling of D.R. and J.R.’s had been involuntarily terminated. Only one ground is necessary for termination to occur. Draper v. Ark. Dep’t of Human Servs., 2012 Ark. App. 112, at 15, 389 S.W.3d 58, 66. Here, there is no merit to a challenge to the circuit court’s conclusion that Eugenia’s parental rights to D.R.’s and J.R.’s sibling had been involuntarily terminated. Ark. Code Ann. § 9-27-341(b)(3)(B)(ix) (a)(4). DHS introduced into evidence, without objection,- the 2014 termination order concerning D.R.’s and J.R.’s older sibling, A.R.
After carefully examining the record and the no-merit brief, we hold that Eugenia’s counsel has complied with the requirements for a no-merit parental-rights-termination appeal and that the appeal is wholly without merit. We therefore affirm the order terminating Eugenia’s parental rights to D.R. and J.R. and grant counsel’s motion to withdraw.
Affirmed; motion to withdraw granted.
Gruber, C.J., and Gladwin, J., agree.
. The order also terminated the parental rights of Cantobie Robinson, the father of D.R. and J.R. Cantobie is not a party to this appeal.
. As provided in Arkansas Supreme Court Rule 6-9(i)(3), the clerk of our court attempted twice to mail Eugenia at her last known address a copy of her attorney’s brief and motion and. a letter advising her of her right to file pro se points. The first mailing was returned by the postal service marked “Unclaimed/Max Hold Time Expired,” and the second mailing was returned marked "Return to Sender-Unable to Forward.” Thus, Eugenia did not file pro se points for reversal. The State elected not to file a brief with our court.
. Eugenia was present at the termination hearing but did not testify, | [
49,
-18,
-11,
92,
27,
-95,
92,
52,
83,
-37,
118,
83,
-21,
-2,
80,
121,
34,
47,
64,
105,
-61,
-73,
17,
64,
126,
-13,
-77,
-43,
51,
79,
-12,
-42,
92,
48,
-118,
-43,
70,
-54,
-25,
80,
-118,
1,
-119,
97,
89,
-58,
49,
-77,
90,
15,
17,
-82,
-102,
44,
24,
-53,
108,
76,
88,
-71,
88,
-78,
-101,
15,
-34,
22,
-77,
36,
-70,
-123,
114,
57,
-104,
57,
-127,
-24,
51,
-108,
-110,
116,
83,
-103,
5,
116,
102,
-127,
60,
-9,
112,
-120,
94,
-65,
-101,
-90,
-102,
89,
75,
67,
-106,
-80,
94,
52,
8,
-2,
99,
-113,
116,
108,
8,
-114,
92,
-123,
-116,
-39,
84,
43,
-29,
100,
48,
117,
-59,
96,
117,
67,
51,
-102,
-50,
-10
] |
RAYMOND R. ABRAMSON, Judge
| ¶Appellant Nicholas Acre appeals from an order entered by the Faulkner County Circuit Court on May 6, 2016, that allowed appellee Ashley Acre Tullis to relocate with their minor child, G.A., to Mississippi. Acre argues several points on appeal, but we find no error and affirm the circuit court.
The parties were divorced by decree on April 3, 2008, in the Faulkner County Circuit Court. One child, G.A., was born of their marriage. In 2010 each party filed a motion to change custody, and an agreed order was entered in October 2010 after - the circuit court ordered mediation. The agreed order provided that once G.A. entered kindergarten in the fall of 2011, Tul-lis would be the primary residential custodian during the school year and Acre would be the primary residential custodian during the summer. The agreed order also included a section pertaining to the school or school district the minor child would 12attend and provided terms to change custody should the minor child no longer attend school in the city or the school district as indicated in the order.
On May 21, 2014, Acre filed a motion for change of custody after learning that Tullis intended to move to the state of Mississippi; Tullis filed a petition to relocate on June 24, 2014. Acre also filed a motion for contempt alleging that Tullis owed child support from the date G.A. had started kindergarten to the present.
The circuit court entered a temporary-order on October 17, 2014, enforcing the parties’ agreement set forth in the agreed order entered on October 27, 2010, and denying the parties’ respective petitions for relief. On May 6, 2016, the circuit court entered a final order allowing Tullis to relocate to Mississippi while not altering the custodial arrangement of the parties’ agreement as to the time of year each one would be the primary residential custodian. The circuit court also denied Acre’s motion for contempt, finding no amount of child support was owed. Acre filed a motion for reconsideration on February 12, 2016, before the final order was entered; Tullis filed a response to the motion for reconsideration on June 1, 2016. The circuit court never ruled on the motion so it was deemed denied. This timely appeal is now properly before our court.
On appeal, Acre argues four points: (1) the circuit court failed to uphold the terms of the agreed order entered into by the parties that contemplated a change of custody in the event the minor child did not attend certain school districts; (2) the circuit court incorrectly applied Stills v. Stills, 2010 Ark. 132, 361 S.W.3d 823, using the Hollandsivorbh presumption | sin favor of Tullis and should have made a change-of-custody determination pursuant to Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002), and Singletary v. Singletary, 2013 Ark. 506, 431 S.W.3d 234, since the parties exercised joint custody; (3) if the parties did not exercise joint custody, Tul-lis waived any presumption based upon her actions and the language of the agreed order, and that it was not in the child’s best interest to permit the relocation; and (4) the circuit court improperly denied Acre’s motion for contempt based on Tul-lis’s failure to pay child support. For the following reasons, we affirm.
In reviewing child-custody cases, our court considers the evidence de novo but will not reverse a circuit court’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Riddick v. Harris, 2016 Ark. App. 426, at 4, 501 S.W.3d 859, 864. Deference to the circuit court is even greater in cases involving child custody, as a heavier burden is placed on the circuit court to utilize to -the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Alphin v. Alphin, 364 Ark. 332, 336, 219 S.W.3d 160, 162 (2005). If the circuit court fails to make findings of fact about a change in circumstances, this court, under its de novo re-view, may nonetheless conclude that there was sufficient evidence from which the circuit Rcourt could have found a change in circumstances. Williams v. Geren, 2015 Ark. App. 197, at 10, 458 S.W.3d 759, 766. Due deference is given “to the superior position of the trial court to view and judge the credi bility of the witnesses.” Alphin, 364 Ark. at 336, 219 S.W.3d at 162. Our court has stated time and time again that “we know of no cases in which the superior position, ability and opportunity of the trial court to observe the parties carry as great a weight as those involving children.” Carver v. May, 81 Ark. App. 292, 296, 101 S.W.3d 256, 259 (2003).
In Acre’s first point on appeal, he claims that the circuit court failed to uphold the terms of the agreed order entered into by the parties that contemplated a change in custody in the event the minor child did not attend certain school districts, but he does not argue that such failure was in error. Under Arkansas law, parties have long been able to make their own contract and fix its terms and conditions, and the contract “will be upheld unless illegal or in violation of public policy.” Rownak v. Rownak, 103 Ark. App. 258, 262, 288 S.W.3d 672, 675 (2008). After a hearing and briefing by the parties, the circuit court chose not to uphold the terms of the agreed order entered into by the parties because the court found that such an agreement was unenforceable. This is within the circuit court’s authority. In its order, the circuit court stated that Stills v. Stills, 2010 Ark. 132, 361 S.W.3d 823, “holds that the parties cannot enter into a contract with regard to custody that seeks to avoid the provisions of the ‘Hollandsworth case’ which created the presumption in favor of relocation by a custodial parent” .and that the Stills case and its analysis applied to the instant case. We agree.
| BAcre argues that the Hollandsworth presumption does not apply because the parties exercised joint custody; however, testimony presented showed that Tullís was the primary custodian for 41 to 42 weeks per year. This is not joint custody. The circuit court clearly has authority under Arkansas law to review an agreement to ensure that the agreement does not violate Arkansas law or public policy. Therefore, we affirm on Acre’s first point on appeal.
The second point on appeal—that the circuit court incorrectly applied Stills by using the Hollandsworth presumption in favor of Tullis and should have made a change-of-custody determination pursuant to Lewellyn and Singletary because the parties exercised joint custody—is also unpersuasive. In Singletary, our supreme court held that the Hollandsworth presumption is inapplicable when the parents share joint custody, and in joint-custody relocation cases, the focus is whether there has been a material change in circumstances and the best interest of the child. When a contract is ambiguous on its face, we resolve the ambiguity by looking at other parts of the contract and the parties’ testimony about what they intended, as well as their conduct. Rockefeller v. Rockefeller, 335 Ark. 145, 980 S.W.2d 255 (1998).
Here the parties initially agreed to joint custody until their son began kindergarten; however, the agreed order, which was entered on October 27, 2010, and is now the subject of the case before us, outlines what would occur when G.A. entered kindergarten in the fall of 2011. It reads:
When [G.A.] enters kindergarten for fall semester 2011, Parents agree Mother will be [G.A.]’s primary residential custodian during the school year, and Father will be [G.A.]’s primary residential custodian during the summer. In addition, during the | (¡school year Father will share time with [G.A.] every other weekend, and during one overnight visit through the week by mutual agreement of Parents as outlined below.
Based on the agreement, it is clear to us that the parties agreed that once G.A. started school, the parties would no longer have joint custody. While Acre is the primary custodian for the summer, Tullis is the primary custodian for the school year, which amounts to significantly more time as primary custodian. Therefore, we hold that Lewellyn and Singletary are not applicable in the instant case. The circuit court was correct in its finding that Stills applies and that the Hollandsworth presumption is applicable and cannot be waived.
Acre next argues that if the parties did not exercise joint custody, Tullis waived any presumption based on her actions and the language of the agreed order, and it was not in the best interest of the child to permit the relocation. Under Stills, the Hollandsworth presumption “is not a ‘right’ that may be claimed by one party or another, nor can it be altered or waived by a party.” Stills, 2010 Ark. 132, at 9, 361 S.W.3d at 829. As such, parents cannot agree to waive the Hollandsworth presumption. Moreover, part of Acre’s argument here is not preserved for our review. Acre failed to obtain a specific ruling from the circuit court on his assertion that Tullis waived any presumption based on her actions. Accordingly, we will not address this portion of his appeal.
Acre’s fourth and final point is that the circuit court improperly denied his motion for contempt based on Tullis’s failure to pay child support. The circuit court found that
an interpretation that finds Mother should still be paying child support would be contrary to the context of the agreement, which seems to tie custody and some financial issues to the start of kindergarten, also contrary to the fact that Mother would begin to have considerably more custodial time than Father, and contrary to the actions of the parties, i,e. Mother stopped paying child support and Father made no attempt to enforce any obligation for child support that he now claims- to have existed past the start of kindergarten and to date, until now.
|7We agree with the circuit court’s finding that Acre’s apparent interpretation and argument are contrary to the context of the agreement into which he and Tullis had entered. Tullis paid child support for G.A. until she became the primary custodian for three-quarters of the year at the time G.A. began kindergarten.
Because the circuit court was in the best position to view the totality of the evidence, to observe the demeanor of the witnesses, and to determine the best interest of the child, we affirm.
Affirmed.
Hixson, J., agrees.
Murphy, J., concurs.
. Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003). The Hollandsworth court announced a presumption in favor of relocation for parents with primary custody and held that the noncustodial parent has the burden to rebut the relocation presumption. The polestar in making a relocation determination is the best interest of the child, and the court should take into consideration the following matters: (1) the reason for the relocation; (2) the educational, health, and leisure opportunities available in the location in which the custodial parent and children will relocate; (3) the visitation and communication schedule for the noncustodial parent; (4) the effect of the move on extended family relationships in the current location and the new location; and (5) the preference of the child, including the age, maturity, and the reasons given by the child as to his or her preference. | [
-112,
104,
-28,
44,
10,
33,
26,
52,
88,
-77,
101,
-45,
43,
-42,
16,
121,
-93,
107,
113,
121,
-63,
-11,
-62,
97,
113,
-13,
-77,
-37,
-77,
74,
101,
-42,
72,
112,
-54,
117,
70,
-56,
-25,
16,
70,
1,
-85,
104,
89,
-61,
48,
41,
26,
14,
53,
-114,
-15,
109,
61,
-61,
-20,
110,
-39,
-71,
88,
114,
-102,
15,
111,
14,
-111,
-12,
-110,
-124,
104,
106,
-112,
49,
32,
-23,
115,
38,
-106,
116,
75,
-103,
9,
96,
103,
19,
44,
-57,
-40,
8,
102,
62,
-67,
-26,
-40,
89,
74,
6,
-74,
-105,
116,
16,
12,
126,
111,
-51,
30,
108,
4,
-49,
-44,
-111,
-116,
8,
-108,
35,
-29,
65,
48,
53,
-49,
-90,
85,
-122,
51,
-109,
-82,
-16
] |
Wood, J.,
(after stating the facts). (1-2.) It was not error for the court to admonish the jury of the importance of the case and to express the hope'that they might be able to arrive at a verdict. After the jury had deliberated for six and a half hours, it was not error for the court to say to them, ‘£ There ought to be no difficulty in arriving at a verdict where the evidence is as plain and short as it is in this case.” The court, by this language, did not express an opinion upon the merits of the case as a whole, or upon any particular fact in evidence. It was a comment upon the character of the evidence as a whole, hut without any intimation of the opinion of the court-as to whether the evidence tended to show guilt-or innocence.
In Bishop v. State, 73 Ark. 568, we said: “It is entirely proper for a trial judge, and it is his duty at all stages of the deliberations of the jury, to make plain the obligation resting upon them, if possible, to agree upon a verdict consistent with the facts and the concurring individual convictions of each juror.” See, also, St. Louis, I. M. & S. Ry. Co. v. Devaney, 98 Ark. 83-87, where we said: “The trial judge may properly admonish the jury as to the importance or desirability of their agreeing on a verdict. ’ ’
The language used by the court in the case at bar was only an expression upon the part of the court of a desire to have the jury return a verdict in the case, but there was no intimation by the court that he was of the opinion that the evidence, as a whole, or any part of it, indicated appellant’s guilt.
(3) The court’s instruction on the good character of appellant for peace and quietude was in conformity with the law on that subject as announced by this court. See, Kee v State, 28 Ark. 164; Edmonds v. State, 34 Ark. 743; Rhea v. State, 104 Ark. 162.
The only doubtful issue in the case was as to who was the probable aggressor. According to the testimony for the State, the appellant brought on the fatal rencounter without any provocation whatever. The testimony introduced on the State’s behalf tended to show that the appellant armed himself and deliberately sought out Munn and shot him to death because he was a successful suitor for the hand of Miss Baty in marriage. Jealousy, according to the testimony for the State, was the only cause for the unfortunate billing.
On the other hand, according to the testimony of the defendant himself, he approached Munn for an explanation in regard to a letter which he, the appellant, conceived that Munn had dictated or caused to be written, and that thereupon Munn made a demonstration as if to draw a weapon, when the appellant began shooting him in .self-defense.
The only issue, therefore, that was determinative of the guilt or innocence of the accused was as to whether the defendant or the deceased was the aggressor. It was not error, in this state of the case, for the court to tell the jury that the evidence of good reputation prior to the commission of the crime was introduced for the purpose of throwing light upon the question as to who was the probable aggressor.
Some of the prayers for instructions on behalf of appellant concerning good character told the jury that if good character was shown, it might of itself create such a reasonable doubt as would justify a verdict of acquittal; that “when proved strong enough, it will warrant- the jury in believing the defendant innocent;” and, again, that “it is a strong circumstance to determine who was the probab'le aggressor,” and, also, “to determine whether or not defendant shot in self-defense,” etc. Instructions in this form were clearly argumentative and expressly told the jury that the effect of the proof of good character would justify them in believing the defendant innocent. These prayers for instructions were an expression of the court on the weight to be given to the evidence -on this particular phase of the -case, and were erroneous.
So much of the prayers concerning good character as correctly stated the law were covered by the instruction which'the court gave..
The testimony of witnesses Horn and Staton tended to corroborate the testimony of the defendant himself to the effect that the deceased, during the shooting, had his hand at his hip pocket. The testimony of witness Austin Flynn tended to show that it was impossible for Horn and Staton to have seen what they claimed, on account of an iron column and -other obstructions in their line of vision.
Thereupon, the attorneys for the State and for the defendant requested that the jury be sent to the scene of the killing in charge of the sheriff, and the defendant re quested that the court send witnesses Horn and Staton with the jury to the scene of the killing to -show or point out to the jury their respective positions at the time the shooting occurred, or else to send some proper person who knew where Horn and Staton claimed to have been at the time of the shooting to so point out their respective positions at the time of the shooting to the jury. The court refused to send either Horn or Staton, or any other person, with the jury to point out the positions of .Horn and Staton at the time of the shooting; to which ruling of the court the defendant at the time excepted.
The record shows that the court did not accompany the jury to the scene of the killing, and that he did not appoint any person to accompany the jury other than the sheriff and his deputy, nor did he appoint any person to point out to the jury the scene of the killing. The defendant was not with the jury while they were gone to inspect the scene of the killing, but remained in the custody of the officer. Neither he nor his counsel requested that he be permitted to accompany the jury to the scene of the killing.
Appellant made a request that the court postpone sending the jury to the scene of the killing until after witnesses Horn and Staton were called to the stand to point out on the drawing that had been introduced, and to testify as to their respective positions at the time the shooting was taking place. The court instructed the sheriff to proceed with the jury to the scene of the killing, saying that the above witnesses could be introduced later, and that the jury would be better able to understand the positions as pointed out to them. The appellant duly objected and excepted to the rulings of the court.
We find no error prejudicial to appellant in any of these rulings. The statute provides:
“When, in the opinion of the court, it is necessary that the jury should view the place in which the offense is charged to have been committed, or in which any other material fact occurred, it may order the jury to be conducted in a body, in the custody of proper officers, to the place, ■which, must he shown to them by the judge or a person appointed by the court for that purpose.
“Such officer must be sworn to suffer no person to speak or communicate with the jury on any subject connected with the trial, nor do so themselves, except the mere showing of the place to be viewed, and return them to the court without unnecessary delay, or at some specified time.” Kirby’s Digest, § § 2379, 2380.
The direction by the court to the sheriff to proceed with the jury to the scene of the killing was sufficient to meet the requirements of the statute. The scene of the killing had been accurately described by the witnesses who had testified before the view was requested, and from the description that had been given of the place where the fatal encounter took place the jury must have been fully apprised of the scene of the killing. It was therefore unnecessary, under these circumstances, to send some one specially designated to point it out to them. Besides, the direction of the sheriff to proceed with the jury to the scene of the killing was virtually an instruction to him to point out the scene to the jury. See, Benton v. State, 30 Ark. 328-350.
The testimony as to the location of the scene of the killing was not controverted. Under the evidence, there was no possibility of any mistake being made by the jury when they were directed to view the scene of the killing.
The sheriff and his deputy had been specially sworn in relation to their duties of keeping the jury together during the progress of the trial, and had been instructed not to allow the jurors to communicate among themselves, and they had been specially instructed not to communicate with the jury themselves, nor to allow any one else to do so.
The objections here made to the rulings of the court are well settled adversely to the contention of appellant in Curtis v. State, 36 Ark. 284-289, where we held as follows : ‘ ‘ The place of the homicide, and its surroundings had been described to the court and jury, by the witnesses who had been examined, and it appears'that the sheriff, under the order of the court, conducted the jury to, and showed them the place to be viewed, by them. The sheriff was not only acting under his oath of office, but it appears had been previously specially sworn as to his duties in relation to keeping the jury together, etc., to their duties during the view, before proceeding to make it. * * *”
True, no special oath was administered to the sheriff or his deputy on the particular occasion of sending the jury to make a view, but the record shows that the sheriff had the jury in charge the night before “under proper oath and instructions as to the guarding of the jury,” and that the court “instructed the officers that they were under the same oath and instructions about guarding the jury as they were the night before, and not to permit any discussion of the case while they were viewing the scene of the killing, or while they were absent from the court room.”
The requirements of the statute as to the oath to be taken by the officers and instructions to be given them were sufficiently met by the oath which the officers took and the instructions they received, as shown by the record in this case.
The court did not err in refusing to postpone the sending of the jury to the scene of the killing until witnesses Horn and Staton had testified as to their respective positions at the time the shooting was taking place. As we said in Curtis v. State, supra, “Whether the view is necessary, and the time during the trial of ordering and conducting it are within the discretion of the presiding judge.”
The record shows that appellant was in court, and that neither the appellant nor his counsel requested that appellant be permitted to accompany the jury while they were gone to view the scene of the killing. This was a right which appellant had. Benton v. State, 30 Ark. 328; Owen v. State, 86 Ark. 317. But when his attorneys, for him, requested the view, and he and they for him failed to request that he be allowed to be present during the view, this was tantamount to voluntary absence on his part, and he thereby waived his right. Davidson v. State, 108 Ark. 191-203; McVay v. State, 104 Ark. 629. It does not appear from the record that the court, either expressly, or by implication, deprived appellant of his substantive right to be present at the view. The court did not refuse to permit him to be present. In Benton v. State, supra, the record was sufficient to show a refusal by the court to permit the accused to accompany the jury to the scene of the killing, as held in Owen v. State, supra.
The court did not err in admitting testimony to the effect that the deceased was joking and in a mirthful mood one or two minutes before the killing. It was not shown that Munn had declared any evil or serious design concerning the appellant on the morning of the killing, much less that he was bent on a mission of murder. On the contrary, the testimony of appellant himself shows that he approached the deceased for the purpose of an explanation of the letter, and that it was then that the deceased resented the inquiry. The proof showing that the deceased was in a mirthful mood two or three minutes before the fatal meeting, which he was not anticipating, although wholly irrelevant, could not have prejudiced the rights of appellant.
The court did not err in refusing to give prayer for instruction No. 18, requested by appellant. The instruction was fully covered by other instructions which the court gave on that subject. The court correctly instructed the jury as to the principles of law embodied in the refused prayer by giving the statute concerning the burden of proving circumstances of mitigation that justified or excused the homicide, etc.
There is no error in the record, and the judgment is affirmed. | [
50,
-30,
-39,
-33,
9,
64,
42,
120,
1,
9,
54,
115,
45,
-37,
20,
119,
-78,
-67,
85,
107,
-44,
-125,
55,
67,
-74,
-77,
80,
-44,
53,
-20,
-10,
124,
77,
48,
-54,
-43,
-25,
72,
-47,
-48,
-50,
-116,
-88,
-63,
66,
50,
52,
54,
124,
11,
-95,
-98,
-29,
41,
26,
-57,
-23,
60,
75,
52,
64,
48,
-102,
15,
-51,
20,
-77,
-90,
-98,
3,
120,
52,
16,
49,
2,
-4,
119,
-108,
66,
-44,
109,
9,
12,
102,
99,
33,
29,
107,
-88,
-111,
62,
94,
-99,
-89,
28,
25,
75,
109,
-73,
-71,
103,
48,
-122,
122,
-9,
84,
93,
100,
9,
-113,
-76,
-77,
-99,
60,
-102,
105,
-29,
-93,
18,
97,
-51,
-30,
92,
69,
90,
-37,
-114,
-92
] |
Hart, J.
The defendants, Robert Spivey and Lillie D. Lynch, were indicted for the crime of murder in the first degree, charged to have been committed by Robert Spivey shooting R. 0.- Lynch while Lillie D. Lynch was present aiding and abetting him. The defendants were tried before a jury and convicted of murder in the .second degree, their punishment being fixed at five years in the State penitentiary. From the judgment of conviction, they have duly prosecuted an appeal to this court.
The facts, so far as are necessary for a determination of the assignments of error presented, briefly stated, are as follows:
Robert C. Lynch was shot by Robert Spivey, between 10:30 and 11 o ’clock p. m., on the 9th day of May, 1913, just after he entered the home of Lillie D. Lynch, in Monroe County, and was instantly killed. At the time he was the husband of Lillie D. Lynch and Robert Spivey was his stepson. Robert C. Lynch had been formerly married, and by his first wife had reared a family of girl children, all of whom were grown at the time he was killed. He separated from his first wife, and she brought suit for divorce against him. During the pendency of the suit, he boarded with the defendant Lillie D. Lynch, who was then Lillie D. Spivey. His first wife was granted a decree of divorce, and about twenty days thereafter he married Lillie D. Spivey and they moved to her farm in Monroe County, Arkansas, where they resided for about two years until their separation in the month of September, 1912. During their residence on the farm of the defendant Mrs. Lynch, Robert C. Lynch managed it. In October, 1912, the defendant Lillie D. Lynch instituted a suit for divorce against him, and also sought the recovery of certain property which she alleged Robert C. Lynch had taken from her farm and disposed of for his own use and benefit. This suit was pending at the time Robert C. Lynch was killed. During the pendency of the suit, Robert C. Lynch visited the defendant Lillie D. Lynch at her home. According to witnesses for the State, he visited her at least once a week, and their relations were friendly. According to the testimony of the defendants, he did not visit her more than once or twice a month, and during these visits they had quarrels about the division of the property, and their relations were confined to a discussion of their property affairs. Mrs. Lynch occupied as a bedroom one of the front rooms of the house, and her son, Robert E. Spivey, who was about thirty-five years of age, slept in the room immediately back of her bed-room. On the night Robert C. Lynch was killed, he entered the house through a window in the room across the hall from the bedroom of Mrs. Lynch, between 10:30 and 11 o’clock p. m. Just after he entered the room, he was shot and killed by Robert E. Spivey. Mrs. Lillie D. Lynch was present.
At the time Robert C. Lynch was killed he had on an overcoat, which was buttoned up. In a pocket of the overcoat was a linen mask to which strings were attached. In another pocket was found an electric searchlight. Near the feet of deceased’s body was found a .38 calibre pistol, cocked and on safety, the magazine filled with cartridges, and one of the cartridges in the barrel of the pistol. A large dirk was stuck down in the waist band of his trousers and supported by his suspenders. He had on a suit of winter underclothes, no top shirt or coat, and a pair of low-quarter shoes, over which were worn a-pair of high top arctic overshoes.
The southwest window and screen of the room in which he was killed had been raised. The deceased’s body was found lying crumpled up, face downward, near the raised window. His hand was partly under his body. A load of buckshot had entered his right breast just below the nipple, in a space three and one-half or four inches in circumference.
The theory of the State was that the defendant Lillie D. Lynch had an understanding with her son, Robert E. Spivey, that she would invite the deceased to her home on the night of the killing, that the deceased should enter the southwest window of the west room, and that upon his entering the room, defendant Spivey should shoot the deceased with his shotgun, that it might appear that the deceased had been killed by Spivey in the defense of their home. Evidence was adduced by thé State to support this theory.
The theory of the defense was that the deceased came to the home of defendant without the knowledge of either of them, and for the purpose of obtaining certain papers which the defendant Lillie D. Lynch had in her possession, and which pertained to the litigation between them, and that the defendant Robert E. Spivey shot him in the defense of their home, not knowing who he was nor for what purpose he had entered the house. Robert E. Spivey testified, in brief, that he,was living with his mother at the time the deceased was killed; that the deceased had not been in the habit of visiting his mother at night since her separation from him; that on the night of the killing, his mother came into his room where he was sleeping, and told him to get up, that some one was breaking into the house; that he asked her where, and she told him in the west front room; that he got up, got his gun, and went out into the hall to the front room door; that he saw the bulk of something that looked like a man over near the window; that he fired two shots at him with his shotgun, and then ran out into the yard and rang a bell to alarm the neighbors; and that he did not know who it was who had entered the room, and had no suspicion whatever that it was the deceased, and no knowledge whatever that the deceased contemplated coming to the house that night.
• The' deceased was killed on Friday night, May 9, 1913. At the time, of his death, he resided in Cotton Plant and lived in an office just in the rear of the home occupied by his former wife and daughters. On Wednesday prior to the killing, the deceased wrote a note to his daughter Mabel, which is as follows: .
“May 7, 1913.
“Wednesday evening, 8 o’clock p. m.
“Am going to Saulsberg. Lillie has promised me this evening while there, if I would come back at 10 o’clock tonight she would raise the west parlor window and let me in. I could stay until daylight with her in the parlor, and no one would know I had been there. It may be a job up to assassinate me. If so,.I have told Ben Trice all about the arrangements, and am going, so if I never come home alive, bury me by my loved ones.
“Tour loving father,
“Robert C. Lynch.”
Written on the back is the following note:
“I left this on my desk for Mabel, bnt as I did not go, went with Mabel to the picture show.
“R. O. Lynch.”
The deceased did not go to see the defendant Lillie D. Lynch that evening, but instead went with his daughter to a picture show. The evidence for the State shows that Mrs. Lynch telephoned him on that evening not to come, but to defer his visit until a later time to be fixed by her. The note which the deceased wrote to his daughter was not delivered to her, but was left in his desk where she found it on the morning after he was killed. On the night he was killed, he wrote his daughter another note which he left in his desk, and which ghe found there on the morning after he was killed. That note reads as follows:
“Friday night, May 9,1913.
“Mabel: If I do not get back tonight, look for me at Saulsberg; have an engagement with Lillie, in the parlor at 10:30 tonight. Will ride ‘ Nip. ’
‘ ‘ Father. ’ ’
It appears, also, that the deceased kept a diary which was found in his desk by his daughter after his death. An entry in his diary of the date of May 7, 1913, reads as follows:
“Wednesday, May 7, 1913.
“Phone rang and Lillie says, ‘You know the business we were talking about?’ ‘Yes.’ ‘Will have to postpone until later,' and not to come. ’ . I told her I was ready to go. ‘ Wait until I can see you, ’ she answers. ‘ Your pleasure is my happiness,’ so I did mot go to Saulsberg tonight. Mabel came in office when I was pulling off my heavy clothing and overshoes. Told Ben Trice of the trip, and he advised against it, saying, ‘You don’t know what you will run up against. ’
It also appears than an entry was made in his diary of the date of May 9, 1913, on which day the deceased visited the defendant Lillie D. Lynch at her home, and the entry in the diary purports to be a statement of what they did and said during that visit. He sets out in detail their lascivious conduct on the occasion of the visit, and states that the room was to be arranged so they might have sexual intercourse on his next visit. He also expresses a suspicion that he might be killed on the next visit, but said he was going to make it.
The letters and the contents of the diary were introduced in evidence over the objection of the defendants, and they assign the action of the court as an error for which the judgment should be reversed.
The Attorney General contends that the testimony was admissible as part of the res gestae. It is not possible to define accurately the declarations which should be treated as parts of the res gestae. The decisions of the courts of the different States are sometimes perplexing, and are often irreconcilable. But certain general principles are regarded as well settled.
In discussing the subject of res gestae, Mr. Wharton says: “The distinguishing feature of declarations of this class is that they should be the necessary incidents of the litigated act; necessary in this sense, that they are a part of the intermediate concomitants or conditions of such act, and are not produced by the calculated policy of the actors. They must stand in immediate causal relation to the act, and become part, either of the action immediately producing it, or of the action which it immediately produces. Incidents that are thus immediately and unconsciously associated with an act, whether such incidents are doings or declarations, become in this way evidence of the character of the act.” Wharton’s Criminal Evidence (10 ed.), vol. 1, page 504. See, also, Green-leaf on Evidence (15 ed.), vol. 1, § 108.
Again, Mr. Wharton, in discussing declarations and occurrences, as res gestae, says: “It is essential, however, to the admission of declarations under this exception, that they should have emanated instinctively from the act put in evidence. If they were before or after it, so as to be open to the suspicion of being self-serving, they are to be excluded. They are admissible, because they are so wrought up in the body of the act that they can not be separated from it. In such cases, the act is part of the declaration and the declaration part of the act. The words and deeds form part of a common mass of signs which can not, in this sense, be distinguished.” Wharton’s Criminal Evidence (10 ed.), vol. 1, page 508.
In the case of Carr v. State, 43 Ark. 99, the court said: “Res gestae are the surrounding facts of a transaction, explanatory of an act, or showing a motive for acting. They are proper to be submitted to a jury, provided they can be established by a competent means, sanctioned by the law, and afford any fair presumption or inference as to the question in dispute. ’ ’
It is urged by the Attorney General that the letters of the deceased to his daughter and the entries of his diary admitted in evidence were admissible .under the principles laid down in the cases of Hunter v. State, 40 N. J. L. 495, and State v. Pearce, 87 Kan. 457, 30 Am. & Eng. Ann. Cases, 358, and case note. In these cases, and other cases of like character, it was held that statements of one starting on a journey as to where he came from, and where he was going are ordinarily admissible in evidence as a part of the res gestae.
The case of Hunter v. State, supra, contains an exhaustive and well reasoned discussion of the subject. The reason given for the admission of such testimony is that in the ordinary course of things, it was the usual information that a man about to leave home would communicate for the convenience of his family, information of his friends or regulation of his business. That is to say, the statements of the declarant as to where he was going explained his act of going, and, being a part of that act, excluded the evidence of design on his part, and are, therefore, admissible in evidence.
It has been universally held, however, that' narrations of past events are not admissible under the res gestae doctrine. So, also, expressions by the deceased of suspicions that he might be killed were simply expressions of his own state of feeling toward the defendant, and did not, in any sense, characterize and explain his act in going to the home of the defendant. Surmise or suspicion as to what might happen to him, should he go to the home of the defendant, did not in any manner characterize or explain his act of going, and are not a part of that act. Therefore, under the welLsettled rules of evidence laid down by the text writers and the adjudicated cases, they were not admissible in evidence. Neither was the declaration of the deceased as to what occurred when he visited the home of the defendant in the day time before he was killed that night, admissible as part of the res gestae. They were simply narrations of. past events, and might have been made by design.
Under the cases relied upon by the Attorney General, it was permissible to prove the declarations of the deceased to the effect that he was going to the home of the defendant Lillie D. Lynch, to visit her. But his statements of what occurred on a previous visit and his suspicions ' of what might occur on a future visit were not admissible in evidence, and for the error in admitting them, the judgment must be reversed.
The trial court also permitted a witness on behalf of the State to testify that he had had a conversation with the deceased prior to his going to the home of the defendant Lillie D. Lynch, and that the deceased had told him the object and purpose of going there, and the manner of his entrance which had been agreed upon between him and the defendant, Lillie D. Lynch. For the reason given above, the witness should have only been permitted to state that deceased told him that he was going to the home of Lille D. Lynch, to visit her.
It is also objected by counsel for defendant that the court erred in permitting evidence of a telephone communication between the deceased and the defendant Lillie D. Lynch. The daughter of the deceased testified that on Wednesday evening preceding the killing, she was in her father’s office and heard him say over the phone: “Hello, you say not come — you say not come tonight? All right, you let me know; good-by.” It is urged by counsel for defendant that this testimony should not have been admitted, because there was nothing to show that the defendant Mrs. Lynch was the person to whom her father was talking at the time. The State, however, proved by the telephone operator that Mr. Lynch had a conversation with his wife on that evening, and that the records of their office show a telephone call between Mr. and Mrs. Lynch on that evening at about the same hour as that testified to by the daughter of the deceased, and also that Mr. and Mrs. Lynch were accustomed to talking to each other over the' telephone. This testimony sufficiently identified the conversation over the telephone. In Ruling Case Law, vol. 1, paragraph 13, page 477, the rule is stated as follows: ‘‘Communications through the medium of the telephone may be shown in the same manner, and with like effect, as conversations had between individuals face to face. But the identity of the party against whom the conversation is sought to be admitted must be established by some testimony, either direct or circumstantial; to hold parties responsible for answers made by unidentified persons opens the door for fraud' and imposition.” See, also, 12 Cyc. 423.
Over the objection of the defendant, the State was permitted to introduce in evidence the proceedings in the divorce case, including the complaint of Lillie D. Lynch, and the answer and cross complaint of Robert Lynch. The suit for the divorce was a collateral proceeding, and the court should not have allowed these pleadings to be introduced in evidence against the defendants. This is especially true in regard to the answer and cross complaint of the deceased, Robert C. Lynch. The statements . made in his answér and cross-complaint for divorce were merely his ex parte statements, and were not evidence against the defendants of the truth ‘of the matters alleged therein.
As a fact to show the feeling and relation of the parties to each other, it was competent to show the pendency of the divorce, suit between them. The pendency of the suit, the parties to it, and the grounds of the com plaint or cross-complaint, whether for desertion, adultery, cruel treatment, etc., might properly have been admitted in evidence as showing the state of feeling between the parties and as indicating the motive for the killing. Binns v. State, 57 Ind. 46; Pinckord v. State, 13 Texas Court of Appeals 468; McClain on Criminal Law, vol. 1, § 416.
This evidence would also have been competent against the defendant Robert E. Spivey, because, under the theory of the State, a conspiracy to kill the deceased had been formed between the defendants to this action.
Other assignments of error have been pressed upon us for a reversal of the judgment, but we do not deem it necessary to determine them, for they are not likely to occur on a retrial of the case.
For the error in the admission of the testimony as indicated in the opinion, the judgment will be reversed, and the case remanded for a new trial. | [
-16,
96,
-4,
79,
-118,
-32,
106,
-72,
114,
-78,
-32,
87,
-27,
-49,
77,
41,
107,
-87,
77,
121,
-96,
-93,
118,
65,
115,
-77,
25,
-57,
-74,
-51,
-2,
-34,
89,
32,
-54,
72,
-26,
10,
-59,
90,
-114,
-117,
-87,
116,
-50,
16,
56,
55,
92,
15,
97,
-66,
-77,
42,
52,
-54,
9,
108,
74,
46,
-16,
49,
-122,
77,
-17,
6,
-125,
-90,
-102,
1,
-8,
30,
-100,
53,
0,
-20,
59,
-106,
-122,
84,
69,
9,
76,
102,
-62,
36,
-127,
-19,
32,
13,
38,
-1,
-103,
-89,
8,
81,
3,
76,
-65,
-35,
103,
-12,
-109,
-16,
-19,
-58,
17,
120,
-94,
-49,
-108,
-109,
77,
114,
-42,
-109,
-53,
5,
116,
112,
-51,
58,
84,
70,
89,
-101,
-114,
-107
] |
McCulloch, C. J.
Defendant is in possession of real estate in Poinsett County, Arkansas, described as lots Nos. 8, 9 and 10, in block 13, of Hirschman’s First Addition to the incorporated town of Lepanto, and asserts ownership to said property under an alleged contract of sale executed to him by the plaintiff. ' The plaintiff instituted this action to recover possession of the property, and defendant filed an answer and cross bill, .setting up title under his -alleged purchase from plaintiff, and prayed for a specific performance of said contract.
The contract exhibited by defendant with his cro-sscomplaint describes the property as “two lots in the town of Lepanto, being lots Nos. 8, 9 and 10,” and recites that the plaintiff has sold the same to defendant “for a consideration of $300, and him to move his house out of street, according to bond made, and give up possession of that part of land; $1 paid in cash, balance to be paid on delivery of deed. ’ ’ This is signed by both the plaintiff and the defendant. The defendant contempora neously executed to plaintiff a bond conditioned that he would remove the house from the street; or in the event of his failure to move the house that he would pay the plaintiff $500 as damages. On final hearing of the cause, the court decreed specific performance of plaintiff’s contract and plaintiff has appealed to this court.
It is insisted, in the first place, that the contract is not sufficiently definite as to the description of the property to" justify a decree for specific performance. Counsel rely upon the case of Fordyce Lumber Co. v. Wallace, 85 Ark. 3, where it was held that a contract for the sale of land, describing it as “section 16-7-4,” without any other description, and without specifying the county in which it is situated, was insufficient and unenforceable. The contract exhibited in this case standing alone is too indefinite, but the proof in the case is sufficient to supply the defect. The testimony adduced by defendant is to the effect that he and plaintiff went upon the land and the plaintiff stepped off the lines and pointed it out to him and then wrote tbe description into the contract. Pursuant to the contract, he took possession of this particular land and moved the house, at considerable expense pursuant to the terms of his bond, which formed a part of the consideration for the contract of sale. It appears further from the testimony that the house which was moved was partly on the land in controversy and had been erected by another party several years ago under contract with the plaintiffs grantor, whereby he was to have the right to remove the house or to purchase the lot on which it was situated. Subsequently, defendant acquired the rights of the person who built the house, and plaintiff purchased these lots, together with considerable other property in that locality, from one Greenwood, who owned the property at the time the house was built. Defendant asserted his right to compensation for the value of the improvements or his right to purchase the property; and it was this controversy which led up to the contract of sale for the lots in controversy.
Defendant testified, as before stated, that when he and the plaintiff went upon the property to discuss the differences with respect to the defendant’s right to have compensation for the house, the proposition was made to sell him these three lots, and the contract was thereupon made. While the writing affords an insufficient descrip- ■ tion of the property, we are of the opinion that the evidence is sufficient to establish a state of facts which takes the case out of the statute of frauds and supplies the proof of description so as to justify the court of equity in decreeing a specific performance of the contract.
Plaintiff is a married man and insists that he is unable to perform the contract by reason of the fact that his wife refuses to join in the conveyance, and for that reason the court of equity should not compel performance. The contention of counsel for the plaintiff is that a husband will not be compelled to perform his contract for the sale of land where his wife refuses to join, and that the vendee is remitted to a court of law for his damages resulting from the breach of the contract. The authorities are not altogether in accord, but according to the great weight of authority, the refusal of the wife to join in the deed does not afford sufficient grounds to deny the vendee the right to compel a specific performance of the contract. He may elect to refuse to accept the conveyance on account of the outstanding inchoate dower right and sue to recover damages for the breach of the contract, or he may accept the conveyance of such interest as it is within the power of the vendor to give. 36 Cyc., 744. The authorities are not altogether in accord on this question, and Judge 'Story, in his work on Equity Jurisprudence, expresses some doubt as to the justice of that rule. 2 Story’s Equity Jurisprudence, § 734. But we are of the opinion that such is the established rule, and that it is the just and equitable one. . The real division between the authorities is concerning the question whether if the vendee elects to accept the conveyance he can require an abatement of the price to the extent of the value of the outstanding dower interest. Upon that question this court is committed to the rule that the vendee may require a deed and have an abatement to the extent of the value of the contingent interest of the wife. Vaughan v. Butterfield, 85 Ark. 289. In that case we followed the Iowa decisions on this point, which hold unqualifiedly that the vendee may require specific performance of his contract and an abatement of the purchase price. Troutman v. Gowing, 16 Ia. 415; Leach v. Forney, 21 Ia. 271; Zebley v. Sears, 38 Ia. 509.
This disposes of the questions presented in the case, and our conclusion is that the decree of the chancellor is correct and it should be affirmed. It is so ordered. | [
48,
108,
-80,
12,
-70,
96,
40,
-104,
121,
-89,
116,
83,
-19,
-64,
20,
97,
-29,
121,
96,
104,
-92,
-78,
2,
67,
-46,
-77,
-93,
69,
-76,
-53,
-12,
87,
76,
32,
-62,
85,
-62,
66,
-51,
24,
78,
-127,
-120,
68,
-39,
64,
52,
59,
0,
107,
113,
-98,
-13,
45,
17,
-53,
45,
44,
73,
61,
81,
-8,
59,
29,
127,
7,
-127,
100,
-102,
3,
106,
76,
-112,
53,
16,
-24,
115,
54,
-122,
84,
73,
-101,
8,
38,
102,
40,
89,
-17,
-24,
-71,
15,
62,
-123,
-90,
-16,
24,
3,
71,
-74,
-100,
124,
16,
12,
-10,
-24,
93,
25,
108,
7,
-17,
-42,
-95,
7,
60,
-107,
3,
-29,
3,
52,
112,
-49,
-30,
92,
71,
57,
-101,
-114,
-41
] |
McCulloch, C. J.
The plaintiff, as treasurer of Sebastian County, instituted this action against the Bank of Midland, a domestic corporation engaged in the banking business, and its stockholders, to recover the sum of $1,367.51, alleged to have been deposited by plaintiff as treasurer in said bank and which the bank failed or refused to pay over oil demand.
The case was tried before a jury, -and a verdict was returned against all of the defendants save one, and they appealed to this court. The plaintiff appealed from the judgment in favor of defendant, Johnson.
Plaintiff was elected as treasurer of Sebastian County, and served for the term of two years, ending October 31,1912. During the time for collection of taxes the tax collector deposited part of his collections in the Bank of Midland, and when he made his settlement with the county court and paid over the county funds to the treasurer he g’ave that officer a check on the Bank of Midland for the sum of $1,437.51, which the treasurer turned over for credit and deposit in that bank. This occurred on or about the 1st day of July, 1912, and the bank failed on August 7, 1912. A few days thereafter plaintiff, as treasurer, made demand for the funds, and upon failure to pay, he instituted this action before’ the expiration of his term. He made his settlement with the county, and paid over all the funds due the county, including the amount involved in this controversy, after the expiration of his term, but before the trial of this case, and when the case came on for trial the defendants sought an abatement of the action on the ground that the stockholders of the bank were liable only to the county, and not to the treasurer personally, and that since the funds had been paid over to the county all liability on the part of the stockholders ceased.
That is the first question presented for our consideration.
Precisely the same condition existed in the case of Warren v. Nix, 97 Ark. 374, but it does not appear to have been argued as ground for reversal, and the point was not discussed in the opinion. The stockholders were held liable, however, in that case, and it can be treated as a decision of that proposition of law. We therefore hold, in conformity with that decision, that, where liability has accrued to the county by a deposit of funds and a failure or refusal to pay over on demand, and suit is brought by the proper officer to recover on behalf of the county, such action is not abated by the payment of the funds to the county by the officer who is secondarily liable. We held in Warren v. Nix, supra, that the statute makes the stockholders primarily liable, and that where action has been commenced for recovery of the money for the county it does not abate from the payment of the amount, but may be prosecuted to final judgment for the benefit of those who are secondarily liable.
The statute (Kirby’s Digest, § 1990) provides that “the said officers and the sureties on their official bonds, the bank and the stockholders of the bank, shall be liable for all funds that such bank on demand shall fail to pay to the person entitled to receive the same.”
This refers to the public funds mentioned in the preceding' clause of the statute, and, of course, only establishes a liability to the county.
There can not be direct liability both to the county and to the officer and sureties on his bond, but after the liability to the county has once attached and suit instituted to recover it, such liability is not extin gnashed by a payment made, by the officer in the regular course of his settlement with the county. Those who pay under those circumstances are subrogated to the rights of the county against the stockholders of the bank. Wilson v. White, 82 Ark. 407.
Learned counsel for defendants cite authorities which appear to militate against the right of subrogation under a statute enacted purely for the protection of public revenues.
We think, however, that these authorities have no controlling force in this case, for the reason that they relate merely to the remedy, and hold that there is no subrogation to the remedies given to the public by the statute. It has been held by this court in numerous oases that a tax purchaser under void tax sale is subrogated to the rights of the State for the tax lien which has been discharged, but, of course, the purchaser is not subrogated to the remedies of the State as to a summary sale of the property.
It is also urged that subrogation is an equitable remedy, which can not be invoked at law.
It is, however, sufficient answer to that to say that no objection was made to a trial of this case at law, and if the correct result has been worked out the judgment will not be reversed because the case was tried in the wrong forum. Wilson v. White, supra.
The defendants who have appealed defended on the ground that they were not stockholders, some of them that they never owned stock in the corporation, and others that they parted with their stock before the liability attached. The defense of each of them presents somewhat different questions and must be discussed separately.
One of the defendants, McEachin, was the principal stockholder and cashier of the bank, and had active management of it up to the time he sold his stock on May 14, 1912. He sold his stock to one I. H. Cunningham by written assignment and executed a power of attorney authorizing the transfer of the stock on the books of the bank. Cunningham paid for the' stock and McEachin immediately ceased all connection with the bank as stockholder. He testified that the bank was solvent at that time, and that it became insolvent solely on account of money of the bank which was taken out by Cunningham after the latter took charge. The transfer was never recorded on the books of the corporation, nor was certificate thereof filed in the office of the county clerk as ■provided by the statute. I. H. Cunningham and W. R. Cunningham (presumed to be kinsmen, but this is not definitely shown in the evidence), took charge of the bank and managed it up to the time of the failure. I. H. Cunningham was president and W. R. Cunningham cashier. The Cunninghams assumed active management of the bank at the time of the purchase of McEachin’s stock, and continued until the bank failed and was placed in the hands of a receiver in August, 1912.
The court, over the objection of the defendants, gave the following instruction:
“3. If you find from the evidence that R. A. Mc-Eachin, W. T. Quinley, Amos Johnson, or either or all' of them, were stockholders in said Bank of Midland on the dates when said T. A. Harris, as such sheriff and collector, deposited said public funds in said bank, and that they, or either of them, thereafter and before said 7th day of August, 1912, sold or transferred their stock in said bank, notwithstanding said sale, you should find for the plaintiff, if you find that they, or either of them, from their relation with or to said bank, or from knowledge or information with reference, to its financial condition knew, or could’have known, of its solvency from knowledge or information sufficient to put them on notice that same was solvent at time of the sale of their said’ stock, if you find a sale was made, and that the bank was insolvent.”
The law applicable to this case is stated in Warren v. Nix, supra, and this instruction is clearly in conflict with it. The instruction proceeds upon the theory that if, before the deposit was made, the stockhold ers knew that the hank was insolvent, or had such connection with the hank as to pnt them upon notice of that fact, they conld not dispose of the stock so as to escape liability for future deposits. Now, the deposit was made by .the treasurer on or about July 1, 1912, which was nearly two months after McEachin had sold his stock to Cunningham. The liability of the county does not relate back to the time that the money was placed in the bank by the colléctor, for he gave a check to the treasurer on the bank, and there is nothing in this case to show that the cheek would not have been paid if demanded. In fact, the treasurer himself testified that he placed the check in the bank as a deposit to his credit as treasurer. Therefore, the deposit dates from the time that the treasurer put the check in the bank for credit. If McEachin as a stockholder assigned his stock before that time, and did all that the law required him to do in making the assignment, he was not liable for future deposits made, even though the bank was insolvent at the time he assigned his stock and he knew it. The liability of a stockholder for public funds attaches at the time of the failure or refusal to pay over on demand. In Warren v. Nix, supra, we said:
“Section 1990 of Kirby’s Digest provides'that the stockholders of the bank shall be liable for the public funds therein deposited when the bank shall fail to make payment upon demand, and this in effect fixes the time when such liability arises, and that is when default in payment is made; this also determines that such liability is against only those who are stockholders at the time of such default.”
Notwithstanding the fact that the legal liability only attaches to those who are stockholders at the time of the default, yet if, after the deposit is made in the bank and the inchoate statutory obligation is thus incurred, if a stockholder transfers his stock, not in good faith but for the purpose of escaping liability and with knowledge of insolvency on the part of the bank, he will be treated as a stockholder at the time of the default, and accordingly held liable. In other words, the law treats a sale of the stock under those circumstances as fraudulent, and it does not relieve from liability. That, however, is far from holding that a stockholder in a bank can not escape future liability by transferring his stock, regardless of the condition of the bank and his intentions with respect thereto. A stockholder can not, by fraudulent transfer, escape liability for funds already deposited; but he can escape liability for future deposits by transfer of his stock, regardless of the good faith of the transaction, provided there is an actual assignment consummated according to the terms of the statute.
The court was, therefore, in error in giving the third instruction, which made the liability of the stockholders turn upon their knowledge or information of the financial condition of the bank at the time they transferred the stock, even though that occurred before the money was deposited. The fact is uncontradicted that McEachin transferred his stock to Cunningham before the money was deposited; but the transfer was not recorded upon the books of the corporation.
We held in Warren v. Nix, supra, that a transfer, without the same being recorded on the books of the corporation, was efficacious for the purpose of severing the relations between a stockholder and the bank if a sale of stock has been made honestly and in good faith, and the vendor “has done all that can be required of a careful and prudent business man in order to make such transfer.”
There is a very wide conflict in the authorities on this question, but we must treat it as settled by the decisions referred to, and the only question in this case is whether or not the evidence concerning McEachin’s transfer of his stock to Cunningham brings it within that rule.
The evidence shows that McEachin had control of the bank when he assigned his stock, he being cashier at the time, and that when he severed his relations by transferring his stock there was no one legally in charge to record the transfer. However, he delivered the transfer to I. H. Cunningham, who, together with the other, W. R. Cunningham, immediately took charge of the bank, and the transferree became president. While it is true that he did not deliver the transfer into the “hands of the proper official to enter same upon the books,” for the reason that there w.as no such official, but he did deliver it to one who was. to become such official and who did become such official, and served as such for a period of nearly two months before the deposit was made. This was done openly, and the business of the bank was openly conducted by the Cunninghams with the implied, if not the express, approval of the other stockholders.
We are of the opinion, therefore, that this evidence shows beyond dispute that McEachin did all that a careful and prudent business man would ordinarily do to consummate the transfer and that he escaped liability for future deposits.
W. T. Quinley, another one of the defendants, sold and transferred his stock to I. H. Cunningham on May 14, 1912, and delivered him a power of attorney containing authority to make the transfer on the books. Quinley was originally one of the directors, but several years before he sold his stock he had severed his official relations with the bank and had no connection with it except as stockholder and depositor. He had nothing to do with the management of the bank. His case is, therefore, a stronger one than that of McEachin, and for the reasons already stated he was, according to the undisputed evidence, not a stockholder within the meaning of the statute at the time the liability of the stockholders attached.
Dyke Bros., a partnership, composed of two brothers of that name, were recorded as being the owners of eleven shares of stock. Their contention is that certificates had never been issued to them, and that they were not, in fact, stockholders.
We are of the opinion, however, that there is enough evidence to establish the fact that they were stockhold ers, and that being true, there is no effort to show that that relation was severed prior to the default of the bank in regard to the public funds.
(9) The list of stockholders, certified by the president .and secretary of the corporation, on file in the clerk’s office, is competent evidence for the purpose of showing who were the stockholders, and is prima facie evidence of that fact.
This list recorded the names of Dyke Bros, as holders of eleven shares of the. stock.
A witness, who was formerly connected with the bank at the time of its organization, testified that the stock book of the bank was lost, but 'that the corporation had purchased a lot of furniture from Dyke Bros, and paid them in shares of stock of the bank.
One of those defendants testified that they were not stockholders and had never been notified of the issuance of any stock to them; but all of that testimony made a question for the jury, and we think it is sufficient 'to sustain the finding that those defendants were, in fact, stockholders.
H. B. Weir is another one of the defendants who has appealed, and it is contended for him that the evidence does not show thart he was a stockholder.
Mr. Weir was certified, on the list heretofore referred to, as the holder of three shares of stock. He testified that he subscribed for shares of stock and gave a check in payment of the amount but that the shares were never actually delivered to him. The evidence was, we think, sufficient to establish the fact that he was, in fact, a stockholder of the bank.
The jury found in favor of defendant, A. S. Johnson. He owned thirteen shares of stock of the bank, which he assigned to McEachin, and the transfer was duly recorded, those shares being part of the stock which was assigned by McEachin to Cunningham.
The registered list shows that defendant Johnson owned another share. He testified that he knew nothing about that, except that Mr. Denman, one of the organ izers of the bank, told him that he had given him a share of the stock, bnt that he never received it or paid for it.
We think there is enough testimony to warrant the jury in finding’ that defendant Johnson was not a stockholder.
The judgment in Johnson’s favor is affirmed, and the judgments in favor of plaintiff against defendants Dyke Bros, and Weir are also affirmed. The judgments against defendants MeEachin and Quinley are reversed and the cause as to them is dismissed.
Kirby, J., dissents as to MeEachin and Quinley. | [
-76,
-26,
-104,
28,
42,
96,
34,
58,
88,
49,
101,
83,
-51,
-30,
20,
101,
-29,
121,
100,
120,
-91,
-78,
3,
98,
-54,
-77,
-51,
-57,
-74,
79,
-4,
-9,
9,
48,
-54,
-99,
70,
66,
-57,
-98,
-114,
0,
56,
69,
89,
0,
116,
110,
4,
11,
81,
-115,
-14,
58,
29,
79,
105,
42,
-55,
59,
80,
-13,
-114,
5,
119,
21,
-95,
70,
-104,
3,
-22,
62,
-104,
55,
0,
-72,
114,
-74,
-122,
84,
9,
-103,
12,
98,
102,
0,
-91,
-17,
-76,
-71,
54,
-98,
-99,
-90,
-108,
104,
35,
10,
-74,
31,
126,
31,
-122,
-4,
-20,
5,
25,
108,
5,
-38,
-42,
-78,
15,
116,
31,
3,
-41,
51,
48,
97,
-49,
-30,
92,
-121,
24,
-101,
-57,
-43
] |
Wood, J.,
(after stating the facts). Article 12, section 9, of our Constitution, under the title, “Municipal and Private Corporations,” provides as follows: “No property, nor right-of-way, shall 'be appropriated to the use of any corporation until full compensation therefor shall be first made to the owner, in money, or first secured to him by a deposit of money, which compensation, irrespective of any benefit from any improvement proposed by such corporation, shall be ascertained by a jury of twelve men, in a court of competent jurisdiction, as shall be prescribed by law.”
In Cribbs v. Benedict, 64 Ark. 556, the court had under consideration the question as to whether or not a land owner could receive compensation for land taken* for the use of the public in benefits that the remainder of his land would receive by reason of the improvement. In determining this question, the court had in mind article 2, section 22, of the Constitution, which provides that private property shall not be taken, etc., for public use without just compensation, and the other sections of our Constitution which guarantee to the owner of property taken for public use just compensation, as embodied in the eminent domain provisions. Chapter 58, sections 2898 to 2901, inclusive, of Kirby’s Digest. Appellee re lies upon these provisions of the Constitution to sustain the ruling of the -court on the excluded testimony and the instruction which the court gave.
In the case of Cribbs v. Benedict, supra, we said: “Where the Constitution is silent upon the subject, the decisions of the courts present diverse views upon the right to consider, by way of compensation for a portion of his land taken for public use, the benefits thereby accruing to the remainder. The view which seems to us to accord with reason, and which is supported by high authority, is that where the public use for which a portion of ia man’s land is taken so enhances the value of the remainder -a-s to make it of greater value than the whole was before the taking, the owner in such case has received just compensation in /benefits. And the benefits which will be thus considered must be those which are local, peculiar and special to the owner’s land, who has been required to yield a portion pro bono publico.” Numerous authorities are cited in the opinion in support of the doctrine. See also the additional authorities cited in appellant’s brief.
The doctrine announced in the above case is controlling here and shows that the ruling of the court in excluding the offered testimony and in giving the instruction was error.
The appellee contends that there was no allegation or proof to the effect that the improvement contemplated here was peculiar and special to the owner’s land as contradistinguished from the benefits to the general public, but the rulings of the court were placed upon the broad ground, as expressed in the instruction, “that you can not pay a man for his property in betterments.” This would exclude the idea of peculiar and special benefits being considered by way of compensation for land taken and appropriated to the public use. Besides the allegations of the -complaint and the testimony were sufficient to warrant a submission to the jury of the issues as to whether -or not appellee would receive peculiar and special benefits. It appears that it was necessary in order to straighten the street, to take four feet which jutted out in front of appellee’s lot.
Appellee also insists that the appellant is a corporation within the meaning of article 12, section 9, of .the Constitution, supra, and that under the provisions of that section it would have to make compensation in money, and that no benefits, special or otherwise, could be considered by way of compensation.
While section 8 is included under the head of “Municipal and Private Corporations,” it is manifest from the language of that section, as well as the context of other sections in article 12, that the word “corporation” as used in section 9 refers to private corporations, for when land is appropriated for the use of the public it is ■not appropriated “to the use of” any corporation. Here the land is condemned by the municipal corporation to be appropriated to the use of the public.
The rulings of the court above referred to were erroneous. The judgment is therefore reversed, and the cause remanded for a new trial. | [
-12,
122,
-40,
125,
27,
-32,
58,
-104,
97,
-85,
-89,
87,
31,
-118,
16,
57,
-29,
-3,
115,
90,
-42,
-78,
71,
-61,
-108,
-77,
-13,
-36,
112,
76,
-10,
69,
76,
53,
-54,
117,
102,
99,
-43,
-44,
-114,
-122,
11,
85,
-7,
80,
52,
79,
80,
75,
113,
-35,
-77,
36,
24,
67,
0,
44,
91,
44,
1,
-72,
-82,
5,
123,
23,
0,
103,
-72,
-93,
-24,
44,
-120,
57,
9,
-56,
91,
-74,
6,
-12,
11,
-103,
-88,
98,
99,
-112,
109,
127,
-40,
-101,
14,
-34,
15,
-90,
68,
25,
107,
72,
-108,
-99,
105,
4,
75,
124,
-26,
-123,
29,
108,
13,
-105,
-12,
-93,
-121,
-20,
-102,
-126,
-49,
39,
-112,
97,
-54,
-30,
93,
99,
62,
-101,
-113,
-39
] |
McCulloch, C. J.
The three appellants were jointly indicted by the grand jury of Jackson County for the crime of assault with intent to kill, and on trial of the case, they were convicted of aggravated assault, a misdemeanor.
It is charged in the indictment that appellants “unlawfully, wilfully and feloniously, and with malice aforethought, and after deliberation and premeditation, did make an assault upon the person of a certain negro sometimes called ‘Slim,’ but whose Christian and surname is unknown to the grand jury, with a deadly weapon, namely, a gun, by then and there shooting the said ‘Slim’ * * * with a gun then and there loaded with gunpowder and leaden bullets * * * with intent then and there to Mil and murder him,” the said person named.
The first contention is that the allegations of the indictment are not sufficient to describe the offense of aggravated assault, and that there could be no conviction for that offense under the indictment.
The statute defining aggravated assault reads as follows:
“If any person assault another with a deadly weapon, instrument or other thing, with an intent to inflict upon the person of another a bodily injury where no considerable provocation appears, or where the circumstances of the assault show an abandoned and malignant disposition, he shall be adjudged guilty of a misdemeanor, and, on conviction, shall be fined in any sum not less than fifty, nor exceeding one thousand dollars, and imprisoned not exceeding one year.” Kirby’s Digest, § 1587.
(1) In the early case of Cameron v. State, 13 Ark. 712, it was held “that, upon an indictment fox a felony, the accused may he convicted of a misdemeanor, where both offenses belong to the same generic class, where the commission of the 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 is insisted that the indictment does not describe the offense of aggravated assault, because it contains no allegation that there was no considerable provocation, or that the circumstances of the assault showed an abandoned and malignant disposition.
This court held, in Guest v. State, 19 Ark. 405, that under an indictment for maiming, the defendant might be convicted of aggravated assault, the two offenses being of the same generic class, and the former including the latter.
The court has in many cases held that under an indictment for murder, the accused could he convicted of manslaughter. McPherson v. State, 29 Ark. 225; Brown v. State, 34 Ark. 232; Fagg v. State, 50 Ark. 506.
■ There -are many cases where, on examination of the testimony here, we have found it insufficient to support a conviction of murder, and have reduced the judgment to the lower degree of manslaughter. Darden v. State, 73 Ark. 315.
We think thaft the allegations of the indictment for assault with intent to 'kill and murder were suffi- ■ cient to embrace all the essentials of the offense of aggravated assault. The indictment alleges that the assault was made with a deadly weapon with intent to kill, which necessarily includes the charge that it was done to commit bodily injury. The allegation that the act was done “with malice aforethought, and after deliberation and premeditation,” constitutes a negation of the fact that there was considerable provocation.
It is also insisted that the evidence is insufficient to warrant the conviction of appellants for any offense.
One of the appellants was the contractor of the county convicts of Jackson County, and he maintained a stockade for the confinement of the prisoners on or near his farm in that county. The negro, ‘Slim,’ was a convict in custody of the contractor, and was treated as a trusty, being permitted to work as a servant around the contractor’s dwelling. A lot of jewelry was missed from the dwelling, and the negro was accused of the theft. He was locked up in the stockade, and in the early part of the night, all three of the appellants, and another person, went to the stockade, handcuffed the negro and took him out and carried him down in the woods or thicket. When they returned to the house with the negro,- he had been shot through the arm with a gun or pistol. The State proved by a convict that, when the negro was taken out of the stockade one of the appellants (the contractor himself), said to the negro, “I will learn you how, you d— s— of a b — , to tell lies about things. ’ ’ There is testimony to the effect that this witness had not been convicted at that time, and was not in the stockade. That made a question for the determination of the jury, and we must treat the testimony in the light most favorable to the State’s side of the case. One of the members of the party had a Winchester rifle. Another witness stated that when the party returned to the house with the negro, they had pistols and guns in their hands, and there was a rope around the negro’s neck. This was after the negro was shot in the arm. There was other testimony to the' effect that several shots were fired while the party was down in the woods with the negro, that at the time of the shooting, the voices of the negro and some of the appellants were heard, and that somebody in the party said don’t shoot any more, that his arm is broken.
The contention of appellants, as reflected by their testimony, was that the negro confessed to complicity in the theft, told where the jewelry was hidden, and was accompanying the party out to the place to show it to them, when he attempted to make his escape, was seized by one of the party, whose pistol fell out of his pocket during the scuffle, and was accidentally discharged, the bullet striking the negro’s arm.
Now, the testimony shows pretty clearly, we think, that there was no intention to kill the negro, and the jury properly acquitted the appellants of assault with intent to kill; but we are of the opinion that there is enough evidence to justify the jury in convicting the appellants of aggravated assault. The jury did not accept the theory of appellants-as correct, but it is manifest from the verdict that the jury found that appellants, or some of them, fired shots at the negro without intent to kill him, but with intent to do him bodily harm. We will not undertake to determine for ourselves where the preponderance of the evidence lies, for it is sufficient to sustain the conviction here if we find evidence of a substantial nature tending to establish the essential elements of the offense of which appellants were convicted.
Our conclusion, therefore, is that the evidence sustains the conviction, and as there is no other assignment of error, the judgment must be affirmed. | [
-80,
-21,
-87,
-68,
43,
96,
40,
-66,
-46,
-77,
116,
-45,
-19,
-49,
5,
105,
120,
125,
85,
104,
-92,
-73,
39,
67,
-78,
19,
39,
-57,
51,
-53,
-18,
-11,
16,
-28,
-30,
85,
-58,
10,
-27,
30,
-114,
-127,
-72,
64,
-13,
66,
116,
63,
24,
14,
97,
-66,
-14,
43,
20,
-53,
73,
40,
75,
-65,
-64,
113,
-120,
21,
-100,
18,
-93,
38,
-99,
3,
-46,
62,
25,
49,
24,
-20,
115,
-122,
-128,
-44,
77,
9,
-116,
34,
98,
40,
-71,
-36,
-87,
-119,
111,
126,
-99,
-89,
24,
65,
9,
44,
-106,
-99,
118,
113,
14,
96,
-31,
-51,
25,
108,
-91,
-41,
20,
-79,
77,
48,
94,
99,
-61,
-89,
4,
112,
-52,
-26,
84,
19,
60,
-101,
7,
-63
] |
Hart, J.
J. E. Hickey was convicted before a justice of the peace of the offense of selling whiskey without a license, and upon appeal to the circuit court, was convicted upon a state of facts as follows: In January, 19.14, a petition was filed with the county court asking that license for the sale of intoxicating liquors in the city of Fort Smith, Sebastian 'County, be issued to them. J. D. Arbuckle and others were made parties to the proceeding. The petition for the issuance of the liquor license was made pursuant to the requirements of Act No. 59, entitled, “An Act to regulate the issuance of liquor license in Arkansas,” approved February 17, 1913. See Acts 1913, page 180. On January 20, 1914, the county judge of Sebastian County held that the petition contained a majority of the adult white inhabitants of the city of Fort Smith, and afterwards, on the same day, license was granted to the defendant,- Hickey, among others, to sell intoxicating liquors in that city during the remainder of the year. The remonstrants appealed to the circuit court -and at the August term, 1914, the circuit court found that the petition did not contain a majority of the adult white inhabitants living within the incorporated limits of the city of Fort Smith and the judgment of the county court was reversed and the petition of the defendants asking that license for the sale of intoxicating liquors be issued to them was dismissed. No appeal was taken from the judgment of the circuit cpurt and its finding and judgment were certified to the county court and there made its judgment. Thereafter the defendant, Hickey, sold three drinks of whiskey to J. K. J ones at his place of business in the city of Fort Smith.
The only contention made by counsel for defendant is that Act No. 59, entitled “An Act to regulate the issuance of liquor license in Arkansas,” above referred to, is unconstitutional. The constitutionality of this act was before us in the case of McClure v. Topf & Wright, 112 Ark. 342, and it was there held that the act was constitutional. We held, in effect, that ■ the statutory provision that a license to sell intoxicating liquors shall not be granted unless the applicant obtains the recommendation or consent of a majority of the adult white inhabitants of the city where he proposes to carry on business, is a lawful and proper police regulation and is not objectionable on the ground that it violates either the State or Federal Constitution. We said that under the statute now under consideration, the petition was a jurisdictional condition upon which the county court acts when satisfied that it contains the names of the majority of the adult white inhabitants in the city in which the applicant seeks license to sell intoxicating liquors, and held that a statute imposing conditions on the business of retailing intoxicating liquors, though such conditions may be more onerous than those imposed upon another business, and though such conditions may be so burdensome as to render the business unprofitable and on that account amount in its practical results to prohibition, may be sustained because the business of selling intoxicating liquors more seriously affects the health, morals and general welfare of the people than another business.
In the case of Hanson v. Hodges, 109 Ark. 479, we held that the act in question, with the emergency clause that it “take effect and be in force from and after December 31, 1913,” became a law when it was approved by the Governor, although its provisions were not enforceable until after December 31, 1913.
We think the decisions of these two cases are conclusive against the contention of the defendant in this case now before us. But inasmuch as counsel has made other contentions which we did not expressly take up and discuss in these opinions, we shall now briefly consider them.
It is insisted by counsel for .the defendant that the act under consideration is in violation of article 5, section 20, of onr Constitution. That section, is as follows: “No law shall be passed except by bill, and no bill shall be so altered or amended on its passage through either house as to change its original purpose.” The object of this section of the Constitution was that the Senate and House of Representatives of the State might not be hampered or embarassed in amending and perfecting their bills and thus be driven to accomplish by a number of bills that which might well be accomplished by one bill, but the purpose of the section was to forbid .amendments which should not be germane to the subject of legislation expressed in the title of the act which it purports to amend. Loftin v. Watson, 32 Ark. 414.
From an inspection of the Senate and House journals it will be seen that no amendments were made to the bill now under consideration and the section just quoted has, therefore, no application. Even if an amendment had been made to the bill as originally introduced, we think the body of the act does not embrace new matter not germane to the original purpose of the act. The .act is entitled: “An Act to regulate the issulance of liquor license in Arkansas, ” and from this title one would reasonably expect that the body of the act might cover the entire subject, including the conditions and restrictions upon which the sale of intoxicating liquors would be permitted. To regulate, means that the business may be engaged in or carried on subject to established rules or methods, or under conditions prescribed in the statute.
Section 4 of the act under consideration provides that this act shall not repeal section 5131 of Kirby’s Digest of 'the Statutes of Arkansas, nor any local act or local option law forbidding the sale of intoxicating liquors. But this act shall be cumulative' to all laws now in force. Section 5131 of Kirby’s Digest is the section that permits the use of wine for sacramental purposes, and the prescribing and furnishing of alcoholic stimulants by physicians to their patients.
It is contended 'by counsel for the defendant that by section 4 of the act under consideration our former statutes in regulation of the sale of intoxicating liquors are repealed and other provisions are at the same time re-enacted by the repealing act and that on this account the former provisions continue in operation. Therefore he insists that the provisions of the local option statutes as they existed prior to the passage of the present act are still in force and that because the requirements of those statutes were not complied with by the parties opposing the issuance of the liquor license in the city of Fort Smith, the license granted to the defendant to sell intoxicating liquors in that city during the year 1914 was still in force and that he was not guilty of any violation of the law. We do not agree with him in this contention. It is a cardinal rule of statutory construction that where two legislative acts relating to the same subject are necessarily repugnant to and in conflict with each other, the later laat controls, and, to the extent eif such repugnance or conflict, repeals the earlier act whether expressly so declared or not. De Queen v. Fenton, 100 Ark. 504.
Before the passage of the -act in question the burden was upon those who opposed the granting of liquor licenses to present .a petition to the county court praying that the sale of intoxicating liquors be prohibited, as provided in the statute. Under the present act the burden is upon those who favor the sale of intoxicating liquors to present a petition to the county court asking therefor.
It is manifest that the provisions of this act are in conflict with and repugnant to the terms of the prior act on this question. Therefore, the prior act is repealed and the county court has no power to issue licenses for the sale of intoxicating liquors except under the conditions prescribed by the statute. The circuit court adjudged that these conditions had not been complied with and, no appeal having been taken from that judgment, it became final and conclusive.
It follows that the defendant sold the whiskey to the witness, Jones, in violation of the statute and the judgment convicting him of that offense will be affirmed. | [
-80,
-21,
-48,
30,
46,
-16,
10,
-68,
82,
-101,
-26,
115,
-19,
24,
5,
113,
-93,
-1,
85,
121,
-28,
-74,
23,
72,
-126,
-5,
-103,
-57,
-80,
73,
-28,
-12,
93,
56,
74,
93,
68,
-55,
-49,
-36,
-122,
-128,
43,
-55,
82,
26,
56,
107,
115,
-113,
97,
15,
-9,
46,
94,
-111,
105,
44,
73,
-100,
-16,
-8,
-104,
-99,
94,
22,
17,
116,
-103,
1,
-56,
44,
-104,
49,
76,
-8,
115,
52,
-126,
116,
13,
-119,
12,
118,
38,
33,
57,
-17,
32,
-84,
37,
46,
-103,
-90,
-112,
89,
99,
12,
-66,
-107,
126,
18,
15,
114,
-29,
103,
25,
44,
-116,
-98,
-44,
-75,
71,
49,
-128,
19,
-53,
39,
32,
117,
-43,
118,
-2,
84,
113,
27,
-122,
-44
] |
N. MARK KLAPPENBACH, Judge
| ¾Appellant Alexander Morse appeals an order filed in July 2016 by the Marion County Circuit Court that denied his motion to dismiss appellee Haley Austin’s petition to adopt his daughter EAM. We dismiss the appeal for lack of finality.
Appellant and appellee are the unmarried biological parents of EAM, who was born in April 2014. In March 2016, appel-lee filed a petition in Marion County, seeking to adopt EAM without appellant’s consent. Appellee alleged that appellant had not had any contact with EAM since 2014 and had made only two payments of child support in 2015. In April 2016, appellant filed a motion to dismiss the adoption petition, contending that her petition did not comply with statutory mandates, that ap-pellee was presently unable to meet the requirements to obtain an adoption, that appellant had filed a separate petition in Conway County to register a judgment issued by a North Carolina court that established his paternity and gave him visitation rights, and that the Conway County case should proceed and the | ^adoption case should be dismissed for failure to state facts on which relief could be granted. Appellee filed a response in resistance to the motion to dismiss, asserting that Arkansas statutory law and caselaw permits a natural parent to adopt her own child; .that she had substantially complied with presenting all the information required to be in an adoption petition; that she and the child were residents of Marion County; and that appellant’s separate cause of action had not yet been served on her.
In July 2016, the trial court entered an order that denied appellant’s motion to dismiss the petition for adoption, finding venue and jurisdiction to be proper in Marion County. The order recited that the adoption petition stated facts upon which relief could be granted and that the allegations of misstatements of material facts and of misapplication of the law were not proper bases to dismiss the petition but were proper for a hearing. Appellant filed a timely notice of appeal from the order denying dismissal.
Rule 2(a)(1) (2016) of the Arkansas Rules of Appellate Procedure—Civil provides that an appeal may be taken only from a final judgment or decree entered by the circuit court. The requirement of a final judgment is the cornerstone of appellate jurisdiction, and the appellate court reviews only final orders. Bayird v. Floyd, 2009 Ark. 455, 344 S.W.3d 80. For an order to be final and appealable, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Id. Stated another way, for an order to be final and appealable, the order must put the judge’s directive into execution, ending the litigation or a separable branch of it. City of Corning v. Cochran, 350 Ark. 12, 84 S.W.3d 439 (2002). By contrast, an order that contemplates further action by a party or the court is not a final, appealable order. Blackman v. Glidewell, 2011 Ark. 23, 2011 WL 291938. Even though the issue decided might be.an important one, an appeal will be premature if the decision does not, from a practical standpoint, conclude the merits of the case. Robinson v. Villines, 2012 Ark. 211, 2012 WL 1739140.
More specifically, an appeal may not be taken from an order denying a motion to dismiss, with certain exceptions not applicable here. See Ark. State Claims Comm’n v. Duit Constr. Co., 2014 Ark. 432, 445 S.W.3d 496; Searcy Cty. Counsel for Ethical Gov’t v. Hinchey, 2011 Ark. 533, 2011 WL 6275291; Univ. of Ark. for Med. Scis. v. Adams, 354 Ark. 21, 117 S.W.3d 588 (2003); Courtney v. Ward, 2012 Ark. App. 148, 391 S.W.3d 686. Appellant attempts to characterize this order as one emanating from a “probate ease,” which would be appealable at this point under Ark. R. App. P.—Civ. 2(a)(12). This, however, is an adoption case, even if heard in the probate division of circuit court. According to Arkansas Code Annotated section 9-9-216(a) (Repl. 2015), “[a]n appeal from any final order or decree rendered under this subchapter [the Revised Uniform Adoption Act] may be taken in the manner and time provided for appeal from a judgment in a civil action.” Although Arkansas Rule of Civil Procedure 54(b) provides a method by which a circuit court may direct that an immediate appeal be permitted to proceed, where there is no attempt to comply with Rule 54(b), the order is not final, and we must dismiss the appeal. Harrill & Sutter, PLLC v. Farrar, 2011 Ark. 181, 2011 WL 1588001; Jacobs v. Collison, 2015 Ark. App. 420, 2015 WL 5047974.
Lin summary, the order on appeal contemplates further action by the parties and the trial court such that there is no final, appealable order before us. Consequently, we must dismiss the appeal without prejudice. See Chitwood v. Chitwood, 2013 Ark. 195, 2013 WL 1932916; Ford Motor Co. v. Washington, 2012 Ark. 325, 2012 WL 4017383; Crafton, Tull, Sparks & Assocs. v. Ruskin Heights, LLC, 2012 Ark. 56, 2012 WL 401611; Patil v. Hoover, 2012 Ark. App. 341, 2012 WL 1719182.
Dismissed without prejudice.
Murphy and Brown, JJ., agree. | [
18,
100,
-28,
60,
-86,
-31,
50,
37,
80,
-93,
111,
81,
47,
-48,
20,
121,
-21,
11,
97,
121,
-63,
-73,
103,
96,
90,
-14,
81,
-41,
49,
95,
-28,
86,
72,
96,
-53,
-35,
70,
72,
-125,
-40,
-122,
9,
-119,
109,
89,
-57,
20,
-29,
18,
15,
21,
-66,
-13,
-17,
57,
-62,
-22,
108,
-39,
-67,
72,
-72,
-118,
7,
-33,
6,
-95,
36,
-102,
5,
74,
42,
-112,
56,
2,
-24,
50,
54,
-118,
116,
75,
25,
8,
116,
-25,
32,
60,
-19,
-7,
8,
46,
62,
-99,
-90,
-40,
57,
75,
13,
-74,
-76,
92,
-110,
15,
126,
46,
-115,
30,
44,
32,
-113,
-48,
-127,
15,
-104,
20,
35,
-9,
-9,
48,
117,
-33,
-44,
84,
83,
59,
27,
-50,
-14
] |
RHONDA K. WOOD, Associate Justice
|! This case involves the registration of an arbitration award. In deciding this appeal, we must address the following two issues: (1) whether jurisdiction was proper under the Federal Arbitration Act (FAA), and (2) whether the award should have been vacated on public-policy grounds. We conclude the FAA applied and the circuit court did not err in failing to vacate the award on public-policy grounds. We affirm the circuit court’s order confirming the award.
I. Factual Background
This appeal arises from a dispute submitted to arbitration. The arbitrator established the following facts by a written opinion. Joshua Kilgore and Robert Mulle-nax were business partners in an Arkansas dental-management company, Senior Dental Care, LLC (SDC). Kilgore left SDC in 2013. Kilgore signed a settlement agreement, which included both a 1 {.noncompete clause and a nondisparagement clause. Kil-gore and Mullenax agreed to submit any disputes to arbitration in accord with the rules of the American Arbitration Association (AAA).
Shortly after signing the noncompete, Kilgore bought an ownership interest in a Tennessee company that was a direct competitor with Mullenax. Accordingly, Mulle-nax filed an arbitration claim to enforce the non-compete. In response, Kilgore filed a claim with the Arkansas Insurance Department. He alleged Mullenax was engaged in a kickback scheme. Mullenax spent $7000 defending this unsubstantiated allegation.
The underlying business dispute proceeded to arbitration. The arbitrator first noted that under AAA rules, which the parties agreed would govern the arbitration, the arbitrator had the power to determine jurisdiction. The arbitrator concluded the FAA applied because the agreement and its prohibited activities involved interstate commerce. Turning to the merits, the arbitrator found that Kilgore had violated the noncompete, but did not award damages on that claim. The arbitrator also found that Kilgore had violated the nondis-paragement clause by making his report to the Insurance Department. The arbitrator noted that Kilgore’s motive for making the report was to gain an advantage in arbitration. The arbitrator awarded Mullenax $7000 on this claim. Later on, the arbitrator awarded Mullenax an additional $136,000 in attorney’s fees, expert-witness fees, and expenses.
Mullenax filed a petition to enforce the award in circuit court. In response, Kilgore filed a cross-petition to vacate the award. First, he argued the arbitrator lacked the authority to hear the case under either federal or Arkansas law. Second, he argued his statements to the Insurance Department were protected by Arkansas public policy. The circuit court | .¡ultimately confirmed the award. Kilgore then appealed to the court of appeals, which affirmed. See Kilgore v. Mullenax, 2016 Ark. App. 143, 485 S.W.3d 705. We subsequently accepted the case on petition for review. When we grant a petition for review, we consider the appeal as though it had been originally filed in this court. Covenant Presbytery v. First Baptist Church, 2016 Ark. 138, 489 S.W.3d 153.
II. Principles of Law and Analysis
To begin with, our standard of review for arbitration awards is deferential. We have explained that the court’s role is limited to determining if the arbitrator acted within its jurisdiction. Hart v. McChristian, 344 Ark. 656, 42 S.W.3d 552 (2001). State and federal courts have concurrent jurisdiction to enforce an arbitration agreement pursuant to the FAA. Ruth R. Remmel Revocable Trust v. Regions Fin. Corp., 369 Ark. 392, 255 S.W.3d 453 (2007). The party attempting to vacate the arbitration award has the burden of proof. Anthony v. Kaplan, 324 Ark. 52, 58, 918 S.W.2d 174, 177 (1996). Judicial review of an arbitrator’s award is more limited than appellate review of a trial court’s decision. Ark. Dep’t of Parks & Tourism v. Resort Managers, Inc., 294 Ark. 255, 260, 743 S.W.2d 389, 391-92 (1988). Whenever possible, a court must construe an award so as to uphold its validity, and gross errors of judgment in law or a gross mistake of fact will not serve to vitiate an award unless these mistakes or errors are apparent on the face of the award. Id. “The decision of the arbitration board on all questions of law and fact is conclusive.... The court shall confirm an award unless grounds are established to support vacating or modifying the award.” Dean Witter Reynolds, Inc. v. Deislinger, 289 Ark. 248, 251, 711 S.W.2d 771, 772 (1986) (citing Wessell v. Crossett Public Sch. Dist., 287 Ark. 415, 701 S.W.2d 99 (1985)).
14A. Does the FAA apply?
The parties’ written agreement provided that the rules of the AAA would apply to any future arbitration. AAA Rule 7 provides that “the arbitrator shall have the power to rule on his or her own jurisdiction.” AAA Commercial Arbitration Rules (available at http://www.adr.org/ commercial). The arbitrator here determined that jurisdiction was proper under the FAA. The FAA covers arbitration disputes concerning transactions in interstate commerce. 9 U.S.C. § 2.
The FAA “applies if the transaction involves interstate commerce, even if the parties did not contemplate an interstate commerce connection, and the language of the FAA makes an arbitration provision enforceable in a contract evidencing a transaction involving commerce to the limits of Congress’ Commerce Clause power.” Gruma Corp. v. Morrison, 2010 Ark. 151, at 8, 362 S.W.3d 898, 903 (internal quotation marks omitted). The United States Supreme Court has noted that “Congress’ Commerce Clause power may be exercised in individual cases without, showing any specific effect upon interstate commerce if in the aggregate the economic activity in question would represent a general practice subject to federal control.” Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56-57, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003) (internal quotation marks omitted).
Kilgore argues that the arbitrator and the circuit court were incorrect when they found that the case should be arbitrated under the FAA. Kilgore’s central argument is that the settlement agreement between him and Mullenax simply involved a stock transaction in an Arkansas company between two Arkansas individuals. He states the following: “The changes in share ownership in this case did not evidence a transaction in commerce.”
|fiThe parties agreed that the arbitrator would determine jurisdiction; thus, his decision regarding applicability of the FAA was within his authority. The FAA does not provide Kilgore with an opportunity to relitigate this finding. The arbitrator found that the two businesses at issue were located in different states and traded in goods that crossed state lines. The arbitrator also noted that both businesses received medical supplies and equipment that crossed state lines and found that the businesses were both involved in processing federal Medicaid and Medicare moneys. The arbitrator concluded the following: “Because the agreements and their prohibited activities ‘involve interstate commerce’ and are the type of activities that usually ‘involve interstate commerce,’ the FAA applies to this arbitration.” The arbitrator’s findings and jurisdictional adjudication are conclusive. We therefore have no basis to reverse.
B. Should the Circuit Court Have Vacated the Arbitration Award on Public Policy Grounds?
Because the FAA is the governing law, a court’s ability to set aside the arbitration order award is limited. See St. John’s Mercy Med. Ctr. v. Delfino, 414 F.3d 882, 884 (8th Cir. 2005) (“Our review of an arbitration award under the Federal Arbitration Act is exceedingly limited and deferential.”). The United States Supreme Court has held that when an arbitration agreement falls under the FAA, the FAA provides the “exclusive grounds” upon |fiwhich to vacate an arbitration award. Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 584, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008). The FAA provides only for a “limited review needed to maintain arbitration’s essential virtue of resolving disputes straightaway.... Any other reading .opens the door to the full-bore legal and evidentiary appeals that can render informal arbitration merely a prelude to a more cumbersome and time-consuming judicial review process.” Id. at 588, 128 S.Ct. 1396 . (internal quotation marks omitted).
The FAA provides that a court “must” confirm an arbitration award “unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title.” 9 U.S.C. § 9. The grounds provided in section 10 of the FAA for vacatur are as follows:
(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
9 U.S.C. § 10. Kilgore has not alleged the circuit court should have vacated the arbitrator’s award under any of the four listed grounds. Nor has he cited any other provision in the FAA for vacatur. Rather, he contends the court can and should vacate the arbitration award because it violates an Arkansas public-policy providing that “no cause of action shall arise” fyfrom a person’s furnishing information regarding fraudulent insurance acts to the insurance commissioner. Ark. Code Ann. § 23-66-506(a) (Repl. 2012). Kilgore also highlights two other immunity statutes located in Arkansas law—Ark. Code Ann. § 23-60-111 and Ark. Code Ann. § 23-61-208(b). These likewise provide that “no cause of action shall arise” against a person who furnishes information to the Insurance Department.
Kilgore ignores that the FAA provides that a court “must” confirm an arbitration award absent one of the four “exclusive grounds” for vacatur. The circuit court did not err in refusing to read into the FAA an additional ground that is not there. The United States Supreme Court has repeatedly refused to allow states to vacate for grounds outside the FAA when the arbitration falls under the FAA’s jurisdiction. See AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011); Preston v. Ferrer, 552 U.S. 346, 128 S.Ct. 978, 169 L.Ed.2d 917 (2008). Kilgore argues that because the legislature has passed statutes protecting whistleblowers from legal accountability, these statutes must also protect whistle-blowers from liability in arbitration. However, the Supreme Court has held that a state cannot even explicitly prohibit arbitration of a particular claim or place additional burdens on arbitration when the FAA applies. See AT&T, 563 U.S. at 341, 131 S.Ct. 1740; Preston, 552 U.S. at 350-51, 128 S.Ct. 978; Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 581 U.S. -, 137 S.Ct. 1421, 197 L.Ed.2d 806 (2017). In AT&T, the Court found that the California rule disfavoring arbitration on policy grounds was preempted by the FAA “because it stands as |san obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. at 352, 131 S.Ct. 1740 (citing Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)).
We cannot find that the circuit court erred for failing to vacate the arbitration award when Kilgore failed to argue any of the FAA’s exclusive grounds for vacatur. See, e.g., Med. Shoppe Int’l, Inc. v. Turner Invs., Inc., 614 F.3d 485, 489 (8th Cir. 2010) (“Appellants’ claims, including the claim that the arbitrator disregarded the law, are not included among those specifically enumerated in § 10 and are therefore not cognizable.”); Affymax, Inc. v. Ortho-McNeil-Janssen Pharm., Inc., 660 F.3d 281, 284 (7th Cir. 2011) (same); Carey Rodriguez Greenberg & Paul, LLP v. Arminak, 583 F.Supp.2d 1288, 1290 (S.D. Fla. 2008) (“An allegation that the Award violates public policy is not one of the four exclusive statutory grounds upon which the Award may be vacated.”). In fact, the circuit court was required to confirm the arbitration award under 9 U.S.C. § 9.
Affirmed; court of appeals opinion vacated.
Special Justice Jason B. Hendren, joins in this opinion.
Hart, J., dissents.
Wynne, J., not participating.
. We use "Mullenax” to refer to both Robert Mullenax and SDC.
. Also, Arkansas Diagnostic Ctr., P.A. v. Tahiri, 370 Ark. 157, 257 S.W.3d 884 (2007), has no bearing on this case, as it involves an initial complaint that the defendant sought to have moved to arbitration. The court there correctly stated that the defendant had the burden to prove that the contract at issue involved interstate commerce, But here, Mullenax is simply trying to register an already arbitrated award. The decision on the FAA’s applicability has already been decided, and there is no requirement that Mullenax prove that fact twice.
. 9 U.S.C. § 11 addresses the grounds to modify or correct an arbitration award, which the appellant did not seek as a remedy.
. Because Kilgore's argument fails on other grounds, we do not address whether he would qualify for whistleblower protection. This is an especially thin argument given the arbitrator found that Kilgore's report to the Arkansas Insurance Department was motivated by self-interest and not to protect the public. | [
116,
-7,
-27,
28,
-56,
100,
56,
-8,
72,
-61,
103,
83,
41,
-17,
-99,
95,
-25,
127,
113,
104,
83,
-77,
23,
99,
-49,
-13,
-21,
69,
-79,
79,
-19,
127,
88,
32,
-22,
85,
70,
2,
-59,
88,
-54,
36,
43,
72,
-7,
-57,
56,
-81,
90,
-53,
37,
-81,
-31,
-87,
-97,
67,
108,
44,
121,
41,
-45,
80,
98,
13,
125,
16,
19,
-92,
-72,
13,
88,
74,
-112,
57,
17,
73,
113,
54,
-42,
-27,
39,
-103,
5,
38,
119,
32,
16,
-27,
-84,
-100,
-122,
62,
31,
-90,
-112,
65,
74,
8,
-90,
-107,
114,
10,
44,
-2,
-6,
69,
30,
104,
18,
-49,
-42,
-93,
-17,
96,
-100,
7,
-17,
-57,
-74,
69,
-50,
-28,
85,
70,
62,
-113,
95,
-112
] |
Hart, J.,
(after stating the facts). It is contended by counsel for 'the defendant that the 'amount sued for was in excess of the jurisdiction of the justice of the peace and that his judgment was, therefore, void. In this contention we think counsel are right.
In Euling Case Law, volume 1, page 352, it is said: “A contract to pay money in installments is divisible in its nature, that is, each default in the payment of .'an installment may be the subject of an independent action provided it is brought before the next installment becomes due; but each action should include every install ment due when it commenced unless a suit is, at the time, pending for the recovery thereof, or other special circumstances exist.”
In the case of Fort Smith Paper Co. v. Templeton, 113 Ark. 490; 168 S. W. 1092, the court held: “A suit for monthly installments of rent due under a lease specifying a yearly rental payable in monthly installments is a ‘single cause of action’ within Constitution 1874, article 7, section 40, limiting the jurisdiction of justices of the peace in matters of contract to controversies where the amount does not exceed $300, and where the amount of the installments exceeds $300 the justice has no jurisdiction. ’ ’
In the ease of State v. Scroggin, 10 Ark. 327, the defendant had executed a written instrument agreeing to pay the State for the use of internal improvement the sum of $400 in five equal installments, payable in one, two, three, four and five years after date. The court held that several installments being due, a separate action could not be brought on each installment so due, but that one action for the breaches of the contract must be brought, and that for this reason the aggregate amount of installments due was the measure of damages and determined the jurisdiction of the court.
So, here, there wias a contract for an entire service, but the parties stipulated that payment for such service should be made periodically in fixed sums, and the failure to make three of these payments became the foundation of this suit. The plaintiff bad a right to sue for the damages caused by the nonpayment of the installments as they came due, but, having waited until three installments became due before bringing his suit, the aggregate amount of the installments then due determined the jurisdiction of the court. The amount sued for by the plaintiff is, the sum in controversy in this action and determines the jurisdiction. That amount being in excess of the amount for which suit may be brought before a justice of the peace under our Constitution, it follows that the judgment rendered by the justice of the peace in favor of the plaintiff against the de fendant on the 17th day of December, 1909, was without jurisdiction and void.
On the 20th day of December, 1909, the justice of the peace granted the defendant a new trial and entered an order setting aside the judgment renderd on the 17th day of December. On the 24th day of December, 1909, .the defendant filed an affidavit for an appeal from the judgment rendered on December 17, 1909, and contends that this brought the case before the circuit court for trial anew. He rélies on the case of Cathey v. Bowen, 70 Ark. 348. We do not think that case is an authority for his contention. There a motion for a new trial was filed by Cathey against whom Bowen had recovered judgment, and it was granted. Subsequently, Cathey asked to .withdraw his application for a new trial, and prayed an appeal to the circuit court, which was granted. The court held that this left the judgment .against him in full force. The reason given was that, taking the whole record together, it could be construed as nothing more than the filing of ¡a motion for a new trial, which was afterward withdrawn by the party making it, leaving the judgment as entered by the justice of the peace to stand. There it was not shown that the justice of the peace ever set aside his judgment, and that was the controlling reason which moved the court to make its ruling.
In the present case, the justice of 'the peace actually set aside the judgment and entered an order to that effect. Where a justice of the peace sets aside a' judgment and grants a new trial, the judgment ceases to exist. 24 Cyc., 604-5.
The justice of the peace had set aside the judgment against the defendant before the defendant filed his affidavit for appeal. In other words, when the affidavit for appeal was filed there was no judgment against the defendant and his affidavit for appeal amounted to nothing. No appeal was granted him from the judgment subsequently entered by the justice of the peace. Therefore, the circuit court properly dismissed his appeal.
The defendant, however, was entitled to have the judgment of the justice of the peace reviewed by certiorari. It is true, we have frequently held that a writ of certiorari can not be used as a substitute for appeal for the mere correction of errors nr irregularities in the proceedings of inferior courts, and it is a general rule that certiorari is not an appropriate remedy if efficient relief can be or could have been 'obtained by a resort to other available modes of review; Bxxt one of the exceptions to the rxxle is that a writ of certiorari can be used 'by the circuit court in the exercise of its appellate power and superintendent control over inferior courts where the tribxxnal to which it is issued has exceeded its jurisdiction. Merchants & Planters Bank v. Fitzgerald, 61 Ark. 605; Railway Company v. State, 55 Ark. 200; Gregg v. Hatcher, 94 Ark. 54.
As a general proposition, the amount claimed or in controversy is the test by which the jurisdiction of the justice of the peace is to be determined. Thompson v. Willard, 66 Ark. 346; Little Rock, Miss. River & Tex. Ry. v. Manees, 44 Ark. 100; Lafferty v. Day, 7 Ark. 258.
A written complaint was filed before the justice of the peace in the instant case and the amount claimed for which judgment should be rendered against the defendant was $375. The amount claimed by the plaintiff is the 'sum in controversy and determined the jxxrisdiction of the justice of the peace. The amount demanded exceeded the jurisdiction of the justice of the peace, and, such being true, certiorari could be invoked to set aside the judgment rendered without jxxrisdiction.
The jxxdgment is, therefore, reversed and the cause remanded, with directions to the circuit court to quash the judgment of the justice of the peace in favor of the plaintiff against the defendant. | [
-48,
124,
-40,
124,
-118,
96,
42,
-104,
-23,
-61,
37,
87,
-21,
-53,
12,
107,
50,
123,
117,
72,
69,
-77,
7,
66,
-14,
-77,
17,
-43,
-68,
79,
-28,
-50,
76,
48,
-62,
-43,
103,
75,
-127,
-100,
78,
-124,
-120,
108,
-11,
67,
48,
89,
80,
15,
49,
-25,
-1,
46,
16,
111,
108,
42,
89,
-89,
-14,
-16,
-50,
-115,
109,
17,
-79,
54,
-104,
70,
72,
12,
-124,
57,
9,
-24,
58,
-74,
-126,
-11,
103,
-101,
8,
98,
98,
18,
-27,
-61,
-100,
-88,
47,
-66,
-97,
-90,
-109,
88,
11,
12,
-74,
-99,
125,
84,
7,
-10,
-26,
21,
27,
108,
3,
-114,
-42,
-93,
-113,
114,
-38,
-125,
-26,
-121,
16,
113,
-52,
-30,
92,
-41,
122,
-37,
15,
-103
] |
Hart, J.
The defendant, Wiley Cannon, was tried- and convicted in the Polk Circuit Court of the crime of'vagrancy, charged to have been committed by going about' from place to place for the purpose of gaming. From the judgment of conviction, he has duly prosecuted an appeal to this court. The testimony is substantially as follows:
Witnesses for the State all testify that the defendant has resided in Mena, Polk County, for ten years or more, and had not, to their knowledge, done any work for the past five or six years. Some of them stated that he was a constant associate of a professional gambler named. Davis.
One of the witnesses stated that he resided at De Queen, in Sevier County, and that'about six months prior to the trial he had a conversation there with the defendant, in which the defendant told him that he was at De Queen looking for a “live one.” The witness stated that he was familiar with gambling terms,'and that the phrase “live one” is a term among gamblers to indicate some one with money who wants to engage in gambling- at cards.
Another witness stated that the defendant told him that he had gone to Waldron, in Scott County, to engage in a game of cards, and that he went there for the purpose of “making a cleaning.” Another testified that the defendant told Mm that he had gone to Waldron, and had ‘ ‘ got the worst of it ” over there.
It was also shown that the defendant admitted that he had gone to Texas and had engaged while there in a game of craps, that he was frequently absent from Mena, and had been convicted in the circuit court of Polk County within the last twelve months of gaming.
Other testimony showed that he had been convicted of gaming prior to twelve months before the return of the indictment in this case. Other witnesses testified that they had seen the defendant gambling. Some of these games were within twelve months before the finding of the indictment in tMs case; others were prior thereto. No testimony was introduced in behalf of the defendant.
It is earnestly insisted by counsel for the defendant that the testimony is not sufficient to warrant his conviction.
In the case of Davis v. State, 109 Ark. 341, Davis was indicted and convicted in the Polk Circuit Court under the same statute under wMch the defendant in the instant case was indicted. The court held that section 2068, of Kirby’s Digest, applies to all persons who “go about from place to place, foi* the purpose of gaming,” whether for the purpose of participating in banking games, or in other kinds of gambling.
The court further held that where a defendant is charged with vagrancy under tMs section of the statute, evidence of games participated in by him in other counties is competent to show the purpose of his wandering about, whether to pursue a lawful vocation, or to habitually engage in the pursuit of gambling.
Therefore, the testimony of witnesses to the effect that the defendant told them that he had been gambling in other counties within twelve months before the finding of the indictment was competent.
It was also shown by the State that the defendant had been engaged in gaming prior to twelve months before the finding of the indictment, and counsel for the defendant insists that tMs testimony was incompetent. The testi mony introduced by tbe State shows that the defendant had been engaged in gambling within twelve months prior to the return of the indictment against him, and also that he had been engaged in gambling prior to and up to twelve months before the finding of the indictment.
In the case of Adams v. State, 78 Ark. 16, the defendant was charged with the crime of incest. Evidence was adduced by the State to prove the illicit relations between the defendant and his niece, mentioned in the indictment, which occurred more than three years before the finding of the indictment. The court said :
“The evidence tended to prove that these illicit relations, constituting incest, commenced six or seven years before the finding of the indictment, and continued to the time when the act for which he was indicted was committed. This evidence, although it discloses other acts of incest with the same niece, the indictment for which is barred by the statute of limitations, is admissible for the purpose of showing the probability of the commission of the offense charged, and sustains the evidence of such offense. Commonwealth v. Bell, 166 Pa. St. 405.”
So, here, the testimony shows that the defendant had commenced gambling probably two years before the finding of the indictment and had so continued up to the time he was indicted, and although the acts of gaming prior to twelve months before the finding of the indictment were so remote in point of time that the statute of limitations would protect the defendant, if he were indicted for those acts, still proof of such act of gaming is admissible because it is one of a series of acts indicating continuousness on the part of the defendant in going from place to place for the purpose of gaming.
Therefore, we hold that the testimony was competent and are of the opinion that the evidence was sufficient to warrant the verdict.
The judgment will be affirmed. | [
-16,
-24,
-19,
62,
58,
-16,
10,
56,
74,
-31,
-89,
83,
97,
78,
0,
57,
-94,
79,
-12,
105,
-60,
-121,
7,
35,
82,
-101,
-37,
-57,
-79,
73,
-4,
-44,
8,
96,
-18,
-47,
102,
74,
-27,
88,
-118,
1,
-71,
96,
59,
65,
34,
47,
0,
-114,
117,
-113,
-41,
42,
17,
67,
73,
14,
91,
-85,
96,
-63,
-46,
13,
-24,
21,
-77,
-27,
-69,
3,
-56,
60,
-100,
49,
96,
-88,
115,
-108,
2,
-44,
109,
-103,
-116,
96,
98,
33,
29,
-121,
-83,
-127,
15,
62,
-97,
-89,
-102,
65,
67,
109,
-100,
-35,
126,
20,
-84,
-4,
109,
-42,
57,
104,
3,
-34,
-108,
-111,
-83,
36,
-122,
123,
-13,
37,
52,
85,
-49,
-30,
93,
13,
112,
-101,
-125,
-11
] |
Per Curiam :
Appellees filed a motion, alleging that appellant is a nonresident of the State, and asking the court to make an order requiring him to give bond for costs, pursuant to section 1198, of Kirby’s Digest, which provides that “the appellant may be required to give security for costs under the same circumstances that plaintiffs in civil actions may be so required.”
The statute relied on clearly gives this court the power to require a nonresident appellant to give bond for costs, but the question is, what should be the terms and conditions of the bond, whether to pay the whole costs of the action, or merely the costs of the appeal.
The statutes provide that nonresident plaintiffs and corporations, with certain exceptions, shall give bond for costs upon the commencement of an action, and upon failure to give such bond, the action may be dismissed. Kirby’s Digest, § 959, et seq.
The word “circumstances” used in section 1198 refers to the fact of nonresidence, and not to the terms of the bond. This section deals with parties as appellants, and not with respect to their status in the lower court; whereas, the general sections on the subject apply only to plaintiffs. It necessarily follows that in dealing with the party as an appellant, it was the design of the lawmakers in this section to require security for the costs incurred on appeal, and not the costs of the whole action; otherwise, the requirement would amount to a denial of the right to appeal without supersedeas of the judgment for costs. There is nothing in our statutes which appears to militate against the right of any party to appeal from the judgment against him without being required to give bond to supersede sucb judgment; but tbe provision of tbe section now under consideration is one dealing with tbe costs of tbe appeal and requiring a nonresident appellant to give bond for costs of tbe appeal.
An order will therefore be entered, in accordance with that section requiring tbe appellant in this case to execute bond, with surety to be approved by tbe clerk, conditioned that be will pay tbe costs of tbe appeal in tbe event that tbe judgment be affirmed or tbe appeal dismissed. | [
-48,
-12,
-12,
-68,
-53,
96,
63,
-70,
-45,
-21,
39,
83,
-81,
-26,
20,
37,
-11,
127,
117,
123,
95,
-77,
54,
66,
-9,
-77,
-47,
-43,
49,
-49,
-26,
-66,
76,
112,
-94,
-43,
102,
-117,
-127,
-104,
78,
-119,
-87,
101,
-23,
98,
48,
-37,
80,
19,
49,
-34,
-93,
44,
25,
-26,
8,
41,
91,
41,
-64,
-39,
-117,
15,
123,
4,
-111,
71,
28,
-25,
80,
38,
-100,
-71,
0,
-24,
114,
-106,
-122,
84,
107,
27,
-88,
114,
96,
-112,
-47,
-15,
-100,
-88,
39,
28,
-113,
-89,
-45,
24,
10,
33,
-74,
-99,
109,
36,
-89,
-2,
-18,
-100,
31,
-20,
3,
-50,
-42,
-77,
-113,
116,
-100,
-61,
-58,
18,
16,
97,
-52,
-16,
94,
102,
123,
-37,
-49,
-98
] |
Wood, J.,
(after stating the facts). The finding of the chancellor that at the time of the bringing of this suit appellee was the owner and in the actual possession of the land in question was not clearly against the preponderance of the evidence. The preponderance of the evidence tends to prove that Frazer entered into a contract with Sharpe in December, 1910, by which he sold the land at that time to Sharpe for a consideration of $900; that Sharpe at that time paid $200 of the purchase money and agreed to execute his note for the balance when the deed to him was executed, and that Frazer should have the option either to reserve a vendor’s lien in the deed or take a mortgage on other land, and that in pursuance of this contract Sharpe entered into the immediate possession of the land and made substantial improvements thereon.
This evidence establishes the relation of vendor and vendee between Frazer and Sharpe. The contract of sale was fully consummated in December, 1910, and from that time on, according to the.doctrine announced by this court, Frazer, the vendor, became a constructive trustee for the vendee, Sharpe.
In Stubbs v. Pitts, 84 Ark. 160, this court, through Judge Riddick, quoted the following from Lord Hatherly, in Shaw v. Foster, L. R. 5, H. L. 321; Lysaght v. Edwards, L. R. 2, Ch. Div. 499-506. ‘ ‘ That moment that a contract for the sale and purchase of land is entered into, and the relation of vendor and vendee is constituted, the vendor becomes a constructive trustee for the purchaser.” And, continuing, Judge Riddick says: “This is founded on the principle that equity treats that as done that ought to be done. By the terms of the contract, the purchase price ought to be paid to the vendor, and the land ought to be conveyed to the vendee; equity, therefore, regards this as done. The consequences of this doctrine, says Professor Pomeroy, are carried out. As the vendee holds the equitable estate, ‘he may convey or encumber it, may devise it by will; on his death, intestate, it descends to his heirs, and not to his administrators. In this country his wife is entitled to dower in it; a specific performance is after his death enforced by his heirs; in short, all the incidents of a real ownership belong to it.’ 1 Pom. Eq. § 368. In commenting further on this doctrine, the learned author says that it is a mistake to suppose that this doctrine does not apply until the purchase price is paid. It applies at once, so soon as :a valid contract of sale is made, though, until the purchase money is paid, it is a lien on the equitable estate of the vendee, and by the enforcement of this lien in a court of equity the equitable estate of the vendee may he sold or cut off.”
And in Strauss v. White, 66 Ark. 167-170, we held, quoting from other cases, that “when the owner sells land, takes the notes of the vendee for the purchase money, and executes to him a bond for title, the effect of the contract is to create a mortgage in favor of the vendor upon the land to secure the purchase money, subject to all the essential incidents of a mortgage, as effectually as if the vendor had conveyed the land by an absolute deed to the vendee, and taken a mortgage back to secure the purchase money.”
In one of those cases, Hardy v. Heard, 15 Ark. 188, it is said: “The vendee, in analogy to the mortgagor, is the owner of an equity of redemption, and that this is the real and beneficial estate, which is descendable by inheritance, devisable by will, and alienable by deed, precisely •as if it were an .absolute estate of inheritance at law, subject, of course, to the rights of the vendor.”
The fact that the vendor in those cases executed his bond for title to the vendee can make no difference in principle. Here the contract of sale was entered into and completed and taken out of the statute of frauds by the vendee paying part of the purchase price and entering into the possession of the property. His rights then, as vendee, by these acts, became as completely established under the agreement as if the vendor had executed to him a bond for title.
In the recent case of Barrett v. Durbin, 106 Ark. 336, Durbin, by oral agreement, contracted to sell land to Bell. Bell paid part of the purchase money and went into possession. After this Durbin executed a deed conveying the land to Myers, who claimed to be an innocent purchaser. "We held that Durbin had no interest in the land that he could convey to Myers; that Durbin had sold all the interest that he had in the land to Bell, notwithstanding there was no deed or written contract.
The principles announced in those cases are controlling here., and show that appellant, by its judgment, obtained after Frazer sold the land to Sharpe, acquired no lien on the lands in controversy. A judgment lien, in the language of learned counsel for appellant, “only attaches to an estate in land — not a lien on land. An estate in land is the right to the possession and enjoyment of it. A lien on land is the right to have it sold or otherwise applied in satisfaction of a debt. ’ ’
Here, under the facts, the only interest Frazer had in connection with the land which he had sold to Sharpe was to have the land sold to satisfy his vendor’s lien in oase Sharpe failed to pay the purchase money. But this lien in favor of Frazer, as the vendor, did not give appellant the right to subject the land to sale in satisfaction of its judgment against Frazer. This lien being a mere security for the payment of Frazer’s debt, it was not vend-able under execution issued on appellant’s judgment. The uncontradicted evidence shows that Sharpe carried out his contract of purchase with Frazer. He, therefore, had the right to have the title to the land quieted in himself and the appellee succeeded to all the rights that Sharpe had under his purchase.
The decree is, therefore, correct, and it is affirmed. | [
-79,
110,
-36,
14,
88,
96,
56,
-72,
64,
98,
37,
123,
127,
-61,
48,
107,
-25,
-51,
68,
106,
-9,
-77,
78,
0,
-46,
-77,
-45,
-35,
-71,
-51,
-10,
-43,
76,
52,
-62,
85,
98,
-61,
-55,
24,
-114,
-128,
-120,
97,
-63,
112,
48,
99,
88,
10,
81,
-114,
-77,
40,
53,
-57,
104,
44,
107,
61,
-48,
104,
-66,
-116,
95,
7,
17,
38,
-68,
3,
-40,
46,
16,
49,
12,
-24,
83,
-74,
6,
116,
29,
9,
8,
34,
98,
0,
97,
-1,
-72,
-120,
46,
-22,
13,
-89,
86,
88,
99,
104,
-65,
-101,
126,
20,
39,
118,
-26,
29,
-99,
109,
19,
-113,
-42,
-125,
-35,
-4,
-102,
7,
-17,
-123,
48,
112,
-49,
-86,
93,
101,
120,
27,
-100,
-22
] |
Smith, J.,
(after stating the facts). (1-2) We think the chancellor’s findings of fact are not contrary to the preponderance of the evidence. The proof ahowsthat Anna and Frank Miller were lawfully married, and there was no proof they were ever divorced, except Lidmilla’s statement that Frank had told her he had secured a divorce, and this evidence was, of course, incompetent and proved nothing; and, notwithstanding her own subsequent bigamous marriages, Anna continued to be, and at the death of Frank Miller was, his lawful wife, and entitled to her rights as such. The chancellor decreed that as Frank Miller was indebted for money which he had previously borrowed from his brother, M. C. Miller, to pay the purchase price of the lands sold to M. C. Miller, at the mortgage foreclosure, that there were no dower rights in these lands in favor of Anna Miller, although she did not join in the execution of the mortgage. But as Anna has not appealed from this decree, we are not called upon to review the correctness of that decision.
We think .that the chancellor’s finding that the judgment and mortgages in favor of M. C. Miller were based upon transactions had in good faith is not against the clear preponderance of the evidence. We think, too, that his holding that Lidmilla’s marriage was null and void is correct, and she, therefore, has no rights in this estate, but we do not agree that her children are excluded from the right to participate in the division of that estate.
The decision of that question involves the construction to be given section 2640 of Kirby ’s Digest, Avhich reads as follows: “The issue of all marriages deemed null in law, or dissolved by divorce, shall be deemed and considered as legitimate.” So far as we are advised, this section has never been construed in any case decided by this court. It will be observed that this section was brought forward from the Revised Statutes, and appears in the chapter on Descents and Distributions. It will be observed, too, that the protection of this statute is limited to the issue of marriages. It does not apply to the mere progeny of illicit intercourse, nor to children bom of persons whose relationship is merely that of persons who are illegally cohabiting together as man and Avife; it shields only children born to parents, who undertake to marry, and do marry, but whose marriage for any cause is null in law.
In the case of Furth v. Furth, 97 Ark. 272, it was said that “even if it can be said that a present contract of marriage between a man and a Avoman followed by cohabitation, is valid under the common law, we hold that the common law in this respect has never obtained in this State, ’ ’ and the reason for that holding was there stated to be, that, before the common law was adopted in this State, statutes had been enacted which regulated marriages, and Avhich prescribed the manner and form in which they might be solemnized, and that before the adoption of the common law, as a part of our jurisprudence, marriage was regarded as something more than a contract between the parties to be formed by present words of agreement to live together as husband and wife, and that such contract could not be entered into without being solemnized by some person authorized by statute to do so, and these statutes regulating and prescribing the manner and form in which marriages may be solemnized are mandatory and not directory merely. The point involved and there decided was “that the doctrine of so called common-law marriages has never obtained or become a part of the laws of this State.” But the marriage there sought to be upheld, as a common-law marriage, was one contracted in this State. The question was not involved and it was not decided in that case that such marriages would not be regarded as valid in the courts of this State, if valid in the State where contracted. Upon the contrary, section 5177 of Kirby’s Digest provides that “All marriages contracted without this State, which would be valid by the laws of the State or county in which the same are consummated, and the parties then actually resided, shall be valid in all the courts of this State.” It is true, Lidmilla gives a very unsatisfactory account of her marriage to Frank Miller, and her evidence is very similar to that given in the case of Darling v. Dent, 82 Ark. 76. As in that case, so in this, the wife was unable to state the name of the town where she was married, or the names of any person present. She did not know whether a license had been procured, but testified that a ceremony was performed by a priest, who had a book in his hand from which he read. But in this case of Darling v. Dent, supra, there was quoted the language by Judge Cooley in delivering the opinion of the Supreme Court of Michigan in Hutchins v. Kimmell, 31 Mich. 130, as follows: ’’"Whatever be the form of the ceremony, or if all ceremony was dispensed with, if the parties agree presently to take each other for husband and wife and from that time on live professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage binding on the parties, which would subject them to legal penalties for a disregard of its obligations.” And that case expressly held that the alleged marriage there considered, which occurred in the State of Texas, would be valid without formal ceremony, or the procurement of a marriage license, because common-law marriages were valid in Texas.
But it does not follow that 'because Lidmilla’s marriage was contracted in Texas, where common-law marriages were valid, (that she is entitled to the rights which innre to a lawful wife. The marriage was an unlawful one, because it was bigamous, and we quote again from the case of Darling v. Dent, supra, “While it is true that if it be shown that the relations between Darling and Mrs. Williams were illicit in the beginning the burden is upon those asserting a valid marriage agreement to show that such an agreement was afterward entered into, still there is no presumption that the relationship continued to be illicit or whether it was changed to a legal or moral status.” In case of O’Neill v. Davis, 88 Ark. 196, the facts were that the parties, whose marriage was there questioned, had lived together before the man was divorced from a former wife and‘continued to live together after the man secured a divorce from this wife, and in the opinion by Justice Battle it was there said: “The continued cohabitation after the divorce does not prove that they changed their intent, which was to live together without 'being, married. The concomitants of their illicit relations are not sufficient, by their unasserted probative force to prove that when they were at liberty to marry they embraced the opportunity. As Chief Justice Beasley said of such evidence in Collins v. Voorhees, 14 L. R. A. 364, “to treat evidence which was in all respects and to the utmost degree in accord with the original purpose, as proving, proprio vigore, a change of such purpose appears to be not only inadmissible according to the legal rules, but as being in logic ridiculous.” And we have said there was no proof here that Frank Miller was ever divorced from Anna.
At the common law all children, except the issue of lawful marriages, were illegitimate and remained so; but the harshness of this rule has been much relaxed until now, in most if not in all American States, statutes have been enacted which provide that the issue of a void or voidable marriage shall be- legitimate, notwithstanding the invalidity of the marriage. Long on Domestic Relations (2 ed.), § 244, and cases there cited.
One of the earliest States to enact a statute to this effect was Virginia, where in 1785 a statute was passed which reads as follows: “The issue of marriages deemed null in law, or dissolved by a court, shall nevertheless be legitimate.” The case of Stones v. Keeling, which was decided at the May term, 1804, of the Court of Appeals of Virginia, 5 Call 143, involved the construction of this statute, and the syllabus in that case is as follows: “The issue of a woman by a second marriage, which took place during- the lifetime of her husband, are legitimate after the death of their father.” It was the unanimous opinion of the court in that case that the issue of the second marriage were legitimate, and in a concurring opinion by Roane, Justice, it was said: “The second marriage, therefore, was not lawful; it was even void; but we can not in this case say that it was criminal. Circumstances may exist, such as a belief of the death of the first husband, or a seven years’ absence by him, which may render the second marriage even innocent. We are bound to consider this marriage innocent, for we can not, in this proceeding, inquire into its guilt. But if it were otherwise, if the Legislature should even be supposed to consider every second marriage, living a first husband or wife, as criminal, wherefore should they visit the sins of the parents upon the innocent and unoffending offspring? But this was not the temper of the Legislature. In the case of incestuous marriages, where the parties with full knowledge of the everlasting bar which does and ought to exist between them, enter into this contract, and produce an innocent offspring;, in defiance of laws human or divine; where you can not suppose a circumstance of excuse, except the scarcely possible one of an ignorance of the consanguinity which exists between the parties, their offspring is not bastardized by our laws, on the contrary it is expressly provided (New Code 195, § 13) that the nullification of such marriages shall not be construed to render the issue illegitimate. * * *
“It was said by one of the appellee’s counsel, that the construction I adopt is inadmissible, as tending to encourage bigamy. It 'was well ©aid in answer, by one of the appellant’s counsel, that 'Considerations of this kind, in relation to the offspring, form no part of the in•ducements to marriage. But this is not all. The Legislature itself has given the answer. That Legislature certainly meant not to encourage fornication, or incestuous marriages, and yet it has expressly legitimated the offspring of both. ’ ’
This section of the Virginia Code remained unchanged and was again construed by the Court of Appeals of that State in 1894 in the case of Heckert v. Hile’s Admr., 18 S. E. 841, where it was said: “The controversy in this case is between the children of Peter Hile by a lawful wife, who left her husband and went to the State of Michigan, and the children of said Peter Hile by another woman, married by him during the lifetime of his first wife, who were born before the dissolution of the marriage of the first wife. The circuit court decreed that the first marriage was lawful and the children legitimate; that the second marriage was null, but that the children of this null marriage were legitimate — made so by our statute (section 2554, Virginia Code), * * * and that the second set of children, being legitimate, inherited from the father as the first set, the issue of the legal marriage. There can be no doubt of the correctness of this decision. The case comes within the plain provision of the statute cited above, which is of ancient date in this commonwealth, and was carefully considered and construed in 1804 in this court, in the case of Stones v. Keeling, 5 Call, 143 — -a decision under which we have since rested. In that case the law was considered in every aspect under which it should be regarded, and was sustained and made effective. But it is contended by counsel for the appellants that a recent case in this court has substantially overruled Stones v. Keeling, and they cite Greenhow v. James, 80 Va. 636, but we do not so regard it. That was the case of illegitimate children of a white person by a negro, who left the State and were married abroad. The distinction is sufficiently drawn in the opinion in that case; and in the case of Stones v. Keeling, supra, Judge Roane, who delivered one of the opinions in that case, does the same on page 148, saying: ‘The law concerning marriages is to be construed and understood in relation to those persons only to whom that law relates, and ■ not to a class of persons clearly not within the idea of the Legislature, when contemplating the subject'of marriage and legitimacy. ’ ■ The case of Greenhow v. James does not affect this case, nor the case of Stones v. Keeling, and the last named case is a distinct authority on this, case, and we think, upon the plain terms of the law, and the reason of the Legislature in enacting the same, is correct. We therefore affirm the decree of the circuit court of Rockingham County.”
This section of the Virginia Code was enacted by the Legislature of Ohio, and the Supreme Court of that State adopted the construction of the Virginia court in Ives v. McNicoll, 59 Ohio Stat. 402, and in the opinion in that case it was there said: “The statute of Ohio is a transcript of the statute of Virginia on the same subject; passed in 1785, .and entitled, ‘An Act concerning the course of descents.’ The bill was drafted and reported by a committee, of which Thomas Jefferson was one, after some years of deliberation, and was adopted by the Virginia Legislature, omitting the exception of the civil law, and the law of Scotland, as to adulterine bastards, and disregarding the common law of England, which prevented all bastards from becoming legitimated.
“The statute of Virginia did not follow nor adopt any of the European laws as to bastards, but enacted a new statute on the subject, to be construed and enforced by reference to the words used in the statute itself, untrammeled by the rules of the civil law. The courts of Virginia, both before and after the adoption of our statute, construed the statute of that State as having abrogated the exception of the civil law as to adulterine bastards. Stones v. Keeling, supra; Browne v. Turberville, 2 Call, 390; Templeman v. Steptoe, 1 Munf. 339; Davis v. Rowe, 6 Rand. 355; Garland v. Harrison, 8 Leigh, 368. When we -adopted in this State the Virginia statute as to bastards, we adopted with the statute the construction placed upon it by the courts of Virgina, and -at each reenactment of the statute we acquiesced in the constructions up to that time placed upon the statute by the courts of Virginia, no construction having in the meantiiae been placed upon the statute by our. own courts. *' * * When the Legislature of this State adopted the Virginia statute, in 1805, it was familiar not only with the Virginia statute,' but also with the civil law, the law of Scotland, the common law of England and the Code of Napoleon, and the omission of the exception -of adulterine bastards was not in ignorance of those laws, but was with the purpose of wiping out the exception and doing justice to the innocent offspring.”
A very similar question to the one here under consideration was involved in the case of Leonard v. Braswell, 99 Ky. 528; 36 L. R. A. 707. A number of authorities were there reviewed and the -syllabus of that case is as follows: “The -offspring- of a bigamous marriage contracted in Illinois, where it is void, may, as legitimate heirs, inherit lands in Kentucky, where the parents lived, by virtue of the Kentucky statute declaring that the issue of an illegal or void marriage shall be legitimate. ’ ’
It is seen that our statute is practically a cop3>- of the Virginia statute, and we conclude therefore that a proper' construction of section 2640 -of Kirby’s Digest requires us to hold that the children of this second marriage -are legitimate and are entitled to -share as such in the division of the estate of Prank Miller.
A fee of one- thousand dollars had been allowed by the -chancellor to the attorney for the appellants, but later an order was made setting aside the order allowing the fee. This fee should not have been allowed, and- we approve the order disallowing it. Gardner v. McAuley, 105 Ark. 439.
The decree of the chancellor will be affirmed in all respects, except in the particular indicated, as to which it is reversed, and the cause will be remanded with directions to the chancellor to arrmncl his decree accordingly. | [
48,
-8,
-35,
-18,
58,
-96,
-118,
-40,
106,
-54,
37,
115,
-19,
90,
16,
105,
-96,
73,
80,
106,
-42,
-77,
23,
-63,
118,
-77,
-7,
-35,
-79,
77,
-18,
126,
76,
48,
-118,
-43,
102,
-117,
-63,
112,
-122,
7,
-120,
-23,
-40,
80,
52,
107,
-48,
15,
97,
-34,
-77,
44,
-99,
119,
44,
46,
75,
-67,
-64,
56,
-114,
4,
75,
22,
-77,
21,
-76,
-89,
-56,
42,
16,
25,
9,
-24,
51,
-74,
-122,
84,
111,
-71,
-119,
98,
98,
4,
-19,
-3,
-108,
-104,
-113,
-57,
29,
-89,
19,
88,
3,
97,
-65,
-99,
100,
80,
46,
122,
-18,
29,
29,
-28,
25,
-113,
-42,
-77,
-115,
114,
-102,
3,
-25,
-29,
48,
113,
-49,
50,
93,
99,
120,
25,
14,
-84
] |
Hart, J.,
(after stating the facts). (1) The court should not have given the defendants leave to file a bill of review. To support a bill of review for newly discovered matter, the matter must be such as could not have been discovered by the use of reasonable diligence. Boynton v. Chicago Mill & Lumber Co., 84 Ark. 203; Jackson v. Becktold Printing & Book Mfg. Co., 97 Ark. 415; Smith v. Rucker, 95 Ark. 517.
The defendants knew, or by the exercise of reasonable diligence could have known, that Hattie Davis had not acknowledged the deed of trust to H. J. Hale as trustee for W. P. Hale before the rendition of the decree by the chancellor in the fall of 1913.
Moreover, that decree was not a final decree and no appeal could have been taken from it. Therefore the defendants could have presented their additional testimony without a bill of review. In the case of Johnson’s Ex’r. v. Clark, 4 Ark. 235, the court held that under our statute regulating the practice in chancery courts a party is not entitled to an appeal unless upon a final decision or decree, and that where the decree affirms that the conveyance of certain slaves is a mortgage and that the complainant has a right to redeem under it, and directs the master in chancery to take an account and make a report to. the next term of court, these facts clearly show that the decree is merely interlocutory and not final or conclusive between the parties.
In the case of Bennett v. Walker, 92 Ark. 607, this court quoted with approval from the case of Davie v. Davie, 52 Ark. 224, as follows: “In this case, while'the decree takes the form of a final order in adjudicating the parties’ proportionate interests in the land, it is apparent that the .court has not fully adjudicated that branch of the cause. The relative interests of the parties in the land have been ascertained and determined, but the cause is retained with a reference to a master who is directed to report at a subsequent term, and the court is yet to determine, upon the coming in of the report, what amounts shall be charged as liens upon the several interests, and whether there shall be a sale of some of the interests to satisfy the same. The decree does not direct its execution, but looks to further judicial action before that event. The plaintiffs can suffer no injury by awaiting the termination of the litigation. ’7
Under the rule there announced, the decree of the chancellor entered in the fall of 1913 was clearly interlocutory and was not a final decree in the case. In that decree the court found that the deed of trust given to H. J. Hale as trustee for W. P. Hale was a first mortgage on the homestead and that the mortgage given to F. B. Hale as trustee for the Osceola Cotton Oil Com pany was a second lien upon the homestead of Charles Davis. No foreclosure of either mortgage was made. The decree did not direct its execution but looked to further judicial action before that event. It was necessary that there should be an ascertainment not only of the amount due under the mortgage, but that there should be a foreclosure of the same ordered before the decree could be considered final. It follows that it was a matter within the discretion of the court to permit additional evidence to be taken in the case.
The property embraced in the deed of trust given in favor of W. P. Hale embraced the homestead of Charles Davis. The act of March 18, 1887, provides that no conveyance, mortgage or other instrument affecting the homestead of any married man shall be of any validity unless the wife joins in the execution of such instrument and acknowledges the same. Under this statute the wife must not only join in the execution of the deed of trust but inust also acknowledge that she has executed it in order to render it a valid encumbrance against the homestead. Bank of Harrison v. Gibson, 60 Ark. 269; Pipkin v. Williams, 57 Ark. 242.
In the instant case Hattie Davis testified that she did not acknowledge the deed of trust. The certificate of acknowledgment was filled out and the impress of the notary’s seal, containing the name of S. S. Semmes was attached to the certificate, but the officer’s name was not subscribed to the certificate of acknowledgment and it did not appear in the body thereof. Section 5395 of Kirby’s Digest, provides that all mortgages shall be acknowledged in the same manner that deeds for conveyance of real estate are now required to be acknowledged. Section 746 of Kirby’s Digest provides that every officer who .shall take proof of the acknowledgment of any deed or conveyance of real estate shall grant a certificate thereof and cause such certificate to be endorsed on such deed, and further provides that the certificates shall be signed by the officer before whom the same is taken and sealed if he have a seal of office.
In reference to the precisé question here involved, in 1 Ruling Case Law, § 57, p. 278, it is said: “The statutes relating to acknowledgments either in express language or by implication require the officer taking an acknowledgment to subscribe his name to the certificate, and it is imperative that this requirement be complied with. The insertion of the name of the officer in the body of the certificate — in accordance with the common practice to prepare the certificate in advance so that the officer has only to sign his name — will not be deemed to constitute his official signature so as to supply the omission to sign at the conclusion. The failure of the officer to affix his signature renders the certificate null and void as a general rule, and this although the certificate may have been attested by his official seal.”
To the same effect see Clark v. Wilson, 127 Ill. 449, 11 Am. State Rep. 143; Marston v. Brashaw, 18 Mich. 81, 100 Am. Dec. 152.
It is also contended by the appellants that if the deed of trust be construed as invalid, that the acknowledgment is cured by the curative act passed February 10, 1911. See General Acts of 1911, p. 12. We can not agree with them in that contention. That- act cures defective acknowledgments where words required by law to be in the certificate of acknowledgment have been omitted, or where the officer has failed or omitted to attach his seal of office to the certificate of acknowledgment. It does not purport to cure an acknowledgment where the name of the acknowledging officer was not subscribed to the certificate of acknowledgment.
It follows that the deed of trust given in favor of H. J. Hale as trustee for W. P. Hale did not create a valid encumbrance against the homestead because the. acknowledgment thereto was not subscribed by the acknowledging officer as required under the statute.
It is also contended by counsel for the defendants that the deed of trust given to secure the indebtedness of Charles Davis to the Osceola Cotton Oil Company did not create a valid encumbrance on the homestead because the acknowledgment was taken by an officer and stockholder of the corporation. In a case note to Ardmore National Bank v. Briggs Machinery & Supply Company, 20 Okla. 427, 94 Pac. 533, 16 Am. & Eng. Ann. Cas. 133, 23 L. R. A. (N. S.) 1074, it is said that a majority of the decided cases is to the effect that a stockholder of a corporation has a beneficial interest in a mortgage given to the corporation in which he is a shareholder and that he is, therefore, disqualified from taking an acknowledgment of such mortgage. The reason given in most of the cases is that the taking of an acknowledgment is a quasi-judicial act, and that though a stockholder in a corporation has no independent ownership in the corporation, still he gets the benefit of an enhancement in the value of the corporate property by the increased value of his shares and that his holdings of stock may be so large that almost any transaction of the corporation may affect the value of his shares.
On the contrary, the rule in some of the States is that a shareholder of a corporation is not directly interested in the property of the corporation and the taking of an acknowledgment by him to ia deed or mortgage to the corporation of which he is a shareholder being strictly a ministerial act, is not invalid.
In 1 Euling Case Daw, section 41, 270, the author says that neither of these views expresses the true rule. We quote therefrom as follows: “The truth seems to be that no arbitrary rule will prove a safe test for determining in every instance whether .an officer is disqualified to act because of interest. The facts and circumstances of the case should be deemed of controlling importance, and the decision should proceed with reference thereto. Undoubtedly, it is unwise and contrary to public policy for an officer to take an acknowledgment to any instrument to which he is a party, or in which he is interested directly or indirectly. In any event, he should be disinterested and entirely impartial as between the parties. But arbitrarily to declare his act ipso facto void is repugnant- to sound principles of the law of evidence, ¡and in many cases must be productive of great hardship and injury. A more salutary rule declares that where there is no imputation or charge of improper conduct or bad faith or undue advantage, the mere fact that the acknowledgment was taken before an interested officer will not vitiate the ceremony or render it void, if otherwise it is free from objection or criticism. The fact of interest, however, ought to be regarded with suspicion and should provoke vigilance to detect the presence of unfair dealing, the slightest appearance of which the party seeking to uphold the acknowledgment should be required to clear away.”
The Supreme Court of Tennessee has held that an acknowledgment of a mortgage to a corporation taken by one of its stockholders is not void but is voidable, and will be set aside upon the slightest evidence of undue advantage, fraud or oppression arising out of such interest of the officer taking the acknowledgment. Cooper v. Hamilton Perpetual Building & Loan Assn., 97 Tenn. 285, 37 S. W. 12, 33 L. R. A. 338. There a husband and wife executed a mortgage to a corporation to secure payment of a loan. The acknowledgment was taken by a. stockholder and director of the corporation. There was no fraud practiced by the officer or the corporation. The court held the acknowledgment valid.
In the case of Green v. Abraham, 43 Ark. 420, we held that a party to a deed could not take an acknowledgment to it. The reason is that he is a party, and is directly interested in the transaction. We also held in the case of Biscoe v. Byrd, 15 Ark. 655, that the taking of an acknowledgment to a deed or mortgage belongs to that class of duties which are recognized by this and other courts as strictly ministerial. In the case before us, it does not appear from the face of the deed or of the certificate of acknowledgment that the officer before whom the acknowledgment was taken was a stockholder in the corporation.
The undisputed evidence shows that the deed cf trust under consideration was given to secure a valid debt and the amount for wliich judgment was rendered was due and unpaid. There was no fraud alleged or proved in regard to the execution of the mortgage, and no coercion or undue advantage was taken of the parties executing the deed of trust either by the officer who took the acknowledgment or by the corporation itself. Under these circumstances, we think the acknowledgment was not void, and that the deed of trust created a valid lien on the homestead.
From the views we have expressed it follows that the decree, in so-far as it ordered a foreclosure of the mortgage given to F. B. Halé as trustee for the Osceola Cotton Oil Company, will be affirmed; and that so much of the decree as ordered a foreclosure of the deed of trust given to H. J. Hale as trustee for W. P. Hale will be reversed and the cause remanded with directions to the chancellor to dismiss the complaint for want of equity. | [
-12,
-18,
-36,
-67,
74,
-30,
2,
-102,
75,
105,
35,
83,
109,
-54,
-120,
103,
-90,
57,
85,
105,
-52,
-110,
23,
67,
-14,
-45,
-37,
-35,
-79,
-49,
102,
94,
76,
48,
-54,
-11,
103,
-56,
-59,
82,
-114,
29,
24,
69,
-15,
64,
48,
99,
116,
79,
-107,
-100,
-13,
44,
29,
-53,
105,
41,
107,
61,
-48,
-72,
-98,
15,
95,
4,
-79,
102,
56,
7,
72,
122,
-40,
49,
11,
-23,
99,
-74,
-126,
86,
9,
43,
8,
-30,
98,
33,
77,
-21,
24,
-104,
39,
118,
-115,
-89,
24,
72,
67,
109,
-98,
-11,
40,
16,
38,
110,
-25,
-59,
93,
44,
9,
-113,
-74,
-109,
11,
52,
-106,
19,
-22,
-125,
0,
52,
-51,
-14,
94,
-57,
81,
27,
-114,
-123
] |
Hart, J.
J. W. Fuqua, as administrator of the estate of Mrs. Ida Fuqua, instituted this action against the St-. Louis, Iron Mountain & Southern Railway Company to recover damages on account of the alleged negligence of said railway company in failing to provide a safe platform for its passengers. The railway company de nied negligence, and alleged contributory negligence on the part of Mrs. Ida Fuqua. The facts proved by appellee, briefly stated, are as follows:
The depot platform of the railway company at Arkansas City is made of cinders and clinkers and the platform is about five feet higher than the surrounding land and has a retaining wall around it constructed of wooden beams. On the 7th day of September, 1911, Mrs. Ida Fuqua and one of her daughters debarked from one of appellant’s passenger trains at Arkansas City and started across the platform. Just as they arrived at the top of the steps, Mrs. Fuqua fell. Her daughter at the time had hold of her arm and they both stumbled and fell together.
Mrs. Fuqua was a small woman, weighing about ninety-three pounds, and her daughter held her up so that neither of them fell flat to. the ground. They both stumbled and fell down the steps, and Mrs. Fuqua was wrenched in the fall. The' daughter stated that as they went to step off the platform down to the steps there was a projection of the retaining wall four or five inches higher than the cinders which composed the platform and that her mother stumbled over this projection and that caused her to fall.
Mrs. Fuqua and her daughter went about two blocks from the depot to the office of Mr. Fuqua. Mr. Fuqua then assisted his wife home and placed her in bed. She began to have hemorrhages from the womb a day or two after that and continued to have them until her death, about eleven months thereafter. She was never able to leave the house after she was injured and suffered intense pain most of the time thereafter until she died.
On the other hand, it was shown by the railway company that there was no projection of the retaining wall above the floor of the platform and that the platform.was •safe in every particular.
It is contended by counsel for appellant that the railway company was not guilty of negligence in construct ing and maintaining its platform and that Mrs. Fuqua was guilty of contributory negligence.
In the ease of the Arkansas Midland Railway Company v. Robinson, 96 Ark. 32, the court held: “It is the duty of a railway company to exercise ordinary care to keep its platform in a safe condition for the use of its passengers and others who have a right to go there.”
In that case there was testimony tending to prove that plaintiff went upon defendant’s platform for the purpose of taking passage upon the cars, that her heel caught in a small hole in the platform steps, that she lost her balance, fell, and was injured. A finding that the defendant was negligent and that plaintiff was not guilty of contributory negligence was sustained. See, also, St. Louis, I. M. & S. Ry. Co. v. Barnett, 65 Ark. 255.
It will be noted in the present case that the evidence for appellee shows that the depot platform was about five feet higher than the surrounding land .and that steps were constructed leading up to the platform; that a retaining wall was constructed around the platform and that it projected four or five inches above the floor of the platform where the steps were. Mrs. Fuqua and her daughter debarked from the train and started to go down the steps of ‘the platform, when Mrs. Fuqua’s foot was caught on the projection above the platform which caused her to stumble' and fall. W.e can not say, as a matter of law, that she saw, or should have seen, the prdjection above the platform, and was, therefore,- guilty of negligence.
As was said in the case of St. Louis, I. M. & S. Ry. Co. v. Barnett, supra, “Passengers are invited by railroads upon their station platforms for the purpose of making entrance to and exit from their trains. There is always more or less noise and confusion incident to the running of trains. Then the jostling and scurrying to and fro of the crowds, passengers and others, coming and going, altogether, make the circumstances quite unpropitious for passengers to make minute or extended investigations for their own safety. They do not have to do so. They may naturally and properly expect that the railroad has used every reasonable and prudent precaution to make their platforms safe, and may rest upon that assurance, only exercising ordinary care to prevent injury to themselves in the use of them.”
The jury were the judges of the credibility of the witnesses and the weight to be given to their testimony, and, under the facts and circumstances adduced in evidence, we think the questions of the negligence of the railway company and the contributory negligence of Mrs. Fuqua were properly left tó the jury as questions of fact.
Counsel for appellant offered to prove by a physician who had attended Mrs. Fuqua that she was afflicted with cancer and died of that disease. The court held that the testimony was incompetent, and the ruling of the court was correct. The excluded testimony was objected -to by counsel for appellee because under section 3098 of Kirby’s Digest a physician may not disclose any information which he may have acquired from his patient while attending him in a professional character and which information was necessary to enable him to prescribe as a physician. See Missouri & North Arkansas Railroad Co. v. Daniels, 98 Ark. 352; Mutual Life Ins. Co. of New York v. Owen, 111 Ark. 534; 164 S. W.720.
Counsel for appellant asked the court to instruct the jury that if it should find from the evidence that by the exercise' of ordinary care for her own safety Mrs. Fuqua could have prevented the injury, then it was the duty of the jury to find for the railway company. The instruction asked was fully covered by another instruction given by the court and there was no error in refusing to give it. We have repeatedly held that the court is not required to multiply instructions upon the same point. Counsel for appellant admit that the instruction given by the court covered the point, but claim that the instruction given was not in as simple and plain language as that asked by them. We do not agree with them in this contention. We have examined the instructions given by the court on this point, and think the jury could not have misunderstood its meaning. It, therefore, was not necessary for the court to repeat the instructions in another form at the request of appellant.
Finally, iit is insisted by counsel for appellant that the verdict is excessive, and this we consider the most serious question in the case. Appellee recovered judgment in the sum of $1,500. Mrs. Fuqua died about eleven months after she was injured, and during the whole time suffered intense pain. If her suffering, as contended by appellee, was caused by falling down the steps of the railway company’s platform, then, of course, the verdict is not excessive.
It is contended by the railway company, however, that her suffering and death were not caused by the fall but resulted from cancer, with which she was afflicted at the time she received the injury. They admit that she received a slight injury, but say it was only temporary and for a brief space of time, and contend that her subsequent suffering resulted from the cancer with which she was afflicted at the time she was injured.
One of the daughters of Mrs. Fuqua testified that the attending physician told her that her mother was afflicted with cancer and that she was dying of that disease. Physicians introduced by the defendant testified that the discharges from a woman suffering with uterine cancer are very offensive and have a very peculiar odor; that there is always a sloughing off of the womb which is caused by the hemorrhages; that the patient will probably have frequent headaches; that one of the early symptoms of cancer of the womb is headache and that the hemorrhages always relieve the headache temporarily; that cancerous headaches come from the enlargement of the uterus, and usually first affect the patient in the back part of the head and then extend all over the head.
The mother-in-law of Mrs. Fuqua testified that on the day Mrs. Fuqua received her injury and was brought home she looked to be in a very bad condition; that she was pale and had to be helped up the steps of the front porch and np the stairs in the house; that she was not able to get up the steps without assistance; that after she was undressed her underclothing was spotted around the bottom; that she suffered intensely from that time until she died; and that she was never able to get out of her bed any more except to be wheeled around in a chair. She stated that she was with her constantly after she received her injuries and that she never saw any one suffer more pain than she did during the eleven months she lived after receiving the injury; that a physician examined Mrs. Fuqua about two weeks after the accident; that during the time before the examination was made Mrs. Fuqua constantly had hemorrhages from her womb; that she assisted the physician in making the first examination; that she did not see any sloughing condition of the womb; that it looked like a cut or split; that at first she did not discover any odor at all; that she first began to discover an odor about two or three months after the injury was received; that at this time the condition of the hemorrhage changed; that there was then more mucous than anything else mixed with the blood; and that after that time, for the most part, there was no odor when she had a hemorrhage.
One of the daughters of Mrs. Fuqua testified that her mother was a small woman and had never been robust, but that she had been in fairly good health prior to the time she received her injuries, and that she had been subject to headaches all her life. She was examined, cross-examined and re-examined as to the violence with which her mother fell, and we think it may be fairly inferred from all her testimony that she said, in effect, that though her mother did not fall flat to the ground because she held her up, she did fall with considerable force down the steps and would have fallen heavily to the ground had she not been held up by her.
The rule is that where fair-minded men might honestly differ as to the conclusion to be drawn fromfacts, whether controverted or uncontroverted, the question at issue should go to the jury. Direct testimony that the subsequent suffering of Mrs. Fuqua resulted from the fall, such as testimony from physicians to that effect, is not essential, but it is sufficient if the circumstances be such as to fairly permit the inference that the suffering of Mrs. Fuqua, as testified to by witnesses for appellee, was caused by the injury which she received.
(7) We have not adopted the rule that a scintilla of evidence is sufficient to support a verdict and that for that reason the verdict of the jury can not be based upon surmise and conjecture. While this rule is not to be ignored, it is equally well settled that any issue of fact in controversy may be established by circumstantial evidence where the circumstances adduced in evidence are such that reasonable minds might draw different conclusions therefrom. See St. Louis, I. M. & S. Ry. Co. v. Hempfling, 107 Ark. 4:76.
It will be noted that the physician testified that in oases of cancer of the womb there was always a sloughing and also a very peculiar odor from the hemorrhages. The mother-in-law of Mrs. Fuqua, who was with her constantly, testified that she was present when Mrs. Fuqua was examined about two weeks after receiving her injuries and assisted the physician in making the examination and that there was then no sloughing of the womb, but that there appeared to be a cut at the edge of the womb. She also stated that there was no peculiar odor from the womb, such as comes from cancer, and that she discovered no odor whatever from the hemorrhages until about two or three months after Mrs. Fuqua received her injuries, and then only for a short time, and that thereafter, at very infrequent intervals, she discovered the same odor.
When we consider these facts, and the further fact that Mrs. Fuqua was able to walk about before she received her injuries and was afterward unable to walk at all, we think it was for the jury to say whether or not the injury she received caused her subsequent suffering and death.
As above stated, though she did not fall flat to the ground, she did stumble down the steps which extended up to the platform, the floor of which was five feet higher than the adjacent ground, and the jury might have inferred that she would have fallen heavily to the ground had she not been held up by her daughter. She was a frail woman, and might have been severely wrenched in her stumbling or falling down the steps, and when all the facts and circumstances are considered in their light most favorable to appellee, we think the jury were warranted in finding that Mrs. Fuqua sustained injuries which resulted- in her subsequent suffering when she ■stumbled and fell from the platform.
We find no prejudicial error in the record, and the judgment will be affirmed. | [
-16,
105,
-39,
-50,
8,
106,
40,
-120,
103,
-61,
-91,
-45,
-19,
-45,
1,
107,
98,
127,
-47,
57,
80,
-77,
7,
42,
-110,
-45,
115,
-43,
-78,
74,
-28,
-10,
77,
32,
75,
21,
-58,
74,
-59,
92,
-118,
-96,
-54,
-20,
25,
-64,
48,
127,
-44,
70,
113,
-98,
-1,
42,
28,
75,
44,
45,
109,
-95,
-6,
-72,
-118,
77,
127,
22,
33,
38,
-73,
-127,
-22,
24,
-40,
53,
32,
-72,
114,
36,
-126,
116,
75,
-55,
12,
98,
102,
33,
-99,
-25,
40,
-104,
38,
-82,
-83,
-89,
34,
9,
91,
15,
-67,
-107,
89,
-44,
6,
-6,
-4,
65,
89,
44,
-127,
-117,
-74,
-79,
-65,
97,
-108,
51,
-21,
1,
34,
117,
-56,
98,
92,
6,
59,
-101,
-50,
-2
] |
McCulloch, C. J.
The charge in this case against appellant is forgery, in altering the indorsement of an administrator on a claim presented against the estate so as to show an allowance of the claim 'by the administrator, whereas the indorsement signed by the administrator was a disallowance of the claim. The indictment sets forth in hec verba the true indorsement signed by the administrator showing that the claim was “not allowed,” and also the altered indorsement showing that the word “not” had been erased. The claim itself is not set forth in the indictment, but is described as “Claim No. 5, A. B. Quertermous v. The Estate of G. W. Fraser, deceased, Arthur Fowler, Administrator, said claim being for $299.25.”
The evidence adduced by the State was sufficient to prove that the administrator refused to allow the claim and. made his indorsement thereon accordingly, showing that is was “not allowed;” that the claim as thus indorsed was delivered by the administrator to appellant, who carried it to the office of the probate court clerk and filed it, and that when filed by appellant the word “not” was erased so as to show the allowance of the claim.
There was a demurrer to the indictment, and it is now insisted that the indictment was insufficient because the claim, which bore the indorsement of the administrator, was not set out in the indictment.
The law is well settled that the instrument alleged to have been forged must be set out in the indictment; the object of the rule being not only to put the defendant upon notice as to the nature of the instrument he is charged with forging, but also that the court may be able to determine upon the face of the indictment whether the instrument is a writing that can be forged. Cross-land v. State, 77 Ark. 537. Now, the indictment in this case sets forth fully the indorsement which is alleged to have been altered. Even if the indorsement be treated as a part of the claim, yet the material part of the instrument, so far as concerns the forgery, is the indorsement ; and it is sufficient if that be set forth in the indictment, together with such a description of the claim as is sufficient to show its materiality and to apprise the accused of the nature of the charge against him. The indictment in this case describes the claim with sufficient particularity to put the accused on notice and to show the nature of the claim. The particular form of the claim is immaterial for the reason that the accused is not charged with altering it in any manner.
In the case of State v. Maupin, 57 Mo. 205, the charge in the indictment was that the defendant had forged a judge’s certificate to a fee bill, and the indictment set forth, in extenso, the certificate, but not the fee bill. On demurrer the indictment was held to be sufficient.
It is also urged that the indictment in this case charges that appellant forged the claim, but we are of the opinion that when the whole instrument is read to getlier it is made very clear that the charge only involved the forgery, by alteration, of the indorsement.
The statute under which the indictment was preferred reads as follows: “If any person shall forge or counterfeit any writing whatever, whereby fraudulently to -obtain the possession or to deprive another of any money or property, or cause him to be injured in his estate or lawful rights, or if he shall utter and publish such instrument, knowing it to be forged and counterfeited, he shall, on conviction, be confined in the penitentiary not less than two nor more than ten years.” Kirby’s Dig., § 1714.
It will be seen that the statute is very broad and makes it an offense to forge any writing whatever to ¡deprive another of money or property “or to cause him to be injured in his estate or lawful rights.” The statute governing the duties of administrators and executors, and of probate courts, with respect to claims against estates, provides that the executor or administrator, if satisfied that an exhibited claim is just, shall indorse thereon his approval and allowance of the same and shall 'keep a list of the demands and make return thereof to the probate court at least once every year. The statute also makes it the duty of the court to examine the claim, whether allowed by the administrator or not, to determine its validity.
It is argued that 'the alleged alteration is immaterial for the reason that is did not -affect the force or validity of the claim inasmuch as it had to be allowed by the court. We think that contention is unsound for the reason that the procedure is different where the claim is allowed by the administrator from what it is in case the claim is disallowed. The proceedings cease to be adversary when the administrator or executor allows the claim, though it is the duty of the court to examine the same before allowing and. classifying it. The statute does not contemplate a regular trial on a claim which has been allowed by the administrator, but a mere examination by the court to such an extent as to enable the court to determine whether the claim appears to be a just one. Therefore an alteration of the indorsement of disallowance changes the status of the claim and thus deprives the estate of -a lawful right within the meaning of the statute. The indorsement of an executor or administrator, showing his allowance, has at least persuasive force with the court in passing upon its validity, and a change in the indorsement necessarily affects the rights of the estate, which, under the statute, are to be safeguarded both by the executor or administrator and by the probate court. Our conclusion, therefore, is that the writing alleged to have been forged was of such a character as falls within the terms of the statute.
Appellant moved for a continuance of the case on account of the absence of an important witness, one W. H. Bradford, who was out of the jurisdiction of the court. Appellant’s counsel caused a subpoena to be issued directed to the sheriff of Arkansas County, commanding Mm to summons Bradford and numerous other witnesses. The sheriff’s return indorsed upon the writ showed the service on all the witnesses, but it was .shown by the deputy sheriff who served the writ that Bradford was not in fact served, and that the return indorsed on the writ by the sheriff was erroneous in that respect. It was also shown that Bradford had moved away from Arkansas County about two years before the trial and had been in Mississippi with Ms family for a considerable length of time. Appellant made no showing that he was misled by the return of the sheriff or that he was not advised that the witness Bradford was absent from the State. Under the circumstances, we are of the opinion that the court did not abuse its discretion in refusing to postpone the trial.
The bill of exceptions recites that the testimony of the deputy sheriff was introduced before 'the jury at the commencement of the trial, and not before the court on the hearing of the motion for continuance. It is evident, however, that the testimony was introduced merely for the purpose of showing that the absent witness had not been served and was beyond the jurisdiction of the court and that bis absence afforded no grounds for postponing the trial. It had no bearing whatever on the issues involved in the trial and should not have been admitted before the jury. Appellant insists that this constituted error which calls for a reversal of the judgment, but we are unable to discover possibility of a prejudicial effect from that testimony. The motion for continuance was not read nor referred to in the presence of the jury, and the testimony of the officer had no tendency to contradict .appellant nor to discredit him in any way, so it is difficult to see how his rights were prejudiced by the jury being permitted to hear it. The court held in Burris v. State, 38 Ark. 231, and Polk v. State, 45 Ark. 165, that it constituted error to permit the State, in a criminal prosecution, to read to the jury the defendant’s affidavit for a continuance and then prove that the statements in it were false. That was not done, however, in the present case.
Error is also assigned on account of the court’s refusal to postpone the trial long enough to enable appellant to procure witnesses to rebut the testimony adduced by the State attacking his character for truth and morality. There is nothing in the bill of exceptions to support this assignment but an affidavit of by-standers was filed showing that at the close of the trial the attorney asked the court to adjourn the case over and give him an opportunity to procure witnesses. It is well settled, by repeated decisions of this court, that before the certificate of by-standers can avail, it must appear that the exception has been presented to the trial judge in the bill of exceptions and refused. There appears in the bill of exceptions in this case, an erased statement to the effect that “the court inquired if there were any more witnesses to be introduced and defendant asked for more time in--which to procure witnesses to bolster his character, which was denied by the court, and defendant asked that his exceptions be noted of record, which was done.’,’ There are lines drawn through -this statement showing that it was excluded, but it does not appear who did this, whether the judge or some one else before the bill of exceptions was presented for signature. The certificate of the judge is to the effect that the bill of exceptions signed and filed is the one presented by the appellant, and we must assume from this certificate that the judge made no corrections in it. The proper practice is to show .by indorsement of the trial judge that the exception was presented to him and refused, and this admits the certificate .of the by-standers. It may be added, however, that the exception, even if shown as certified by the by-standers, is not sufficient to show that there was an abuse of the court’s discretion in refusing to postpone the trial for the further introduction of evidence; for it does not appear that the circumstances were such that appellant could not have anticipated that the State would attack his character for truth or morality when he took the witness stand in, his own behalf.
The bill of exceptions „is also insufficient to bring up for review the assignment with respect to alleged exposure of the jury to improper influences. There are two affidavits certified by the clerk as being filed with the motion for new trial, showing that certain jurors, during the progress of the trial, were exposed to influences of citizens who were antagonistic to the defendant and expressed desire for his conviction. The bill of exceptions is entirely silent about there being any affidavits or proof concerning the alleged misconduct. ’ In fact, the bill of exceptions contains no reference to the motion for new trial or the affidavits in support thereof. The court held, in Ferguson v. State, 95 Ark. 428, that it is the duty of the trial judge to examine and consider affidavits filed with the motion for new trial, showing misconduct of the jury, whether the same be actually read to him or not. But in that case the affidavits were identified in the bill of exceptions. Here there is nothing in the bill of exceptions to identify the affidavits, or any other proof in support of the allegations in the motion for new trial. Therefore, we have nothing to guide us in determining what was before the-court when that assignment was considered. The jurors were, by an order of the court, allowed to separate, and the burden was therefore upon appellant to show that they.were subjected to improper influences. In order to impeach the verdict, therefore, the appellant must support his attack by affidavits properly certified in the bill of exceptions. We can not permit the judgment to be overturned merely by an affidavit in the record which is not certified in the bill of exceptions as having been brought before the court and containing all the evidence adduced on that subject.
The statute provides that motion for new trial on grounds of misconduct of the jury “must be sustained by affidavits showing their truth, and may be controverted by affidavits.” Kirby’s Digest, section 6219. The rule of practice established by decisions of this court is that neither motions for new trial nor exceptions to the order of the court overruling them need be set forth in the bill of exceptions if they otherwise constitute a part of the record. Johnson v. State, 43 Ark. 391; Carpenter v. Dressier, 76 Ark. 400. But it does hot follow that affidavits or other evidence adduced in support of the motion for new trial become a part of the record merely by exhibiting same with the motion. They must be incorporated in the bill of exceptions. Mr. Elliott, in his Treatise on Appellate Procedure ('Section 815), lays down the proper rule as follows: “Recitals of fact in direct motions or appended exhibits do not go into the record as part of the motion. Such recitals and exhibits can only be brought into the record by a bill of exceptions. The* motion itself may be in the record without a bill, and yet its statements of fact or exhibits would not be a part of the record. Thus matters of evidence, affidavits, or instructions can not be made part of the record by embody-* ing them in the motion.” And the same rule is stated, with numerous authorities in support of it, in an encyclopedia, as follows: “As a general rule, affidavits are not part of the record proper, whether such affidavits are used in support of a motion for new trial, for a continuance, for a change of venue, to set aside or vacate a default, to 'Sustain or dissolve an injunction, to -set aside or open a judgment, or whether they are used on the hearing of an application for an injunction.” 2 Encyc. of Law, p. 1064.
The precise point was decided by the Supreme Court of the United States in the case of Stewart v. Wyoming Ranch Co., 128 U. S. 383, where the statement was made in the opinion that “affidavits filed in support of a motion for new trial are no part of the record on error unless made so by bill of exceptions.” This court at an early date held that an affidavit for continuance formed no part of the record unless brought up by bill of exceptions. Phillips v. Reardon, 7 Ark. 256. And the same doctrine has been announced by this court in more recent cases. In several cases we have held that while pleadings and exhibits thereto constitute parts of the record for the purpose of deciding upon the question of their sufficiency as pleadings without being incorporated in the bill of exceptions, it is necessary to incorporate such exhibits in the bill of exceptions before they can be considered, as evidence in the case. International Order of Twelve v. Jackson, 101 Ark. 555; National Annuity Association v. McCall, 103 Ark. 201. The assignment is therfore unavailing.
Appellant assigns error in a remark made by the court in passing upon !an objection in the eross-examination of the administrator, who testified positively that he refused to allow the claim and his indorsement stated that the claim was not allowed, but that the same had been changed by erasure of the word “not.” He was cross-examined at length'by appellant’© counsel, and was finally asked to state what else was on the page besides the word “not;” and the prosecuting attorney objected to the line of examination on the ground, as he stated, “it is not expected for a man to remember every word that is on a page.” Counsel for appellant insisted on an answer to the question, and the court permitted him to ask the question, with this remark: “He.may answer the question if he can, but a man would have a remarkable memory to remember every word on a page.” It is insisted that this was improper expression of the court’s opinion as to the credibility of the witness. We do not, however, think so, for the remark was made merely in the court’s ruling, without any intention, manifestly, to express an opinion to the jury. It shows that the court, with some reluctance, allowed the question to be asked. The matter of cross-examination is to some extent within the discretion of the court, as to how far it may proceed, and it certainly would not be an abuse of discretion to refuse to permit a witness to be interrogated concerning his recollection of every word on a written or typewritten page. It is a matter of common knowledge that few persons have memories sufficiently cultivated to remember every word on a page unless he had carefully committed it to memory for some purpose. We understand this remark of the court merely to indicate his reluctance to allow such .a cross-examination to proceed any further on account of the improbability of the witness remembering every word on the page. At any rate, we do not think there is anything in the remark that was probably prejudicial to appellant’s rights.
There are several other assignments of error, which are not, we think, of sufficient importance to call for a discussion. Upon consideration of the whole record, we are convinced that there was no prejudicial error committed in the trial of this case.
The evidence adduced by appellant tended to show that his claim was a just one, and that he did not alter the indorsement, but that the claim was allowed by the administrator and promptly paid by the latter as soon as it was allowed and classified by the court. There are circumstances which tend to corroborate the appellant, but the testimony adduced by the State was sufficient to warrant a finding that appellant altered the indorsement for the purpose of influencing the court in passing upon the validity of the claim. The fact that it was a just claim, or, rather, that the invalidity of it had not been established by evidence, does not affect the question of appellant’s guilt of the crime of forgery. Nor is the case affected by the fact that the administrator paid the claim without appealing to the circuit court, except that it might have affected the credibility of the administrator’s testimony before the jury.
Judgment affirmed. | [
-80,
-20,
-64,
125,
-86,
-32,
56,
-70,
107,
-125,
13,
83,
-19,
82,
4,
99,
-29,
95,
96,
120,
-26,
-78,
82,
67,
-14,
-9,
-93,
-41,
115,
79,
-17,
93,
68,
-92,
-62,
85,
66,
10,
-63,
-36,
-58,
13,
-118,
-52,
121,
80,
48,
105,
81,
15,
113,
-97,
-10,
42,
21,
-61,
41,
44,
75,
-119,
-64,
-32,
-74,
13,
95,
23,
-95,
23,
-72,
77,
-22,
42,
24,
49,
-128,
-24,
114,
-74,
-106,
-10,
3,
57,
-120,
98,
98,
48,
-31,
-81,
-88,
-104,
15,
42,
29,
-89,
22,
73,
107,
103,
-106,
-99,
116,
-48,
7,
-12,
-32,
-99,
17,
108,
13,
-117,
-62,
-77,
31,
124,
-100,
3,
-57,
-95,
20,
80,
-51,
66,
92,
83,
56,
-101,
-50,
-30
] |
Wood, J.,
(after stating the facts). The only question on this appeal is whether or not the court erred in finding that the bond set out above is a statutory bond as prescribed by section 6863, of Kirby’s Digest, which provides that the defendant “may cause a bond to be executed to the plaintiff in the presence of the sheriff by one or more sufficient sureties in double the value of the property to be affected that the defendant shall perform the judgment of the court in the action.”
The bond under consideration is sufficient in terms to constitute a delivery bond within the meaning of sections 6863 and 6870, of Kirby’s Digest.
The appellants contend that the bond under consideration is a bail bond, executed under the authority of sections 6858 and 6859, of Kirby’s Digest. These sections provide that when the defendant in replevin has been taken into custody, he may be discharged “upon executing to the officer, ’ ’ having him in custody ‘ ‘ a bond in a penalty of at least double the value of the property, * * * conditioned that such defendant shall abide the order and judgment of the court in such action, and that he will cause special bail to be put in if the same be required.”
The bond under consideration was not executed to the officer, and was not made to protect him in case the defendant made his escape, and was not present to abide the order and judgment of the court, and was in no sense a penal bond as provided under sections 6858 and 6859. It did not contain all the conditions required by the latter of the above sections. But the bond was executed to the plaintiffs (appellees here), and does contain the conditions essential for a delivery bond as prescribed by section 6863, supra. That section prescribed that the bond shall contain a provision “to the effect that the defendant shall perform the judgment of the court in the action. ’ ’
True, the bond under consideration contains more provisions than are necessary in order to fulfill the requirements of a statutory delivery bond, but that does not render the bond invalid. The statute does not pre scribe any set form of words for the delivery bond and the conditions not required may be treated as surplusage where they are severable, as they are in the present case, from the conditions which the statute requires. 5 Cyc. p. 748. See, also, State v. Smith, 40 Ark. 431-433.
In the sense in which the terms “to abide the order and judgment of the court” are used in the bond under consideration, they mean the same as the terms “to perform the judgment of the court,” as prescribed by section 6863, supra. This would not be the case, of course, but for the other language used in the bond. In Duncan, Trustee, v. Owens, 47 Ark. 388, we held that these terms, when -employed in connection with the capias clause of our statute in replevin constitute a bail bond as specified by sections 6858 and 6859, supra. See, Black’s Law Dictionary, p. 7; Words & Phrases, vol. 1, p. 16; Anderson’s Law Dictionary, p. 6, and cases cited in notes 1 and 2. See, also, John Erickson v. F. A. Elder, et al., 34 Minn. 370 ;C. M. Jackson v. State of Kansas, 30 Kan. 88; Hodge & Wife v. Hodgdon, 8 Cush. (62 Mass.) 294.
But, in the bond under review, the other language “he will deliver to the plaintiffs the property sought to be replevied, or in lieu thereof will pay to them the value of said property as the court may direct, ’ ’ shows that the purpose of the obligor and sureties was to execute a delivery bond, and this, with the other language, is sufficient to meet the requirements of the statute as a delivery bond. This language being used by the obligor and by appellants,'his sureties, it is our duty to hold that it constitutes a delivery bond in compliance with the statute. See, Crawford v. Ozark Ins. Co., 97 Ark. 549.
The court, therefore, did not err in rendering judgment summary against appellants under section 6870, of Kirby’s Digest. The judgment of the circuit court is affirmed. | [
80,
126,
-35,
-66,
75,
96,
43,
-104,
-45,
-61,
35,
115,
-87,
-26,
-127,
43,
53,
127,
-11,
120,
85,
-73,
39,
113,
-15,
-13,
89,
-43,
-79,
79,
-2,
92,
77,
48,
-118,
85,
102,
74,
-11,
90,
-50,
-121,
41,
69,
-47,
82,
52,
-33,
28,
11,
117,
-100,
-45,
34,
16,
-58,
73,
40,
-53,
61,
-48,
-7,
-71,
15,
79,
4,
-79,
100,
-100,
37,
-16,
38,
-116,
49,
1,
-24,
114,
-108,
-122,
-12,
109,
-117,
-116,
70,
106,
0,
84,
-23,
-72,
-120,
46,
-12,
5,
-89,
17,
88,
11,
97,
-122,
-35,
126,
52,
-90,
-2,
-5,
45,
29,
108,
3,
-49,
-16,
-107,
77,
112,
26,
-127,
-58,
1,
48,
69,
-49,
-30,
84,
101,
88,
-5,
-114,
-33
] |
Wood, J.,
(after stating the facts). (1) The chancery court of Marion County had no jurisdiction to administer the estate of J. C. Copeland under the general deed of assignment. The State insolvency act of June 26, 1897, was superseded by the bankruptcy act of Congress of July 1, 1898, insofar as they relate to the same subject-matter and affect the same persons, as was held in Hickman v. Parlin-Orendorff Co., 88 Ark. 519. See, also, Roberts Cotton Oil Co. v. Morse & Co., 97 Ark. 513.
An attack was made by appellant on this deed of assignment by its objection to the Marion Chancery Court assuming jurisdiction to administer the assets under this insolvency act within four months after the deed of assignment. The Marion Chancery Court therefore erred in assuming jurisdiction to administer the personal assets of the estate under this deed of assignment, and the chancery court of Baxter County erred in holding that the Marion Chancery Court had such jurisdiction.
It appears from the pleadings and agreed statement of facts that these errors were not prejudicial to appellant. The appellant does not allege nor show facts sufficient to prove that the deed of -assignment was made for the purpose -of hindering, delaying or defrauding Copeland’s creditors. Mere general allegations to that effect are not sufficient. Appellant does not set up any facts tending to show fraud. The allegations of its complaint as to the transfer of personal property for the lots therein mentioned and the taking of the title to' those lots in Lula B. Copeland are not sufficient to show fraud in this transaction, and the agreed statement of facts shows that the creditors had no right to complain of this, for the personal property transferred was exempt. Copeland and his wife had a right to make such disposition of that property as they pleased. The creditors of Copeland coidd not subject such property to the payment of their debts. See Sims v. Phillips, 54 Ark. 193; Clark v. Edwards, 57 Ark. 331; King v. Hargadine-McKittrich Dry Goods Co., 60 Ark. 1.
The chancery court did not err, therefore, in holding that the title to. the lots in controversy was in Lula B. Copeland, and in quieting her title. The proof fails to show any fraud on the part of appellee J. C. Copeland in making the deed of assignment. Under the pleadings and the agreed statement of facts the chancery court should have entered a judgment in favor of the appellant bank for the additional sum of $114.90, with interest. The undisputed facts «how that this amount was also due the appellant, and the court should have entered a decree for that sum, and doubtless would have done so had a specific request been made for such judgment. The failure to enter such judgment was in the nature of a clerical misprision, and, as the trial is de novo, this court will enter such judgment as the chancery court should have entered upon the undisputed facts of the record. See Greenlee v. Rowland, 85 Ark. 101.
The decree of the Baxter Chancery Court is modified and affirmed, and judgment will be entered here in favor of the appellant for the additional sum of $114.90, with interest at 10 per cent, per annum from August 6, 1912. As it is manifest that the chancery court would have rendered judgment for this sum had its attention been called to the oversight at the time its decree was entered of record appellant is not entitled to the costs of .this appeal, and judgment for costs will be in favor of the appellees.
See Session Laws 1897, Page 115, Act 48. | [
54,
109,
-39,
-68,
90,
-32,
51,
-88,
90,
-31,
37,
83,
-19,
74,
17,
41,
-29,
105,
117,
120,
68,
-77,
19,
35,
82,
-77,
-47,
-35,
-76,
-51,
-12,
-42,
76,
32,
74,
-43,
-58,
-54,
-59,
-40,
-50,
0,
-117,
100,
-39,
80,
52,
-17,
20,
15,
113,
-97,
-13,
47,
49,
67,
105,
44,
105,
-83,
80,
48,
-102,
5,
127,
5,
1,
-27,
-104,
35,
72,
56,
-112,
49,
1,
-24,
115,
-74,
-122,
84,
15,
25,
9,
102,
99,
-95,
5,
-17,
-80,
-104,
6,
-2,
-99,
-89,
-64,
89,
3,
109,
-65,
-99,
125,
17,
7,
-4,
-30,
-123,
93,
108,
13,
-49,
-42,
-105,
15,
36,
-104,
27,
-13,
47,
48,
81,
-49,
-14,
93,
7,
50,
27,
-97,
-13
] |
Hart, J.,
(after stating the facts). The cause was heard and determined before the chancellor at the April term, 1913, of the Columbia Chancery Court. Neither the plaintiff Cowling, nor the defendant Payne, perfected the appeal granted to the Supreme Court by the chancery court. But on the 8th day of April, 1914, the plaintiff, Cowling, obtained an appeal from the clerk of the Supreme Court. Subsequently, the defendant Payne prayed a cross-appeal, which was granted.
When the plaintiff filed his transcript and obtained an appeal from the clerk of the Supreme Court, this brought the whole record before the court .and the defendant, under our statute, had a right to pray and obtain a cross-appeal at any time before the cause was submitted to us for decision. Beidler v. Beidler, 71 Ark. 318; Sow-ell v. Jackson, 86 Ark. 530;
It will be noted from the statement of facts, that the deed of trust from W. W. Britt and wife on the lands in controversy to secure the defendant E. N. Payne for an indebtedness of $500 and the accrued interest, owed him by Britt, was executed on the 12th day of April, 1909, and that the execution under which the plaintiff purchased was delivered to the sheriff of Columbia County on the 14th day of August, 1909. Subsequently, on the 9th day of September, 1910, Britt and wife conveyed the land to Payne in satisfaction of his indebtedness secured by the deed of trust, and for other indebtedness owed by Britt at that time to Payne.
It is conceded by counsel for plaintiff that the deed of trust gave Payne a prior lien on the land in controversy to the lien of the execution under which plaintiff purchased, but it is the contention of counsel for plaintiff that there was a merger when Britt conveyed the lands to Payne in September, 1910, and that this made the execution a prior lien on the land.
It will be remembered that the case was transferred to equity and tried there. “Where a mortgagee takes a conveyance of the land from the mortgagor ór from a grantee of the mortgagor, if the transaction is fair, the presumption of an intention to keep the security alive is very strong. It is generally for the interests of the party in this position that the mortgage should not merge, but should be preserved to retain a priority over other encumbrances. As the mortgagee acquiring the land is not the debtor party bound to pay off either the mortgage or the other encumbrances on the land, there is nothing to prevent equity from carrying out his presumed intent, by decreeing against a merger.” Pomeroy’s Equity Jurisprudence (3 ed.), vol. 2, § 793.
In 27 Cyc., page 1381, the doctrine is stated as follows: “Where a mortgagee receives a conveyance of the equity of redemption, his estate under the mortgage will not merge, but will be kept alive to enable him to defend under it against all liens of third persons, whether by mortgage, judgment, or otherwise, attaching between the execution of the mortgage and the giving of the deed, if his intention to that effect is shown, or if there is noth ing to rebut tbe presumption tbat bis intention corresponded with bis interest.”
Many cases are cited in support of tbe rule, and among them is tbe case of Cohn v. Hoffman, 45 Ark. 376. In tbat case tbe court beld: “Tbe purchaser of mortgaged land at a sale under execution issued upon a judgment rendered against tbe mortgagor since tbe recording of the mortgage, acquires only tbe mortgagor’s equity of redemption, and can not maintain ejectment against tbe mortgagee in possession after tbe breach of tbe condition of tbe mortgage. His remedy is by bill in equity to redeem.”
In the case of Neff v. Elder, 84 Ark. 277, the court said that the doctrine of the merger of the mortgage lien with the legal title when they are united in the same person has no application in a case where the principles of equity demand that they be treated as separate.
In the application of this doctrine to the facts in the present case, it may be said that the lien created in favor of Payne by the execution of the deed of trust on the lands in controversy to him by Britt is not extinguished in equity by the subsequent conveyance of the land to him by Britt, so as to let in a junior lienor in preference to him. The mortgage will be treated as existing, and the land, in the bands of Payne, is not liable to any greater extent to the payment of the ben acquired by the issuance and levy of the execution than it would have been if the land bad remained in the bands of Britt. Tbe judgment is subordinated to the lien of the mortgage and the junior lienor may redeem.
It follows that tbe chancellor did not err in bolding tbat tbe plaintiff could acquire possession of tbe premises only by paying off tbe $500 and tbe accrued interest which was secured by tbe deed of trust executed by Britt to Payne.
In reference to the issues raised by the cross-appeal, it may be said that the statement of facts shows that the land was sold under the execution after the sixty days within which the sheriff bad to return the execution bad expired. In the ease of Hightower et al. v. Handlin & Venneys, 27 Ark. 20, it was held: “The sale of real estate, under an execution, after the return day, is without authority and void.”
In the subsequent case of Huffman v. Gaines, 47 Ark. 226, the court held that a debtor may waive an improper notice of the sale of his property under execution, and does waive it when he suffers the execution to be satisfied, and accepts the surplus of the proceeds of the sale and retains them, after notice of the irregularity. The court further said: “It has been held that even where the sale is void, receiving the purchase money by the debtor would make it valid.”
In the present case, there was no surplus arising out of the sale under execution and consequently the execution debtor did not receive any of the proceeds of the sale under execution. But the land was purchased for the amount of the judgment against the execution-debtor, and was applied to the satisfaction of the judgment, and, as far as the record shows, no objection was made thereto by the execution-debtor. In other words, Cowling bid in the land for the amount of the judgment and costs against Britt, and paid that amount to the sheriff, which was applied in satisfaction of the judgment.
In the case of Neff v. Elder, supra, the court held that a purchaser of land whose money was used in discharging a valid mortgage lien thereon, upon failure of his. title, will be subrogated to such lien as against the intervening rights of another.
In the case of Bond v. Montgomery, 56 Ark. 563, Mr. Justice Battle, speaking for the court, said: “Upon the right of purchasers at void execution or judicial sales to subrogation to the rights of creditors to the payment of whose claims the purchase money paid by them has been appropriated, courts are not. agreed. Many consider them as volunteers acting without compulsion and for no purpose of protecting any interest of their own, and under a mistake of law, and therefore not entitled to the protection of courts of equity. On the other hand, others hold that the doctrine of subrogation rests upon the natural principles of equity and' justice; that purchasers at such sales who are entitled to the benefit of subrogation are not volunteers that they purchase at a sale made under the coercive process of law, under the honest belief that they are getting the property sold, and their money is actually applied to the benefit of the owner in paying his debts or removing charges or liens upon his property; and that it would be in the highest degree inequitable and against good conscience to permit the owners, the administrators or creditors, as the case may be, to hold or enjoy at the same time the benefit of the property sold, and the money of the purchaser without recompense, and that, in order to prevent this injustice and wrong, they should be subrogated to the rights of the creditors, or to the benefit of the liens or charges, to the payment of whom or which their money has been applied. According to the latter view, it is the belief of the purchaser that he is getting the property sold, and the actual application of the money to the benefit of the owner in paying his debts in removing a charge or lien on his estate, which constitute the equity. There is no conflict between this view and the maxim of caveat emptor. That maxim applies where there is a failure of title, ‘because of a want of ownership in the property by the defendant in the execution or in the intestate,’ or testator, ‘but it does not apply to the defects in the title of the purchaser occasioned by a failure of the sale to pass the title of the defendant’s intestate,’ or testator. The later view has been adopted by this court, and is sustained by the- decided preponderance of authority.” (Citing authorities.)
Subrogation is a doetrineof purely equitable origin, and in its operation is always controlled by equitable principles. In the application of the doctrine to the facts in the present case we are of the opinion that Cowling is entitled to be subrogated to the lien of the judgment-creditor in the case of Stanley v. Britt, et al., and is entitled to have the land sold for the repayment of the amount to him of the purchase money paid by him for the land under the execution sale, and, upon the payment of the amount of the mortgage debt of $500, and the accrued interest to Payne, he will be subrogated to Payne’s rights under the mortgage, and will be also entitled to have the land sold for that purpose.
It follows that so much of the decree as holds that the hen of Payne for the sum of $500 and the accrued interest, secured by the deed of trust executed to him by Britt, was a prior lien on the land will be upheld. And,' in the application of the doctrine of subrogation, if the plaintiff, Cowling, elects to discharge this debt of Britt to Payne and redeem from the mortgage, he will be entitled to be subrogated to the rights of Payne and to have the land sold for that purpose.
As above stated, he will be subrogated to the rights of the judgment-creditor, and will be entitled to have the land sold for the purpose of repaying him the amount he paid under the execution sale for the land.
The decree will therefore be reversed and the chancellor directed to enter a decree in accordance with this opinion. | [
-16,
106,
-35,
44,
10,
-32,
10,
-70,
67,
32,
39,
87,
-1,
-50,
5,
45,
-94,
9,
101,
121,
-57,
-74,
19,
1,
-46,
-13,
-37,
-57,
-67,
-19,
-10,
7,
76,
32,
66,
85,
-26,
-56,
-63,
24,
-122,
-122,
-70,
100,
-47,
80,
48,
107,
16,
78,
81,
-113,
-77,
45,
29,
87,
72,
46,
91,
-71,
80,
112,
-114,
13,
-39,
6,
-111,
103,
-104,
-127,
72,
-82,
-120,
49,
9,
-24,
114,
-90,
-122,
116,
65,
25,
8,
34,
103,
1,
100,
-17,
-72,
-120,
46,
126,
13,
-90,
-110,
72,
107,
72,
-66,
-99,
93,
0,
7,
-12,
-22,
-123,
28,
108,
13,
-49,
-106,
-125,
-51,
124,
-104,
3,
-45,
5,
50,
113,
-49,
-30,
93,
103,
25,
91,
15,
-4
] |
McCulloch, C. J.
In the indictment in this case the defendant is charged with soliciting an order from another person for intoxicating liquors in prohibition territory, and also with receiving such an order in prohibition territory and transmitting said order to a licensed liquor dealer at another place who accepted and filled the order.
The case was tried upon an agreed statement of facts before the court sitting as a jury, and the court found in favor of the defendant, and the State appealed.
The statute on which the indictment was based reads as follows:
‘ ‘ Sec. 1. It shall be unlawful for any liquor dealer, firm or corporation, engaged in the sale of intoxicating liquors in this State, to in any manner, through agents, circulars, posters or newspaper advertisements, solicit orders for such sales of intoxicating liquors in any territory in this State wherein it would be unlawful to grant a license to make such sales. Provided, that the term ‘newspaper advertisements,’ as used in this section, does nof refer to liquor advertisements in papers published within licensed territory, unless such papers are sent into prohibition territory by the saloon keeper, or their agents, for advertising purposes.
“Sec. 2. The presence of any such liquor dealer, firm or corporation, through agents or otherwise, in such prohibition territory, soliciting or receiving orders from any person therein, shall constitute a violation of this act, and on conviction thereof shall be fined not less than two hundred dollars, nor more than five hundred dollars, for each such offense. Provided, that the term ‘agent,’ under this section, shall mean any person who receives an order from another for intoxicating liquors in prohibi tion territory and transmits the same in person, by letter, telegraph or telephone, or in any other manner, to some dealer in intoxicating liquors who accepts and fills the same.” Act No. 135, of the Acts of 1907.
It was agreed that the defendant had received an order in prohibition territory for four quarts of whiskey; that he carried -that order, and money with which to pay for the whiskey, to a licensed dealer at Helena, Arkansas, and brought back the liquor and delivered it to the person who gave him the order in prohibition territory.
The purpose of the statute is, primarily, to prevent licensed liquor dealers and their agents from soliciting orders for intoxicating liquors in prohibition territory, and from even accepting such orders when voluntarily tendered. In order to carry out that design, the Legislature doubtless deemed it necessary to put in a provision which would prevent evasions, and to do so, they declared that the terms agent “shall mean any person who receives an order from another for intoxicating liquors in prohibition territory, and transmits the siame in person, by letter, etc., * * * to some dealer in intoxicating liquors who accepts and fills the same.”
Now, it is not necessary, in order to convict a person under this statute, to show that he was, in fact, acting as agent of a liquor dealer when he solicited or received an order for intoxicating liquors, for the effect of the statute is to make it an offense for any person, whether, in fact, the agent of a dealer or not, to solicit orders in prohibition territory or to receive such orders and transmit the same. The mere solicitation of an order without the same being filled is sufficient to make out an offense, or where, as in this case, the order is not solicited, the mere acceptance and transmission of the order to any dealer is sufficient if the order is accepted by the dealer and filled.
It is 'said that under the facts in this case, the defendant was merely acting for accommodation to the person who gave him the order, and was the agent of the purchaser, and not of the seller.
That, however, does not afford an avenne for escape from the terms of the statute, for it unmistakably declares that any person who receives an order and transmits it to a dealer who fills it is guilty of an offense.
The statute, in that view of it, is a very drastic one, but with the policy of it we have nothing to do. The Legislature has power to declare such an act .to be a criminal offense. This is manifestly what the Legislature meant by the language incorporated in the statute, and its drastic effect is not sufficient to lead us into a plain disregard •of the legislative mandate.
The decisions of this court in State v. Earles, 84 Ark. 479, and Van Valkinburgh v. State, 102 Ark. 16, clearly indicate this interpretation of the statute.
A similar thought was expressed by the Supreme Court of the United States in the case of New York ex rel. Silz v. Hesterberg, 211 U. S. 31, in passing upon the constitutionality of a New York statute for the protection ■of wild game in that State, and which made it a criminal •offense for any person to have possession of such game within the closed season. The court, speaking through Mr. Justice Day, said:
“It is contended, in this connection, that the protection of the game of the State does not require that a pen:alty be imposed for the possession out of season of imported game of the kind held by the relator. It is insisted that a method of inspection can be established which will distinguish the imported game from that of the domestic variety, and prevent confusion in its handling and selling. That such game can be distinguished •from domestic game has been disclosed in the record in this case, and it may be that such inspection laws would he all that would he required for the protebtion of domestic game. But, subject to constitutional limitations, the Legislature of the State is authorized to pass measures for the protection of the people of the State in the exercise of the police power, and is itself the judge of the necessity or expediency of the means adopted. In order fo protect local game during the closed season it has been found expedient to make possession of all such, game during tkat time, wketker taken witkin or witkout tke State, a misdemeanor.”
Tke statute was keld to ke valid.
Tke facts are undisputed tkat defendant received an order in prokikition territory, and, in person, transmitted it to a liquor dealer, wko filled tke order, and ke is guilty under tke statute quoted.
Tke indictment in tkis case ckarges kotk soliciting an order and receiving and transmitting suck order.
Tke two offenses, or, ratker, tke two metkods of committing tke same offense, skould kave keen incorporated in different counts of tke indictment, but no question was raised as to tke form of tke indictment.
Tke evidence does not skow tkat tke defendant solicited tke order, bult, as before stated, it does skow tkat ke received tke order and transmitted it to a dealer wko filled it.
In tke Earles case, supra, we keld tkat tke indictment, wkick was similar to tké indictment in tkis case, ckarged tke defendant witk soliciting and transmitting tke order, but tkat tke evidence skowed tkat ke sold tke liquor, and tkat tkat constituted a variance, wkick prevented a conviction in tkat case. Tke facts in tkat case were tkat defendant, after .soliciting orders, purckased tke liquor in packages of five gallons from a distiller, and tken filled tke orders whick ke kad received, and tkat in tkat case ke was guilty of selling liquor, instead of receiving and transmitting tke orders. In otker words, tke facts in tkat case were tkat ke purckased tke liquor and resold it, and was guilty of a sale, and not of tke receiving and transmitting of tke order; wkereas, in tke present case, tke defendant did not purckase tke liquor and resell it in prokibition territory, but ke received an order in tkat territory and transmitted it, wkick made kim guilty under tke statute quoted.
Our conclusion is that the court erred in its finding, and the judgment is reversed and the cause- remanded for a new trial.
Smith, J., dissents. | [
-15,
-10,
-24,
-115,
42,
112,
42,
-70,
91,
-15,
-75,
83,
-23,
80,
5,
99,
-31,
121,
85,
120,
-12,
-74,
7,
67,
66,
-45,
-125,
-57,
-73,
79,
-19,
-12,
29,
48,
-54,
85,
-58,
74,
-111,
-100,
-126,
33,
-103,
-24,
115,
8,
52,
-117,
87,
75,
97,
31,
-29,
42,
29,
-117,
41,
104,
-23,
13,
-64,
-15,
-104,
-99,
-67,
22,
-127,
118,
-104,
1,
-56,
30,
-104,
49,
0,
-8,
115,
-74,
-106,
20,
15,
-103,
-116,
38,
-30,
32,
-107,
-81,
44,
8,
63,
-70,
-99,
-89,
-16,
89,
43,
10,
-66,
-99,
-90,
16,
14,
-10,
121,
-43,
17,
124,
5,
-126,
-106,
-73,
107,
52,
20,
23,
-53,
-89,
36,
85,
-51,
118,
92,
94,
114,
27,
-116,
-59
] |
Hart, J.
Bessie Stark Dunn instituted an .action for divorce against A. V. Dunn and based -her -cause of action upon tbe fifth -subdivision of section 2672 of Kirby’s Digest. The charge against her husband is alleged in the complaint as follows:
“T-hat notwithstanding the -defendant was -continuously and habitually finding fault and treated her with such reproach and contempt, indifference, studied neglect, so systematically that he has rendered their living together intolerable.”
The testimony in the case is as follows:
Bessie Stark Dunn testified: “I was married to the defendant in Jefferson County, Arkansas, -on the 21st day of February, 1910, and lived with him until a few days ago. That I was always true to my marital vows and did all in my power to make our married life happy and agreeable. That he failed to buy me clothes, and habitually and systematically treated me with unmerited reproach, studied neglect and open insult, rude and overbearing when I asked him for clothes. That I put up with his bad treatment as long as I could, and his manner and treatment became -intolerable. We have a little girl about two years of age, named Go-ldie. I have lived in Jefferson County almost all my life, -and am earning my own living.”
Agues Stark, a witness for the plaintiff, testified: ‘ ‘ That she is acquainted with the plaintiff and the defendant in the above entitled cause, and has known them since they were married. That they were married in the year 1910, and lived together until a few days ago. That the plaintiff was at .all times considerate and kind and attended to her duties as the wife of the defendant and never gave him cause to mistreat her. That the defendant habitually and systematically treated the plaintiff with contempt and rudeness and neglect. That he refused to buy clothes for her -and failed to support her, and many times was insulting and abusive. That the plaintiff lias resided for more than one year in Jefferson County, Arkansas.”
The chancellor found in favor of- the plaintiff and granted her -.an absolute divorce from the defendant. The case is here on appeal.
It is first insisted by counsel for the defendant that the allegations with reference to cruel and barbarous treatment are not sufficient. No demurrer was filed to the complaint; no objection was made and no motion filed to make it more definite and certain.
In the case of Brown v. Brown, 38 Ark. 324, in regard to a similar contention the court said the indignities of which the plaintiff complained should have been specifically set out in order that the court might know whether -they were such as to render her condition intolerable as alleged, or whether they were a sufficient cause for the divorce sought. '
Another reason is that the principal facts should be alleged with ■such certainty as to time, place and circumstance as will apprise the defendant of the case to be made .against him and enable him to prepare his def ense. Nelson on Divorce and Separation, vol. 1, § 333.
As was -said in the Brown case, however, the objection could only have been taken by a motion to require the complaint to be made more definite and specific, and, no such motion having been filed, the -objection is noit now tenable.
It is ag’ain insisted by counsel for the defendant that the testimony was not sufficient to warrant the chancellor in granting the divorce to the plaintiff because the statements of the plaintiff and her sister, the corroborating witness, .amount to no more than their conclusions of law, instead of the ultimate facts. In this contention we think counsel are correct.
As was said in the case of Bell v. Bell, 105 Ark. 194, it is for the court to determine whether or not the alleged offending spouse has been guilty of .acts or conduct amounting to rudeness, contempt, studied neglect or open insult, -and whether such conduct and acts have been pursued so habitually and to such an extent as to render the condition of the complaining party so intolerable as to justify the annulment of the marriage bond.
The witnesses can not substitute their judgment for that of the court. Therefore, it is necessary that proof should be made of the specific acts and conduct showing the indignities relied upon, in order that the .court may properly determine whether they are suffipient to establish the ground of divorce.
In the ease before us we do not think the statements of the plaintiff and her sister amount to anything more than their conclusions or opinions as to the matters testified to by them. From their statements the court could not properly form .any conclusion as to whether or not the divorce should have been granted to the plaintiff. It is true that plaintiff and her sister testified that the defendant failed to buy the plaintiff clothes but they did not state the circumstances under which the refusal was made. The remainder of their statements amount to nothing more than their conclusion ás to the matters testified to by them. They did not state any facts or circumstances on the part of the defendant from which the court could determine whether or not the plaintiff was entitled to a divorce.
Therefore the decree will be reversed and because the facts were not developed in the chancery court, the cause will be remanded with leave to the plaintiff to take additional proof if so advised, and for further proceedings not inconsistent with this opinion. | [
-80,
106,
-4,
13,
-22,
48,
10,
-56,
-14,
3,
-77,
-45,
-31,
86,
88,
109,
58,
47,
81,
104,
-61,
-73,
25,
35,
-14,
-46,
123,
-41,
-79,
-49,
-83,
94,
79,
32,
98,
-39,
-93,
-46,
-91,
92,
-116,
-124,
-85,
-20,
82,
-64,
60,
61,
84,
75,
33,
-90,
-13,
43,
118,
79,
108,
111,
70,
-72,
-36,
-32,
-110,
30,
111,
22,
17,
102,
-106,
-123,
88,
30,
-104,
53,
64,
-96,
51,
-90,
-126,
116,
74,
-103,
8,
118,
102,
51,
-11,
-41,
56,
-120,
119,
61,
-99,
-89,
-120,
64,
11,
8,
-74,
-100,
125,
-48,
-114,
-14,
108,
-51,
56,
96,
11,
-49,
-106,
-71,
-115,
114,
-44,
27,
-29,
-60,
49,
81,
-51,
34,
92,
-123,
123,
-69,
-122,
-86
] |
Smith, J.,
(after stating the facts). It is urged there can be no recovery here because of the lack of privity between appellant and appellees, and the ease of Nelson v. Armour, 76 Ark. 352, is cited to sustain that position. The facts in that case were that plaintiff had purchased from a dealer a can of lunch tongue, which the dealer had purchased from the Armour Packing Company, the defendant, and the court held in that ease that a demurrer to the complaint was properly sustained, because there is no privity of contract between the vendor in one sale and the vendees of the-same property in the subsequent sale; and that each vendee must resort as a general rule only to his immediate vendor. No reference was made in the opinion in that case to the allegations of the complaint that the packing company had been guilty of negligence in putting up the meat for sale.
If appellees are liable ait all under the evidence in this case, a recovery on account of that liability can not be defeated because of the lack of privity. The proof is that the bottles were sold to and delivered to the appellant, who was engaged in business with her husband, although so far at least as the bottles in question are concerned, the business was in her charge and under her control. It was urged that the business being conducted by her could not be hers, nor could she be a partner therein on account of the interest of her husband, as the wife can not engage in a partnership business with her husband. But whatever her relationship to her husband, in regard to this business may have been, the fact remains that she was in charge of it and was injured while handling one of the bottles in the usual and necessary course of business. This handling of the bottle by the yendee, or his employee, was necessarily within the contemplation of the parties when the sale was made, and if privity is essential to a recovery where negligence is alleged on the part of the vendor, there is such privity here as is necessary to sustain a recovery. If the vendor is to be held liable at all for his negligence, in cases of this character, there is no reason for limiting that liability in favor of the vendee individually, who may never personally be exposed to the danger resulting from this negligence. Actionable negligence has been defined as a breach of duty resulting in injury to some person to whom that duty is legally owing, and the duty here is not merely to so charge a bottle as that its contents may not be wasted, but also to exercise that care which an ordinarily prudent person would use to avoid the infliction of an injury which might reasonably be expected to follow the failure to use this care; and that duty is owing not only to the vendee, but also to his employees who perform the service which the parties must have contemplated as necessary to be performed when the sale was made.
There is a case reported in 138 Mich. 567, the style of which is O’Neill v. James, where the facts are strikingly similar to the facts in the instant case, except that the party injured by the explosion of the bottle was an employee of the owner of the business, and there was up proof of knowledge upon the .part of defendant that the bottle which exploded had been improperly charged with the gas. In that case the plaintiff had recovered a substantial judgment which was reversed on appeal because of the insufficiency of the evidence to sustain the allegations of the complaint, which allegations were held sufficient to support a recovery. The court, in reviewing the contentions of the parties and the evidence .offered in support of these contentions recited that there was testimony on the part of experts, without objection on the part of defendant, that champagne cider, manufactured in the usual way, with the ordinary pressure, was safe. There was also testimony that if the pressure was increased beyond a certain limit, then the article became dangerous, and dangerous because of the likelihood of an explosion. The experts also testified that an explosion would not occur under the circumstances detailed in that case, unless the bottle had been overcharged and would be likely to occur had the bottle been overcharged. And that while the testimony of the defendant and of his bottler was positive that no champagne cider had ever been bottled for sale at a higher pressure than that which was shown to be ordinarily safe, it was stated that if there were other testimony in the case from which a jury might reasonably infer that this pressure had been exceeded, the question became one which ought to be submitted to the jury for its decision. There was opposed to this testimony, on behalf of the defendant, the testimony of experts in which they maintained that the explosion could have occurred for no reason other than an overcharge; but there was no proof of an overcharge except this expert evidence. The court held with reference to the question of negligence that the court was right in holding that in view of the testimony in that branch of the case, the issue should have been submitted to the jury; but following this statement, the court said: “There is, however, a much more serious question in the case. The testimony on both sides is that champagne cider, bottled in such bottles as were used by defendant, at a pressure of sixty pounds or under, is a harmless ordinary article of commerce, usually kept for sale where soft drinks are sold. The record also discloses that defendant did not himself charge the bottle which did the mischief. There is nothing to indicate that he ever saw it. The testimony of the bottler is that it was charged in the usual way, and sent out in the usual course of trade, and that he had no knowledge that it was improperly charged. Indeed, his testimony is that it was not improperly charged. There is no testimony tending to establish that defendant had any knowledge that the bottle was overcharged when it left his place of business, or from which an inference could be properly drawn that he had such knowledge. Under this state of facts, counsel for defendant claim:
“The point we raise is that where one is engaged in the manufacturing and selling of an article of commerce harmless in itself, as the proofs show that champagne cider is, when manufactured and bottled in the ordinary maimer, he can not be held liable to a third person, who Stood in no privity of contract with him, because perchance one bottle did, for some reason, burst, in the absence of proof of knowledge of vendor of the defect.”
After reviewing a number of authorities, the opinion concluded with the statement that “The plaintiff knew that champagne cider, as ordinarily manufactured and sold, was charged with a gas. As we have before stated, there is no proof from which the inference might be drawn that the defendant had knowledge that the bottle was improperly charged. The proof offered on the part of plaintiff, as well as that offered on the part of defendant, is that the apparatus used by the employees was a proper one. Under the facts disclosed by the record, a verdict should have been directed in favor of defendant.”
The instant case, however, is distinguishable from the O’Neill v. James case, supra, because there is proof here, tending to show that the bottles were improperly charged and that appellees were aware of that fact, or were at least in possession of such knowledge and information on that subject as would impute knowledge to them of 'that fact. The ordinary law of principal and agent would charge appellees with any knowledge possessed by their employees, who were actually engaged in charging the bottles.
The evidence in this case presents no issue for submission to the jury upon the question of the use of defective bottles, as the proof shows the bottles were purchased from a manufacturer whose bottles were of standard grade and quality, and the only theory upon which a recovery could be sustained is that appellees were guilty of negligence in charging the bottle, and that this negligence was the proximate cause of the injury.
We think the proof is sufficient to require the submission of that issue to the jury and the judgment of the court below is therefore reversed and the cause remanded with directions to that end. | [
-46,
-4,
-40,
-113,
26,
96,
40,
-2,
81,
-126,
37,
-45,
-49,
-59,
1,
107,
-29,
-33,
69,
104,
-42,
-77,
31,
0,
-42,
-37,
-112,
-59,
-79,
107,
69,
-36,
77,
52,
-58,
-43,
98,
-101,
-47,
-36,
74,
0,
26,
-27,
-7,
0,
56,
107,
-112,
11,
65,
-100,
99,
46,
24,
-57,
105,
40,
107,
45,
-32,
-8,
-103,
13,
127,
22,
-111,
36,
-35,
103,
-40,
12,
24,
49,
9,
-24,
112,
-74,
-90,
84,
13,
-115,
-128,
98,
98,
32,
9,
-7,
-56,
-84,
47,
-18,
-99,
-122,
-128,
8,
3,
107,
-66,
-99,
-86,
4,
-74,
-6,
-6,
93,
-101,
-20,
-125,
-121,
-42,
-95,
-113,
104,
92,
23,
-22,
-89,
48,
117,
-51,
-82,
92,
65,
126,
-101,
-50,
-14
] |
Smith, J.,
(after stating the facts). These indictments were returned under Act No. 112 of the Acts of 1909, page 315.
When this act is analyzed it is found that section 1 of it provides as.follows:
• “If two or more persons shall unite, confederate or band themselves together for the purpose—
(a) ' Of doing an unlawful act' in the night timé;
(b) Or for the purpose of doing any unlawful act while wearing any mask, white caps or robes, or being otherwise disguised;
(c) Or for the purpose of going forth armed or disguised for the purpose of intimidating or alarming any person, or to do any felonious act;
(d) Or if any person shall knowingly meet or act clandestinely with any such band or order, be it known by any name whatsoever, then any person who does any of these four things is guilty of a felony.
And by section 2 it is provided that:
“If two or more persons belonging to or acting with any such band or organization as defined in section 1,
(a) Shall go forth at night, or shall go forth at any time disguised, and shall alarm or intimidate or seek to alarm or intimidate any person by assaulting any such person, or by damaging or destroying property, or by seeking to assault or punish any person or by seeking or attempting to damage or destroy property;
(b) Or shall deliver, mail, post or have any letter, notice or other written or printed communication intended to, or which by its nature contents or superscription would naturally alarm, or intimidate, any person shall be deemed guilty of a felony.”
Is a violation of law charged under these sections or either of them? -
(1) The statute-provides that an indictment shall contain the title of the prosecution, specifying the name of the court in which the indictment is presented and the name of the- parties, a statement of the acts constituting the offense in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended. Kirby’s Digest, § 2243. And it is further provided that the indictment is sufficient if it can be understood therefrom that it was found by a grand jury of a county impaneled in a court having authority to receive it, and that the offense was committed within the jurisdiction of the court, at some time prior to the time of finding the indictment, and that the act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment on conviction, according to the right of the case. Kirby’s Digest, § 2228.
The first indictment alleges that appellant •and one Vine Williams batnded themselves together, and in the night time, being disguised and armed with guns went forth to the house of George Hardin and alarmedand frightened him by seeking to assault and punish him, and by threats of violence forced him to leave his home. One who did these things violated the first, second and third paragraphs of section 1 of the act above set out, and that violation is charged with sufficient certainty to meet the requirements of the statutes herein set out.
The second indictment charges that appellant and Williams banded themselves together, being disguised and armed with guns, and went forth to the house of George Hardin, and, while assembled at the house of Hardin, in the night time disguised and armed as aforesaid, they alarmed and intimidated Mrs. Hardin and Mrs. Isaacs by threatening to return the next morning with a crowd of negroes, and by threatening to do violence to the said George Hardin.
It is said that this second indictment was drawn under the provisions of the second section of the statute set out above, but whether the facts alleged constitute a violation of that section of it, they do constitute a violation of the first section.
The demurrers, therefore, were erroneously sustained, and the judgments to that effect will be reversed and the cause remanded, with directions to overrule them. | [
-16,
-7,
-4,
-1,
42,
-32,
62,
-66,
-110,
-79,
-91,
19,
-19,
-64,
4,
49,
-23,
105,
117,
73,
-28,
-106,
29,
3,
-14,
-45,
-49,
-43,
54,
79,
-17,
125,
92,
36,
-54,
81,
69,
90,
-91,
-98,
-118,
33,
56,
-63,
-80,
64,
36,
55,
20,
14,
97,
-97,
-29,
10,
22,
90,
9,
104,
74,
-19,
-64,
56,
-100,
77,
-55,
22,
-93,
38,
56,
37,
-24,
29,
9,
17,
1,
-24,
115,
-106,
19,
-12,
77,
89,
-116,
98,
98,
1,
-31,
-24,
24,
-120,
62,
54,
-99,
39,
-112,
81,
9,
-84,
-97,
31,
102,
112,
-82,
104,
-23,
85,
49,
104,
-119,
-57,
-124,
-77,
-115,
114,
-100,
35,
-37,
-89,
81,
49,
-58,
-74,
86,
125,
83,
-101,
-116,
-44
] |
McCulloch, C. J.
A mare owned by the plaintiff died from injuries received while being served by a stallion, and this is an action against the defendant to recover the value of the mare on the ground that defendant’s servant was negligent in handling the stallion when serving the mare. The plaintiff recovered judgment below and the defendant has appealed. No exceptions were saved to the introduction of testimony nor to the instructions of the court; therefore, the only question presented for review is whether the evidence was sufficient to. sustain the verdict.
Defendant was not the owner of the stallion, but arranged with the owner, who lived in another locality, to let him have the stallion to stand at his farm during that season. The undisputed testimony of the defendant is that the owner of the stallion agreed to send the animal over on the last of March, but failed to send him until the fourth day of April, when defendant was away from home. Defendant had a son nineteen years of age, who, according to the testimony, looked after his father ’s stock during the latter’s absence. The plaintiff took his mare over to defendant’s farm on April 8 and she was served by the stallion in the absence of the defendant, and the latter’s son attended to it.
There is a sharp conflict between the testimony of the plaintiff and that of the defendant’s son concerning the incidents attending the service. The plaintiff testified that the young man held himself out as having authority to handle the stallion and as having sufficient experience to do so; but, on the other hand, the young man testified that he had had no experience and did not claim to be able to handle the stallion, but that he attempted to do so at the urgent request of the plaintiff himself. At any rate, the mare was injured while being served by the stallion, and the evidence is sufficient to establish negligence on the part of defendant’s son in handling the stallion.
In a Michigan case, almost identical with this one upon the facts, Judge Cooley, speaking for the court, held that the injury under the circumstances described was sufficient to make out a prima facie case of negligence. Peer v. Ryan, 54 Mich. 224.
A text book on the law of animals lays down a 'different rule, to the effect that under such circumstances it devolves upon the owner of the injured mare to prove negligence. Ingham on Animals, § 106.
Without attempting to reconcile those conflicting views of the law, it is sufficient to say that in this case the evidence was sufficient to warrant the jury in drawing an inference of negligent conduct from all the circumstances proved in the case, including the manner in which the mare was injured.
The text book above referred to lays down the law to be that one who furnishes the service of a .male animal for breeding purposes is held to ordinary care to prevent injury. There can be no question about that being the law.
The most serious question in the case is whether the evidence is sufficient to show authority on the part of defendant’s son to put the horse to the mare. The evidence on the part of the defendant is that when he left home he did not know that the horse was to be sent over to his place, as the time had expired by one day for the owner to send him. He testified further that he had given no instructions to his son concerning the horse, and that the act of his son was either induced by the request of the plaintiff himself or that it was gratuitous and without authority. The plaintiff testified that the young man told him that he had authority to handle the horse and that Ms father expected Mm to attend to the horse during that breeding season; but it is too well settled for controversy that the authority of an agent can not be proved by his own declarations. It is equally well settled in the law, however, that the principal is liaMe for the acts of Ms agent done within the apparent scope of his authority (Brown v. Brown, 96 Ark. 456), and on this theory of the case we tMnk that the evidence sustains the verdict.
The evidence is that the defendant’s sun was nineteen years of age and was left in charge of Ms father’s 'stock during the latter’s absence. The evidence does not show that the appearance of the young man indicated lack of discretion and physical strength of the average of those of his age, or that he lacked sufficient strength to handle the ¡stallion under such circumstances. He was before the jury as a witness and they had the opportunity of determining whether or not he had the appearance of being a man able to do that kind of work. He held himself out to the plaintiff, according to the latter’s testimony, as having sufficient experience to do so, and we can not say that under the circumstances the plaintiff was at fault in assuming that the young man was able to do what he proposed. Under those circumstances, we think that the act of the defendant’s son was within the apparent scope of his authority. That being true, the evidence is ¡sufficient to sustain the verdict, and the judgment is accordingly affirmed. | [
115,
102,
-116,
-87,
40,
96,
42,
26,
65,
-61,
103,
-45,
-51,
-46,
20,
99,
-18,
109,
69,
107,
-34,
-78,
70,
65,
-45,
-46,
-80,
-57,
-105,
78,
-24,
117,
5,
48,
-118,
85,
-62,
11,
-63,
80,
-114,
5,
-101,
-19,
121,
-48,
52,
123,
22,
75,
33,
31,
-49,
38,
125,
79,
41,
42,
107,
45,
-56,
-11,
-69,
5,
111,
2,
-78,
118,
-66,
7,
72,
46,
16,
49,
17,
-7,
82,
-74,
-126,
-44,
41,
-103,
8,
102,
102,
33,
77,
-51,
96,
-40,
47,
126,
14,
-89,
-102,
89,
43,
105,
-106,
-99,
48,
80,
14,
-8,
-29,
29,
28,
-92,
67,
-49,
-42,
-93,
110,
100,
-106,
5,
-61,
21,
21,
113,
-36,
-30,
88,
69,
56,
-101,
-124,
-33
] |
English, C. J.
Pleasant B. Tucker, as administrator of Edw. M. Crawford, deceased, sued Robert J. West and John Mock, in the Washington circuit court, on an instrument alleged in the amended complaint to be a writing obligatory for $2,267, bearing date about the loth of April, 1861, payable, one day after date, to plaintiff’s intestate, with ten per cent, interest, etc., and in the possession of defendants.
The record is in some confusion as to the answer of the defendants, but it seems to have contained seven paragraphs, to all of which but three (the 5th, 6th and 7th), a demurrer was sustained.
The 5th was, in substance, that the instrument sued on was made, signed, executed and delivered on Sunday, the 14th day of April, 1861, contrary to the first section of the fifth article of the 51st chapter of the Digest (Grould’s) of the statutes of the state of Arkansas, title, Sabbath Breaking.
6th. Payment. 7th. Non est factum.
The issues thus formed were submitted to a jury. The evidence introduced on the trial is conflicting. It seems that in the summer of 1860, Crawford sold to West some land, on which there was a balance of purchase money due. The obligation sued on was executed, according to the testimony of several witnesses, at a house where- Crawford and West were both living, on Sunday, April 14, 1861, for the balance of purchase money. Crawford wrote the note, and West and Mock signed it. It was dated back to the 13th of April. The testimony of some of the witnesses conduced to prove that Mock did not sign the note until Monday, on which day Crawford left for Oregon. There was also evidence conducing to.prove that Crawford left the note with Tucker (who, after his death, became his administrator) for collection; and that in 1862 the note was taken out of Tucker’s hands by a confederate provost marshal, as the property of an alien enemy, to whom West paid it in confederate money, and the note was delivered to him.
Among other instructions, the court charged the jury against the objection of'plaintiff: “3d. That if they found from the evidence that the instrument sued on was made, executed and delivered to said E. M. Crawford, by the defendants, on Sunday, they should find for the defendants,” etc.
The jury returned a special verdict, as follows: “ We, the jury, find that the instrument sued on was made, executed and delivered by the defendants on Sunday.”
Upon this verdict the court rendered judgment discharging the defendants; the plaintiff moved for a new trial on numerous grounds, which was overruled, and he excepted and appealed.
I. Was the note sued on void because executed on Sunday ?
It is a settled principle of the common law that all contracts which are founded on an act- prohibited by a statute under a penalty are void, although not expressly declared to be so. O'Donnell et al. v. Sweeney, 5 Ala., 468 ; 1 Taunt., 135.
By the common law, no judicial act could be done on Sunday. We have statutes making exceptions.
But as to the making of contracts, and all other acts not of a judicial nature, the common law made no distinction between Sunday and any other day. 2 Parsons on Con., 757, notes, and cases cited. Drury v. Defontaine, 1 Taunt., 131.
By statute, 29 Chas. II, it was enacted that “ no tradesman, artificer, or other person whatsoever, should do or exercise any worldly labor, business or work of their ordinary callings upon the Lord’s day, or any part thereof (work of necessity and charity only excepted); and that every person of the age of fourteen years, offending in the premises, should forfeit five shillings.”
Contracts made in violation of this statute were held by the 'English courts to be void. Chitty on Con., 374 and cases cited. But where a man kept a commission stable for the sale of horses by auction, it was held that a private sale made by him on Sunday was not void under the statute, bécause the sale was not in the exereise of his ordinary calling ; though Lord Mansfield said it was a very indecent thing to sell a horse on Sunday, and a thing that no religious man would do. Drury v. Fontaine, 1 Taunt., 135.
In this country, Sunday laws, or “laws for the better observance of the Lord’s day,” as they were generally called, were passed in most of the. colonies, and are now in force in most of the states; and contracts in violation of them have been held void, the decisions varying according to the peculiar expressions of the different statutes. 2 Parsons Con., 757-760, and notes.
Our statute is as follows: “ Every person who shall, on the Sabbath or Sunday, be found laboring, or shall, compel his apprentice or servant to labor or to perform other services than customary household duties of daily necessity, comfort or charity, on conviction thereof, shall be fined one dollar for each separate offense.
“ The provisions of this act shall not apply to steamboats and other-vessels navigating the waters of the state, nor to such manufacturing establishments as require to be kept in continual operation.
“ Persons who are members of any religious society who observe as Sabbath any other day of the week than the Christian Sabbath or Sunday, shall not be subject to the penalties of this act, so that they observe one day in seven, agreeably to the faith and practice of their church or society.
“ Every person who shall, on Sunday, keep open any store, or retail any goods, wares, or merchandise, or keep open any dram shop or grocery, or sell or retail any spirits or wine, shall on conviction thereof, be fined in any sum not less than ten dollars nor more than twenty.
“ Charity or necessity may be shown in justification of the violation of the last preceding section.
“Horse racing, gaming,"hunting with a gun to kill game, or shooting for amusement on the Sabbath, are also prohibited and punished.” Gantt’s Dig., ch. 42, pp. 382-3.
In Alabama. “Worldly business or employment, ordinary or servile work (works of necessity or charity excepted),” on Sunday, is prohibited, under a penalty.
O'Donnell et al. v. Sweeney, 5 Ala., 468, was a suit on a note executed on Sunday for a horse sold on that day, and the note was held invalid. The court said: “ To constitute an offense against 29 Chas. II, one of thé parties to the contract, at least, must be engaged in his ‘ ordinary calling;’ not so under our law, which prohibits all worldly business or employment, or ordinary or servile work, ‘ works of necessity or charity only excepted.’ The term ‘ ordinary,’ in our statute, is equivalent to common or usual work or employment, and beyond all doubt embraces within its ample range the sale of a horse, or any other chattel, whether the sale be public or private; whether the parties engaged in it, or either of them, were in the prose cution of their ordinary employment or not. It is ‘ worldly business or employment,’ and it falls within the letter, as well as within the mischief of the statute.”
In Saltmarsh v. Tuthill, 13. Ala., 390, held, that the indorsement of a bill on Sunday, drawn in substitution of one previously given, was void under the Sabbath act. Here there was no sale, but the mere indorsement of the bill on Sunday.
In Hussey v. Roquemore, 17 Ala., 282, held, that a promise made on Sunday to pay the balance due on a note, against which the promisor had a valid defense, was void and of no effect, under the Sabbath act.
In Dodson et al. v. Harris et al., 10 Ala., 566, held, that where a horse is sold on Sunday, and a note taken for the purchase money on the same day, both the contract and note are void, and though the purchaser retain the horse in his possession, without objection or demand by the seller, the law will not imply a promise to pay the stipulated price, or what the horse is reasonably worth. Such a contract being void, no property passed to the vendee, and he would be chargeable in trover upon proof of demand and refusal, or in assumpsit upon an express promise to pay, subsequently made, in consideration of the retention of the horse.
In Hooper v. Edwards, 18 Ala., 283, the court said the act was passed to prevent vice and immorality, and the desecration of the Sabbath to common secular business, but where a debtor was availing himself of the Sabbath to run his property off, and avoid the payment of his debts, and a creditor pursued him and took a bill of sale of property on Sunday to secure his debt, held that the contract was valid as a work of necessity.
In Connecticut. “No person shall do any secular business,, work or labor, works of necessity and mercy excepted, nor keep open any shops, etc., on the Lord’s'day.”
In Wight v. Geer, 1 Root, 474, held, that a note executed on Sunday was void. See also Northrup v. Foot, 14 Wend., 248, where it was held that a contract for the sale of a horse, made on Sunday, in Connecticut, was void under the laws of that state. And in Cameron v. Peck, 38 Conn., 557, the court-said : “ Our statute no doubt makes void all contracts entered into on Sunday, and we should not knowingly give countenance to an opposite doctrine.” Held, in Finn v. Donahue, 35 Conn., 216, that assumpsit would not lie to recover money-loaned on the Sabbath. In Beardsley v. Hall, 36 Conn., 276, the court said that part payment on Sunday, of a debt barred by limitation, might not remove the bar, but it was competent-to prove that the debtor admitted on the Sabbath that at some' previous time he had made a payment on the debt. Justice Park said: “ We think the mere telling of the truth upon the Sabbath day, in relation to a matter like this, is not transacting secular business within the meaning of the Sabbath act."
In Indiana, “ If any person shall be found on the first day of the week, commonly called Sunday, rioting, hunting, fishing, quarreling, or at common labor, works of necessity and charity only excepted, he shall be fined,” etc.
In Link v. Clemens, 7 Blackf., 479, Clemens,-assignee of the sheriff, sued Link and others on a replevin bond. Plea, that-the bond was signed, sealed and delivered on Sunday, and therefore void. Demurrer sustained to the plea, and on error, the supreme court held that the executing of the bond was-common labor within the meaning of the statute, and that the plea was good, and the bond bad.
In Reynolds, use etc. v. Stevenson, 4 Ind., 619, the suit was on a note. Plea, that the note was made, executed and delivered on Sunday; demurrer to the plea overruled, and on error, the court said: “It is admitted that the note in question was made on Sunday. Then the record presents this question : Did the making of it constitute an act of ‘ common labor ? ’ We think the statute intended to prohibit every description of secular business not within the exceptions pointed out by itself. The executing of this note was secular business, and not embraced by the exceptions. This view is sustained by various adjudications made upon statutes, the provisions of which are, in effect, the same as ours. Allen v. Deming, 14 N. H., 133 ; Towle v. Larrabee, 26 Me., 464; Adams v. Hamel, 2 Doug. (Mich.), 73. In Link v. Clemens, 7 Blackf., 479, it was held that a replevin bond executed on Sunday was void. This authority is decisive of the case before us. The note was no doubt made in violation of the statute; therefore it must be considered a nullity.”
In Hannun v. Curtis, 13 Ind., 205, a sale of goods-was talked of between the parties on Saturday, and the terms of sale agreed on and the property'delivered on Sunday. Held, that the contract of sale was void; but the purchaser kept the goods, sold part of them subsequently, and delivered the proceeds to the seller, and this was held to be a ratification of the contract of sale.
In Kentucky. “ If any person, on the Sabbath day, shall himself be found laboring at his own or any other trade or calling, or shall employ his apprentices, servants, etc., in labor or other business, whether for profit or amusement, unless expressly permitted by this act (and no work or business shall be done on the Sabbath day, unless the ordinary household offices of daily necessity, or other work of necessity or charity), he shall forfeit the sum of ten shillings for every offense,” etc. A young stallion was castrated on Sunday, and warranted to recover from the operation. In a suit on the warranty, held, that the contract was void under this statute. Slade v. Arnold, 14 B. Mon., 287. In Murphy v. Simpson, id., 419, held, that the statute applied to every description of secular labor or business, except ordinary household offices of daily necessity, or other work of necessity or charity; and that where the parties swapped horses on Sunday, a warranty of soundness was void, and an action could not be maintained upon it. But where a note which had been previously prepared was signed on Sunday, but there was no evidence that it was delivered to the payee on that day, or that he participated in any violation of the statute prohibiting labor and business on the Sabbath, the validity of the note was held not to be affected in his hands. Dohoney et al. v. Dohoney, 7 Bush., 217; Ray, etc., v. Catlett et al., 12 B. Mon., 532.
In Maine. “No person shall keep open his shop, warehouse or workhouse, nor shall upon land or water, do any manner of labor, business or work, works of necessity and charity only excepted, on the lord’s day, or any part thereof, upon penalty not exceeding six dollars and sixty cents,” etc. A note made on Sunday for the price of a horse sold on that day, held to be void, the act being violation of this statute. Towle v. Larrabee, 26 Me., 464. So an appeal recognizance taken on the Lord’s day, being mere matter of contract, is void under the statute. State v. Suheer, 33 Me., 539. The Lord’s day in Maine is from the preceding midnight to sundown on Sunday. A bond executed on Sunday is void, if it be shown that it was made before sundown. Nason v. Dinsmore et al., 34 Me., 390. A note signed and delivered on the Lord’s day is void, but where the note was signed on Sunday, in the absence of the payee, and delivered to him on a work day, it was valid in his hands. Hilton v. Houghton et al., 35 Me., 143. All contracts made in violation of the statute are illegal and void. Parker v. Latney, 60 id., 528, and cases cited; Pope v. Linn, 50 id., 83.
In Massachusetts. “No person shall do any manner of labor, business or work, except only works of necessity and charity, on the Lord’s day,” etc. The execution of a bond on the Lord’s day, held to be a violation of this statute, and the bond illegal and void. Pattee v. Greely, 13 Met., 284. The court said: “ The legislature intended to prohibit secular business on the Lord’s day, and did not confine the prohibition to manual labor, but extended it to the making of bargains and all kinds of trafficking.” The court also quoted the remarks of Lord Alvanly, in Morch v. Abel, 3 Bos. & Pul., 83, that “no man can come into a British court of justice to seek the assistance of the law, who founds his claim upon a contravention of the British laws.” This case is regarded as overruling Geer v. Putman, 10 Mass., 312, where the defense that a note was executed on Lord’s day was not allowed. 2 Pars. Con., 759, note (q).
In Michigan. “ No person shall keep open his shop, warehouse or workhouse, or shall do any manner of labor, business or work, except work of necessity or charity, on the first day of the week, and every person so offending shall be punished by fine not exceeding ten dollars for each offense.” Two persons swapped horses on Sunday, and one of them gave a note for the agreed difference in the value of' the horses; held, that the note was given in violation of the statute, and therefore void. Adams v. Hamell, 2 Doug., 73. So in Tucker v. Mowry, 12 Mich., 378, a horse was sold, and paid for on Sunday, and on a subsequent day the sellers tendered back the purchase price, and brought replevin for the horse; held,. that the sale was illegal, null and void, and the sellers could recover the horse if not restored on demand.
In Minnesota. “No person shall keep open his shop, warehouse or workhouse, or shall do any manner of labor, business or work, except only works of necessity and charity, * * * on the Lord’s day, commonly called Sunday, and every person so offending shall be punished by fine,” etc. Peld, that a demand made on Sunday for the delivery of wheat, which one person had previously agreed to deliver to another, was in violation of the statute, and null and void. Bracket v. Edgerton, 14 Minn., 190.
In Mississippi. “No merchant, shopkeeper or other person, except apothecaries and druggists, shall keep open store, or dispose-of any wares or merchandise, goods or chattels on Sunday, or sell or barter the same,” upon penalty therein prescribed. There was an agreement made on Sunday to exchange salt for cotton; the salt was delivered on that day, but the cotton was not, and on a subsequent' work day a note was given for the cotton. Held, that the original contract was in violation of the Sabbath act, illegal null and void, and that the note made in furtherance of it was also void. Kountz v. Price, 40 Miss., 341. But the note made on a work day, though growing out of a Sunday contract, was, by the current of authorities, valid.
In Missouri, the statute makes it a misdemeanor for a person to labor himself, or compel or permit his apprentice, servant, or any other person under his control, to labor or perform any work, other than those of necessity or charity, on the first day of the week, commonly called Sunday. In Kaufman v. Hamru, 30 Mo., 387, groceries were sold on a work day, but a note for the price, executed and delivered by the purchaser to the agent of the plaintiff on Sunday, dated back to Saturday. Defense, that the note was made on Sunday. The court, in a short opinion, said that the object of the statute would not be promoted by allowing this defense, citing Geer v. Putman, 10 Mass., 312; (which was in effect overruled in Pattee v. Greely, 13 Met., 284; 2 Par. on Con., 759, note q).
In New Hampshire, by act of December 24, 1799, “ No person whatsoever shall do or exercise any labor, business or work of his secular calling, works of necessity or mercy only excepted, on the Lord’s day, under a penalty of six dollars.” In Allen v. Deming, 14 N. H., 133, the defendant bought shingles on Sunday, and gave a note to the seller for part of the price. He permitted the shingles to remain with the seller for about a month, and then took them. away. Held, that the contract was complete on Sunday, and the note void, (disapproving Geer v. Putman, 10 Mass., 312).
Afterwards, the revised statutes so far altered the law, that it prohibited the transaction of secular business on the Lord’s day, only when it was done to the disturbance of others. A note was executed on Sunday, for a mare, at the house of the plaintiff, and in the presence of his wife, who was reading a newspaper, and a witness who went there with defendant. Held, that the giving of the note was business of a secular calling, tending, under the circumstances, to the disturbance of others, within the meaning of the revised statute, and that no action could be maintained on the note. Varney v. French, 19 N. H., 231.
In New Jersey. “ Worldly employment or business” prohibited, and a note made on Sunday is void. Reeves v. Butcher, 31 N. J., 224. So a sale of land. Ryno v. Darby, 5 Green, 232.
In New York. “ There shall be no servile labor, or working on Sunday, excepting works of necessity and charity,” etc. And “No person shall expose to sale any wares, merchandise, fruit, herbs, goods or chattels on Sunday, except meats, milk and fish, which may be sold at any time before nine o’clock in the morning.” In Watts v. Van Ness, 1 Hill, 76, it was held, that a covenant to perform service on Sunday as an attorney’s clerk was void, and no compensation could be recovered. A special justice of the city of New York, receiving an annual salary, could not recover extra compensation for services performed on Sunday. Palmer v. City of New York, 2 Sandf., 318. A contract to publish an advertisement in a newspaper, issued on Sunday; held, unlawful and void, as involving a violation of both provisions of the statute. Smith v. Wilcox, 19 Barb., 581; same case, 24 N. Y., 353. In Boynton v. Page, 13 Wend., 439, held, that the second clause of the statute, as above copied, was intended to prohibit the public exposure of commodities to sale, and that a private transfer of goods was not within the prohibition. It was a private verbal agreement made between the parties in Canada to transfer goods in New York.
In Ohio. “ If any person of the age of fourteen years or upwards shall be found on the first day of the week, commonly called Sunday, sporting, rioting, quarreling, -hunting, fishing, shooting, or at common labor (works of necessity and charity only excepted), he shall be fined,” etc. In City of Cincinnati v. Rice, 15 Ohio, 225, held, that the words “ common labor ” in this act embrace the business of “ trading, bartering, selling or buying any goods, wares or merchandise.” A sale of four hundred bushels of corn on Sunday, held, to be within the prohibition of common labor, and that an action for breach of the contract could not be maintained. Sellers v. Dugan, 18 Ohio, 489. But, on the contrary, held, in Bloom v. Richards, 2 Ohio St., 387, that a sale of land on Sunday, a single transaction, involving, in the opinion of the court, no labor, was not prohibited by the statute.
In Oregon, secular labor or business on Sunday is prohibited, and a note made on Sunday is void. Smith v. Case, 2 Oregon, 191.
In Pennsylvania. “If any person shall do or perform any worldly employment or business on the Lord’s day, commonly called Sunday, works of necessity and charity only excepted,” etc. A bond or note executed on Sunday for property previously sold, held illegal and void. Kepner v. Keefer, 6 Watts, 231. Fox v. Mensch, 3 Watts & Serg., 444. So a contract made on Sunday for the hire of horses to be used on an excur-. sion of pleasure, on that or any other day, is void. Berrill v. Smith, 2 Miles, 402. A bond signed on Sunday, but delivered on Monday, is not void, because not complete until delivered. Commonwealth v. Kendig, 2 Penn. St., 448.
In Rhode Island, the letting of a horse on Sunday by a livery stable keeper, in the ordinary course of his calling, when uncalled for by necessity or charity, is an illegal and void contract. Whelden v. Chappel, 8 R. I., 230.
In Tennessee, all persons are prohibited, as by the English statute, from exercising any labor, business or work of their ordinary callings, and an act to be illegal and void, under the statute, must be done in the ordinary calling, etc. Amis v. Kyle, 2 Yerg., 31.
In Vermont. Sunday “ shall be observed as a day of rest from secular labor and employment, except such as necessity and acts of charity shall require.” An ordinary exchange of horses on Sunday is secular labor or employment within the meaning of the statute, and an action cannot be maintained on such contract for breach of warranty. Lyon v. Strong, 6 Vt., 219. So a promissory note executed on Sunday, in consummation of a contract previously made, is void; but though-written and signed on Sunday, if not delivered until some other day, it is valid. Lovejoy v. Whipple, 18 Vt., 379. Able review of cases by Redfield, J. See also Adams v. Gay, 19 Vt., 358.
In Wisconsin, a sale or note made on Sunday is void. Moore v. Kendall, 1 Chand., 33; Hill v. Sherwood, 3 Wis., 345.
One great object of all the American statutes, though varying in their expressions, is to prevent the desecration of the Sabbath by the doing of ordinary work or secular business.
But aside from any religious considerations, the statutes are founded in good public policy. Rest one day in seven from •labor and secular employments, whether merely manual or mental, is beneficial to body and mind, and a necessity for men as well as animals employed to labor for them. Hence every man must keep one day, but if he be no Christian, he may keep the Sabbath of his own faith.
If our statute were strictly construed as a penal statute, the execution of a note or bond on Sunday could not be considered as embraced in the prohibition against “laboring” on the Sabbath. But acts regulating the observance of the Sabbath have been held to be remedial statutes, and to be construed liberally in respect to the mischiefs to be remedied. Smith v. Wilcox, 24 N. Y., 354; Northrup v. Foot, 14 Wend., 249; Fennell et al. v. Ridler, 5 Barn. & Cres., 406; Smith v. Sparrow, 4 Bing., 84.
A narrow and literal construction of our statute would leave open a wide door for the desecration of the Sabbath. If ordinary manual labor only is prohibited, a man may not plow, sow, reap, dig, or chop on Sunday, but he may sell his lands, stock and crops, execute deeds, bills of sale, warranties, and take notes, on Sunday.
■ So a man may not keep open his store, or retail goods, wares or merchandise, but he can let in á customer, and, with the door shut, lump off his whole stock, and take notes for it on Sunday.
■ So a lawyer may spend the Sabbath in giving advice to his clients, and taking their notes therefor.
These are but examples of numerous instances in which the Sabbath could be desecrated with impunity, if the words of the statute were narrowly construed.
If a man may, without any violation of the law, execute one note, bond, deed or bill on Sunday, he may execute any number.
But it is insisted in this case, that inasmuch as the land was sold on a week day, it was no violation of the statute to execute the note for the purchase money on Sunday. If this be so, a man may sell lands or goods all the week, and devote the Sabbath to taking notes, etc.
The parties in this case knew they were doing wrong in executing the note on Sunday, as indicated by their dating it back to Saturday.
Ve think we are warranted by the great current of decisions, in holding that the execution of the note on Sunday was a violation of the spirit and intention of the statute, and that the note was therefore illegal and void. But the land having been sold on a work day, Crawford did not lose the purchase money by taking an illegal and worthless note. He or his administrator could have brought an action for the balance of the unpaid purchase money, or filed a bill to enforce a vendor’s lien.
II. It is objected for the appellant, that the verdict left the issues upon the pleas or paragraphs of payment and non est factum undisposed of.
Had the verdict been against the defendants below, on the Sunday issue, and left the two other issues undisposed of, it would have been bad; but the verdict being in favor of the defendants, and against the plaintiff, on a defense that went to the whole action, it was not material to dispose of the other issues. O'Brien v. Hilburn, 22 Tex., 617; State Bank v. Cason et al., 10 Ark., 479 ; Quisenberry v. Quisenberry, 14 B. Mon., 481. Had the jury found in favor of the plaintiff, on ihe defense of payment and [non est factum, the verdict being against him on the other defense in bar, judgment must have gone for the defendants.
III. It is also objected that the jury did not find that Crawford knew that the jiote was executed on Sunday — in other words, that he was in pari delicto with the makers of the note, or participated in the violation of the statute.
The plea in effect was, that the instrument sued on was made, signed, executed and delivered by the defendants to Crawford, on Sunday; and the jury in their special verdict, found the material facts alleged in the plea. Six witnesses swore that they were present when the note was executed. Three of them swore that Crawford wrote it, and all of them that it-was signed by West and Mock, and delivered to Crawford at-the time, which was on Sunday. So, according to the testimony of these witnesses, the note was not only signed and delivered on Sunday, but Crawford participated in its execution by writing it, and accepting it after it was signed in his presence.
One of the witnesses stated that Crawford and West made a settlement, and then the note was given for the balance due on the land.
They were living in different rooms of the same house.
With such proof before us of the participation of Crawford in the violation of the statute, we are not disposed to-favor technical objections to the form of the verdict.
A female witness, who was present when the note was executed, stated that the parties were all members of the church, and that she knew that they were doing wrong at the time. She perhaps knew nothing of the statute, but was no doubt familiar with the ten commandments.
IV. On the trial, after the defendants had proven by their witness that the instrument sued on was executed and delivered on Sunday, and closed, the plaintiff, for the purpose of showing an affirmance and ratification of the instrument by West, offered to prove by Pleasant B. Tucker, that after the note was placed in his hands for collection by Crawford, and about a week after its execution, he called on West, on a week day, and informed Mm that he was the agent of Crawford, and as such had the note for collection; and that West, on being so informed, then promised him to pay the note, and expressly stated that he would pay it; and on the objection •of the defendants, the court refused to permit such facts to be proven.
The plaintiff also offered to prove by William Morton, that on Monday, tbe 15th of April, 1861, and after the note had been executed and delivered to Crawford, West promised Crawford to pay him the note; which was also ruled out by the court. Mr. Parson says, whether a contract entered into on Sunday will be rendered valid by a subsequent recognition is not clear upon authorities. 2 Par. on Con., 764.
It is doubtless a general rule that where the consideration of a contract is either wicked in itself, or prohibited by law, it is void and incapable of ratification. Armstrong v. Toler, 11 Wheat., 258; 2 Kent Com., 466 ; Chitty on Cont., 674; Coppell v. Hall, 7 Wall., 558.
And there are cases in which this rule has been applied to contracts made in .violation of Sunday laws. Bradley v. Rea, 103 Mass., 191; Byno v. Darby, 20 N. J. (5 Green), 233; Reeves v. Butcher, 31 N. J. (2 Vroom), 225 ; Pope v. Linn, 50 Me., 83; Finn v. Donahue, 35 Conn., 216.
But in the case before us the consideration of the contract was neither wicked, immoral nor illegal. The note was given by West to Crawford for balance of purchase money due on a previous sale of land. The note was merely illegal as to the time, the day on which it was executed. It was not immoral or illegal in a civil sense, to make the note on Sunday, for by the common law, a contract made on Sunday was valid. The note, not the consideration, was illegal, because the statute forbids its execution on Sunday. Had it been written and signed on Sunday merely, but not delivered to Crawford until Monday, it would have been valid in his hands, as we have seen from cases above cited. Had it been for a wicked or illegal consideration, or act, or service, no matter when written, signed or delivered, the note would have been void, and. incapable, of ratification.
If Crawford had sold the land to West on Sunday, the sale would have been void, and neither party could have enforced it in the courts. But if on Monday, West had paid him the purchase money, why should that not be an affirmance of the sale?
In Adams v. Gay, 19 Vt., 360, Judge Redfield, in a well considered opinion, took the distinction above indicated. He said: “We think contracts made on Sunday should be held an exception, in some sense, from the general class of contracts which are void for illegality. Such contracts are not tainted with any general illegality; they are illegal only as to ■the time in which they are entered into. When purged of this ingredient they are like other contracts. Contracts of this kind are not void because they have grown out of a transaction on Sunday. This is not sufficient to avoid them; they must be finally closed upon that day. And although closed upon that day, yet if affirmed upon a subsequent day, they then become valid. Williams v. Paul, 6 Bing., 653. The same principle is distinctly recognized also in Bloxsome v. Williams, 3 Barn. & Cress., 231. And if it is competent to affirm a contract of this kind upon some other day, it follows there must be a very essential difference between such contracts and most other illegal contracts, which can never be so affirmed as to bind the parties.”
In the case from which we have quoted, the plaintiff and defendant exchanged horses on Sunday, and the defendant was guilty of fraud and misrepresentation. On a subsequent week day the plaintiff requested the defendant to reéxchange, ■which he declined doing; he refused to take back his own horse and surrender the plaintiff’s, and the plaintiff sued him for deceit and false warranty, and it was held that the refusal of the defendant on a work day to reexchange horses was an affirmance of the Sunday contract.
This case has been followed in others. In Sargeant v. Butts, 21 Vt., 99, where an award was made on Sunday, and the party against whom the award was made promised to pay it on a subsequent week day, held that this was a ratification of the award.
So in Sumner v. Jones, 24 Vt., 317, where a horse was sold and a note taken for the price on Sunday; in a suit on the note, it was proven that defendant retained the horse and made two partial payments on the note on work days ; and this was held to be a ratification of the contract, and that the plaintiff was entitled to recover on the note for the balance due.
In Smith v. Case, 2 Oregon, 190, the plaintiff loaned the defendant money and took his note on Sunday. On a subsequent week day, the defendant promised to pay the money. The complaint set out the note and the new promise. On demurrer, held that the retention of the money loaned and the promise to pay it was a ratification of the contract.
In Reeves v. Butcher, 2 Vroom, 225, it was held that the payment of interest on a note made on Sunday did not of itself amount to a new promise to pay the note; that it required an express promise to pay, etc.
In Perkins v. Jones, 26 Ind., 449, held that the mere retention of property or money received on a Sunday contract was not an affirmance of the contract, but that it might be ratified by a subsequent promise. See, also, Smith v. Bean, 15 N. H., 577; Story on Con., sec. 619.
In this case it appears that West kept the land, and honestly owed Crawford the balance of purchase money for which the note was given; and we think the better rule is, that he could ratify the ndte by an express promise made on a week day to pay it, though his promise would be no ratification of the contract as to Mock, who signed the note as surety.
A new promise will revive a debt barred by limitation or discharged in bankruptcy. There is supposed to be in such cases a moral obligation which is a consideration for the new promise. The moral obligation resting upon West in this case, to pay the debt, was certainly as strong if not stronger than it would have been had the note been barred by limitation or discharged by bankruptcy.
Perhaps, under the common law system of pleading, the new promise should be set up by replication to the plea that the note was executed on Sunday; but by our code, there can be no reply except upon the allegation of a counterclaim or setoff in the answer. Gantts’ Dig., sec. 4579. Hence it was competent to prove the new promise without a reply.
Y. The plaintiff introduced some evidence conducing to prove that Mock did not in fact sign the note on Sunday, but signed it at the house of one Marrs on Monday.
The defendants then introduced a number of witnesses, who swore that Mock was not at Marrs’ house on Monday, or that they were there and did not see him there.
Plaintiff then, after the defendants had closed, offered to introduce and prove by other witnesses that Mock was at Marrs’ house on Monday, but the court refused to permit them to be introduced.
Whether Mock was at the house of Marrs on Monday, or not, seems to have been a circumstance connected with the disputed question, whether he signed the note on Sunday or Monday. If he signed the note on Monday, it was, as we have seen from authorities cited, a valid note as to him; and we think the evidence offered by the plaintiff to rebut that Introduced by tbe defendants as to the circumstance or fact in -question was admissible for what it was worth. Other questions are presented by the record, but they are not pressed by appellant’s counsel, and we shall not lengthen the opinion by noticing them.
The importance of the principal questions decided, and their novelty in this state, must be an apology for the length of this opinion.
Eor the errors above indicated, the judgment must be reversed, and the cause remanded for a new trial. | [
-112,
104,
-4,
79,
-54,
-32,
40,
26,
-64,
32,
38,
83,
105,
71,
93,
97,
98,
9,
80,
104,
70,
-77,
18,
69,
-110,
-45,
-13,
-41,
53,
-23,
-19,
-43,
76,
40,
-22,
-35,
4,
-30,
-59,
-98,
-50,
-84,
-71,
108,
-45,
80,
48,
111,
53,
107,
113,
-65,
-25,
42,
21,
71,
79,
44,
106,
40,
-48,
-15,
-102,
-41,
-4,
6,
-111,
34,
-104,
3,
-50,
14,
-104,
21,
6,
-20,
115,
-90,
6,
-44,
39,
9,
72,
102,
98,
48,
-43,
-3,
56,
-88,
46,
54,
-115,
38,
-16,
89,
11,
108,
-66,
-107,
55,
84,
-81,
118,
-68,
5,
20,
104,
3,
-113,
-44,
-78,
51,
58,
-100,
-125,
-29,
-93,
20,
80,
-115,
-22,
93,
99,
61,
-102,
-121,
-80
] |
English, C. J.
The appellant, Charles Wilder, was indicted in the circuit court of Little River county, for stealing seventy dollars, United States currency, etc., etc., of Robert Lemons, found guilty by a jury, motion for a new trial overruled, sentenced to the penitentiary for one year, and obtained an appeal.
The counsel for the appellant, having submitted the cause without a brief, we have carefully examined the points reserved by bill of exceptions in the court below, to see if any substantial injustice was done him.
The evidence introduced upon the trial was, in substance, as follows: Robert Lemons, from whom it was alleged the money was stolen, was drunk at Richmond, on the 6th of January, 1869. In the afternoon, about three o’clock, he was in a grocery kept by John Henderson. He had some money in a little dirty, greasy, cloth sack, which he handed to Henderson, who counted it, and found between sixty and seventy dollars in notes of five, ten and twenty dollars, greenbacks, and a dollar and a half in specie. After counting the money, Henderson put it back into tbe sack, tied it around with a string, and placed it carefully in the inside breast pocket of Lemons’ coat. On that day a witness had paid Lemons a .balance due him for cotton, and fifty dollars to purchase other cotton. After Henderson had put his sack of money in his pocket, as above, he started home. On the road leading from Richmond to Rocky Comfort, and after he had traveled about a quarter of a mile, he lay down on the road side, by a mud hole, in a lane, not far from the house of one Carolan. Abe Cook, who was at Cardan’s, seeing Lemons lie down by the mud hole, went, with one of Head’s little boys, to build a fire by him. Lemons slept there all night.
The appellant came into Henderson’s grocery on the same evening, after Lemons had left, and wanted to buy some whisky and cigars, saying he had no money. Henderson refusing him credit, he said if Henderson would let him have the articles, he would have some money that evening or in the morning, and would pay for them.
After Abe Cook had been to where Lemons was lying, and returned to the house, appellant came riding along by, and inquired of him if he had seen Lemons. Witness told him he was lying up the road by a mud hole, and appellant rode in that direction.
On the next morning, when Lemons awoke, he found his money was gone. He remembered giving it to Henderson, but could not recollect that he returned it to him, and went back to town to inquire of Henderson about it. On the same morning, appellant and Pink Hawkins came into Henderson’s grocery, and appellant called upon Henderson to witness that he paid Hawkins fifteen dollars for a pistol, and said to Henderson if he had let him have the things he had wanted the evening before, he could now pay for them. He spent on that morning a dollar and a half in the grocery. From another witness he purchased a saddle and bridle, for which he paid twenty-five dollars. There were no marks on the bills by which the witness could identify them.
J udge Wilder, the father of appellant, told Henderson that appellant had some money, which he said he had found near the academy, and that he would refund the amount Lemons had lost.
Henderson did not see the wallet appellant had found, as stated by his father, but as described by appellant’s father, it answered the description of the one Lemons had. This part of Henderson’s testimony was excluded by the court, as hearsay, on motion of the attorney of the state, against the objection of appellant.
Two witnesses for the defense swore that they saw appellant, when coming from the direction of Oarolan’s, pick up a small, black, leather pocket book, between the branch and the academy, that looked as if it had been made during the war, and seemed to have a good deal of money in it.
The principal issue before the jury seems to have been whether appellant stole the money from the person of Lemons, while lying drunk on the road, or found it. The court instructed the jury, in substance, that if they believed, from all the facts and circumstances in evidence, that he took the money from Lemons, they should find him guilty, but if on the contrary they believed that Lemons had lost it, and appellant found it, and afterwards converted it, they should acquit him.
Possibly the appellant was not guilty of the theft. Possibly Lemons lost his sack of money, and appellant found it on the next morning. The evidence was slight and conflicting, but the witnesses were before the j ury, who saw what kind of people they were, and their manner of testifying. They found Mm guilty, and the judge who presided at the trial, and who seems to have charged the jury impartially, refused to set aside the verdict. It was the province of the jury, and not ours, as has been often decided, to pass upon the weight of the evidence, and we cannot direct a new trial where there is any evidence to support the verdict.
There was no direct testimony that the offense was committed in Little River county, as alleged in the indictment.
If the money was stolen from Lemons, as concluded by the jury, it must have been while he was lying drunk not far from Richmond, on the road leading from Richmond to Rocky Comfort, the court house town of the county where the trial occurred.
In the report of the facts in Ewwll v. The State, 6 Yerg., 364, the report states: “There is no proof in the bill of exceptions that the offense was committed in Bedford county; nor are there any objects, such as creeks, roads, mountains or rivers spoken of, which are situated in Bedford county. In fact, there is not one word of Bedford county in the bill of exceptions, which purports to set out all the evidence.”
Catron, C. J., said; “It is not stated in the bill of exceptions that the crime was committed in the county of Bedford, nor can the fact be inferred from the facts set forth in the record. The court below not having had jurisdiction from anything appearing, the defendant ought to have been discharged. We have anxiously looked for proof of natural objects, of which we can judicially take notice, to supply this defect in the facts set forth by the record, but none exists, from which the fact may be inferred. We feel therefore bound on this ground to order a new trial.”
In the record before us, three objects are mentioned of a public character: the town of Richmond, the town of Rocky Comfort, where the jury were sitting, and the road leading from the former to the latter, on which, and in sight of Richmond, the offense was committed, if at all.
It will perhaps be safe to presume, that the jury knew that the Richmond mentioned by the witnesses was in Little River county, though formerly in Sevier.
It was assigned as cause for a new trial, that the bailiff in charge of the jury permitted them to separate, &c. ■
It appears that the jury was made up of seven black men, and five white men. The bailiff in charge of them, took them to a hotel for dinner. The landlady objecting to having them all furnished at the same table, the black men were sent to the kitcken, and the white men were served in the hotel dining-room.
There was a door opening from the dining-room to the kitchen, and the bailiff seems to have been on the look-out for intruders. No one entered the kitchen except the landlord, and all he said to the jurors was, “boys, eat bearty.” It was affirmatively shown by the state, that the jurors, while thus ■separated, were subjected to no improper influence. ■
The appellant offered to prove by two of .the jurors, that the jury were influenced to make up their verdict by representations made to them by the bailiff in charge of them. But the court refused to permit the jurors to be sworn for that purpose.
There was no error in this; the statute provides: “A juror cannot be examined to establish a ground for a new trial, except it be to establish, as a ground for a new trial, that the verdict was made by lot.” Gantt’s Dig., sec. 1971.
The bailiff stated that he was not, at any time, in the jury room while the jury were consulting as to their verdict.
The judgment must be affirmed. | [
-80,
-24,
-52,
-68,
26,
-28,
42,
10,
66,
-93,
-9,
115,
-119,
-9,
65,
97,
-30,
45,
84,
107,
-54,
-73,
23,
-93,
-102,
-13,
-7,
-59,
-79,
111,
-84,
-43,
12,
48,
-38,
57,
102,
64,
-63,
28,
-114,
13,
-88,
96,
50,
0,
48,
107,
39,
74,
113,
30,
-25,
42,
28,
90,
73,
108,
-49,
9,
-48,
-5,
-118,
79,
37,
16,
-125,
2,
-73,
7,
-56,
12,
-100,
21,
2,
-72,
123,
-90,
2,
-44,
7,
-117,
8,
102,
66,
48,
-59,
41,
44,
-115,
46,
-10,
-115,
-89,
-76,
68,
67,
109,
-2,
-51,
54,
20,
14,
116,
107,
-40,
85,
104,
-91,
-34,
-108,
-126,
-88,
60,
-98,
-77,
-5,
53,
52,
101,
-49,
-94,
124,
69,
49,
-109,
-113,
-59
] |
English, C. J.
Jerome B. Rogers sued Augustus H. Norman and George W. Norman, in the Ashley circuit court, for the conversion of a note.
The plaintiff alleged in the original complaint, in substance, that being the owner of two notes, executed to him by W. E. McCombs, for $500 each, one due on the 1st of January, 1871, and the other due on the 1st of January, 1872, he deposited said notes in February or March, 1870, with the defendants, who were merchants, under the firm name of Norman Bros., as collateral security for a debt which he was contracting with them for that year.
That in April, 1872, he owed them $680, which was paid by McCombs. That at that time the interest on the note first due amounted to $37.50, and the interest on the other note amounted to $7.50. That the payment made by McCombs took up the first note, and left a balance of $142.50 to go as a credit on the second note, leaving still due upon it $365.
That defendants, sometime in April, 1872, converted said ■note, with that amount remaining due upon it, to their own use. That about the first of May, 1872, plaintiff demanded of defendants the possession of said note, which was refused. That plaintiff had been damaged by such conversion and refusal to the amount of $365, with interest thereon from the 1st of April, 1872, for which he prayed judgment, etc.
Augustus H. Norman filed an answer, denying that he was a partner in the house of Norman Bros., and alleging that the concern was owned by George W. Norman, who did business under that style. On the filing of this answer, the suit was dismissed, by consent, as to Augustus H. Norman, and his name ordered to be stricken from the complaint.
The defendant, Geo. W. Norman, filed an answer, in substance, as follows:
1. That about the — day of April, 1870, the. plaintiff con tracted with defendant to furnish him supplies, money and merchandise, to enable him to make a crop in said year. That in order to secure defendant on account of said advances, plaintiff deposited with him two promissory notes, executed to plaintiff by W. E. McCombs, for $500 each, due January 1, 1871, and January 1, 1872, with instructions for defendant to collect the notes as they become due, and apply the money to defendant’s account against plaintiff.
2. That on January 1, 1871, plaintiff was indebted to defendant for provisions, corn, meat, sugar, money, etc., in the sum of $709.20, and that in part payment thereof, he applied the note of McCombs then due.
8. That on January 1, 1872, plaintiff was indebted to defendant in the sum of $230.21, which was paid to defendant by McCombs, and credited on the second note, and said note delivered to McCombs by defendant to be handed to plaintiff, as said McCombs informed defendant; that since the said notes were deposited with defendant, plaintiff had become largely indebted to him (McCombs), and that he (McCombs) would deliver the said notes to plaintiff if he (plaintiff) would not permit him (McCombs) to set off against the note the amount he held against plaintiff.
4. That it is true that about the time mentioned said plaintiff demanded said note of defendant, when defendant informed him that McCombs had the note and would deliver it t© him, as above stated; but defendant is informed that although McCombs sent for plaintiff, he declined to see him.
5. That McCombs offered to deliver [tendered, as amended] to said plaintiff, or his attorney, before this suit was brought, the said note, and they agreed to receive it.
6. Defendant now brings into court said note, and here offers and tenders the same to said plaintiff.
7. Defendant denies that he ever collected or converted any other amounts or sums of money due on said notes except as above stated. Wherefore, he prays to be discharged.
The plaintiff filed a general demurrer to the first, second, third, fourth, sixth and seventh paragraphs of the answer, which the court sustained. ’
The cause was submitted to the court, sitting as a jury, and the court, after hearing the evidence and taking the matter under advisement, rendered the following judgment:
“It is considered by the court that plaintiff have judgment for the sum of $269.79 damages, together with six per cent, interest on debt and damages from this date” [October 28, 1872].
The defendant moved for a new trial on the grounds:
1. That the court found contrary to law and evidence.
2. That the court erred in sustaining the demurrer to the paragraphs of the answer, as above stated.
The court overruled the motion. The defendant took a bill of exceptions, setting out the evidence and appealed.
I. The paragraphing of the answer of the appellant, and the sustaining of the demurrer to six of the seven paragraphs, leaving the fifth paragraph standing alone and disconnected from the others, was a misconception by counsel and court below of the code of practice.
Paragraphs in a code complaint take the place of counts in a common law declaration. Gantt’s Dig., sec. 4563. And where the defendant has several distinct grounds of defense, counter claims or setoff, they are stated in separate paragraphs of the answer, and take the place of several pleas in the common law practice. Id., sec. 4569.
The sustaining of the demurrer to all of the paragraphs of the answer, except the fifth, left the appellant no valid defense to the complaint. The action is a code' substitute for the common law action of trover.
The conversion of the note is the gist of the action. The fifth paragraph of the answer, when the other connected paragraphs were cut away by demurrer, left the allegation of demand, refusal and conversion, as made in the complaint, unanswered; and a mere tender of the note before suit and agreement by the appellee or his attorney to receive it was all that remained as a defense to the suit. In trover, when the conversion of the property is shown, the right of action of the owner is complete. No tender or offer to restore the property after conversion' will defeat the action or mitigate the ■damages. If the injured party accept the property when tendered, this may be shown in mitigation of damages, but will not defeat the action entirely. Nor will a mere agreement without consideration to receive the property defeat the action or mitigate the damages, where the injured party thinks proper to disregard the agreement, and bring his suit for the conversion.
Where the suit is for the property itself, as in replevin or detinue, an offer to surrender the property before suit is a defense. But the rule is as above stated when the suit is not for the property, but for damages for its conversion. Savage et al v. Perkins, 11 Howard Pr., 17; Hanmer v. Wilsey, 17 Wend., 91; Vosburgh v. Welch, 11 Johns., 175; Gibson v. Chase, 11 Mass., 128.
Taking all of the paragraphs of the answer together, we think they set up a valid defense to the suit, if the material allegations made in them are proved upon a trial. Appellant did not intend, it seems from the answer, to convert the note when he delivered it to McCombs, but he handed it to him to deliver it to appellee, if the appellee would not consent for him to keep it in discharge of a debt due to him from appellee.
Appellant thus made McCombs his agent to deliver the note to the appellee, and if he offered to deliver the note, appellee should have accepted it, and then there would have been no cause of action.
Whether there was in fact a conversion of the note by appellant was a question to be determined by the court upon the evidence introduced by the parties, and, as there was some conflict in the evidence, we should not disturb the finding upon a question as to weight of evidence.
But for the error of the court in sustaining the demurrer to all of the paragraphs of the answer, except the fifth, the judgment must be reversed, and the cause remanded for a new trial upon the whole of the answer. | [
-78,
104,
-128,
-66,
-102,
96,
40,
-70,
-116,
0,
-11,
83,
-7,
87,
20,
101,
-27,
73,
113,
104,
124,
-77,
22,
103,
-62,
-45,
-29,
21,
49,
-35,
-27,
-41,
76,
56,
-54,
29,
-53,
-64,
-59,
-100,
14,
-128,
41,
104,
-15,
73,
49,
43,
85,
13,
113,
47,
-73,
44,
30,
79,
105,
40,
-19,
-120,
-48,
-5,
-102,
77,
-35,
23,
3,
70,
-112,
9,
-54,
12,
-104,
-43,
10,
-23,
118,
-90,
-122,
-44,
79,
-115,
9,
98,
102,
80,
-123,
-19,
24,
-68,
38,
-34,
-103,
-89,
-14,
36,
11,
1,
-65,
29,
58,
-110,
7,
122,
120,
-43,
25,
96,
5,
-101,
-42,
-125,
63,
-18,
-100,
19,
-25,
-125,
0,
80,
-58,
-126,
93,
67,
56,
-101,
-98,
-80
] |
Witherspoon, Sp. J.
This cause was decided at the April term of the Prairie circuit court, 1873, by the Hon. John Whytock, judge, upon the following agreed statement of facts:
“On the 16th day of July, 1868, William Eobinson, being the owner of the lands in controversy, by deed of that date, conveyed them to Eobert J. Eagle and wife (Laura Y. Eagle), which deed is in substance as follows:
“ Be it known that I, William Eobinson, in consideration of the natural love and affection which I have and bear to Eobert J. Eagle and Laura Y. Eagle, his wife, and the further consideration of the sum of five dollars to me in hand paid by the said Eobert J. Eagle and Laura Y. Eagle, his wife, have given, granted, bargained and sold, and do, by these presents, grant, bargain and sell to the said Eobert J. and Laura Y. the following described lands [describing them], to have and to hold the above given and granted lands unto them and their heirs forever. And, for the consideration aforesaid, I hereby bind myself to warrant and defend the title to the same to the said Eobert J. and Laura Y., their heirs and assigns, forever, against the lawful claims of all persons whatsoever.”
Laura Y. Eagle was the daughter of the grantor, William Eobinson, and at the date of the conveyance, was the wife of Eobert J. Eagle.
Eobert J. and wife took possession of the lands under the deed, and held them until the death of Laura Y. Laura Y. died intestate on thé 16th of October, 1869, without issue born alive, leaving her husband surviving. Eobert J. continued in possession of the lands, after the death of his wife, until the 14th of March, 1871, when, by deed of gift of that date, he conveyed them to Malinda Eagle, wife of William H. Eagle, and also a daughter of William Eobinson. William H. Eagle and wife took possession under their deed, and remained in possession of the lands until the commencement of this suit.
Upon this agreed statement of facts, the plaintiff (Eobinson) by attorney, asked the court to declare the law as follows:
Eirst. 'That a proper construction of the deed from Eobinson to Robert J. Eagle and wife is to make them joint tenants. That right of survivorship is not an incident of joint tenancy, in Arkansas; but when a deed would, at common law, create an estate in joint tenancy, by the laws of Arkansas, such estate will, in case of the death of one of the defendants, descend or be inherited as an estate in common.
Second. On the death of Mrs. Eagle, her estate ascended to the plaintiff, her father,.and he is entitled to recover the same, and receive one-half of the rents and profits of said land since her death.
The defendants then asked the court to declare the law :
First. That upon the death of Laura V. Eagle, her husband, Robert J. Eagle, took her interest in the lands by survivor-ship.
Second. That Robert J. Eagle, having taken his wife’s interest in the lands by such survivorship, had the’legal right to convey them to the defendant, MalindaEagle; and the deed is a valid conveyance of the whole land.
The court below gave the law as asked by the defendants, and refused to declare the law as requested by the plaintiff’s attorney. To which ruling of the court, the plaintiff, by counsel, excepted at the time. Whereupon the cause was submitted to the court sitting as a jury, upon the agreed statement of facts.; and the court rendered judgment in favor of the defendants. Plaintiff then filed a motion for new trial, which was overruled; and to which, also, he excepted, and appealed to this court.
There are only two questions involved in the decision of this cause :
First. What estate did Robert J. Eagle and wife take by their deed from Robinson at common law ? and,
Second. Has our statute or the constitution of 1868 changed the common law rule in regard to the interest of husband and wife in such an estate ?
Eirst, then, what says the common law ?
Blackstone, in his Commentaries, book II, naarg. p. 182, says: “ If an estate in fee be given to a man and his wife, they are neither properly joint tenants or tenants in common, for husband and wife being considered one person in law, they cannot take the estate by moieties, but both are seized of the entirety. The consequence of which is, then, neither husband nor wife can dispose of any part without the consent of the other, but the whole must remain to the survivor.”
Lord Kenyon, C. J., in case of Doe, etc., v. Parrott and wife, 5 Term, 654, says: “It seems to me from the manner in which the case is drawn, that it was intended to be argued that the devise in the first will to Ereisbee and wife created a joint tenancy, but that question has been properly abandoned. Eor though a devise to A. & B., who are strangers, creates a joint tenancy, the conveyance of one of them severs the joint tenancy, and passes a moiety. Yet it has been settled for ages that when a devise is to husband and wife, they take by entireties, and not by moities, and the husband cannot, without the consent of the wife, divest her estate.”
The American authorities are all to the same effect, except one case in Connecticut, and one in Georgia. 2 Kent’s Com., 11th ed., top page 113; R. R. Co. v. Harris, 9 Ind., 184; 1 Wash. on Real Estate, 314, 315; Tyler on Infancy and Coverture, 498; McCord’s Rights of Married Women, secs. 109, 110; White v. Wager, 25 N. Y., 328; Den v. Hurdenburgh, 5 Halst. (N. J.), 42 ; Winans v. People, 32 N. Y., 423 ; Jackson v. Stephens, 16 Johns., 110; Stuffy v. Reefe's Ex’r, 26 Penn., 397; 46 id., 248; 56 id., 286; 13 Mass., 213; 26 Ind., 424, and Thornton v. Thornton, 3 Rand. (Va.), 179.
There are many other authorities we could cite to the same effect, but we deem it unnecessary. The authorities, English and American, settle, beyond all controversy, the law as stated by Blackstone and Kent.
We therefore decide that by the common law, Robert J. Eagle and wife were each seized of an entirety in the lands granted them by William Robinson, and upon the death of Laura V., Robert J. Eagle would take the whole estate, and he could sell and convey the same.
The counsel for appellant admits the common law rule as we state it, but contends that it has been changed by statute, and the constitution of 1868. This brings us to the consideration of the question : lias this well settled common law rule of property been changed or modified by our statute and constitution of 1868-?
We think not. Sec. 9, ch. 37, Gould’s Digest, 265, provides : “ Every interest in real estate granted or devised to two or more persons,(other than executors or trustees as such) shall be in tenancy in common, unless expressly declared in such grant or devise to be a joint tenancy.”
Sec. 6, article Nil of the constitution of 1868, relied upon by counsel for appellant, reads as follows: “ The real and personal property of any female in this state, acquired either before or after marriage, whether by gift, grant, inheritance, devise or otherwise, shall, so long as she may choose, be and remain the separate estate and property of such female, and may be devised or bequeathed by her the same as if she were femme sole. Laws shall be passed providing for the registration of the wife’s separate property,” etc.
The act referred to in Gould’s Digest was intended to remedy what was regarded as an evil growing out of an estate of joint tenancy, whereby a survivor, though a stranger, on the death of his cotenant, would take the whole estate by survivor-ship, and other reasons. But it certainly was not intended to. apply to the case of husband and wife, who are regarded by the law, Divine and human, as one person, and hold the estate as an entirety and not-as joint tenants.
In support of this position, we refer to the following authorities, based upon statutes similar to ours. Wright v. Saddler, 20 N. Y., 323 ; Torry v. Torry, 4 Kern., 430; 15 Wend., 615 ; 8 Cowen, 278; 1 Wins. (N. C.), 237 ; 9 B. Mon., 587 ; 10 Mass., 385 ; 19 Wis., 362; 1 Duvall (Ky.), 23 ; 42 Miss., 1.
It is insisted by the counsel for the appellant that the clause in the constitution of 1868, above cited, has so enlarged the rights and powers of a married woman that she is now, in contemplation of law, a distinct person, and entitled to all the privileges of a single woman.
We cannot assent to such a proposition. This article only applies to the separate estate of the wife, and is intended merely to preserve it from liability for the debts' of her husband, and authorizes her to devise and bequeath it. In New York, Massachusetts, and other states with similar provisions of law, they have so decided. See authorities above cited, and Bingham on Real Estate, p. 169, sec. 5; 4 N. Y., 513; 30 How. Pr., 193; Blood v. Humphrey, 17 Barb., 662; Yale v. Dedner, 18 N. Y., 231.
In conclusion, we would remark that we are not only sustained by authority and precedent; but also by sound reason and good policy. The marriage relation is a peculiar one. • It is of Divine origin, and He “who spake as never man spake” declares that “they twain shall be one flesh.” This bond of union between husband and wife contemplates not only a union of hearts, but a union of property and all other interests, and all laws which tend to sever -property rights between them certainly have the effect to weaken the ties which bind them “ for better or for worse,” and thus become a fruitful source of bickering and discontent, which often end in- separation and divorce.
We are aware that there has been a strong tendency of late to “enlarge the rights of married women,” and in most of the states, laws have been passed to protect the separate property of the wife. We doubt the policy, and would, certainly, not be disposed to enlarge the rule so as to include property conveyed to husband and wife jointly. We prefer to stand by the rule sanctioned by Divine wisdom, as well as the decisions of the ablest jurists of England and America; a rule which has been acquiesced in for centuries in Great Britain, and approved and followed in nearly all the states.
Let the judgment of the court below be affirmed with costs.
The Hon. E. H. English, G. J., did not sit in this case. | [
-9,
76,
-36,
60,
-88,
-128,
42,
-110,
73,
-85,
101,
85,
-117,
-38,
20,
57,
-32,
45,
65,
106,
-126,
-77,
94,
-58,
82,
-77,
-47,
-57,
-80,
93,
117,
-41,
72,
34,
74,
21,
98,
-18,
-55,
-108,
-114,
4,
105,
104,
-55,
112,
48,
111,
-46,
75,
113,
-118,
-77,
43,
125,
103,
104,
46,
93,
45,
64,
120,
-81,
7,
-5,
26,
-110,
38,
-8,
1,
72,
78,
-104,
48,
12,
-24,
119,
-74,
6,
116,
21,
-55,
-120,
118,
103,
4,
77,
-83,
-28,
24,
14,
-1,
-115,
-90,
-42,
80,
25,
72,
63,
23,
-47,
80,
7,
118,
-32,
-113,
28,
-24,
21,
-85,
-106,
-109,
-81,
-72,
-108,
19,
-13,
-83,
124,
113,
-49,
-25,
93,
119,
56,
-77,
-98,
-78
] |
Williams, Sp. J.
Appellee brought suit in the Pulaski circuit court by attachment against W. B. Ragland, wherein appellant and one Lewis, who was not served with process were summoned as garnishees, being named as such in the writ. Appellant and Ragland were served with process. Judgment was rendered against Ragland in the principal case, and .judgment by default was rendered against appellee for the full .amount of the principal judgment, without answer, compulsory process to compel a discovery, or proof of the amount he owed Ragland, or that he owed him any thing. The record states that he failed to appear, or answer, and for that reason, proceeds .to judgment against him. This was the practice before the code was adopted. But this suit was instituted after the ■code went into effect, and wherever it established a rule of practice in the courts, it was not cumulative, but exclusive, by its express provisions. Therefore we must look to the civil code for the rules to guide us to our conclusions. Sec. 220, civil code, provided the mode of service on a garnishment; •sec. 245 provided for the manner of appearance; sec. 246 provided for the examination of the garnishee; sec. 247 provided for compulsory process to compel the garnishee to appear .and answer, and on default, provided that proof should be taken of any debt, or property owing, or held by the garnishee for the defendant, and authorized the court to make such orders in relation thereto, as if what is so proved had appeared •on the examination of the garnishee; sec. 248 provided, that the plaintiff, if not satisfied with the answer of the garnishee, might contest it in the mode pointed out, i e., by filing a complaint and issuing a summons against the garnishee. The remedy by attachment, and garnishment in connection therewith, to subject the property and credits of a debtor, wherein the defendant, at least temporarily, is deprived of the possession and control of his property upon the ex parte statement of plaintiff and without trial, is at best, an extraordinary and harsh remedy, in derogation of the common law, dependent upon positive legislation for its existence, and he who invokes it must follow the law, at least in substance.
Appellant at the time he was served, on reading the code, had a right, even if he owed nothing, to presume that nothing •would be proved against him ; and if plaintiff desired to examine him, he would take the steps to do it as directed by the code. There was nothing in the code to lead him to believe .that this judgment would be rendered without answer, examination, or proof, or that he would be made liable for another man’s debts.
Finding error in the proceeding of the Pulaski circuit court, in thus rendering judgment by default, against appellant, the same is reversed, and the case is remanded to said court with instructions to proceed therein as the law directs.
Hon. E. H. English, C. J., did not sit in this case. | [
-76,
-20,
-72,
125,
72,
96,
34,
-120,
-13,
-95,
51,
-46,
-19,
-26,
8,
45,
-13,
105,
113,
120,
69,
-89,
23,
65,
-8,
-77,
-47,
-43,
-67,
-49,
-28,
-34,
12,
48,
98,
-43,
-58,
-126,
-63,
-100,
-52,
14,
25,
-23,
-15,
65,
48,
59,
18,
73,
53,
-98,
-29,
46,
17,
79,
105,
60,
-23,
-84,
-64,
-128,
-98,
23,
126,
22,
49,
7,
-104,
3,
-38,
14,
-120,
49,
3,
-7,
114,
-74,
2,
-44,
105,
-69,
9,
102,
98,
34,
69,
-31,
-104,
-68,
46,
-4,
-97,
-89,
-47,
121,
11,
73,
-74,
-99,
110,
-112,
-121,
124,
-2,
-99,
28,
40,
3,
-113,
-106,
-77,
-97,
54,
-98,
23,
-25,
3,
48,
81,
-58,
-94,
93,
67,
113,
-101,
-116,
-97
] |
Harrison, J.
Orrin Watson was, upon the information of one Carter R. McClellan, arrested and brought before a justice of the peace in Pulaski county, on a charge of bribery.
The information, which was in writing, was as follows:
“ State oe Arkansas — County of PulasJci I, Carter R. McClellan, do solemnly swear that William Tall and - McHaney (whose Christian name is to affiant unknown) did, on or about the 13th day of March, 1873, in the county and state aforesaid, feloniously steal, take and carry away one cow worth thirty-five dollars, the property of Samuel Crawford, and that one Orrin Watson, who was then and there a duly qualified and acting justice of the peace in and for said county and state, upon affidavit being made before him, the said Watson, by the said Crawford, issued a warrant for the said Tall and McHaney, who were on said day brought before the said Watson, who, upon an examination of said charge, found that there was probable cause to believe that they had committed the crime with which they were charged ; and affiant further says, that the said Watson, then and there well knowing the said crime to have been committed, but contriving and intending unlawfully to prevent the due course of law and justice in that behalf, and to cause and procure the said Tall and the said McHaney for the felony aforesaid to escape with impunity, afterwards, to-wit, on the day and year aforesaid, in the county and state aforesaid, unlawfully and for wicked ■gain’s, sake, did compound the said felony with the said Tall and McHaney, and did then and there exact, take and receive and have of the said Tall and McHaney two horses, for and as a reward for compounding the said felony and desisting from all further prosecution against the said Tall and McHaney or either of them, for the felony aforesaid ; and that the said Orrin Watson, justice etc., as aforesaid, on the day and year aforesaid, in the county and state aforesaid, did thereupon desist, and from that time hitherto hath desisted from all further prosecution of the said Tall and McHaney for the felony aforesaid. Wherefore, affiant prays that the said Orrin Watson may be apprehended and dealt with according to law.
“C. R. McClellan.
“Sworn to and subscribed before me this 20th day of August, 1873. Thos. C. Peak, J. P.”
He was tried by a jury which found him guilty of compounding a felony, and assessed his punishment at three hundred dollars fine and three months’ imprisonment. He appealed to the criminal court of said county, where he was again found guilty of the same offense and the same punishment assessed, and having failed to obtain a new trial or an arrest of judgment, he appealed to this court.
Several exceptions to the ruling of the court were reserved by the defendant during the progress of the trial, which were made grounds of his motion for a new trial, but as the questions raised by them relate to the offense of compounding a felony, which was neither charged in the information, nor disclosed by the evidence, and therefore abstract and irrelevant, they need not be noticed.
Although, in the information, the offense is called compounding a felony, the facts alleged, and which the evidence upon the trial tended to prove, show the commission of, and constitute the crime of bribery; and that is the offense, really, with which the defendant is charged.
Compounding a felony is “the offense of taking a reward for forbearing to prosecute a felony. As where a party robbed takes his goods again, or other amends upon an agreement not to prosecute.” Burrill’s Law Dict. Blackstone says: “Of a nature somewhat similar to the two last” (taking a reward under pretense of helping the owner to his stolen goods, and receiving stolen goods, knowing them to be stolen) “ is the offense of theft bote, which is, where the party robbed not only knows the fellow, but also takes his goods again, or other amends upon agreement not to prosecute. This is frequently called compounding of felony, and formerly was held to make a man an accessary; but it is now punished only with fine and imprisonment.” 4 Black. Com., 133 ; 1 Russ. on Crimes, 131 ; 1 Hale P. C., 619; 1 Hawk. P. C., 476.
“Bribery * * is where a judge or other person concerned in the administration of justice takes any undue reward to influence his behavior in office.” 4 Black. Com., 139. And Bussell says: “ Bribery is the receiving or offering any undue reward by or to any person whatsoever, whose ordinary profession or business relates to the administration of public justice, in order to influence his behavior in office, and incline him to act contrary to the known rules of honesty and integrity.” 1 Russ. on Crimes, 154; 1 Hawk. P. C., 414.
The taking or the offering a reward to influence official conduct is a necessary ingredient in bribery, but without an averment of that kind, or proof of such fact, the accused, in a case like the present, may be convicted of malfeasance in office, which is an offense as well by common law as by statute. 1 Russ. on Crimes, 135; 4 Black. Com., 141; 1 Hawk. P. C., 413; Gantt’s Dig., 1995, 1998.
The punishment prescribed by the statute for compounding a felony is a flne of not less than three hundred dollars and imprisonment not less than three months. Gantt’s Dig., 1427; and for bribery and for malfeasance in office, a fine not exceeding two hundred and fifty dollars and imprisonment not exceeding one year, or by fine and imprisonment both; or such was the punishment for bribery when the offense here charged is alleged to have been committed, which was before the passage of the act of April 5, 1873, by which bribery is made a felony. The said act makes no change in the punishment for malfeasance in office.
It is then apparent that the verdict of the jury, finding the defendant guilty of compounding a felony, and assessing the fine at three hundred dollars, when the highest fine for bribery, as the law was when the offense is alleged to have been com mitted, was but two hundred and fifty dollars, was erroneous, and should' have been, on the defendant’s motion, set aside and a new trial ordered.
The defendant insists that the judgment should have been arrested for two reasons:
1. Because >the offense was not sufficiently set out in the warrant of arrest; and 2. Because the defendant could only be prosecuted by indictment for the offense, and the justice of the peace had, therefore, no jurisdiction of the case.
The only purpose of the warrant is to have the person charged with the commission of the offense arrested and brought before the justice, or other officer issuing it, to be dealt with according to law; and when that is done, it has performed its function, and has no operation whatever upon the subsequent proceedings. The object in naming or stating in it the offense charged is only that the person to be arrested may at the time be informed for what he is arrested ; but if it does not then sufficiently appear, it can have no such effect as releasing him when brought before the magistrate.
In prosecutions in justices’ courts, no written information or pleadings are required. Gantt’s Dig., 2039.
Jurisdiction in all criminal matters less than felony is expressly conferred on justices of the peace by sec. 20 of art. VII of the constitution of 1868.
Their jurisdiction is not, however, exclusive, and all misdemeanors may be prosecuted by indictment in the criminal court. Tucker, ex parte, 25 Ark., 567; Gantt’s Dig., 1639. And upon a conviction in the circuit court for any malfeasance in office, in addition to the other punishment, a judgment of removal from office is rendered.
There was, clearly, no want of jurisdiction in the justice of the peace before whom the prosecution was commenced; nor for that cause in the criminal court to’which the case was brought by appeal; but because the verdict was not warranted by law, and a new trial for that reason should have been had,, the judgment is reversed and the cause remanded to the circuit court of Pulaski county, to which the jurisdiction of the said criminal court has been transferred by law and now belongs, with the instruction to set aside • the said verdict and order a new trial, and for further proceedings. | [
116,
-31,
-20,
13,
42,
-64,
30,
58,
-61,
-69,
119,
82,
-23,
84,
1,
49,
-30,
125,
85,
121,
-28,
-74,
113,
81,
-61,
-77,
-85,
-57,
55,
-57,
-82,
-41,
91,
112,
-38,
89,
-58,
108,
-89,
-36,
-118,
9,
9,
-8,
-36,
64,
52,
-85,
23,
10,
113,
62,
-2,
42,
84,
-6,
105,
44,
77,
63,
80,
115,
-69,
93,
93,
22,
-127,
34,
-104,
1,
42,
58,
-104,
49,
64,
-6,
91,
-126,
-122,
-60,
77,
-103,
76,
96,
38,
33,
-36,
-81,
32,
-120,
47,
63,
-111,
-89,
-74,
72,
42,
9,
-98,
-99,
87,
-110,
-124,
-16,
-77,
37,
17,
104,
37,
-49,
-108,
-123,
-19,
32,
-108,
115,
-29,
41,
48,
97,
-49,
102,
85,
5,
112,
-101,
-122,
100
] |
English, C. J.
The original bill in this case was filed in tbe Saline circuit court, by Wm. M. Pack, as administrator of Leonidas H. Bean, deceased, against the widow and heirs at jaw of his intestate. The object of the bill was to procure an order of court to sell the W. 1-2 of the N. W. 1-4 of sec. 13, and the E. 1-2 of the N. E. 1-4 of sec. 14, T. 1 N., R. 18 W., situated in Saline county, to pay debts probated against the estate of Bean, and of which he was alleged to be the owner at the timé he died in Texas.
The minor heirs of Bean filed a cross-bill, in which they claimed title to the lands in themselves, and other heirs of their maternal grandfather; made Crawford and Smith defendants, and prayed for partition of the lands, etc.
Crawford and Smith answered, and also filed a cross-bill, in which they alleged that Crawford purchased the lands at tax sale, obtained a deed, and conveyed an undivided half of the lands to Smith. In the answers to this cross-bill, the tax title was assailed for alleged fraud and illegality.
The court decreed the lands to Crawford and Smith, subject to the right of some of the minor parties to redeem two-sevenths of them; and Pack, as administrator of Bean, appealed. The tax deed made an exhibit to the cross-bill of Crawford and Smith, and relied on by them for title, is in substance as follows:
The deed was executed by the county clerk to Wm. A. Crawford, bears date 25th of September, 1871, and recites that, “ Whereas, on the 6th day of October, 1868, E. H. Vance jr., assessor in and for the county of Saline, did file in the clerk’s office of said county an assessment of all the lands and town lots in said county, in manner and form as provided bylaw. And whereas, on the 1st day of February, 1869, James A. Mills, clerk of said county, did deliver to the collector of said county the tax books for the year 1868, embracing all of said lands and town lots, with the amount of taxes levied duly extended thereon, together with the warrant for the collection of said taxes as prescribed b}r law.
“ And whereas, the following tracts of land, viz: The west half of the northwest auarter of section thirteen, and the east half of the northeast quarter of section fourteen, in township one north, of range eighteen west, containing 160- acres, dying in said county, were entered, listed and assessed for taxation, in the name of Howald & Bean, for the year 1868, and neither the owner, nor any person or persons for said owners, having paid the taxes levied as aforesaid, amounting to the sum of twenty-three and dollars. Wherefore, William M. Pack, as such collector, did, on the 7th day of June, 1869, return said tracts of land as delinquent; said delinquent lands were duly advertised, and notice given by publication as provided by law, that the collector would sell at public auction at the court house door in said county, on Monday, the 20th day of August, 1869, the said tracts of land for the taxes, together with 50 per cent, penalty, and costs thereon; and said collector did, on the date last mentioned, proceed to sell said lands; whereupon William A. Crawford bid, and offered for said lands, the sum of twenty-five dollars, and having paid to the collector the said sum of twenty-five dollars, and the term of two years having expired since the day of sale, and the said lands being unredeemed, and the certificate of purchase being now produced by said William A. Crawford, he now demands a deed for said lands. Now, know ye, that I, James A. Mills, clerk as aforesaid, pursuant to the provisions of sec. 129, of an act regulating the assessment and collection of the revenue of the state of Arkansas, approved March 25,1871, and in consideration of the sum of twenty-five dollars, paid to the collector as aforesaid, do hereby grant, bargain and sell unto said William A. Crawford, his heirs and assigns, the before described tracts of land, etc.”
I. It seems from the face of the deed that the lands were advertised and sold for the taxes, and fifty per cent, penalty thereon for nonpayment. By sec. 44 of the act approved July 28, 1868, entitled “ An act to assess and collect taxes, and for other purposes ” (Acts of 1868, p. 278), a penalty of twenty-five per cent, was imposed for the nonpayment of taxes assessed on real property within the time fixed by the act. So by sec. 10 of the act of February 19, 1869, entitled “ An act to aid in assessing and collecting taxes for the year 1868,” Acts of 1868-9, p. 49, it was provided that if the taxes on real property should not be paid within the time prescribed by sec. 8 of the act, they should be deemed delinquent, and a penalty of twenty-five per cent, added thereto.
The lands in question were sold on August 2, 1869, for the taxes of 1868. It may be that the penalty of fifty per cent, was imposed under some provision of the act of April 8,1869, entitled “An act regulating the assessment and collection of revenue,” which was not published in the pamphlet acts of 1868-9, but in a separate pamphlet. But sec. 159 of this act, being the last section, declares: “ That an act entitled an act to assess and collect taxes, and for other purposes, approved July 23,1868, and all acts supplemental thereto, are hereby repealed, but shall remain in full force and effect for the purpose of making the collection of taxes for the year 1868.” We have been able to find no act imposing a penalty of 50 per cent, for the nonpayment of taxes of 1868 on lands. The sale for a larger penalty than was imposed by law was illegal and invalid. Huse v. Merriman et al., 2 Greenl. (Me.), 376; Blackw. on Tax Titles, p. 192, and cases cited ; Doe on dem., etc., v. McQuilkin, 8 Blackf., 335; McQuilkin v. Doe on dem. Stoddard, id., 581; Mason v. Roe, etc., 5 id., 98 ; Scott et al. v. Watkins, 22 id., 556.
II. It also appears from the face of the deed that the collector sold the two tracts of land together, and not separately.
Sec. 78 of the act of July 23, 1868, required the auditor to make out and forward to the county clerk a complete list of all lands subject to taxation in their respective counties ; the list to show in whose name the original entry or purchase was made, the date of the entry, a description of each tract or parcel arranged in each township according to the numerical order of the sections.
The auditor was also required to furnish the clerks with assessment books, tax books, plats, etc. Id., sec. 79. Section 31 of the same act required the clerk of each pcounty to make out and deliver to the assessor an assessment roll of lands and town lots within his county, to be compiled from the books in his office, containing a description of each tract and lot of real property in his county subject to taxation, and the number of acres or quantity of land contained in each tract, except town or city lots, with the name of the owner thereof, if known ; and in making out such assessment roll, to place each separate parcel of land in each township, according to the numerical order of the sections, and each town or city lot according to the numerical order of the lots and blocks, etc. Each assessor was required to ascertain and set down opposite each tract of land in the assessment roll furnished him by the clerk, the value thereof, etc. Id., sec. 7, 25, 26. The lands in question were assessed under the provisions of this act. The tax deed shows that the assessor of Saline county returned his list October 6, 1868, for that year. The collector was required to offer for sale at public auction, separately, each tract of land or town lot contained in the advertisement, etc., on which the taxes, penalty, and costs had not been paid. Id., sec. 50. So by the supplemental act of February 19, 1869.
By sec. 50 of the act of July 23, 1868, the person offering at the sale to pay the taxes, penalty, and costs charged on a tract or lot for the least quantity thereof, was to be the purchaser of such quantity, as under former statutes. But by the supplemental act of February 19, 1869, when the proceeds of the sale of one or more tracts taxed to any person were sufficient to pay the taxes, penalty, costs, etc., charged against the delinquent lands of any such person, and he had still other tracts more than necessary to pay such taxes, etc., the excess was not to be sold. Sec. 16, etc.
In the case before us, there were two half quarters, one of them in sec. 13, and the other in sec. 14. They were clearly two distinct tracts within the meaning of the acts above referred to; and should have been offered for sale separately, and not together. And it appearing from the face of the deed that they were sold together, the salé was illegal and invalid, as held in Pettus and Glenn v. Wallace. The deposition of the appellant Pack was taken on the part of parties claiming adversely to Crawford and Smith, and seems to have been made upon the hearing without objection. He deposed, in substance, that he was sheriff at the time the lands were sold, and made the sale. That Crawford bought the lands for $25. That he paid $12 for one tract, and $13 for the other. That the taxes, penalty, and costs, on each tract was $11.71, to the best of his recollection. Prom this deposition, it would seem that the tracts were sold separately. If they were so in fact sold, the clerk might properly embrace both tracts in one deed, but he should have shown by the recitals of the deed that they were separately sold, and not have recited, as he did, that they were sold together, for the gross amount of taxes, etc., charged on both tracts. Sec. 22, act of February 19, 1869. Bonnell v. Roane, 20 Ark., 122.
In Walker v. Moore, 2 Dillon, 256, which was an action of ejectment for lots purchased at tax sale, it was held, that a tax deed, showing by its recitals that two or more separate town lots were sold, en masse, for a gross sum, was void on its face, and that evidence to contradict the recitals, and show that the lots were sold separately, was inadmissible.
. Possibly the clerk, in making the deed, made a mistake in reciting the penalty imposed for the nonpayment of the taxes, as well as in reciting that the tracts were sold en masse. The deed recites that the “ taxes,” amounted to $23.42 on the tracts, and that they were advertised and sold for the taxes, together with 50 per cent, penalty and costs thereon.”
Pack deposed that the taxes, penalty and costs on each tract were $11.71, which added, make $23.42, just the sum that the deed recited the taxes to be.
Whether, where such recitals are, in fact, mere mistakes of the officer drafting the deed, they can be contradicted by other evidence, on a bill properly framed and brought for the purpose of correcting the mistakes, we need not decide in this case. The crossbill of Crawford and Smith was not framed or brought for that purpose. They set up the tax sale and deed, by general averments, as regular and valid, and rely on the deed as their title to the lands; and we have held above, that upon its face it is invalid, showing, as it does, an illegal sale.
There was an attempt by the pleadings and evidence on the part of the appellant, to show that- Smith, who purchased an undivided half of the lands of Crawford, was the attorney of Bean, and under obligations to redeem the lands from the tax sale, and that other parties interested in the lands, relying upon his doing so, let the time for redemption run out.
The allegations on this subject were denied by Crawford and Smith, and we think the weight of the evidence, as far as it' appears of record, sustained their answer. Smith was the attorney of Bean in some cases during his- lifetime; but was paid no fees. None of the parties interested in the lands made him an agent to pay the taxes nor was he furnished with any means to pay them or redeem the lands, nor does it appear that he undertook to do so.
Pack knew of the sale of the lands for taxes, because he made it. He became the administrator of Bean, October 1, 1870 and before the tax deed was made to Crawford. It appears that the lands were improved, valuable, and that, claiming that they belonged to the estate of his intestate, he had control of the rents and profits, and it was his duty to redeem the lands from the tax sale. He did not, therefore, stand in a very good attitude to impute neglect or bad faitb to Smith. Any of the parties interested in the lands could have gone to the clerk and redeemed them at any time before the time for redemption expired. They failed to do so, or to furnish, or to offer to furnish Smith with means to redeem them.
The decree of the court below must be reversed, because the court decreed the lands to Crawford and Smith, upon a tax deed appearing on its face to be invalid, and the cause remanded for such further proceedings as the parties may think proper to take in the case, not inconsistent with law, and this opinion. | [
-16,
120,
-36,
45,
42,
-64,
8,
42,
88,
-96,
39,
83,
-39,
90,
20,
97,
-29,
13,
85,
105,
-26,
-73,
19,
35,
-110,
-77,
-75,
-57,
49,
-51,
-25,
-43,
12,
40,
-54,
-99,
7,
-30,
-81,
-36,
-114,
-64,
-23,
68,
-47,
0,
52,
-17,
39,
73,
117,
62,
-13,
40,
29,
98,
73,
46,
-39,
40,
90,
-78,
-70,
-100,
-2,
3,
1,
-58,
-104,
69,
-56,
26,
-112,
49,
-120,
-24,
123,
-74,
6,
-42,
39,
9,
-119,
40,
38,
49,
-59,
-19,
24,
-104,
47,
-9,
-99,
-90,
-44,
89,
19,
40,
-76,
-97,
124,
-80,
11,
-16,
-18,
-59,
20,
108,
-123,
-50,
-44,
-109,
45,
-66,
-116,
19,
-9,
-69,
52,
113,
-113,
-30,
125,
103,
48,
-101,
-113,
-16
] |
Harrison, J.
The appellant, Jesse B. Dawson, was convicted in the St. Francis circuit court of the crime of rape. He moved for a new trial, which was refused, and upon that refusal, the questions in the case arise.
The grounds alleged for a new trial were:
1. That no copy of the indictment had been delivered to him before he was arraigned, or before he was put upon his trial.
2. That no copy of the list of jurors had been delivered to him before the trial.
3. The refusal to instruct the jury as asked by him; and
4. The verdict was contrary to law and evidence.
There is no foundation in the record for either of the first two causes assigned.
It is by section 1825, Gantt’s Digest, that a copy of the indictment is in any case required to be delivered to the defendant, which is as follows:
“ It shall be the duty of the clerk of the court in which.an indictment against any person for a capital offense máy be pending, whenever the defendant shall be in custody, to make out a copy of such indictment and cause the same to be delivered to the defendant or his counsel, at least forty-eight hours before he shall be arraigned on such indictment; but the defendant may at his request be arraigned and tried at any time after the service of such copy.”
The record discloses the fact that the defendant was on bail and not in custody, and he was not, therefore, entitled to require service of a copy of the indictment. If he desired a copy, he was at liberty to apply to the clerk for it, whose duty it was to make out and deliver the same to him, on being paid the fees allowed by law therefor. Section 1826, Id. But, if in custody, unless the record affirmatively shows that the copy was not delivered, which it does not, it will be presumed, in the absence of anything appearing to the contrary, that it was done, or that the defendant waived it.
The defendant’s bill of exceptions states that a copy of the venire was not served on him or his counsel, before going into trial — the length of time mentioned or fixed in the statute; but it does not appear that he made any objection against proceeding to trial without it.
In Freel v. The State, 21 Ark., 226, the court say: “ Where the prisoner goes to trial without objecting that a list of jurors has not been furnished, and where there is no affirmative showing that the list has not been served, the mere silence of the record on the subject, or the mere failure of the record to show that the list was furnished, is no valid cause for arresting or reversing the judgment.” And we are of the opinion that though the record did show that a list had not been furnished, where no objection to proceeding to trial without it was taken, there can be no ground for supposing that any prejudice resulted to the defendant for the want of it, and that a fair and impartial trial had not been had, and that a new trial for that cause should not be awarded him. Gantt’s Digest, sec. 1970.
There is, in the code of criminal practice, no provision requiring a copy of the venire to be served on the accused ; but whether the code repealed sec. 56 of ch. 52 of Gould’s Digest, which, before its enactment, required’ such service, we need not, in this case, undertake to decide.
The third ground of the motion was that the court refused to give the jury certain instructions asked by the defendant, which were as follows:
1. “ Unless the jury find that the defendant intended to have carnal knowledge of said Sarah Louisa Beers forcibly .and at all events, they will find the defendant not guilty.
2. “ If the jury find that Sarah Louisa Beers, at the time of the commission of the supposed offense, had not attained the age of puberty, and that she offered no resistance requiring force to overcome it, but merely withheld her consent, they will find the defendant not guilty.
8. “ If the jury believe from the testimony that at the time ■of the commission of the supposed offense, said Sarah Louisa Beers had not attained the age of puberty, they are bound to .acquit the prisoner.
4. “If the jury find that at the time of the commission of the supposed offense, the said Sarah Louisa Beers had not attained the age of puberty, her consent or nonconsent was immaterial; the crime of rape, as defined by the first section of the statute upon which this indictment is founded, could not be committed upon her, and the jury must find the defendant not guilty.
5. “ The jury should remember that the charge of rape was one easy to be made and hard to disprove, and they should •carefully endeavor to keep the heinousness of the crime and their sympathy for the girl from hurrying them to a convieion.”
The first of these proposed instructions, if the evidence in anywise tended to show that no greater offense than an assault-with intent to ravish was committed, was not a correct declaration of law, for it is not the extent of the persistence to which the party charged intended to go towards effecting his purpose, but the force actually used, which is an element in the crime; but the evidence before the jury was direct and positive to the perpetration of the grave offense that was charged; and there was not a scintilla of evidence to lead the-mind to the conclusion that the attempt stopped short of it.
The second, third and fourth were, also, properly refused. A rape may be committed on a female under the age of puberty, as well as on one above it; and even upon one so-young as not to be capable of giving consent or of exercising any judgment upon the matter. Gould’s Digest, ch. 51, art. IV., sec. 1; 2 Bish. C. L., sec. 1076; 1 Hale P. C., 631; 1 East. P. C., 435; 1 Hawk. P. C., 122; 4 Black. Com., 214; Hays v. The People, 1 Hill, 351; Stephen v. The State, 11 Ga., 225.
The fifth seems not to have been offered as a proposition of law applicable to the evidence, but -by way of cautionary direction from the court to the jury in their consideration of the evidence before them, the giving or refusing of which was in the sound discretion of the court; and certainly there was nothing in this case which called for or warranted such an admonition, and the court very properly rejected it.
The last ground of the motion was, that the verdict was contrary to law and evidence.
Sarah Louisa Beers, the party upon whom the crime was charged to have been committed, was a girl, a child about eleven years old, living in the defendant’s family. The defendant’s wife was from home, and there was no other person about the house but the defendant and the child and Pike-Little, who was lying ill in another room. The child was in the defendant’s room about sunrise, sweeping, when he ordered her to get in his bed; upon her not complying, he threatened to stamp her into the ground. He then seized hold of her and jerked her into it, and against her will, she crying and screaming the while, violated her person. Profuse bleeding followed the outrage, and a physician calling to see the sick man, whom he was attending, learning from him the deed, within two or three hours after its perpetration examined the child, then in great pain, and found her bruised and lacerated in a horrible manner from the penetration of her person. Upon a careful examination by physicians, no sign or appearance of puberty or womanhood could be discovered.
The crime was committed in St. Erancis county, and before the finding of the indictment.
Such are the facts developed by the evidence, which was direct, positive and full to every material allegation of the indictment; But were it less conclusive, it was the province of the jury to consider and pass upon the evidence, as this court has repeatedly held ; and it has no authority upon the mere weight of evidence to disturb their verdict.
We find no error in the proceedings of the court below, and its judgment is accordingly affirmed. | [
-80,
-24,
-20,
63,
56,
97,
34,
-72,
67,
-125,
32,
83,
45,
-42,
0,
123,
-93,
121,
117,
121,
-52,
-74,
47,
65,
-14,
-9,
49,
-43,
119,
73,
-19,
-4,
93,
112,
-118,
-15,
70,
74,
-91,
28,
-122,
-127,
-71,
-26,
-45,
-64,
36,
33,
94,
11,
113,
-98,
-29,
42,
26,
-49,
105,
44,
73,
-67,
88,
49,
-110,
71,
47,
4,
-95,
52,
-111,
11,
-40,
44,
-40,
49,
1,
-8,
115,
-74,
-126,
-10,
35,
-103,
-96,
102,
98,
1,
29,
-20,
-104,
-112,
47,
62,
25,
-89,
-112,
73,
75,
12,
-74,
-35,
69,
84,
46,
-10,
-19,
69,
89,
108,
11,
-49,
-76,
-109,
-81,
108,
-114,
6,
-21,
7,
112,
116,
-50,
-14,
92,
71,
91,
-101,
-99,
-45
] |
Williams, Sp. J.
Holman, appellant, bought certain lota in tbe town of Pine Bluff, from William E. Woodruff, Sr., paid a portion of the purchase money, and for the balance, two notes of Holman were given, one due June 8,1860, the other was due June 8,1861.
Woodruff gave Holman his title bond, conditioned to make him a deed upon payment of the purchase money. Holman made some improvements upon the lots, and on the 27th day of September, 1859, sold them to D. C. Hardeman, and assigned the title bond of Woodruff to him, and also his interest in the lots, and authorized him to receive a deed from Woodruff to the lots when he paid the two notes due from Holman — all of which was indorsed in writing on the bond— and took Hardeman’s note for about five hundred dollars, balance of purchase money due Holman himself. On the 7th day of March, 1860, Hardeman assigned the title bond to Caldwell Brewer. In September 1860 afterwards, Holman filed a bill in the Jefferson circuit court against Hardeman, Brewer and Woodruff, to foreclose a lien Holman claimed against the lots, for the sum for which Hardeman had given his note to Holman as the consideration, in addition to the payment of the notes to Woodruff for the transfer and assignment of the title bond. This bill •claimed that Brewer bought of Hardeman, with full notice of Holman’s rights, and assumed that Brewer still owed Hardeman a sufficient sum to pay Holman’s lien debt. Process was issued on this bill, and returned non est as to Brewer; at the fall term of the Jefferson circuit court, 1860, an alias was •ordered for him for the March term, 1861. This writ is marked by the clerk, “Returned and filed in April, 1861.” The sheriff seems to have made no statement whatever on it; no further process appears in the transcript. Pending this suit, Brewer, ■on the 29th day of April, 1862, assigned the title bond to Edward W. Noonan. Neither the bond for title nor theas-sigmnent was ever recorded. On the 2d day of May, 1862, Noonan, holding Woodruff’s bond so assigned, presented it to him, paid the purchase money due Woodruff, and Woodruff rand wife executed to him a deed for the property.
Patterson, appellee, avers in his bill that on the 21st day of .September, 1866, Edward W. Noonan and wife executed and delivered a deed to him of the lots. This deed is exhibited, and on the demurrer we will take the allegation of execution to' be true; but exhibit “ 0 ” to Patterson’s bill, if the fact of execution were controverted by an answer, would require some showing of power in the attorney in fact who executed it for Edward W. Noonan. Holman’s bill, filed on the 29th of September, 1860, slept, as far as this record shows, until the 15th •of June, 1866, when Hardeman, who had not been served, entered his appearance and consented to a decree. The record exhibited with the bill states as follows : “ And it appearing that the allegation of the complainant’s bill had been taken for confessed, and • decree pro confesso had been entered up at the last term of this court against defendant, Caldwell Brewer.” [Yet no such record entry is copied in the transcript exhibited.] The court then proceeds to render a decree against Hardeman and Brewer in favor of Holman, directing that the lots be sold, etc., at the fall term, 1868.
Appellee presented his bill to the Jefferson circuit court, setting forth the proceedings and decree in Holman’s suit, to which it is averred Woodruff and Brewer were made parties, and a decree pro confesso was rendered against them, and that the note given by Hardeman to Holman for the. purchase money, which stipulated that the same should have the force of a mortgage and be a lien on the lot, had not been recorded, and that the assignment of the title bond did not show that anything was due Holman from Hardeman, and that the decree of Holman had been rendered without any service on Noonan and Patterson. On this ground alone, his prayer for-review was based. Patterson exhibited a copy of Holman’s bill and decree, with a portion of the process; for it shows that separate process was issued for Woodruff. Yet no such process appears in the exhibit. The transcript exhibited with the bill contains no record entry at the fall term, 1860, and the final decree is 15th June, 1866, although the final decree refers to a decree pro confesso, entered at a former term. Patterson also exhibited with his bill the title bond of Woodruff and the several assignments, the deed from Woodruff to Edward W. Noonan, and a paper which purports to be the deed of Noonan, executed by an attorney in fact, to appellee, and so much of the record of the proceeding of the Jefferson circuit court in chancery, in the case of Holman against Harde man, Brewer and "Woodruff as showed the bill and part of the process and final decree.
In this bill, appellee prays, either that the decree may be enjoined in so far as it affected the lots, or that the sale of the lots by the commissioner under Holman’s decree, about to take place, be suspended, and that the decree be reviewed and opened to the extent that it affected the lots, etc. The court, upon appellee giving bond,' suspended the sale. The record states that defendants entered their appearance and waived notice.
The record before us contains the following as a part of the orders at that term : “ It was therefore ordered, adjudged and decreed by the court, after hearing the reading of the bill and exceptions and the argument of counsel thereon, that the prayer of said bill be granted, and that said decree be set aside and held “ for void,” and that the said Robert B. Patterson and Edward W. Noonan be and they are hereby made parties defendant to the original bill filed in this case, with leave, on the part of the said Robert B. Patterson and Edward W. Noonan, to file their respective answers to the original bill filed, on or before the third day of the next term of the court.” The record then proceeds to order that the commission to sell be recalled until further decree, on condition that Patterson enter into bond to Holman, which h„e did. This order, which begins this transcript, would be incomprehensible to us if it were not that we find at the close a general demurrer to the bill of Patterson, filed November 17, 1868, by Holman, and on the last page, we find that this demurrer was argued and submitted, and was overruled, and Holman “ refused to plead over;” and the order states, “rests upon their demurrer, and by leave of the court files their prayer for an appeal to the supreme court, from the decision and ruling of the court here, in overruling the demurrer to complainant’s bill, and by consent, the usual affidavit required is waived and said appeal granted.”
Thus we find that Holman, Woodruff and Brewer, who were made defendants, entered their appearance to Patterson’s bill, and Holman filed a general demurrer, which the court overruled, and he rested and declined to plead further, and a final decree was rendered reviewing and opening Holman’s original decree against Brewer and Hardeman, and allowing Patterson and Noonan — who were purchasers pendente lite, from Brewer' — to answer the original bill.
There can be no question as to their attitude. Story’s Equity Pleadings, sec. 156.
Patterson insists here, because the imperfect record exhibited with the bill does not show service on Woodruff and Brewer, that Noonan and Patterson are not bound, because they were not bound, and that they are not purchasers pendente lite, because these vendors were never parties. Both Noonan and Patterson bought after Holman filed his bill. Patterson avers that Woodruff and Brewer were made parties, and a decree pro confesso was entered against them. If in point of fact Brewer never had notice, Patterson should have so averred, and his right to review would have been clear. We cannot look from plaintiff’s bill to the exhibit, which on its face shows that it is imperfect, and is only exhibited to show the original bill and decree, for the purpose of contradicting his allegations, especially when, as in this case, we are asked to infer a fact, from the omissions in the exhibit. While it is true, a fact affirmatively and distinctly appearing in an exhibit would extend and supply defective allegations in a bill, we cannot extend the rule, as asked here, when the whole gravamen of the bill is based upon a different hypothesis, and the allegation is not only not made, but is inferentially contradicted by the bill.
The record exhibited here in the final decree recites facts as appearing of record, as the transactions of a former term, which are not copied into this transcript, nor is there a single entry, as appears in this transcript, from November, 1860, until the 15th of June, 1866. Even were we on demurrer disposed to look from the statements of the bill to the exhibits, to determine the correctness of the court’s action, we could not act on this transcript alone. Patterson, in his bill, nowhere alleges that Brewer and Woodruff were not served with process, and by that rule of pleading which makes intendments most strongly against him who omits an important statement. We shall take it that the omission was purposely made. If Holman’s statement in his original bill is true, that Brewer had full knowledge, and Patterson and Noonon having bought pending the suit, they are bound by its results. Story Eq. PL, 156.
If Brewer was not served in fact, and that fact had been alleged, Patterson would then have had ground to review the original decree. Patterson very properly made all the parties to the original bill defendants; his was an original bill in the nature of a bill of review. Story Eq. Pl., sec. 409. The court overruled Holman’s demurrer and rendered the above decree.
The legal effect of a title bond is like a deed executed by the vendor and a mortgage back by the vendee. The vendor in such case has a lien, which alike affects all persons who purchase, as the legal title is outstanding in the vendor. Moore v. Anders, 14 Ark., 628. The vendor of real estate has an equitable lien thereon for the purchase money, though he make the purchaser an absolute deed, reciting the receipt of the purchase money, as against the vendee or a person purchasing with notice that the purchase money is unpaid. Shall v. Biscoe, 18 Ark., 142; Scott v. Orbison, 21 id., 202.
In this case, although Holmam had nothing but the equity of redemption in this land, and occupied the attitude of a mortgagor in possession, while Woodruff occupied the attitude of mortgagee, holding the title by reservation, rather than by grant, as in case of ordinary mortgages, which is the only difference between this class of transactions and ordinary mortgages, as the owners of this equitable interest, Holman had such title as was subject to sale and transfer. His assignment of the title bond to Hardeman made the latter his vendee, and the note Hardeman gave Holman, for the purchase money, gave him a lien on the land for its payment against Hardeman or any one claiming under him who purchased with notice that the debt was unpaid.
Holman, in his original bill, avers that Brewer had notice that his debt was unpaid at the time of his purchase and at-the time of bringing suit. If this fact be true, the original decree in favor of Holman was right, if Brewer was served with process. But as Patterson does not' aver to the contrary, that part on the demurrer to his bill should have been taken as true. The facts which he set up in his bill as the ground for review, that the note to Holman was not recorded and that himself and Noonan had no notice of the suit, were not sufficient grounds to review. From the allegations of Holman’s bill, he was entitled to a decree, even if he had no note for the purchase money, and Noonan and Patterson having purchased, pending the suit, are bound by it as fully as if they had been parties. The decree was not void on its face, and the new facts alleged in Patterson's bill were not sufficient in law.
Therefore the court erred in overruling Holman’s demurrer. For this error the decree of the Jefferson circuit court is reversed, and the cause is remanded to said court with instructions to allow appellee to amend his bill, if he desires to do so, and proceed tbereon in accordance with law and not inconsistent with this opinion.
Harrison, J., did not sit in this case. | [
116,
101,
-80,
-66,
90,
104,
42,
-70,
-22,
32,
-28,
83,
-23,
94,
1,
33,
-26,
109,
117,
105,
-90,
-77,
19,
102,
83,
-77,
-39,
-59,
-68,
-55,
-75,
-42,
28,
36,
-118,
95,
70,
-120,
-59,
16,
-50,
-123,
43,
96,
-45,
65,
48,
47,
54,
73,
117,
-66,
-5,
46,
57,
74,
76,
47,
-49,
11,
-48,
-21,
-101,
-92,
-1,
23,
49,
6,
-104,
17,
74,
-38,
-112,
53,
8,
-24,
83,
-126,
6,
-44,
77,
-103,
8,
102,
102,
35,
-11,
-3,
-32,
-104,
7,
-74,
-115,
-90,
-89,
72,
2,
97,
-65,
-100,
-73,
0,
-74,
-12,
-17,
-51,
28,
104,
1,
-49,
-42,
-121,
-121,
56,
-104,
19,
-9,
23,
53,
65,
-59,
-74,
93,
100,
49,
-101,
-113,
-79
] |
English, C. J.
On the 4th of January, 1872, Louis Salesld recovered a judgment against Frank Arbuckle, before a justice of the peace of Pulaski county for $270, debt, etc.
Arbuckle appealed to the circuit court, and executed a supersedeas bond, with A. M. Callahan and Wm. McQueen as sureties, in which they bound themselves to satisfy and per-' form the judgment that might be rendered on the appeal.
When the case was called for trial in the circuit court, Ar-buckle made default, and judgment was rendered against him and his sureties in the appeal bond for the same amount recovered before the magistrate and costs.
Callahan and McQueen prayed and obtained an appeal to this court, and entered into a supersedeas bond, before the clerk, with Jones and Rymal as sureties.
No defense was made by Arbuckle or his sureties in the circuit court, no motion in arrest, or to set aside the judgment, and no question of law reserved by bill of exceptions, or otherwise.
The point, and the only point made for the appellants here, is that the judgment was rendered against them in the court below without notice.
By executing the supersedeas bond, the appellants, in legal effect, made themselves parties to the appeal of Arbuckle, their principal, from the judgment of the justice of the peace to the circuit court, and agreed to satisfy and perform the judgment of the court appealed to.
The law required no further notice to them. They had the right to appear in the court to which the appeal was taken, and prevent, if they could, the rendering of a judgment against their principal or themselves. They had the right, also, to move to set aside the judgment after it was rendered, if there was any good cause for doing so. But they failed to do or offer to do anything in the court below.
They also, in legal effect, agreed when they became the sureties of Arbuckle, in the appeal bond, that if the judgment appealed from should be affirmed, or, on a trial de novo, judgment should be rendered against their principal, it should be rendered against them also; for such was the law when the bond was executed, and the law was part of the contract, as we have shown in White v. Prigmore, ante, p. 208.
The law authorizing such judgments, on appeals from justices of the peace, has been upon our statute books for many years. Very many judgments have been entered under it, and executed, and we can see no clear and solid grounds on which its unconstitutionality could be placed. Gould’s Dig., ch. 99, sec. 197; reenacted substantially, in the act of April 29,1873. Gantt’s Dig., ch. 82, sec. 3839.
The judgment of the court below must be affirmed, with ten per cent, damages, and judgment entered against appellants and their sureties in the supersedeas bond executed' before the clerk of this court. | [
-16,
-18,
-48,
-82,
72,
96,
26,
-72,
83,
99,
35,
-45,
-87,
-61,
0,
101,
-9,
111,
117,
121,
-111,
-73,
31,
1,
-13,
-109,
-53,
-57,
-77,
78,
-30,
-43,
28,
48,
34,
85,
-30,
-56,
-59,
88,
-50,
-127,
-7,
-20,
91,
-40,
48,
59,
20,
24,
97,
-82,
-29,
46,
28,
-22,
104,
44,
-53,
60,
112,
114,
-98,
5,
111,
21,
-111,
38,
-100,
3,
116,
30,
-100,
21,
1,
-8,
115,
-122,
-58,
84,
9,
-101,
44,
114,
102,
1,
16,
-17,
-72,
-88,
47,
-34,
-123,
-93,
96,
89,
66,
32,
-74,
-99,
113,
18,
-89,
-2,
-26,
-107,
-40,
44,
7,
-49,
-106,
-93,
-115,
126,
-108,
-121,
-62,
1,
32,
81,
-50,
34,
84,
71,
113,
-97,
-122,
-13
] |
Williams, Sp. J.
In this case the counsel of Randolph concludes his argument with this statement:
“ The fact is, that the record in this case presents a series of errors and blunders from beginning to end; and it is respectfully submitted, that for the errors noticed and others apparent in the record, the judgment of the circuit court should bpreversed.”
We fully agree with the facts stated by the learned counsel,, but dissent from his conclusions. This transcript is not creditable to the counsel engaged on either side; and the clerk who prepared it has violated all rules of this court and of chronological order in making it out. In one entry he w-ill have Randolph v. Ward, Saunders & Hunt, in the next the title is reversed. In 1871, Hunt is reported dead; in 1872, we find him on the record, making motions. And those entries which should precede the record entries of the final trial, and the order granting the appeal to this court, are put last in this ill arranged transcript. We discover, however, from this confused mass, that some one on the part of Saunders, at the conclusion of the case, by nunc pro tunc orders, has corrected serious mistakes, which seems to be regular; and indulging the usual presumptions which we do in favor of the court below, we find the blunders in the record, both of the probate court and of the circuit court, corrected.
We have been invited to go beyond the action of the circuit court and review the action of the probate court. As the code of practice, Civil Code, sec. 21, and amendment of 1871 to sec. 791, tit. XYI, ch. IY, requires a trial de novo in the circuit court, we shall not look beyond its action, except to find whether there was jurisdiction over the case and a proper appeal. That we find.
The bill of exceptions, so called, as presented to us in this confused transcript, states that a certain paper, or deposition, or other documentary evidence was read; and instead of inserting the paper as a part of the bill of exceptions at the point where it belongs, once for all, in the transcript, the clerk writes: “See page — ,” leaving us to guess both the paper and the matter he refers to, and also to go back or forward of this so called bill of exceptions, for the blank page of reference. As parties appealing to this court are expected to present their cases properly, we might feel disposed, were we inclined to visit the short comings of a clerk on either party, to impose the penalty upon him who asks relief at our hands, and require that he should present a case here in proper shape for hearing; and the slovenly, unlawyer-like manner of getting up the bill of exceptions and leaving loose papers unmarked and unidentified to be copied and referred to in this way, deserves a severe reprimand, and frequently repeated would necessitate an order, disobedience to which would be a total disregard of all such unidentified papers, and conse-. quently of the bill of exceptions.
From this record, assisted by a very clear, concise and lucid statement of the finding of facts by the court below, which casts light upon and brings order out of this chaos, we, are able to state the following as the substantial facts of the case;
That on the 27th of November, 1860, Ward, Saunders & Hunt recovered judgment in the Desha circuit court against George I. Graddy, for the sum of twelve thousand, three hundred and eighty-two 80-100 dollars debt, and eight hundred and fifty-three dollars damages. On the 3d day of January, 1861, a writ of execution was issued on this judgment and was levied by the sheriff of Desha county on certain personal property, and Graddy and certain sureties gave a delivery bond, in the usual form prevalent at that date, conditioned to deliver the property at the court house door of said county on the 27th day of May, 1861, and conditioned, upon breach, that said bond should have the force and effect of a judgment. The sheriff, on the 28th day of May, 1861, returned the bond, with the execution, forfeited, and the execution unsatisfied. Graddy died on the 14th day of May, 1864. Mary B. Graddy was appointed his administratrix by the probate court of Desha county, but the date of her letters is not proven. A certified transcript of the original judgment, execution, delivery bond and return of the sheriff, authenticated as a claim against the estate, by the affidavit of Hunt, as one of the surviving partners of Ward, Saunders & Hunt, on the 11th of May, 1866. This claim is marked, filed April 1, 1870, and was indorsed on 25th of April, 1871, as examined, allowed and classed in class 3, by the probate judge. On the 30th day of September, 1871, there was an order made, reciting that the order made on 26th of April, 1871, classing the claim, had not been entered, and classed the claim in the name of Hunt, as surviving partner in said order, nunc pro tunc. It was the same judgment which had been so indorsed by the county .judge on the 25th of April, 1871, which was evidently referred to in this nunc pro tunc order. The order classed it in the 8d class, as the indorsement of the judge had done, which indorsement was a direction to the clerk to enter the proper order on'the record, and was a data by which the record entry could be afterwards corrected in favor of whoever might be the legal owner of the claim. We are not disposed to encourage any great degree of technicality in the mode of procedure in the probate court. The law intends it to be simple enough to be within the comprehension of any one of ordinary capacity. This indorsement of the claim by the probate judge was a data from which a correct entry could be taken at any time. Appellant, as administrator de bonis non of Graddy, appeared and excepted to the judgment of the court placing the claim in the 3d class, and appealed to the circuit court.
There was ho bill of exceptions setting out the evidence in the probate court, as under the former law; and the circuit court proceeded to try the case de novo, without finding error. We think this was right, and such has been the practice in the circuit court, we are informed, ever since the passage of the amended section 791 of Civil Code in 1871, although there was some diversity before, owing to the obscurity of sec. 21, Civil Code, as to the practice on appeals.
The provisions of section 21, Civil Code, as amended in 1871, above referred to, changes' the former practice on appeals from the probate court from that which prevailed under the provisions of Gould’s Dig., ch. 4, secs. 197 to 203.
On appeal in the circuit court, Randolph, for the first time gives specific objections to the allowance of the claim. Among other grounds are these: ■
That no copy of the claim was rendered Mrs. Graddy when it was exhibited. This was matter in abatement, and was interposed too late, and not in proper manner before the circuit court; and where the administratrix waived notice, it was tantamount to a rejection of the claim, and a reference of the whole matter to the probate court, and where no copy is demanded, or the non-action or refusal to act is not placed expressly on that ground, at a time when it can be remedied, this court has never encouraged this objection. Borden v. Fowler, 14 Ark., 473 ; Bellows v. Cheek, 20 id., 424.
That no notice was given to Mrs. Graddy, or to Randolph, the administrator de bonis non, of the application to the probate court to class. The proof shows very clearly that the claim was presented to Mrs. Graddy, while she was administratrix, and within one year after the date of her letters, and was indorsed, notice waived, which referred to this notice, which may be waived, and was tantamount to a rejection of the claim, and a reference of it to the probate court. And the claim having been properly authenticated and exhibited, it was, under sec. 112 of ch. 4 of Gould’s Dig., as much her duty to keep a list, allow, class and return a list of the claims exhibited to her, to the probate court, as it was the duty of the claimant, under sec. 113. Clark v. Shelton, 16 Ark., 474.
That more than two years had elapsed from the alleged presentation of said claim to Mrs. Graddy, before the claim was presented to the probate court. The exhibition of the claim properly authenticated, arrests the statute of nonclaim. The law does not limit the time of presentation to the probate court for classification. As both parties have the right to invoke the judgment of the court; one, under section 112; the other, under sec. 113 of ch. 4, Gould’s Dig., there can be no, hardship. At any rate, this court has decided the question in McCoy v. Jackson Co., 21 Ark., 474, to the extent of holding that when a claim is properly exhibited to the administrator, the claimant does not lose his right by failing to present it to the probate court.
All the objections interposed by Randolph are either proven to be untrue, or are frivolous, and not sustained by the law; unless it be the objection No. 4; that the claim was based upon a forfeited delivery bond, returned forfeited on the 28th of May, 1861; as to which we will speak presently.
After the claim was in the circuit court, the death of Hunt was suggested, in 1871, and a diminution of the record was suggested, and a certiorari ordered to the probate court; and there was, in that court, another order nunc pro tunc, correcting the one made on the 80th of September, 1871, which new order made the allowance in favor of Saunders, as surviving partner, in favor of Hunt. To this appellant excepted, and here objects, that the amended record of the probate court was not brought up to the circuit court, on return to the writ of certiorati. It is true, that no formal writ of certiorari is copied in the transcript. Rut the record states that the clerk of the probate court made the following return to the writ of certiorari. Then follows the amended probate court record. If we •had visited rigid technical rules on appellant, we could have •cut this investigation very short, but finding so many clerical shortcomings on either side, we have patiently examined, and ■given each of the parties the benefit of reasonable intendments, and we find nothing in this objection.
The only remaining point in the case strikes at the very foundation of the classification. The appellant insists- that as the delivery bond could not have been forfeited until the 27th of May, 1861, at which period there was no sheriff and no court authorized to receive or sell the property or administer the law, and that the declarations of law by the court that tried the case de novo as a jury, given and refused, hold ing that this delivery bond became a statutory judgment on its forfeiture, which was or could have been a lien on real estate, and should therefore be classed in class three, was erroneous, and cites Penn v. Tollison, 26 Ark., 545; and Thompson v. Mankin, id., 586. If it becomes nec.essary to choose between these rulings of this court and those of the supreme court of the United States, which are directly in their teeth, we should feel inclined to follow those of the government whose sovereignty was defied by secession, and which might be regarded as the best exponents of the law. See Horn v. Lockhart, 17 Wall., 577.
But if we find the judgment right on the whole record, this error, if it be one, will not vitiate it. The original judgment was rendered in 1860, November 27, a complete transcript of which forms a part of the probated claim. The war commenced in less than six months afterward, and was continuing when Graddy died. This suspended the statute of limitation. Metropolitan Bank v. Gordon, 28 Ark., 115; Denckla v. Lyon's Heirs, id., 507; The Protector, 12 Wall., 700; Brown v. Hyatt, 15 id., 177 ; Adgar v. Alston, id., 555.
This suspension .applied as well to the three years limitation on judgment liens as any other, so expressly held in the following case. Bateville Institute v. Kaufman, 18 Wall., 151.
In this last case our own judgment lien statute was held to be prolonged by the war. Were the question before us a new one, we should hesitate to decide that the war extended a right which was given only for a fixed period, and would be inclined to distinguish this from the case involving the statute of limitations. For the statute which makes judgments a lien, gives the right only for three years, while in case of statute of limitations a remedy is taken away upon a contingency, lapse of time. But as such decisions affect title, and as the right to the property involved in that case has been decided by this rule, we think it better to have uniformity between the state and national tribunals on the same question; and while we claim the right, which is conceded, of construing our own laws, yet our convictions would have to be more positive, before we could change the ruling. Besides, this court, in Graddy v. Eddins, 28 Ark., 500, decided that the lien of the judgment was continued for three years exclusive of the period of the war.
The appellant objects to the judgment of the probate court, because, even if Mrs. Graddy did waive notice of the application and refer the whole matter to the probate court, which was the legal effect of the indorsement, yet as the matter was presented during his administration, he should have had notice. Suppose we should admit this. Yet in September, 1871, when the order classifying the claim was really entered, he was present, excepted and appealed.
In the circuit court, the judgment of the probate court was practically set aside, and appellant had a fair trial de novo on the merits ; and the court correctly came- to the same conclusion the probate court did, and rendered the same judgment.
We cannot see where he is prejudiced on the merits of his case. He has certainly had a full hearing upon the merits of his defense, and there is nothing in it.
Finding no error in the record, the judgment of the circuit court of Desha county in this case is affirmed.
Hon. E. H. English did not sit in this case. | [
-80,
126,
-36,
31,
-86,
34,
2,
26,
-47,
-95,
-25,
115,
-83,
-61,
20,
101,
-13,
41,
81,
43,
68,
-73,
22,
-31,
-78,
-77,
-29,
-107,
53,
-51,
-2,
-38,
76,
40,
-54,
-43,
103,
74,
-51,
82,
-50,
27,
-71,
109,
-39,
64,
52,
119,
126,
79,
49,
-2,
-93,
46,
28,
-61,
40,
47,
73,
73,
80,
-79,
-98,
13,
95,
2,
-79,
-57,
-102,
7,
76,
42,
-112,
49,
0,
-8,
115,
-76,
6,
84,
45,
-103,
8,
102,
102,
9,
109,
-81,
-72,
-120,
38,
62,
-100,
-89,
-110,
45,
43,
73,
-106,
-99,
28,
80,
39,
118,
-20,
-43,
25,
100,
75,
-113,
-108,
-95,
-33,
118,
-116,
3,
-5,
3,
48,
113,
-35,
-30,
92,
103,
17,
-101,
-114,
-118
] |
English, C. J.
The transcript in this case is indorsed, filed December 15, 1869. It seems to have slept until December term 1873, when it was submitted without briefs. On looking into the transcript, we find that in March, 1869, Christopher Cox and Joseph Runnels were jointly indicted, in the 'Washington circuit court, for murdering Samuel Drake. They were charged with murder in the first degree. It does not appear that Runnels was ever arrested. At the term of the circuit court at which the indictment was found, Cox seems to have been admitted to bail, by the circuit judge (Hon. E. D. Ham) in the sum of $5,000. At the September term, 1869, he was tried on the plea of not guilty, and acquitted by the jury.
It appears from a bill of exceptions taken by the presecuting attorney, that the court excluded all the evidence that seems to have been offered on behaif, of the state on the trial and, of course, the defendant was found not guilty. How the case got into this court does not appear. There is no record entry in tbe transcript before us. showing that an appeal was prayed by the state, in the circuit court, nor does the file mark of the clerk of this court show who filed the transcript in his office. It appears simply to have been filed, and the cause docketed and submitted.
The statute provides that “ Where an appeal in behalf of the state is desired, the prosecuting attorney shall pray the appeal during the term at which the decision is rendered, whereupon the clerk shall immediately make a transcript of the record, and transmit the same to the attorney general, or deliver the transcript to the prosecuting attorney, to be transmitted to him.
“ If the attorney, on inspecting the record, is satisfied that error has been committed to the prejudice of the state, and upon which it is important, to the court and uniform administration of the criminal law, that the supreme court should decide, he may, by lodging the transcript in the clerk’s office of the supreme court within sixty days after the decision, take the appeal.” Gantt’s Dig., sec. 2127, 2128.
In this case, it does not appear that these provisions of the statute have been complied with, and the case must be stricken from the docket, there being no appeal. | [
-16,
112,
-4,
-81,
58,
-32,
-22,
-66,
-56,
-29,
-31,
115,
-83,
-57,
0,
49,
-13,
13,
84,
105,
-60,
-106,
-105,
97,
-78,
-13,
115,
-57,
-75,
-52,
-4,
-103,
28,
48,
66,
81,
70,
74,
-63,
88,
-114,
-87,
-15,
-32,
51,
80,
48,
25,
127,
3,
101,
-2,
-93,
106,
94,
99,
73,
40,
74,
-83,
-16,
-47,
-126,
15,
-35,
54,
-78,
39,
-97,
-121,
-102,
60,
-72,
49,
0,
-20,
115,
-124,
-122,
84,
109,
-117,
-84,
102,
34,
13,
-55,
45,
40,
-119,
44,
-2,
-100,
-121,
-79,
97,
75,
9,
-102,
-35,
122,
-48,
39,
116,
-17,
-51,
89,
108,
-125,
-33,
-104,
-117,
95,
44,
-106,
18,
-45,
52,
112,
112,
-43,
98,
92,
97,
32,
-65,
22,
-78
] |
Harrison, J.
Alexander H. Cline, on the 15th day of October, 1860, executed to Wm. D. Shaw a mortgage on a lot of ground in the city of Eort Smith, to secure the payment of a writing obligatory, of that date, for $1,800, payable in two years thereafter; and the same was duly acknowledged and recorded.
Shaw died intestate, in the county of Lamar, in the state of Texas, in 1863, which, so far as anything appears to the contrary, was his domicile; and the administration on his estate was granted by the county court of said county to Thomas Lanigan, on the 29th day of January, 1864.
On the 22d day of June, 1864, Cline paid said Lanigan, at Paris, in said state, $1,518.04, amount of principal and interest in confederate money, which was then greatly depreciated and below par, in satisfaction and discharge of the debt, and took from him a receipt for the same, and, also, an order on W. H. Mayen, at Eort Smith, in whose possession it was, for the writing obligatory.
Cline, on the 1st day of February, 1866, conveyed the lot to Nicholas B. Pearce, and he, on the 16th day of August, 1867, conveyed the same to Jeannie C. Cline, the wife of said Alexander H.; and the said Jeannie C. and the said Alexander H., on the 9th day of October, 1868, executed to William P. Merryman, a mortgage on the lot, to secure the payment of a loan of $2,000 to the latter.
On the 18th day of December, 1867, the appellant, John E. A. Hendry, obtained from the probate court of Sebastian county, letters of administration on Shaw’s estate, in this state, who, denying the validity of the payment to Lanigan, and the consequent satisfaction of the mortgage to Shaw, brought this suit for a foreclosure of the same, to which the said Alexander H. Cline, Jeannie C. Cline, Nicholas B. Pearce, William P. Merryman and James H. Hamilton, who was in the occupancy of the premises, were made defendants.
He charged in his complaint that Cline, when he paid Lanigan the confederate money, to induce him to accept the same, fraudulently represented the debt as unsecured, and concealed from him the existence of the mortgage, and that Lanigan, under the impression and belief, caused by such misrepresentation and concealment, that the debt was desperate, consented to receive payment in such money. The writing obligatory, or mortgage, was never in the possession, or subject to the control of the plaintiff.
Merryman alone answered the complaint. He denied the alleged misrepresentation by Cline, and that Lanigan received the confederate money in ignorance of the existence of the mortgage; but, on the contrary, averred that he willingly received the same, and applied the whole of it in payments of the debts of the estate, dollar for dollar.
There was, upon the hearing, no evidence whatever of any misrepresentation or fraudulent concealment by Oline, though Uanigan, who was a witness for the plaintiff, testified that he did not inform him that there was a mortgage, and that he did not know there was one until after the war; but the proof showed that he used the confederate money in the payment of the debts of the estate, at par, and that no loss resulted from the receiving of it.
The complaint was dismissed for the want of equity. There was no denial in the complaint of the validity of the administration in Texas, or of Lanigan’s authority to collect the debt; but it is insisted here, by the appellant’s counsel, that Texas, during the civil war, and when the alleged administration was had, had no government which could be recognized as legitimate, and there was no court that could confer on him the right to administer the estate, and we are referred, .in support of this position, to the case of Penn et al. v. Tollison, 26 Ark., 545. If the decision in that case, overruling the former decision of this court, in Hawkins v. Filkins, in which the question was, as to the validity of judicial proceedings during the war, in this state, is to be taken as a correct exposition of the law in respect to such proceedings, in regard to which there is no occasion for us to express our opinion, it cannot be so extended as to have an application in a case like the present, when the proceedings of a court of a sister state, had during that time, are the subject of consideration; for the constitution of the United States requires full faith and credit to be given in each state to the public acts, records and judicial proceedings of every other state; and it has been settled by' the supreme court of the United States, that the acts of the several insurrectionary states, and of their different departments of government, during the war, when they did not militate against the national authority, were valid and binding. Texas v. White, 7 Wall., 700; City of Richmond v. Smith, 15 id., 429 ; Horn v. Lockhart, 17 id., 570. In the case last cited, that court said: “ We admit that the acts of the several states, in their individual capacities, and of their different departments of government, executive,.judicial and legislative, during the war, so far as they did not impair, or tend to impair, the supremacy of the national authority, or the just rights of ■citizens under the consitution, are, in general, to be treated as valid and binding. The existence of a state of insurrection and war did not loosen the bonds of society, oí do away with civil government, or the regular administration of the laws. Order was to be preserved, public regulations maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates settled, and the transfer and descents of property regulated precisely as in time of peace. No one, that we are aware of, seriously questions the validity of judicial or legislative acts in the insurrectionary states, touching these and kindred subjects, when they were not hostile in their purpose or mode of enforcement to the authority of the national government, and did not impair the rights of citizens under the constitution.”
As the confederate money, though greatly depreciated, was used by Lanigan in the payment of the debts of the estate, no loss or injury resulted from its receipt, and neither the plaintiff nor the creditors, or distributees, have any cause on that account to complain, and the payment of it satisfied and extinguished the debt.
The decree is affirmed. | [
-16,
65,
-71,
108,
106,
-64,
8,
26,
74,
18,
-27,
87,
73,
-106,
65,
127,
-19,
121,
108,
105,
-11,
-78,
102,
37,
-37,
-13,
-19,
-43,
-80,
77,
-90,
-33,
9,
104,
-54,
-33,
66,
42,
-121,
-36,
-114,
37,
-7,
-31,
-35,
16,
52,
111,
20,
78,
1,
62,
-13,
43,
29,
106,
108,
44,
-51,
-71,
80,
121,
-78,
-124,
-33,
7,
16,
69,
-110,
3,
-54,
10,
-48,
53,
64,
-8,
115,
-74,
-106,
-10,
68,
13,
12,
52,
102,
48,
-27,
-19,
112,
-36,
47,
-67,
-123,
-89,
-27,
73,
50,
12,
-66,
-99,
60,
16,
23,
86,
-84,
-60,
12,
104,
14,
-50,
-42,
-109,
45,
-80,
-98,
3,
-6,
47,
36,
81,
-49,
-70,
125,
103,
125,
-101,
7,
-7
] |
Walker, J.
Wilson loaned to Van Horn $3,000, the money of his ward, Wallace, and took Van Horn’s note for the payment, with Gregg, Tebbetts and nine others as sureties. The note was dated December 5, 1857, due one year after. Soon after the note had been executed, at the instance of the sureties and to indemnify them from loss by reason of their suretyship, Van Horn conveyed 'by deed of trust real estate ample in 'value to pay the débt, to a trustee, with power to sell the property after twenty days’ notice for cash, and to pay the debt, should Van Horn fail to pay the same when due. A short ■time after the note became due, and without sale under the deed of trust, Gregg, one of the sureties, gave Wilson notice to sue within thirty days. Wilson failed to bring suit as required by statute. No steps were taken by the sureties to have the property sold under the deed of trust for some eight years. In the meantime, the buildings on the lots, which constituted the chief value of the property, were destroyed by fire. The property, when sold, brought $300, which sum was . credited on the note.
Wilson brought suit against Tebbetts, who pleaded the discharge of Gregg in bar. The case was submitted to the court sitting as a jury upon the above agreed state of facts.
The plaintiff asked the court to declare the law applicable to the state of case to be:
1. That a notice to sue given by one of the joint sureties to the note sued on, and the discharge of such surety by reason of a failure to comply with such notice, does not discharge the other sureties to the note.
2. That where sureties to a note or bond procure a mortgage or deed of trust to be executed by the principal upon property ample in value to pay the debt, indemnifying such sureties against loss by reason of such suretyship they cannot, while such deed of trust remains in force, discharge themselves from their obligation as sureties by giving notice to the creditor to sue.
The court refused to declare such to be the law, and rendered judgment for the defendant, from which plaintiff appealed.
Prior to the statute, Gould’s Dig., ch. 157, mere delay or neglect on the part of the creditor to sue would not discharge the surety from liability to pay, even though by such delay the principal debtor should become insolvent. The appropriate remedy of the surety was in equity, where he might, by paying the debt, or under strong equitable grounds, become so far subrogated to the rights of the creditor as to take his recourse against the principal for his own protection.
The statute, ch. 157, sec. 1, provides that “any person bound as security for another in any bond, bill or note for the payment of money, or the delivery of property, may at any time after such action has accrued thereon, by notice in writing, require the person having such right of action forthwith to commence suit against the principal debtor and the other party liable. Sec. 2. If such suit is not commenced within thirty days after service of notice, etc., such surety shall be exonerated from liability to the person notified.”
The suit in this instance is at law, but whether at law or in equity, the rights of the sureties are equitable and are to be determined on equitable principles. Hempstead v. Watkins, 6 Ark., 317.
In all that regards the creditor, both the principal and the surety are primarily and equitably bound to fulfill the contract. But as between themselves, the whole duty of performance rests, in contemplation of equity, on the principal.
The office of the statute is to impose a duty on the creditor to come to the relief of the surety in case of apprehended danger of liability, by reason of the inability of the principal creditor to pay. It confers a privilege upon the surety to be thus released from his suretyship, and as a consequence of neglect of the creditor to sue, the loss of his remedy against such surety. We have repeatedly held that the surety who gives such notice is discharged from the payment of the debt, unless suit is brought within the time prescribed by the statute.
The question now to be considered is, Does the discharge of one of the sureties who gives the required notice, also discharge those who have not given notice ?
The counsel for Tebbetts contend that such is the effect of the discharge of one surety who has given notice, upon the liabilities of the co-sureties who failed to do so, and to sustain them in this position, have cited several adjudicated cases. That most strongly in point, and which would seem most fully to sustain them, is the case of Wright, Adm’r, v. Stockton, 5 Leigh, 153.
Under a statute of Virginia, substantially like our own, three out of four sureties gave notice to the creditor to sue ; suit was brought upon the bond and the three were discharged Suit was then brought against the estate of Wright, the surety who had not given notice.
When considering the case thus presented, Carr, J., said: “ In this case the creditor was required to sue by three of the sureties, and delayed to do so for an unreasonable time, in consequence of which dela}' the three sureties who joined in the requisition have been discharged by a judgment from all liability. It is contended that this does not discharge the defendant, because his intestate did not join in the requisition to sue. If we take the statute literally, it would seem to require that when there were more sureties than one, all shall join in the requisition, for the words are: ‘ Where any person or persons are the surety or sureties in a bond, etc., it shall be lawful for such surety or sureties to give notice, etc.’ Yet this construction would in a great measure defeat the remedy, as it would put it out of the power of one, where there are many sureties, to prevent the notice by refusing to join.
“ If we look at the reason and object of the law, it would seem that a notice to sue by a part of the sureties would be as effectual as one given by them all * * * Again, we know that there is a principle of the common law attaching to all joint obligations, by which a discharge of one obligor is a discharge of all.”
It is upon this construction of the statute and upon the, announcement of a common law principle with regard to joint obligations, which can have no application in this case, because we have a statute which makes all contracts joint and several, that the court in that ease held a notice by one surety who gave notice, to be a discharge of all.
With due respect for the conclusions which the court seemed to have reached, we think that neither the intent of the legislature nor the language of the statute sustains the court in its decision. Certainly it would not be a fair construction of a statute such as ours, which says; “ Any person bound as security, etc., may by notice require suit to be commenced,, etc., and that if suit is not brought, such security shall be exonerated.”
Thus we see the right is given to “ any surety to give notice to sue,” and if suit is not brought, it discharges the surety who gives it. By the first section the right to give such notice is given to any person bound as surety, and it clearly gives the right to give notice to one or more who may feel themselves insecure by reason of the failing circumstances of the principal debtor, whilst the right to be discharged is clearly limited to such surety as has given the notice. Thus considering this decision and the course of reasoning upon which it was reached, we can give it no controling influence in the consideratión of the case before us.
The People v. Buster, 11 Cal., 215, has also been cited by counsel for defendant as sustaining their position; and although the question in that case arose upon the effect of notice by one upon the liabilities of others who failed to give notice, the grounds upon which the court held that the discharge of one surety upon notice was also a discharge for his cosureties were, that the obligation was joint, not joint and several.
In the case of Letcher, Adm'r, v. Yantis, 3 Dana, 160, one surety sued another surety for the recovery of one-half of the sum which he as surety had been compelled to pay to the creditor. The intestate of defendant had given notice to sue-under the provisions of a statute much like our own. The surety who gave the notice was held to be discharged from contributing to the payment of money which the cosurety,' who gave no notice, had paid. This case but accords with our former decisions as to the discharge of the party giving the notice, and so far from being an authority in support of the defense, is fully in 'support of our construction of the statute in this case. Chief Justice Eobinson said: “If Letcher was exonerated from all liability to the obligee, we cannot perceive any reason for presuming that he was responsible to Yantis, who elected tó remain bound for the debt; ” and so we may with like ^propriety say, if Gregg is exonerated by reason of his notice to Wilson to sue, no good reason is perceived why Tebbetts, who had an equal right to give the notice that Gregg had, but failed to do so — elected to remain bound (for that is the legal effect of his act), should also be discharged.
We have examined with some care the other authorities referred to by. counsel, and find that they have no such application to the question at issue as to require particular notice.
Giving to the numerous authorities cited their full force, and that they clearly show that a change in the terms of the contract without the consent of the obligors is a discharge to all of them, still it is equally clear that this change or alteration must be effected by the act of the obligee or creditor, and not by mere operation of law; as for instance, where one of several obligors is discharged in bankruptcy, or where under the statute the creditor is, after notice, required to present his claim for allowance against an estate within a] given time and fails to do so ; in these and all like cases the discharge is said to be by operation of law.
Thus in the case of McBroom et al. v. The Governor et al., 6 Porter, 32, the facts were that McBroom executed a bond with security, to the state of Alabama, for the discharge of his official duties. McBroom died; administration was had upon his estate, and notice given to all persons who held claims against said estate to present them within a given time or they would be barred. The obligee failed to present the claim within the time prescribed by the statute. Suit was brought against the securities, and their defense was, that as the obligee had neglected to present the claim within the time prescribed by the statute, the right of action was barred by the statute of non-claim as to the principal, and because the creditor had by his neglect discharged the estate of the principal from liability, they, as sureties, were also discharged.
Q-olthwait, J., upon this state of case, said^: “ The general rule without doubt is, that the extinction of the liability of the principal debtor is also an extinction of the liability of the surety. But an exception obtains when the extinction is caused by operation of law. * * * In the case under consideration, no act is alleged to have been done by the creditor which has affected the subject matter of the contract, or which has changed the situation of the parties ; he is charged alone with having been passive, and with an omission by reason of which it is said this right is extinguished as to all the obligors. * * * If, in consequence of .the delay of the creditor to pursue his-remedy against the estate of the principal debtor, a loss has accrued, it is not perceived how this circumstance, of itself, should destroy the obligation of the surety any more than in any other case where loss is the consequence of delay of the creditor.”
In Routon's Adm'r v. Lacy, 17 Mo., 399, the facts were that Todd as principal, and Hall and Lacy as sureties, executed their note to Routon. Hall, one of the sureties, died, and the administrator of his estate served notice on Routon, the creditor, requiring him to bring suit under a statute similar in its provisions to our own. Routon failed to sue, and died. Todd, the principal, also died, and his estate proved to be insolvent. Lacy, the surviving surety, who failed to give notice to sue, was sued upon the note and pleaded the discharge of his co-surety Hall, as a discharge of himself also.
In regard to which,- Scott, J., who delivered the opinion of the court, said : “ The only question in the case which is attended with any difficulty is, whether one surety can avail himself of a notice given by his co-surety, or whether if the creditor, after a notice from one surety, neglects to sue as required by law, be will lose his recourse against all of the sureties where there are more than one. There may be eases where such a construction of the statute would be manifestly unjust. If the co-surety should be consulted, and not wishing to be sued, should refuse to join in the notice, he would scarcely be entitled to any benefit from it. On .the other hand, to maintain that the failure of the principal to sue when required could not be taken advantage of so as prevent his becoming liable for the entire debt, in cases where he had no notice, would operate to increase his responsibility and vary his undertaking without his knowledge or consent. * * * The surety must look after his principal. He knows that he is bound. He had a right to give the notice to sue; from his neglect to do so, the creditor may presume that he is content to remain bound. If the liability is not increased; if his contract is not affected to his prejudice by any act of the creditor, he has no cause to complain of the failure-to bring suit. "While the law will not permit the creditor to injure a surety by his conduct or neglect, yet his obligation will not be sore laxed as to make it more a snare than the guaranty for the payment of a debt.”
As this question is for the first time brought before us for consideration, we have indulged in making unusually full extracts from the several decisions which havd been cited by the counsel on both sides, as well as others to which we have had access, and the result has led to the conclusion that, under a fair and just construction of our statute, any one or more of the sureties bound in a bond, bill or note with their principal, may at any time after the debt becomes due, either jointly or severally, give to the obligee or creditor notice, as prescribed in the 1st sec. of ch. 157, Gould’s Dig.; and that the discharge provided for in the 2d sec. of that chapter is only a release to the party or parties who give such notice, and that the court erred in refusing to give the first instruction asked by plaintiff.
The question presented in the second instruction or ruling of the court, asked by plaintiff and refused by the court, distinctly presents the question as to whether the surety who takes from his principal debtor money or property, whether by pledge, mortgage, or by deed of trust, sufficient in value to indemnify him against loss by reason of his suretyship, and whilst the property or estate so remains in his hands, can resort to the statute notice to compel the creditor to proceed against the principal debtor.
In order to a proper understanding of the’question, it must be kept in mind that the right to redress, as between the principal and surety, is strictly equitable, and is to be determined upon principles of equity, whether proceeded upon in a court of law or equity. The liability of a surety, although direct as between himself and creditor, is contingent as between himself and his principal; he is allowed to interpose and - hasten the collection of the debt only upon the ground that delay is hazardous to his rights. Although bound for its payment, it is not properly his debt, and where the principal debtor places money or conveys property of ample value to satisfy and pay the debt, there remains no equitable ground upon which a claim to hasten the collection rests.
From the time the property or money passes into the hands of the sureties, the relations between the sureties and debtor change, in so far that they stand in the attitude of principal debtors. We think that the following adjudicated cases fully sustain us in this conclusion.
In the case of Chillon & Price v. Robbins, Paynter, etc., 4 Ala., 223, the creditor gave to his principal debtor time for payment, but without the knowledge or consent of the sureties. The sureties had obtained a deed of trust on the property of their principal to secure them from loss by reason of their suretyship. Ormand, J., who delivered the opinion of the court, said: “ The taking by the sureties of a deed of trust from the principal debtor to secure them against liability, and ample for that purpose is, in effect, an appropriation of the effects of the principal to the payment of his debt, and they will not therefore be permitted to urge that they are not. responsible.” The case of Moore v. Paine, 12 Wend., 123, is even stronger. There the principal debtor was discharged with the consent of the creditor. But the sureties, being fully indemnified by the debtor, were held to be liable to the creditor. Nelson, J., said: “It is true that a release of one of two or more obligors to a bond operates as a discharge to all; but the rule is provisional, and a discharge under the insolvent law has necessarily no such effect. .* * * The generally acknowledged and familiar principle is,, that when the creditor deals with his debtor so as to alter the rights of the sureties, or in any way impair their legal remedies against the principal, the sureties are discharged. * * * But it is obvious that this principle has no application to this case. The sureties received from the debtor the whole amount to become due on the bond in question, and after that as between him and them, they were the principals and owed the debt. The discharge of Eine, the principal, could in no possible way interfere with their rights or liabilities, so long as they held in their hands a complete indemnity against the bond, and he is not accountable to them if they are obliged to pay.”
In the case before us, Van Horn’s sureties had taken a deed of trust on property amply sufficient to pay the debt with the power to sell in twenty days. Such was the state of case when Gregg gave notice to Wilson to sue in thirty days. The statute was not intended to be used to oppress the debtor; it was intended as a means of hastening the creditor in case the surety should be liable to loss by the insolvency of his principal. It appears from the evidence that this property remained for about eight years in the hands of the sureties, and near four years before it was rendered comparatively valueless by fire.
As a matter of public history we know that, for a part of that time, no sale could be effected on account of civil war.
If these sureties have equitable rights, they must arise out of their relations with Van Horn, and how far, if at all, after Van Horn had conveyed to them property of sufficient value to pay the debt, which they had permitted, to remain unsold for several years, and until after the most valuable part of it had been destroyed by fire, is a question not free from doubt. Be this as it may, there was certainly no such contingent liability on the part of the sureties to loss after the deed of trust had been executed, or at the time Gregg gave notice to sue, as to entitle them to a discharge from such liability under the provisions of the statute, and it is error in the court below to refuse to declare the law as asked in the 2d proposition of plaintiff. Erom the conclusions at which we have arrived, none of the sureties were discharged, nor could they, by notice to sue, properly ask for a discharge whilst they held the property of Van Horn sufficient in value to pay the debt, in their hands.
We have not overlooked the fact that Gregg’s name appears to have been omitted in the deed of trust, whether by accident in copying or otherwise, we have no means of ascertaining, according to the agreed state of facts upon which the case was submitted to the court below. It is stated that Van Horn made the deed of trust at the instance of his securities on the note of Wilson, for the indemnity of such sureties from loss, and the deed requires that the money for which the trust property should sell be paid in satisfaction of the debt, so that whether his name is omitted or not, the legal effect of the deed is as much a protection to him as to the other sureties, and as it is admitted that the property conveyed was of ample value to pay the whole debt, it must of necessity be an indemnity to all of them. If we had held Gregg to be discharged, it would have been proper for us to determine whether the securities who failed to give notice to sue, and were consequently not discharged, should be held responsible for the whole debt, or only for so much of it as they would have been bound to pay had none of the sureties been discharged ; but holding, as we do, that none of the sureties in this case were discharged, we will leave this question to be settled when it properly arises.
Let the judgment of the court below be reversed and the cause remanded. | [
-10,
104,
-112,
-20,
-38,
-16,
58,
-70,
-61,
32,
-65,
83,
-7,
-62,
1,
45,
102,
45,
85,
104,
-26,
-73,
15,
64,
-13,
-109,
-43,
-59,
-75,
-49,
-28,
87,
77,
36,
-56,
-99,
-58,
-54,
-63,
24,
78,
1,
43,
-28,
-39,
80,
48,
-37,
16,
65,
97,
126,
-69,
45,
56,
110,
76,
40,
91,
-87,
-48,
-68,
-103,
-123,
123,
7,
-109,
119,
-100,
7,
74,
14,
-110,
53,
1,
-72,
82,
-74,
6,
-44,
105,
-119,
40,
-90,
102,
32,
68,
127,
-112,
-120,
38,
-42,
15,
-121,
-13,
104,
66,
40,
-67,
-99,
119,
16,
-27,
-10,
-18,
29,
28,
104,
1,
-49,
-106,
-89,
-81,
-70,
-98,
-127,
-13,
57,
36,
113,
-50,
-96,
93,
117,
121,
-101,
-114,
-7
] |
English, C. J.
This was a bill to enjoin the collection of a district school tax.
The bill was' filed by Joseph T. Murphy for himself and other tax payers of school district No. 20, against Jackson P. Harbison, tax collector of Ashley county.
The bill alleges, in substance, that on the 14th of August, 1870, J. F. Harville, trustee of said school district, filed in the office of the clerk of the county court of Ashley county, what purported to be an estimate of the necessary expenses of main taining a public school in said district for three months, during the year 187 -; a certified copy of which report is made an exhibit to the bill.
That said report showed on its face that it was an estimate of expenses incurred in 1869, making the sum of $459.80; that there was added to this the sum of $459.80, as an estimate for the year 1870, both amounting to $919.60; that at a special term of the county court of said county on the 9 th of September, 1870, the court ordered a tax of five per cent, to be levied on the taxable property of said school district No. 20, to raise said sum of $919.60; that plaintiff was an inhabitant of the district and the owner of taxable property, real and personal, in the district, of the assessed value of $2,015.00; that his school tax, levied at the rate of five per cent, would amount to $100.75 ; that the said tax was illegal, unjust and oppressive; that the defendant Harbison was the tax collector for Ashley county, and was about to collect said tax of five per cent, so levied upon the taxable property of said school district, and would proceed to enforce the collection thereof if not restrained; that plaintiff was otherwise remediless in the premises, and that unless defendant was restrained from collecting said tax, great and irreparable injury would be done to plaintiff and other tax payers of said school district. Prayer for a temporary restraining order, etc., and that on final hearing, it be made perpetual.
A transcript from the record of the county court of Ashley county was made an exhibit to the bill, from which it appears that on the 20th of August, 1870, J. E. Harville, trustee of school district No. 20, addressed a written report to the court, in which he estimated the necessary expenses of maintaining the public schools of said district for three months during the year ending September 30, 1869, at $459.80, and a like amount for the year ending September 30, 1870, and asking the court to levy a tax upon the taxable property of the district sufficient to raise that amount.
The transcript also shows that at a special term of the county court, held September 9,1870, the following order was made.
“ School District No. 20 : Ordered by the court, that five per cent, be, and is hereby, levied upon the taxable property of school district number twenty, for school purposes.”
The bill was filed on January 23, 1871, and a temporary restraining order made by the.probate judge.
At the April term, 1871, of the circuit court, the defendant filed a demurrer to the bill, which was sustained at the October term following, and the bill dismissed for want of equity, and the plaintiff appealed.'
I. The common school act of July 23, 1868 (Acts of 1868, p. 163), which was in force when the tax in question was levied, makes, in substance, the following provisions:
That each county shall be divided into school districts, for the purpose of establishing and maintaining schools, etc. Sec. 13.
That each school district shall be a body corporate, by the name and style of School District No. —, etc., and as such may contract, etc., sue, etc., and hold title to lands and other property, etc. Secs. 14, 15.
That the electors of each organized school district shall annually, on the third Saturday of December, hold a public meeting, to be designated the annual school meeting. Sec. 18.
That the electors of any school district, when lawfully assembled in a district school meeting, with not less than five electors present, shall have power, by a majority of the votes cast at such meeting, etc.
Fourth. To elect a trustee, etc.
Seventh. To determine what amount of' money shall be raised by tax on tbe taxable property of the district, sufficient, •with the public school revenues apportioned to the district, to ■defray the expenses of a school for three months, or for any .greater time they may determine to have a school taught during the year. Sec. 20.
That all taxes voted for school purposes, by any school ■district, shall be levied by the county court at the same time ■county taxes are levied, and collected in the same manner, at the same time, and by the same person, as county taxes are ■collected, etc. Sec. 21.
That the trustee (of each district) shall submit to the district, at the annual meeting, an estimate of the expenses of the district for that year, including the expenses of a school for the term of three months, etc. Sec. 31.
■ That in case the district, at the annual meeting, fail to provide for a school to be taught at least three months during that year, and to provide for fuel, etc., etc., the trustee shall immediately forward to the county clerk an est mate of the necessary expenses for a school of three months, etc., etc.; and a tax for the amount of such estimate shall be levied in the district by the county court, at the same time that county taxes are levied, etc. Sec. 32.
Erom these provisions of the act, it will be seen that the ■county court had power to levy taxes voted for school purposes by the electors of any school district. Sec. 21.
Or in case the electors, at their annual meeting, fail to provide for a school, etc., then, on the report of the trustee, the county court had power to levy the requisite amount on the property of the district, etc. Sec. 32.
In the transcript of the record of the county court, made an •exhibit to the bill, the facts necessary to give the county ■court jurisdiction to levy the tax in question are not shown.
If the electors failed to make provisions for a school, the trustee should have reported that fact with his estimate of the requisite amount, and the county court could have made the levy. County Court of Union County v. Robinson, Trustee, 27 Ark., 116.
On'the face of the record before USj the county court had no jurisdiction to levy the five per cent, tax complained of, and it might have been quashed by the circuit court on certiorari.
II. We have carefully examined the provisions of the act of July 28, 1868, to see if the county court could, in any case, levy a school district tax of five per cent. Such a tax for a single purpose, if not for all public purposes, being enormous, but we find in the act no limitation as to the maximum amount that might have been voted by the electors (though but five attended the school meeting), or levied by the county court.
By sec. 146 of the act of March 25, 1871, the county courts were authorized to levy for school purposes, in any district (other than cities and towns, etc.), such rate as might be determined upon by the qualified electors of. the district, etc., not to exceed five mills on the dollar, but this act had not been passed when the tax in question was levied.
Sec. 47, art. V, Const, of 1868, provides that the general assembly shall not • have power to authorize any municipal corporation to pass any laws contrary to the general laws of the state, or to levy any tax on real or personal property to a greater extent than two per centum of the assessed value of the same. See also sec. 49, same article.
Whether the words “ municipal corporation,” as they occur in this section, were used in a restricted sense, and apply only to incorporated cities, etc., or in a more general sense, and embrace incorporated school districts, such as were provided for by the act of July 23,1868, we need not decide in this case. See 2 Bouv. L. D., Munic. Corp.; Dillon Munic. Corp., sec. 9, etc.; Angel & Ames on Corp., sec. 24; The Inhabitants of 4th School District, 13 Mass., 192.
III. Tbe bill sought to enjoin the collection of the tax on the ground merely that it was illegally levied by the county court. True, there is a general averment in the bill that the appellant was otherwise remediless, but it appears of record that it was a single tax, levied for one specific purpose — to maintain a district school — that the county court which made the levy had not such facts before it as to give it jurisdiction to make the levy ■; and it is manifest that the circuit court, on certiorari, could have quashed the whole levy. The appellant having a plain and simple remedy in a court of law, and averring in his bill no such facts as to bring the case within any of the established subjects of equity jurisdiction, the court below, according to the decision of this court in Floyd v. Gilbreath et al., 27 Ark., 676, properly sustained a demurrer to the bill.
There was a dissenting opinion in that case, but we are not disposed to review the decision in the case now before us, because an act was passed shortly after the decision was made which was intended, perhaps, to settle the mooted question of jurisdiction. It provides that: “The judge of the circuit court may grant injunctions and restraining orders in all cases of illegal or unauthorized taxes and assessments by county, city or other local tribunals, boards or officers.” Gantt’s Dig., p. 650, sec. 3451.
But the statute having been passed after the decision in the court below, in this case, the decree must be affirmed. | [
-10,
-56,
-100,
46,
-86,
-32,
74,
-90,
-55,
51,
-15,
83,
121,
94,
1,
103,
-29,
107,
-47,
44,
-60,
-89,
82,
67,
-110,
-13,
-43,
-41,
-77,
-57,
-28,
-41,
8,
56,
-24,
-36,
70,
66,
-51,
-36,
14,
40,
-69,
-60,
127,
96,
60,
105,
51,
11,
113,
7,
-89,
40,
24,
-45,
77,
44,
-40,
-85,
-46,
-30,
-97,
21,
95,
19,
-111,
103,
-97,
1,
64,
46,
-102,
53,
0,
-8,
123,
-90,
22,
-44,
-123,
-119,
8,
96,
34,
17,
-91,
-11,
-80,
-100,
14,
82,
-83,
-122,
-109,
73,
106,
13,
-66,
21,
124,
-112,
15,
118,
-95,
69,
22,
44,
-76,
-34,
-100,
51,
-115,
-83,
-104,
15,
-9,
51,
48,
81,
-113,
-74,
94,
71,
51,
27,
70,
-40
] |
English, C. J.
The appellant was indicted in the criminal court of Pulaski county, as follows:
“The grand jury of Pulaski county, in the name and by the authority of the state of Arkansas,.accuse John Barton of the crime of larceny, committed as follows, viz. : The said John Barton, on the ninth day of July, A. D. 1872, in the county and state aforesaid, one hundred and thirty dollars, the property of Joseph Schaer, from the person of the said Joseph Schaer, then and there feloniously did take, steal and carry away, against the peace and dignity of the state of Arkansas.”
The appellant entered a demurrer to the indictment, in short upon the record, which he subsequently withdrew, and pleaded not guilty. He was tried by a jury, found guilty, and moved in arrest of judgment, on the ground that the facts stated in the indictment did not constitute a public offense. The motion was overruled, and he was sentenced to the penitentiary.
The objection to the indictment is, that it does not specifically describe the money alleged to have been stolen. The appellant is charged with stealing “ one hundred and thirty dollars,” etc. Whether the subject of the larceny was coin, Hnited States treasury notes, or bank notes, is not alleged. If the term “ dollars ” may be said to have a legal meaning, and to import the national coin (Roane v. Green et al., 24 Ark., 210), we are left to conjecture what kind of coin the appellant •was charged with stealing.
It is a loose attempt at a code indictment.
The code provides that, “ The only ground upon which a judgment shall be arrested is, that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court; and the court may arrest the judgment without motion on observing such defect.” Gantt’s Dig., sec. 1975.
What is the meaning of this section of the code? To charge a man with shooting at the moon would not be charging, him with a public offense. To charge him with stealing in Texas would not be charging an offense within the jurisdiction of an Arkansas court. To charge a man with larceny merely would be charging him with a public offense by a technical name only. Is it in such instances or similar instances only, that the judgment may be arrested? We think not. Such could not have been the intention of the framers of the code. It requires certain material facts to make any public offense of whatever name, and these facts, well ascertained in law, and easily apprehended by ordinary intelligence, should be alleged in the indictment, whether framed under the code of under the common law.
Our code provisions in relation to indictments, arrest of judgment, etc., were taken from the Kentucky code. Rhodus et al. v. Commonwealth, 2 Duvall (Ky.), 159, was an indictment for the larceny of treasury notes, etc., and there was as in this case, a motion in arrest of judgment on a verdict- of guilty. The court said:
“ On the suject of indictments, our criminal code recognized and established the modem common law, rightly understood arid rationally applied. It dispenses with form and requires substance only. And what is now substance at common law, is substance undér the code — and that is every fact necessary to constitute the specific crime charged — alleged with only such precision as, 1st. To enable the court to see that, admitting the facts, it has jurisdiction, and that the imputed -crime.has been committed by the accused. 2d. To enable the accused to understand the precise charge, and without surprise to prepare for defense against the proof which may be admissible to sustain that specific charge; and, 3d. To make the verdict and judgment certainly available as a bar to .any subsequent prosecution for the the same criminal act.”
In the case quoted from, the appellants were charged with stealing “ one lot of treasury notes, called greenbacks, the issue of the treasury of the United States of America, and one lot of Kentucky bank notes, and fifteen dollars in gold -coin.”
This charge was more specific than the charge in the indictment now before us.
The court, after making the general remarks on the subject ,of indictments above quoted, said: “According to this test(l the indictment in this case seems to us insufficient to authorize conviction.
“ One lot of treasury notes, without any specification of denomination, number or value, is too indefinite for the identification of the thing taken,-or of any part of it; and ■one lot of Kentucky bank notes, without even a specification ■of the bank, is still more indefinite.
“ Neither of these charges sufficiently notified the accused -of the facts to be proved; and a conviction on either of them might not be availably pleaded in bar of another indictment for the same offense. A minute description of all the treasury and bank notes might be impossible, and, therefore is not required. But a nearer approach to it than this indictment makes may be presumed to have been easy, and ought to be required. A specification of even one of the notes in each lot, so as to identify it, might be sufficient to answer the ends -of the test just defined.
“ Nor can fifteen dollars in gold coin, without any specification of the number of pieces, or of the character or identity of the coin, or of any portion of it, be deemed sufficient for all the purposes of the law.”
In The State v. Longbottom, 11 Humph., 39, the accused was-charged with stealing “ ten dollars, good and lawful money of the state of Tennessee,” and on conviction the judgment was-arrested and the state appealed.
The supreme court of Tennessee said: “ Where personal chattels are the subject of an offense, as in larceny, they must-be described specifically by the names usually appropriated to-them, and the number and value of each species or particular' kind of goods stated (2 Hale, 182-3; Arch. Cr. Pl., 49). Money should be specified as so many pieces of the current-gold or silver coin of the realm. And the species of coin must be stated by its appropriate name. Arch., 50.” The-court held that the subject of the larceny was insufficiently described, and that the judgment was properly arrested.
In The People v. Ball, 14 Cal., 101, the subject of the larcen3r was described as “ three thousand dollars, lawful money of the United States.” The court said: “ This description is not. Sufficient. In an indictment for larceny, money should be-described as so many pieces of the current gold or silver coin of the country; of a particular denomination according to the-facts. The species of coin must be specified (Arch. Cr. Pl., 61; Whart. Cr. Law, 132).”
In The State v. Murphy, 6 Ala., 846, the subject of the larceny was thus described: “ Sundry pieces of silver coin, made-current by law, usage and custom within the state of Alabama, amounting together to the sum of five hundred and thirty dollars and fifteen cents, of the value,” etc., and this was held to-be insufficient.
In McKane v. The State, 11 Ind., 195, the accused was- charged with stealing “ sixty dollars of the current gold coin of the United States,” etc. The court recognized the general rule as to the description of coin when the subject of larceny, but said: “We have a piece of money of the gold coin called a dollar; and is it not just as intelligible to say ‘ sixty dollars of the gold coin,’ as to say ‘ sixty pieces of gold coin called sixty dollars ? ’ In our opinion the indictment is unobjectionable.”
Mi’. Bishop, commenting on this case, says: “If the-expression‘sixty dollars of the current gold coin of the United States’ really meant, as the court seem to have understood it-to mean, that the theft was of sixty distinct pieces of gold coin, each piece being of the value of a dollar, then the indictment was good according to the general doctrine.”
But this Indiana indictment, it may be observed, is more-specific in the description of the subject of the larceny than the one before us. “ Sixty dollars of the current gold coin of the United States of the value of sixty dollars,” is a much-more definite description of money than “ one hundred and thirty dollars, of the value of one hundred and thirty dollars.”
We can find in no text book of precedents for indictments, as loose and vague a description of money when the subject-of larceny, as in the indictment before us.
The judgment must be reversed, and the cause remanded to-the Pulaski circuit court (to which the jurisdiction of the Pulaski criminal court is transferred by the new constitution), with instructions to the court to arrest the judgment, and hold the appellant subject to a new indictment. | [
116,
104,
-23,
124,
58,
96,
42,
40,
-45,
-127,
-11,
50,
-19,
-50,
4,
49,
113,
105,
85,
113,
-94,
-74,
57,
83,
-46,
-77,
-55,
-43,
54,
79,
-90,
-43,
14,
48,
-54,
85,
71,
72,
-95,
92,
-114,
9,
-88,
64,
-13,
104,
32,
43,
86,
11,
113,
-66,
-26,
42,
62,
73,
105,
44,
-35,
47,
72,
-45,
-104,
77,
-33,
23,
-95,
39,
-103,
5,
-22,
56,
-104,
17,
0,
-8,
115,
-92,
2,
-44,
47,
-101,
12,
98,
34,
1,
93,
-113,
56,
-119,
46,
-1,
-99,
-121,
80,
65,
107,
47,
-98,
-115,
-17,
-112,
6,
-12,
-27,
92,
57,
108,
43,
-18,
-108,
-109,
-83,
108,
-98,
115,
-45,
3,
48,
97,
-52,
-30,
93,
127,
121,
-101,
-116,
-59
] |
Walker, J.
E. C Goodwin, tbe father of defendants, resided with his family, consisting of a wife and four children, upon a tract of 160 acres of land, in the county of White, of which he was the owner. He was a citizen of the state, the head of a family, a householder, and an actual resident upon the land with his family, at the time of his death, which took place in January, 1864. His widow and children continued to reside upon and occupy the homestead place until the summer of that year, at which time she diéd, leaving the defendants, her minor children, the oldest but fourteen years of age, upon the place. Jones, the uncle of the children, who resided on an adjoining tract, took the children to his house to be taken care of, and provided for them, and for two years after, cultivated the land as a means of support for the children.
In the fall of the year 1865, Hicks was appointed administrator of the estate of Goodwin, and took the homestead place with other lands, into possession, and rented them for several years, and, under an order of the probate court, sold them to the appellant, Booth, and made him a deed for them. Booth entered upon the lands and claimed them as his. He was notified at the time of his purchase that the heirs of Goodwin claimed a homestead right upon the lands.
The heirs, by their next friend, brought suit for the possession of the 160 acres of land, under their homestead claim.
The defendant, in his answer, does not controvert the fact that Goodwin was, in his lifetime, entitled to a homestead upon the land, or that the plaintiffs were and are minors, but positively denies the actual occupancy of the children, charges that they had abandoned the homestead place, and that he, Booth, had bought and paid for it under an order of the probate court. That the lands were unoccupied when he bought them; that he entered upon them in good faith, and has made valuable repairs.
Upon this issue the jury found a verdict for the plaintiffs, upon which judgment in their favor was rendered.
The questions of law and the evidence were properly preserved by bills of exceptions, and present but one important question for our consideration, which is : Is it necessary that the minor children of a deceased parent, who was entitled to a homestead exemption upon land, should also actually reside upon and continuously occupy the same, in order to protect their homestead right to it; or, in other words, should the same construction be given to the statute which requires actual occupancy of the father and of the mother to pro tect them from creditors, be also extended to the minor children ?
All of the questions likely to arise under the homestead act have heretofore been settled by our former decisions, in the cases of Tumlinson v. Swinney, 22 Ark., 404; Norris v. Kidd, 28 id., 485; Chambers v. Sallie et al., ante 407; and Johnston’s Heirs v. Turner, Adm’r, ante 280. The two last were decided at the present term of the court.
In the case of Johnson’s Heirs v. Turner, Adm'r, the facts were that the administrator, as in this case, had taken possession of the real estate of the intestate, upon which, however, the heirs had at no time resided. It was held that the domicile of the parents was also the domicile of the children ; that an abandonment of the homestead place by the mother, whether by marriage and removal to the residence of her husband, or otherwise, could in no wise affect the homestead rights of the minor children. And it was also held that no temporary absence of the head of the family amounted to such abandonment as would deprive minors or her, of their homestead rights.
The question of abandonment is one of fact, to be determined by the acts and declarations of parties competent to act for themselves, and the evidence which would establish an abandonment by adults competent to act for themselves, must fall far short, indeed, must entirely fail to visit a like consequence upon minors, who, it has been seen, can make no home for themselves, but are subject to the control of parents or guardians, and, when the statute says: “That the homestead shall be exempt from sale or execution during the time it shall be occupied by the widow, child or children,” should we give it the same construction that we would in a case involving the homestead rights of the father or the mother, who may, at their pleasure, continue to occupy or not, we would, in most instances, utterly defeat the provisions of the statute in favor of the rights of children.
The intention of the legislature evidently was to extend to the child or children the same protection of the property from sale by the creditor, which had been extended to their parents, and as it is our duty, as far as possible, to carry this intent into effect, we must - necessarily give to the term “occupied” such a liberal construction as will uphold, not defeat, the humane intent of the legislature; and must hold that an infant is incapable, either by act or declaration, of abandoning or waiving his homestead right; not to do so, would be to defeat the provisions of the statute as to them. Actual occupancy of the infant upon the homestead place is not necessary, is not required of an infant. It is the duty of his guardian to take possession of the homestead place, and to rent or lease it for the benefit of his ward, as a means for his support and education, and this must have been the possession and occupancy contemplated by the legislature, because it is the only one consistent with the condition of the minor child or children.
It is true that there may be cases in which a friend, a relation or a guardian may remain with the children upon the homestead place. But in such cases as the present, when children are too young to take care of themselves, a relative or a guardian may well take them from the prémises to reside with them, and take care of them, and in doing this the infants could lose no right whatever, and such removal was no evidence that they had abandoned or relinquished their right of homestead. The effect of the homestead act was to suspend the rights of the creditor until the child or children became of age, and are presumed to be capable of taking care of and of supporting themselves, at which time, and not before, the rights of the creditors to satisfaction out of the estate may be asserted.
It has been contended that these children have no such title to the land or the possession thereof, as will entitle them to sue in ejectment. In this we think the counsel mistaken. It is true that the homestead act confers no title to the land, but merely a protection from sale whilst occupied, and to this extent suspends the rights of the creditors; but the land remains all the while the estate of the father, in which, until it is found necessary to dispose of it to satisfy the creditors of the estate, the children and heirs have such an estate, coupled with their right to immediate possession, as entitles them to sue for its recovery.
This view of the effect of the homestead act and of the rights of the plaintiffs under it, in effect,- disposes of all the other questions presented for consideration. Upon the whole case, the decision and judgment of the court below is correct.
Let the judgment be affirmed. | [
-15,
108,
-35,
28,
10,
104,
42,
-6,
94,
-93,
39,
91,
-21,
-53,
21,
37,
115,
45,
-47,
123,
-57,
-93,
31,
3,
16,
-5,
-79,
-41,
48,
77,
37,
-42,
76,
32,
-54,
117,
-62,
106,
-57,
-100,
-114,
-119,
-71,
108,
-101,
82,
52,
-7,
84,
11,
81,
-81,
-77,
46,
61,
-61,
41,
46,
75,
57,
80,
-88,
-66,
14,
-53,
23,
-112,
103,
-104,
-57,
-24,
42,
-112,
53,
-128,
-24,
115,
-90,
22,
84,
71,
-119,
-119,
98,
103,
35,
-91,
-17,
-56,
24,
46,
58,
-115,
-89,
-96,
49,
83,
42,
-67,
-99,
88,
32,
30,
122,
-19,
-51,
92,
108,
5,
-113,
-42,
-79,
-84,
-88,
-100,
-125,
-13,
-123,
48,
113,
-49,
-30,
84,
67,
52,
-103,
-114,
-38
] |
Harrison, J.
This was an action brought in the circuit court ofv Clayton county, by Hecht &• Stephens against the Cairo and Fulton Eailroad Company, to recover damages for injuries done to the plaintiffs’ oxen by the locomotive of the defendant, through the negligence of its servants and employés.
The summons was served in Clayton county, by copy left with the defendant’s clerk, there being no chief officer of the company in the county.
The defendant failing to appear and answer, the plaintiffs’ damages were assessed by a jury, and judgment taken by default against the defendant for the amount.
The defendant has brought the case here by writ of error, and seeks to reverse the judgment upon the ground that there was no valid service of process.
Section 4515, Gfantt’s Digest, provides that, “ where the defendant is a corporation created by the laws of this state, the service of the summons may be upon the president, mayor, chairman of the board of trustees, or other chief officer; or if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk, or managing agent.”
The plaintiff in error was incorporated by a public act of the general assembly, entitled, “ an act to incorporate the Cairo and Fulton Railroad Company,” approved 12th January, 1853 ; and by section 13 thereof, all the rights and privileges, immunities and franchises contained in the charter of the Mississippi Yalley Railroad Company, not restrictive or inconsistent with its other provisions, were extended to and conferred upon it.
The Mississippi Yalley Railroad Company was incorporated the same session, also by a public act, entitled “ an act to incorporate the Mississippi Yalley Railroad Company,” and the 24th section of it is as follows: “ Process on said company shall be served on the president, by leaving a copy to his address, at the principal office of the corporation, in the hands of any of its officers. The said corporation shall have power to establish a principal office at such place as they may see fit, and the same to change at their pleasure.”
The plaintiff in error insists that the foregoing provisions of the charter of the Mississippi Valley Railroad Company were, by the said 13th section of its own charter, transferred to and incorporated therein, and contends that section 4515 of Gantt’s Digest, which is a provision of the code of practice, subsequently enacted, and in accordance with which the service was made, is within the prohibition of the clause of the constitution of the United States, which declares no state shall pass any law impairing the obligation of contracts.
Admitting that the provisions of the 24th section of the charter of the Mississippi Valley Railroad Company were incorporated into the charter of the plaintiff in error by its 13th section, a question not necessary for us to determine, that in relation to the service of process was not the concession of a right which, as such, would be irrevocable by the legislature» nor indeed any concession at all; but a provision for the remedy of wrongs and injuries in eases where the company was a party, and it is now a well established doctrine that the legislature may change the remedy of one of the parties to a contract without in the least impairing its obligation. Newton v. Tibbets, 7 Ark., 150; Woodfin v. Hooper, 4 Humph., 13; Stocking v. Hunt, 3 Denio, 276; James v. Steel, 9 Barb., 483; McLaren v. Pennington, 1 Paige, 107; Howard v. Kentucky Mutual Insurance Co., 13 B. Mon., 282 ; Bank of Columbia v. Okely, 4 Wheat., 235.
The supreme court of the United States, in the case of the Bank of Columbia v. Okely, held that the provision in the act by which the bank was incorporated, which gave a summary process for the recovery of notes indorsed to it that were made negotiable at it in their creation, was no part of its corporate franchise ; but as the mere remedy and not the right, might be repealed or altered as the legislature might will. In their opinion in that case the court say: “ In giving this opinion, we attach no importance to the idea of this being a chartered right in the bank. It is the remedy and not the right, and as such, we have no doubt of its being subject to the will of congress. The forms of administering justice and the duties and powers of courts as incident to the exercise of a branch of sovereign power must ever be subject to legislative will, and the power over them is unalienable so as to bind subsequent legislation.”
In the case of Howard v. Kentucky and Louisville Insurance Co., the act creating the corporation required all suits by members of the company against it for losses by fire, to be brought, in the circuit court of Jefferson county; but the code of practice of Kentucky, subsequently enacted, authorized suits against banks and insurance companies to be brought in the county in which there was a branch of the bank or agency of the company, when the same arose out of a transaction of such branch or agency, and the court held that the company did not acquire a right under its charter to be sued alone in the county of Jefferson that could not be divested by subsequent legislation.
There was due service of process, and the judgment must be affirmed.
FT. B. This cause has been removed to the supreme court of the United States by writ of error. | [
-76,
-18,
-8,
-99,
-86,
-32,
34,
10,
73,
-95,
-26,
83,
-51,
-26,
25,
119,
-25,
59,
113,
123,
-59,
-93,
-125,
99,
-110,
51,
-29,
-121,
48,
77,
-4,
-45,
76,
48,
-54,
93,
71,
72,
-51,
-98,
-114,
40,
43,
108,
25,
-63,
52,
126,
20,
79,
49,
-113,
-14,
46,
21,
75,
109,
44,
-19,
41,
-61,
121,
-104,
69,
119,
4,
32,
100,
-104,
-121,
-24,
58,
-128,
21,
17,
-8,
114,
-74,
-126,
-44,
41,
25,
9,
98,
98,
99,
13,
-121,
-40,
-116,
14,
62,
29,
-89,
-96,
41,
75,
79,
-74,
-99,
70,
22,
-121,
116,
-4,
-59,
89,
60,
3,
-49,
-74,
-89,
-99,
39,
-98,
3,
-54,
27,
48,
116,
-58,
-77,
93,
7,
50,
27,
-49,
-11
] |
Harrison, J.
The appellant was indicted in tbe circuit court of Clark county for tbe murder of Nathaniel Y. McCall. Upon bis application to tbe court, tbe venue was changed to Hot Spring county, in tbe circuit court of which, at a special term begun and held on tbe 23d day of March, 1874, be was tried and convicted of murder in tbe first degree.
He filed a motion for a new trial, which was overruled ; be then moved in arrest of judgment, and that motion being also overruled, judgment of death was pronouced against him.
The first cause assigned for the arrest of judgment was, illegality in the formation of the grand jury.
It appears from the record that the court, upon the motion of the prosecuting attorney, set aside the j panel of grand jurors that had been summoned for the term, and orderd another to be summoned, from which latter the grand jury was formed ; but the ground upon which the first panel was set aside is not disclosed.
In the absence of any showing in regard to it, we must presume it was done for good and sufficient cause; yet, if it did appear that it was improperly set aside, and a valid objection to the grand jury on that account existed, the defendant, by pleading to the indictment, without moving to set it aside, waived it. Gantt’s Dig., secs. 1829, 1831; State v. Brown, 10 Ark., 81; Wilburn v. The State, 21 id., 199; McQuillen v. The State, 8 Smedes & Marsh, 587; 1 Chit. Crim. Law, 309; Whart. Crim. Law, 173.
The second was: That the “ indictment did not allege facts sufficient to constitute a public offense.”
The indictment is as follows :
“Indictment — In Ciarle Circuit Court. February term, 1874. The State of Arkansas against. Giles Dixon. The grand jurors of Clark county, in the name and by the authority of the state of Arkansas, accuse Giles Dixon of the erime of murder in the first degree, committed as follows, to-wit: the said Giles Dixon, in the county aforesaid, on the gOth day of December, A. .D., 1873, did willfully, feloniously, of his malice aforethought, with premeditation, by lying in wait, kill and murder one Nathaniel Y. McCall, then and there being, by shooting him, the said Nathaniel Y. McCall, with a certain gun, which he, the said Giles Dixon, .in his hands then and there held, the same being loaded with gunpowder and leaden bullets, with intent, him, the said Nathaniel Y» McCall, then and there to kill and murder, contrary to the-statute in such cases made and provided, and against the. peace and dignity of the state of Arkansas,
“ Duane Thompson, Prosecuting Attorney.”
“ It is a general rule,” says Wharton, “ that the special matter of the whole fact should be set forth in the indictment, with such certainty, that the offense may judicially appear to-the court.” Whart. Crim. Law, 116.
The indictment above set out, though not containing that, minute detail of circumstances attending the killing, usually-found in indictments for murder,- alleges every fact or ingredient of murder of which proof is required, and the manner.1 and the means of the perpetration of the crime are so clearly set forth that the accused could not possibly fail to know the-specific charge against him, and what he had to meet and contest upon the trial. A statement of the acts constituting the offense in ordinary and concise language, and in such a manner as to enable a person of common understanding to. know what is intended, is all that is required. Gantt’s Dig,,, secs. 1781, 1782, 1796.
There is a material difference between this case and the-case of Thomson v. The State, 26 Ark., 323. In that case the manner of killing was not shown ; the indictment only alleging it to have been done “ with a double barreled shot gun, loaded with gunpowder and leaden bullets,” leaving it uncertain whether by shooting or-beating, two modes so materially different that evidence of one would not be proof of the other. In this, no such uncertainty exists. The indictment directly charges the murder to have been committed by shooting, and the defendant was fully apprised of the nature of the evidence that would be required to prove the act.
The third was: That the order for the change of venue was not in accordance with the statute, and the Hot Spring circuit court, therefore, had no jurisdiction of the case.
In support of this objection, it is insisted, that the order does not specify the cause of removal, and for that reason is a nullity.
This position of counsel is, in point of fact, without foundation. The application for the change of venue was' made in open court; the defendant’s petition setting forth, as a matter of course, the only cause for which it might be made, that the minds of the inhabitants of the county of Clark were so prejudiced against him that he could not have a fair and impartial trial therein, which petition was filed and became a part of the record.
The order is as follows :
“ Comes the state by her attorney; comes also the defendant in custody in person and by attorney. The court being fully, advised, it is ordered that the change of venue be granted, and’ this cause be removed to Hot Spring county.”
The order obviously refers to the petition which had been presented for the change of venue, and the cause set forth' therein for it. The statute does not require so unnecessary and useless a thing as an express statement, in the order, of the ground upon which it is made, when that already appears in the record. The whole record must always be regarded and considered; and, often, that which is uncertain in one part may be rendered clear by that which is certain in another part.
The Hot Spring circuit court could plainly see from the' record before it, that the cause was removed in accordance' with the provisions of the statute, from the Clark circuit court, where the indictment was found, and transferred to its jurisdiction, and nothing more could be necessary.
' The fourth was : That the trial of the defendant was not at a term of the court, provided by law:
The judge of the circuit court is empowered by sec. 1166, Gantt’s Digest, if he deem it expedient, to appoint a special term of his court for the trial of persons confined in jail, by making out a written order to that effect, and transmitting the same to the clerk to be entered upon the records. Sec. 1165, Gantt’s Digest. The statute provides that such term shall not interfere with any other court to be held by the same judge, and shall not be held within twenty days of the regular term of the court. Secs. 1169 and 1170, id.
The order of the judge appointing the term recites the fact that the defendant was confined in jail and held to answer the indictment in this case, and the same fact is otherwise shown by the record. And the order was made and transmitted to the clerk of the Hot Spring circuit court, and by him entered upon the record more than fifteen days before the time appointed for holding the term, affording ample time for the judge to cause notice to be served on the prosecuting attorney ten days before its commencement, as directed by sec. 1167. It is not required by the statute that the record should show that the notice was given to the prosecuting attorney, but we should presume it was given, unless the contrary was shown. The omission, however, of such a mere ministerial duty could not have affected the jurisdiction of the court, or afforded the defendant any just ground of complaint. The authority to hold the term for the trial of the defendant depended upon the following facts and circumstances: that he was confined in jail awaiting trial before the court; that it did not interfere with any other court to be held by the judge, and was not to be held within twenty days of the regular term; that an order therefor had been made by the judge, at least ten days before the day appointed for holding it, and by him transmitted to the clerk, and the same had been entered upon the record, all of which appears by the record, or is within the judicial knowledge of the court. The fifth and last cause assigned was, that the verdict was so' defective no judgment could be entered upon it.
We are unable to perceive any objection to the form of the verdict. It is in these words: “We, the jury, find the defendant guilty of murder in the first degree,” and is directly responsive to the issue formed upon the defendant’s plea of not guilty. The omission of the words “ in manner and form as charged in the indictment ” sometimes used, and which, if added, would have obviated all shadow of objection, is of no consequence whatever, for the verdict need not be in writing, but may be announced by the foreman of the jury orally, and then entered by the clerk in proper form upon the record. Atkins v. The State, 16 Ark., 590 ; 1 Chit. Cr. Law, 635 ; Freel v. The State, 21 Ark., 224; Strawn v. The State, 14 id., 549; Stephens v. The State, 11 Ga., 241.
The only ground alleged in the motion for a new trial was, that the verdict was against law and contrary to the evidence.
No other answer need be made to the objection that the verdict is against law, if considered without reference to the evidence, than the remark just above made that it is responsive to the plea of not guilty, and covers every allegation of -the indictment 'which we have shown contains all that are necessary to constitute the offense charged.
The deceased was shot near Arkadelphia, in Clark county, on the night of the 30th of December, 1873, and from the wounds received, died in the course of the next forty-eight hours. His declarations, which were admitted in evidence, were to the following effect: That hearing his dog barking at .night, he went out to ascertain the cause, whereupon some one rose up and shot him. He said, at first, that one Miles Collins. shot him; but afterwards that he might- have been mistaken as to the person; that Collins had been there, and had left only long enough before he was shot to have gone two hundred yards ; that he knew by the report that he was shot with an Enfield rifle belonging to James B. Draper.
The evidence which implicated the defendant was circumstantial only.
The recent tracks of two persons, corresponding with those of the defendant and one Tom Reynolds, were discovered the morning after the shooting, at or near the spot where the person who fired the gun stood, and going from thence and nearly to the defendant’s house about a half of a mile distant. The house of Miles Collins, which stood within twenty-five or thirty yards of that of the deceased, had, the morning of the day on which deceased was shot, been burned, and he had taken his family'to the defendant’s, and Tom Reynolds who lived with said Collins also went there. After night, Miles Collins left defendant’s house, accompanied by two or three of the defendant’s children, to go over to the deceased’s house to bring away his chickens. Shortly after he left, the defendant and Tom Reynolds left also, the defendant taking the Enfield, rifle belonging to the said Draper, which he had sometime before borrowed, and which he had loaded just before leaving. Whilst the defendant and Tom Reynolds were gone, a gun was heard in the direction of the deceased’s house, and Miles Collins testified that, in a short time after the gun was fired, the defendant and Tom Reynolds ran past him at some distance off, as he was returning from the direction of the deceased’s and towards the defendant’s. A paper was found near the place where the gun was fired, that corresponded with the paper from which the defendant tore a wad when loading the rifle. It was loaded with buckshot, and the deceased was shot with that kind of shot. Draper was in the habit of shoot-. ing buckshot with his rifle, and the deceased had often heard its report. There was much other corroborative evidence.
Witnesses for the defendant swore that he' was at home when the gun was fired, and was not absent during the night, and their testimony was contradictory in other particulars of the evidence for the state.
There was, as is thus seen, evidence tending to prove every material fact charged in the indictment, and though that inculpatory of the defendant was circumstantial only, and was in several particulars directly contradicted by the defendant’s witnesses, the jury whose duty and province it was to weigh the evidence and pass upon the facts, having fairly and under the most favorable circumstances for ascertaining the truth, and arriving at a correct conclusion, done so, and found the defendant guilty, this court may not disturb their verdict.
Finding no error, the judgment of the court below is affirmed. | [
-80,
-21,
-4,
-65,
42,
-24,
42,
-70,
74,
-125,
112,
-13,
-19,
15,
20,
49,
99,
-5,
117,
105,
-28,
-74,
11,
73,
50,
-9,
-119,
-121,
-78,
-51,
-3,
-33,
73,
112,
66,
-39,
-57,
108,
-63,
30,
-114,
-128,
-119,
-28,
58,
72,
48,
111,
84,
11,
97,
-66,
-5,
43,
87,
-117,
109,
44,
73,
-81,
64,
112,
-120,
5,
-119,
4,
17,
-90,
-117,
3,
112,
60,
-48,
17,
0,
-8,
115,
-106,
-128,
84,
77,
-103,
8,
98,
98,
9,
92,
-115,
8,
-119,
31,
46,
-99,
-89,
-104,
9,
89,
14,
-106,
-99,
118,
20,
14,
116,
-3,
-59,
49,
124,
37,
-50,
-76,
-111,
-19,
44,
-108,
51,
-61,
15,
48,
113,
-49,
-30,
92,
78,
115,
-101,
15,
-16
] |
English, C. J.
This was a code action for tbe recovery of specific personal property. The only thing answering to a complaint in the transcript before us seems to have been intended to serve the double purpose of a complaint and an affi davit to obtain an order for the delivery of the property. It is as follows :
After the names of the parties, etc,, “The plaintiff, H. P. Smead, states that the cotton claimed by him in this action is six bales, five of which are marked H., and numbered 7, 8, 9, 10 and 11, and three others marked B. No. 11, all of which is bound in iron ties, and is worth three hundred dollars, and for the detention of said cotton, he believes he'ought to recover one’hundred dollars; that he is the owner of the cotton, and is entitled to the immediate possession of it; that the cotton is wrongfully detained by the defendants, Jetton & Farris, and was not taken for tax or fine against the plaintiff, or under an order or judgment of a court against him, or under an execution or attachment against his property, and that his cause of action herein accrued within one year past.” See Gantt’s Dig., ch. 115.
It was sworn to and filed in the office of the clerk of the Union circuit court, March 29, 1871.
No writ appears in the transcript.
On the 27th of September, 1871, there is an entry that the parties appeared, and, on motion of the defendants, further time was given them in which to file their answer to the complaint.
October 3, 1871, the cause was continued by consent.
April term 1872, a like order of continuance without prejudice ; March 27, 1873, the cause by consent was set for “ disposition” on the 1st of April, and on that day it was continued by consent.
September 19,1873, the parties appeared by their attorneys, and both parties announcing themselves ready for trial, a jury was called and sworn, “Well and truly to try the case of H. P. Smead against Jetton & Farris, and a true verdict render according to law and evidence; unless discharged by the court or withdrawn by the parties.”
After the jurors were sworn, it was discovered that one of them was disqualified, and the parties agreed that he might be discharged and the cause tried by the eleven remaining jurors.
Plaintiff then introduced witnesses by whom he proved that the cotton in dispute was produced, ginned, baled and weighed on his farm, of the crop of 1870; that it was his property, the probable value of such cotton; and that it was taken from his farm on the 21st of March, 1871, without his permission, by defendant Jetton.
Plaintiff next proposed to read in evidence “ the return of the officer who executed the writ of replevin in the case,” to which the defendants objected; but the court overruled the ■objection and the same was read as follows:
“ Sheriff’s Office, Union County — March, 24, 1871. I hereby deputize and empower H. Y. Sims, constable of Yan Burén township, Union county, Ark., as special deputy to •serve the within writ, this March 24th, 1874. (Signed) Lee Clow, Sheriff, etc.
“ Whereas, I have this 25th day of March, 1871, duly executed this writ by taking possession of the within mentioned property and delivered the same to the possession of the said H. P. Smead, he executing a bond according to law in the sum of $600 which has been approved by me. (Signed) Lee Clow, Sheriff. By J. G-. Chapin, Deputy. By H. Y. Sims, Special.”
It does not appear that the writ was read in evidence, nor •does it appear in the transcript.
Plaintiff was then permitted to read in evidence, against the ■objection of defendants, what is termed, in the bill of exceptions, a bond executed by defendants to retain the cotton ip this case.
It is in code form: “We undertake and are bound to the plaintiff, H, P, Smead, in the sum of six hundred dollars, that defendants, Jetton & Earris, etc., shall perform the judgment of the court in this action.”
It purports to be signed by the defendants and three other persons ; and to have been approved by the sheriff, March 30,-1871.
Whether, upon the execution of this bond, the cotton was redelivered to the defendants, was not shown by the plaintiff. Here the plaintiff closed his case.
Defendants then proposed to read in evidence a mortgage purporting to have been made to them by plaintiff, and called defendant Earris as .a witness to prove the signature of the plaintiff; to which the plaintiff objected on the ground that there was an attesting witness of its execution, and the court sustained the objection.
Here the court adjourned until the next morning (September 20, 1873).
The counsel for defendants seems to have discovered during the adjournment that the defendants had no answer to the complaint on file, and on the next morning when the court met, filed an answer which purports to be a substitute for one previously filed with an amendment, etc.
There are two paragraphs of what purports to be substituted, in substance as follows :
1. Defendants for answer say, as they did in their original answer, that they do not unlawfully detain the cotton nor did they at the institution of the suit.
' 2. And for further answer they state, as in their original answer, that they do-not detain the cotton of plaintiff unlawfully, but aver that on the 24th of April, 1874, plaintiff was indebted to them in the sum of $590, and wanting further supplies for that year in goods, wares and merchandise, executed to them an instrument by which he bargained and pledged his entire crop of cotton raised in Union county in the year 1870, and on default of payment, authorized defendants to take possession of the cotton and sell the same at auction or privately. That plaintiff got of defendants, under said contract, other supplies, etc., amounting to $264.12, as would appear by bill of particulars A, marked filed in this case March 29,1871, but filed, as defendants believe, March 29, 1872, with original answer which is lost or mislaid and not in the papers. That they took possession of said cotton under and by virtue of said instrument, as well they might, because plaintiff wholly failed to pay for said goods, wares and supplies as agreed in said contract; and defendants held and sold said cotton under said authority and make account of sales in exhibit, etc.
To the above paragraph of the answer was attached the affidavit of Farris, that the facts set forth were true, and that the answer would have been presented sooner, but he verily believed that said original answer was in, and was not advised to the contrary until the same could not be found, since the commencement of the trial.
3. And for further answer, defendants state that plaintiff was, at the institution of this suit, has since been and now is, non compos mentis, and had not- at the institution of this suit, nor has he since had, any lawful curator or guardian.
This additional paragraph was also verified by the affidavit of Farris.
The plaintiff moved to strike the answer from the files, on the grounds:
1. That it was filed out of time, etc.
2. That it did not state “ whether the sums stated therein were paid before they seized the cotton.”
3. Because the paper filed as an answer contradicted the record, in stating that defendants had previously filed an answer, when the record showed no such filing.
The court struck out the answer and exhibits, and defend ants excepted. Defendants then moved to strike plaintiff’s complaint from the files, which was overruled, Defendants produced the mortgage referred to in the answer, and after proving its execution by Phillips, the attesting witness, offered it in evidence, and also proposed to prove that the debts secured by the mortgage were not paid by plaintiff, as agreed before the taking of the cotton, and that they took possession of the cotton under the mortgage and sold it to pay the debts thereby secured, etc.
To the introduction of all of which evidence, the plaintiff objected, because the defendants had no answer on file, and could only contest the damages.
Defendants insisted that they could introduce the evidence to lessen the damages, by showing that the cotton was sold under the mortgage and applied to the payment of plaintiff’s debts secured thereby, but the court ruled out the evidence.
Defendants then proposed to prove that the cotton in dispute was sold by them in New Orleans for but $258, and the proceeds applied to the credit of plaintiff, all in accordance with previous agreement, etc., which the court ruled out on the grounds that defendants had no answer in.
No further evidence being offered or introduced by the parties, the court, on motion of the plaintiff, and against the objection of defendants, instructed the jury:
“ That if they believed from the evidence that the property in question was at the time of suing out the writ herein, the property of the plaintiff, they will find for the plaintiff the value of the same, as they may believe the same was shown by the evidence; and that they also find whether the defendants took the property and appropriated the same to their own use, by giving a bond for the same.”
The jury returned the following verdict:
‘‘We, the jury, find the cotton in controversy to be the property of the plaintiff; that it is of the value of $246.60, and that defendants converted the same their own use.”
The court rendered a judgment in favor of plaintiff against defendants for $246.60 and costs.
The defendants filed a motion to set aside the verdict and for a new trial, on the grounds:
1. The court erred in striking from the files the substituted answer filed by them.
2. In refusing to permit them to introduce as evidence the mortgage, etc.
3. In refusing to permit them to prove that the cotton was sold and the proceeds applied to a debt due by plaintiff tp them, in accordance with an agreement between them and plaintiff.
4 In giving the instruction asked by plaintiff.
5. Verdict contrary to law and without evidence.
The motion was overruled, and the defendants took a bill of exceptions, setting out the facts above stated and appealed to this court.
1. The complaint, if it may be so named, is a sorry specimen of pleading, even under the code system.
Instead of concluding with a prayer for judgment, or as expressed in the code, “ a demand of the relief to which the plaintiff considers himself entitled ” (Gantt’s Dig., sec. 4562), it concludes with allegations which should have been made in a separate affidavit for the purpose of obtaining an order for the delivery of the property sued for. Gantt’s Dig., ch. 115.
The action, however, as indicated in the complaint, was for the recovery of the possession of specific personal property and damages for its detention, and a substitute, under the code practice, for the former action of replevin in the detinet. It was not an action like trover or trespass, for damages for the conversion of the cotton.
2. If it was material for the appellee to prove that the cotton was taken from the possession of the appellants by the the sheriff, and delivered to him, the writ or order for the delivery of the property, as it is called in the code, as well as the return of the sheriff thereon, should have been read in evidence, for the return, read in evidence on the trial, did not of itself identify the cotton, but referred to the “ within mentioned, property,” etc., meaning, it may be supposed, the property described in the process on which the return was made.
3. If it was material for the appellee to show that the cotton was redelivered to appellants, upon their executing bond, etc., the bond read in evidence did not, of itself, prove that fact.
Properly the bond should have been made part of the return of the sheriff, with a statement that, upon its execution, the property was restored to the appellants. Gantt’s Dig., sec. 5042, etc.
4. When appellee closed his case on the trial, he had proved his title to the cotton, its probable value, and that one of the appellants, Jetton, had, before suit, taken it from his farm; but he bad not proven that the other appellant was connectéd with the taking, or unlawfully detained the possession of the cotton at the time the suit was commenced against him. The complaint alleged the unlawful detention of the cotton by both of the defendants, and had the answer been in, disputing this allegation, the appellee could have re■covered, on the evidence introduced by him, against one of them only.
5. The first and second paragraphs of the answer filed by the appellants, and which the court struck from the files, were in bar, but the third paragraph related to the disability of the appellee, and was matter in abatement, if a defense at all.
It alleged that the appellee was, at the- institution of the suit, etc., non compos mentis, and had no guardian, etc.
“The action of a person judicially found to be of unsound mind must be brought by his guardian, or, if he has none, by bis next friend,” etc. Gantt’s Dig., sec. 4486.
It is not alleged in the paragraph that appellee had been judicially found to be insane before suit. If the appellee was, in fact, insane before suit, he should properly have sued by his next friend, though no inquest had been held before the proper court; but it is not certain that his failure to do so would be cause for abating the suit. 2 Saund. on Pl. and Ev., 318; 1 Chitty Pl., 18; 3 Rob. Pr., 240; 19 Wend., 650.
Be this as it may, the appellants did not pretend that this defense was set up in their former answer, and filed as it was after several continuances, and after the trial had commenced, it was properly stricken out by the court.
The first and second paragraphs, with the mortgage, etc., exhibited with the answer, set up a probable meritorious defense to the action.
There can be but little doubt, from all the facts' disclosed by the record, that both parties went into the trial under the impression that an answer was in, or that the cause was in some way at issue. The cause had been several times continued by consent. Both parties announced themselves ready •for trial, a jury was sworn, as if to try a cause and not to make an inquest of damages, one of the jurors was discharged by consent, and it was agreed that the eleven others should try the case; no default .had been taken against appellants for want of an answer; the appellee introduced his evidence to sustain the allegations of the complaint as if they were at issue; when the appellants first offered to prove the execution of their mortgage, no objection was made on the ground that they had no answer in, but it was insisted that an attesting witness should be called. In this attitude of the case, the court adjourned on the first day of the trial. On the next morning the substituted answer, as it is called, was filed, accompanied by the affidavit of one of the appellants that he verily believed that an answer of like import was in, and was not advised to the contrary until after the trial had commenced, etc. True, there is no record entry showing that an answer had been previously filed; but this may have been an omission of the clerk, or it may be that the counsel for appellants supposed he had filed the answer, when, in point of fact,, he had not, the case having been pending for several years, and repeatedly continued by consent. If the counsel for appellee knew that no answer had been filed before he consented to go into a trial, he should have asked for a judgment by default and an inquest. Gantt’s Dig., sec. 4212.
Under all the circumstances thus appearing, it would have been but the exercise of a sound and just discretion of the court to have permitted the answer, except the third paragraph, to remain on file. Then, if the appellee had' shown that he had gone into trial knowing that there was, in fact, no answer on1 file, and that he was surprised by the matters of defense Set up in the answer, and not prepared to meet them, the court should have given him such further time as might have seemed reasonable, even if the jury had to be discharged.
But the court having thought proper to strike out the answer, the after progress of the trial was a farce. On striking out the answer, a default should have been entered against the appellants for failure to answer, and an inquest taken.
The default would have admitted the right of action in the appellee, that he was the owner of the cotton and entitled to its possession, and that defendants wrongfully detained it. On the inquest appellee would have to prove the value of the Cotton, that he might take an alternative judgment for its value, in case its delivery could not be had (Gantt’s Dig., secs. 4682-4718), and such damages as he had sustained by its de tention; and appellants could introduce mitigating evidence, but none that would defeat the action. Hunt et al. v. Burton, 18 Ark., 188.
6. But treating the trial as a mere inquest, without the formal entry of a default, though the verdict was not in proper form, it found the value of the cotton, and the judgment was for its value, as in a suit like trover, for its conversion, which was not the gist of the action in this case, as made by the complaint.
The action was for the recovery of the property and damages for its detention, and the judgment should have been for the property on the verdict, or for its value, as ascertained by the jury, if its delivery could not be had. Gantt’s Dig., sec. 4718. For anything appearing to the contrary, by the evidence introduced on the part of the appellee, the appellants might have been in possession of the cotton when the verdict and judgment were rendered, and they had the right to satisfy the judgment by restoring it to the appellee, no damages being assessed for its detention.
It is true appellants offered to prove that they took possession of the cotton and sold it, and applied the proceeds to the payment of a debt due them from the appellee, but all this evidence was excluded by the court, and neither the verdict nor the judgment could properly be based on excluded evidence. Upon the whole record, we think the judgment should be reversed, and the cause remanded with instructions to the court to permit the appellants to refile their answer, except the third paragraph, and for a new trial. | [
-80,
112,
-68,
-115,
42,
-32,
40,
-40,
-61,
33,
-25,
87,
-3,
118,
25,
103,
-13,
121,
85,
105,
-52,
-110,
19,
-29,
-30,
-77,
-13,
-43,
-75,
77,
-28,
-10,
12,
36,
-62,
-112,
-62,
-64,
-59,
92,
-50,
9,
-67,
-20,
-67,
96,
60,
41,
22,
73,
81,
30,
-13,
46,
24,
91,
107,
108,
-17,
56,
-64,
-15,
-103,
15,
-8,
30,
-93,
38,
-104,
1,
-22,
78,
-104,
21,
0,
-24,
123,
-74,
-122,
-44,
37,
-117,
44,
102,
102,
32,
-123,
-17,
120,
-120,
47,
122,
-115,
6,
-80,
108,
75,
73,
-66,
-99,
54,
64,
-73,
-6,
-7,
-43,
21,
108,
7,
-49,
-106,
-105,
47,
54,
-98,
27,
-29,
34,
60,
97,
-51,
-30,
92,
39,
57,
-101,
-122,
-114
] |
Harrison, J.
This was a suit in equity in the Arkansas circuit court by Jerome B. Kennedy and Augustus Nevill against Cynthia A. Quartermous, as administratrix of John Gr. Quartermous, deceased, the minor heirs of the said John Gr. Quartermous and John R. Maxwell.
The complaint alleged: That the plaintiffs, on the 22d day of May, 1867, sold and conveyed by deed in fee simple to said John Gr. Quartermous, a certain storehouse and lot in the town of Be "Witt, the consideration for which sale being the undertaking and agreement of said Quartermous, to pay off and satisfy for them, on or before the 1st day of January, 1868, all debts owed by the late firm of Nevill & Kennedy and Reynolds & Nevill, made in the years 1860 and 1861. The sale being made with the verbal understanding and agreement that if the debts were not paid within the time named, the deed should be null and void.
That to secure the performance of his agreement, Quartermous, at the time, executed to them a mortgage on the storehouse and lot, the condition of which was as follows:
Provided, nevertheless, that if the said John Gr. Quartermous, bis heirs, executors, or administrators, shall pay and satisfy certain claims .and demands due by and from the said Augustus Nevill and A. H. Reynolds, partners and merchants under the firm name and style of Reynolds & Nevill, and also certain claims and demands due by and from Augustus Nevill and Jerome B. Kennedy, partners and merchants under the firm name and style of Nevill & Kennedy, to certain parties in the city of Louisville, Kentucky, to wit: Harry Naul & Co., about $300.83 ; Eeilding & Ereeman, $80, both debts contracted on the 10th day of April, 1861; to Henry Keith & Co., $202.70, more or less; also, to Crusher & McCreary, $65.50, more or less, both debts contracted on the 9th day of April, 1861; also, to Right & Bridgeford, their several amounts, $175.78, more or less, and due on the 17th day of May, 1861; also, $35.85, due on the 28th day of June, 1861; and all other claims or demands against the said firm of Reynolds & Nevill and Nevill & Kennedy, made and contracted in the years 1860 and 1861, of whatever description, to whomsoever the same may be due by and from the said firms of Reynolds & Nevill, and Nevill & Kennedy. Eow if the said John Gr. Quartermous shall well and truly pay off and satisfy the above mentioned claims or demands against the said firms above mentioned, or cause the same to be paid, on or before the 1st day of January 1868, then this mortgage shall be null and void, otherwise remain in full force and virtue.”
That Quartermous entered into possession of the property, and he and his partner, the said John R. Maxwell, occupied the same from the time he purchased until his death-in 1870', and Maxwell continued, and was then in the occupancy thereof.
That Quartermous paid none of the debts within the time stipulated, thereafter, or in his lifetime, and that all of said debts were still unpaid.
The prayer was that the sale should be set aside, and the deed and mortgage be annulled and canceled; the possession restored to the plaintiff; the defendants be required to pay rents, etc., and for general relief.
The administratrix and Maxwell claimed that the whole of the debts had been paid ; that Quartermous in his lifetime had paid part, and they, since his death, the remainder.
Nevill having become a bankrupt, the pleadings were amended by an order dismissing him from the cause, and making James A. Gribson, his assignee, a plaintiff in his stead.
The court, upon the hearing, decreed that the deed of conveyance should be set aside and canceled, and the possession of the property restored to the plaintiff; that Maxwell should pay $250 a year, rent, from the time of the sale, and the defendants pay costs. The defendants appealed.
The alleged agreement of the parties, when the trade was made, that unless the debts were paid within the time agreed upon, the deed for the property should be null and void, not being in writing, constituted no part of the contract. A contract cannot rest partly in writing and partly in parol; and where it has been reduced to writing, oral evidence of what passed previously, or at the time, cannot be admitted, to contradict or vary it; yet if such a stipulation had been incorporated in the mortgage, it could not have had the effect to deprive Quartermous of the right to redeem.
Judge Story says: “ So inseparable, indeed, is the equity of redemption from a mortgage, that it cannot be disannexed even by an express agreement of the parties. If, therefore, it should be expressly stipulated that, unless the money should be paid at a particular day, or by or to a particular person, the estate should be irredeemable, the stipulation would be utterly void.” 2 Stor. Eq. Jur., 1019.
It was proven that all the debts had been satisfied and discharged ; part by Quartermous, though not until after the 1st day of January, 1868, and the remainder of them since his death, by his administratrix and Maxwell, but not until after the suit was brought.
It appears, however, that some of those, settled by the administratrix and Maxwell, were satisfied by the payment of less than the whole amounts ; and it is objected that that was not such payment of them as was intended, or a performance of the condition of the mortgage.
The force of this objection it is difficult to see. The discharge of the plaintiff’s liability, and extinguishment of the debts were certainly a payment of them; and if the creditors were willing to receive less than the whole, it was their own privilege to do so, and the plaintiffs have no cause to complain.
Inasmuch as a portion of the debts were not paid until after the suit was brought, it is just and proper that the defendants should pay the costs in the court below, and the decree, so far as it adjudged costs against them, is right, and is to that extent affirmed; but in all things else it is wrong, and is reversed ; a.nd the complaint, being now without equity, must be dismissed, | [
-14,
111,
-92,
127,
74,
104,
10,
-120,
98,
35,
39,
115,
-17,
98,
17,
33,
-30,
-7,
100,
107,
101,
-74,
27,
98,
-62,
-77,
-79,
85,
-80,
109,
-19,
-41,
77,
52,
-56,
-115,
-58,
-64,
-63,
28,
78,
-87,
40,
108,
95,
64,
54,
57,
1,
79,
65,
46,
-9,
-87,
125,
79,
104,
46,
105,
-72,
80,
-22,
-102,
-99,
95,
23,
16,
118,
-102,
3,
-56,
-98,
-112,
21,
96,
-23,
114,
-74,
-42,
116,
13,
-55,
9,
102,
102,
18,
5,
-25,
-64,
-84,
110,
63,
-115,
-90,
-78,
104,
11,
9,
-66,
-100,
120,
16,
-121,
122,
-26,
-35,
88,
104,
-93,
-113,
-42,
-93,
13,
58,
-100,
3,
-13,
10,
56,
113,
-49,
96,
93,
65,
48,
-101,
14,
-11
] |
Harrison, J.
In the matter of the application of Greorge Trapnall, executor of Benjamin C. Trapnall, to suggest in this court the death of his testator, since the rendition in the chancery court of Pulaski county of the decree in the case of Hill and wife and others v. Benjamin C. Trapnall and another, and have the case revived here ag'ainst him as such executor, and be permitted to file the transcript, and take an appeal in the case, we will state that after consideration, we think this court can take no action before the appeal is taken and the case reaches here. We are, however, of the opinion that, inasmuch as the executor is entitled to the interests and rights which belonged to his testator, he can as effectually and to the same extent prosecute the appeal as his testator might have done. The remedy by appeal, we conceive to be analogous to that by writ of error, and we can see no good reason, if the executor may sue out a writ of error after the death of his testator, why he may not bring up his case for review, also by appeal.
We will suggest, as probably the most convenient, if not the best course to pursue in a case like the present, that the executor or administrator present a petition to the clerk, stating the facts, the rendition of the judgment or decree, the subsequent death of the testator or intestate, the probate of the will or appointment of the administrator, etc., and pray to be allowed to file the transcript and take the appeal in his own name; upon which the clerk should grant the appeal; file the transcript, and docket the case. Then if the other side wishes to controvert the fact of the death, or the representative character of the party bringing the appeal, he can be heard in this court. | [
-76,
108,
28,
-100,
42,
-30,
2,
54,
67,
107,
103,
-9,
-113,
-38,
0,
109,
-109,
43,
117,
123,
-51,
-73,
22,
33,
-14,
-13,
-41,
-35,
-78,
-19,
-10,
-33,
13,
48,
74,
69,
70,
-86,
67,
80,
-114,
9,
9,
-83,
-39,
-56,
50,
45,
86,
15,
81,
94,
-13,
42,
28,
-29,
104,
40,
-55,
-87,
80,
-111,
-114,
-115,
95,
23,
-80,
-57,
-104,
-123,
8,
42,
2,
25,
0,
-4,
113,
-74,
-126,
84,
43,
121,
40,
98,
-30,
3,
-95,
-17,
-112,
-118,
14,
10,
-99,
39,
-104,
24,
57,
-87,
-74,
31,
124,
-112,
7,
-12,
-26,
-43,
93,
44,
-124,
-49,
-106,
-75,
-1,
-94,
-122,
18,
-29,
75,
48,
113,
-50,
-54,
93,
-57,
57,
-101,
-106,
-110
] |
Harrison, J.
Sutton, Orlopp & Co. sued P. Cady and Henry Page, before a justice of the peace in Pulaski county, upon an account. The summons was served on Cady but not on Page; and at the return of the summons, judgment by default was taken against Cady and an alias summons issued against Page.
At the return of the alias summons, which was on the 10th day of July, 1873, Page appeared and applied for a> continuance of the case, which was granted; and on the 14th day of July, 1873, the time to which the same had been continued, he again appeared, and the case was, by consent of parties, postponed until the next day. On the next day, the 15th of July, Page failed to attend and judgment by default was rendered against him also.
On the 5th day of August following, Page, without having applied to have the judgment set aside, applied to the justice for an appeal, which the justice refused to allow; whereupon he applied to the judge of the circuit court for a rule on the justice to allow the appeal and to send up to that court a transcript of the proceedings, together with the papers in the case.
The justice in response to the rule returned and showed the foregoing facts; and upon consideration of the,sufficiency of the same, the court discharged the rule and dismissed the proceedings. From this order Page appealed. ■
The provisions of tbe statute regulating appeals from the judgments of justices of the peace are plain and explicit; that particularly relating to appeals from judgments by default, is as follows:
“ No appeal shall be taken from a judgment by default, unless within ten days after the rendering of such judgment, application shall have been made to the justice by the party aggrieved to set the same aside, and such application shall have been refused.” Gantt’s Digest, 3820.
The appellant, however, contends that having appeared at the return of the summons and obtained a continuance of the case, the judgment subsequently rendered was not a judgment by default. We are at a loss to see how that fact could, in the least, change or affect the case or the judgment to be rendered. The same consequence attended his failure to be present and contest the plaintiff’s demand on the last day, as would have followed such failure on the return day of the summons, had he not appeared and got a continuance of the case. His failure and neglect to defend the suit was an admission of his liability.
Burrill in his Law Dictionary gives this definition of default: “ Default. In practice, omission, neglect or failure. "When a defendant in an action at law omits to plead within the time allowed him for that purpose, or fails to appear on the trial, he is said to make default; and the judgment entered in the former case is technically called a judgment by default.”
Judgments by default, according to the common law practice, are either by non sum informatus, where, instead of entering a plea, the defendant’s attorney says he is not informed of any answer to be given to the action ; or, nil dicit, where it is rendered against the defendants for want of a plea.
A default may be after an appearance as well as before.
When no answer or defense is made to the action, no issue is formed between the parties, and there is no trial required to determine the defendant’s liabilities ; the only inquiry to be made is, as to the amount for which the judgment shall be rendered.
This, it was the duty of the justice to ascertain, and which he did in the same manner he would have done had the defendant not appeared,, on the return day of the summons. The appellant, not having complied with the statute by applying to have the judgment by default set aside, was not therefore entitled to an appeal therefrom; and his application to •the circuit court to compel the justice to allow the same was properly refused.
Judgment affirmed. | [
-76,
100,
-4,
-100,
40,
97,
32,
-78,
-55,
35,
119,
-45,
-83,
-45,
16,
123,
-29,
-39,
117,
123,
-60,
-77,
30,
65,
-30,
-77,
-61,
-43,
-75,
79,
-27,
-13,
12,
48,
106,
-107,
-58,
74,
-55,
24,
-122,
-115,
41,
-52,
-39,
73,
48,
120,
-48,
15,
97,
-98,
-14,
46,
24,
79,
-23,
44,
73,
63,
80,
-80,
-97,
5,
47,
4,
-77,
-106,
-104,
7,
-40,
30,
-112,
21,
16,
-7,
114,
-73,
6,
85,
107,
-103,
8,
98,
102,
0,
1,
-25,
-120,
-88,
110,
94,
-103,
-90,
-80,
56,
11,
75,
-74,
-99,
52,
20,
7,
-2,
102,
-35,
24,
44,
-123,
-54,
-106,
-77,
-97,
116,
-102,
11,
-25,
-77,
-80,
81,
-51,
-24,
92,
7,
51,
-101,
-114,
-40
] |
OPINION OP
THE COURT.
This was a suit brought by Abraham Wiley against Israel Robinson, before a justice of the peace, where Wiley obtained judgment for thirty-one dollars, from which Robinson appealed to the circuit court, and Wiley again obtained judgment for forty-five dollars, from which Robinson has appealed. The questions presented to this court, grow out of the bill of exceptions taken on the trial. The counsel for Robinson moved the court to exclude all the evidence given for Wiley, previous to a trial in another suit, wherein judgment was obtained by Robinson against Wiley. The account of Robinson upon which he obtained the judgment, is made a part of the bill of exceptions, and after carefully inspecting it, as well as the account of Wiley against Robinson, upon which he obtained the present judgment, we cannot perceive that they are for the same matters or embrace the same items, but are entirely different and distinct accounts. It is undoubtedly true, that if in the suit of Robinson against Wiley, the latter had brought his account forward, and had not withdrawn it during the trial, he could never afterwards have instituted a suit on it; but this does not appear to have been the case. 2 Strange, 1259; 1 Starkie, Ev. 223; 6 Term R. 607; 2 Johns. 210, 227. We have no doubt, however, that the court erred in refusing Robinson permission to prove the admissions or confessions of Wiley. 2 Starkie, Ev. 22. The 'question asked the witness was legal and proper, and the answer should have gone to the jury, and for this error the judgment must be reversed. Reversed. | [
48,
-24,
-20,
126,
24,
-96,
40,
-106,
65,
35,
-25,
83,
-23,
-46,
16,
111,
-12,
77,
80,
98,
-50,
39,
38,
-15,
-14,
-10,
-7,
-43,
-79,
76,
-26,
-41,
12,
48,
-54,
85,
-29,
74,
-19,
-12,
-114,
12,
-120,
104,
-39,
64,
48,
39,
82,
7,
113,
-114,
-77,
46,
24,
75,
-23,
44,
107,
-71,
-48,
48,
-114,
13,
109,
0,
-78,
55,
-101,
65,
-38,
60,
-48,
49,
1,
-8,
115,
-74,
-126,
84,
43,
-71,
40,
96,
102,
1,
105,
110,
-71,
-120,
62,
126,
-113,
-89,
-110,
64,
-53,
41,
-73,
-33,
119,
80,
6,
118,
-4,
93,
29,
36,
3,
-97,
-108,
-69,
-113,
60,
-104,
35,
-29,
19,
48,
113,
-59,
-30,
93,
70,
51,
-109,
-114,
-42
] |
Walker, J.
The facts necessary to a proper understanding of the questions of law to be considered, are :
That Wiley and Lawrence presented a claim against the •estate of Harden M. Prior, to Cloud, the administrator, for his approval and allowance, which he refused to allow, but waived the regular notice and appeared at the October term, 1866, of the probate court for Clark county, in which a trial was had, and the court, after hearing evidence, rendered judgment in favor of the claimants, Wiley and Lawrence, from which an appeal was prayed by Cloud and granted, and a transcript sent to tbe circuit court to which the appeal was taken. Afterwards, and before the sitting of the circuit court, the plaintiffs (appellees), by attorney, appeared before the clerk of the circuit court, in vacation, and asked that the case be dismissed, which was granted by the clerk and the case dismissed. Soon after this, the plaintiffs again presented their claim to the administrator of the estate of Prior, for allowance and classification, and the claim was disallowed; notice again waived and the parties appeared before the same-court at another term, and a second trial was had upon the same lost note, which was presented and upon which the first-trial and judgment were had. After the plaintiffs had closed the evidence on their part, the defendant introduced and offered in evidence a record of the proceedings and judgment in the first trial, and without formal pleadings insisted that the judgment was evidence of a former recovery upon the-same cause of action. Upon consideration of the case, the-probate court decided in favor of the defendant, and rendered judgment in his favor, from which the plaintiffs appealed to-the circuit court, and the case was sent to that court for hearing upon appeal. Both appeals were docketed.. The plaintiffs moved the court to strike the first appeal from the docket,, as improperly docketed, for the reason that the suit had been dismissed before the clerk in vacation; which motion was-sustained by the court and the case stricken from the docket, and the defendant excepted. And it appears that at this-point all further proceedings touching the first appeal ceased.
Errors were assigned by the appellant, which were sustained by the court, and a trial de novo had.
When the case came up for trial, the defendant moved the court to declare the law to be:
1. That the dismissal of the former case on the same cause of action had no legal effect.
2. That unless proof is offered of the contents of the note sued on, outside of the payee and assignee’s affidavit, judgment must be given for the defendant; which the court refused to do, and upon consideration of the evidence, rendered judgment for theniaintiffs, from which the defendant appealed.
The most material question presented for our consideration grows out of the defense of former recovery. Was the first judgment in force when the second suit was brought? If it was, there can be no question that the second suit upon the same cause of action could not be maintained. This involves a consideration of the effect of the appeal upon the judgment appealed from, the power of the appellee to dismiss an appeal, or to dismiss his case (he being the plaintiff in the cause) after judgment in his favor and an appeal taken by the defendant. There can be no question that the probate court had ample jurisdiction of the cause of action, and that a regular judgment was entered, from which an appeal was taken to the circuit court. The judgment, in the language of Blackstone, “is the sentence of the law pronounced by the court upon the matter contained in the record.” 3 Black. Com., 395. Final judgments are such as at once put an end to the action by declaring that the plaintiff has either entitled himself, or has not, to recover the remedy he sues for. Id., 398. And after which there is in fact no cause of action in existence, until the judgment is set aside by the court which rendered it, by an appropriate application for that purpose, or is reversed by some appellate tribunal before which it is taken by appeal or other appropriate process. The appeal taken from a judgment in nowise affects its validity. The right of appeal by a party who feels himself aggrieved by the judgment is clear, and one which, if regularly taken, the appellee has no power to defeat; because, if the appeal be simply dismissed, the judgment of the court from which the appeal is taken remains in as full force as if no appeal had been granted. Ashley v. Brasil et al., 1 Ark., 144.
It would.be a mockery to give to the defendant the right to appeal from a judgment rendered against him, and at the satne time to the plaintiff the right to dismiss the case, whether in vacation before the clerk or in term time before the court (which in effect was to dismiss the appeal), because the appeal was the only matter before the circuit court, or in regard to which the clerk could act. There was no cause of action pending in the- probate court. That had been disposed of, merged in a judgment. The only matter before the circuit court was the appeal; and although the plaintiffs in their application to dismiss, use the word ease instead of appeal, it was a motion in effect and in fact to dismiss the appeal; which we must hold the appellees had no power to do, and that it was error in the circuit court to order the case stricken from the docket, which action of the circuit court, whilst it left the appeal undisposed of, in. nowise affected the validity of the judgment of the probate court; and most clearly, whilst it so remained it was a bar to a recovery in any after suit upon the same cause of action; and consequently, the circuit court erred in refusing to pronounce the law as asked by the defendant in his first proposition and in rendering judgment for the plaintiffs; and for this error the judgment must be reversed :and set aside.
We have looked with some care into the after condition of this case, because there is a large sum of money involved, and the evidences of debt sufficient to warrant a recovery. Whilst we give effect to this valid defense of former recovery, we leave a valid and subsisting judgment in favor of the plaintiffs, rendered in the first suit, but with regard to which the defendant claims to have been aggrieved, and from which he has prayed an appeal, which has been stricken from the docket, and to which he excepted at the time, but with regard to which no appeal was taken. Consequently that case is not before us, and we deem it out of place to indicate the redress, if any, which the defendant may have in that case.
Let the judgment of the circuit court be reversed. | [
112,
108,
-4,
30,
8,
96,
34,
-106,
91,
67,
37,
83,
-81,
-45,
25,
125,
-14,
9,
81,
123,
-52,
-93,
18,
-127,
-46,
-77,
-56,
21,
-79,
108,
-12,
-10,
76,
48,
-118,
-43,
-62,
-62,
-59,
-16,
-114,
9,
25,
108,
-39,
-32,
60,
99,
86,
15,
113,
-66,
-13,
46,
29,
66,
104,
44,
79,
-92,
-48,
48,
-118,
5,
121,
22,
19,
-25,
-104,
-127,
-56,
56,
-108,
49,
-128,
-19,
115,
-74,
-122,
84,
99,
-103,
8,
102,
99,
34,
45,
-17,
-32,
-104,
47,
62,
29,
-90,
-112,
1,
11,
73,
-66,
29,
116,
16,
7,
126,
-18,
-44,
28,
44,
5,
-49,
-42,
-77,
-113,
118,
-100,
3,
-29,
-125,
48,
112,
-115,
98,
88,
71,
49,
-101,
-121,
-44
] |
Harrison, J.
On tbe 25tb of October, 1852, John Rogers sold and conveyed fo William M. Bennett and Joseph J. Walton, a lot of ground in the city of Port Smith, for the purchase money of which they gáve him jtheir three bonds, each for $1,000, 'payable at different times — the last, two years thereafter; and to secure their payment, they executed to him a mortgage on the lot, in which the wife of said Walton, Martha E. Walton, joined with her husband, but did not relinquish dower, ánd the same was duly acknowledged and recorded. Bennett and Walton went into possession and occupied the premises until the stores built thereon by them were, in the .month of September, 1860, destroyed by fire, since which time they have been unoccupied and vacant.
On the 19th of January, 1855, Rogers assigned the bond which fell due on the 25th of October, 1854, together with the mortgage, to John H. T. Main, the appellee.
On the 1st day of November, 1858, Bennett sold and conveyed his interest in the lot to Walton.
Walton, on the 28th of February, 1859, gave a mortgage on the west half of the lot to George S. Birnie, as security for a bond for- $5.000 payable on the 10th of February, 1860. Mrs. Walton joined also in this mortgage, and without relinquishing dower, and it was likewise duly acknowledged and recorded.
On the 10th of October, 1860, Walton gave Birnie another mortgage on the same half of the lot as a security for a note for $4.000, payable in two years. In this Mrs. Walton did not join, as in the other, but relinquished dower. It was also duly acknowledged and recorded. These debts due Birnie were reduced considerably by payments or credits which need not be particularly stated.
And on the 17th of October, 1860, Walton gave John Phelps a mortgage, in which his wife relinquished dower, on the same part of the lot to secure a note for $3,500, payable in two years, and which was also duly acknowledged and recorded.
"Walton, the 8th of July, 1859, sold and conveyed the east half of the lot to Bennett, and the appellee, on the 25th day of November, 1867, released the same from the first mortgage.
Walton died in 1861, intestate, and no administration was had upon his estate until after the bringing of the suit.
The appellee brought this suit, which was commenced on the 11th day of September, 1869, for a foreclosure of the first mortgage against the entire- lot, the bond held by him being the only one of those given for the purchase money remaining unpaid.
Bennett, Mrs. Walton the widow, and the heirs at law of Joseph J. Walton, Birnie, and Phelps, were made defendants.
After the suit was begun, William Y. Walton was appointed administrator of Joseph J. Walton, and was, upon his application, made a defendant.
The defendants, as defense to the plaintiff’s complaint, relied on the statute of limitations and the release by him of the east half of the lot; and two of them, Mrs. Walton and William Y. Walton, also one of the heirs, averred and set up as a defense to so much of Birnie’s counterclaim that the note for $4,000, secured by the mortgage of October 10, 1860, was given upon a usurious consideration.
The court decreed a foreclosure of all the mortgages against the west half of the lot, a sale thereof, and the payment of the mortgages in the order of their priority; and the payment by Bennett of any balance there might be of the plaintiff’s debt.
All the defendants except Bennett appealed.
That the remedy upon a bond, note, or simple contract for which a mortgage is given, is barred by the statute of limitations in no wise affects the right of the mortgagor to proceed in equity against the land mortgaged. To bar a suit for fore closure, there must be an adverse possession for such length of time as would bar an action of ejectment.
In this case no adverse holding or possession was alleged; on the contrary, it was admitted that the premises had been unoccupied since September, 1860. And though they may very properly be considered as all the time in the possession of the plaintiff, as there was no open and notorious denial of the mortgagee’s title, their possession was his. Harris v. King, 16 Ark., 122; Whiteside v. Jackson, 1 Wend., 418 ; Jackson v. Walker, 7 Cow., 637 ; Lingan v. Henderson, 1 Bland, 236 ; Moreton v. Harrison, id., 491; Driver v. Hudspeth, 16 Ala., 348 ; Relfe v. Relfe, 34 id., 500; Hunt v. Hunt, 14 Pick., 374; Newman v. Chapman, 2 Rand., 93 ; 2 Wash. Real Prop., 158.
Nor will the statute, where the remedy on the debt is barred, preclude the court of equity in the suit for foreclosure from rendering a decree against the mortgagor for any remainder of the debt not discharged by the sale. In such case the decree in personam is but an incident to the decree of foreclosure; and when a court of equity once takes jurisdiction of a case, it will retain it for the purpose of complete relief. 1 Story Eq. Jur., 64 K.
As to the effect of the release, we find the doctrine to be that, when land is charged with a burden, the charge is as to every part equal, and one part ought not to bear more than its due proportion; but the right of a mortgagee or other incumbrancer to release a part from the charge is admitted, subject to the condition, however, that he does not thereby injure or impair the right of another. Therefore, if with the knowledge of a subsequent mortgage upon a part, he releases a different portion and throws an additional burthen on such part, he discharges pro tanto the part bound by the later mortgage. Every one is required so to deal with his own as to do no unnecessary injury to another. Cheesebrough v. Millard, 1 Johns. Ch. 409; Guion v. Knapp, 6 Paige, 35; Blair v. Ward, 2 Stock., 119; 2 Smith’s Lead. Cas., 272.
It is not shown or alleged that when the release was made, the plaintiff had notice of the other -mortgages. It is admitted that they were duly recorded ; but the authorities all agree that the recording of a subsequent mortgage is not notice to the prior mortgagee, and that a release by him of a part of the premises covered by his mortgage, but not by the other, will not have the effect to discharge the remaining parties of any part of the debt. Taylor's Ex'rs v. Maris, 5 Rawl., 51; Stuyvesant v. Hona, 1 Sandf. Ch., 419; Blair v. Ward, 2 Stock., 119 ; George v. Wood, Allen, 80 ; Howard Ins. Co. v. Halsey, 4 Seld., 271; James v. Brown, 11 Mich., 25; 2 Smith’s Lead. Cas., 273.
The effect of recording a mortgage or other conveyance is-not retrospective, or its object to affect rights already vested and secured, and a mortgagee, after having his deed recorded, is not required to search the record from time to-time to see whether other incumbrances have been put upon the land, with which he is no wise concerned.
The doctrine we have mentioned is one of equity and not of positive law ; and to bind the conscience of the mortgagee when dealing with his own property, he must have such notice] or information as would make the act, inconsequence thereof,] inequitable and unjust.
The supreme court of Michigan, in the case of James v. Brown, above referred to, speaking upon this subject, says: “ It is the duty of a subsequent mortgagee, if he intends to claim any rights through the first mortgage, or that may affect the rights of the mortgagee under it, to give the holder thereof notice of his mortgage, that the first mortgagee may act with his own understandingly. If he does not, and the first mortgagee does with his mortgage what is lawful for him to do, before the .second mortgage was given, without knowledge of its existence, the injury is the result of the second mortgagee’s negligence in not giving notice. 'While the law requires every man to deal with his own so as not to injure another, it imposes a greater obligation on the other, to take care of his own ■.property, than on a stranger to take care of it for him. And to make it the duty of the first mortgagee to inqure before he “acts, lest he may injure some one, would reverse this rule, and ;<make it his duty to do for the second mortgagee what the Hatter should do for himself.”
The charge of usury against Birnie’s second mortgage, though it seems to have been sustained by the evidence, was not available as a defense. When the suit was brought, and when as well, it was determined in the court below, the statute of 1868, which in words declared : “ No plea of usury nor defense founded upon any allegation of usury shall be sustained in any .court of this state,” was in force.
This statute, as held in Woodruff v. Scruggs, 27 Ark., 26, which decision we approve, does not impair the obligation of the contract, but affects only the remedy, which the legislature may at pleasure change, and is mandatory.
Mrs. Walton was in no manner bound by the act of joining with her husband in the execution of the first two mortgages; her covenants by reason of her coverture being void ; but the mortgage the plaintiff sought to foreclose, being for the purchase money of the lot, which was purchased during her coverture, she was not entitled to dower against him; sec. 2214, Gantt’s Digest; and having in the last two relinquished her dower, the foreclosure of them was likewise against that. | [
-44,
105,
-52,
94,
122,
-24,
14,
-102,
123,
56,
-75,
115,
-103,
20,
25,
109,
1,
73,
-48,
104,
-89,
-77,
31,
47,
-46,
-45,
93,
-17,
-76,
93,
54,
-41,
72,
60,
74,
-103,
-94,
-62,
-49,
-36,
78,
-127,
41,
-31,
-33,
0,
60,
47,
48,
0,
65,
60,
-13,
57,
60,
104,
77,
47,
79,
-84,
80,
-6,
-72,
14,
95,
23,
16,
114,
-16,
23,
-64,
10,
-112,
53,
76,
-88,
114,
54,
70,
68,
85,
-49,
12,
104,
98,
112,
-27,
-19,
-64,
28,
6,
-98,
-115,
-121,
-26,
73,
34,
73,
62,
28,
-2,
0,
38,
-40,
-26,
-59,
93,
104,
-121,
-50,
-42,
-95,
13,
-87,
-116,
27,
-10,
70,
-96,
112,
-51,
-94,
93,
76,
117,
27,
-114,
-7
] |
English, C. J.
The appellant was- indicted in the circuit court of Poinsett county, for arson; the venue was changed, on his application, to the circuit court of Cross county, where he was tried on the plea of not guilty, and the jury found him guilty; he moved in arrest of judgment, which was overruled, and he was sentenced to the penitentiary. After sentence, he. offered to file a motion for a new trial, which the court refused him permission to do, and lie excepted, and obtained an appeal.
The cause assigned for the arrest of judgment is, that the facts charged 'in the indictment do not constitute a public offense, within the jurisdiction of the court.
The indictment,-after the usual caption, is as follows,:
“The grand jurors of Poinsett county, duly impaneled, sworn and charged, in the name and by the authority of the state of Arkansas, accuse George W. Mott of the crime of arson, committed as follows: That the said George W. Mott, on or about the 6th day of September, 1873, in the said county of Poinsett, did willfully and maliciously set fire to and burn the court-house of Poinsett county, in the town of Harrisburg, contrary to the form of the'statute in such case made and provided, and against the peace and dignity of the state of Arkansas.”
This is a code form of indictment upon sec. 1340, Gantt’s Dig., p. 338, which' provides that: “ If any person shall willfully and maliciously burn, or cause.'to be burned, ány state house, court house, prison, church, bridge, or any other public building, although not herein specially named, such person, on conviction, shall be adjudged.guilty of arson.”
Where private property is the subject of arson, the ownership of the structure burned must be alleged in the indictment, but this is not necessary in an indictment, like the one before us, for burning a public building. 2 Bish. Crim. Pr., sec. 53, 54; State v. Roe, 12 Vt., 93 ; Stevens v. Commonwealth, 4 Leigh, 683.
The word, “feloniously,” must, of course, occur in the indictment, where the offense is a felony, as it is at common law. Bish. Crim. Pr., sec. 57; 2 Wharton Crim. Law, sec. 1637.
By our statute, every person convicted' of arson, shall be imprisoned in the penitentiary for a period not less than two nor more than ten years. Gantt’s Dig., p. 339, see. 1343.
By statute, also, a felony is an offense of which the punishment is death or confinement in the penitentiary. Gantt’s Dig., p. 325, sec. 1225.
The appellant was indicted for a felony. The indictment charges that he willfully and maliciously set fire to and burned the court house, but the word, “ feloniously,” is omitted. In. the precedents, the words, feloniously, willfully and maliciously are used. Bish. Crim. Pr., sec. 50.
In Milan v. The State, 24 Ark., 348, this court held that in indictments for felonies, the criminal act must be charged to have been done feloniously.
And in Edwards v. The State, 25 Ark., 446, Mr. Justice Harrison said, that the authorities, with scarcely an exception, agree that it is absolutely necessary, in charging a felony, to charge that the act was feloniously done, citing numerous authorities. See also, State v. Josse, 2 Dev. & Bat., 297.
By the constitution of 1868 (art. I, sec. 9), under which the appellant was indicted, no person could be held to answer a criminal offense, unless on the presentment or indictment of a grand jury, except the offenses named, and arson is not one of the exceptions. Indictment is a common law term, and the courts have necessarily to look to the common law to ascertain its meaning. And whilst we do not doubt the power of the legislature to dispense with mere matters of form; the substance of a good common law indictment should be preserved. If one matter of substance may be dispensed with, another may be, and where is the limit to innovations ?
In Jane v. The Commonwealth, 3 Met., 18, it was held that in indictments for felonies, under the provisions of the criminal code of Kentucky, it was not necessary to use the word feloniously in charging the intent with which the offense was Committed. There the court seem to indicate that the legislature of Kentucky was under no constitutional limitation in prescribing what was material in indictments.
In the later case of Rhodus v. Commonwealth, 2 Duval, 159, the court said: “ On the subject of indictments our criminal 'code recognized and established the common law, rightly understood and rationally applied. It dispenses with form and requires substance only. And what is now substance at common law is substance under the code.”
Such, too, have been the tenor and effect of our decisions. And this court has repeatedly held, as above shown, that in indictments for felonies, the word “feloniously” is substantive in charging the offense — a word that has a fixed and “well defined legal meaning, understood by bench and bar* And we are not disposed to overrule these decisions, disregard long used precedents, and follow Kentucky into undefined and uncertain regions in the interpretation of her criminal code.
It may seem strange to one not a lawyer to hold an indictment bad, for want of a word, or for the use of a wrong word, but words are often important, and the transactions and destinies of man and even of nations have not unfrequently turned upon the use of particular words, and particularly legal expressions.
The indictment being bad, for the reason stated, it is not necessary to decide any other question in this case.
The judgment must be reversed, and the cause remanded to ‘the circuit court of Cross county, from' which the appeal was taken, with instructions that the appellant be held subject to a new indictment in the circuit court of Poinsett county. | [
-76,
106,
-8,
60,
8,
-64,
106,
24,
-62,
-93,
-92,
-45,
-23,
0,
4,
37,
35,
121,
84,
121,
-60,
-73,
19,
91,
112,
-13,
29,
-43,
60,
-55,
-25,
-41,
72,
32,
-54,
93,
7,
-32,
-59,
92,
-114,
13,
-23,
96,
88,
26,
60,
119,
118,
15,
97,
-66,
-5,
42,
21,
-53,
73,
44,
75,
-81,
64,
58,
-128,
93,
109,
22,
-95,
38,
-97,
3,
96,
60,
-104,
17,
1,
-4,
115,
-106,
6,
116,
111,
-103,
13,
32,
66,
32,
-3,
-89,
40,
-119,
15,
38,
-71,
-89,
24,
97,
89,
11,
-65,
-99,
119,
80,
14,
114,
-27,
-59,
112,
108,
-123,
-49,
-108,
-75,
-113,
108,
-98,
115,
-21,
15,
16,
116,
-51,
-74,
92,
-101,
113,
-69,
-116,
-108
] |
Walker, J.
Thomas Morrow, on the 11th day of July,. 1851, filed his application to locate a Lovely Donation claim upon the southwest quarter of section 12, in township 16-south, range two west, in the county of Chicot, Arkansas, as the land of the United States subject to entry; which he was-permitted by the land officers at. the Helena land office to do,, and upon which a patent for said quarter section issued to him from the United States. Thereafter, on the 9th day of Au-. gust, 1852, John A. Craig applied at the office of the board of swamp land commissioners for permission to purchase the- same quarter section of land as swamp and overflowed land, and was permitted to do so; and a certificate of purchase given to him; and by several assignments thereon, John A. Rotan, plaintiff’s intestate, acquired title to said land.
Conceding the validity of each of the entries, the sole question to be determined is, whether Rotan or Ringo who succeeded to the rights of Morrow had the best title.
It is conceded, on the part of Rotan that if the land in dispute was the property of the United States at the time the donation claim was located, then that Ringo’s title is best; but he insists that before that time, to wit, on the 28th day of September, 1850, the United States, by an act of congress of that date, granted to the state of Arkansas the swamp and overflowed lands within the limits of the state, whereby the state became the legal owner of said lands and possessed the sole power to sell and dispose of the same. That the land in dispute was swamp and overflowed land is fully proven.
The question thus presented has been repeatedly before this court, and has been so long and definitely settled, and under which titles have been acquired, that unless a very clear case was presented, we should adhere to our former decisions — the correctness of which, however, we do not question. In the cases of Fletcher v. Pool, 20 Ark., 100 ; Hempstead v. Underhill, id., 337, and Branch v. Mitchell, id., 431, we have held that, by force of the act of congress of September 28, 1850, there were granted to the state the swamp and overflowed lands within her limits; under which the state acquired title to all of the lands of that description from the date of the act. The evidence in the case clearly shows that the land in controversy was swamp and overflowed land, and consequently was embraced within the grant. Such being the case, the land, at the time Morrow was permitted to locate his donation claim upon it, was the property of the state of Arkansas and not of. the United States, and Morrow and Ringo, who held under him, acquired no title to the land. The purchase made by Craig of the state, through her swamp land agents, of this land as swamp land, which was regularly assigned to plaintiff’s intestate, is amply sufficient to vest title in his intestate.
The decree of the court below was in .favor of the complainant. Let it be affirmed. | [
116,
110,
-44,
127,
90,
-28,
62,
-102,
67,
-71,
100,
91,
105,
27,
21,
53,
-29,
-83,
113,
56,
-58,
-90,
115,
-28,
80,
-77,
-7,
79,
53,
-23,
36,
-41,
76,
40,
-54,
-43,
-60,
-28,
-51,
-100,
-82,
1,
-87,
72,
-39,
-64,
56,
47,
4,
15,
117,
-82,
-13,
46,
49,
67,
109,
46,
-55,
56,
81,
-80,
-101,
-108,
-1,
4,
1,
-25,
-104,
1,
-62,
56,
-112,
60,
5,
-24,
123,
38,
-106,
117,
7,
-103,
-104,
98,
102,
97,
-4,
-17,
-80,
-104,
14,
-97,
-115,
-90,
-122,
88,
74,
104,
-98,
-100,
95,
20,
70,
118,
-31,
-59,
21,
108,
39,
-114,
-42,
-89,
47,
-84,
-116,
19,
-61,
43,
48,
116,
-49,
-26,
93,
71,
54,
-102,
-114,
-35
] |
On the 2d day of February, 1872, William S. Stidham and Emma C., his wife, filed their complaint in equity in the circuit court of Lincoln county, against the three children of John I. Matthews, who were minors, and John H. Fry, in which they allege that about the 18th day of January, 1859, Emma 0. intermarried with John I. Matthews, and lived with him as her lawful husband until his death, on the 11th day of February, 1864, who died intestate, leaving Emma C. his widow, and the three minor defendants his heirs at law.
That Emma 0., on the 24th day of March, 1868, intermarried with William S. Stidham. That “ during the coverture of the said Emma 0. and John I. Matthews,” he was seized and possessed of an estate of inheritance in certain land described in the complaint, lying in Lincoln county, Arkansas, containing two hundred acres. That Emma C., as widow of John I. Matthews, never had dower assigned to her in the real estate, or in any other property of John I. Matthews, deceased, to which she had a right as such widow. That the three minor defendants, Willie Gr. Matthews, Ida B. Matthews and Mattie J. Matthews, are heirs at law of John I. Matthews, deceased.
That defendant Fry is in possession of the land, and holds the same under some pretended title not known to complainants. But if he derived title by virtue of any deed of conveyance from said John I. Matthews, they averred that the right to dower had not been relinquished in the land by Emma C., either by deed or otherwise. Prayer that Fry and the children of Matthews be made defendants, etc., and that dower in the land be decreed and set apart to Emma C.
The minor defendants having been served with process, a guardian ad litem was appointed for them, and he answered in thé usual form, asking that their interest might be protected by the court; that by reason of their tender age, they knew nothing of the matters claimed in the bill.
Defendant Fry answered, admitting the marriage of Emma C. with John I. Matthews, and that she was his widow as alleged in the complaint, and that John I. Matthews departed this life as stated (February 11, 1864). Denies that John I. Matthews was ever seized and possessed of the lands. That he purchased the lands in the year 1863, from said John I. Matthews, and has fully paid the entire purchase money for the lands; that the title to said lands was in Stephen Matthews, the father of John I. Matthews, and the last of the notes for the purchase money of said land was transferred to said Stephen Matthews, and respondent paid the same to him and received from said Stephen and his wife an absolute deed in fee simple for said lands; that respondent was informed by Stephen Matthews that he held the title to said lands, and had never conveyed the same to the said John I. Matthews, and the plaintiff’s claim of dower was a fraud upon respondent’s rights. Again, positively denies the seizin of John I. Matthews, and states that there was no record evidence of title to said lands in the said John I. Matthews, in the county of Bradley, plaintiff well knowing all the time that defendant took actual possession of the lands in the year 1863, and has had continuous, uninterrupted and adverse possession of the same, from the time he first took possession of the land to the time of answering. Claims the benefit of the statute of limitations, seven years adverse occupancy since plaintiff’s dower right accrued. The answer concludes with a demurring clause.
The facts proven, and as to which there was testimony tend ing to prove, are: That plaintiff’s, Stidham and wife, were married before the suit was brought; that Mrs. Stidham was the wife of John I. Matthews, and never lived on the land in controversy, where Ery now lives; that Fry has lived there seven or eight years; that Stephen Matthews had stated that he had sold the land to John I. some time in 1862 ; that John I. Matthews and his wife moved off the land, giving Fry possession, after selling it to him, and moved to the Lucas place in Drew county. This occurred about eight months before the death of John I. Matthews; that Mrs. Stidham knew of Fry’s possession of the land all the while, he remaining in possession from his purchase from John I. Matthews until-now. Fry took possession in 1863, having purchased the land of John I. Matthews (a witness, Barnett, says) from John I. Matthews and his wife. This witness states that he wrote the title bond also, that he has no distinct recollection of the contents of the title bond, or how it was signed. Does not recollect whether Mrs. Matthews signed it or not. But John I. Matthews called on witness to write an instrument of writing connected with this land, and after he wrote it he thought John I. Matthews signed it, but does not recollect whether Mrs. Matthews signed it or not; it was an ordinary title bond to secure purchase money on land. This witness stated that he had been Mrs. Matthews’ agent to pay her taxes for two years after her husband’s death, and paid taxes on her lands. She never claimed dower in Fry’s land. Mrs. Stidham denies ever signing the title bond. No witness even pretends that she ever relinquished dower by signing, and upon privy examination by a proper officer, acknowledged it, and as she could relinquish dower in no other mode, we shall not further comment upon the testimony, as to whether she signed the title bond or not, of which the testimony of Barnett is the strongest specimen.
It is proved, by the exhibition of the deed, that Stephen Matthews and his wife, on the 4th of March, 1862, conveyed these lands in controversy by deed, with covenants of warranty, to John Isaac Matthews, Mrs. Stidham’s former husband. This deed was duly acknowledged before O. P. Scudder, a justice of the peace, but was not recorded or filed for record, until the 18th day of January, 1872, when it was filed for record in the office of the recorder of Lincoln county, Arkansas, and in point of fact, when they purchased the land first and took possession under John I. Matthews, the title by which he held was unrecorded.
W. S. Stidham and his wife both testified in the case. Stidham details a eoversation with Fry, in which he demanded of Fry his wife’s dower. That Fry claimed to have a bond for title from Mrs. Stidham and John I. Matthews, her former husband. Stidham told him his wife denied ever making him a title. The witness then states, “ He then asked me if she denied selling him five acres of land- there. (The conversation was detailed as having occurred at Fry’s house on the land.) I answered him that she did not deny it; I told him that Stephen Matthews persuaded her to let him have the five acres; my wife says that she thinks that she signed some kind of a paper relating to that five acres. Mr. Fry then said that my wife was more anxious to sell the whole place to him than John I. Matthews was; I answered Mr. Fry that she said she refused to sell it.” John H. Fry, the defendant, testified that he purchased the land of John I. Matthews, in the year 1863, except five acres of the same tract, gave fifteen hundred and forty dollars for the whole amount of land involved in this, suit, paid one thousand and forty dollars down in cash, and gave his note for the balance to John I. Matthews, payable the Christmas following• — -Christmas, 1863. Before the note fell due, John I. Matthews came to the witness and told him he had traded the note to his father, Stephen Matthews, and he told witness the title to his land would come through his father. Witness paid the note to Stephen Matthews, and received from him what the witness calls a deed, which he exhibits with his deposition, in words following :
State of Arkansas — Bradley County — Received of John H. Ery, one thousand dollars, in full payment for the northeast quarter of northeast quarter of section thirty-three (83), and the southwest quarter of the southeast quarter of section twenty-seven (27), and the northwest quarter of section thirty-four ; and the southeast quarter of northeast quarter of section thirty-three, all in township nine south, of range ten (10) west, containing two hundred acres, more or less, according to the United States surveys, the title of which we warrant good to John H. Ery, his heirs and assigns, etc., forever, to which we bind ourselves, heirs, assigns, etc., and hereto set our hands and seals this 10th of May, 1867.
Stephen Matthews, [seal.]
Kezia Matthews, [seal.]
This paper had an informal certificate of acknowledgment, which states that Matthews and his wife appeared and “ each and severally acknowledged that they executed the foregoing deed in good faith, and she saith, that she was not influenced thereto by threats or fear of her husband.” The paper was recorded. The deed is copied literally above, as is the substantial part of the so-called acknowledgment. Were this paper material in the case, we would feel called upon to scrutinize the certificate of acknowledgment with more care. We do not wish our silence to be construed into approval. It is worthy of remark too, that while this paper really describes two hundred and eighty acres of land, it calls it two hundred.
It is further remarkable, that Stephen Matthews’ deed to John I. Matthews, above referred to, of March 4, 1862, con veys only a part of the 'land described in this receipt of Stephen Matthews to Ery, to-wit: northwest quarter of section thirty-four, 160 acres; and the northeast quarter of the northeast quarter of section thirty-three; that is the description of the land for dower in which Mrs. Stidham sues. Perhaps that additional eighty acres in Stephen Matthews’ paper, may explain the statement of John I. Matthews to Ery, that the title must come from his father: be that as it mny, if John I. Matthews was seized of the land, he could not convey his wife’s dower by deed, much less admit it away in a loose conversation.
Ery further testifies that when he bought the property, John I. Matthews and his wife, the plaintiff, Mrs. Stidham, were residing on it. That-he took possession of the property on June 23, 1863, and had remained in continuous possession of it ever since, and paid all taxes, and claimed it as his own, and never recognized any other’s right. That Mrs. Stidham knew of this possession, for she moved out as witness moved in, and was at his house frequently, and was staying within a mile. The title bond which witness received from John I. Matthews and his wife for the land, he gave up to Stephen Matthews when he took the deed exhibited with this deposition, and since his death it has been looked for, and cannot be found.
Ery further testifies that he purchased five acres of the land in controversy, in February, 1863, and received from Mrs. Matthews, now Mrs. Emma C. Stidham, and “ Stephen Matthews,” a title bond for the five acres. He returned this title bond to Stephen Matthews when he made the deed witness speaks of. The consideration for the five acres was forty dollars, which witness paid John I. Matthews when he came home; he was in the army when his wife signed the title bond for the five acres.
Mrs. Stidham testifies that she recollects when the land was sold to Ery ; but does not recollect signing any papers in regard to the transfer of the land, and knows she never did sign any paper to m'ake a transfer of that land; if she had, she certainly would have remembered it. Prior to the sale of the place, recollects signing some kind of paper, but does not know what it was, but supposes that the paper signed was connected with the sale of the five acres of land sold to Mr. Ery. This was some three or four months prior to the sale of the land by John I. Matthews to Mr. Ery. This land in controversy was witness’ home at the time it was sold, and was the property of her former husband. She was not willing for the place to be sold; was bitterly opposed to it.
As to the five acres of land spoken of by the witness, as to which Mrs. Stidham is admitted to have signed a title bond, we might consider that separately, and' except' it from the decree. But as the proof utterly fails to show, even Ery himself does not swear, that she was ever examined as to the execution of it, separately and apart from her husband, we cannot regard it.
Our statute on the subject of relinquishment of dower and conveyance of the wife’s land is as follows: “ A married woman may relinquish her dower in any real estate of her husband by joining with him in a deed of conveyance thereof, and acknowledging the same in the manner hereinafter prescribed. Gantt’s Dig., secs. 838, 839. Gantt’s Digest provides that the wife may convey her lands by deed executed by herself and husband, and acknowledged in like manner. Sec. 849, Gantt’s Dig., provides that the conveyance of any real estate by any married woman, or the relinquishment of dower in any of her husband’s real estate, shall be authenticated, and the title passed, by such married woman voluntarily appearing before the proper court, or officer, and, in absense of her husband, declaring that she had of her own free will executed the deed or instrument in question, or that she had signed the relinquishment therein contained and set forth, without compulsion or undue influence of her husband.” •
1. It is not the executing a relinquishment of dower, or deed, that passes dower or title in the wife’s lands alone, it is the privy examination which gives the act validity, as well as establishes its execution; however, this acknowledgment is not good without joining her husband in the deed. Witter v. Biscoe, 13 Ark., 423.
2. We cannot' regard it, because the answer nowhere sets up this matter, or relies upon it. While we adhere to the rule announced in Hanks v. Harris, ante, p. 323: That where the proof shows a party is entitled to relief, and the pleadings are defective, where the point is for the first time made in this court, we will regard the pleadings as having been amended, as it could have been done below, if the objection had been made in apt time; still we cannot regard this title bond, for, according to the proof, an amendment could not have been made of avail, for the reason first above given.
Furthermore, it is shown to be a title bond, which is an ex-ecutory contract, and the statute which authorizes married women to execute deeds of conveyance and relinquishment of dower is an enabling statute, but in derogation of the common law, and must receive, if not a strict, at least a liberal construction. The statute does not authorize married women to make executory contracts for future conveyances; that is at war with the letter and the spirit of the statute, which intends, while removing a common law disability to convey, to throw around a married woman its protection from the duress, or undue influence of her husband.
If she was- allowed to make and acknowledge such a contract as this, when does her title pass ? Must she be privily examined when she promises to convey in future, or when she conveys, or both? If on-both occasions, when does title pass ?
Even after the death of the husband, and before assignment of dower, the widow cannot transfer her dower to any one, except to one having the legal title. Carnall v. Wilson, 21 Ark., 62. Here, if we were to give effect to this title bond for five acres, we would have the legal title in the husband, and the possibility of dower relinquished to a stranger by his wife.
The statute requires that the wife shall join the husband in the deed. Here she joined Stephen Matthews, the father, in a title bond as to the five acres. We cannot give effect to any mode of conveying a wife’s interest in real estate, not in substantial accord with the statute. Although a substantial compliance with the statute is sufficient, it must exist. Tubbs v. Gatewood, 26 Ark., 128.
Without joining in the deed, the acknowledgment alone will not be sufficient to effect a relinquishment of dower. See Biscoe v. Miller, ubi supra. So where the wife joins the husband in the deed but does not acknowledge it, no title passes. Elliot v. Pearce, 20 Ark., 508; Harrod v. Myers, 21 id., 601.
The claim of the defense that John I. Matthews’ deed was not upon record is futile. We do not deem it necessary, where it is established that the husband was seized during the coverture, to inquire whether or not there can be such a thing as an innocent purchaser without notice, where the husband’s deed is not of record, and there is nothing to put the purchaser on inquiry, for the question does not arise here.
Ery, as he admits, himself, found John I. Matthews in possession ; he bought from him, paid near two-thirds of the purchase money down, took-possession under him. In such case where the vendor holds by deed, the purchaser is affected with notice of that deed, with all it contains of material recitals. 3 Washb. R. Prop., 86 (mar. page 467), sec. 24, and. cases cited in note 2.
Mr. Washburn says: “So a party who traces his title through a regularly executed deed of conveyance is concluded by its recitals.”
In Carver v. Jackson, 4 Pet., 79, the supreme court of the United States held that the recitals of a lease in a deed of release estop all persons claiming under the parties to the deed of release from denying the existence of the lease, or the possession under it, which is necessary to give the release its intended operation. See also Scott v. Douglass, 7 Ohio, 362; 5 id., 194; Jackson v. Ireland, 3 Wend., 99 ; Tartor v. Hall, 3 Cal., 263.
Both parties here trace their title to Stephen Matthews. Even if we should regard the paper Erv relies on as a deed from Stephen Matthews, and that very peculiar certificate as sufficient evidence of its execution, still being junior by some years, it must yield to the elder deed.
The only remaining ground of defense is the statute of limitations. As it is the duty of the heir to assign dower, his possession is never regarded as adverse, for he cannot be allowed to take advantage of his own wrong; and at common law the ordinary statute of limitation did not apply to dower. 4 Kent Com., 70.
But as to strangers or a purchaser, it has been held that the statute of limitation may be pleaded against a dower right, and this latter rule was adopted as law in this state, in Danley v. Danley, 22 Ark., 263, and we are not disposed to review it if we doubted its correctness, for decisions affecting real estate especially, become laws of property, and a rule when once established affecting titles to property should be left to legislative change where the effect will be prospective.
In point of fact, Mrs. Stidham was not barred; for seven years had not elapsed since her cause of action accrued, deducting the period from the 11th day of February, 1864, the date of her husband’s death, until the war ended, which we have decided must be done. Metropolitan Bank v. Gordon, 28 Ark., 115 ; Randolph v. Ward, ante, p. 238.
The court below having on -the hearing dismissed complainant’s bill, the decree of said court is reversed, and the cause will be remanded, with instructions to decree to complainant, Emma C. Stidham, her dower in the lands described in the bill, and for further proceedings as the law directs.
Hon. Wm. M. Harrison did not sit in this case. | [
-80,
109,
-59,
60,
-22,
-32,
42,
-104,
-30,
-127,
101,
115,
-23,
-38,
17,
33,
98,
41,
81,
105,
-58,
-73,
22,
98,
82,
-77,
-87,
-35,
-78,
-51,
101,
-42,
73,
40,
-54,
81,
66,
-24,
-83,
24,
-122,
0,
-88,
101,
89,
64,
52,
-21,
68,
15,
85,
-66,
-73,
43,
71,
78,
73,
44,
79,
44,
81,
112,
-114,
70,
93,
2,
18,
38,
-110,
5,
-54,
28,
-112,
17,
8,
-8,
51,
-90,
-58,
84,
7,
-103,
9,
48,
102,
34,
-27,
-1,
-80,
-116,
110,
62,
-103,
-89,
-30,
97,
91,
73,
-65,
-107,
121,
-112,
-110,
-16,
-18,
79,
20,
104,
36,
-49,
-106,
-95,
28,
-70,
-116,
19,
-13,
31,
48,
113,
-49,
-30,
121,
67,
112,
-109,
-113,
-13
] |
Walker, J.
Suit was brought by Newman, as executor of •the estate of Walworth, on a note executed by Henry to Eel-lows & Co., who assigned it to Walworth before maturity.
The defense interposed by Henry is want of consideration. The case was submitted to the court sitting as a jury, who, after having heard the evidence, found the facts to be: That Henry was indebted to Fellows & Co., $4,380.85, evidenced by note dated March 10, 1861, due ten months after; that after the note became due, Henry, at the request and by agreement with Fellows & Co., executed the $4,000 note, which was to be substituted for and in payment of the note for $4,380.85, the difference between the notes to be settled between them in another way; that the note for $4,380.85 had before that been transferred to Walworth, of which Henry had no notice; that after Fellows & Co. received the note of $4,000, they transferred it to Walworth, notifying him-•of the manner in which they held it; that Walworth never •surrendered the note for $4380.85, and that the same is now in suit, and that Walworth’s representative is now seeking to collect both notes.
And upon the state of facts so found, the court declared the law applicable to the case to be:
1. That to constitute payment, there must be privity between the parties, and an extinction of the original debt.
2. That Walworth could acquire no rights in the $4,000 note, without positively surrendering the $4,380.85 note.
3. That Fellows & Co. had no right to put the $4,000 note in circulation without taking up the note for $4,380.85.
4. That Fellows & Co., if the agent of Henry, were such for a specific purpose, and could not bind Henry by any act outside of their authority.
5. That if the note sued on was without consideration, or the consideration had failed, in whole or in part, or if it was fraudulently put in circulation, the plaintiff, to protect him self against the equitable defense of the defendant, must show that he acquired it before it became due; that he had no-notice, express or implied, of the equities of the maker, and that he received the paper in the course of trade.
To which finding of the evidence and rulings of the law,, the plaintiff excepted. Judgment was rendered for defendant,, and plaintiff appealed.
After a careful examination of the evidence, we think that .the finding of the facts by the court are correct, but if doubtful, we should not, upon a question as to the weight of evidence, distrust the finding or the judgment rendered upon it on that account.
The rulings of the law by the court were not only correct,, but had a direct application to the state of case presented by the evidence.
The evidence shows that the note for $4,000 was sent toEellows & C-o., by Henry, to be received as payment for the-first note executed by him to them; that before that time,, and without the knowledge of Henry, Eellows & Co. had assigned the note for $4,380.85 to Walworth, after which a payment to Eellows & Co. would not have discharged the= assigned note. Block v. Kirtland, 21 Ark., 393. There had ceased to be a privity of contract between Henry and Eellows- & Co. And therefore, the first ruling of the law by the court was correct.
The second, third and fourth rulings of the law, considered together, are: That if the note was placed in the hands of Eellows & Co. for a specific purpose, and under instruction, that Eellows & Co. could not, in any disposition of them, bind. Henry beyond the scope of such instructions or authority; that-they had no right to put the $4,000 note in circulation without first taking up the $4,380.85 note, and that Walworth, by 'the assignment, with a knowledge of the facts, acquired no- greater authority to withhold the note for $4,380.85, or over the note for $4,000, than Eellows & Co. had. The proof upon this point is, that the note of $4,000 was sent by mail by Henry to Eellows, with instructions to be used and applied for a particular purpose.
Henry deposed that Eellows & Co. proposed^ by letter, that he should renew his note for $4,380.85, by giving them a new note for $4,000, in payment of the first, the difference between the notes to be settled otherwise between them. Henry accepted the proposition, and forwarded the note to Eellows & Co., supposing at the time that they were still the holders of the note for $4,380.85, with the express understanding that the first note should be delivered to him. It is shown, that at the time the note for $4,000 was received by Eellows & Co., they had parted with the first note, and in fact, held no debt against Henry, had no right to the note, and could neither receive satisfaction of it nor deliver it to Henry, and as a consequence their power and control over the $4,000 note ceased, or in fact never existed. It was to become their note upon a condition, which they did not comply with, and in fact had not the power to comply with. According to the evidence of Logan, one of the firm, it was expressly agreed between the firm and Walworth, that Walworth, to whom they assigned the note for $4,000, would receive it in payment of that much of the $4,380.85, but was to hold the latter note until Eellows should pay to him a note for $2,687.49 they owed to him, which agreement was in direct violation of the terms upon which Henry placed the $4,000 note in the hands of Eellows & Co.; all of which was well known to Walworth.
And it was under this state of case found to exist, that the court gave the fifth ruling, to the effect that Walworth, the assignee of the $4,000, could only protect himself as a holder of the note received in the course of trade, as an innocent holder for a valuable consideration.
In this ruling of the court there was no error.
No one by the mere act of assignment can transfer a greater interest than he has, nor make that good which is vicious and unlawful. The assignment, whether by indorsement or delivery, but conveys the legal title and gives the right of action, and does not itself bar the equities. The rule which cuts them off is a rule of commercial policy, to facilitate trade and sustain commercial credit, and applies only where the note or bill has passed by indorsement or by delivery, into the hands of the assignee in the due course of trade, upon a consideration, and without notice of the existing grounds of defense as between maker and payee. Bertrand v. Barkman, 13 Ark., 150; Coddington v. Bay, 20 Johns., 638; Edwards on Bills and Notes, p. 56.
It appears from the evidence that the executor of Walworth has brought suit upon the first note for $4,380.85, which, so far as is disclosed by the evidence in this case, was received in the course of trade, and upon which he may have his recovery.
Finding no error in the proceedings and judgment in this case, the same is affirmed. | [
114,
104,
-48,
94,
-54,
112,
42,
58,
-30,
98,
55,
83,
-23,
67,
65,
37,
99,
41,
85,
107,
101,
-77,
47,
67,
-14,
-13,
-7,
-107,
-75,
-52,
-27,
-9,
12,
48,
-54,
-107,
70,
-54,
-63,
20,
-50,
12,
-88,
-59,
-7,
-120,
48,
-31,
116,
75,
117,
-114,
-69,
42,
30,
95,
109,
44,
105,
29,
-48,
-72,
-98,
77,
63,
23,
-109,
39,
-100,
79,
-54,
14,
-112,
17,
-120,
-23,
118,
-90,
6,
84,
39,
-104,
8,
98,
102,
17,
-63,
111,
-104,
-120,
47,
102,
13,
-121,
-48,
76,
91,
43,
-105,
-99,
63,
16,
7,
118,
-2,
29,
24,
104,
1,
-97,
-90,
-110,
-82,
126,
-100,
-121,
-25,
-103,
48,
80,
-50,
35,
92,
101,
56,
-101,
-114,
-34
] |
English, 0. J.
James P. Clayton brought an action in the Desha circuit court, March 80, 1870, against Vm. A. Redmond and Thomas E. Leverett, for a steam engine.
The complaint alleged, in substance, that the plaintiff was the owner and entitled to the possession of a steam engine on the Montgomery or Stockholm plantation, of the value of $250, of which the defendants had possession without right, and unlawfully detained the same, etc.
Prayer of judgment for the engine, and $100 damages for its detention.
An affidavit, in the form prescribed by the statute, was attached to the complaint, but no writ appears to .have issued.
At the return term, Redmond and Leverett filed a disclaimer, in which they stated that they held possession of the land on which the engine was situated, only as tenants of T. H. Kennedy & Co., and had no other interest in the subject matter of the suit, and asked that their landlords be made defendants, and they be discharged. Whereupon, the record shows that-T. H. Kennedy & Co., appeared by attorney, and were made defendants and filed their answer.
In the answer, they denied that they unlawfully detained the engine. They also denied that the plaintiff was the owner or entitled to the possession of the engine.
The cause was submitted to the court, sitting as a jury, and the court found that the engine was the property of the plaintiff, and that he was entitled to the possession of it, and rendered judgment against Kennedy & Co. for engine and costs, and ordered a writ of possession and execution for costs.
The defendants moved for a new. trial, which yvas refused and they took a bill of exceptions and appealed.
On the trial the appellee, after proving its execution, offered in- evidence the following bill of sale:
“ Received of James P. Clayton, the sum of thirty dollars in full, for the purchase of a certain saw mill, sold by me as constable of Wilkinson township, on this day, under execution to me directed, against Russell Montgomery, and in favor of J. J. Brooks and David Thilman; saw mill being on the Montgomery or Stockholm place, in Desha county, Arkansas. I, as such constable, hereby sell, assign, transfer and convey, and set over to the said James P. Clayton, all the interest of the said Montgomery in or to said saw mill. Given under my hand as such constable this 18th day of May 1869.
“John P. Singleton, [Seal]
“ Constable of Wilkinson Township, Desha County, Ark.”
To the. introduction of this bill of sale as evidence, the appellants objected, and the court overruled the objection.
The appellee was permitted to testify, against the objection of the appellants, “that at a sale made by Singleton, constable, under an execution in favor of J. J. Brooks and David Thilman against Russell Montgomery, on the 18th of May, 1869, he bought the engine and saw mill in question for $30. He did not know whether the property was present at the sale or not, as he bought by agent; terms of sale, cash. The saw mill was on the place known as the Montgomery place. It was a portable engine on wheels, and could be moved from place to place.”
James Murphy, a witness for appellee, was permitted to testify as follows, against the objection of appellants:
“ He attended the sale. The engine was not exhibited at the time of sale, but it was on the Montgomery place, some five miles from the court house. He believed it belonged to Russell and A. B. Montgomery, or at least it was on the plantation formerly claimed or owned by them. The engine was a portable one, on wheels. Singleton sold the engine and mill irons, as constable, at the court house door, and the plaintiff (Clayton) became the purchaser. He (witness) believed that defendants (appellants) claim ownership of the land; at least it is understood that they hold possession of the land on which the engine is and was.”
Singleton, the constable, was permitted, against the objection of appellants, to testify as follows:
“ That he, as constable, made the bill of sale above copied. That the saw mill, in the bill of sale, was meant, or intended to be, an engine and some old saw mill irons which had been burned. The engine was on wheels. He sold at the court house door. The property was on the plantation. He never moved it. It was levied on as the property of Eussell Montgomery. He believed he sent a deputy to make the levy, but he advertised and sold the engine to the plaintiff (appellee) as the highest bidder.”
The above was all the evidence introduced by the appellee, and the appellants introduced none.
The court found the facts to be as follows:
“ That the engine and saw mill irons mentioned in the complaint are personal property, and that he (plaintiff) bought them of John P. Singleton, as constable of Desha county, Arkansas, on the 18th day of May, 1869, for a valuable consideration, namely, $30, as evidenced by the bill of sale of that date.
“And the court further finds that the defendants, S. H. Kennedy & Co., never had any right, title, or interest in the said engine and saw mill.”
The court also declared the law governing the case to be:
“1. That to entitle the defendants to the benefit of any irregularities or defects in the sale of the constable, Singleton, they must introduce evidence tending to show title in themselves.
“2. That a bill of sale executed'by an officer incompliance with sec. 65, ch. 68, Grould’s Digest, is prima fade evidence of the title to personal property, and he who would wish to contradict it must produce the proof, or, in other words the onus probandi is upon them.”
I. Under the issues made by the pleadings and submitted to the court below, sitting as a jury, the appellee was bound to prove that he had title to the engine, general or special; such title as would entitle him to recover possession of it in the action. He proved by the bill of sale and by verbal evidence, that he bought the property at the constable’s sale, but did not introduce the judgment and execution under which the constable made tbe sale; hence, appellants objected to the competency of all the evidence introduced by the appellee, to prove his title the property.
In the absence of any statute prescribing a different rule of evidence, where a purchaser, through a sale under judgment and execution, sues as such to recover the property purchased, he must in general, produce the judgment and execution, for they are parts of his title. This is so whether the property be real or personal. 2 Cow. & Hill’s Notes; Phil. Ev., 364; Yates v. St. John., 12 Wend., 75; Wilson et al. v. Conine, 2 Johns., 280 ; Hamilton v. Adams, 2 Murphy Law, 161; Dunn v. Meriwether et al., 1 A. K. Marsh., 116 ; Smith v. Moreman, 1 Monr., 155; Wallace v. Collins, 5 Ark., 41.
An officer who sells real estate is required by statute to make the purchaser a deed, reciting the names of the parties to the execution, the date when executed, the date of the judgment, order or deci'ee and other particulars reoited in the execution, and a description of the time, place and manner of sale; which recitals, the statutes declare, shall be received in evidence of the facts therein stated. Gould’s Digest, ch. 68, sec. 65 ; Gantt’s Digest, sec. 2703.
In Newton v. The State Bank, 14 Ark., 10, Mr. Justice Walker, commenting on this statute, said: “The act, etc., which requires] the sheriff to recite the names of the parties, the date of the writ and of the judgment, together with a description of tbe time, place and manner of tbe sale; and which makes sucb recitals evidence of tbe facts so recited, was intended by tbe legislature to supersede tbe necessity for producing the record from wbicb sucb recitals were made, as a matter of convenience, and to furnish evidence of tbe authority under wbicb tbe officer acted, as well as tbe manner in wbicb be bad executed bis authority in tbe deed itself. Not that tbe recital should be conclusive evidence of the facts recited, for that would exclude all inquiry into tbe authority under wbicb tbe sheriff acted, but that it should be legal, competent evidence until falsified by evidence of a higher and more authentic character.” See also, Hanly v. Heard et al., 15 Ark., 184. Before the passage of tbe act, it was necessary to introduce tbe judgment, etc., on wbicb the sheriff’s deed was founded, before tbe deed could be read in evidence. Jordan v. Bradshaw et al., 15 Ark., 109.
Where tbe deed fails to recite tbe judgment, it may be aided by producing tbe judgment. Bettison v. Budd, 15 Ark., 546.
Tbe above statute, and tbe decisions upon it cited, settle tbe rule of evidence where a party claims title to real estate under a judicial sale.
Tbe statute relating to sales of personal property referred to in the 2d declaration of tbe law of this case, made by tbe court below, is as follows:
“ When tbe purchaser of any goods and chattels, etc., shall pay tbe purchase money, tbe officer selling tbe same shall deliver him sucb property, and, if desired, shall execute an instrument in writing, at the expense of tbe purchaser, testifying tbe sale and payment of tbe purchase money, and conveying to sucb purchaser all tbe right, title and interest wbicb tbe debtor bad in and to tbe property sold on tbe day tbe execution was delivered.” Gould’s Dig., ch. 68, sec. 63. See also Gantt’s Dig., sec. 2701.
It will be observed that this statute does not make the instrument or bill of sale given by the officer selling personal property to the purchaser, prima fade evidence of title, nor change the rule of evidence requiring the production of the judgment and execution under which the sale was made.
Had the appellee introduced the judgment and execution under which the constable sold the engine, his bill of sale would then have been admissible as evidence that he purchased the property at the sale, or he might have proven his purchase, as he did, by oral testimony, for a bill of sale is not necessary to pass to a purchaser of personal property at an execution sale, title to the property.
But failing to produce the judgment and execution, he did not make out his title to the property which was put in issue by the pleadings, and the court below was not warranted by the evidence introduced at the trial to find this issue in his favor.
But in the evidence introduced by the appellee, a very grave objection to the validity of his title to the engine is disclosed. The property was not present when sold by the constable. The sale was at the court house and the engine was on a plantation five miles off. It was not delivered to the appellee when he made the purchase, and he had to resort to this action to obtain possession of it.
The statute provides that a constable, after taking goods and chattels into his custody by virtue of an execution, shall give public notice of the time and place of sale, etc., prescribing the manner of giving the notice; then provides that: “ At the time and place so appointed, if the goods and chattels be present for the inspection of bidders, the officer shall expose the same to sale at public vendue.” Gould’s Dig., ch. 99, secs. 156-7; Gantt’s Dig., secs. 3802-3.
The language of the statute would seem to imply a want of power in the officer to make the sale unless the property be present.
The theory of an execution sale of goods is, that the officer takes the goods into his possession or under his control when he makes the levy, and is thereby invested with the title of the defendant in the execution. When he sells them he transfers the possession and the title to the purchaser. It has been held that a levy without a caption or seizure of the goods — a paper levy as it is called — is invalid; and that a sale without the presence of the goods is void. Field v. Lawson, 5 Ark., 376. Rorer on Sales, sec. —; Allen on Sheriffs, 171; Carson v. Stout, 17 Johns., 122; Linnendoll v. Dok, 14 id., 223; Ray v. Harcourt, 19 Wend., 497; Cary v. Bright, 58 Pa. St., 84; Lowry v. Coulter, 9 Barr, 349; Newman v. Hook, 37 Mo., 210.
The court below held, in effect, that the defendants, showing no title to the engine in themselves, were not in an attitude to insist upon objections to the title of the appellee, and there are cases in which this rule has been applied. Wynn v. Morris et al., 16 Ark., 414.
But in actions of ejectment and in actions for the recovery of personal property, the plaintiff must recover upon the strength of his own title, and not upon the weakness of that of his adversary, when the title is put in issue. Patterson v. Fowler, 22 Ark., 396; Dixon v. Thatcher, 14 id., 141; Anderson v. Dunn, 19 id., 650; Robinson v. Calloway, 4 id., 94.
The appellants were sued for the possession of the engine. If they were in fact in possession of it, and detained it from the appellee as alleged, he had no right to deprive them of its possession without showing a valid title in himself.
To hold that no one but the defendants in the execution could object that the property was not present when sold would be unsafe on the grounds of public policy, as it might induce fraudulent sales.
The constable should have sold the engine on the spot where it was, or removed it to the court-house, where he made the sale, that it might have been shown to bidders and delivered to the purchaser.
II. There was a further issue under the pleadings. The complaint alleged and the answer denied that appellants unlawfully detained the engine from the appellee.
There was some evidence that the appellants were in possession of the plantation on which the engine was situated, but there was no evidence that they exercised any acts of ownership over the engine, or in any way prevented the appellee from taking possession of it.
Erom anything appearing to the contrary, he might have taken possession of the engine at any time after he claims to have purchased it, before suit, and .removed it from the plantation without hindrance from the appellants; and yet they were subjected to a judgment for costs without evidence to put them in the wrong.
Nor did the court below find an unlawful detention by the appellants. It found, only, that the appellee had title to the property, and that appellants had no title. Nor did appellee prove a detention by the tenants of the appellants, who were made the original defendants in the complaint. Savage et al. v. Perkins, 11 How. Pr., 22.
III. It is also submitted, for the appellants, that the court erred in finding the engine to be personal property. The evidence, it is asserted, showed it to be a fixture — part of the realty — and not the subject of a personal action.
In the bill of sale it is termed a saw mill, but this was explained by the witnesses. The appellee purchased at the constable’s sale a portable engine on wheels, capable of being moved from place to place, and some old irons of a saw mill that had been burned. Who had title to the land on which it was situated, at the time of the sale, does not satisfactorily appear. Upon such evidence as was introduced, the court was warranted in finding the engine to be personal property. Hensley v. Brodie, 16 Ark., 511; Greenwood & Son v. Maddox & Toms, 27 id., 660.
IY. The appellants also insist that the judgment should be reversed, because there was no proof of the value of the property, and no finding of its value by the court below, sitting as a jury.
The statute provides that, “ In actions for the recovery of special property, the jury must assess the value of the property, as also the damages for the taking or detention, whenever, by their verdict, there will be a judgment for the recovery or return of the property." Gantt's Dig., sec. 4682.
The statute also provides that, in an action to recover personal property, judgment for the plaintiff may be for the delivery of the property or for the value thereof, in case a delivery cannot be had, and damages for the detention, etc. Gantt’s Dig., sec. 4718.
In this case the appellee obtained judgment for the recovery of the property only. No alternative judgment for its value was taken, nor was there any judgment for damages. Hence the appellants were not prejudiced by the failure of the appellee to prove, or the court to find, the value of the engine.
In the motion for a new trial, other grounds than those noticed above were assigned, but we have disposed of such as appear to be material or substantial. The judgment must be reversed, and the cause remanded with instructions to the court below to grant the appellants a new trial. | [
-76,
118,
-100,
-97,
122,
-32,
42,
-102,
66,
105,
102,
87,
-3,
-126,
9,
117,
99,
109,
85,
-5,
-58,
-78,
83,
99,
-62,
-45,
-39,
-41,
-67,
-52,
-4,
86,
76,
32,
-54,
29,
-62,
-64,
-51,
92,
-50,
-127,
43,
-28,
-47,
0,
52,
-81,
68,
75,
117,
-82,
-13,
40,
92,
75,
77,
46,
-19,
40,
-7,
89,
-102,
-33,
-97,
16,
-112,
116,
-100,
3,
-8,
62,
-112,
53,
20,
-24,
123,
-76,
-126,
116,
5,
-117,
9,
102,
98,
35,
-99,
-17,
-88,
-104,
23,
-66,
-97,
-90,
-94,
105,
107,
105,
-98,
-99,
114,
16,
39,
118,
100,
-100,
24,
44,
2,
-113,
-106,
-93,
61,
34,
-98,
51,
-21,
30,
52,
81,
-123,
-102,
93,
5,
48,
-97,
-122,
-65
] |
English, 0. J.
Alexander Johnson, the appellant, was indicted for murder in the Clark circuit court. There was but one count in the indictment, charging him with murder in the first degree. He was tried on the plea of not guilty, and the jury returned a verdict of murder in the second degree, and fixed his punishment at imprisonment in the penitentiary for twenty-one years. He filed a motion for a new trial, on the ground that the officer in charge of the jury permitted them to separate, etc. The motion was sustained, and a new trial granted by the court. He was again tried at the next term, the jury found him guilty of murder in the first degree, a motion for a new trial was overruled, and he was sentenced to be hung on the 27th of March, 1874, but the sentence was suspended by the allowance of an appeal by one of the judges of this court.
1. Before appellant was put on his second trial, he filed a plea in bar of the whole indictment, averring the former trial on the indictment, the verdict of guilty of murder in the second degree, the granting of a new trial, and that he had once before been in jeopardy for the offense charged in the indictment, and praying to be discharged.
The court, of its own motion, overruled this plea.
It is very well settled that where a defendant is tried and convicted of a criminal offense, and anew trial is granted him on his own motion, he may be tried again for the same offense.
It is true that, by a constitutional provision as well as by ■the common law, no man can be twice put in jeopardy of life or limb for the same offense; but, where the first jeopardy has resulted in his conviction, it is rather a merciful interposition of the court, than any invasion of his rights, to set aside the conviction upon his own application in order to afford-him the opportunity of another trial. Stewart v. The State, 13 Ark., 747.
Whether the appellant could be put on a second trial for murder in the first degree, after, by the first verdict, he had been impliedly acquitted of that grade of offense, we shall presently see. But that he could be tried again for murder in the second degree, of which he had been convicted, and a new trial granted at his own request, and for his own benefit, there is no doubt!
The bill of exceptions states that the court, of its own motion, overruled the plea. This is not the usual mode of disposing of a bad plea. It would have been more regular to dispose of it on demurrer. Sanger v. State Bank, 14 Ark., 412. But a technical irregularity in getting rid of a bad plea is no cause of reversal. If the court had merely disregarded the' .plea, and made no disposition of it whatever, the judgment would not be reversed and the cause remanded merely to get rid of a bad plea. Brearly v. Peay, 23 Ark., 172.
2. The appellant, before he was put on his second trial, and after the plea of once in jeopardy was overruled, filed the following plea of former acquittal:
“ The defendant pleads that he has been acquitted, of- the offense of murder in the first degree, as alleged in the bill of indictment, by the judgment of the Clark circuit court, entered on the 30th day of October, 1873.”
To this plea the state demurred, on the following grounds:
1. The plea does not show how, or in what manner the defendant has been put in jeopardy of his life.
2. It does not set out the record of the former indictment:
3. It does not propose to verify the same by the record.
4. It is for other reasons insufficient in law.
The court sustained the demurrer.
This plea was a loose attempt to set up the implied acquittal of the appellant of the charge of murder in the first degree, by the verdict of guilty of murder in the second degree, rendered in the first trial of the cause. The plea, however, substantially follows the form prescribed by the Code, for the record entry of such pleas (Gantt’s Dig., sec. 1851), and was-aided by the record of all the previous steps which had been, taken in the cause, which was before the court.
The defense attempted to be set up by the plea was a matter of record in the cause which the court was proceeding to-try; and the court was cognizant of all its proceedings in the premises. Atkins v. The State, 16 Ark., 574. The court sustained the demurrer to the plea, not, perhaps, because of its-want of form, but for the reason that, in its judgment, the matter of defense intended to be interposed by the plea, was no-bar to the second trial for murder in the first degree, for the court afterwards, in its charge to the jury, told them, in effect, that the appellant might be convicted of murder in the first-degree, and refused to instruct them to the contrary at the instance of the appellant.
The record of the former implied acquittal of the appellant of murder in the first degree being before the court, in the very cause which it was trying a second time, it was the duty of the court to tell the jury that they could not find him guilty of that grade of offense, if such be the law, even if the appellant had not interposed a plea of former acquittal. Atkins v. The State, supra.
And this, for the first time, brings this question fairly before this court: Where a person indicted for murder in the first degree is convicted of murder in the second degree, and obtains a new trial, can he be tried a second time for the higher grade of offense ?
There are two grades of murder under our statutes; murder in the first degree, which is defined, and punishable by death; and murder in the second degree, punishable by imprisonment in the penitentiary for not less than five and not more than twenty-one years. Gantt’s Dig., secs. 1253-4, 1262-3. In all cases of murder, on conviction, the jury are required to find by their verdict whether the accused is guilty of murder in the first or second degree. Id., sec. 1957. There are also two grades of manslaughter which are defined by the statutes: Voluntary, punishable by imprisonment in the penitentiary for not less than two, nor more than seven years, and involuntary, punishable by like imprisonment for a period not exceeding twelve months. Id., sec. 1264 to 1278. Upon an indictment for an offense consisting of several 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. Id., 1961. .The appellant being indicted for murder in the first degree, could have been convicted of any degree of homicide warranted by the evidence. Id., 1962.
By the verdict of the jury, rendered on the first trial, he was convicted of murder in the second degree, and impliedly acquitted of the higher grade of offense, murder in the first degree. If this verdict had not been set aside, on his motion,, he certainly never could have been tried again for the higher offense. Did the granting of a new trial, at his request, subject him to be tried again for murder in the first degree, of which he had, in legal effect, been acquitted by the first verdict ?
A clause in the ninth section of the bill of rights of the constitution of 1868, declares that “ no person, after having been once acquitted by a j ury for the same offense, shall be again put in jeopardy of life or liberty.”
This is equivalent to the 12th section of the bill of rights, of the constitution of 1836, which declares: “ That no person shall, for the same offense, be twice put in jeopardy of life or limb.”
A similar provision exists in the constitution of the United States, and in the constitutions of most of the states. But this rule, says Mr. Greenleaf, has a deeper foundation than mere positive enactment, it being, as Mr. Justice Story remarked, imbedded in the very elements of the common law, and uniformly construed to present an insuperable barrier to a second prosecution, where there has been a verdict of acquittal or conviction, regularly had, upon a,sufficient indictment. 3 Greenl. Ev., p. 34, sec. 35.
In The State v. Norvill, 2 Yerger, 24, the defendant was indicted for murder, and was found not guilty of murder, but guilty of' manslaughter. This verdict, though no judgment was entered upon it, was held to be a bar to a second indictment for murder, the first indictment being good, and the judgment upon it improperly arrested.
In Campbell v. The State, 9 Yerger, 333, the indictment contained three counts for 'larceny. The jury found the defendant not guilty as charged in the first and third counts, but guilty as charged in the second count. He moved for a'new trial, and the court set aside the whole verdict, and ordered him to be tried a second time on the whole indictment, and he was found guilty on the third count, and a motion in arrest of judgment was overruled. The supreme court reversed the judgment, and ordered the accused discharged, on the ground that the first verdict of acquittal on the third count was a bar to a second trial on the same count.
In Slaughter v. The State, 6 Humph., 412, the accused was indicted for murder, and the jury found him not guilty of murder, but guilty of voluntary manslaughter. . On his motion a new trial was granted, and it was held that he could not be put upon a second trial for murder, and that the court should have so instructed the jury.
In Hurt v. The State, 25 Miss., 378, the accused was indicted for murder, and the jury found him guilty of manslaughter in the third degree. A new trial was refused, and on error the judgment was reversed, and the prisoner discharged, on the grounds that a second indictment for manslaughter (the first being bad) was barred by limitation, and that the verdict of. manslaughter on the first indictment was an acquittal of the charge of murder, and that he could not be tried again for that offense.
The court said :• “ A verdict of a jury finding a party, put upon his trial for murder, guilty of manslaughter in the third degree, must of necessity operate as an acquittal of every crime of a higher grade of which he might have been convicted under the indictment upon which the issue was made; otherwise, the party, after undergoing the sentence of manslaughter, might be put upon his trial for the charge of murder, which would then be only postponed, and not decided by the verdict of manslaughter. The jury, in such case, render two verdicts:. one acquitting -the accused of the higher crime charged in the indictment, the other finding him guilty of an inferior crime. They must first determine his guilt or innocence upon the charge made by the indictment, before proceeding to consider whether he is guilty of an inferior crime. The verdict of manslaughter is as much an acquittal of the charge of murder, as a verdict pronouncing his entire innocence would be, for the effect of both is to exempt himjrom the penalty of the law for such crime.”
The court further said: “But it is said that such verdict only operates as an acquittal while it is permitted to stand as part of the action of the court below, and as it has been set aside by this court upon the prisoner’s own application, the cause must be treated in all respects as if no trial bad taken place. In support of this position, authorities have been cited holding, that when the judgment upon a trial for murder is arrested, the party may be remanded and again indicted for the same offense. The authorities doubtless announce the law correctly, but they have no application to the question under consideration. The judgment is only arrested in any case where the verdict is against the party. He would certainly never move, neither would the court for a moment entertain such motion in arrest of judgment, when the verdict was in his favor. Here the verdict of the jury acquitted the party of the crime expressly charged in the indictment, and at the same time exempted him from the penalty of the law for its supposed commission. He could not move in arrest of the judgment on this part of the verdict, because the judgment corresponding, in contemplation of law, with the verdict in this respect, must also have been one of acquittal of the charge of murder. "Whether this judgment was in fact pronounced by the court, as ought to be the practice, or attached by mere operation of law to the verdict, it was bound to be in the party’s favor, and it could not, therefore, be arrested or set aside on his motion.”
In Brennan et al. v. The People, 15 Ill., 512, a number of persons were indicted for murder. Eour of them were tried on the plea of not guilty, and the jury found three of them guilty of murder, and the fourth, Ryan, guilty of manslaughter only. The defendants moved for a new trial, which was granted. They were tried again, and all of them found guilty of murder, and the case was taken, by writ of error, to the supreme court of Illinois. After deciding other questions in the case, the court said:
“Was the prisoner Ryan properly put upon his trial a second time for the murder of Story? An indictment for mur ■der embraces the charge of manslaughter. The lesser is included in the greater accusation. On such an indictment, the jury may find the prisoner guilty of manslaughter. And such a finding amounts to an acquittal of the charge of murder. The finding of the inferior is necessarily a discharge of the superior offense. Ryan was regularly put upon his trial ■on the indictment, and was found guilty of manslaughter. .In contemplation of law, the jury rendered two verdicts as to him —• one acquitting him of the murder of Story, and the •other convicting him of the manslaughter of Story. He was Thus legally tried for the offense of murder and acquitted. It is perfectly clear that he could not again be put in jeopardy ■on the same charge, unless that acquittal was set aside at his instance. A verdict either of acquittal or conviction is a bar to a subsequent prosecution for the same offense, although no judgment has been entered upon it. Mount v. The State, 14 Ohio, 295; The State v. Norvell, 2 Yerger, 24; Hurt v. The State, 25 Miss., 378. It does not appear from the record that “Ryan has ever waived the benefit of the verdict of acquittal. It is true that he united with the other prisoners in asking for -a new trial, but the application as to him must be regarded as extending only to the charge upon which he was convicted. He had no occasion for another trial except as to the charge •of manslaughter. Being legally acquitted of the charge of murder, he surely did not desire that to be again investigated. It is not to. be presumed that he would voluntarily place himself in peril upon a charge on which he had already been tried and acquitted. Even if the court, upon his motion, •could open the whole case, the record does not show that such power was either invoked or exercised. The application for :a new trial did not necessarily relate to the charge upon which he was acquitted. It naturally referred to the charge on which he was convicted. Nor did the court, in terms, set aside the entire finding of the jury. It simply granted the-prisoner a new trial. The order was no broader than the application. There were two distinct findings as to Ryan, and, therefore, there was not the least necessity for disturbing the-one acquitting him of murder. The one might be set aside, and the other allowed to stand. The verdict was not an entire thing which should wholly stand or fall. This view gives full effect to the order of the court. There was still a charge upon which Ryan could again be tried. This vie w of the question is sustained by adjudicated cases,” etc.
The court cited, with approval, Campbell v. The State, 9 Yerger, 333, and other cases, and reversed the judgment as to Ryan, and remanded the cause with directions that he be tried again for manslaughter, and affirmed the judgment as to the-other three prisoners.
This case was approved and followed in Barnett v. The People, 54 Ill., 325.
In Jones et al. v. The State, 13 Texas, 168, the prisoners-were indicted for murder in the first degree ; they were tried on the plea of not guilty, and found guilty, by the jury, of murder in the .second degree. A new trial was granted on their motion, and they were tried a second time and convicted, for murder in the first degree. On appeal to the supreme-court of Texas the judgment was reversed. Mr. Justice Lipscomb, who delivered the opinion of the court, after examining-the authorities, said: “The result of our investigation is, that both on principle and the authority of adjudged cases,, the appellants, after having been acquitted of murder in the first degree, and found guilty of murder in the second degree,, could not be legally tried and convicted of murder in the first degree, and that the verdict so finding them cannot stand as-the basis of a judgment and execution thereon.”
In The State v. Tweedy, 11 Iowa, 351, the accused was indicted for murder in the second degree, and found guilty of manslaughter. The judgment was reversed on appeal, and the cause remanded for trial again. On the second trial, the court refused to instruct the jury that he had once been acquitted of murder, and could only be tried again for manslaughter.
The case went again to the supreme court, and i.n a very able review of the authorities by Mr. Justice Wright, it was held, that the verdict of manslaughter, on the first trial, was an acquittal of murder in the second degree, and that the prisoner could not again be put in jeopardy for that offense. The court said: “ When the prisoner moved for a new trial, and appealed to this court, he sought to be relieved of a judgment against him for manslaughter. He had no complaint to make that the jury had not convicted him of the offense of murder. If, however, he might properly be subjected to a second trial for murder, then he is compelled to submit to a verdict which he may deem ever so erroneous, lest by disturbing it, when insisting on his legal rights, he may place himself again in jeopardy. When a jury has once returned a verdict of guilty as to the lower offense, the prisoner should not, in our opinion, be placed in a position of additional hazard by attempting to be relieved of the erroneous judgment. It is settled upon authority that if he obtains a new trial, he may be again tried for the offense of which he was convicted. It is a very different thing, however, when it is sought to try him for an offense of which he was not convicted, and which was not, necessarily, in the verdict of guilty. ”
In The State v. Ross, 29 Mo., 32, Ross was indicted by a single count for murder in the first degree, tried on the plea of not guilty, and verdict of guilty of murder in the second degree. On an appeal to 'the supreme court of Missouri, the judgment was reversed, and the cause remanded for a new trial. Ross filed a plea, setting up the former implied acquit tal of murder in tlie first degree as a bar to any further prosecution for that grade of offense. A demurrer was sustained to the plea, and on a second appeal, the supreme court held, in a well considered opinion, reviewing the authorities (Scott* J., dissenting), that the verdict of murder in the second degree was an acquittal of murder in the first degree, and that the accused could not be tried again for that grade of offense. See also State v. Ball, 27 Mo., 327; 1 Bishop Cr. L., sec. 676.
In Jordan v. The State, 22 Ga., 558, the prisoner was indicted for murder, and the jury found him guilty of manslaughter, and the court held that the verdict was an acquittal of murder, and that a new trial could not be granted so as to subject him to a second trial for murder.
In State v. Lessing, 16 Minn., 75, the indictment was for murder in the first degree, and contained a single count. On a plea of not guilty, the defendant was tried and convicted of murder in the second degree; and the court held that the verdict was equivalent to an express acquittal of murder in the first degree, and a bar to any subsequent prosecution against him for that grade of offense.
In Gunther v. The People, 24 N. Y., 100, the indictment contained nine counts for embezzlement, and others for larceny, and the verdict was guilty of embezzlement, which was held to be equivalent to an acquittal of the larcenies charged, and a bar to any subsequent prosecution. The court said: “ If the jury find the prisoner guilty on one count, and say nothing in their verdict concerning the other counts, it will be equivalent to a verdict of not guilty on such counts.”
See also, to the same effect, Weinzorpflin v. The State, 7 Blackf., 136.
So, in Clem v. The State, 42 Ind., 420, held, that if upon an indictment for murder in the first degree, the defendant, is found guilty of an inferior grade of homicide, without saying anything as to the higher grade, the finding is, by implication, an acquittal of ’the higher grade.
In Morris v. The State, 1 Blackf., 37, Mr. Justice Holman incidentally assumed it to be a general rule, that he who desires a new trial, must receive it as to the whole case; and in the U. S. v. Harding et al., 1 Wall., Jr., C. C., 147, Mr. Justice Oreeb cautioned the prisoners, who had been acquitted of the higher and convicted of the lower offense, that if they insisted on a new trial, he would grant it upon the whole indictment, and their lives might become, on a second trial, forfeit to the law ; but whilst such expressions of these learned judges are entitled to respect, they have not been treated, in the cases which we have cited, as adjudications of the question we are considering.
Mr. Bishop says: “ The waiving of a constitutional right, implied in the making of an application for a new trial, is not construed to extend beyond the precise thing concerning which the relief is sought. If, therefore, the verdict finds a prisoner guilty of part of the charge against him, and not guilty of another part, as, for example, guilty on one count of the indictment, and not guilty on another; or there being one count, guilty of manslaughter, and not guilty of murder ; and a new trial is granted him — he cannot be convicted on the second trial, of the matter of which he was acquitted on the first.” 1 Bishop Cr. L., 4 ed., sec. 849.
The State v. Martin, 30 Wis., 216, is very similar in its main features to the one now before us. Martin was indicted for murder, tried upon the plea of not guilty, and found by the jury not guilty of murder, but guilty of manslaughter in the second degrée. He moved the court to set aside the verdict, and grant him a new trial, on the ground that one of the jurors was not impartial. .'The motion was granted, and on the second trial the jury found him guilty of murder in the first •degree, the court having instructed them that they might so find if the evidence warranted such a verdict. . The case went before the supreme court of Wisconsin on questions of law, which arose on the trial, and among them the one now before us. The court said: “ The doctrine is well settled in this state that courts have the power to grant a new trial after conviction, for a good cause, upon the application of the defendant, and that no principle of the constitution or the common law which is essential to the protection of the rights of the individual is violated thereby. The general rule is that one trial and verdict protect the defendant against any subsequent accusation whether the verdict be for or against him, and whether the court is satisfied with the verdict or not. But a person already convicted may waive the constitutional protection against a second prosecution and ask for a new trial to relieve himself from the jeopardy he is already in. And when he does so, what ought to be considered the extent of his application ? Is it to expose himself to the possible conviction of a charge of which he has been acquitted, or is it to relieve himself of the one of which he has-been convicted ? It would seem that a bare statement of the proposition was sufficient to furnish the proper answer. It is not in accordance with the principles of human conduct for a person to ask a further trial of a charge of which he has already been found guiltless by the verdict of a jury. But he seeks deliverance from one of which he has been convicted, and hence he asks that he may again be put upon trial for this charge. In this case the defendant was expressly acquitted of the charge of murder upon the first trial, and convicted of a lower crime. He asked for and obtained a new trial. A new trial for what ? Of the charge of which he had been convicted, or the one of which he had been acquitted? Is it reasonable to suppose that the defendant asked ■for another trial in order to determine whether he had com mitted the crime of murder, or was it merely to determine whether he was guilty of manslaughter in the second degree of which he stood convicted ? The answer would seem to be plain upon principle that it was the latter charge alone that he asked to have retried and that his application for a new trial should be held to apply to this, and not to the other crime of which he was acquitted. And this is in accordance with the great weight of judicial opinion upon this subject.”
The court held that the prisoner was illegally convicted for murder on the second trial. That, on the second trial, the inquiry of the jury should have been confined to the crime of which he had been convicted on the first trial.
It is our opinion, upon principle and the great current of adjudications, that the verdict of murder in the second degree, rendered by the jury on the first trial, was equivalent to an acquittal of the appellant of murder in the first degree and a bar to a second trial for that grade of offense.
There is a code provision as follows : “ The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew and the former verdict cannot be used or referred to in evidence or argument.” Gantt’s Dig., sec. 1972.
No doubt that the granting of a new trial upon the application of the accused, on an offense of which he is convicted places him in the same position as if no trial had been had, but if the section of the code above quoted meant to go fur-other and provide that where the indictment charges several offenses or grades of offense, and on the first trial the accused is convicted of one offense or grade of offense, and acquitted of anther, the granting of a new trial places him in the same position as to the offense or grade of offense of which he was acquitted as if no trial had been had, it is in conflict with the clause of the 9th section of the bill of rights of the constitution of 1868, which declares that, “ No person after having been once acquitted by a jury for the same offense shall be again put in jeopardy of life or liberty,” and the section of the code must be construed and administered by this paramount constitutional limitation.
There is a similar statute in Kansas, and in the State v. McCord, 8 Kansas, 232, the defendant was tried for murder and convicted of manslaughter, and upon his motion, a new trial was granted and the court again held that he was to be tried for murder, as if no former trial had been had. The court said that the granting of a new trial was a legislative privilege awarded the accused, and he must take it on such terms as the legislature had thought proper to prescribe. This case is reported in 1 Green. Criminal Law Reports, 406; and is disapproved in a note by the author as contrary to principle, etc.
There is also a similar statute in California, and in the The People v. Gilmore, 4 Cal., 376, it was construed and held not to affect the constitutional protection of the accused against a second trial for an offense of which he had been acquitted. The prisoner was indicted for murder, convicted of manslaughter and a new trial granted. The court held that,' notwithstanding this statute, he could not again be put upon trial for murder.
The judgment must be reversed and the cause remanded with instructions to the court below to grant the appellant a new trial, and that he be tried as if indicted for murder in the second degree: | [
-16,
107,
-36,
-66,
58,
66,
42,
-72,
89,
-62,
-90,
115,
-23,
31,
0,
117,
67,
101,
117,
121,
-52,
-73,
22,
-63,
-78,
-13,
9,
-41,
-73,
108,
-3,
-1,
12,
112,
74,
-43,
-26,
72,
-31,
-34,
-114,
-127,
-8,
-28,
18,
-56,
52,
51,
70,
63,
101,
30,
-29,
106,
23,
-62,
105,
60,
75,
-81,
16,
25,
-110,
-115,
-51,
20,
-77,
39,
-97,
35,
20,
44,
-40,
29,
16,
-8,
115,
-106,
6,
-42,
107,
-101,
108,
98,
2,
0,
65,
-49,
56,
-39,
63,
46,
-119,
-89,
24,
80,
91,
14,
-74,
-51,
118,
-76,
46,
124,
-20,
-43,
17,
108,
1,
-41,
-76,
-109,
-49,
60,
-110,
-46,
-29,
3,
48,
32,
-52,
-30,
126,
119,
123,
-101,
-113,
-38
] |
Walker, J.
The appellant, William E. Chambers, filed his complaint in the Jefferson circuit court against William E. Sallie as administrator of the estate of lee L. Warren, Willis D. Johnson as the administrator of the estate of Samuel H. Warren, Mariah A. Sallie and - Sallie, her husband. Answers were filed, evidence taken, and upon the final hearing a decree was rendered in favor of the defendants, from which the plaintiff has appealed to this court.
It is alleged by the complainant that as the administrator of the estate of Stephen Bonnell, deceased, he obtained a judgment at law against Samuel H. Warren, for the sum of $4,775 debt and damages, upon which execution issued and was levied upon all of the real estate of said Warren, all of which was sold, except 160 acres on which Warren resided with his family, which was claimed by Warren as a homestead, and was surveyed and set apart to him. That after giving credit for the amount for which the lands were sold, there still remained due, including interest, a balance of $7,057.38. That Samuel H. Warren continued to reside upon the 160 acres set apart as his homestead until his death, in the summer of 1868, and that from the time of his death, his widow, Ice L. Warren, continued to reside upon and claim said 160 acres until her death in 1871. That said Ice L. Warren administered upon the estate of her husband, Samuel H. Warren, and without closing her administration, died, after which defendant, Willis D. Johnson, was appointed administrator de bonis non of said estate. That complainant presented said judgment as a claim against the estate of said Samuel H. Warren, and had the same allowed and classed in the third class of claims for payment. That Samuel H. Warren was in failing circumstances in 1866 and 1867, and in 1868, died insolvent. That for the purpose of defrauding his creditors, and particularly to prevent the payment of the judgment aforesaid, he, under a false pretense of claim, conveyed and caused to be conveyed houses, lots, and other property of great value, without consideration; and particularly, that at a time when he was notoriously insolvent, the said Samuel H. Warren, without any real consideration, conveyed the 160 acres set apart to him as a homestead to Marcus M. Bell, in trust for the use and benefit of his wife, Ice L. Warren, for the purpose and with the intent to defraud complainant, and to hinder and prevent the collection of said judgment, with a prayer that these several conveyances be set aside as fraudulent; that an account be taken, and the property sold to pay the debts of Warren.
Under this state of case, the first question of importance to be settled is, Was the conveyance of the lots of land in Pine Bluff made upon a valuable consideration, or was it a gift from the husband to his wife, and if a gift, was the husband at the time of the gift in such failing circumstances as to make it fraudulent as against his creditors ?
It is contended on the part of defendants that there existed between Warren and his wife an ante nuptial contract, by which Warren agreed to give to his wife $10,000 upon her marriage with him, or in consideration of such marriage, and that the lots conveyed by Dorris and wife to Mrs. Warren at the price of $7,000, paid 'for by Samuel H. Warren, were in part performance of this contract. It appears from the evidence that Warren was a man of wealth, with an unincum-. bered estate, worth in 1861 (the time of his marriage) $60,000 or $70,000. The evidence in regard to the consideration and inducements to marry is, in our opinion, not sufficient to establish a consideration for a contract of marriage.
There is evidence of a correspondence between Warren and his intended wife, in which he informed her by letter that he intended to settle upon her $10,000, in reply to which the wife wrote to him and expressed her thanks for his generous offer; that this correspondence took place after an engagement of marriage had been formed, and consequently formed no part of the consideration or inducement to contract.
It is next contended on the part of the defendants, that Warren, at the time of the purchase and conveyance of the lots to his wife, was not in failing circumstances, but was then possessed of ample means, other than the property so conveyed, with which to pay all of his debts, and that when such is the case, it is no fraud upon the rights of creditors to make such voluntary conveyance. The evidence touching the circumstances of Warren’s indebtedness, and his ability to pay, is, that in 1861, his estate was unincumbered with debt, and was worth from $60,000 to $70,000; that in May, 1866, the time of the purchase of the lots of Dorris, Warren was worth about $20,000; he owned the lands bought by him of Bonnell at the price of $14,000, all of which had been paid except the balance due on the last note, which with the interest then due did not exceed $6,000; besides this, he owned the homestead tract of 160 acres. Under this state of case we think that Warren, at the time he caused the conveyance of the lots purchased of Dorris to be conveyed to his wife, had ample means to pay this debt of complainant, which is the only one shown to exist; and under this state of case, as held by this court in the cases of Smith v. Yell, 8 Ark., 470, and Dodd v. McCraw, id., 106, the gift is not void; because with ample reserved means with which to pay his debts, he has a right either to sell or give away his property at pleasure.
But it is clearly shown, that after the sale of his lands and reservation of his homestead, he was insolvent and unable to pay the debt due the complainant, which was, according to the evidence of one of the witnesses, the only debt of importance due. This was in 1868, and at the time when the deed of trust was made to Bell for the use of his wife of the 160 acre homestead tract.
The deed purports to be for the consideration of $1,500, but there is no evidence whatever of the payment of either money or property, in consideration of this transfer to Bell; but on the contrary, it is stated in the answer of defendants, that $4,500, part of the $10,000 promised as a marriage settlement, was the true consideration for the execution of the deed of trust to Bell.
And the attorney who prepared the deed deposed, that when he read the deed to Warren, he, Warren, stated to witness and others that he was making the deed to carry out a promise he had made to his wife before his marriage, to settle upon her $10,000 worth of property, and the attorney himself states that if he had known of the promise and the letters, he would have drawn the deed differently. It is not true, then, that $1,500 was the consideration given for making the deed of trust, and as we have held that there was no valid ante nuptial contract, its payment could form no consideration to uphold the trust deed; independent of this, the making of the deed at the same time, as is shown, out of abundant caution, for fear that the deed from Dorris might not be sufficient, and other circumstances, tend strongly to show that this deed of trust was intended to hinder and prevent the complainant from having satisfaction of his debt. For these reasons, the deed of trust to Bell must be held fraudulent and void as against Warren’s creditors.
There is another ground upon which the title to the 160 acres, homestead tract, must fail. This land was the property of Warren at the time the judgment of complainant was rendered and levied upon to be sold in satisfaction of the judgment of complainant.' It is true that the sale of the property was suspended by force of the homestead act. The legal effect of the act, as held by this court in Norris et al. v. Kidd, 28 Ark., 485, is to create no new estate, but -to protect the occupant of the land in the use and occupancy of the land so set apart as a homestead during the time of such occupancy, but if abandoned by removal or death, leaving neither wife nor children to succeed to his rights, the rights of the judgment creditor would be fully restored. The case of Norris et al. v. Kidd, above referred to, was decided after a full and exhaustive review of authority, and meets our approval; and is to be considered as decisive of the question.
That the complainant has a valid, unsatisfied claim, probated 'and classed for payment, against Warren’s estate, is both admitted by the answer and proven by the exhibits and evidence. So far as appears from the case before us, this is the only unsatisfied claim against the estate of Warren. Should it be made to appear that others exist of equal or superior class or claim for satisfaction, the proceeds of the sale of the homestead tract can be distributed equitably according to the rights of claimants, should they choose to become parties.
The court of chancery has ample jurisdiction to disincumber the property by setting aside the fraudulent sale of it, and the pretended rights of homestead after the death of Mrs. Warren, who left no child to succeed to the homestead rights, and may well retain its jurisdiction to settle and dispose of the equitable rights of the parties.
Before making a directory order in regard to the case, it is proper to notice the question, argued by counsel, upon a motion filed at a previous term of this court, which was then, considered and overruled. We think the decision there made final, and not properly before us for consideration. The case has been submitted upon its merits, and no question of intervening rights after appeal and submission can properly be considered.
If intervening rights by purchase have arisen since the appeal was taken, the parties must abide the final decision of the case, and then (if they can), assert such rights as may exist under the purchase pendente lite.
The decree of the court below must be reversed and set aside, with costs, the cause remanded to the eourt below, and a decree rendered in favor of the complainant for his debt: and that an order be made directing the sale of the 160 acres (the homestead tract) upon equitable terms, according to the rules and practice in such cases, and the proceeds of such sale be applied to the payment of the complainant’s demand, subject to any prior claim, should such be shown to exist, or by pro rata payments, should claims of equal grade be found to exist, and further proceedings not inconsistent with this opinion. | [
-16,
108,
-4,
29,
-104,
-88,
10,
-102,
83,
-85,
-27,
83,
107,
-5,
0,
33,
-31,
57,
81,
107,
-27,
-77,
19,
35,
-46,
-5,
-23,
-51,
-94,
76,
-27,
-41,
12,
42,
42,
-107,
-62,
32,
-59,
-40,
-114,
9,
-117,
100,
-39,
32,
52,
105,
86,
77,
113,
14,
-13,
46,
53,
123,
73,
44,
-49,
-69,
-48,
-71,
-101,
13,
127,
23,
16,
71,
-102,
-121,
74,
42,
-112,
53,
0,
-19,
123,
54,
-122,
-44,
71,
-117,
9,
102,
98,
35,
-31,
-83,
-112,
-104,
47,
126,
-115,
-121,
-110,
88,
115,
8,
-65,
29,
124,
-48,
39,
118,
-18,
-44,
89,
104,
-121,
-49,
-106,
-111,
-115,
112,
-100,
-110,
-29,
-99,
52,
112,
-49,
34,
92,
71,
49,
-101,
13,
-53
] |
Williams, Sp. J.
This was an action of covenant brought in accordance with the common law forms prevalent before the adoption of the Code, on the 10th of July, 1867, upon the following agreement, to wit: This article of agreement and transfer, made and entered into this fourteenth (14) day of November, A. D. 1861, by and between James M. Hanks and Martha J. Harris, both of the county of Phillips and state of Arkansas, witnesseth, that for and in consideration that the said Martha J. Harris has sold, and by her deed of this date, conveyed unto the said James M. Hanks the following described lots, lying and being situated in the city of Helena, county of Phillips, and state of Arkansas [here follows a description of the lots], and has also sold and delivered to said Hanks divers articles of household and kitchen furniture, and delivered to him the possession of said lots and premises for the sum and price of three thousand, nine hundred dollars, the said James M. Hanks doth hereby most fully, amply, and entirely-assign, transfer and make over unto the said Martha J. Harris, and to her heirs and legal representatives, three thousand, nine hundred dollars of his interest in a certain decree recovered by Charles W. Adams and the said James M. Hanks, partners as attorneys at law, in the circuit court of Chicot county, in the state of Arkansas, on the chancery side thereof, on the sixteenth day of October, A. D. 1861, in a certain cause then in said court pending, in which said Adams and Hanks, as . partners as aforesaid, were complainants, and the mayor and oouncil of the city of Helena, and John Anderson Craig, and Joshua M. Craig were defendants, and which decree in said court was recovered and obtained by said Adams and Hanks against the said John Anderson Craig and Joshua M. Craig, two of said defendants, for the sum of twelve thousand, seven hundred and sixty-one dollars and seventeen cents, and interest thereon, from the rendition of said decree until paid, at the rate of six per centum per annum; and this assignment and transfer shall, as to every particular, have and be construed to have full effect as if made and executed upon the day of the rendition of said decree, and the interest upon said portion of, or interest in said decree shall also carry with it the proper proportion of the interest as aforesaid, from the rendition of said decree until paid, and the said James M. Hanks doth hereby covenant, promise and agree to and with the said Martha J. Harris, her heirs and legal representatives; that he is justly and legally entitled to the one full third part of said decree, by virtue of the partnership aforesaid, and doth guaranty the payment to her out of the same, the said sum of three thousand, nine hundred dollars, and interest as aforesaid; and the said James M. Hanks doth further hereby promise, covenant and agree to and with the said Martha J. Harris and her heirs, that he has in no wise incumbered or assigned or transferred his said interest in said decree, and that his heirs nor legal representatives shall, and that he will not, at any future time, in any wise incumber, assign or tranfer (or seek to do so) his said interest in said decree, or to the said sum of three thousand, nine hundred dollars and interest as aforesaid ; and neither he or his legal representatives will or shall, at any time, seek to defeat, or in any way delay the payment to her or her legal representatives of the same, or any part thereof. And that all proper and legal proceedings may be used for the collection and payment to her of the same, free from any let or hindrance from him or his legal representatives, subject only to the right and interests of the said Charles "W. Adams, as partner as aforesaid, whose interest in said decree is two-thii’ds thereof, and when necessary make and execute any further or proper transfer or assurance which may be legally or equitably sufficient fully to secure to the said Martha J. Harris and her legal representatives, the full and unimpaired right to collect and receive, out of the said decree, the said sum of three thousand, nine hundred dollars and interest as aforesaid. In testimony, etc.
This covenant was signed and sealed by Hanks, and was dated November 14, 1861.
It thus seems that this transfer occurred in November, after the decree was rendered in October.
It has been contended here for Mrs. Harris, that the decree, having been rendered during the war, was void. On the other hand, the attorneys of Hanks contend that the recital in the agreement evidently should have been 1860, and not 1861, because the decree is not in the record, and the evidence shows that the original compromise decree in the Junius Oraig Will Case was rendered in April, 1860; and the testimony of Pike, as well as the final decree on the review of this compromise decree, shows that the bill to annul and recall the decree was filed in 1860, therefore, this must be a misrecital.
In the first place, the carefully drawn agreement, prepared two days short of one month after the decree was stated to have been rendered, is too near the time of execution to have reasonably escaped attention.
There is enough in the record to show, that in a litigation in Chicot county, the will and estate of Junius W. Craig was involved; that in April, 1860, there was had a compromise, in which, what was called the compromise decree was rendered, by which the Craigs became bound to pay the city of Helena $150,000; that this decree of Adams and Hanks was rendered, as recited in the covenant, in a suit against Helena and the Craigs; and it otherwise appears that the suit was to enforce Adams and Hanks’ lien against the fund due Helena, as attorneys of Helena in the Craig Will Case. It would take a little time, after the compromise decree was rendered in 1860, to get up a lawsuit and ripen it into a decree in chancery. We therefore find nothing in the record to sustain the assertion that the recital of the agreement, that the decree was rendered on the 16th of October, 1861, is false; on the •contrary, we find much in the record tending to the inference that it is true for what it is worth. He who would contradict his own solemn recitals should bring more than an argument in a brief of counsel in this court to contradict it, ■especially, when he has testified in the cause and failed to ■correct it.
We had as well here construe the significance of this covenant, and the scope of the duties, liabilities, rights and responsibilities of the parties, as far as material to the decision of the question involved. Adams and Hanks were partners and joint owners of this decree, Adams having two-thirds, Hanks one-third. Hanks, by this covenant, acknowledges himself Mrs. Harris’ debtor for value. He attempts to carve out, and transfer to her, as a mode of payment, $3,900; thus leaving the legal title to the whole decree as it stood, in Hanks and Adams, for the transfer only gave Mrs. Harris an equitable right. Adams thus had in this decree about $8,280 and some cents, Mrs. Harris an equitable right to $3,900, and Hanks still retained about $380. The transfer did not make Mrs. Harris a partner with Adams and Hanks in the decree, or change the legal right to the control of it, jointly or severally, for their own interest; and while Mrs. Harris was bound in good faith and diligence on her part to secure the collection of the decree, if there was a decree, yet, if Hanks had seen proper to have interfered, she would have had no remedy at law, except for breach of covenant; and could not have invoked the jurisdiction of equity, except upon showing, by reason of Hanks’ insolvency, or like facts, her remedy at law was inadequate, unless, perhaps in this case, the covenant might be so construed as to make Hanks a trustee for her; otherwise, she would have been without equitable relief.
For if there is no trust or peculiar equity in the fund, or other circumstances authorizing the interposition of equity, she would have beeji left to her remedy at law. Story’s Eq., secs. ■718-738.
"We cite this to show how completely this was a matter of legal indebtedness on the part of Hanks, and how little his covenants really changed his legal obligation to pay the purchase money for the property he bought, which was his own debt, and for which he was personally liable. Hanks, by this covenant, guarantied the payment of this decree. He thereby warranted that he had a decree, valid, legal and binding, against the Craigs, and that this decree, with good faith and reasonable diligence on the part of Mrs. Harris, would be effectual to the payment of the debt of Hanks to her. This guaranty was not conditional, but absolute as a warranty of title and payment.
Hanks pleaded general performance. Mrs. Harris, at the May term, 1869, filed a supplement to her complaint, alleging, for further breach of the covenant, that the decree in the covenant specified had been by the decree of the Chicot circuit court, at the October term, 1866, annulled, set aside and held for naught, and said Craigs therefrom discharged, and nothing had been paid plaintiff except $260.67, on the 15th of February, 1866. Hanks answered this, setting up, that he was not a party to this suit, nor entered his appearance. That before the annulling decree was rendered, Adams, as the attorney of the plaintiff, compromised and compounded the original decree with Joshua M. Craig, and agreed to-accept for plaintiff, in satisfaction of her interest in the decree,. $3,800; and that, in confirmation thereof, she received various sums, amounting to $1,029.67, and part of it after the annulling decree was entered,
At the November term, 1870, plaintiff filed a second supplement to her complaint, in which she alleges, in substance, that after making of the covenant, John A. Craig, one of the defendants in the original decree, died, and an administrator was appointed, etc.; and that Adams and Hanks, nor either of them, procured the decree to be allowed against his estate; that since the commencement of this suit, and on the 29th of February, 1868, Joshua M. Craig, upon his own application, was adjudged a bankrupt, and on the 5th of May was discharged.
Hanks answers this supplement, and admits that the decree-was not presented for allowance against the estate of John A. Craig, but states that the sole reason why it was not presented was, that on the 2d of February, 1866, Adams, who was acting for himself and as agent for- Mrs. Harris, inclosed in a letter to him a transcript of the decree, sworn to, and requested him to present it to the administrator of John A. Craig for allowance, but on tbe next day, wrote defendant that he had compromised the decree with Joshua M. Craig, and not to present the claim for allowance. Admits Joshua M. Craig’s bankruptcy, but avers that before he filed his petition, Adams, acting for himself and as agent for plaintiff, and without authority from defendant, compromised the decree with said Craig, and took in settlement among others a note to himself for the use of plaintiff, which was not presented against the estate of Craig in bankruptcy, because Adams, acting for plaintiff, agreed with Craig that in consideration he (Craig) would pay the debt after discharge, he (Adams) would not prove the claim or oppose his discharge; that Adams brought suit on this note in the Chicot circuit court, and it was settled and paid. Upon these pleadings with the original declaration, the cause was tried. **
Hanks argues here, that we cannot take into account the ultimate insolvency of Craig, which is abundantly proved, because there is no such breach specifically assigned. We have not looked to see whether the specific breaches assigned are broad enough, as no objection was made in the court below to the introduction of testimony on this ground ; if it had been done, the pleadings might have been amended to conform to the truth. We shall not stop to consider it here, for the first time, where the covenant is fully set out, if the proof shows a breach. We will regard that as being done which the law permitted — the amendment of the allegations to correspond with the proof.
It is also argued that the fact of ultimate insolvency cannot be considered, because the court does not specifically find the fact. When, as in this case, the bill of exceptions shows a fact to be proven, we will not reverse the general verdict and judgment of the court below, because it failed to state specifically that the fact was found. Hanks contends further, that Craig’s insolvency was the result of the war, for which he was not responsible. To this it is sufficient to say that Mrs. Harris is not responsible for it either, and parties who contract must take the results and bear the losses it brought as they may fall, and we cannot warp the contracts of parties so as to relieve them of its consequences.
It is argued, further, that Joshua M. Craig’s insolvency did not exist at the date of the contract in 1861, and that Mrs. Harris should have collected it while he was solvent. It is too well settled now to need argument, that the courts being closed during the war, no process could be issued or required, and the effects of the war have been carried to the extent in special cases of excusing demand and notice of nonpayment of bills and notes, so as to charge ordinary indorsers. The court will judicially know that from 1861, the date of this covenant, until 1866, Mrs. Harris could not have enforced this decree, if it had been ever so valid. In 1866, Joshua M. Craig is proven to be hopelessly insolvent, and ultimately is declared and discharged as a bankrupt, although the bankruptcy could not of itself in this case be regarded as a cause of action, having occurred after suit brought at law. A purely supplemental faet will not constitute or perfect a cause of action brought as this was, if prematurely brought; yet, Hanks having answered it without objection, and admitted the evidence without exception, we will regard it here, to the extent to which it was admissible, under the original pleading in connection with the other evidence, to prove insolvency and its ultimately hopeless results, whereby it was rendered utterly impossible ever to collect the decree by legal coercion.
Under his covenant, it was the duty of Hanks to have probated the decree against the estate of John A. Craig, and against the bankrupt estate of Joshua M. Craig, or to have furnished a copy properly sworn to Mrs. Harris, to enable her to do so. For she, as the equitable owner, could not have proven part of a decree, when the legal title as well as the principal interest was in others. This duty was required of Hanks by the terms of his guaranty, and especially by the very last clause in his covenant.
Hanks’ answer shows that he contributed to the loss, if any, by failure to probate the decree against the estate of John Anderson Craig.. He admits the decree was sent to him, sworn to by Adams, for the purpose of presentation to the administrator ; but states that he did not present it, because Adams wrote him that he had compromised the decree with Joshua Mr Craig. This answer of Hanks tends to establish three facts:
1. That he was willing to entrust the entire matter to Adams — -judging him by his acts — who was a part owner of the decree, with whom, Hanks states in his testimony, the matter of winding up their old business was left.
2. That Hanks had early knowledge of the compromise and acquiesced in it by silence and actions.
3. That he is directly responsible for the loss of the decree against John Anderson Craig’s estate, if indeed the decree was valid against it.
It is contended by Hanks that Adams’ compromise was had in behalf of himself, and as agent for Mrs. Harris. The proof tending to sustain this, if any, is slight; upon this the witness Adams, who acted in the matter, swears positively that he was acting to protect -his own interest, which, was the greater, and incidentally for Mrs. Harris, simply as a friend, and without any authority or subsequent ratification by her. But conceding all that -is claimed for the effect of what is called Adams’ novation of the contract, what does it amount to ? The evidence of Mangum and Adams; and even Hanks’ own statement excusing his inattention to the matter, on the ■ground that he did not consider himself bound by his agreement, further than to see that he did not hinder Mrs. Harris in the collecting of it, and that he did not specially object to the compromise for that reason, and that Adams, with his permission and tacit consent, attended to the winding up of all •the affairs of their old partnership, and his answer, all tend strongly to prove that Hanks was bound by Adams’ acts as fully as Mrs. Harris was.
In so far as the verdict of the court may depend upon these facts, we shall not disturb it, because there may be some evidence in Hanks’ statement of opposite tendency ;• we would not disturb it even if the weight of evidence in our judgment were the other way.
The proof is convincing that but for Adams’ extraordinary exertions in his own behalf; and Pike’s personal influence over his client Craig, added in furtherance of Adams’ effort, not one dollar would have been collected for himself or Mrs. Harris. But by this extraordinary exertion, Adams saved several hundred dollars, which were paid Mrs. Harris on the covenant of Hanks, and for which he got credit on the trial.
To say that these acts so performed by Adams, under Hanks’ eye, and without a word of remonstrance or objection, until all is lost except the little Adams saved from the wreck, ■shall be called a novation of the contract, to Hanks’ prejudice, and be all visited upon the head of Mrs. Harris, it seems to us would be a mockery of that justice which we are here to administer. To such a conclusion we cannot give our ■assent. Hanks, in his deposition, in attempting to show that he did not approve of the compromise, closes with this sentence: “The truth is, my remaining interest in the decree, after my assignment to plaintiff of $3,900, was so small I thought nothing of it, and felt that I had no more to do with it.” This sentence may contain the keynote to Hanks’ whole conduct, but if that be even true, and we give bim the fullest credit for sincerity, we cannot excuse him for a misconstruction of his covenant, nor can we visit upon Mrs. Harris an ultimate loss, which the proof shows that no diligence could have prevented, and which Hanks does not pretend to claim could have been prevented. He tries to explain what he understood the covenant to mean- — -which was, that he sold Mrs. Harris chances of collecting $3,900, for her property. The covenant is not doubtful, and explains itself, and we are bound by its terms in our construction of it, as Hanks is in his duty to his creditor. Our construction of it is given on its face alone, and no parol evidence can be heard to explain or modify it. As a further proof of Adams’ power over the old partnership business, Hanks says in his deposition: “ I have never regarded the partnership as existing since the war, and turned all the books and papers over to Adams.” This turning over would have been very useless if it had not involved the power to act in reference to the matters “ turned.” We have construed Hanks’ covenant as warranting, the existence and legal validity of the decree, in which he assigns, equitably, a part interest, and was a covenanting guaranty. The compromise decree in the Craig Will Case is not before us. Pike, whose testimony in that regard was admitted without objection, testifies that it was rendered in April, 1860, in a cause in which said Sandford C. Eaulkner and wife and others were complainants, and the executors of the will of Junius W. Craig and his heirs and the city of Helena and others, legatees, were defendants. That after the compromise decree, Joshua M. Craig, who had become liable to the city of Helena, and to Edward J. Wright, for a large amount, and given his and John A. Craig’s notes for the same, had cause to think that the decree was a nullity and in such shape that if he paid the money which he had assumed, he would obtain no title to the property. Pike gave him his opinion to that effect, and he employed Pike to file a bill to “ recall and cancel the decree.” The bill was filed for that purpose to the April term, 1861, making Helena a defendant, also Charles W. Adams, who was the attorney of Helena in the original suit and drew the decree, and had received for his fee one or more of the notes given under the decree by Joshua M. Craig and John A. Craig, to the city of Helena. This suit slumbered on the records until the close of the war, when John A. Craig having died, Pike filed a supplemental bill in behalf of Joshua M. This suit resulting in a decree annulling the former compromise decree of April, 1860, for the benefit and behalf of Joshua M. Craig and the estate of John A. Craig. The decree is in the record in this cause and is far reaching and full, the defendants being the heirs and legatees of Junius W. Craig, Emma J. Wright as executrix and William P. Halliday as executor of his will, the city of Helena, Charles W. Adams and others. Hanks was not a party. The decree pronounces the notes given to the city of Helena, upon which Adams and Hanks’ decree was founded, without consideration, null and void, and annulled the compromise decree with all its dependents and incidents, and the verdicts and judgments at law based thereon, etc., and that the same be taken “and held as though never made,” and the city of Helena and all other defendants and persons claiming under them were perpetually “ enjoined from in any manner availing themselves thereof, in any suit, proceeding or controversy or matter whatsoever.”
Hanks claims that he is not bound by this decree, because he is not a party. Conceding this, which we do not, still Adams was bound. No process could have been issued without throwing him in contempt of thé court, and although Hanks’ counsel contends here that Mrs. Harris might have issued an ex ■ecution on the decree for her $3,900, we do not suppose they were serious in this, for even if an execution could have been issued as they claim for a part, it still must have been in the name of Adams and Hanks. So the decree was practically dead.
In a review of authorities in the case of Harrison v. Trader and wife, ante, p. 85, we showed that on bills to cancel decrees like this, the matter was regarded as lis pendens, from the beginning of the original suit, and all intermediate purchasers with notice were fully affected and bound by the decree, which was finally annulled. If this were not the rule, all that it would be necessary to avoid would be an adverse shifting of title. The following authorities fully sustain us in holding Hanks bound by the decree, if not as a privy in fact, under the city of Helena, at least as a purchaser pendente lite. Earl v. Couch, 3 Metc., 450; Clay v. Marshall's Heirs, 4 Dana (Ky.), 95; Debrell v. Foxworthy, 9 B. Mon., 228 ; 2 Dana (Ky.), 406; Story’s Eq. Pl., sec. 156.
It would be difficult for us to say that Hanks, who was one of the attorneys in the original suit, and whose firm, the proof shows, drew the answer of the city, is not affected with notice of the source of his title when in the case of Earle v. Couch, above cited, the supreme court of Kentucky held that a relative of such attorney, who bought from him, was affected. We therefore hold, that the annulling decree destroyed the original decree with all its incidents and related back, in its effects, if not to the beginning, at least, to the commencement of the suit and review in April, 1861. Therefore Hanks’ covenant was legally false when made in November 1861, reciting a decree in October 1861, and was broken at once and there was a right of action. Logan v. Moulder, 1 Ark., 322.
Hanks’ covenant was that he had a valid decree. His decree was an incident of, and dependent upon the original compro mise decree. The effect of the decree in favor of Adams and Hanks was to subrogate them pro tanto to the rights of the city of Helena, against the Craigs in the compromise decree. That decree being annulled, of course, swept Hanks’ incidental decretal offshoot with it, and left him standing simply a debtor to Mrs. Harris, upon a sealed covenant and guaranty.
But if we are mistaken in this, still it is evident, that the decree is not of continued effect, and could not result in ultimate payment, which is a sufficient breach of the covenant to sustain the verdict and judgment, if Hanks failed to pay when such facts transpired.
In the crompromise made at Memphis, in February 1866 between Adams and Joshua M. Craig, which Hanks claims as a novation of the contract which '.released him, it appears that Adams, after the war, and the legal solvency of Craig became ■doubtful, and his inability to pay the whole decree became manifest, had gotten Craig to agree to pay $8,800 — of this he paid $800 in cash, one-third of which was paid to Mrs Harris, and for the balance, had taken notes, due at different periods, to himself for his own use, amounting with his two-thirds of the last payment to $ 5,000; and had taken one of the notes payable to himself, for the use of Mrs. Harris, for a sum which with her one-third of the last payment equalled $3,800 — , which latter sum Adams, not having the covenant before him, thought was tbe real amount due Mrs. Harris. Craig after-wards made some payments to Adams, one-third of which was placed to Hanks’ credit on his covenant with Mrs Harris.
Although Hanks says his conversation with Mangum must have referred to another matter, we are strongly impressed, that it was of this compromise, that Mangum testifies that Ha nks said: “We were more fortunate than Hanly in getting our fee in the Craig Will Case; we secured a part of our fee by compromise.” It is of this Adams testifies, when he says Hanks, in Ms interview with him shortly afterwards and while Craig was at Memphis, and the compromise could have been undone and recalled, unequivocally approved it. It was of this Adams-wrote to Hanks, which the latter gives as his reason for not presenting the claim to the administrator of John A. Craig.
It is proven by Adams, also, that Mrs Harris never saw the note he took for her use in the compromise, and when he paid her the $267, the third of the $800 cash, she received it, but said she did not want to do any thing which would release Hanks. The proof tends to show that the compromise was-entered into by Craig, through Pike’s influence over him; that after the bankruptcy, some of the compromise notes, amounting to the greater part of the debt, remained unpaid. Through Pike’s influence and Adams’ exertions, a new promise was gotten, on which Adams sued in the Chicot circuit court and got judgment, after Craig’s bankruptcy, but realized nothing out of it. The testimony tends to prove, that Joshua M. Craig’s bankrupt estate was worthless, and would not have paid the expenses of establishing the compromise notes against it.
Adams owns that he acted for the firm in the original compromise as he did in other matters ; that he had collected and paid his part of other fees to Hanks. Finally, realizing nothing on his judgment against Craig, he accepted from him, in full discharge, a deed for a piece of land in Chicot county of uncertain value. This land was incumbered with taxes anda lien due Carlton. Adams has never received anything on it. Adams offered to share this land with Hanks, and asked him to divide the expenses and to help pay the claims off. Hanks refused and testifies himself, that Adams asked him if he renounced it; he replied “Yes.” Adams then told him to remember this. As this occurred after the breach of Hanks' covenant, when Mrs. Harris had a complete right of action against him, and while this suit was pending, it is difficult to say how the private transactions of Adams and Hanks could take it away or impair her rights, unless Hanks can bring home to her some act which has injured him, or show that she has realized money for which he is entitled to credit. Even then, this suit having been commenced of right, he must pay cost. Mrs. Harris is in no way a party to this land transaction. Adams, who alone could .really fully know, swears he was acting for himself, and to secure his own interest.
As Hanks interposes no claim and introduces no proof of value, it would not be considered as an accord and satisfaction, and in the light of a novation, we have already discarded that, for the original liability was Hanks.’ The assignment of the decree was a security or mode of procuring payment, and nothing but bad faith or gross negligence on Mrs. Harris’ part could excuse him.
There were a number of propositions of law asked on the part of each party ; some were given and some refused. Appellant made this action the ground of exception during the progress of the trial, and the court having rendered a verdict against him, he moved the court for a new trial, making this action of the court special grounds. This motion was overruled. There were seven causes assigned in the motion, but as we have fully reviewed the case, we shall not take the declarations of law or the ground assigned for new trial specially into consideration. "We are satisfied that the court acted under no serious misapprehension of the law governing the case, and on the whole record before us, the same verdict and judgment should be rendered again, if we should grant a new trial for abstract or immaterial errors. The court below therefore properly overruled appellant’s motion for a new trial.
Let the judgment be affirmed.
Hon. E. H. English, C. J., did not sit in this case. | [
-76,
73,
-48,
109,
10,
64,
42,
-72,
-6,
-15,
37,
91,
-19,
28,
21,
97,
35,
45,
81,
105,
-12,
-78,
19,
67,
-46,
-77,
69,
-57,
-79,
69,
118,
-42,
76,
32,
-54,
-103,
-126,
-62,
-51,
30,
-58,
1,
11,
104,
-35,
64,
52,
59,
18,
11,
117,
62,
-77,
47,
52,
79,
109,
46,
77,
46,
-39,
56,
-97,
86,
-1,
23,
-111,
100,
-111,
13,
-56,
-100,
-112,
53,
0,
-24,
115,
54,
70,
-42,
77,
-55,
8,
34,
102,
3,
-59,
-17,
-104,
-100,
79,
-42,
-115,
-90,
-16,
89,
3,
8,
-65,
-100,
31,
16,
-116,
-46,
-24,
101,
17,
40,
39,
-17,
-106,
-93,
21,
122,
-107,
3,
-13,
79,
48,
85,
-58,
118,
93,
79,
59,
-109,
-114,
-47
] |
English, C. J.
The appellant, John T. H. Majors, who was clerk of the circuit court of Poinsett county, was indicted for disclosing to W. A. Porter, before his arrest, the fact that •an indictment had been found against him. He was tried on a plea of not guilty, the jury returned a verdict of guilty, and the court rendered judgment, fining him one hundred dollars, and removing him from the office of clerk. A motion lor a new trial was overruled, and bill of exceptions taken.
On the trial, the state introduced Porter as a witness, and proved by him the material allegations of the indictment. The appellant undertook to impeach the witness. The testimony of the first witness of the appellant extended only to the •general reputation of the state’s witness for truth and veracity. The second witness stated that he knew his character for truth, veracity and “immorality” in the community in which he lived, and that from that general character for truth and ■“immorality,” he would not believe him on oath. The third witness testified, alsoj that his general character for truth and “ immorality ” was bad, and that from his general character he would not believe him on oath. The fourth witness (Beecher) testified that he had known Porter for a number of years; that he knew his general character for immorality in the community in which he lived; that his general character as such was very bad, and that from his general character he would not believe him on oath. The testimony of this witness, and so much of the testimony of the other impeaching witnesses as went to the immorality of Porter, was excluded by the court from the jury.
It seems from the bill of exceptions that the court below was of the opinion that the witness could only be impeached by proving that his reputation for truth and veracity was such as to render him unworthy of belief, and that the inquiry could not extend to his general reputation for immorality, etc.
In Teese et al. v. Huntingdon et al., 23 How., 11, Mr. Justice Clifford said: “ Courts of justice differ very widely, whether the general reputation of the witness for truth and veracity is the true and sole criterion of his credit, or whether the inquiry may not properly be extended to his entire moral character and estimation in society,” etc.
In Pleasant v. The State, 15 Ark., 652, this court said: “In cases of rape, or assault with intent to commit rape, the inquiry as to the reputation of the prosecutrix is not confined to truth and veracity, but extends, as we have seen, to her chastity. Whether this is the only exception to the rule, we-do not mean to decide in this case, as the question does not-arise. There are some authorities against confining the inquiry in any case, to the reputation of the witness for truth and veracity, and in favor of extending it to the entire moral character and standing in society. 1 Greenl. Ev., note 3 to sec. 461, p. 582.”
Since these opinions were written, our code of practice was adopted, and it contained a provision on the subject (sec. 654) copied from the Kentucky code, which has been carried into Gantt’s Digest (sec. 2524), and which the court below probably overlooked. It provides that “a witness may be impeached by the party against whom he is produced, by evidence that his general reputation for truth or immorality renders him unworthy of belief; but not by evidence of particular wrongful acts, except that it may be shown by the examination of a witness or record of a judgment, that he has been convicted of felony.”
Under this statute the court below erred in excluding the-testimony of the impeaching witness Beecher, etc.
The judgment must be reversed and the cause remanded, with instructions to the court below to grant the appellant a new trial. | [
52,
-24,
-96,
-97,
42,
96,
40,
122,
-24,
32,
119,
82,
-23,
82,
0,
97,
-69,
41,
81,
59,
-51,
-109,
23,
-31,
-77,
-13,
-71,
87,
51,
73,
-27,
117,
12,
112,
104,
-15,
-89,
-56,
-27,
92,
-122,
33,
-104,
-32,
-102,
-111,
52,
91,
20,
95,
113,
62,
-13,
122,
29,
-50,
-23,
60,
111,
-87,
72,
-77,
-98,
12,
77,
2,
51,
38,
-98,
7,
-24,
60,
-80,
17,
1,
-67,
115,
-106,
2,
-44,
43,
-86,
8,
98,
98,
49,
109,
-91,
32,
-55,
111,
126,
-99,
-89,
16,
72,
75,
105,
-73,
-43,
50,
112,
46,
106,
-19,
92,
61,
108,
37,
-113,
-74,
-77,
15,
52,
-98,
-77,
-13,
33,
16,
112,
-51,
-14,
92,
71,
49,
-101,
-113,
-106
] |
Walker, J.
The defendant Thomas C. Elournoy executed to Elizabeth J. Elournoy, the executrix of the estate of Thompson B. Elournoy, on the 2d day January, 1867, his note for $7,000, due the 1st of December of that year, and two other notes, dated 8th of January, 1867, one for $3,100, the other for $1,300, both due the 8th of December of that year. The first of these notes was given for the rent or lease of a plantation belonging to the estate of Elournoy, and the other 4wo for stock and farming utensils, which also belonged to the estate. The notes were made payable at the office of L P. Harrison & Son, in New Orleans. With these notes there was also an agreement of defendant with the payee, Elizabeth J. Elournoy, that he would ship cotton to the house of I. P. Harrison & Son, to pay the notes as they became due.
The estate of Thompson B.°Flournoy was indebted to the firm, of Payne & Harrison to the amount of $40,000, and soon after the notes were executed, they were indorsed in blank by Johnson, as agent for the payee, and placed in the hands of I. P. Harrison, one of the firm of Payne & Harrison, for collection. The blank indorsements were filled up, making the notes payable to Payne, Huntington & Co.
On the 14th of July, 1869, Jacob Payne, George W. Huntington and William H. Dameron, partners doing business under the name and style of Payne, Huntington & Co., brought their suit in the circuit court of Arkansas county against T. C. Flournoy, the payor of the notes.
The defendant filed his answer, in which he admitted the execution of the notes, but denied that they were assigned to plaintiffs for a valuable consideration; that the notes were left with I. P. Harrison merely for collection, and were indorsed for that purpose only; and that afterwards and whilst the notes were the property of the payee, that he had fully paid them.
This answer was not sworn to, as required by our code of practice, and for this defect might have been stricken out, but as no exceptions were taken to it for this cause, it is too late after replication and trial before a jury, and final judgment, tó raise the objection, for the first time, in this court.
The case was submitted to a jury and a verdict returned in favor of the defendant. The plaintiffs moved for a new trial which was overruled, exceptions were taken and an appeal to this court.
• Exceptions were taken to several instructions given at the instance of the defendant, as well as well as to those refused by the court when asked by the plaintiffs, which, from the conclusions at which we have arrived as to the law governing the case, will be disposed of in the further consideration of the case.
It is contended on the part of the plaintiffs, that the notes in suit left with Payne & Harrison, as collateral security for bhe payment of a debt due by the estate of T. B. Elournoy to them, and, being indorsed in blank, Payne & Harrison had a right to deliver the notes to Payne, Huntington & Oo., the plaintiffs in this suit.
On the part of the defendant, it is contended, that the notes were not placed in the hands of Payne & Harrison as collateral security, but were in fact left with I. P. Harrison, a member of that firm, for collection, with instructions to apply the money when collected to the payment of the debt which the estate of Elournoy owed to the firm of Payne & Harrison, and the indorsement on the notes was made to facilitate collection •and for no other purpose.
In the investigation of the question of the ownership of ■these notes, and as to whether they did or did not pay to the plaintiffs by assignment, and vest in them a right of action against the payor, the defendant in this action, it will be im-’ portant to inquire, not only whether from the facts as disclosed in evidence, an assignment of the notes was made, up■on such consideration and under such circumstances as to divest the payee, Mrs. Elournoy, of her title to them, but also as to whether she, holding them as she did, as a trustee, to be ■collected for the benefit of the creditors of the estate of T. B. Elournoy, and for his heirs and distributees, had the power to ;sell, or to assign the notes which were held by her as the executrix of the estate as assets to be distributed under the provisions of the statute.
These notes were executed to the payee, as the executrix of the estate of Elournoy, and given in consideration of rents and personal estate of the testator, T.. B. Elournoy, sold and rented to the defendant, who executed the notes in suit. .Jilson P. Johnson, the agent for the payee, deposed that, at the request of the executrix, he went to New Orleans, to see Payne and Harrison concerning the indebtedness of the estate to them. That he took with him $4,000, and the notes in suit for the purpose of making an arrangement with them to take the money and notes in part payment of the debt which they held1 against the estate of T. B. Elournoy, deceased; that Payne, with whom he was trying to make the negotiation, positively refused, under any circumstances to receive the notes in part payment of any part of the debt, and refused to have anything to "do with them, even as security for the debt. That after repeated efforts to effect this purpose had failed, he abandoned all hopes of effecting this arrangement. He agreed with Payne to pay $4,000 on the claim against T. B. Elournoy’s estate; and as two of the notes were payable at the house of I. P. Harrison & Son, he would leave the notes there for collection, subject to any arrangement he, Johnson, might make with T. C. Elournoy concerning them. Witness states that he saw I. P. Harrison, one of the firm of Payne & Harrison, and told him that he had been unable to make any arrangement with Payne to receive the notes as part payment for the debt, or even as security for the debt, and left the notes with Harrison for collection — his object being, in the indorsement of the notes, simply to give authority to collect them.
I. P. Harrison deposed : That the notes were handed to him in January, 1867, by Jilson P. Johnson; that I. P. Harrison & Son, of which firm he was a member, were at the time the merchants of T. C. Elournoy; that the estate of T. B. Elournoy was not doing business that year.
The circumstances under which the notes came into the possession of Payne & Harrison were, that Jilson P. Johnson called, and asked Payne & Harrison to credit the account of the estate of T. B. Elournoy with the amount of the notes, and with $4,000 cash. Witness says he told Johnson that he could not do so without the consent of Payne. Johnson went down stairs to consult with Payne, and when he returned, said that Payne refused. The notes were then put into his, Harrison’s, hands, with the statement that when the notes were collected, the account of the estate of T. B. Flournoy with Payne & Harrison would be credited with the amount collected. That witness made no arrangement with Johnson except to collect the notes, and to credit the account of the estate with the amount when collected. Witness says, this was all that took place at the time the notes were placed in his hands. But further states, that Johnson conferred with him, as a member of the firm of Payne & Harrison, and that he had nothing to do with his other business, and that when Johnson came back from his conference with Payne, he said Payne had refused to take the notes in payment, but had agreed to receive them to be credited, when collected, on the debt against the estate. He recollected nothing said about collateral security. The notes were left to be collected, and proceeds applied to the credit of the debt of the estate to Payne & Harrison.
Payne, the other partner of that firm, says that he did refuse to receive the notes when offered by Johnson in part payment of the firm debt against Flournoy’s estate, .but that he agreed to receive them as collateral security for the debt, and to credit Payne & Harrison’s claim ag ainst said estate out of the proceeds of said notes as collected —still holding the estate responsible for so much of the debt as was'not credited, and that Johnson agreed to deliver the notes upon the terms thus stipulated, and that he directed Johnson to leave the notes with Harrison.
Evans, the clerk of Payne & Harrison, deposed that he wrote the following receipt, which was read in evidence:
“ New Orleans, January 17, 1867. — Received of Mr J. P. Johnson, agent for Mrs T. B. Flournoy, executrix of the estate of Thompson B. Flournoy, deceased, $4,000 in currency, and the following notes (describing them). The $4,000 currency now to be applied, and the above described notes to be applied, when collected, to the payment of the indebtedness of T. B. Flournoy’s estate to Payne & Harrison, as described in a transcript from the record of certain allowances made at the March term, 1866, of the probate court of Desha county, Arkansas, against the estate of Flournoy, and in favor of Payne & and Harrison. (Signed) Payne and Harrison.”
Evans states that he entered these notes upon the books of Payne & Harrison, as notes for collection and not on the books as notes which belonged to the firm. .
The following letter was also given in evidence, written in answer to one by J. P. Johnson, dated November 27, 1867, requesting I. P. Harrison & Son to return' the notes left with them for collection, to which they replied:
“ Your fayor of 27th ult. is received, requesting us to return you Mr. T. C. Flournoy’s notes which you handed to us to be applied in payment of a debt due by the estate of T. B. Flournoy to Payne & Harrison. Payne & Harrison gave you their receipt for these notes, and we are not authorized to return them whilst their receipt is out. Be pleased to send the receipt to us, and we will use our influence with P. & H. to send the notes to you. We have not the power to do it; but suppose they will not object. * * * (Signed) I. P. Harrison & Son. Written by I. P. Harrison.”
Harrison admits in evidence that he wrote this letter, but assumes that he was not very sincere in making his statements, for considerations of policy.
T. C. Flournoy states that he was in New Orleans in 1869, he thinks, before suit was brought against him. He says : I. P. Harrison sent for me to come and see him, and when I went, he asked me if I had said anything to Mr. Payne about his giving up my notes ; I answered that I had not, hut that I intended to do so; and he told me not to do it. He said, I will do it myself; I do not want you to say a word to him; let me manage him. I can get him to give them up to you, but you could do nothing with him, he is a very contrary man. Mr. Harrison then said it is an outrage upon you, and he ought to give the notes up to you, and if he does not, and should sue you, have me summoned, and my testimony would settle it, and that I would have nothing to pay. I saw Mr. Harrison again the next day, and he again insisted that I should not speak to Mr. Payne, that he was working it through Mr Huntington, and that I should soon get the notes. He also stated to me that the notes were only left with them for collection, but the proceeds to be applied to the payment of the debt due by Flournoy’s estate to them. Harrison also remarked to me that if all the money I had paid to Mrs Flournoy had been applied to the payment of the debt due Payne & Harrison, there would have been no trouble about the notes.
This is all of the evidence material to the question of assignment, which is denied in the first paragraph of defendant’s answer.
The first question to be determined is: Had the executrix power to appropriate the assets of the estate to the payment of one of the creditors in preference to others ? Edwards, in his work on Bills and Notes, p. 244, says: “ The transfer of notes and bills being a contract, it is of course necessary that the payee or holder of the instrument should, in the first place, have a legal capacity to do the act.” Had the executrix of the estate of Thompson B. Flournoy this power ? "We must hold that she had not. She was a mere trustee, and derived all of her power and authority, either from the provisions of the will, or from the law. Under the statute, she is required to take into her possession the whole of the estate of her testa tor, to charge herself with it, and, annually, to report to the probate court, the whole amount of the estate which has come to her hands, the amount of cash collected, the amount paid in expenses, and the balance of cash on hand. The sum so ascertained by the court upon settlement is held as a common fund for the payment of the debts of the estate. All creditors are required to present their claims to the court for allowance and classification. No claim is to be paid until thus presented and classed, and an order for payment made by the court, giving preference in payments to claims of prior right to satisfaction according to class.
If an administrator or an executor makes payment without an order for that purpose, he does so at his peril, and will not upon settlement be allowed credit for the money so paid. McPaxton v. Dickson et al. 15 Ark., 41. Nor can an executor or administrator set off a debt contracted by his testator or intestate, against one contracted with themselves as such. Because this would disturb the equitable course of administration by appropriating part of the assets which properly belongs to the common fund for distribution, to the satisfaction of a single, debt, which may be of lower grade than others. Bizzell v. Stone et al. 12 Ark., 378.
The power of an executor or administrator' to assign notes and bonds belonging to an estate, as provided in sec. 96., ch. 4, Gould’s Dig., 120, relates to the payment to creditors, legatees and distributees, whose claims have been allowed and classed and an order for their payment made, and is in effect a substitution of debts for money, should the creditor or distributee choose to receive them, and gives no power to sell, assign or dispose of debts, part of a common fund, in payment of the debts of creditors before, upon settlement, it is ascertained how much is due them. So far from conferring a general power to assign notes and bonds of estates, this enact ment, conferring power for a special purpose, negatives the presumption that any such general power exists.
A fiduciary agent cannot transfer assets of an estate without an order of court for that purpose. Burbank, Curator, v. Payne & Harrison, 17 La. An., 15. In the case of Nickolson v. Chapman, 1 La. An., 222, where a syndic made an indorsement of a note which belonged to the estate of which he was syndic, it was held that his mere indorsement of the note as syndic was notice that the note belonged to the estate, and could not be discounted without an order of court; and, that the assignee who took the note thus assigned, acquired no right under it, adverse to the party to whom it belonged.
In the case of Miltenberger v. McGuire, 15 La. An., 486, where a commercial firm were the holders of notes and remitted them before maturity to another firm to be collected, and the money, when collected, to be applied in payment of a debt in favor of the latter firm, and was indorsed to render the collection more easy, it was held that the firm so receiving the notes are to be considered agents for the collection of the notes, and that the original holder of the notes had never ceased to be the owner of them.
When a person to whom an agent transfers negotiable paper is unacquainted with the agency, it is his duty to ascertain the extent of the agent’s authority, and he can acquire only such interest as the agent is authorized to convey. Edwards on Bills and Notes, 252.
These authorities fully sustain us in holding that the executrix of the estate of T. B. Flournoy held these notes in her fiduciary capacity as part of a general fund out of which to pay the debts against the estate, and had no power by assignment, or otherwise, to appropriate them to the payment of the debt of one creditor to the exclusion of others.
But if such was not the case, we think the evidence falls far short of showing a valid transfer or assignment of the notes. It shows no sale absolutely, or as collateral security. They did not pass into the hands of I. P. Harrison & Son, nor to Harrison for Payne and Harrison, in the due course of trade for a valuable consideration; there was no contract between these parties, no consideration passed, no remedies parted with, no debts delayed or postponed. But the weight of the evidence tends to show that the notes were left with I. P. Harrison by the agent of the payee for collection. This was the voluntary act of the payee, without consideration, and as a matter of convenience. The fact that the payee directed that the money, when collected, should be paid to Payne & Harrison in satisfaction of that much of their claim against the estate of T. B. Elournoy, was a mere direction to an agent as to the disposition of the money when collected, The payee had a right to change this direction at pleasure.
The mere act of placing the notes in the hands of an agent, for collection, in no wise lessened or impaired her right to collect the debt and apply the money received differently, if she chose to do so. And this, as appears from the evidence, she has done.
If these notes had passed by assignment to the plaintiffs in the ordinary course of trade for a valuable consideration, as innocent holders, without notice of the facts attending this transaction, the authorities would go far to sustain plaintiff’s right of action. But such is not the case. The fact that the notes were made payable to the executrix of the estate of Thompson B. Elournoy, and that they were indorsed in her representative capacity, was notice that the notes were assets -in her hands. Plaintiffs were members of the same firm, with one of whom the notes were left for collection, and from whom the notes came into their hands. They knew that the notes did not pass into the hands of Harrison, or of Payne & Har rison, in the course of trade, or upon a consideration. And for this reason, as well as because there was, in fact, no valid assignment of the notes, their action must fail.
It may be, as Payne, one of the firm deposed, that the plaintiffs, under a new firm name, are in fact the members of the firm of Payne & Harrison. Admit all that Payne says to be true, and that the new firm have succeeded to the assets of the late firm of Payne & Harrison, this fact can avail nothing, because there are no averments in the complaint to that effect, and the evidence consequently has no application to the case as made by the pleadings. If the plaintiffs have in fact succeeded to the assets of the late firm of Payne & Harrison, and are, in fact, the same parties, they may have the full benefit' of their judgment against the estate of Thompson B. Elournoy in the probate court upon settlement, and an order for the payment of the debts of the estate. In which settlement the executrix is required to account for the money which she received in payment of these notes, and of which the firm of Payne & Harrison, or these plaintiffs, if their successors, will receive their distributive proportion, which is all to which they are entitled.
Thus considering the law applicable to the case, the instructions given to the jury were substantially correct; in fact, more favorable to the plaintiffs than they should have been.
As regards the exceptions taken by the plaintiffs to the decision of the court in permitting certain letters to be read in evidence, it may suffice to remark that the record simply shows that the plaintiff excepted to the introduction of certain evidence at the time the same was offered; but there appears to have been no bill of exceptions taken or signed by the judge, or made part of the record upon the overruling of the motion for a new trial, under the practice, as held in Lennox v. Pike, 2 Ark., 14; Brock v. Saxton, 5 id., 708. But if otherwise, from the view which we have taken of the question of assignment, to which the evidence admitted over the objections of the plaintiffs was intended to apply, it could in no wise have changed the result.
There was other evidence introduced which showed clearly that the defendant paid and fully discharged these notes to Elizabeth J. Elournoy, the executrix, and fully sustained the second paragraph of defendants’ answer which averred payment.
Finding no error in the proceedings and judgment of the court below, the same is affirmed. | [
-16,
108,
-8,
95,
-102,
96,
49,
-70,
-46,
2,
-90,
83,
-31,
87,
81,
33,
-31,
-55,
80,
123,
-27,
-77,
60,
96,
-61,
-41,
-47,
23,
53,
-51,
-28,
-43,
76,
52,
-50,
-103,
-61,
-64,
-17,
92,
-50,
41,
-85,
108,
-7,
32,
48,
111,
85,
79,
113,
-82,
-85,
42,
26,
-33,
77,
46,
-19,
41,
112,
-87,
-69,
-121,
31,
23,
50,
102,
-104,
7,
-54,
14,
-112,
53,
16,
-88,
112,
-90,
-122,
84,
37,
9,
8,
102,
6,
48,
-27,
47,
-56,
-100,
36,
-10,
-115,
7,
-112,
105,
11,
72,
-98,
-107,
94,
17,
-121,
118,
-12,
21,
17,
104,
5,
-113,
-106,
-93,
47,
58,
-108,
27,
-21,
47,
60,
115,
-49,
50,
93,
2,
56,
-101,
-113,
-13
] |
Williams, Sp. J.
The plaintiff brought suit against defendant in the Drew circuit court, on the 8th of March, 1871. In the complaint he states that about the 6th day of June, 1861, plaintiff, with one James H. May, employed defendant and his law partner, who is not sued, as attorneys and 11 agents ” to collect and receive moneys for him from various persons, to be paid over to plaintiff. That May, on or about the 11th day of May, 1862, assigned and transferred his right in said claims in the schedule exhibited to plaintiff; that the defendant, as such attorney, received money from divers persons, whose names, and the date of the receipt and the amount received are set out in a schedule attached to the complaint, which sums amounted to nine hundred and forty-five dollars and eighty cents. That after deducting all credits, there was due the plaintiff the sum of six hundred and forty-seven dollars and fifty cents; that the plaintiff, from 1861 to the year 1871, was a resident of the state of Missouri, and up to the 29th day of September, 1868, he did not know that the defendant had collected the money claimed, and avers demand of the money on the last named day, and a refusal by defendant to pay.
The defendant answered. In the first paragraph, he states that the money mentioned in the schedule attached to the complaint, as collected on the 28th day of September, A. D, 1863, of N. E. Davis, was Confederate money, and was collected in Drew county, Arkansas, about the 28th of September, 1863; set up at length the existence of the late war, and that the money was received under military coercion ; that Drew county was under the military authority of the Confederate States at that time; that the money was received by defendant’s partner under military orders requiring Confederate money to be received for all debts, and that a refusal would have subjected the recusant to arrest; and May "& Whitehead, being at the time nonresidents of the state, and not present to be counseled by him, or to assume the responsibility of refusing to obey the said order, defendant’s partner accepted from Davis the amount of the note in Confederate money. This, as shown by all the pleadings and evidence, is the real and only matter in dispute.
The same paragraph of the answer contains the further allegation that defendant's partner well knew that he could not enforce payment against Davis, who was about leaving the state; that to secure the matter and prevent the loss of the money, he accepted the amount of Davis’ note in Confederate money, and loaned the same to one Eletcher, who was at the time reported to be, and regarded as a man of wealth and sol vency, and .took a note payable to May & Whitehead, drawing ten per cent, interest from date; that Eletcher had since become bankrupt, and the debt, without fault of defendant, has .been lost. This paragraph concludes with an averment that all other sums collected had been duly paid over.
To this paragraph in the answer, plaintiff demurred, and the court sustained the demurrer, as to which no question is before us. The complaint and this part of the answer, however, present, as clearly developed in the proof, the real difference between the parties. The case réally presents a contest as to who shall bear the loss of Fletcher’s insolvency, which seems to have occurred after the loan of the Confederate money to him.
The second defense contained in the answer is the statute of limitations of three years, which presented one of the issues upon which the case was tried.
The third defense of the answer is, that the amount sued for was received in Confederate money; that in the fall of I860, May, who, before that time and afterwards, with the full knowledge of plaintiff, was writing to said defendant and acting as one of the owners of said claims, and equally interested with plaintiff in the same, fully ratified and agreed to what had been done in collecting and loaning the Confederate money. This paragraph formed the second issue that was tried.
There was a fourth paragraph, stating in a shorter and different form the allegations of the second, and concluding with a general denial of having received money. To this fourth paragraph a demurrer was sustained, and, on leave, defendant filed an amendment containing a general denial of having received money for plaintaiff. This formed the third and last issue.
The case was tried by jury, which rendered a general ver diet for defendant. The plaintiff filed his motion for a new trial, stating therein as grounds for the same:
1. The verdict is not sustained by sufficient evidence.
2. The verdict is contrary to the evidence on the trial.
8. The verdict is contrary to the law and instructions of the ■court.
4. Irregularity in the jury; that one of the jurors named Ralph had not been in the state six months, and was not a qualified elector, and this fact was unknown to plaintiff at the time and during the trial. That Ralph had erroneously responded in the affirmative, when asked as to his qualifications ■on being impaneled, not knowing that it required six months residence to become a qualified elector. . The motion is sworn to by the attorney of plaintiff and by plaintiff, at least both signatures are attached to the motion, and the clerk places below the usual jurat, “ sworn to and subscribed,” etc. It is not presumed, however, that the counsel intended to swear to all the grounds of his motion. Although very informal, we will treat it as an affidavit to the facts set up in the fourth clause of the motion. Plaintiff excepted and filed his bill of exceptions, which contains all the evidence.
The first cause for new trial is that the verdict is not sustained by sufficient evidence. Let us first see what the verdict is responsive to. Plaintiff avers that defendant collected money; that, defendant denies. Whether proof that confederate money was collected by defendant will sustain an allegation of money in the complaint, becomes a question, which in the view we take of this case, it will be unnecessary to decide.
The two remaining issues, to which the verdict responds favorably to defendant, either of which concludes the case, are, first, Did plaintiff ratify the collection and loan of the confederate money to Eletcher; second, Had three years elapsed since the cause of action accrued ?
In order to correctly determine this, lot us examine the testimony.
Plaintiff, as a witness, stated that he delivered the claims to-defendant and his law partner for collection; that May transferred his interest to plaintiff by indorsement on the schedule-of the claims. May knew as much or more about the business than plaintiff did and he got him to come to Drew county as plaintiff’s agent. He came back without any money; plaintiff did not remember his saying anything about Harrison, and Wells, the defendant, loaning any money. Schedule-A, in the complaint, is the receipt Harrison and Wells gave plaintiff; came to Monticello the fall before the trial (which was the fall of 1870) and saw defendant; he gave him receipt, on Yan Gilder, Jones, and Bell & Carlton; plaintiff demanded a statement -of accounts between them; defendant, gave it. He then exhibits the statement, in which, among-other matters, plaintiff is credited with cash from W. R. Davis, six hundred, thirty-seven dollars and fifty cents, and is charged with commissions on same, $63.75, and amount of Fletcher’s note, $563.75, which with the undisputed cash payment balanced the account. Plaintiff, says further, I objected to the note of Fletcher in the statement. He gave me a receipt for the Fletcher note to Bell & Carlton. I gave the receipt back to him. I told him I would look to him for-the money. I told him I was not satisfied and would sue him. I never knew he had collected the W. R. Davis note till I came down here in the fall of 1870. He may. have written to me, but I have forgotten it. I lived in Missouri. May was only my agent. He sold out to me when he went-to the 'war. He had only authority to receive money. I wrote letters in the name of May & Whitehead in order to-"particularize” the business. When Mr. May returned he reported no bad faith on the part of Mr. Wells, but that he,. Wells, said that he thought that he could, after a while, make money on the claims. I demanded the money of Wells for the Davis note. In 1865, I lived in St. Charles, Missouri, and May lived there. In 1865, I got May to come to Monticello-as my agent, to collect any money that he could. May and I have been in business together, and he may have written letters in the name of May & Whitehead. May had no authority to pay money for me, and I know nothing of his having paid any. In the fall of 1870, when I came to Monticello, Wells gave me a receipt of Bell & Carlton for the Eletcher note. I went to their office in Pine Bluff, and inquired about Eletcher, but did not present the receipt. I heard at Monticello that Eletcher was a bankrupt. I said nothing to Wells about taking the Eletcher note until I came back from Pine Bluff. I then went to Mr. Wells and gave him the receipt for the Eletcher note. I never received any statement of accounts from Harrison and Wells. May and I lived in the same town after the war. I told Mr. Wells last winter I was not satisfied. I knew nothing of these matters until I came down last fall. The following letters are in the handwriting-of May. This letter is signed May & Whitehead, is dated February 8, 1867. It referred to the compromise of a claim, and says the debtor misunderstood May’s proposition, and he, May, could not make any positive arrangement with a heavy discount until he saw Mr. Whitehead, but offering to discount 25 per cent. This letter being signed May & Whitehead, and being in reference to the claims of that firm, and May having refused to finally act until Whitehead wag consulted in a grave matter, but proposed to act alone on a matter of less moment, and had a tendency to prove facts involved in the issue as did three other letters written by plaintiff to defendant.
In the first, dated July 18, 1865, plaintiff makes inquiry direct as to the claims of May & Whitehead, and asks if any thing has been collected, and says he wants to come down and settle.
The second letter is dated September 18,1866, one year and two months after the other. In it plaintiff makes no allusion to the former letter; no complaint is made that no answer was received to it. It leaves on the mind a strong impression that knowledge had been received from defendant in the meantime. It is in this style: I drop you a few lines. I would like to know what success you are having collecting May & Whitehead’s notes and accounts. Have you collected anything, or have any prospect of collecting anything, or how much do you think our claims are worth. I would like to know what the. prospect is. Please let me hear from you as to what you can collect, and how soon it can be come at. The letter of 1865 is to know whether anything is collected; evidently from a man in the dark. The letter of 1866 is from a man who knows that a work is in progress, who asks, “what success are you having.”
The third letter is dated January 4, 1867, a few months after the last. This letter acknowledges a receipt for a check for money received from defendant on collections, refers to the claim of which May had written, and says, Mr. May says he never agreed to settle their claim at 33‡ cents on the dollar, referring to the claim of Owen, Shorter & Co., about which matter May had written. He concludes the letter: “Mr. Wells, I think it would be a good idea to take new notes in the place of the old ones in case they can’t pay them, and make them more secure, if possible, where they are doubtful.” All three of these letters, except the one of 1866, were signed May & Whitehead; that of 1866 was signed A. J. Whitehead.
Plaintiff further testified, that Mr. Wells refused to pay. When May returned in 1865, his agency ceased. All I ever authorized him to do was to collect the money. Wells asked me to take the Eletcher note for the amount of the Davis note. I was not willing to do it, and refused.
Defendant testified : In 1861, May & Whitehead were tobacco peddlers, and left claims in the hands of Harrison & Wells. In 1865, May came to Monticello, and I think had our receipt with him. I never knew of any transfer of our receipt until this suit was begun. When May was here, I showed him our books. I told that I had collected the Davis note in confederate money. He expressed himself well satisfied. He went with me to my house and stayed with me. I knew of no dissatisfaction until Whitehead came down here last fall. I cannot say that I answered the letter of May & Whitehead, written in 1865, but I am satisfied, from my usual course of business, that I wrote to them about that time, stating my transaction in this matter. May was here in 1865 and examined my books in which my transactions were entered, and expressed his approval. I never knew anything of the transfer of our receipt until this suit was commenced. I have letters from both parties since, written in the firm name. I told May, in 1865, what I had done with the Davis note, and he expressed himself well satisfied. I am not positive that May had Harrison & Wells’ receipt in 1865, but from a memorandum in his hand writing on the receipt about the Stroud note, I think he did. The other memoranda on the receipt are in my hand writing, were made last fall, when Whitehead was here. I took the Eletcher note in 1863, before I heard from May & Whitehead.
Erom this evidence the jury could well infer the ratification of the collection of the Davis note in confederate money, if not from Whitehead’s act of receiving the claim, and returning it after he had visited Pine Bluff, and inquired for Eletcher, the evidence, at least, tends to prove that May was Whitehead’s agent and ratified the act; and the verdict upon this issue does not, at least, shock our sense of justice; and the finding on this issue would be sufficient to settle the case.
Upon the statute of limitations, the testimony warranted the conclusion that May came, in 1865, with full power to demand and collect the money of defendant; that he had full knowledge of the collection of the Davis note. Whether Whitehead had actual notice or not, which from the evidence the jury might well infer, yet he is affected with notice of all his agent knew in the line of his duty or the scope of his powers.
While it is true, as directed by this court in the case of Jett v. Hempstead, 25 Ark., 462, that an action cannot be maintained against an attorney or agent for money collected by them as such, until demand and refusal to pay over, or neglect of attorney to notify his client of the collection ; yet, as decided in that case, if the client has notice of the collection, he must make his demand in a reasonable time. If he neglects to do so, he puts in motion the statute of limitations, and if the client could, with ordinary diligence, have known of the collection, the statute will begin to run after the lapse of a reasonable time for demand. In this case, passing by the question whether the proof of the collection of confederate money sustains the allegation of the complaint, that money was collected, we think the jury was warranted in finding, that from 1865 to a period anterior to three years before the bringing of this suit, was an unreasonable delay, and the statute of limitations had run its bar, and that, whether May was agent or not, a fact as to which, to the extent of demanding pay for collections, there is no question. ' For, from the testimony and letters, and residence of the parties, etc., the jury might have inferred direct, personal knowledge in Whitehead; or, at least, if he failed to possess such knowledge, might infer that lack of diligent inquiry which would excuse delay.
We therefore hold, that the first ground of the motion for a new trial is not well taken.
The second ground of the motion is disposed of in the first; for if our conclusions are true, the verdict was not contrary to the evidence.
The third, that the verdict is contrary to law,7is also disposed of. That part of it which claims that the verdict is against the instructions of the court, it will be unnecessary for us to pass upon, further than to say, that the court below gave all the instructions which plaintiff asked, and refused all defendant asked; and if that court did not feel sufficiently aggrieved to set aside the verdict, we find nothing in the case to warrant us in so doing, unless we find it in the fourth ground for a new trial.
At the time of this trial, April, 1871, no person was allowed or qualified to sit on any jury who was not a qualified elector. Const. 1868, art. XV, sec. 20. On the 27th of March, 1871, the general assembly passed a law amending the code of civil and criminal practice. By section 407 of amended criminal code, it is provided as follows: “ No verdict shall be void or voidable because any of the jurymen fail to possess any of the qualifications required in this chapter ; "nor shall exceptions be taken to any juryman for that cause, after he is taken upon the jury and sworn as a juryman.” This chapter of amendments in 406, contains the same provisions as to the qualifications of jurors as that contained in the constitution. See Act of 1871, pp. 268, 269. This section, although an amendment to the criminal code, is general and touches the qualifications of jurors and verdicts in all cases as to this matter, and might conclude this question, if we find that it does not involve a constitutional right of litigants, and if the legislature, notwithstanding the constitution, has the power to prescribe the time and mode of concluding the question, of qualification of jurors.
Although section 407 was passed on the 27th day of March, 1871, it contains no provision regulating the time it must take effect; therefore, under the provisions of sec. 22, art. V, Const, of 1868, this law did not go into effect until ninety days after its passage. We are therefore compelled to decide this case upon the general principies of the common law, or by-previous-legislation anterior to 1868, as we find nothing on this subject, since.
Sec. 25, ch. 98, Gould’s Digest, provides that no exception.against any juror on account of his citizenship, nonresidence,, age, or other legal disability, shall be allowed after the jury are sworn. Under this section this court has heretofore held that such objections were too late after verdict. If this law was in force at the time of the trial of this case below, it is conclusive of the question.
Art. XV, sec. 11, Const. of 1868, provides that all laws not inconsistent with the constitution are continued. Was the provision of sec. 25, ch. 98, in conflict with the constitution ? We think not. The constitution prescribed a general qualification for jurors, as Gould’s Digest had prescribed in see. 22, ch. 98. Each required citizenship. The constitution calls him an elector. Gould’s Digest describes him. as a free white-male citizen of this state, above the age of twenty-one years, a resident of the county, which fully describes the elector of that period, before the constitution of 1868. We must therefore presume that the makers of the constitution of 1868 were familiar with the law, and intended to provide simply for the qualification of those who should sit on juries, leaving the law to stand, and left it as regulated by the legislature as to the time and mode of taking advantage of the disqualification. If the provisions in sec. 25, ch. 98, Gould’s Digest, are inconsistent with the constitution, then the act of 1871, above cited, is unconstitutional and void, for it would likewise be inconsistent, and the legislature, under the constitution of 1868, neyer could have regulated the practice upon this subject. It is proper that those who sit on juries to enforce the laws should be those who vote in making them. As a general proposition this is correct. But, because the constitution of 1868 regulated this, that it thereby intended to take away from the legislature forever the power of so regulating the time and manner of settling the question of qualification, is not to be presumed. There must be a mode of concluding all questions, or governments could not exist. Therefore, to say that, by providing for the qualifications of jurors, it was intended to prohibit the legislature from setting the question of the qualification of each juror at rest, when he is examined as to his qualification, and ippaneled and sworn, is, to say the least of it, an extensive stretch of the provision, and a construction which we cannot admit.
"We think the constitution having prescribed the qualification, the legislature has the constitutional power to determine how the question of qualification shall be determined. It follows that if section 25 be law, the question of qualification is concluded when the jury are impaneled and sworn. The code of practice did not abrogate this section. The code was intended only to repeal and change the actions and suits, and abolished the old forms and modes of procedure in them. But in all cases other than this, wherein it is silent, the provisions of Gould’s Digest are law until repealed, or changed by amendment, or inconsistent legislation, or expressly; and this view is fully sustained by the action of the very competent gentlemen who have had charge of the matter of digest ing our laws. If we doubted our conclusion on this subject, section 341, Civil Code, would put it to rest. For with this section the provisions regulating the impaneling of the jury open by providing that the mode of summoning juries is not changed, etc. Section 348 also empowered the court to decide all challenges for cause' before the list is drawn, and the few sections following section 341, leave many steps in the practice of getting juries and their management, etc., unprovided, and without a reference to laws outside of the Code, we could never have gotten a jury. All of which shows that the Code was not intended to repeal laws upon this subject, which were consistent with it.
Plaintiff cannot be allowed to raise a question on motion for new trial for the first time. We hold that if the question is not sooner raised, it is waived.
Finding no error in the record, judgment of the court below is in all things affirmed with costs. | [
-80,
-18,
-20,
94,
-54,
-32,
42,
-94,
-47,
67,
117,
83,
105,
103,
16,
101,
-29,
9,
117,
120,
38,
-73,
18,
98,
114,
-77,
-23,
-57,
-75,
-55,
-92,
-44,
5,
40,
-22,
-35,
70,
98,
-27,
60,
-50,
9,
-87,
100,
-39,
-127,
48,
-85,
22,
75,
53,
-74,
-70,
46,
52,
123,
109,
45,
-1,
-86,
-64,
-29,
-114,
71,
-4,
5,
51,
38,
-98,
3,
74,
46,
-112,
53,
64,
-7,
123,
-92,
-122,
85,
69,
-103,
8,
96,
98,
50,
-91,
-17,
24,
-83,
47,
-66,
-99,
-122,
-14,
97,
75,
77,
-66,
-100,
127,
80,
-89,
-12,
-8,
85,
21,
40,
11,
-49,
-106,
-125,
-113,
36,
-98,
3,
-29,
27,
52,
65,
-51,
-94,
93,
67,
59,
-101,
-113,
-107
] |
Harrison, J.
The appellant was indicted at the March term, 1872, of the circuit court of Benton county for the murder of Ephraim M. Thomason. The venue was changed, upon his application, to Washington county, in the circuit court of which county, at the September term, 1872, he was tried and found guilty of manslaughter, and his term of imprisonment in the penitentiary fixed by the jury at threp years. He applied for a new trial, and also moved in arrest, of judgment; and both motions being overruled, he prayed and obtained an appeal to this court.
The grounds alleged in the motion for a new trial were:
1. That he was surprised by the testimony of John Brown, Lee Thomason and Manning Richardson, witnesses, introduced by him. That the said Brown, previously to the trial, informed him and his counsel that he would testify, that the first he saw of the difficulty between the defendant and the deceased was, they were fighting before the store of the deceased ; that the defendant got loose from the deceased, when the deceased threw and knocked him down with a weight and jumped on and beat him on both sides of the head and face, and that some person then pulled deceased off, when he (Brown) went into Herd’s store and saw no more of it; but when called as a witness, he testified that after the defendant got loose from the deceased, he run and fell; that he did not see the deceased knock him down with a weight, and that when deceased was pulled off, the defendant ran ten or fifteen steps and stopped, stooped down and pulled a pistol from his boot leg, rose up and fired at deceased; and also that he saw the defendant, during the fight, twice strike the deceased.
That the said Thomason also, before the trial, informed the defendant and his counsel that he saw the deceased, at the commencement of the difficulty, collar the defendant first, and would so testify; but when' called, he testified that the deceased did not collar the defendant first, but that each, at the same timé, collared the other; and also, that the defendant, as he was leaving the door, tried to get his pistol out of his boot leg — a fact not mentioned by him when telling defendant and his counsel what he saw and knew of the difficulty.
And the said Richardson informed them, that he would testify, that a few minutes before the difficulty, he was in the saloon of the defendant, engaged with the defendant and Clem Thomason, the brother of the deceased, taking an invoice of groceries, when the deceased came in angry, and said in an angry manner, that “ if he had anything to give away, he would give it; that no man could run over him that way but when called, testified that he had no distinct recollection of such a remark, and only remembered that the deceased said, “if he had anything to give away, he would give it,” or words to that effect, and, wholly denied the other fact he said he would swear.
The defendant, in his affidavit in support of his motion, says: That relying on these witnesses to prove the facts they said they would, he had not summónéd other witnesses by whom he could have proved them. Who those other witnesses were, he does not, however, say, and the omission to name them is alone sufficient to justify the court in refusing a new trial on the ground of surprise. For, if named, it might have been shown that they were present during the trial, and could have been introduced; or their affidavits denying that they could give such testimony might have been obtained by the state and read upon the hearing of the motion.
It is a rule that a new trial will not be granted on the ground of newly discovered evidence, unless the application therefor is accompanied by the affidavit of the persons by whom it is alleged the new facts can be proven, and the rule or the requirement will extend to and apply with equal if not more force to a case like the present, where both the facts and the witnesses, who could prove them, are known to the party, but he has neglected to have the witnesses summoned or called.
But the testimony of these witnesses called and accredited by him was corroborated by a number of other witnesses; yet, if their testimony had been such as he says he expected and as he alleges the fact to be, we cannot conceive how it could have changed the result of the trial.
2. That relying on the said Brown, Thomason and Richardson to testify as they had said, and as he supposed they would, he went to trial without the testimony of Jesse 0. Seburn, who was under recognizance to attend to testify in his behalf, but who was absent from the court, by whom he would have proved that the deceased, on the same day of the killing, and only a few hours before it occurred, threatened the defendant’s life.
It was not alleged that the threat had been communicated to the defendant before he killed the deceased; nor is there any evidence by which it might appear that the defendant, in taking the life of the deceased, acted under a reasonable apprehension of danger to his own life, or fear of receiving great bodily injury; and such threat, if the same had been communicated to him, could have afforded no justification or excuse for the killing of the deceased.
8. That the verdict was contrary to the evidence.
The deceased was killed at Springtown, in Benton county, on the 22d day of February, 1872, by the defendant, under the following circumstances: The defendant went into the store of the deceased to settle a small account the deceased had against him, which having paid, he remarked to the deceased: “Is this all right? ” To which .the deceased replied.: “ No, you owe me fifty cents for a half day’s threshing, which I did for you two years ago.” The defendant said, “how comes that? I hired hands at that time at seventy-five cents a day.” The deceased said, “you can’t hire me at that.” The defendant then said he was to pay that in work, to which the deceased replied : “Well, you can pay it in work.” The defendant then asked, “ what do you want done ? ” The deceased said that he had no work but his wood pile to chop up, which defendant might do; to which defendant replied, he was not round cutting wood. The defendant started to go out, when deceased said to him: “You have got it to pay before you leave town; ” and, putting a weight in his pocket, came from behind his counter and followed the defendant to the door. The defendant, when he came out, took up a stick about as large and as long as a chair post, and stood at the door until the deceased came to it, when he seized the deceased by the collar, as most of the witnesses say, or, perhaps, as one of them says, they simultaneously seized each other, and a struggle ensued, in which the deceased kicked the defendant several times, and the defendant struck him twice with his fist and attempted to strike him - with the stick. The defendant, after it was over, having dropped the stick in the struggle, started off, but stooping and seemingly endeavoring to get something out of his boot, when the deceased threw the weight and struck him on the back, and the defendant trying to get the weight, the deceased followed up and, another scuffle taking place over the weight, the deceased pushed or threw the defendant down ánd jumped on and beat him on the face and head, causing the blood to flow. The defendant called to persons standing by to take him away, which was done, when the deceased said he was done and would not hurt him any more. The defendant again started to leave; but when he had gone eight or ten steps he stooped, and,- drawing a pistol, a six shooter, from his bootleg, cried out, “get out of the way, I’ll be d — d if I don’t kill.” The deceased, who had from the time he was pulled off the defendant, ceased all hostile demonstrations, and was then fifteen or twenty steps from the defendant, said : “ Don’t, shoot» judge ; I don't want any more fuss.” The defendant immediately fired at the deceased; when the deceased, drawing a derringer pistol, the barrel of which was only two or three inches in length, from his pocket, in turn, fired at the defendant, who, about the same time, perhaps one or two seconds after, fired again at the defendant. After-the deceased shot, he immediately started to go into Herd’s store, when the defendant fired a third and fourth time at him. He was hit, •■and shot in the left thigh, by the defendant’s second or third ■shot, and died from the wound in fifteen or twenty minutes.
Not the least necessity from urgent or pressing danger to the defendant, for taking the life of the deceased, appears. ■On the contrary, the evidence shows that the deceased, at the time the defendant drew his pistol and made the assault upon him with it, had withdrawn from the combat, and ceased all efforts to continue the fight; and the defendant, if he had wished, might have gone his way without hindrance or further harm ; but with full knowledge that the deceased had ceased fighting, he voluntarily renewed the fight, and by his language and the use of a dangerous and deadly weapon, evi■denced his purpose and intention to kill the deceased.
The verdict was, therefore, fully warranted by the evidence.
4. That the verdict was contrary to law and the instructions •of the court.
From the above statement of the evidence, and what we have said concerning it, there is no occasion for any remarks upon this ground of the motion.
5. That the court erred in its instructions to the jury.
The court gave the jury quite a lengthy charge, applicable to the evidence before them, defining the several grades of homicide, and distinguishing with much particularity between murder, manslaughter, and justifiable or excusable homicide. No part of said charge was specially excepted to, but the whole as an entirety. The counsel for the appellant, however, •only insists here that the following remark was objectionable, as calculated to prejudice the minds of the jury against the accused: “I charge you that the state must prove all the material allegations in the indictment beyond a reasonable •doubt: 1st. That said murder was committed in Benton •county, state of Arkansas. 2d. That said offense was committed some time prior to the finding of said indictment. 3d. That said defendant did willfulty, feloniously, and with malice aforethought, kill and murder the said Ephraim M. Thomason, by shooting him with a pistol.”
He contends that the court, by saying “ said murder,” virtually assumed the defendant to be guilty, -and thereby prejudiced the jury against him. But such an objection is manifestly without foundation, for in the same sentence they were instructed that the state should prove that the defendant did willfully, feloniously and of his malice aforethought,, kill and murder the deceased; and in another part of the charge they were instructed not to find him guilty of any offense, unless upon conclusive proof thereof, .and beyond a reasonable doubt; and that the remark had no such prejudicial influence upon the jury is evident by their finding him not guilty of murder, but of manslaughter only.
We find no objection to the charge of the court; it fairly and correctly stated the law applicable to the evidence in the case.
6. That the court improperly excluded from the jury the evidence of William L. Gibson, a witness produced by the defendant.
The evidence proposed to be given by this witness was : that he heard the deceased say, at Springtown, in Benton county, within a week of the time he was killed, that he intended to kill the defendant, and at the time showed witness a derringer pistol, with which he said he intended to do the “ work.” It was not attempted or offered to be proven, that this threat had been communicated to the defendant before the killing took place, and even if it had, we are at a loss to see how such evidence, under the circumstances attending the killing, could have affected or changed the result of the trial.
There was, therefore, no error in its exclusion.
7. That the verdict was not responsive to the -issue.
An indictment ’for murder charges, also, all the lower grades of felonious homicide; and a conviction for manslaughter may be had upon it. Gantt’s Dig., secs. 1961, 1962; 1 Bish. Crim. Law, sec. 807; 1 Bish. Crim. Process, sec. 835; 1 Russ on Crimes, 655; 1 Hale P. C., 449. Finding a verdict of manslaughter upon an indictment for murder, is equivalent to an acquittal of the charge of murder. Johnson v. The State, ante, p. 31.
8. That the court refused to give the following instruction to the jury.
1. “ If the jury believe from the evidence that the acts and conduct of the deceased, upon the occasion of the killing, and immediately preceding it, were of such a character as to furnish the defendant reasonable ground to believe that the deceased was then and there about to take the life of the defendant, or to inflict on him great bodily harm, and that the defendant acted on them and such belief founded thereon, and for the purpose of protecting himself, shot and killed the deceased, they should find the defendant not guilty.
2. “ If the actions of the deceased immediately before the killing were of such a character as to warrant the defendant in coming to the conclusion that his life was in danger, or that, he was in danger of great bodily harm at the hands of the deceased, and that such danger was imminent, the defendant had a right to act on such apprehended danger, and that it is not material whether the deceased then and there intended to kill the defendant or not, or whether he intended to do him such great bodily harm, if the act of the deceased, and his conduct, then and there, furnished to the defendant reasonable grounds to believe that the deceased so intended, and that the danger was imminent."
These instructions are predicated upon the principle of natural law, .that a person assaulted may take the life of his as sailant, when necessary for the preservation of his own life, or to prevent his receiving great bodily injury; but they do not truly present the conditions and circumstances under which the right exists, or may be exercised. A necessity for taking the life of the other is the controlling circumstance which justifies or excuses the act, and before resorting to such extremity, the party must employ all means within his power, consistent with his safety, to avoid the danger and avert such necessity. We would not, however, be understood as saying that he must have used all possible means, for in some cases, the assault may be of so fierce and violent a character, that there would be as much or more danger in attempting to escape as there would be to stand and repel it; but he must seek such as his safety would reasonably dictate.
The statute, sec. 1285, Gantt’s Dig., which is but an enunciation of the doctrine of the common law, says : “In ordinary cases of one person killing another in self defense, it must appear that the danger was so urgent and pressing that in order to save his own life, or to prevent his receiving great bodily injury, the killing of the other was necessary, and it must appear also that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further contest before the mortal blow or injury was given.”
In the proposed instructions, the duty of tbe defendant to endeavor to avoid the supposed danger before taking the life of the deceased is not stated, but the existence of the danger alone is declared a sufficient justification of the killing. The further objection to them may be mentioned, that the evidence was not such as to conduce to, or afford the defendant a reasonable ground for the belief that the deceased, at the time the defendant made the assault on him with his pistol, was intending any further assault on him, or that he was in any danger. The fight was over; the deceased had no weapon drawn, nor had he exhibited any, except the weight he threw, and all hostile demonstrations on his part had ceased, and the defendant himself had started to leave, and had walked away some eight or ten steps.
The court very properly declined to give the instructions,, and it did not err in overruling the motion for a new trial.
The grounds of the motion in arrest of judgment were:
First. That no public offense is charged in the indictment.
Second. That the indictment does not charge the defendant with the offense of which he was found guilty.
Third. That he had never been legally arraigned.
Fourth. That the court had no jurisdiction of the case; and
Fifth. That the verdict was special and did not state sufficient facts upon which judgment might be rendered.
The indictment, which is in the form prescribed in sec. 1797 of Gantt’s Digest (section 121 of the criminal code), charges the defendant with the crime of murder in the first degree, and alleges it to have been committed as follows: That “ the said James BE. McPherson, on the 20th day of February, A. D. 1872, in the county of Benton aforesaid, did feloniously, and with malice aforethought, and with premidi-tation, and, by lying in wait, kill and murder Ephraim M. Thomason, by then and there shooting him with a pistol, then and there loaded and charged with gunpowder and six leaden bullets, against the peace and dignity of the state of Arkansas.”
This indictment is similar in averments and allegations to that in the case of Dixon v. The State, ante, p. 165, and we think, as we held in that case, thatrit contains every necessary and material averment to charge the crime of murder, and with sufficient certainty and particularity, states the manner and means of its perpetration, to enable the defendant to know with what he is charged, and to make his defense. Gantt’s Digest, secs. 1781, 1782, 1796.
We have, when considering the seventh ground of the motion for a new trial, fully answered the objection next raised, that the defendant is not charged in the indictment with the offense of which he was convicted, and shown that a person indicted for murder may be convicted of manslaughter.
The third ground assigned seems to have been inadvertently inserted, as the record contains a formal entry of the arraignment, and the defendant’s plea of not guilty thereupon, previous to the trial.
No reason is shown, or indicated in the motion in arrest, for the fourth ground assigned therein, which is, that the circuit court of Washington county had no jurisdiction of the case, and none has been offered or suggested by the defendant’s counsel here, and we are, therefore, left to conjecture upon what the objection is based. We can conceive of no other foundation for it than a question as to the authority of the circuit court of Benton county, in which the indictment was found, to change the venue and transfer the cause to the circuit court of Washington, and we will proceed to consider that question.
The code of criminal practice, previous to the amendment thereof by the act of 1873, contained no provision for a change of venue; but, by section 196 (section 1898 Gantt’s Digest), provided that “where the judge.is satisfied, after having made a fair effort in good faith for that purpose, that from any cause it will be impracticable to obtain a jury free of bias in the county wherein the prosecution is pending, he shall be authorized to order the sheriff to summon a sufficient number of qualified jurors from some adjoining county in which he shall believe there is the greatest probability of obtaining impartial jurors, and from these so summoned the jury may be formed.”
If the provision in chapter 52 of Gould’s Digest, by which, a change of venue was allowed the defendant, when the minds of the inhabitants of the county in which the cause is pending are so prejudiced against him that a fair and impartial trial cannot be had therein, were repealed by the code, then the circuit court of Washington count}'- did not have jurisdiction of the case. There was no express repeal; and, if repealed at all, it must have been by a necessary implication.
“A statute,” says Dwarris, “can be repealed only by an express provision of a subsequent law, or by necessary implication. To repeal a statute by implication, there must be such a positive repugnancy between the provisions of the new law and the old, that they cannot stand together or be consistently recognized.” Dwar. Stat., 155. And Sedgwick says: “A general statute, without negative words, will not repeal the particular provisions of the former, unless the two acts are irreconcilably inconsistent.” Sedg. Stat. Law.
There is, however, another rule of construction sometimes employed, which we should perhaps notice, which is, that where the legislature takes up a whole subject anew, covering the whole ground, revising the whole subject matter of a former statute, and evidently intending to enact a substitute, the old statute is repealed, although the new statute contains no express words to that effect. The code, however, does not attempt to provide for and regulate everything which relates to, or every proceeding which may be had in, the administration of tbe criminal law, and it expressly repeals the former laws on the subject of criminal procedure, only so far as the same were inconsistent with its provisions. Section 412.
The rule last referred to does not, therefore, have any application to the question we are considering, and it is clear that the statute in Gould’s Digest authorizing a change of venue, ior the cause stated therein, was not repealed by the code, either by a direct implication from said section 196, or the failure or omission to provide by it. for such change, and that the circuit court of Washington county had jurisdiction of the cause.
The remaining objection, that the verdict is special and does not state sufficient facts upon which judgment might be rendered, is not true in point of fact. The verdict was not-special, but general and directly responsive to the indictment. And section 1961, Gaunt’s Digest, expressly provides that, 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. The verdict, as recorded, is as follows: “W.e, the jury, find the defendant James H. McPherson guilty of manslaughter, and assess his punishment at three years in the penitentiary.” This is a verdict of voluntary manslaughter, as the imprisonment for involuntary manslaughter is for a period not exceeding twelve months,.according to the provisions of section 1962, id., which says that, “where the punishment is the same in kind, the amount that may be inflicted fixes the de* gree.”
Finding no error, the judgment of the court below is affirmed. | [
-32,
-29,
-20,
-81,
58,
64,
34,
-72,
-86,
-78,
96,
115,
-31,
-34,
65,
57,
43,
9,
85,
105,
-28,
-109,
30,
65,
-77,
-77,
45,
-41,
54,
-51,
-67,
-33,
73,
48,
74,
117,
-57,
-56,
-27,
60,
-114,
-103,
-71,
-30,
26,
0,
48,
103,
102,
34,
113,
62,
-85,
42,
85,
-37,
73,
108,
91,
-84,
88,
121,
-128,
5,
-82,
6,
-77,
-94,
-100,
-125,
120,
30,
-48,
53,
0,
-24,
113,
-110,
-126,
-44,
73,
9,
8,
102,
70,
32,
-35,
-49,
8,
-103,
61,
62,
-103,
-89,
0,
97,
75,
12,
-106,
-99,
-10,
116,
7,
116,
-19,
-42,
17,
40,
5,
-49,
-74,
-79,
-49,
44,
-126,
-77,
-29,
4,
52,
113,
-49,
98,
77,
101,
120,
-69,
-101,
-67
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.