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English, C. J.
Abner W. Files brought an action on the law side of the Ashley circuit court, against Jackson P. Harbison and Presley F. Harbison, for the northwest quarter of section eight, T. 17 S., R. 8 W., alleging in the complaint, title and right of possession in himself, and that defendants held possession of the land without right, etc.
The defendants filed an answer April 26, 1871, denying •each and all of the statements in the complaint.
On the 2d of May following, the defendants filed an amended answer, alleging in substance as follows:
That on the. 24th of February, 1868, one B. Tiner, then -sheriff of Ashley county, offered for sale the N. W. of N. W. ■of S. E. of sec. 8, T. 17, R. 8, and no other lands in said section, and not the N. W. of said section, under an execution in favor of D. L. Pippin v. Wm. Harbison.
That being in possession of the N. W. i of said section, and claiming title thereto, they made inquiry of the sheriff if he intended to sell any other lands than those mentioned in the advertisement, and he said he had only the right to sell such lands as were duly and regularly advertised, and he would sell no others. And defendants say that said N. W. i of said section 8 never was advertised, and was never sold by said sheriff, and that said plaintiff Files had notice of these facts.
That said N. W. ¿ of sec. 8 was never levied on under said fi. ja. in favor of said Pippin v. Wm. Harbison, and was never sold at said sheriff’s sale.
That said judgment in favor of Pippin v. Harbison remaining unexecuted, and said Pippin having gone into bankruptcy, the same passed to his assignee, who on the-day of-, 187 — exposed the same for sale at Hamburg, and defendants became the purchasers thereof, and the said assignee transferred and assigned the same to them.
And the lien of said judgment remaining in force, defendants caused an execution to be sued out on said judgment, and levied on said N. W. ¿ of sec. 8, which was purchased by them, and a certificate of purchase executed and delivered to them. And of this they put themselves on the country.
There was a de.murrer to the answer, which does not appear to have been disposed of.
At the October term, 1871, the cause appears on the chancery side of the court, but how it got there is not shown. It was continued by order of the court
At the May term, 1872, it appears again on the chancery side, the parties submitted their, evidence, and the court found the issue for the defendants, and rendered a judgment against the plaintiff for cost.
The plaintiff moved for a new trial, on the grounds:
1. That the finding of the court was contrary to the evidence.
2. That it was contrary to law.
3. That the court erred in declaring the law as asked by defendants.
The court overruled the motion for a new trial, and the plaintiff took a bill of exceptions and appealed.
The bill of exceptions shows that the cause was tried on the chancery side of the court, the judge presiding as a chancellor.
The appellant introduced J. J. Curry, the clerk of the court, who testified that the chancery record of the court containing the proceedings of the August term, 1867, had been burned, and produced the execution docket, showing the issuance and entry of a special ft. fa. on a decree in favor of Duncan L. Pippin against ¥m. Harbison.
Appellant then produced and read in evidence the original special fi. fa. in the case of Pippin v. Harbison, and the return thereon of Benjamin Tiner as commissioner appointed to sell the lands in said decree mentioned.
It bears date 20th January, 1868, is directed to Benjamin Tiner, commissioner, etc., and recites that on the 31st day of August, 1867, Duncan L. Pippin recovered a decree on the chancery side of the Ashley circuit court against Wm. Har bison, for $2,880 debt, $1,261.13 damages and for costs, etc., to secure which, lands were mortgaged, which are described, and among them, “ the N. W. 1 -4 and N. W. 1-4 of the S. E. 1-4, Sec. 8, T. 17 S., R. 8 W.” It further recites that it was decreed by said court that unless said sum of money should be paid on or before the 1st day of January, 1868, a special execution should issue against said lands; and that the debt had not been paid, etc.
It then commands the commissioner to sell the said lands, or so much thereof as might be necessary to satisfy the decree, etc., to the highest bidder, etc., at the court house door, etc., on, etc., and that he make return, etc., at the next term of the court, etc.
Tiner returned upon the writ, that after giving twenty days’ notice in the “Ashley County Times,” of the time and place of sale, he offered the lands described in the writ at public sale, at the court house, etc., on the 24th of February, 1868, and that the same were struck off to the appellant at the sum of $70, he being the highest bidder, etc.
Appellant also read in evidence the deed executed to him by Tiner, as commissioner, for the lands, which bears date the 3d of March, '1868. The deed recites the decree, the special execution, the advertisement, sale and purchase of the lands by appellant, describing them as described in the execution, and conveys them to appellant. It was acknowledged before a justice of the peace.
M. L. Hawkins, witness for appellant, testified that he was the attorney of Duncan L. Pippin, and obtained a judgment in his favor against Wm. Harbison, on the law side of the circuit court of Ashley county, for about the amount specified in the fi. fa., and after finding that Harbison had not sufficient personal property of which to make the debt, he filed a bill on the chancery side of the court to enforce the vendor’s lien on the lands described in the special fi.fa., obtained a decree against the lands, and that they were sold, and bought by appellant.
Appellant also proved that appellees were in possession of the land in controversy, the value of the rents, etc.
J". P. Harbison, one of the appellees, testified on the part of the defense, that on the day the lands were sold by Tiner, he went to him and asked him if he was going to sell any other lands in the case of Pippin v. Harbison, than those advertised by him in the “Ashley County Times.” That Tiner replied, as well, as witness could recollect, that he would not; that he was present at said sale, and only the numbers set forth in the paper referred to were read out — were read from the paper; that at the time of the sale, witness and his co-appellee had no interest in the land in controversy; that after the sale, Pippin went into bankruptcy, and at a sale made by his assignee, appellees purchased the judgment of Pippin against Harbison, caused an execution to be issued thereon, levied on the land in controversy, and witness became the purchaser thereof at the sale under the execution, and obtained a certificate of purchase of the officer making the sale.
G. W. Norman testified that appellee, J. P. Harbison, consulted with him before the sale made by Tiner, and showed him a copy of the “Ashley County Times,” containing a notice of sheriff’s sale, and he advised Harbison to go and see Tiner and get him to make a deed to such lands only, in this case, as were advertised. That at the request of Harbison, after the sale, he went with him to Tiner and so advised him, and Tiner said he would only make a deed to such lands as were advertised. Witness was not at the sale, and did not know whether any other lands were sold than those advertised or not. That he, as agent of John Wassell, assignee of Pippin, sold the judgment of Pippin against Wm. Harbison, and appellees purchased it; and afterwards an execution was issued on the judgment, the land in controversy levied on and sold, and bought by appellee, J. P. Harbison.
W. D. Moore testified that he was not certain whether he was present at the sale made by Tiner, but thought perhaps he was. Did not know whether, in making the sale, Tiner read the numbers of the lands sold from the newspaper or the execution, but thought his custom was to read numbers from the advertisement.
Appellees were then permitted to read in evidence, against the objections of appellant, from a copy of the “Ashley County Times,” Tiner’s advertisement of the sale under the special fi. fa., in which all of the lands were described as in the writ, except those in section 8, which were described thus: “N. W. of N. W. of S. E. of S. 8,” etc.
Appellees then introduced the execution issued upon a judgment recovered by Pippin against Harbison, on the law side of the court, and the return thereon. The execution bears date 30th November, 1870, is directed to W. M. Smith, constable of Carter Township, of Ashley county; recites a judgment recovered by Pippin for the use of J. P. Harbison, against Wm. Harbison, in the circuit court of Ashley county, on the 22d of September, 1869, for $4,091.13, debt and damages, etc., and commands the constable to levy the same of the goods and chattels, lands and tenements of Harbison, etc.
The return of the constable on the execution shows that he levied upon the tract of land in controversy (N. "W. i Sec. 8), and another tract; sold them on the 24th February, 1870, and that appellee, J. P. Harbison, purchased them.
Appellee also introduced a certificate of purchase made by. the constable to J. P. Harbison.
The above is the substance of all the evidence introduced by the parties.
On the motion of the appellees, and against the objection of the appellant, the court declared the law of the case to be as follows:
1. “That if Ben. Tiner, as sheriff or commissioner, executed to plaintiff a deed for the lands in controversy, without having advertised them or cried them for sale, the deed is void.
2. “If the defendants were in possession of the lands at the time of the sale, cultivating them, and previous to said sale demanded of commissioner what lands he would sell, and being informed that he would sell only those in the newspaper advertisement, and that those only were offered for sale, said deed of plaintiff is void as to defendants.
3. “ If said advertisement was not made of said lands, or if said lands were not actually sold on the 24th of February, 1868; and if on the — day of —, 1869, the plaintiff, Pippin, having bankrupted, and the said judgment of Pippin v. Harbison was assigned and sold and bought by defendant, and that they afterwards had the same [the lands] sold and a certificate of purchase made to them, and if said Files never had his deed recorded, that the same was never notice to defendants, a,nd the decree must be for them.”
I. No motion appears to have been made in the court below to transfer the cause from the law to the chancery side of the court, nor is there any order in the transcript making the transfer, or for the trial of an equitable issue.
Some such order was perhaps made, in an attempt to follow a provision of the code (Gantt’s Dig., sec. 4465), which the clerk may have omitted to enter, or copy in the transcript, as the cause was tried on the chancery side of the court without objection of the parties.
What should be the proper practice, under the provision of the code referred to, we shall not attempt to settle in this case, as the question has not been presented. (See Bosley v. Mattingly, 14 B. Mon., 91.)
It is remarkable, however, that after the cause was placed on the chancery side of the court, it was tried without a change of pleadings, and in all respects as it would have been if it had remained on the law side of the court, except there was no jury, and the court made no special finding of facts. The trial was upon the issue made by the complaint and answer; the answer was without exhibits or prayer; the parties introduced all their oral and written evidence; the court was asked to make declarations of law, as if instructing a jury; there was a finding of the issue for the appellees, and simply a judgment against the appellant for costs, a motion for a new trial overruled, and bill of exceptions.
If this was proper practice on the equity side of the court, under the code, the cause had as well remained on the law side.
II. Proceeding to dispose of the case on its merits, we will consider the objections made on the trial to the title of the appellant.
It appears that Pippin obtained a decree against Wm. Harbison to enforce a vendor’s lien upon lands for purchase money, and among the lands commanded to be sold to satisfy the decree, was the northwest quarter of section eight, etc., which is the subject of this action. A special execution was issued to Tiner, who was appointed a commissioner, by the decree, to sell the lands, and who was also sheriff of Ashley county at the time.
He returned upon the writ that he had advertised and sold the lands, as directed by the writ, and that appellant purchased them. He also executed to appellant a deed to the lands.
In the writ and in the deed, the lands appear to have been correctly designated by their proper numbers.
Those in section eight were described as the N. "W". 1-4 and N. W. 1-4 of the S. E. 1-4, etc., making, two hundred acres, or the whole of the northwest quarter and a fourth of the southeast quarter of the section.
In the advertisement, by a mistake of the printer, perhaps, the lands in section eight were described as tbe N. W. of N, W. of S. E., etc. Thus, by the substitution of “of” for “ and,” between the numbers of the first and second tract, the northwest quarter was omitted, and only ten acres, or a fourth of a fourth of the southeast quarter advertised.
It was not proven that the officer making the sale knew of this mistake in the advertisement when the sale was made. One of the appellees asked him if he intended to sell any lands except such as were advertised, and he replied that he would not; but there was no proof that his attention was called to the mistake in the advertisement of the lands in question. But if it be assumed that he knew that the lands were imperfectly advertised, and that he acted fraudulently in the matter, there is no proof that the appellant, who was not a party in the process, had any knowledge.of such mistake or fraud. He stands in the attitude of an innocent purchaser, and obtained a valid title to the land, notwithstanding any such irregularities on the part of the officer making the sale. Newton v. State Bank, 14 Ark., 12; Newton's Heirs et al. v. State Bank, 22 id., 26; Byers & McDonald v. Fowler et al., 12 id., 218; Ringo v. Patterson, 15 id., 209.
If the mistake in the advertisement, or other irregularities, caused an unfair or injurious sale of the lands, parties interested in the lands had the right to apply to the court from which the execution issued, to have the sale set aside. State Bank v. Noland, 13 Ark., 300.
At the time of the sale, appellees had no title to the lands. One of them attempted to acquire title afterwards.
Appellees made an effort to prove that the commissioner did not sell the tract of land in controversy at all, but this was a mere attempt to contradict the return of the officer, which was not permissible. See cases cited above.
TTT. As the judgment will have to be reversed, and the cause remanded for further proceedings, there are some irregularities in the defense made by the appellees, which it may be proper to notice.
The answer alleges that both of the appellees purchased the land in controversy at execution sale, and recieved a certificate of purchase. The return of the constable upon the execution shows that J. P. Harbison made the purchase; and the certificate of purchase introduced in evidence, was made to him. Appellee, Presley E. Harbison, made no attempt to show any title in himself.
The bankruptcy of Pippin, the sale of the judgment in his favor against Wm. Harbison, its purchase by appellees, and its assignment to them by Pippin’s assignee, were proven by parol. ■ If these were material facts to be proven, an authenticated transcript of.the adjudication in the bankrupt court, and the written assignment of the judgment by the assignee would have been the better evidence.
The execution under which J. P. Harbison claims to have purchased the land was directed to a constable and- the sale was made by him, and there was no recital in the writ, or other showing that the offices of sheriff and coroner were vacant, or that they were disqualified to execute the process. Gantt’s Dig., secs. 814-15; Thompson v. Bromage, 14 Ark., 59.
The execution recites that the judgment was recovered by Pippin for the use of J. P. Harbison. Whether this is a correct recital or not does not appear, as the judgment, was not introduced in evidence. If he was in fact a party to the judgment and execution, he, perhaps, would be held to have had notice of irregularities in the process; but how far such irreg ularities would affect his purchase under the process, we need not now decide:
' IV. In the 3d declaration of law made by the court below, there are several distinct propositions, or matters embraced, the last of which.is, “that if said Files never had his-deed recorded, the same was never notice to defendants, and the decree must be for them.” The appellee, Presley E. Harbison, made no attempt to show title to the land in controversy in himself, and how the failure of appellant to have his deed to the land recorded could affect any right of his, is not perceived.
Appellee, J. P. Harbison, would not necessarily be an inno■cent purchaser without notice, because of the failure of appellant to record his deed before he purchased, if such was the fact, for he might have had actual notice of appellant’s title before he purchased.
There was no allegation in the answer of appellees that appellant had failed to record his deed, and that appellee, J. P. Harbison, was a bona fide purchaser without notice, etc.
This matter was not put in issue by the pleadings, and there ■was but little or no evidence on the subject, and inasmuch as the case has to be sent down for further proceedings, we deem it better, on the meager facts before us, to leave the question with these observations.
The judgment or decree, if it may be so termed, must be ■reversed, and the cause remanded for such further proceedings as the parties may see proper to take in accordance with law, :and not inconsistent with this opinion. | [
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Walker, J.
The plaintiffs, heirs at law of Nathan Jenkins, deceased, filed their petition, in-, the Jefferson circuit-court, against the other heirs of said Jenkins, for the purpos e-of having the will of Nathan Jenkins (which had been probated before the clerk) set aside upon the grounds :
1. That the testator, at the time the will was made, was not-of sound and disposing mind and memory.
2. Because the will was not the result of the voluntary act-of the testator, but was procured to be executed by an undue; influence over him by William H. Jenkins, a son and a devisee in the will.
3. That the provisions /of the will were agreed upon by William H. and James H. Jenkins, to whom the whole estate of the testator was devised, and who procured the'will to be written and dictated its provisions, and thereby perpetrated a fraud and an imposition upon the testator.
The prayer of the petition was, that an issue be formed to be tried by a jury, as to whether the instrument probated was, or not, the will of Nathan Jenkins.
The defendant answered and denied all that" part of the petition which set up the invalidity of the will. A jury was impaneled and sworn, who, after having heard the evidence and the instructions of the court, returned a verdict that they found for the defendants, upon which judgment was rendered in their favor.
The complainants filed their motion for a new trial, and assigned as cause several errors in the proeeedings, and in the giving and refusing to give certain instructions. The motion for a new trial was overruled, exceptions taken, and the case brought before this court by appeal.
The first error complained of and made a ground for a new trial is, that the court refused to permit the complainants to conclude the argument before the jury.
It is provided in the Code, sec. 349, that the party having-the burden of proof shall have the conclusion of the argument; The complainants in this case held the affirmative, and were consequently entitled to conclude, as held by this court in Rogers et al. v. Diamond, 13 Ark., 479; McDaniel v. Crosby et al., 19 id., 533. We must therefore hold that it was error in the court below to deny to the complainants the right to conclude the argument before the jury. That there is a decided advantage before a jury in having the concluding argument, there can be no doubt; the extent of the wrong, however, it is hard to estimate. It may suffice that it is a right and a privilege to which complainants were entitled.
' .The next error presented for consideration is, that the court permitted a paper which purported to be the will of Nathan Jenkins, dated February 26, 1862, to be read in evidence to the jury over the objection of complainants. It is true that the will of 1862 was never probated as a will, but it was proven by the subscribing witness to have been executed by the testator. This will was executed at a time when there seems to have been no question as to the capacity of the testator to. make a will, and as its provisions with regard to the disposition of his property to his sons, to the exclusion of the children of his daughters, are, with unimportant differences, the Same as those in the will of 1868, the validity of which is in contest, we think that it was competent evidence to be considered in connection with all of the other evidence offered by the parties to show whether the testator’s mind was rational, and was, or was not unduly influenced at the time the will, in 1868, was executed.
The next ground for a new trial is, that the court erred in allowing the cause to be tried without having first directed an issue to be made up, according to law, to try the validity of the will.
The record states that the jury were duly sworn, but it does not appear that any issue was formed as provided for in sec-. tion 32, ch. 180, Gould’s Dig., which provides that “it shall be the duty of the circuit court to direct an issue to try the validity of such will, which issue shall, in all cases, be tried by a jury.” "We do not suppose that any very formal order would be required; but under the provisions of this statute, the distinct issue of devisavit vel non should have been presented, and the jury should have been sworn to try it. This, however, appears not to have been done, and there is nothing, not even the verdict, to indicate what the issue was the jury were sworn to try. This objection was well taken.
The remaining grounds for a new trial arise out of the instructions given at the request of the defendants, and those asked by the complainants and refused by the court; to all of which, exceptions were taken by complainants. The first is, that the court erred in giving the 5th, 6th, 7th, 8th and 9th instructions asked by defendants. The second is, that the court erred in refusing to give the 8d, 4th, 7th and 8th instructions asked by the complainants.
The 5th instruction given at the instance of the defendants, is: “If the jury believe from the evidence that the testator, Nathan Jenkins, knew what he was about when he executed his will, and the consequences of what he was doing; if he had sufficient capacity to make a contract, he might make a valid will, and the testator might even not have had sufficient strength of mind and vigor of intellect to digest all the parts of a contract, and yét be competent to direct the disposition of his property by will; the question for the jury to determine being, were the mind and memory of Nathan Jenkins, at the time he executed his will, sufficiently strong to enable him to know and understand the business in which he was engaged at the time when he executed the will ?”
This is a long, instruction, and embraces several distinct propositions, but fails to cover the question of undue influence, of which there was evidence, whether slight or strong, we are not called upon to determine. The substance of the instruction was, that if the testator knew what he was about when he made the will, and had sufficient capacity to make it, or if they should find that the testator had not sufficient mind to digest and understand all the parts of a contract, he yet might be competent to make a will. This might all be true, and still, if the mind was not free to act, if constrained to act, or lulled into repose to submissiveness to the will of another, who was present at the time, and had before and at the time exercised a commanding control over the testator, by reason of which the freedom of thought was suppressed, under such circumstances the act might be declared invalid; and as there was evidence upon this question, the instructions should have been so qualified as to leave the jury free to consider of it, and by its omission the jury were left to infer that, irrespective of the question of undue influence, they might find for the defendants. This question of capacity, or incapacity, and that of undue influence, are intimately connected, and the character and extent of the influence so dependent upon the state of the mind,- as well as of all of the surroundings of the party who contracts, that both must of necessity be considered together. The power of the influence depends much upon the state of the mind. Thus, in Kelly's heirs v. McGuire and wife, 15 Ark., 555, it was held that, if a person, although not positively non compos, is of such weakness of mind as not to be able to guard himself against, or to resist importunity, or undue influence, a contract made by him under such circumstances will be set aside.
. The 6th instruction was as follows: “ A will valid upon its face cannot be destroyed, or in any way varied by declarations of the devisor, unless the declaration was a part of the res gestae, and made at the very time of the execution of the will.”
This instruction presented an abstract proposition, which, whether true or false, has no application to this case; because there is no evidence that the testator made any declarations, or in any manner referred to his will after it was made, and consequently there was nothing for the jury to consider in common with it,
The 7th instruction is as follows: “Undue influences over the testator, necessary to set aside a will, must amount to force and coercion, destroying free agency and vitiating the will. The influence used must not be attributable to the influence of affection or attachment.”
The real issue in this case was devisavit vel non. It is admitted that the will was formally proven, and the question is, was the testator of disposing mind and memory to make the will, and if he was, was he also, at the same time, free to act; or was he, by undue influences, induced to make a will which otherwise he would not have made ? Free agency and capacity to contract, are each indispensably necessary to make a valid contract, or execute a valid will. The lack of mind comprehends both, because without mind there can be no free agency; but if there is mind it must be free to act, and if restrained unduly to the extent that free agency is destroyed, the act is void. This incapacity, or undue restraint, must exist at the time the act is done; if capacity and free agency exist then, the act is valid, irrespective of the state of mind or degree of restraint, whether before or after that time. But in order to determine the capacity and its free action at the time the will is made, a wider range of inquiry is permissible into facts and circumstances, whether -before or after the time of making the will, the better to enable the jury to determine the probable state of the mind, and the extent and force of the restraint at the time the will was executed. And as regards undue restraints, it may be proper to remark that it is not necessary that the mind should act under influences at the time brought to bear, or then employed, but they may be such as have at a previous time been so fixed and impressed as to retain their controlling influence at the time the act is done. Nor is such restraint necessary to be effected by force or intimidation; for it has been held, upon authority, that if the mind acts by force of long training to submission, so that the will of another is adopted for its own, and without reflection, the party thus influenced is incompetent to contract. Jarman, in his work on "Wills, cites an authority with approval, in which when referring to the several kinds of undue influence, it is said, “ there is another ground which, though not so distinct as actual force, nor so easy to be proved, yet if it should be made out, would certainly destroy the will, and this is, if a dominion was acquired over a mind of sufficient sanity for general purposes, and of sufficient soundness and discretion to regulate his affairs in general; yet if such a dominion or influence were acquired over him as to prevent the exercise of such discretion, it would be equally inconsistent with the idea of a disposing mind.”
This is the greatest extent to which the authorities seem to. ■have gone, and upon principle seems to result in this: that it requires sufficient mind to contract, free from such undue influences as constrain the party to act against his will, or by subduing the will until it ceases to act for itself, and acts under the dictates of the will of another. The terms force and coercion, as used in the instruction,'were calculated to mislead the jury. The instruction should have been broad enough to cover the subject of coercion fully, as we have above indicated.
The 8th instruction relates to the superior weight to be given to the evidence of the subscribing witnesses to the will, and was properly given, as held in McDaniel v. Crosby, 19 Ark., 533.
The 9th and last instruction of defendants to which exceptions was taken is, “That if the jury believe from the evidence that the testator was of unsound mind, but had lucid intervals, and no proof of habitual insanity has been made by the plaintiff previous to and at the time of the execution of the will, the law presumes that the testator was rational and sound in mind when he executed the will. And if the jury believe that the testator in his will disposed of his property substantially in accordance with his antecedent declarations, the law presumes that he was lucid and rational, and in his right mind when he executed the will, and the jury must ■find for the defendant.”
All of that part of this instruction which relates to the lucid intervals and lunacy is out of place, as without evidence upon which to base the instruction; and to instruct that, if the jury found from the evidence that testator was in his right mind when he executed the will, was erroneous, because it left out the question of undue influence entirely, and for this reason was improperly given.
Having disposed of the questions which arose upon the defendant’s instructions, we will proceed to consider those asked by the complainants, and refused by the court:
The 8d is: “ If the jury believe from the evidence that the testator, at the time of signing the instrument, was very old and infirm in body, and childish in mind, and was suffering at the time from a harrassing disease, and had become from those causes mentally incapable of transacting his ordinary business, then he had not sufficient capacity to make a will.”,
The causes for incapacity are certainly strong, but we are not prepared to say, as we must if we sustain this exception, that no man who is incapable of transacting ordinary business can make a valid will. The court has assumed to determine upon a given state of facts, the precise question to be left to, the jury, that is, competency or incompetency. We think that the instruction as asked was properly refused.
The 7th instruction is, “That if the jury find from the evidence that Nathan Jenkins, before the execution of the instru-: ment presented, had not given to his children, Margaret To-bin and Nancy D. Barnes anything, or had given them, oí either of them, an insignificant amount compared with the value of his estate, at the time of executing the will, the fact that he stated in his will that he had given them more than he considered the property he had given to his two sons was worth at a fair valuation, is a circumstance to be considered by the jury in determining whether he had capacity to execute a will.”
It was error to refuse this instruction. It is said by Jar-man, 79, that the contents of the will, the manner in which it was written and executed, the nature and extent of the testator’s estate, his family and connexions, their condition and relative situation to him, the terms upon which he stood with them, the claims of particular individuals, the situation of the testator himself, and the circumstances under which the will was made, are all proper to be shown to the jury, and often afford important evidence in the decision of the question of the testator’s capacity to make a will.”
In the case we are considering, we have a testator of eighty-two years of age, possessed of an estate of some fifteen or twenty thousand dollars worth of property, with the children •of his two deceased daughters, and two living sons, who have claims upon him in the distribution of this property. It appears from the evidence that the sons and their wives, with the brother-in-law of one of the sons, met at the room of the testator; one of the sons went for and procured the attendance of a lawyer to draft a will; the evidence discloses no sickness or other cause for this assemblage, other than the execution of the will. None of the grandchildren were present. It is true that some of the parties may have called for purposes disconnected with the making of the will; but all of these circumstances when taken in connection with the acts that followed, are calculated to arouse suspicion and to challenge scrutiny, and the instruction asked pointed to a provis ion in the will which cut off the children of the daughters, who were absent, and gave to the sons, who were present, the whole of the testator’s estate, for the reason, as set forth in the will, that the testator had heretofore given to the daughters more than the value of the estate therein devised to the ■sons. The value of the land is not in evidence, but from the quantity, location — fronting on the Arkansas river — and improvements, it was, as we suppose, worth at least $10,000. In addition to this, it is proven that one of the devisees received on his part of the personal estate, $2,030 cash, $300 or $100 worth of household property, seven mules worth $700, and eighty or ninety dollars worth of cattle, which being the ■one-half would make the personal property $6,230, and the •entire estate $16,230.
The will makes the testator say that he had given to his two daughters more than this amount, whilst the evidence shows that one of the daughters received $1,200, and the other two negroes, one worth $700, sold after the death of her husband and the money paid to the testator, the other a girl for a nurse was when large enough, placed by the testator in the cotton field as one of his hands, and there remained in his service until freed at the close of the war; so that in fact this daughter, according to the evidence, received nothing. There is evidence, however, that the testator contributed a small amount in the education of his granddaughter; and there is also evidence that after the death of her husband, the daughter resided with the testator, but the’ evidence shows that her services were fully equal to the charge of support.
Under this state of the case, complainants asked that the jury be instructed that this inadequate provision for the grandchildren and the erroneous statement in the will were circumstances to be considered by them in determining whether the testator had, at thé time he made the will, sufficient capacity to make it. The reason given in the will for failing to provide for his grandchildren appears, from the evidence, to be untrue.. Shall we suppose that the testator (if he did direct this statement to be made) had,-at the time, a disposing mind and memory; or shall we suppose that, under the solemnities of the occasion, with a clear memory and mind, he directed a gross falsehood to be inserted in his will, and made this fabricated pretense of justice to his grandchildren, represented that their mothers had been fully provided for heretofore, when the proof, as to one, shows that she in fact received nothing, and as regards the other, only a very inconsiderable amount had been received, much less than had been advanced to one of the sons ? ■ The one or other alternative would seem inevitable.
This conduct on the part of the grandfather is so unnatural, so little in accordance with the obligations of parental care- and affection, and particularly so in the absence of any cause of displeasure between the testator and these grandchildren,, that it was the proper subject for the consideration of- the jury. Chancellor Walworth, in the case of Clark v. Fisher, in a case where the provisions of the will were under consideration, said: “ The ■ will is unreasonable on its face, when taken in connection with the amount of the testator’s property and the situation of his relatives; and this is always' proper evidence to be taken into consideration in judging of. the testator’s mind.” In the case of Stewart v. Lispenard, 26 Wend., 313, it was held that, in almost every case of disputed capacity, the will itself has, in its nature and effect, been regarded as an essential and most important part of the evidence of capacity.
It was unquestionably the duty of the court to give the instruction asked, and it was error to refuse to do so.
The 8th instruction asked by the complainants -was, that if the jury believe from the evidence that Nathan Jenkins was weak and imbecile in mind from old age and disease, so much so that he was incapable of attending to his ordinary business affairs, and, that whilst he was in this condition, he was induced to abandon the attorney who had previously attended to his business, and that the attorney of W. H. Jenkins, who was the principal devisee under the will now in contest, was called in to write said will, and that said will was attested only by said attorney of W. H. Jenkins and his wife and C. L. Colburn, who was the relation of said W. H. Jenkins, when other persons not interested in the said will were about the place, and could have been conveniently called to witness the same, this may be taken into consideration by the jury as a circumstance to determine whether said will was obtained by undue influences or not.
This instruction we think should have been given. There is some contradiction in the evidence in regard to this question. Owen, the attorney who drew the will of 1862, as well as that of 1868, states that after he wrote the first will, and some time before the second will was written, Nathan Jenkins told witness that the death of one of his sons and other causes required that his will should be written over, and that he, Jenkins, wished witness to write it for him. James H. Jenkins states that he went for Owen to draw the will of 1868, at the direction of the testator. The statements of these two witnesses agree; whilst that of Mrs. Williams is, that in the summer of 1867, in a conversation with the testator, he told her that he intended to make a will, and make it as’ he pleased; that he was going to have Thomas James to write it for him; that before Doctor Jenkins came out, Thomas James had always attended to his legal matters ■ for him, but now Doctor Jenkins was not willing for him to have any one but W. E. Owen write his will, but that he intended Thomas James to do it.
If the statement of this witness is true, then we must suppose that Nathan Jenkins had either changed his mind with regard to having James write his will, or that his mind had been influenced by others to induce him to make, the change. It was the province of the jury to weigh this evidence, and in view of their means of information, and the interest which the witnesses might be supposed to have in the issue, they were called to try to determine its weight, and to give it place when making their verdict. The testimony, if given full credit, shows very clearly, that the testator, for some cause, was unwilling to trust Owen to write another will for him, and that when the first will was made, he was procured to write it in preference to James, in whom he had more confidence ; that his son, one of the principal devisees was not willing for him to have any one but Owen, and when the testator told the witness that he intended to have a will Written as he pleased, we are left to infer that the first will was written contrary to the testator’s wishes. What credit is to be given to this evidence was a matter for the jury to determine, and had direct bearing upon the question of undue influence, and of fraud in the procurement of the will. All that the complainants asked of the court was this: That if found true, it was a proper subject for their consideration, and the court clearly erred in refusing to give it.
The ninth and last instruction asked by the complainants, and refused by the court, is: That an unequal disposition of the testator’s property to his heirs creates a suspicion against the testament, and requires strict proof of fairness in its execution and of capacity to make it.
There can be no doubt but that failure of a testator to make a fair distribution of his estate amongst his children, at once arouses inquiry as to the probable cause of so unnatural an act. That provision by way of advancements had been made to part of the children, or that some of them were prodigal, or disobedient, is at once looked into by the inquiring mind. Suspicion is aroused, and this unnatural devise is always a circumstance which should go to the jury; but we think that the terms, strict proof of fairness, tended to induce the jury to attach unnecessary importance to this circumstance, which, though properly given as such, does not necessarily require for this cause strict proof, or stricter proof, than other circumstances. We think the instruction properly refused.
The remaining ground for a new trial is, that the jury found contrary to evidence.
Without summing up the evidence, or attempting to decide on which side there was the greater weight of evidence, it may suffice to say that if this was the only ground assigned for granting a new trial, we would not disturb the verdict.
But for the several errors which we have found in the progress of our investigation, the judgment and decision of the court below must be reversed and set aside, and the cause remanded with instructions to grant to the complainants a new trial; that the court make up an issue of devisavii vel non to be tried by a jury. | [
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English, O. J.
The indictment in this case, founded on sec. 1487, Gantt’s Dig., p. 362, is as follows:
“The grand jury of Garland county, etc., etc., accuse Thomas Bass of the crime of permitting and conniving at the escape of prisoners, committed as follows, viz: The said Thomas Bass, on the 14th day of March, A. D. 1873, in the county of Garland, state aforesaid, as constable of Hot Spring township, having in lawful custody William Brown and George Burrough, prisoners, by virtue of a warrant or process-issued by a legal and proper officer, did then and there, willfully and unlawfully and voluntarily, suffer, permit and connive at the escape of the said William Brown and George Burrough, prisoners, from his custody, and permit them to go at large, against the peace and dignity of the state of Arkansas.”
The appellant demurred to the indictment, not for any defect appearing on its face, but on the grounds, as stated in the demurrer, that he was an inferior officer of Justice Allard’s court, who issued a warrant for the arrest of the prisoners, and after their arrest by defendant, ordered their release.
This, of course, was no ground of demurrer to the indictment, but if available at all, was matter of defense, to be introduced on the trial.
The court overruled the demurrer, the appellant pleaded not guilty, was tried and convicted. A motion for a new trial was overruled, and he took a bill of exceptions and appealed.
On the trial, the state introduced as a witness N. H. Cloys, who testified that he was coroner of Hot Spring county on the 14th day of March, 1873, by virtue of a commission from the governor. That on said day, Thomas Bass, constable of Hot Springs township, Hot Spring county [afterwards made part of Garland county], had in his custody four men, Hall and son and Brown and Burrough, for whom said Cloys, as Coroner, had.issued a writ or warrant of arrest, and which writ or warrant of arrest had been returned as served by said Bass. That afterwards said Bass permitted Brown and Burrough to go at-large without" authority or permission of said Cloys.
On cross examination, he stated that his bond as coroner had been approved, and that he issued the warrant of arrest.
L. S. Allard, introduced by the state, testified that he permitted Cloys to use his office, and acted as his clerk, Cloys having an afflicted arm.
Here the state rested, and these were the only witnesses introduced by the state.
The evidence on the part of the state was as vague and uncertain as some of the material allegations of the indictment.
Mr. Russell says, every indictment for an escape, whether negligent or voluntary, must expressly show that the party .was actually in the defendant's custody for some crime, or upon some commitment upon suspicion. 1 Rus. on Cr., 422-8, quoted by Bishop, who gives Archbold’s pz-ecedent for an indictment, etc. Bishop Cr. Pro., secs. 889, 891, 894.
In this case, the indictment alleges that Brown and Bur-rough were in the custody of appellant on a warrant of arrest, but does not aver for what crime, offense, cause or charge.
Cloys testified that he issued the warrant of arrest as coroner ; but did not state for what cause. He testified to no facts that would authorize him to issue a warrant of arrest.
The statute makes the coroner a, conservator of the peace, and makes it his duty to cause all offenders against the law, in his view, to enter into recognizance, etc., and to quell and suppress all riots, affrays and assaults and batteries, and apprehend and commit to jail all. felons and traitors. Also, to hold inquest over dead bodies, and issue warrants for the arrest, of suspected persons, etc. Gantt’s Dig., ch. 30.
Here the state did not introduce the warrant of arrest issued by Cloys, nor prove, by him or any other witness, for what ■cause or on what charge it was issued.- He stated merely that he issued the warrant of arrest, and that the prisoners were in custody of the appellant, and that he permitted them to go at large, leaving the jury to presume that the warrant was legally issued and valid — presumptions that juries are mot at liberty to indulge in in criminal cases.
The substance of the testimony introduced on the part of the appellant is, that on the 11th of March, 1873, Allard, a justice of the peace, issued a warrant to arrest Brown, Bur-rough, and Greorge and Abner Hall, on a charge of malicious .attempt to take the life of John and Martha Bradshaw. They were arrested by appellant, as a constable, to whom the warrant was delivered, and held in custody until the 14th of March, 1873, when Allard permitted Brown and Burrough to .give bail for their appearance at the circuit court, and issued an order to appellant to release them from custody, and he released them. The witnesses for the defense could not remember whether Martha Bradshaw was dead or not when Allard took the bail and ordered the release of Brown and Bur-rough.
The state, by way of rebutting evidence, offered to read to the jury, from a book kept by Cloys as coroner, minutes of an inquest held by him over the dead body of Martha Bradshaw; to the introduction of which, as evidence, the appellant objected, and the court overruled the objection, and the minutes were read to the jury.
The minutes show that the inquest was held on the 13th and 14th of March, 1873. The entry of th§ 13th shows that information having come to the knowledge of the coroner that Martha Hall (as she was called in the entries) had come to an unnatural death, he proceeded to have the body examined by surgeons, and to summon and impanel a jury of twelve men to hold an inquest, etc., whose names are given, and that in the afternoon they adjourned to meet at the office of Justice Allard, in Hot Springs.
The entry of the 14th shows that the coroner’s court convened, jury present, witnesses were examined, and the “jury returned a verdict that the deceased, Martha Hall, came to her death from a gun-shot wound, inflicted willfully and maliciously, by Abner Hall, and that George Hall, George Burrough and Wm. Brown were accessories before the fact; whereupon, after said Abner Hall, George Hall, George Burrough and Wm. Brown had been, arraigned and interrogated as to the death of Martha Hall, and their whereabouts at the time the murder took place, and they positively having refused to say anything as to their guilt or innocence in the matter, commitments were issued, and Abner Hall and George Hall delivered over to the sheriff, to await their trial at the next term of the circuit-court, etc., Geoi’ge Burrough and Wm. Brown having been allowed by the constable, Thomas Bass, to leave, contra^ to my orders, after having been placed in his keeping.”
These minutes were signed by Cloys as coroner.
Had the state proven the material facts stated in these minutes, by Cloys, when on the stand as a witness confronting the appellant, -in addition to the facts sworn to by him, a case would have been made out against the appellant; for the court had- authority to cause Brown and Burrough, implicated by the inquest in the murder of Mrs. Hall or Bradshaw, to be arrested and held by the appellant, as constable, and he had no right to release them bn the order of Allard, the justice who had caused them to be arrested before the death of Mrs-. Hall for the lesser offense of attempting to kill, etc. Gantt’s Dig., secs. 891, 892, ,898. Justices of the peace have no powder to bail in capital cases, murder 'or -manslaughter. Id., sec. 1711.
But the coroner’s minutes were not competent evidence for, the state, and the court erred in permitting them to be read to the jury.
The judgment must be reversed and the cause remanded with instructions to the court below to set aside the verdict,, and for such other proceedings as may be in accordance with law, and not inconsistent with this opinion. | [
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Williams, Sp. J.
The appellant was indicted in the criminal court of Phillips county, for murder of one Meyers. He filed his motion to set aside the indictment, on the ground that two members of the grand jury that found the indictment were not freeholders or householders. To this motion the state demurred, the court sustained the demurrer, and appellant excepted.
Section 1978 of Gantt’s Digest prohibits all exceptions to the ruling of inferior courts in refusing to set aside an indictment for certain causes, among others this. This section violates the provision of the constitution of 1868, section 9, article I., which requires a presentment or indictment by a grand jury, before the accused can be called to answer for such a crime as this. While the legislature may prescribe the time and manner of determining the objection for the want of qualification of jurors ( Whitehead v. Wells, ante, p. 99), it cannot take away the right to make it.
The objection is here made in apt time, and the right of appeal cannot be taken away as to any important right. Constitution of 1868, secs. 4 and 15, art. VII; Simpson v. Simpson, 25 Ark., 489. It was not necessary that the members of the grand jury should be householders or freeholders. Gantt’s Digest, sec. 3654. This section is not obnoxious to the constitutional objection interposed by appellant, for the act of 1871, from which this section was taken, does not conflict with sections 22, 23, art. V, Constitution of 1868, by embracing more than one subject, and in failing to copy the law, revised or altered, entire. The constitution required singleness of subject, to prevent omnibus bills, by which various distinct schemes could be united in one bill, and the like, and the friends of separate measures be thus united to carry through measures which, alone, could not be passed. It was not intended to require that minute separation of subjects as is here claimed. Neither does it conflict with said section 23, art. Y of the constitution; the object of which was to prevent that system of amendments, which, instead of inserting the amendment or alteration, together with so much of the old law as was retained, provided, in terms directory, that a given law should be amended as follows, to wit: in a given section or line, strike out given words and insert others, leaving the court, by this direction, to make the amendment itself and make a new law out of the two. This constitutional provision intends to check all that kind of legislation, and requires the legislature to give us, in the old and the new put together, what the new law is intended to be. By these rules it is easy to see that this provision of the act of 1871 is perfectly constitutional ; none of the old sections was wanted, hence none is retained. It is expressly repealed, or by implication, by the inconsistency of the new section. The subject is sufficiently embraced within the title. There is nothing in this exception.
After the demurrer was sustained to appellant’s motion in abatement of the indictment, and he had thus excepted, he waived arraignment and pleaded not guilty, and the cause was continued until the fall term; at which time the case was tried, and tbe appellant convicted of murder in tbe first degree, and sentenced to be hung. During the progress of the trial appellant excepted to sundry rulings and decisions of the court, and moved for a new trial, setting up twenty-four grounds for new trial. This motion was overruled by the court, and a bill of exceptions was signed and made part of the record, which set out all the testimony given, and offered to be introduced by either party, and the instructions of the court and affidavits in support of the motion for a new trial.
The record states that the jury were duly drawn, selected and sworn as required by law, the oath administered being the one prescribed by section 219 of the criminal code of practice. This method of swearing the jury is made one of the grounds of the motion for new trial, and this provision, it is here argued, is unconstitutional in failing to swear the jury to try the case according to law and evidence. The oath is as follows: “You and each of you do solemnly swear that you will well and truly try the case of the state of Arkansas against ~W. B. Palmore, and a true verdict render unless discharged by the court, or withdrawn by the parties,” etc. The jury are the judges of both law and fact, and were so informed. It would be difficult for them to well and truly try and a true verdiqt render, without acting according to law and evidence. There is nothing of substance in this objection.
The record shows that the court ordered the jury to be kept together, and put them in charge of an officer during the progress of the trial, and pending their deliberations there were serious acts of misconduct of the jury, and irregularities were permitted on the part of the officer having the jury in charge, in permitting them to drink intoxicating liquor, and in allowing one Jackson to separate from his fellow jurors, to go into a kitchen at a restaurant to eat by himself, and in allowing one of the jury to separate from his fellows, and go away from them, and out of sight of the officer in charge, to see a man at his office on business, and in allowing the opportunity for the jury to read a newspaper containing highly improper comments upon the case before them; which article asserted that the prisoner had been proven guilty of murder, by the state’s witnesses, and from their respectability and standing this evidence would be hard to overcome.
This comment is such as no prudent press should make pending a trial of this kind, and such as the court should have, perhaps, prevented the repetition of by punishing the publisher for contempt; at least, it was not proper to have come before the jury, as the affidavits strongly tended to show it did.
There is an affidavit tending to show that four of the jury went, by permission of the court and consent of prisoner’s counsel and the state’s, to attend a theatrical exhibition, while the eight others remained in charge of another officer; but no communication was had by the four with any one. This was a serious irregularity, and was very improper. Neither defendant below nor his counsel should have been asked favors of this kind, for his refusal might have incensed the jury. But the court should not have permitted the jury to be subjected to any influences calculated to lessen the solemn obligation they were under to perform the gravest duty which man on earth can be called on to perform — decide upon the life of his fellow. This, outside of the opportunity and temptation to communicate and hear comments upon the case before the jury, was wrong. The jury having, during this separation, been, each part of it, in charge of a sworn officer, and no communication being proven, we would not disturb the verdict for this alone.
The drinking of intoxicating drinks, although it is shown to be in limited quantities, was very improper, and is more aggravated by the statement of the officer, that he cautioned the barkeeper — a public barkeeper at a restaurant — to limit tbe quantity drank, although the affidavits show that the use was limited and moderate, confined principally to two feeble old men in the jury, who, it was thought, needed it. - The use of any ardent spirits in such manner as is shown here is a gross irregularity. For even if a case should occur where stimulants would become absolutely necessary to any person, the administration of them should not be left to the discretion of a barkeeper in a public saloon.
This court has not favored the setting aside of a verdict for mere separation, unless something more than opportunity for undue influence is shown. Cornelius v. The State, 12 Ark., 782; Coker v. The State, 20 id., 53 ; Collier v. The State, id., 36; Staunton v. State, 13 id., 320.
The facts attending the homicide, as detailed by the witnesses, are substantially as follows:
L. H. Mangum testified: I live in Helena; the killing took place on my plantation last summer, one Sunday in May, in the evening, about three o’clock. Ellis and son came to take dinner with me; after dinner, Meyers and I proposed riding towards home with Ellis. Meyers had gone to the horse lot to saddle our horses, and prisoner rode up. Ellis and I were on the gallery; prisoner came up and spoke; I asked him to get down; he said no, he wanted to see me; he then crossed on the opposite side of the lane and stopped ; he then said: Judge Mangum, I think a great deal of you ; that damned fellow, Meyers, I understand, has told you that I said you were a damned grumbling scoundrel; but I want to tell you that I did not say it. I told him that Meyers had never intimated anything of the kind to me. Then he said: well, anyhow, he is going to cowhide me. I asked him for what, and he said, about hiring that nigger, Gfeorge. I told him I did not think so, as he, Palmore, had acknowledged to Meyers that he had done him injury in that matter. He then said: Well, it was about that Dolly Varden, meaning a negro woman. I told him it could not be that, as Meyers knew that I would not let her stay on my place ten minutes. Well, said he, anyhow, he is going to cowhide me, and I' came up here to-day prepared to take it. Said I, Palmore, who told you that Meyers intended to cowhide you ? and he said, Jim Taylor told me so, and that he (Taylor) would give Meyers $500 to deny it. About that time, Jim Taylor and Pink Harris came riding up the lane in the direction that defendant had come. As Taylor came up, Palmore introduced him to me. I said, Mr. Taylor, did you tell Mr. Palmore that Meyers had threatened to cowhide him ? Taylor then said to Palmore: No, I did not tell you that. Palmore then said: Well, what did Meyers say? Taylor then said: You know what I told you.; and then I remarked that Meyers had said that Palmore was a damned liar, if he had said certain things about the hiring of George. I then asked him to go away; this is no time or place for a difficulty. Taylor was very much embarrassed, and looked pale and uneasy. Taylor and Harris then .rode down toward the horse lot gate. Palmore got down and tied his mule. * * * I told defendant to get off my place and not to have a difficulty. He said: Judge, it is mighty hard to be threatened to be cowhided, and I have come to take it. Meyers was coming up the lane from the lot, leading two horses. Meyers said: I am responsible for what I have said, and hitched his horses. Palmore said: I have come to take that cowhiding you promised me. Meyers • said: Palmore, I never threatened to cowhide you. Palmore said: Well, G — d d — n you, why don’t you do it ? Palmore then advanced on Meyers, with his right hand behind, on his hip, and Meyers picked up an ox bow; and I don’t know whether he struck before Palmore drew his pistol or not, but he struck Palmore, and he, Palmore, fired, and shot Meyers in the arm; he then fired again, and struck him in the bowéls. Meyers said: Judge, he has killed me; he has shot me in the bowels. He, Meyers, then pushed Palmore over, and took the pistol away from him, and carried it into the house.. Palmore said: Judge, don’t let him kill me. Meyers then went toward the house, and defendant again requested witness not to let Meyers kill him, and said he was willing to give himself up to him. I told him I thought he had killed the man, and he had better stay and see what the consequence was. Meyers was then taken into the house and defendant went off. I did not see him after that.
Meyers lived until next day at 12 o’clock, when, the proof shows, that he died of the wound.
Mangum, in cross examination, stated that he did not know whether Meyers drew the ox bow before Palmore drew the pistol, or not. This ox bow is proven by other witnesses to have been an old ox bow, untrimmed, about three-fourths straightened out, and was about five feet long; and that Meyers struck with both hands, advancing on Palmore tó do so. Deceased was Mangum’s superintendent.
Mangum further stated that the parties clenched and struggled after the pistol was fired the first time. He did not suspect a difficulty until it was too late to prevent it. The second shot was fired while they were clutched and struggling, when deceased threw defendant down, and got up holding Palmore’s pistol in his hand. This happened on the usual traveled neighborhood road, in front of Mangum’s plantation house, in Phillips county.
Other witnesses proved that defendant was passing on this occasion on proper business, having gone by in the morning after his clothes, which awere at Babson’s store, and was returning.
Anderson Ellis details the circumstances immediately áttending the killing — among other matters, as follows: Meyers came up and hitched his horses, having heard Palmore say that if he was to be cowhided, he wanted it done then. Witness thought-that Palmore acted as though he were drunk. Meyers-said to Palmore, I never threatened to cowhide you; go away from here; I do not want a difficulty with you; Meyers raising his hand and motioning away, saying, I am responsible for what I say. Palmore was then advancing on him, saying, Gr — d d — n you, why don’t you cowhide me if you are going to ? repeating it several times: Meyers stooped down and picked up a broken ox-bow and struck him (Pal-more) a lick with both hands, and according to my observation the lick only brushed Palmore and did not take effect on him. As Meyers struck Palmore, almost simultaneously-1 heard the report of the pistol, and a second afterwards another. I ran out and they were clutched, and Meyers got up with the pistol in his hand and said that he was killed.
John Ellis, a son of the last witness, among other things, states, that Taylor asked Palmore to come and go home, when Meyers was in the barnyard getting the horses. He, Palmore, said, No, if I am going to be cowhided, now is as good a time as any. Palmore then had his hand back towards the right hip. I remarked to my father that I thought he had a pistol. He asked me, why? I told him that the day before, I saw him with a pistol. Meyers came out, of the lot and was going to hitch the horses, and said to Palmore, you had better leave here. Palmore said, here I am, Gr — d d — n you, why don’t you cowhide me ? Meyers hitched the horses with his left hand, turned his face toward the house and caught hold of the end of an ox-bow, which was under the fence with his right hand, and said, I want, you to leave here; I don’t want to have any difficulty with you. . I saw Palmore advance towards Meyers a step or two, saying, G- — d d — n you, why don’t you cowhide me? several times. Meyers said, I never said I was going to cowhide you, but I am responsible for all I have said. Meyers said, I want you to leave here. He then raised the ox-bow with both hands, the left hand in front; when he brought his hands down I saw smoke, and thought he 'had knocked the dust out of Palmore’s hat; he had the ox-bow in his hands, but the crack of the pistol the next instant showed me that the smoke was from the pistol. I don’t know whether Meyers struck him or not, he made a motion to strike before the pistol fired, and I don’t know whether he struck Palmore before or after the pistol fired, or whether he struck him at all, or not. After the report of the pistol, Meyers caught hold of Palmore. While they were struggling I heard another report. I saw the pistol in Palmore’s hands just about the time Meyers took hold of him. They both got on the ground in the struggle, and when Meyers got up he had the pistol in his left hand, with the barrel of the pistol towards himself. Judge Mangum was standing close to Meyers. Palmore then ran off a few steps, and hallooed, Don’t let him shoot me, twice. The blood was running from Meyers freely then. He put his hand on his stomach, and said, Oh, I’m killed; I’m killed. Judge Mangum told him to come into the house, which he did.
Palmore shortly after, in the manner detailed by this witness, got his pistol from the elder Mr. Ellis and rode off on his mule, flourishing it over his head, saying, He cowhided me, did he ?
Pink Harris, for defendant, testified: That Palmore was talking to Judge Mangum about Meyers’ threats to cowhide him; that Meyers came and hitched his horses and picked up the ox-bow after he had hitched the horses, and said to defendant : I will substantiate anything I have said; and said further, Gr — d d — n you, get off this place, and popped defendant on the head. Defendant careened, hut did not fall; he was in the “shape” of falling. At that time the pistol fired. I mean, after he, Meyers, had struck him. He, Myers, then struck Palmore again, and he fell, and Myers got on top of him, or astraddle of him. He was half bent when he was straddle of him. When he was half bent on Pal-more, the pistol went off the second time.
This witness states that he and Jim Taylor and Palmore had gone down to Hobson’s store in the morning and back in the evening. That defendant lived at the Eobb place, and had gone down that morning to Eobson’s for his clothes and a saddle he had there. They were coming back' by Mangum’s place in the evening when the difficulty occurred.
A. J. Taylor testified, on behalf of defendant, that he was present when the difficulty occurred, and after detailing the circumstances attending the interview between Mangum and .Palmore, and about Meyers coming up, he says: Palmore turned around and asked Meyers if he had said that he intended to cow-hide him. Mr. Myers said, yes, and I'll substantiate what I said, picking up an ox-bow, at the same time, he advanced on defendant. Palmore stepped back and said, Meyers, don’t hit me with that stick. When'Meyers got up to him, he struck him a lick with both hands with the bow.' Palmore staggered back, and as Meyers was in the act of striking him the second lick, defendant shot him. After he (M.) struck-the second lick defendant fell, and the pistol fired the second time. Meyers then jumped on him. Mangum stepped up and caught Meyers by the shoulders, and Meyers raised up. Meyers said to Mangum, after he raised up, he has killed me, and turned round and walked into the house.
The witness says, Meyers struck with both hands. The oxbow was four or five feet long, of pretty heavy size; it was in the shape of an ox-bow, a little crooked.
James Taylor testified that deceased was, to all appearance, a much stouter man than defendant, and was a man of active habits.
The defendant offered to prove that on the morning of the day of the homicide, James Taylor had told defendant that he, the deceased, had threatened to whip and cowhide the defendant on sight. This testimony, the court refused to allow to go to the jury, and would not let the witness, Harris, state it. Defendant excepted, and made this one of the grounds for his motion for a new trial.
The fact that defendant was armed with a deadly weapon, was a circumstance, if unexplained, that strongly tended to establish that malice aforethought and premeditation which were necessary to constitute the aggravated offense which the jury found here. Therefore, any motive of self-defense, or of protection against great bodily harm, or degrading chastisement by deceased, which might have prompted this hostile arming, was of the utmost importance for the jury to know. If the defendant armed to provoke the difficulty, in order to kill, he is guilty of murder. If his arming was in self-defense only, his crime, which his being armed with, and the use of a deadly weapon would greatly aggravate, might be palliated by showing a less guilty motive for having the weapon. This evidence, as well as that hereinafter named, showing other threats, and tending to prove the deceased to have been a turbulent, quarrelsome man, for the same reason, ought to have gone to the jury for what it was worth, they being the sole judges of its weight.
Threats, as well as the character and conduct of deceased, are admissible when these circumstances tend to explain or palliate the conduct of the accused. These are circumstantial facts which are a part of the res gesice whenever they are sufficiently connected with the acts and conduct of the parties, so as to cast light on that darkest of all subjects, the motives of the human heart.
This position is fully sustained, we think, by our own adjudications and those of other states. Pitman v. The State, 22 Ark., 354; Coker v. The State, 20 id., 53; Atkins v. The State, 16 id., 584.
In addition to this, defendant offered to prove, by one of the Taylors, the fact that divers threats were made by the deceased against the life and limb of the defendant, to be executed whenever he met him, and that these threats were communicated to the defendant shortly before the homicide. This was excluded by the court, and its ruling was duly excepted to and made one of the grounds of the motion for new trial. ’ This was erroneous. The testimony should have been admitted. Stokes v. The People, 53 N. Y., 164; Holler v. The State, 37 Ind., 57; Rector v. The People, 19 Wend., 589; Howett v. State, 5 Geo., 54.
The defendant offered to prove, by witnesses named, that the deceased was “a violent, dangerous, quarrelsome and revengeful man.” This testimony the court refused to permit the jury to hear, and defendant excepted. The court should have admitted this, as it tended to shed light upon the motives of the slayer, and the conduct of deceased at the time of the difficulty. 2 Whart. Cr. L., sec. 1099; Phillips v. Com., 2 Duval, 328; 1 Metc., 370; 31 Miss., 504. The testimony may be of little value; the jury might give it but slight weight. No matter; the question for us is, Ought the jury, as a matter of law, to have been allowed to consider the fact? We think so. Pitman v. State, ubi supra; State v. Keene, 50 Mo., 357; Hurd v. State, 25 Mich., 405. This testimony was of more importance to defendant, in view of the slight con- ■ flict in the testimony as to which was the assailant, the deceased or the prisoner.
The rejection of evidence tending in any degree to aid the jury in determining a material fact is error. 3 J. J. Marsh., 229. It was perfectly competent for Harris to prove that Taylor had told appellant of the threat. The point of inquiry was not whether the threats were made, but what were Palmore’s motives. The communication by Taylor to him was a fact in the case proving one of its circumstances. The truth of the message was not the question. Cornelius v. The State, 12 Ark., 782; Atkinson v. The State, 16 id., 568. But, in this case, if the slayer believed the threat, the “character of the deceased was an important element in the case; for, if he was turbulent and revengeful, he would be more apt to execute his threats, and the appellant would be the more readily excused for preparing himself for defense in a more decided manner, and to act with more promptness and energy when he was assailed. If the jury should find that the deceased was the assailant, these facts, which were excluded from the jury, ought to be of the utmost importance. But the value and weight to be given to them are for the jury, not for the court.
The court gave seven instructions on the part of the state, numbered from 4 to 10 inclusive, to the giving of which appellant excepted.
The 4th is as follows: “If the jury believe from the circumstances that the accused intended to use a deadly weapon if the deceased assailed him, and provoked the deceased to strike him, and afterwards killed him, they will find the defendant guilty of murder.”
This instruction may be good abstract law, which we doubt, but, connected with the facts of this case, should have been qualified by the words “ intending to kill him, if he struck him,” or something of like import after the words, “ provoked the defendant to strike him.” For, otherwise, the jury from the circumstances of this case, might have been led by the in struction to believe that the mere use of a deadly weapon was conclusive evidence that Palmore had committed murder, if they found that he provoked the assault, intending to use the deadly weapon. It is not the intention to use a deadly weapon, but the intention to kill, of which this use is evidence, which constitutes the offense. This should, under ‘the circumstances of the case, have been made clearer to the jury than is done in this instruction, and the court here fails to define the difference in the degrees of homicide, which is' not sufficiently remedied by other instructions. This failure to define the degrees of homicide is made the 22d ground of the-motion for new trial. While this failure is, in every such case, improper, we would not for this alone reyerse, especially as in the 24th ground for new trial and from the record, it is shown that the court read the definitions of the different degrees of murder from the digest. Article I, part 4, chapter-51, Gould’s Digest. This was no error, and, being in print, complied with the law which requires instructions to be in-writing.
The 5th instruction given for the state was: “If the jury believe from the evidence that defendant entertained a deliberate purpose to kill or do great bodily harm, and there is, a consequent unlawful act of killing, the provocation, whatever-it may be, which immediately preceded the apt, is to be thrown out of the case, and goes for nothing, unless the defendant, shows that the purpose was abandoned before the killing was-. done.”
This instruction would have been unobjectionable if it had been qualified in itself, or in a separate instruction- with an explanation of the degrees of homicide, except the last clause should have been so guarded as to allow the jury to infer the abandonment of the deliberate purpose to kill, if they so found from the circumstances of the homicide; otherwise, it might. have misled the jury to believe that the defendant must prove it from other evidence.
The 6th instruction is: “If the jury should believe from the evidence that the provocation was sought by the defendant, it cannot furnish any defense against the charge for a felonious homicide.” This instruction is too vague as to what was meant by “provocation,” and what was the meaning of “felonious homicide.” The only objection to this is its obscurity, which we could not pronounce a decided error, unless it was misleading. See Payne v. Com., 1 Met., 370.
The 7th instruction is law. It is: Express malice is that deliberate intention of mind unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof.
8. “ Malice shall be implied when no considerable provocation appears, or where all the circumstances of the killing manifest an abandoned and wicked disposition; and the jury is instructed that if they believe from the evidence that the killing was malicious, and that the difficulty was brought on by defendant, no provocation, however great, will reduce the killing from murder to manslaughter.” The only objection to this instruction is the failure, there or elsewhere, to define the distinction as given by law between the degrees of homicide. A malicious killing is not necessarily murder in the first degree. To find that, the jury must be satisfied beyond a reasonable doubt that the killing was willful, deliberate, malicious and premeditated (25 Ark., 405), or was committed in the attempt to commit some one of the felonies described in the statute. The premeditation must exist as a course deliberately fixed upon before the act of killing. Bevens v. State, 11 Ark., 455.
9. “ The jury are the judges of the credibility of witnesses from the manner of testifying, their means of observation, and their general conduct on the stand ; and if they should believe that any of the witnesses have sworn falsely to any material fact in the case, they are at liberty to discard the whole statement of the witness so testifying.” This is law.
10. 11 The jury are instructed that a reasonable doubt is not a mere possible doubt, because anything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the' entire comparison and consideration of all the evidence, leaves the minds of the jury in that condition that they feel an abiding conviction to a moral certainty of the truth of the charge.” There can be no reasonable objection to this.
The appellant asked the court below to instruct the jury as set forth in ten distinct propositions. The court refused to give the 5th, 6th and 8th.
The 5th is as follows: “"Words will not, in law, justify an assault; wherefore, if the jury believe from the evidence that the defendant did use provoking language to the deceased, upon which the deceased assaulted the defendant in a manner to produce a reasonable apprehension in the mind of the defendant that he was in danger of great bodily injury, and that such danger was impending, he is justified in employing such, means for the defense of his person as he reasonably deems necessary, and if pressed, may kill the assailant.”
This instruction was properly refused. It was too broad and unqualified. To excuse homicide, it must appear that the danger is not only impending, but so pressing and urgent as to render the killing necessary (Gantt’s Dig., sec. 1285; McPherson v. State, ante, 225); and the circumstances must show that there was sufficient to arouse the fears of a reasonable person, and that the party killing really acted under their influence, and not in a spirit of revenge. Gantt’s Dig., sec. 1284.
The 6th instruction asked for by defendant is : “ If the jury believe from the evidence that the killing was done in defense of an attack by the deceased, it is their duty in deciding upon the character of the defense to carefully examine and consider all the circumstances of the rencontre, the true situation of the parties at the time, their respective feelings and intentions as shown by their acts, their threats, and their relative.strength and power; becaifse in a contest between a powerful individual and a weaker, the necessity of taking life in self defense will be more apparent and easily discoverable.”
This instruction should have been given. In testing instructions, every deduction which the jury might have made from the testimony is to be taken as proved. Phillips v. Com., 2 Duval, 328.
The 8th instruction of the defendant which the court refused to give, is: “If the jury believe from the evidence that defendant was on the route home, and called at Mangum’s to correct a false report said to have been circulated by defendant about said Mangum, and to ascertain or demand of deceased if he had threatened to cowhide defendant, and that upon making such inquiry of deceased, the latter, by his manner and words, manifested an intent, coupled with acts, to kill or inflict bodily harm upon the defendant, and immediately sought to carry such purpose into effect, the défendant, in the reasonable fear of such consequences, was justified -in taking life.”
The latter part of this instruction is too general and unqualified, and was liable to the same objection which was given to his instruction No. 9, and the court below properly refused it.
The court, of its own motion, gave the following instruction : “ The killing being proved, the burden of proving cireumstances of mitigation that justify or excuse the homicide' shall devolve on the accused, unless by the proof on the part of the prosecution, it is sufficiently.manifest that the offense committed only amounted to manslaughter, or that accused was justified or excused in committing homicide.”
This is correct, being an exact copy of sec. 1252, Gantt’s Dig., and was properly given. This instruction should have been accompanied with a full definition and explanation of the degrees of homicide.
The court read from Gould’s Digest, chapter 51, part IY, article I. This was not excepted to at the time, and the point was lost; but having-been made one of the grounds for motion for new trial, we will pass upon it. The objection to this is, that it was not in writing. The objection is not well taken. "When a given and well defined section of a statute is read frdm the Digest as an instruction to the jury, it is sufficiently fixed, permanent and known, to come within the substantive terms of the law which requires it to be in writing; for in’ preparing a bill of exceptions, it is always conveniently accessible. In this bill of exceptions, it is simply referred to, and not inserted. Yet we know exactly what was read, and it tended to remedy some of the evils of the neglect to define the degrees of homicide, for this article does define the degrees of murder.
The 24th ground of the motion for new trial was that the jury were allowed to take with them when they retired to consider of their verdict, papers which had not been received as evidence in the case, to wit: the motion and affidavit of defendant to set aside the indictment and subpoenas issued for witnesses in this cause.
The jury should not take any paper which contains statements of facts bearing on the case, which was not read in evidence to them. The only paper above named which might have been objectionable on this ground was defendant’s motion for a continuance. This is not prejudicial to appellant, being his own statement, and-states the facts he expected to prove satisfactory to himself. All other papers named were harmless.
We find that grave errors were committed by the court, and that the jury acted with irregularity, although these irregularities alone would not be a sufficient cause for setting aside the judgment of the court below in overruling the motion for new trial, after the court below with all the facts and circumstances before it, and a personal knowledge of the habits and character of the jury, had refused to do so.
We might feel content to affirm were we satisfied that these errors did not contribute to the conclusion arrived at by the jury. Here we find a strong, outside public sentiment, hostile to the appellant, as indicated by the newspaper article. We find the jury so acting as to tend to unfit them for their grave duties, and in this condition subjected to this external hostile influence to the extent of opportunity, if nothing more. We find this jury have not been allowed to hear important testimony, necessary to the correct determination of the case, and that it was liable to be misled by instructions which were erroneous, and by omissions of the court.
It would be going too far to allow this, simply that crime might not go unpunished.
Eor these errors the judgment of the criminal court of Phillips county is reversed, and this cause is remanded to the circuit court of said county, to whose jurisdiction it now belongs, with instructions to grant a new trial, and proceed therein according to law, and not inconsistent with this opinion.
Hon. E. H. English, C. J., did not sit in this case. | [
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Williams, Sp. J,
Appellees brought an action of ejectment in the Washington circuit court, to the April term, 1873, for a lot of ground and a two-story frame-store thereon situated in the town of Eayettev'ille. Appellant, Stirman, in a separate answer, denied appellees’ title and right of possession, and set up specially a claim of title as administrator of James E. Trott, deceased, who died seized of the lot, etc., exhibiting his letter of administration. Appellant, Davidson, filed a separate answer, denying generally the allegations of the complaint. Appellants also filed a joint answer, setting up substantially the same defenses as they presented separately.
On the issues thus presented, the cause was tried by a jury, which rendered the following general verdict:
“ We, the jury, do find that the said plaintiffs are the legal owners of, and well entitled to, the lot of ground described in the within complaint, and that the defendants wrongfully and unjustly detained the possession thereof from the said plaintiffs, for which we find $120 damage. We also find that the defendants are lawfully entitled to the said two story frame-building or store-room, occupying the front portion of said lot, and that the same belongs to James E. Trott’s estate.”
The jury also returned the following special finding:
1. That James W. Stirman, the grantor of plaintiffs’ grantor, did not execute a deed in fee simple to the lot in controversy to James E. Trott, in 1866, or at any time prior to the execution of the deed from said Stirman to his mother, Catherine Stirman.
2. That said James E. Trott has since died.
3. That E. J. Stirman was administrator of the estate of James E. Trott, deceased, at and before the commencement of this suit.
4. That the house mentioned in plaintiffs’ complaint is now, and was at the time of the commencement ,of this suit, still standing on said lot.
5. That said house was erected by said Trott before the execution of the deed from James W. Stirman to his mother, the plaintiff’s grantor.
6. That the value of the house at the time it was built was $2,200.
7. That the present value is $1,000.
8. That Trott’s legal representative was in possession of the premises at the time of the execution of said deed, read in evidence, from James H. Stirman, and Catherine, his wife, to plaintiffs.
9. That Trott left a wife and child surviving him.
On this verdict, judgment was rendered for plaintiffs for the lot, except that portion covered by the building, and damages assessed.
Pending the trial, appellants excepted to several rulings of the court, and at its conclusion, moved for new trial, setting out four distinct grounds for the motion :
1. Excessive damage.
2. Amount of recovery.
3. Yerdict not sustained by sufficient evidence, and contrary to the evidence.
4. Because the court erred in the instructions given to the jury, and in permitting illegal evidence to go to the jury.
This motion the court overruled, and appellants presented their bill of exceptions, which was duly signed and made a part of the record, and by which it appears that, both parties admitted that James W. Stirman, under and from whom, both parties claim to have derived their respective claims to title, was the original owner in fee of the ground in controversy.
That defendants (appellants) were in possession of the premises at the time the suit was commenced, and refused to surrender possession to plaintiffs, after demand in writing.
That James E. Trott died intestate on March 24, 1870, leaving a wife and child surviving.
That defendant, Erasmus J. Stirman, was, on the 28th of April of that year, appointed administrator of his estate, and took the administration.
That on March 9, 1872, James W. Stirman, by deed, since duly acknowledged and recorded, as prescribed by law, for the consideration of $1, and the further consideration of the love he bore his mother, Catharine W. Stirman, granted, bargained, and sold unto her, all the right, title and interest which he had in and to said lot of ground, in plaintiff’s complaint mentioned, with all and singular the appurtanances thereunto belonging, except the two-story house occupying the front portion of said lot, and belonging to the estate of James E. Trott, deceased.
That, subsequently, O. W. Stirman and James H. Stirman, her husband, by deed with general warranty of title, dated June 18th of the same year, since duly attested, acknowledged and recorded, for the consideration of $1,000 therein expressed, bargained, granted, and sold to plaintiffs the lot in controversy.
That the demand made for possession was after the execu tion of the latter deed, and before suit was brought. That the rents were worth $120, between the time of demand and the day of trial.
The defendants introduced defendant, Erasmus J. Stirman, as a witness, who stated that in the latter part of the year 1869, or the early part of 1870, he saw a deed to the lot of ground in controversy from James W. Stirman to James E. Trott, since deceased. That said Trott took it out of his safe and showed it to him; that it was in the handwriting of William H. Brooks, who has since died; that it was signed by James W. Stirman, and had a scroll by way of a seal, which was at the end of his signature, and that a certificate of acknowledgment was written under the signature.
That he did not recollect the name of the officer whose name was subscribed to the certificate, and cannot say whether the deed was attested by subscribing witnesses; that he was under the impression that plaintiff, P. R. Smith, formerly clerk of the court, was the officer whose name appeared to the certificates; but of that he was not certain. That he distinctly recollects that the consideration expressed in said deed was $1,000. That he saw the deed at the time it was shown him, and handed it back to Trott, who placed it in his safe in his store, where he usually kept his papers. That he has never seen the deed since. That soon after he administered on said Trott’s estate, he made diligent and thorough search in Trott’s safe, and everywhere else he thought it likely to be found, and has been unable to find its whereabouts, or as to how it was lost, mislaid, or destroyed.
That James W. Stirman was a clerk in Trott’s store, before and at the time of his death ; and during his last illness, James W. Stirman and his father, James H. Stirman, had charge of his store, and each had a key to said safe. That after witness became administrator, he offered to buy the lot for Mrs Trott. at $800, from James W. Stirman.
Defendants then called James W. Stirman, who testified that in the year 1866, he was clerking for James E. Trott and "William EL Brooks; that the house they were then occupying-was too small, not suited to their business (mercantile), and it was proposed to put up a store on the lot in controversy. But Brooks refusing his consent to build upon it unless Trott obtained a title, to satisfy Brooks, Trott solicited witness to make a deed, and assured him that his object was to satisfy Brooks, and if he executed a deed to it to him, he would never have it recorded; that having the utmost confidence in said Trott’s honesty and integrity, he consented to execute the deed he desired. That shortly afterwards, said Brooks, who has since died, presented an instrument of writing to him for execution, saying: Here is that deed. That he went to the desk in said store and signed it, and that Brooks picked it up and walked with it in his hand to where said Trott stood, farther up the counter, and that he never laid eyes upon the instrument he signed afterwards. That he did. not know whether it was attested by a subscribing witness, and did not. recollect of ever having acknowledged his execution.
But at the time of subscribing his name to it, he understood it to be a deed to said lot; that he never read the instrument, or heard it read ; that he was pretty certain that no one was present when he signed the document, besides Trott, Brooks, and himself. That Trott never paid him any part of the purchase money expressed in said document, as he supposed, and that the same was conveyed for the purpose before stated by him and without consideration; that he could not swear that said document was not acknowledged ; that after he signed it Trott and Brooks built the two story frame store-house now on the lot, and moved into it in 1866, and occupied it until they dissolved partnership in 1867 or 1868; and since then, Trott occupied it until his death. That the house was built at the cost and expense of Trott. That the understanding between himself, Brooks, and Trott was, that they were to pay him ground rent for the lot and a warehouse that he had put up at the end of the store, $15 per month.
Plaintiff introduced Charles S. Haufman, who testified that in the last days of the year 1866, or the first days of 1867, he happened in at Trott’s store, when Trott, after telling him that he and Brooks had dissolved partnership, showed him a deed to the lot his store was on, from James W. Stir- man; that he looked at it, and recognized the handwriting and signature of James W. Stirman to it; but that he did not recollect seeing any signature thereto as witnesses, and thought there were none. That he had'no recollection of seeing a certificate of acknowledgment on the deed; that there was no other writing under that above the signature of said James W. Stirman on said deed of which he had any recollection.
Plaintiff introduced again James W. Stirman as his witness, who testified that he remembered signing the deed, but had no recollection of acknowledging it at the time it was signed ; that if he had acknowledged it afterwards, he would have recollected it. No person was present when the deed was signed, except Brooks and himself. Trott was in the house towards the other end of the counter. If the deed had been acknowledged when signed, he would have remembered it. There was a consideration expressed, what amount he did not recollect; had never said that there was a consideration expressed in the deed of $800 or $1,000.
Defendant proved the value of the house to be $2,200.
Plaintiffs then proved by C. W. Stirman, against defendant’s objection, that a long time before Trott was married, which was on September 17, 1867, he told her that he had no title to the lot; that the deed from her son had never been acknowledged or recorded, and should never rise in judgment against her, and urged her to take a deed to said lot from her said son. That in that same conversation, Trott spoke of forming a partnership with him; that Trott also said the deed amounted to nothing. She, Mrs. Stirman, further testified that in procuring the deed from her son, she acted upon and was influenced by said Trott’s advice; that such a thing had never entered her head before.
Defendant then produced and read in evidence, against plaintiff’s objections, a deed of mortgage in fee upon the pre mises in controversy, dated July 22, 1867, executed by said Trott to J. 0. Garter, to secure tbe payment of $3,000, which was duly acknowledged and recorded in the proper office, and proved that said mortgage was paid off in 1870. Defendant also proved by plaintiff, Cravens, that he and his co-plaintiff executed their notes to Mrs. Stirman, one of their grantors, for the payment of the purchase money for said premises, and has paid them, in money and goods, about $200; that his grantors are insolvent.
They also proved by James W. Stirman, that the reason he excepted the house in his deed to his mother was, because he considered that it belonged to Trott’s estate.
This being all the evidence, the court gave a long special charge to the jury. The defendants below objected to the testimony of Mrs. Stirman, and their objection being overruled, they excepted. They also excepted, generally, to the charge of the court. One of the clauses of this charge is as follows : “ I charge you that, in order for the deed made by J ames W. Stirman to James E. Trott, to have the effect of conveying to said Trott the legal title to said town lot in question, you must be satisfied that said deed was executed in the presence of two witnesses, or acknowledged by the said grantor in the presence of such witnesses, or was duly acknowledged before some court, or officer of this state, authorized by the laws of this state to take and certify the same, and unless you are satisfied that said deed was thus executed, you should disregard the title so acquired by said Trott to said real estate, by virtue of the deed, the contents of which have been testified to before you.”
This clause of the charge, in effect, withdraws from the jury the consideration of this deed for any purpose, either as evidence of legal title or equitable, which, as we shall hereafter see, might have been taken as a writing within the statute of frauds, which would create a perfect equitable title, and would, have made James W. Stirman the holder of the naked legal title in trust, and if the jury should have disbelieved the testimony of Mrs. Stirman and her son, even conceding its competency, which it was their right to do, as judges of the credibility of witnesses, and the weight of testimony, then it would have been proper for the jury to have found generally for defendants, and we cannot shut our eyes to the bearing and effect of this charge, if erroneous.
The verdict in this case, as we may infer from the first special finding, was mainly influenced by this clause of the charge of the court above copied. This fact will render it unnecessary for us to enquire how far Mrs. Catharine W. Stir-man’s testimony might have been competent in detailing the conversations had with Trott in his lifetime, or indeed whether she be a competent witness at all, while her husband stands bound by the warranty of their joint deed ; and whether that interest was removed as to the wives of parties and persons interested., by the constitution of 1868. It will be equally unnecessary for us now to inquire what legal significance is to be attached to James W. Stirman’s statements, tending to prove a resulting trust in himself in the lots, or the effect of the declarations of Trott to Mrs. Stirman as an estoppel in pais. Eor when it is reasonably certain that a jury have been misled by instructions, it is our duty to reverse, unless upon the whole record the result is right, and as we cannot find, either from the general verdict or special findings, that the jury passed upon the credibility of either of these witnesses, so that we could be justified in saying, if we so found the law, that upon the whole record the verdict and judgment were right, and affirm. We therefore address ourselves to the only point upon which the case turns : Does a deed, signed, sealed, and delivered, accompanied with possession, pass title to real estate in the absence of the attestation of subscribing witnesses or acknowledgment ?
The first section of chapter 37, Gould’s Digest, provides that land, etc., may be claimed, and possession transferred by deed without livery of seisin, etc.; section 12 of the'same chapter, which has more especial application to our registry system, of which it is a part, than to the question now before us, provides that deeds shall be executed in the presence of two witnesses, or acknowledged, etc. The latter section contains no negative clause confining or limiting the scope of the first section ; but by the use of the term deed, in both sections, impliedly recognizes the common law definition of a deed, a contract in writing under seal. As to the full definition of which, see 2 Wend. Black., 295 et seq.; 2 Black. Com., 350 et seq. Blackstone says: “ The last requisite to the validity of a deed is the attestation, or execution of it in the presence of witnesses, though this is necessary rather for preserving the evidence, than for constituting the essence of the deed. 2 Black. Com., 366; 2 Wend. Black., 307, being part of ch. 20 of 2d book. The statutes of the different states vary as to the formalities of executing a deed, and the decisions vary almost as much. In New York, by statute it was required expressly that a deed must be attested by at least one witness, or acknowlédged by the grantor before a proper officer to render it effective against a purchaser and incumbrancer. 1 R. S. (Org.), 738, sec. 137; 2 Wend. Black., note to p. 307; all the New York decisions which we have been able to find go no further, and’ are like Rozzer v. Avery, 6 Barb., 65, and Genter v. Morrison, 31 id., 155, leaving the question as to whether the deed is good between parties undecided. In New Hampshire, one of the earliest decisions is French v. French, 3 N. H., 234, in which it is held that, under their statute, an unattested deed is not good as a statutory deed, but will pass the title as a covenant to stand seized to uses, which use was executed and title vests by virtue of the statute of 27 Henry VIII., chap. 10, commonly called the statute of uses, which had been adopted in New Hampshire, as in our state, by the adoption of the common law and statute prior to the fourth year of James I. In Ohio, under their statute, an unattested deed has been held to pass equitable title. Courcier v. Graham, 1 Hamm., 331; Patterson v. Pease, 5 id., 190. In Wiswall v. Ross, 4 Port. (Ala.), 321, it is recognized without argument or comment, that a deed unattested passed no title; but as the deed in that case was decided valid under a subsequent statute of Alabama, the passing dicta of the court in commenting is dropped without due consideration. In Clark v. Graham, 6 Wheat., 577, the supreme court of the United States construe the Ohio statute as their own courts had, holding that want of attestation prevented title from passing. The authorities, pro and eon., are fully collected by Mr. Washburn in his work on Real Property, vol. 3, p. 247. In South Carolina, in the case of Alston v. Thompson, 1 Cheves, 271, 272, it is held, under the statute of that state, that an unattested deed does not pass title either as a statutory deed or under the statute of uses, as a deed of bargain and sale, thus clashing with the case of French v. French, 3 N. H., 234; as the statutes of the two states are very similar, and it was admitted that the statute of uses was in force in South Carolina. In Kansas, it has been held that an acknowledgment has reference to the proof of execution simply ; title passes without it. Gray v. Ulrich, 8 Kan., 112. Held, substantially, the same way in Missouri, Stevens v. Hampton, 46 Mo., 404; Bishop v. Schneider, id., 472; Ryan v. Carr, id., 483. In Wisconsin it has been held that an attested unacknowledged deed passed title as between parties, under a statute which provides that the deed shall not be good without, etc. Quinney v. Denney, 18 Wis., 485 ; 13 id., 189; McMahon v. McGraw, 26 id., 614. Under the Kentucky statute it is held that title passes in such cases. Fitzhugh v. Croghan, 2 J. J. Marsh., 429.
Thus we return after a scout through the decisions of most of the states without finding anything but conflict. In some of the states, for instance in South Carolina, where it is held that a deed not executed as directed by the statutes does not pass title, great stress is laid upon the effect of allowing a deed to be secretly executed and real estate to be affected thereby. While we can see a great necessity of throwing such protection around testators in making wills to prevent undue influence, imposition and fraud, we see no reason for it in case of deeds, especially where no effect is given to them beyond the parties and privies, and those claiming under them having notice. This question, as applicable to deeds in fee, has never been decided in this state. In Floyd v. Ricks, 14 Ark., 294, this court decided that an unacknowledged deed passed title. It is true that there were two attesting witnesses. In the case of Haskill v. Sevier, 25 id., 154, this court decided that a deed of mortgage for real estate, which was not acknowledged as between the parties, passed title, notwithstanding the law regulating mortgages is, if possible, more rigid than the statute regulating conveyances. See Gould’s Dig., ch. 117, sec. 1, which provides that mortgages shall be acknowledged.
In delivering the opinion of the court in that case, Mr Justice Walker, at page 159, says, speaking of this mortgage : “ And after a breach of the conditions of the mortgage, by nonpayment of the debt, it became a legal title, so as to enable him to oust the mortgagor by ejectment.”
Even if the deed, unaccompanied with possession, would not have conveyed title to Trott, either as a statutory deed, or by operation of the statute of uses upon it as a covenant of James W. Stirman, to stand seized to use of Trott, which we do not decide, and even if with possession, the title was merely equitable, and not legal, still, being accompanied with possession, did it not create an equity perfect and complete, which would protect his possession, leaving out of view the testimony of James "W. Stirman and his mother, which we are not considering now ? Our statute of ejectment recognizes equitable titles, such as certificates of entry, preemptions, etc., as sufficient evidence of title to maintain ejectment; what reason is there for holding that the same metal which would make a sword might not make a shield?
In O'Brien v. Perry, 1 Black, 132, the supreme court of the United States, in construing a statute of Missouri, of which our ejectment statute is a copy, held that a preemption based upon equities prior and better than the entry on which a patent was issued, could be set up as a bar at law to an ejectment suit based on the patent. In Brown v. Weast, 7 How. (Miss.), 181, the supreme court of Mississippi held that, where one purchases lands with the money of another, and takes the conveyance, or has been paid the money for land and has not conveyed, he is trustee of a satisfied trust, and neither he nor his heirs can set up the legal title in an ejectment against the beneficiary, citing Hart v. Knot, Cowp., 43, in which it is decided that an estate in trust, merely for the benefit of the cestui que trust, shall not be set up against him; anything shall rather be presumed ; and also citing 3 Burrows, 1901, where the court said they looked upon it as a settled point, that the formal title of a trustee should not, in an ejectment, be set up against the cestui que trust, because from the nature of the two rights the cestui que trust is to have the possession. See 6 Peters, 432 ; 1 Tenn. 758 ; 2 Wend., 109; 7 id., 379; 6 Munf., 38, 41; 11 J. R., 437; 1 How., 358 ; Perry on Trust, sec. 329.
In the case of Trulock v. Taylor, 26 Ark., 54, it was held, ■construing section 116, civil code, that when the defense in ejectment was equitable, and there was no motion to transfer to the equity docket, the defense must be tried at law.
Trott, holding this deed, and being put in possession by James "W. Stirman, had a right to the possession, whether his title was legal or equitable; for if equitable, James "W. Stir-man was the trustee of a satisfied trust; therefore the court erred in the above copied clause of the charge, and in not therein leaving the jury to determine the facts as to the relations of the parties, and whether, in view of all the facts, James W. Stirman yielded his rights of possession, if not his title. The registry laws were not intended to destroy the effect of the common law entry, as notice; it was intended merely to supply a fictitious substitute, applicable to unoccupied lands. Wherever one is in notorious pedal possession, he affects the whole world with notice of all claim and title he may possess, and nothing short of application to the tenant in possession, and denial or equivocation, or evasion by him, or something ■equivalent as to the nature and extent of his claim, whereby a ■subsequent purchaser may be misled, will avoid the effect of the notice which the presence of a claimant on land gives to all the world. There is nothing better settled. All the world are affected with notice of the claim and title of one in actual possession, for the reason all must know at their peril by what right he holds. If he inquires of the occupant he can learn the nature of his claim. If he fails to do so, the law will not excuse his negligence.
In the case of Engles v. Byers, 16 Ark., 547, Judge Walker, in delivering the opinion of this court, says: Defendant (Engles) had, in fact, entered upon the land so conveyed, and was in actual possession of the same before the judgment was obtained, and so continued “ up to and át the day of sale,” “ and this was sufficient to effect the plaintiff with notice.”
And this is absolutely the ruling in England and the states. We have no statute limiting the period within which deeds must be recorded. By our statute they are simply made void against purchasers and creditors without notice, leaving the question of notice to be regulated by the common law rules, Mr. Perry, in his late work on Trusts, in discussing this subject of constructive notice, after referring to registration and Us pendens, says : “ Actual possession by the ceshd que dust, or some person other than the vendor, is constructive notice.to the purchaser that there is some claim, title or possession of the property adverse to his vendor, and this fact should put him upon inquiry, for if he had inquired he would have discovered the exact title and the equitable claims upon it. He therefore has constructive notice. Perry on Trusts, sec. 223. See also Le Neve v. Le Neve; 2 Lead. Cases in Eq., 23, where the subject is fully discussed in notes.
Appellees contend here that the charge is not madé part of the bill of exceptions. This is not correct. The Judge marked! the instructions on the back as follows : “ These are the instructions referred to in defendant’s bill of exceptions. Signed,. E. D. Ham, Judge,”
The bill of exceptions refers to them as so marked and filed. Although it is better to embody the instructions in the bill of exceptions, we,adopt the rule, “ That is certain which can be made so.”
The court erred in charging the jury, and for that error should have granted appellants a new trial.
Let the case be reversed and remanded to the circuit court of "Washington county, with instructions to grant appellants a new trial, and proceed therein in accordance with law.
Hon. Dayid Walker, J., did not sit in this case. | [
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English, C. J.
These are separate appeals and separate transcripts, but they are, branches of one original suit in the court below. The first appeal involves the right of Mrs. Sigler to dower in the Arkansas lands of Isaac L. Bolton, deceased. The second appeal grew out of a contest between E. M. Apperson, a Tennessee executor, and Seth W. Bolton, an Arkansas administrator, for the control of the Arkansas lands of Wade H. Bolton, deceased. This appeal also involves the dower right of Mrs. Lavinia A. Bolton in the same lands.
The original bill, from which the litigation in its several branches sprung up, was filed by Wade H. Bolton, in his life time, on the 9th of February, 1869, in the Desha circuit court, against the representatives of Isaac L. Bolton, for partition of lands owned by them jointly in Arkansas. During the pend-ency of the suit in the court below, Wade H. Bolton died, and E. M. Apperson qualified as his executor in Tennessee, and Seth W. Bolton was appointed administrator of his estate in Arkansas.
The lands were partitioned by the final decree, rendered November 2,1871, and dower decreed to Mrs. Lucinda Sigler, widow of Isaac L. Bolton, who had, after his death, intermarried with Wm. A. Sigler, in the share of the lands partitioned to him, and from this branch of the decree, Seth W. Bolton, who claimed the lands as devisee of Isaac L. Bolton, appealed.
The court decreed to Seth W. Bolton, the Arkansas administrator of Wade H. Bolton, the control of the share of the lands partitioned to him, and awarded to Mrs. Lavinia A.'Bolton, his widow, an absolute estate in one-half of his sháre of the lands for her dower.
From this branch of the decree E. M. Apperson, the Tennessee executor of Wade H. Bolton, who had been substituted as plaintiff in the original bill, procured the allowance of an appeal from the clerk of this court.
I. We will first consider the questions arising upon the appeal of Seth W. Bolton, from so much of the decree as allowed ■dower to Mrs. Sigler in the lands of Isaac L. Bolton.
The facts material to be stated on this branch of the case are in substance as follows: Isaac L. Bolton and Wade H. Bolton, who weie both citizens of Shelby county, Tennessee, and died there, were the joint owners of a large plantation situated in Desha county, Arkansas, called the Beleoe Lake place, and Isaac L. Bolton was also the owner of one-half of a small place, situated in the same county, known as the Graves place. It was for partition of the Beleoe Lake place that Wade H. Bolton filed the original bill. Isaac L. Bolton made his will'at his home in Shelby county, Tennessee, on the 9th 'of October, 1863.
The second item of the will was as follows:
“I give to my wife, Lucinda Bolton, five thousand seventy-seven dollars and .fifty cents in gold, that I have already given her, which comes in as a valuation to her of that amount, and change to her out of :my estate, which amount of money 'went into her possession some ten days ago, and charged to her in my valuation book.”
By the third item, he gave to his daughter, Louisa Dickens, lands, slaves and other property, valued at $17,940.
In the fourth item, he states that he had given to his daughter, Josephine Dickens, lands, slaves, etc., valued at $12,075, then adds—
“ The balance of my property in Tennessee, both real and personal, I wish sold by my executor, and proceeds delivered unto my two daughters, Wade and Loucassia, until they reach in valuation the amount that Louisa has had. Also, Josephine to be brought up in valuation to Louisa. My wife, Lucinda Bolton, after valuing to her the $5,077.50, already given to her by me, is to have property valued to her until her valuation reaches fifteen thousand dollars, which property is in loan to her for her support during her widowhood or natural life. But whenever she marries, this property to go to my legal heirs. But should she never marry, this property to be hers, or in use for her, during her natural life, then to descend to my legal heirs. * * * I give to my son, Seth W. Bolton, my entire interest, both real and personal, in Desha county, Arkansas, by his paying to my estate, or other heirs, the $15,000 I have paid for the places, with the exception of my interest in the Graves’ place, the proceeds of which I want appropriated, after selling it, to my other heirs. After all my children be equal to Louisa, then the balance of my estates, if any, to be equally distributed amongst my children, the valuation of negroes to be equalized.”
Some of his slaves, which are named, he desired his executor to set free, on account of their fidelity, and one of them particularly, because of her devotion to him when the “jay-hawkers ” were after him. The balance of his servants, he wished his executor to ship to Cuba, or some other bad place, o n account of their devotion to Abraham Lincoln.
He named Wade H. Bolton as his executor, who, it seems, did not qualify.
Isaac L. Bolton died some time in the year 1864, and his will was proven and admitted to record in the county court of Shelby county, Tennessee, Jan. 3,1865 ; and Francis M. Cash was afterwards appointed administrator with the will annexed.
The answer of Sigler and wife (formerly Lucinda Bolton) to the original bill was made a cross-bill, and filed April 27, 1869. They aver, after admitting the allegations of the bill, that Isaac L. Bolton and Lucinda were married in 1863 [she was his second wife] and lived together as husband and wife in Shelby county, Tennessee, until his death, which occurred in the year 1864. That he made a will, which was duly probated, etc., which was made an exhibit to the original bill, the substance of which is above stated.
That Lucinda elected to dissent from the provisions made for her therein, in lieu of dower, and proceeded to do so in legal form; in proof of which a transcript from the records of the county court of Shelby county, Tennessee, and a transcript from the records of the first chancery court of the same county, were referred to, which will be more particularly noticed below. It was further averred in the cross-bill, that said Lucinda was not required to elected whether she would take the bequest made to her in the will, or dower in Arkansas, until the probate of the will in Arkansas, which was only done during the then present year (1869).
That no administration had ever been applied for, or granted, upon the estate of Isaac L. Bolton, in Arkansas.
That Francis M. Cash had been appointed administrator in Tennessee, and paid all his debts, etc. Prayer for dower in the Arkansas lands, etc.
In the answer of Seth W. Bolton to the cross-bill of Sigler and wife, he denies that said Lucinda is entitled to dower in the Arkansas lands of Isaac L. Bolton, deceased, because he made a pecuniary provision for her in his will, which was intended to be, and was, in lieu of dower in his lands, etc. Avers that she did not enter upon said lands, or commence proceedings for the recovery or assignment of dower therein, within one year from the death of said Isaac L. Bolton ; and submits that she is conclusively deemed to have elected to accept the provisions made for her in the will, and to have waived her right to dower in said lands, etc. He also avers that she had been fully endowed of the lands of her said husband by the probate court having jurisdiction of said estate.
On the hearing, Sigler and wife offered in evidence a paper purporting to be a transcript from the records of the county court of Shelby county, Tennessee, showing that on the 3d of January, 1865, on the application of Lucinda Bolton, widow of Isaac L. Bolton, commissioners were appointed to allot and set apart from the estate of said Isaac L. Bolton, one year's support for said widow and her family; also to assign and set apart to her, by metes and bounds, one-third part of the lands of said deceased as dower to and for the said widow, and that they report to the next term of the court, etc. This paper was made exhibit A to the original bill, and referred to in the cross-bill of Sigler and wife. On the objection of Seth W. Bolton, the court refused to permit this paper to be read in evidence, because the certificate of authentication was not signed by the clerk of the court, etc*
Whether the court below erred in excluding this transcript need not be decided, inasmuch as the decision was in favor of Seth W. Bolton, who is the appellant in this branch of the case.
Sigler and wife were permitted to read in evidence, against the objection of Seth W. Bolton, a transcript from the records of the first chaneery court of Shelby county, Tennessee, duly authenticated.
Erom this transcript it appears that on the 15th of October, 1867, a petition for dower was filed by Sigler and wife in a. cause then pending in that court, styled Josephine Dickens v. Samuel Dickens et al. In this petition it was stated, in substance, that Lucinda Sigler was the widow of Isaac L. Bolton, who died in the-year-1864, in Shelby county, having made a. will, by which he disposed of his large and valuable estate.
That she had dissented from- the will, and dower had not-been assigned, although she had been residing on part of the-land, with a general understanding that as the part occupied was less than her dower right, she would be compelled to pay no rent. That all the parties in interest were before the court, and were willing that her dower should be assigned without-delay in that cause. That the testator (Isaac L. Bolton) left his home place, 1801 acres, interests in town lots, other large and valuable interests in real estate in Shelby county, besides-valuable lands in Arkansas. That the land on which his daughter Louisa was residing was part of his estate, containing 520 acres, and was very valuable. Prayer for reference to-the master to ascertain and report what lands testator died seized and possessed of, and out of which petitioner, Lucinda, was dowable; and that dower be assigned her on the coming-in of the report.
The court made an order of reference, as prayed, and directed the master also to enquire whether, as alleged in said petition, said Lucinda had dissented from the will, and was entitled to dower as claimed. The master made his report on the 16th of November, 1867. He found that said Lucinda was the widow of Isaac L. Bolton, deceased, and that she dissented from his will.
States and describes the lands of which he died seized and possessed in Shelby county, and that he also owned some lands in Arkansas, the quantity and value not known.
Also states the facts in relation to the claim of his daughter Louisa, to the land occupied by her, etc.
No exceptions being made to the report, it was confirmed.
Then follows the decree of the court, thus: — “And it appearing from said report, and the proofs in the cause, that Isaac L. Bolton died in the county of Shelby, Tenn., in 1864, leaving the petitioner in this application for dower, his widow, and that she has since intermarried with W. A. Sigler. That said Bolton disposed of his estate by last will and testament. That said widow, not being satisfied with the testamentary provisions in her favor, dissented, in accordance with the law governing such cases, and that by virtue of such dissent, as shown, she is entitled to dower out of the real estate of which the said Bolton died seized and possessed,” etc.; and proceeds to decree her dower in the Shelby county lands and lots described in the master’s report, and to appoint commissioners to lay it off to her, reserving for future determination the question of her right to dower in the land claimed by Louisa, etc., and adding: “ That nothing in this decree shall be held to preclude the right of said Lucinda to apply to the proper tribunal in the state of Arkansas for dower out of the lands that said Bolton died seized and possessed of in that state.” Afterwards, the commissioners, appointed to lay off the dower, made their report, which was confirmed, etc.
Erom a bill of exceptions, taken by Seth W. Bolton, at the hearing in the court below, it appears that the court found the facts to, be, that Isaac L. Bolton died in 1864, seized of the lands in Desha county, in controversy, leaving said Lucinda his widow, etc. That he left a will which was duly probated in Shelby county, Tennessee, the place of his domicile, and that his widow elected to take dower instead of tbe provision made for her in said will in lieu of dower. That said election was made as required by the laws of Tennessee, where the said Isaac L. Bolton died, and where his will was made. That she did not enter upon said Arkansas lands or commence proceedings to recover the same, or have her dower assigned, or execute or record any relinquishment of the provisions made for her in lieu of dower before the filing of her cross-bill in this case.
The court declared the law to be, “ that the laws of Tennessee must govern in the manner and time of the widow’s election to take dower.” And refused to declare the law to be: “ 1. That the laws of Arkansas must govern in the manner of election. 2. That unless the widow entered upon the land, or commenced proceedings for the possession, or for the assignment of dower within one year after the death of her husband, she would be conclusively presumed to have accepted the provisions of the will.”
The aleniation, transmission and descent of real estate is governed by the laws of the country or state in which it is situated. This rule is general, and there is no diversity of opinion about it. So, the general rule is, that the right of dower in real estate is governed by the locus rel slice. The widow has dower, not by the law of the place of the marriage nor of the domicile, but according to the law of the place where the particular lands are situated. The laws of Louisiana do not give dower, yet, if a marriage be contracted in that state, or if the husband and wife be domiciled there, and the husband die, leaving lands in Arkansas, the widow may have dower of those.lands according to the laws of this state.
So, if they are domiciled in a state where dower is restricted to the lands of which the husband died seized, as in Tennessee, and the husband own lands in a state where the rule of the common law prevails, as in this state, the widow will be entitled to dower according to that rule, in all lands of which he was so seized during the coverture, except so far as she has relinquished her right, or is otherwise lawfully barred. The extent of the rights of the widow in the lands of her husband is determined entirely by the laws of the state where the lands are situated. Garland, Adm’r, v. Rowan, 2 Sm. & Mar., 617 ; McCormick v. Sulivant, 10 Wheat., 202 ; 2 Scribner or Dower, 24; Story Confl. Laws, secs. 448, 454; Duncan v. Dick, Walker (Miss.), 288; Jones v. Gerock, 6 Jones’ Eq., (N. C.) 190.
It may be affirmed, says Judge Story, without hesitation, that independent of any contract, express or implied, no estate can be acquired by operation of law in any other manner, or by any other means, than by the locus rei sitae. Thus, no estate in dowry or tenancy by the curtesy, or inheritable estate, or interest in immovable property, can be acquired, except by such persons, and under such circumstances, as the local law prescribes. Confl. Laws, sec. 448.
Isaac L. Bolton was domiciled in Tennessee; he made his will and died in that state, but his widow, Mrs. Sigler, sought by her cross-bill to have dower assigned to her in his Arkansas lands. Her right to dower, its quantity, the mode of assigning it, the time within which her application must be made, and the causes which may defeat it, must all be determined by the laws of this state, in which thp lands, in which she claims dower, are situated.
The provisions of the dower statute of this state, in force when Isaac L. Bolton made his will, applicable to or bearing upon the question before the court are as follows: “ If land be devised to a woman, or a pecuniary or other provision be made for her by will in lieu of her dower, she shall make her election whether she will take the land so devised, or the provision so made, or whether she will be endowed of tbe lands of her husband.” Gantt’s Dig., 2222. “When a woman shall be entitled to an election,” etc., (under the preceding section), “ she shall be deemed to have elected to take such * * * devise or pecuniary provision, unless, within one year after the death of her husband, she shall enter on the lands to be assigned to her for her dower, or commence proceedings for the recovery or.assignment thereof.” Id., sec. 2223. See also, secs. 2234-5, 6, 7.
It is not expressly stated in the will of Isaac L. Bolton that the provision made therein for his wife was to be in lieu of dower, but such was manifestly the intention of the testator, for it appears upon the face of his will that after making provision for his wife, he otherwise disposed of the entire remainder of his estate. Looking at the face of the whole will, any inference that he intended her to have the provision made for her and dower also is excluded by its provisions. 2 Scribner on Dower, 455, etc.
That the will was duly executed, admitted to probate in Tennessee, and also in this state, is conceded by the cross-bill of Mrs. Sigler.
The will was therefore as valid to dispose of real estate of the testator situated in this state, though made in Tennessee, as if made and admitted to probate in Arkansas. Gould’s Dig., ch. 180, sec. 36, 37; see also Code provision, Gantt’s Dig., sec. 5784.
Mrs. Sigler does not claim that she elected to take dower instead of the provision made for her by the will, within the time, nor in either of the modes prescribed by our statute. She avers, and it may be conceded that she proved that she made her election in Tennessee, and it may also be conceded that such election was made within the time and in the mode prescribed by the laws of Tennessee, though the laws of Tennessee on this subject were not proven at the hearing of the cause in the court below.
Her husband died in 1864, her cross-bill for dower in the Arkansas lands was not filed until April 27, 1869. She alleges that she was not bound to make her election until the will was probated in Arkansas, which was not done until the year 1869. But, whatever may be the law of Tennessee, our statute required her to make her election within one year after the death of her husband, and a widow must make her election within the time prescribed by law. 2 Scribner on Dower, 473; Palmer v. Voorhis, 35 Barb., 482.
Her election had to be made in one of the two modes provided by the statute: Eirst, by entering on the lands to be assigned to her for dower. This she could not do in Tennessee, because the lands were situated in Arkansas. Second, by commencing proceedings for the recovery or assignment of her dower in the land. This she could only do in the courts of Arkansas, for the Tennessee courts could have no jurisdiction over lands in Arkansas. But it has been suggested that if a dissent in Tennessee is not a valid dissent in Arkansas, an acceptance of the provisions of a will in Tennessee would not be binding here; and that if Bolton had devised to his wife his whole estate in Tennessee, no matter how large, she might have accepted it, and then dissented in Arkansas, and claimed dower in the estate here. But we think, though the point is not before us, that she would not be permitted to do that, for it is a general principle of law that one cannot claim under a will and against it too, and an acceptance of the provisions of the will in Tennessee would bind her every where. Jones v. Geroch, 6 Jones Eq. (N. C.), 194; Blunt et al. v. Gee et al., 5 Call (Va.), 492.
The time allowed a widow to make her election between a provision made for her by will, and dower, varies in the diferent states. The statutes of some of the states allow a shorter, and of others a longer time than ours. 2 Scribner, 475-6.
Erom motives of public policy, it may be supposed, our statute requires tbe election to be made within one year after the death of the husband. The Revised Statutes of Indiana, it seems, omit to fix the time within which the widow shall elect, and it is held in that state that she may make her election at any time, and that lapse of time will not affect her right to take under the law. 2 Scribner, 477; Piercy v. Piercy, 19 Ind., 467.
Now suppose a man domiciled in Indiana, and having an estate there, and also an estate and owing debts in Arkansas, make provision for his wife by his will in Indiana, and five years after his death she elects to claim dower in his estate there, and then applies for dower in his Arkansas estate, having made no previous election here. In the meantime letters of administration may have been taken out upon his estate here, the lands sold to pay debts, and the administration closed. Our courts would hardly allow her dower, upon her late Indiana election, against the purchasers of the lands at the administrator’s sale.
In some of the states, and we believe in Tennessee, a widow is allowed a year to dissent after the probate of the will. A failure to probate the will for a .number of years after the death of the testator, might produce the result in Arkansas as above indicated.
Our conclusion is that Mrs. Sigler was barred of her right of dower in the Arkansas lands. The decree of the court below in her favor must be reversed, and the cause remanded with instructions to the court to dismiss her cross-bill.
II. On the appeal of Apperson, Ex’r, etc. On the 10th of August, 1868, Wade H. Bolton made his will, at his home plantation, in Shelby county, Tenn. He devised $5,000 to Seth.,W. Bolton, on condition that he aided in defending a suit pending against him and the estate of his brother, Isaac L. Bolton, the father of Seth, in the chancery court of Shelby county, prosecuted, as it is repeatedly stated in the will, by “Old Tom. Dickens, and his ally, Sarah W. Bolton.” He made other money devises, and among them, $10,000 to the widow and children of Stonewall Jackson; provided for the establishment of a free school for the education of the poor^ and made gifts to a number of bis former slaves who had been faithful to him. The whole will is a curiosity, but the only clause material to this controversy is the 15th, which is as follows:
“ I hereby instruct my executor, if he thinks best, to sell all my real estate in Tennessee, or any other state, everywhere, together with my Hoboken farm, where I reside, reserving the dower of three hundred acres given to my wife [Lavinia A. Bolton], her lifetime.”
He appointed E. M. Apperson, of Memphis, his executor, without security. At the end of the will, as it appears in the record before us, is this evidence of probate:
“ Proven at the August term, 1869, and ordered to be recorded. Recorded August the 9th, 1869.” Signed by the clerk of the county court of Shelby county. Letters testamentary were granted to Apperson 10th of August, 1869.
At the time Apperson was substituted as plaintiff in the original bill, October 28, 1869, he filed a certified copy of the will and of his letters testamentary. On the 27th April, 1870, Apperson filed a supplemental bill, in which he stated that Seth W. Bolton • had been discharged in bankruptcy, and purchased at a sale made by his assignee, all the interest he had in the land described in the original bill, etc. Also that Seth W. Bolton had recently qualified in the probate court of Desha county, Ark., as administrator of the estate of Wade H. Bolton, deceased; and he makes him a defendant, as such administrator, and prays as in the original bill.
In the meantime, on the 11th of February, 1870, Seth W. Bolton, as administrator of Wade H. Bolton, deceased, filed a bill for injunction against E. M. Apperson, in the Desha circuit court, in which he alleged in substance:
That Wade H. Bolton died possessed of interests in lands in Desha county, which were the subject of litigation in a suit pending in the Desha circuit court to determine the extent and value of his interests, etc.; that plaintiff was the duly appointed administrator of the estate of said Wade H. Bolton, and as such, entitled to have control of and administer his estate in Arkansas; that one claim of $1,200 in favor of Oscar F. Parish, a citizen of Desha county, Ark., had already been exhibited, allowed and classed against said estate in the probate court of Desha county, and plaintiff was informed that there were other claims due to citizens of Arkansas against said estate yet to be exhibited, the amount and nature of which were unascertained, and that there were no other assets in this state for the payment of said claims except the interests of said Wade H. Bolton in said lands.
Plaintiff was informed that Wade H. Bolton made a will, but that it had never been probated in this state, or in accordance with the laws thereof, and was not in the possession or under the control of the plaintiff.
That E. M. Apperson, a citizen of Memphis, Tenn., had advertised the interests of Wade H. Bolton in said Desha lands to be publicly sold on the 14th of February, 1870, under some pretended authority derived from said will; and that if the sale took 'place, and Apperson got the proceeds, there would be nothing left in the hands of the plaintiff to pay the Arkansas creditors.
That Wade H. Bolton died seized of an undivided half interest in certain lands in Desha, which are described, and which are the Belcoe Lake lands, as described in the original bill for partition; that his interest in these lands was subject to the settlement of partnership matters between him and Isaac L. Bolton, to whom the lands jointly belonged, which was the subject of an undetermined suit in chancery, etc.
That Wade H. Bolton also claimed an undivided half interest in other Desha lands, which are described, and which Isaac L. Bolton had sold to James H. Branche, and which were also in litigation.
That these were the interests in lands which Apperson had advertised for sale, and that until the determination of said suits, the extent and value of Wade H. Bolton’s interests in the lands was uncertain, and would be sacrificed by a sale.
Prayer, that Apperson be enjoined from selling the lands. The bill was presented to the probate judge of Desha, before it was filed, and a temporary injunction granted by him, under the code.
Apperson answered, in substance, that the will of Wade H. Bolton was duly probated in Shelby county, Tennessee, in 1889, and he was executor, etc. That said will was also duly of record in the county of Desha, according to the laws of Arkansas. That his testator died seized of real estate in Desha county worth more than $25,000; and sets out the ■clause of the will empowering him to sell the real estate, and claims that by virtue of the will, and his letters testamentary, he w$s invested with full and exclusive authority to sell the Arkansas lands.
That Seth W. Bolton was aware of these facts when he obtained letters of administration from the probate court of Desha — that he was a party to the original suit for partition, where the will was made a matter of record; and that the will had been left for record with the clerk of the probate court of Desha county at the time he obtained his letters of administration. Admits that he had advertised the lands for sale, because in his best judgment, it was advisable, under all the circumstances, to sell them. That the lands were unprofitable, and the-taxes on them heavy, and there was about to be assessed upon them a very heavy levee tax, which he thought best to avoid the payment of by selling them — that a great portion of them were improved and fit for cultivation, and at the time they were advertised, lands of that description were selling at good prices, and that he expected to realize for them at the sale-their full value. Denies that his object in making the sale was to remove the proceeds to Tennessee, and hinder or delay the Arkansas creditors. Denies that his testator owed any debts to citizens of Arkansas, at the time of his death. Avers-that the partnership matters between his testator and Isaac L. Bolton had been settled, and that his testator had a clear right-to one-half of the Belcoe Lake plantation, which only awaited partition as prayed in the original bill pending for that purpose. Admits that the claim of his testator to the other lands-named in the bill was undetermined in a pending suit, but believed half of them would be decreed to him, and there was-no good reason why his interest should not be sold. Makes-his answer a cross-bill; alleges that the letters of administration of Seth W. Bolton were obtained by fraud, and that the debt of Parish was unjust and unfounded. That there were-no just claims against his estate in Arkansas, and that he had money in his hands to pay all just claims, etc. Prayed that the injunction obtained by Seth W. Bolton might be dissolved that he be enjoined from further meddling with the estate, and his letters revoked.
Seth W. Bolton answered this cross-bill, reaffirming the-allegations of his bill, and' denying all fraud, etc.
The court, upon these pleadings, refused to dissolve the injunction granted by the probate judge, and also refused the injunction prayed by Apperson, but made an order restraining either party from selling the lands until the pending litigation relating to them was determined. These pleadings, etc., were read on the hearing of the original cause for partition, etc.
After decreeing that the lands described in the original bill be partitioned equally between the representatives of Wade H. and Isaac L. Bolton, and awarding dower to Lavinia A. Bolton in the share of Wade H. Bolton, and appointing commissioners to divide the lands, etc.; the court further decreed that Seth W. Bolton, administrator of the estate of Wade H. Bolton, deceased, have the possession of the residue of the share of Wade H. Bolton, after the assignment of dower, to be by him administered according to law.
On the hearing, no evidence was introduced on this branch of the case, other than the exhibits accompanying the pleadings.
There were numerous other pleadings, and cross-pleadings, between the representatives of Isaac L. Bolton, which it is not necessary to notice, because they were withdrawn at the hearing.
Wade H. Bolton, by his will, appointed Apperson his executor, and empowered him to sell his real estate in Tennessee, or in other state. When the will was properly probated in Tennessee, and letters testamentary granted to him, the will was his authority to sell lands there, and not his letters. They were merely evidence of his authority to execute the power conferred upon him by the will. But he could not sell the Arkansas lands under the power conferred upon him by the will, until the will was properly admitted to probate in this state, under our laws. And when so admitted to probate and recorded, it was not necessary for him to take out letters here in order to sell the Arkansas land. Crusoe v. Butler and wife, 36 Miss., 171; Lewis and wife v. McFarland, 9 Cranch, 150; McCormick v. Sullivant, 10 Wheat., 202; Carmichal v. Elmendorf, 4 Bibb, 484; Mosby v. Mosby, 9 Gratt., 584.
In Crusoe v. Butler and wife, the testator was domiciled in Alabama, and the subject of the suit was real estate sold by his executor in Mississippi without taking out letters there.
The court said: “Another, and a very material question presented is, whether it was necessary that letters testamentary should be granted to the executor in this state, upon admitting the will to record here. It is insisted, in behalf of the defendants in error, that as no such letters were granted here, the executor was never invested with the authority to exercise the power to convey the lands conferred upon him by the will, and hence, that his deed is void. This question is intimately connected with the one last considered.
“ The grant of letters testamentary, as authority to the executor to act, has reference to the personalty and the ordinary office of administration. ' Generally, it has no reference to real estate, and can give no power over it to the executor. Eor aught that appears in this record, there was no personalty in this state to administer, and no necessity for a grant of letters here. The only necessity for taking any steps here, in relation to the will, appears to be to make it evidence in our courts. The will granted a power not appertaining to the subject-matter of administration under the authority of our probate courts — a trust committed by the testator to the persons who should become his executors. In such a case, the executor derives his authority from the will, and not from letters testamentary; and such letters could have conferred no power over the land, except what was given by the will. It is true, his character and capacity as an executor must be established by proof of the will. But when the will was admitted to probate here, and it was shown that he had taken upon himself the office of executor, the power to sell the land, which was independent of his appropriate functions as executor, became vested. Under the circumstances of the case, the only necessity for the grant of letters was to fix the person who was to execute the power granted by the will; and that having been done by 'the proper court of the testator’s domicile, it was unnecessary to obtain letters in this state, for they could have been useful only for the purpose of fixing the persons to execute the power.
“In principle, the case is not distinguishable from that of - a devise of a power to individuals, not executors, to sell lands lying in a different state from that of .the testator’s domicile, in which the will was admitted to probate; for, after the character of the executor has been once established, the person to whom the power is granted is fixed; and it is only necessary, in executing the power in another state, or in showing that the previous exercise of it is effectual there, to admit to probate, in the state, the will giving the power, and to show that the party exercising it is clothed with the character designated in it. The principles stated in the cases of Lewis and wife v. McFarland, McCormick v. Sullivant, and Carmichal v. Elmendorf, sustain this view.”
Whether the will' of Wade H. Bolton was proved in the Tennessee court, so as to be a valid will of lands in this state, under our statutes, as amended by the code, we do not find it material to decide in this case. See Gantt’s Dig., secs. 5800, 5801-2, from the revised statutes, and sec. 5784, taken from the code.
The allegations of the cross-bill of Apperson, that the administration of Seth W. Bolton on the estate of Wade H. Bolton, in Desha county, Arkansas, was fraudulent, and that the debt probated against the estate was simulated, etc., etc., were denied by the answer of Seth W. Bolton, and were not proven on the hearing.
The Arkansas lands were assets in the hands of the administrator, for the payment of any debts of our citizens properly probated against the estate (see Gantt’s Dig., secs. 68, 167), and the Tennessee executor could not deprive the administrator of possession of the lands for that purpose, by advertising and selling them under the power contained in the will, until the Arkansas debts, expenses of administration, etc., were paid. Clark as Adm'r v. Holt, 16 Ark., 265. It was also proper, perhaps, for the court below to enjoin the sale of the lands while they were in litigation.
The degree on this branch of the case must be affirmed, but this will not prevent Apperson from applying to the court below, at the proper lime, to remove the injunction against his selling the lands.
III. As to the dower of Lavinia A. Bolton. On the 31st of October, 1870, on motion of her solicitor, she was made a defendant to the original suit for partition, and leave granted her to file her answer and cross-bill within sixty days. Her answer, which was made a cross-bill, was filed on the 9th of December, 1870; in which she alleged that she was the widow of Wade H. Bolton, deceased. That he died seized of an undivided half of the lands described in the original bill, and without children, or other descendants in being capable of inheriting. That she, as his widow, was entitled to one-half of his personal and real estate, absolutely, and prayed that dower be assigned her accordingly. She makes no allusion to the will of her deceased husband. None of the parties seem to have answered her cross-bill. On the final hearing, she was decreed an absolute estate in one-half of the share of the lands partitioned to Wade H. Bolton; Her counsel here states that she was decreed an absolute, instead of a life estate, in the lands, under the published chapters of an incomplete digest, -(sec. 5, p. 79), which was then supposed to be law, but which this court has since decided not to have been in force.
And her counsel concedes that under the law then in force, (sec. 22, ch. 60, Gould’s Dig., p. 454), she was only entitled to a life estate; but insists that if this error can be corrected at all in this court, it should be done by a modification of the decree, and not by reversal. Brown v. Collins, Adm’r, 14 Ark., 421.
By his will, Wade H. Bolton gave to his “ beloved wife Eavinia Ann,” a life dower in three hundred acres of his household Hoboken plantation, in Shelby county, and a fee simple title (as he expresses it) in all his personal estate in Tennessee, except his gold watch, money, bonds, bank stock, and stock of every description. He also bequeathed to her ten thousand dollars in money, in fee simple title forever, in addition to his life policy of ten thousand dollars, insured in the Carolina Life Insurance Company at Memphis, for her use and benefit, provided that she did not dissent from his will, and involve his estate in unnecessary litigation.
Her counsel, in their brief, state that, “unlike Mrs. Sigler, •she did not wait until she had spent the provision so made for her in lieu of dower, or forfeited it by a subsequent marriage, but she promptly filed her renunciation, and took steps to recover her dower within one year from the death of her husband, as prescribed by our statute.”
This may be all true, but there is no evidence of it in the record before us. The date of Wade H. Bolton’s death does not appear, but it seems, as above shown, that his will was probated and recorded on the 9th of August, 1869, and the presumption is that he was then dead. Her cross-bill, in which she claimed dower, was filed on the 9th of December, 1870, more than a year after the probate of his will, and in it, as we have stated, no reference was made to his will, nor was the time of his death stated. Nor does it appear that she had, in any mode, renounced the provisions made for her in the will, before her cross-bill was filed.
The decree of the court below in herifavor must be reversed, but inasmuch as her cross-bill was filed under a misapprehension of the dower law, and was not answered, this branch of the case will be remanded, with directions to the court to permit her to amend her cross-bill, if she thinks proper to do so, with leave to other parties interested, in the estate of .Wade H. Bolton, to plead thereto, etc. | [
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Williams, Sp. J.
The plaintiff sued out of this court a writ of error in this case.
Defendant has pleaded, in abatement of the writ, that plaintiff, during the same term in the court below, at which the judgment was rendered, had prayed an appeal to this court, which the court below granted; and that plaintiff had filed in said court a supersedeas bond, whereby the execution of the judgment was stayed until the determination of said appeal; and while said appeal was pending and undetermined, and the execution of the judgment stayed and superseded as aforesaid, sued out the writ of error, etc. To this plea, plaintiff in error demurred.
It has been well settled in this court that where an appeal has been taken in the court below, and dismissed by this court without a hearing upon the merits, that a writ of error would lie, and under the said practice an appeal might be granted by the clerk of this court.
We decide at this term that where such an appeal is taken, and not perfected by filing the transcript in this court within the time prescribed by law (ninety days) after the same is taken, that an appeal may be granted by the clerk of this court, where there was no supersedeas bond given.
In the case of Clay, Adm'r, v. Notrebe's Ex'rs, 6 Eng., 631, Clay appealed to this court, and the affidavit and supersedeas bond were filed in the court below, and the appeal was then granted and the judgment superseded. He afterwards took out a writ of error to the same judgment from this court, and brought the case here by writ of error. Notrebe’s executors pleaded, as has been done here, in abatement of the writ, the pending of the appeal, setting up the facts of its having been granted, and the supersedeas, etc.
Judge Scott, delivering the opinion of the court, put great stress upon what he deemed to be the fact, that the appeal was not pending here, an issue that was really immaterial; and under what we consider a misapprehension of the law, it was ruled that the writ of error in that case should be sustained.
Afterward, in the case of Yell, as Gov., v. Outlaw, 14 Ark., 415, Chief Justice Watkins, in delivering the opinion of this court, says: “ In Clay v. Notrebe, 6 Eng., 631, this court went so far as to refuse to abate a writ of error upon a plea that an appeal had been taken in the court below with stay of execution in the same cause. Though the decision then turned upon the issue made by the pleading, whether the appeal had been in fact pending in this court, the judge delivering this opinion is constrained to think it was an immaterial issue, be cause where there has been a supersedeas, the option of the appellant to abandon his appeal and bring error is inconsistent with the right of the appellee, under the statute, to have an affirmance of the judgment, unless the appeal is diligently prosecuted; besides, upon appeals taken in the circuit court, the' stay of execution does not depend upon the opinion of any court or judge who, in his discretion, may think there is probable ground of error, but the suspension is demandable at the pleasure of the appellant upon the sole consideration of his ability to furnish satisfactory security.”
This statement professes to be nothing but the individual opinion of the judge delivering the opinion, and is dicta in that case. But if the statute, under which those decisions were made, caused hesitancy in giving assent on the part of the judge of the experience of the chief justice, who delivered the opinion in Yell v. Outlaw, how much more should we hesitate when we administer the law not only under a rule which authorizes the same steps to affirm on the part of the appellee, alluded to by the chief justice in the above quotations, but we have also a statute now which gives to the appellee the right to file the transcript with like effect as though the same were filed by appellant (sec. 863, Civil Code), and the limitation of ninety days provided by sec. 862, within which appellant is required to file the transcript, does not apply to appellee. It would not comport very well with judicial regularity to have the same cause pending here on appeal, or on application of appellee for its affirmance, or final hearing on appeal and for judgment on the bond, and also on writ of error sued out at the instance and in behalf of another party. We hold that whenever a supersedeas bond has been filed, and the judgment of the court has been in fact superseded, no writ of error lies, nor can an appeal be granted in this court until the appeal is dismissed, thereby disposing of the right of ap pellee to invoke the aid of this court, and leaving him to pursue bis legal remedies, such as they may be, against the security in tbe appeal bond. In so far as the case of Clay, Adm’r, v. Notrebe's Ex'rs, 6 Eng., 637, conflicts .with the views herein expressed, if there be a conflict, the same is overruled.
Finding the plea in abatement sufficient in law, tbe demurrer is, overruled, plaintiff in error can reply and put tbe facts in issue, and on failure to do so, tbe writ will be dismissed.
Hon. E. H. English, 0. J., did not sit in this ease. | [
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English, C. J.
In October, 1869, Madaline P. Lindsey as administratrix of her deceased husband, Daniel P. Lindsey, filed a bill in the Monroe circuit court to enforce a lien for purchase money upon lands sold by her husband, while living, to Robert H. Pasley and John Spivey.
Before the final decree, Mrs. Lindsey’s letters were revoked by her marriage, and Emele Platon, who succeeded her in the administration, was substituted as plaintiff.
The original defendants to the bill were Pasley and Spivey, the purchasers of the lands, and the assignee in bankruptcy of Pasley. But in the answer and cross-bill of Pasley, he-alleged that he had repurchased his interest in the lands, at a. sale made by his assignee, and no further notice seems to have-been taken of the assignee. During the progress of the cause, the death of Pasley was suggested, and his administrators and heirs were made parties.
A personal decree was rendered against Spivey for part of the debt sought by the bill to be charged upon the lands, and a decree against the lands for the remainder of the debt, and they were directed to be sold by a- commissioner for the amount charged upon them.
Spivey appealed to this court, and by an order made here, Wm. W. Smith, administrator de bonis non of Pasley, was, on his motion, permitted to join in the appeal.
I. Whilst Mrs. Lindsey was plaintiff, her deposition was taken, a motion was made by the defendants below to suppress it, on the grounds that she, as administratrix of her deceased husband, was the plaintiff in the suit, and her deposition related exclusively to transactions had with, or statements made to, or by her intestate. The motion was overruled by the court.
A subsequent motion was filed to exclude her deposition on the grounds stated in the motion to suppress, and on the additional grounds that it related to communications • made to her by her husband, during the existence of the marriage relation "between them; and that a portion of the deposition was open to the objection of being hearsay, etc.
The record discloses no action of the court upon this motion. It was filed May 6, 1872, and the final decree was rendered ■January 27,1874. The decree recites that the cause came on to be heard “upon the complaint, answers, cross-complaint, and replies thereto, with the exhibits and the testimony.”
If any oral testimony was introduced on the hearing, it was not put upon the record. The deposition of Mrs. Lindsey is the only one in the transcript before us, and the court having overruled the motion to suppress it, no doubt treated her as a ■competent witness, and in making up its decree, gave effect to ■such portions of her testimony as were deemed relevant and ■competent to the matters in issue.
By the common law, Mrs. Lindsey, being the plaintiff in the suit, was an incompetent witness to give evidence in her own favor. Grimes, Adm’r, v. Booth, 19 Ark., 227.
But by the constitution of 1868, her incompetency by reason ■of her being a party to, or interested in the suit, was removed:
“In the courts of this state there shall be no exclusions-of ■any witness in civil actions because he is a party to, or is interested in the issues to be tried.” Art. VII, sec. 22.
Mrs: Lindsey was a competent witness, but whether, in her •deposition, she stated matters which she was incompetent to ■disclose, by reason of her former relation to her deceased husband, is another question.
The code provides that the following persons shall be incompetent to testify:
First: Persons convicted of capital offenses, perjury, etc.
Second: Infants under the age of ten years, etc.
Third: Persons of unsound mind, etc.
Fourth: “Husband and wife, for or against each other, or concerning any communication made by one to the other during the marriage, whether called ás a witness while that relation siib~ sisted or afterward." Gantt’s Dig., sec. 2488.
So much of this clause of the statute as we have copied in italics is but declaratory of a familar and well settled common law rule of evidence.
“Communications between husband and wife (says Mr. Grreenleaf) belong to the class of privileged communications, and are therefore protected independently of interest and identity, which precludes the parties from testifying for or against each other. The happiness of the married state requires that there should be the most unlimited confidence between husband and wife; and this confidence the law secures by providing that it shall be kept forever inviolable; that nothing shall be extracted from the bosom of the wife which was confided there by the husband. Therefore, after the parties are separated, whether it be by divorce or by death of the husband, the wife is still precluded from disclosing any conversations with him, though she may be admitted to testify to facts which came to her knowledge by means equally accessible to any person not standing in that relation.” 1 Grreenl. Ev., sec. 254.
Mrs. Lindsey’s deposition is in substance as follows:
That she knew that Lindsey, in his life time, sold lands to Pasley and Spivey, and also, at the same time, twelve slaves, for the sum of $28,000. The lands and slaves were valued separately, but it was the same transaction, and the aggregate price was the sum above stated. Of this sum, one-third was to be paid in cash, and the balance in one and two years.
The first, or cash payment, was to be made in. January, 1860. About the 5th of that month, Pasley and Spivey paid to Lindsey, $2,750, and he took back one of the negroes which he had sold to them at $1,800, and they, not being able to make the balance of the cash payment, executed their joint note to Mm, for $2,616, with ten per cent, interest from date. Eor the deferred payments, they executed their two notes for $7,666.66, payable to the order of said Lindsey, one and two years after date, respectively; and he executed and delivered to them a title bond, conditioned to make them a deed to said lands on payment of said notes. In regard to the time of the sale of the lands and the execution of the notes, she did not speak from her own. knowledge, but from information derived from the parties, and her recollection of the notes, having seen them, handled them, and calculated the interest on them frequently; and she states positively that the notes were for the amount above stated, and she knew the price of the lands and negroes was included in the notes.
That at the time of the sale, Lindsey was indebted to one Halloran for the lands and a portion of the negroes, in about the sum of $4,000, part of which Pasley paid off for Lindsey; and Lindsey also took back from Spivey and Pasley seven of the negroes, valued at $4,900. Pasley also paid one Beard about $1,500 for a negro woman and child. Lindsey also purchased goods of Spivey and Pasley, but amount not recollected. After these payments, there was a settlement between Lindsey and Spivey and Pasley, at which witness was present, and made the calculations. Credits were given them for all the amounts they had paid as above stated, and there was a balance .then found due from them to Lindsey on said three notes of $4,214.33, and in order to close the matter and fix definitely the amount, at the request of Pasley, Lindsey delivered up the original notes and took the note of Pasley and Spivey for said balance, which is the note sued on in this case, and represents the balance due on the lands and the four negroes retained by them, the other eight having been taken back as above stated. This settlement witness made herself, and delivered up the notes ; that is, she made all the calculations, and at the request of Lindsey, delivered up the notes to Pasley ■and Spivey. Afterward they paid $75 on the new note, which was credited February 8, 1866, and on March 26, 1866, they gave an order on H. P. Coolidge for about $500, which was credited on said note, and Lindsey included in the credit one-half of the interest which had accrued on the note [it bore ■date January 1, 1862], making the credit $1,498.17, which was all that had ever been paid on the note. After said payment, Pasley applied to Lindsey for a deed to half the land, stating he had paid out of his own means more than half the purchase money, and desired Lindsey to look to Spivey for -the balance, which he declined to do, as they were both bound to him for the money.
There appears to be nothing in this deposition falling within the description of such confidential communications from the husband to the wife, as by the common law, or the statute above quoted, the wife was forbidden to disclose as a witness, being, after the death of the husband, otherwise competent. McGuire v. Maloney, 1 B. Monr., 224.
The court below did not err in overruling the motion to suppress the deposition.
II. The part of, the deposition of Mrs. Lindsey which the counsel for appellants insist is open to the objection of being hearsay, is that part in which she states that “for the deferred payments (on the land and negroes), they (Pasley and Spivey) executed their two notes for $7,666.66, payable at the order of Lindsey, one and two years after date, respectively; and he executed and delivered to them a title bond, conditioned to make them a deed to said lands on the payment of said notes.”
The objection is, that as she does not state that she was present when the bond for title was executed, or that she ever saw it, the inference is that she had no personal knowledge of its condition, and must have made her statement on informa tion derived from others. This may be true, but she states a fact, and if the opposing parties desired to have her state the source from, or means by which she derived her knowledge of the fact stated, they had an opportunity of doing so by cross-examination. Bub having neglected to cross-examine her, it would not be fair to exclude her statement of a fact altogether, because she does not disclose the source of her- knowledge of the fact stated. But of course the court, in making up its decree, will always attach more weight to the statement of a fact when it appears to have been within the personal knowledge of the witness or when the source or means of the knowledge is stated, than where the fact is merely stated, and it does not appear to have been within the personal knowledge of the witness, and the source or means of information is not disclosed ; and the court below must have acted on this rule in making up the decree in this case. Eor Mrs. Lindsey stated that the title bond was conditioned that her husband would make a deed to the lands, on payment of the two notes given for the deferred installments of the purchase money of the lands and the negroes. The bond had been stolen by a burglar from Pasley’s store, and was not produced. It does not appear that any other witness testified in the cause. If the court had given full credit to this statement of hers, it might well have charged on the lands the whole amount found to be due on the note in suit. But the court did not so decree. It found that the parties had made no appropriation of the payments, and appropriated them pro rata upon the slave debt and the land debt, and rendered-a personal decree against Spivey for the sum ascertained to be due on the slaves (not taken back), Pasley having been discharged in bankruptcy, and charged upon the lands the balance found to be due on them. And this appears to be a fair decree, and as favorable to appellants as the pleadings and evidence warranted.
III. There is a further question in relation to an alleged departure in pleading.
The original bill is brief and not accurate in its allegations. It. appears to have been drawn and sworn to by the solicitors-of Mrs. Lindsey, who had the note sued on for collection in her absence.
It says nothing of the sale of the negroes, but states the sale of the lands, leaving the date of the sale in blank, and avers that the note sued on was either one of the original notes executed for the lands by Pasley and Spivey or taken in renewal of the last of- said notes, the sole consideration for the note-sued on being said lands, etc.
The main purpose of the bill was to charge the debt as a lien upon the lands, and to obtain a decree condemning them to be sold to pay it.
Pasley and Spivey made their answers cross-bills, in which they affirmatively alleged that they purchased at the same time lands and negroes of Lindsay, and gave separate notes for the agreed price of each; that the land note was paid and the note sued on given in renewal of an unpaid balance of the slave note, which they insisted was a personal debt, constituting no lien on the lands, and prayed for title to the lands.
Mrs. Lindsey, who seems to have understood the facts of the case better than her solicitors did when they drafted the original bill, answered the cross-bill, admitting the sale of negroes and lands, denying that separate notes were taken for the agreed price of each, but stating the transaction substantially as she afterward-did in her deposition. There was a demurrer to her answer to the cross-bill on the ground of departure in pleading, which the court overruled.
The alleged departure is this, that in her bill she avers that the note sued on represents a'balance due on the lands, while in her answer to the cross-bill, she admits that the note sued on represents a balance due on the lands and negroes both.
This is true, but she also states in her answer that the condition of the bond for title was that the deed for the lands was to be made on payment of the notes given for the purchase money of both the lands and the slaves, so that by a different mode of stating it, she comes back substantially to the main proposition of the bill, that the note sued on was a lien upon the lands, and that they should be condemned to satisfy it.
In the common law system of pleading, a departure is said to be when a party quits or departs from the case or defense which he has first made, and has recourse to another. It occurs when the replication or rejoinder, etc., contains matter not pursuant to the declaration or plea, etc., and which does not support or fortify it. Chitty Plead., 644.
Mr. Newman says : “ The code requires that the new matter set up in reply shall not be inconsistent with the petition. It seems to have been supposed that this rule was adopted in analogy to a rule under the former practice, which authorized a demurrer when the replication, or any subsequent plea, was a departure from the original cause of action set out in the declaration. But our code allows no reply to new matter alleged in the answer unless it constitute a counterclaim or set-off. The reply must therefore refer only to the new cause of action set up by the defendant, and the rule cannot have been adopted in our code for the purpose of preventing a departure. It was no doubt adopted merely because the plaintiff in his reply should not be permitted to contradict the material allegations which he had previously made in his petition. Such inconsistency, it seems, therefore, is not a ground of demurrer, as was a departure in pleading formerly, but is a ground of objection to such a reply being filed, or, if it has been filed, it is good reason for a motion to strike out the inconsistent mat ter.” Newman Plead. and Pr., 685; Gantt’s Dig., sec. 4579-80.
Be the code practice as it may, we do not think that Mrs. Lindsey made any very serious or substantial departure in her pleadings in this case.
The decree must be affirmed, and the affirmance certified to the'court below, that the decree may be executed. | [
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Walker, J.
In 1868, the complainant, William S. Turner, sold to James H. Keys a tract of land, for the price of $3,200-, of which $2,000 was paid, and a note executed to Turner, due one year after date, for $1,200, and in a further agreement in regard to the title of the land, Keys agreed to give the further sum of $320, which sum was added to the $1,200. The first note was given up, and a second note given for $1,520. A deed was executed to Keys for the land, which he held until 1865, at which time he died, and his estate was administered upon.
Turner, the vendor, who held the note, lost it, but made such proofs of its loss, and that it had not been paid, that it was probated, allowed, and classed as a claim or judgment, against Keys’ estate.
After this Turner, by a written instrument, for value received, sold and transferred this judgment to E. C. .Cage, who thereafter transferred the same to L. and J. W. Cage. The administrator of the estate of Keyes paid upon the claim, or judgment, $500.75, which, from the case presented, we may suppose was the distributive amount due out of the proceeds of the personal estate. The administrator of the estate of Keys filed his petition for the sale of the real estate of Keys, and such proceedings were had, that an order was made authorizing the administrator to sell the real estate of Keys, of which the tracts sold by Turner to' Keys was a part. Horner, the administrator, advertised the land for sale, and the complainant, Turner, for the use of L. and J. W. Cage, filed his bill to enjoin the sale of the land so conveyed by Turner to Keys, and to assert a vendor’s lien on the land, to satisfy the claim or judgment, which he had sold to E. C. Cage, who had assigned it to L. and J. W. Cage. The heirs and administrator of Keys were made parties to the bill. Answers were filed,, one of which questioned the equity of the bill by demurrer. The demurrer to the bill was sustained, and the bill dismissed, and plaintiff appealed to this court.
There is no question but that Turner, as vendor, had a lien upon the land sold by him to Keys, for the payment of the balance of the purchase money, and that the mere fact of his probating his claim, and having it classed and allowed in the probate court, did not affect the lien right to satisfaction; and, as this is a mere implied lien, not contracted for, under our administration laws, it is questionable whether he could assert his right to satisfaction out of the land, until the personal assets had been first exhausted. Gould’s Dig., ch. 97, p. 119. But the question is, whether by parting with his debt, he did not deprive the owners of the debt of the benefit of this lien. In Leading Oases in Equity, Hare and Wallace’s Notes, vol. 1, p. 866, it is said the lien exists only as between the vendor and vendee, and perhaps their privies in estate or law, and then only for the unpaid purchase money. It is merely a personal and equitable right, not passing with the assignment of the vendee’s obligation, but extinguished when an assignment takes place. Such is the decision of the courts of most of the states, and the repeated decisions of this court. Where the title to the estate is not parted with, or the debt is secured by an express lien by contract, the rule is different. > in this case,if Turner had parted with the debt by an assignment of the note for the purchase money, it is conceded that the lien would have been lost-; but his debt had been merged into a judgment, and was not assignable, but sold to Cage, by force of which, although the right to enforce satisfaction would have been different, still the debt, the right to the money, was absolute, as if passed by assignment of the note; and if, as has been conceded, the lien would not pass with the debt into the hands of the assignee of the note, we can see no good reason why it should pass to the purchaser of the debt. In either case, the vendor has parted with his debt, and has no right to satisfaction by force of the lien, because he has no debt to be satisfied.
The authorities cited by counsel do not, in our opinion, conflict with this view of the case. In the case of Crawley v. Riggs, 24 Ark., 566, the notes were assigned as collateral security, and when the court say, in the opinion delivered in that case, that Riggs could have paid off the notes and have enforced his lien, it is because then the debt and the lien, which had been separated by the assignment, were again united in the vendor, and fully accords with the decision made at the present term of this court, in the case of Bernard Bernays v. Field and Dolly et al., ante, p. 218. In that case, Douglass sold certain lots of land, and gave to the purchasers a bond for title, upon payment of the purchase money. This bond for title was by assignment several times transferred to other parties. Under this state of case, it was held that Douglass held the legal title to the lots with a specific lien upon them, for the payment of the purchase money, and that the effect of the subsequent sales and assignments of the bond created subsequent liens upon the lots, for the payment of the purchase money, to be satisfied in their order, in the nature of subsequent mortgages. 14 Ark., 626; 13 id., 534; 16 id., 145 ; 18 id., 553. Dolly and Field, to whom the bond for title had had been assigned, made an assignment of the bond to Rector, who executed his note to Field and Dolly for.the payment of the purchase money. They assigned the note to Benedict, Hall & Co. The note was protested for nonpayment, and paid and taken up by Field and Dolly, to whom Benedict, Hall & Co. reassigned the note, but without recourse upon them; that Benedict, Hall & Co., as assignees, held a lien upon the lots for the payment of the notes given for the purchase money; and that under ordinary circumstances, when an assignment is made without recourse, as held in Williams v. Christian, 23 Ark., 255, the vendor’s lien would not pass, but as the assignment was made to Field and Dolly, who held the vendor’s lien, the effect of which was to reunite in the vendors the debt and the right to enforce satisfaction under the lien, for which they had contracted, they had a right to enforce the vendor’s lien upon the lots so conveyed. See Kelly v. Payne, 18 Ala., 371.
The lien right to satisfaction in this case was upheld upon the express ground that the debt and the lien right had by the reassignment been united in the vendor.
But in the case under consideration, Turner, the vendor, has not regained his title to the debt. He sues as a mere nominal party, for the use of L. and J. W. Cage, to whom the judgment was sold, and insists that he had a right to do this because, should the estate of Keys prove to be insufficient to pay the debt, that Cage will have his recourse against him for any balance due Cage upon his purchase. In this, no greater liability to pay rests upon him than if he had assigned the note. The liability to pay is a mere contingency, which from the state of case presented may never arise.
Under this view of the case,.we think that the demurrer was properly sustained to Lhe bill.
Let the decree of the court below be affirmed. | [
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Williams, Sp. J.
In this case there was an injunction granted on a bill presented by one Hart, who sued as a citizen and tax payer of Boone county, for himself and others; and J. M. Bailey and about twenty others signed an injunction bond to defendants in the injunction suit, to wit, John J. Jones, sheriff and collector of Boone county; W. W. Jernigan, county judge; John C. Phillips, associate justice of the county court; J. W. Doubleday, county attorney; N. B. Cramp? clerk, and J. J. Thompson, commissioner of public buildings.
The suit was for an injunction to restrain the collection of taxes for a public building at Harrison, on the ground that the county site of Boone county had not been located legally there. The suit was brought by Hart as a citizen and tax payer in behalf of himself and others. The injunction bond was in the usual statutory form, binding the parties in the sum of one thousand dollars, to pay the damages which might be sustained by reason of the injunction, if it was finally decided that it ought not to have been granted. This bond was executed upon the granting of a temporary restraining order; afterwards it was ordered by the judge of the circuit court that a larger bond be filed, and in default, that the temporary restraining order be set aside; afterward, in term time, there is an order finally dissolving the injunction on this ground, and the case is continued for the assessment of damages. Hp to this point the cause is entitled:
“G. Hart et. al., Citizens and Tax Payers of Boone Co., Ark., plaintiffs, against J. J. Jones et al., defendants.” At a subsequent term appears in the transcript the following order under the following title: “ J. M. Bailey et. al., plaintiffs, No. 9, against Joseph K. Gibson et. al., defendants.” “ Now, on this day, this cause comes on to be heard for the assessment of damages, for which purpose this cause was heretofore continued, and the court, sitting as a jury, after hearing all the evidence in the case, and being sufficiently advised in the premises, doth find’ that Joseph K. Gibson, James 0. Nicholson, W. S. Allen, John .J. Jeffreys and' Thomas E. Layton of the firm of Layton & Jeffreys, Henry C. Green and John D. Edwards of the firm of Green & Edwards and Henry C. Green, are damaged in the sum of five hundred and forty-seven dollars, by reason of the injunction heretofore wrongfully granted in this cause. It is therefore considered that the said Joseph K. Gibson and the other above named persons (naming them) do have and receive of and from the bondsmen, J. M. Bailey (then follow the names of all the persons on the bond in the Hart case, in the order of their signing), the sum of five hundred and forty-seven dollars and eighty cents for the damage, etc.”
The proceedings were doubtless a continuance of the Hart case, which the coincidence of the names of the bondsmen and other statements in the record tend to establish. The record should have shown how and why the change of parties occurred.
This judgment was rendered against securities in an injunction bond immediately after assessing damages on dissolution of the injunction and was a part of the same, and was rendered on the bond against the securities.
The statute authorizes, on dissolution of an injunction, the court of chancery in which it is pending, to assess damages by jury or otherwise (Gantt’s Dig., 3482); and on this assessment to render a decree against plaintiff, because he is before the court and personally subject to its jurisdiction, and this assessment is conclusive against the security. Gantt’s Dig., sec. 8485.
But in the absence of a statutory provision, a court of equity could not take jurisdiction of the bond and render judgment on it. Hence the action of the circuit court of Boone county, in the above proceeding, was without jurisdiction and void. At law we would dismiss this appeal, and leave the parties to their appropriate remedy. Baxter v. Brooks, ante, p. 173.
In chancery causes the rule is different, because in such causes there is no other mode of invoking the superintending control of this court. It has been long settled in this court, that chancery causes shall be reviewed here on appeal, whether the court below had jurisdiction or not.
The appellees have pleaded in abatement of this appeal the existence of a stay bond which appellants had executed below, claiming that it had merged the judgment. This would be true under our code as to those of the defendants who signed the stay bond, if no more, and under the old ideas of common law unity prevalent before the code, would have merged the entire judgment as to all the original parties. But to have this effect, it was always necessary that there should be something to merge. This judgment being void, the execution was void and the stay bond a nullity. We do not have the stay bond before us, but presume ample relief can be secured against it by application to the circuit court of Boone county, which, in the exercise of that superintending control, which all courts ordinarily have over its juries and officers, will quash this stay bond, or any execution that might be issued upon it. We have before us the original judgment, and find no statutory provision authorizing a court of equity to render judgment against securities in an injunction bond, but that the remedy is adequate and complete at law. Fowler v. Scott, 11 Ark., 675; Scott v. Fowler, 14 id., 427; Hunt v. Burton, 18 id., 188 ; Lizer v. Anthony, 22 id., 465; Blakeney v. Ferguson, 18 id., 347.
Let the judgment of the Boone circuit court in this cause be annulled, vacated, and set aside, and a decree be entered here to that effect, with cost, leaving the defendants in the Hart suit to take such steps as they may see proper as to assessment of their damages against the plaintiff and collecting the same by suit at law on the bond.
Hon. E. H. English, C. J., and Hon. David Walker, J., disqualified in this case. | [
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Walker, J.
On the 9th of October, 1866, Brazel B. Smith, as administrator of the estate of Petyma Smith, filed his bill of complaint in the Arkansas circuit court against Thomas H. Allen and Ira M. Hill as administrators of the estate of Lewis Shanks, deceased, and the unknown heirs of Shanks, in which it was alleged that on the 21st day of December, 1858, his intestate, Petyma Smith, with several other parties, for the consideration of $24,000, to be paid at different dates and amounts,'to the parties grantors, one of which notes was executed, by Shanks for the sum of $5,000, due one year from the 10th of March next thereafter, with eight per cent, interest from date, and made payable to intestate, Petyma Smith, one of the grantors, granted, bargained and sold to the said Lewis Shanks, certain lands therein described. It is further alleged that the note is due and unpaid; but has been lost or destroyed. That Shanks died intestate, and left children and heirs, who are unknown to plaintiff; that by the terms and condition of the deed a specific lien was created and reserved upon the land so conveyed, for the payment of the purchase money, of which the $5,000 note was a part, makes the administrator and heirs, who are described as unknown defendants, parties defendants, and prays that the debt and interest may be adjudged to him as such administrator, and if not paid, day being given for the same, that the equity of redemption be foreclosed and the lands sold.
When parties are made defendants and described as unknown defendants, without naming them, it is made necessary that the complainant should file with his bill an affidavit that such defendants are in fact unknown to him, because if he knows the names of the parties, he should sue them by name. Gould’s Dig., sec. 7, ch. 28.
No such affidavit-was in this case filed, and a failure to do so became a ground of exception upon which, on appeal to this court, the case was reverséd and remanded for further proceedings (see 25 Ark., 496). The cause was remanded, and upon alleged errors in proceeding to decree without having the infant defendants before the court, upon a second appeal the case was again reversed. Upon the return of the case to the court below, the complainant, upon leave granted, amended his bill and brought the heirs of Shanks before the •court by their proper names, by which the objection to the bill in this respect was obviated. The amended bill was sworn to, and there was also an affidavit filed, that the defendants were nonresidents of the state, and an order of publication was taken. The order was executed by publication, a copy of which was verified and filed ; a guardian ad litem appointed, who filed his written consent to act as such, and answers were filed by him for them. Two of the heirs, Lou-den and wdfe, also filed their answer, and with the infant defendants, by their guardian, filed their demurrer to complainant’s bill. Neither of the grounds assigned for demurrer questioned the sufficiency of the bill, unless the failure of complainant to file an affidavit of a want of knowledge of the residence of such unknown defendants with his bill, as required in sec. 7, ch. 28, Gould’s Dig., should be held to relate back to the sufficiency of that part of the bill which described them as unknown defendants, and should be considered such ; but as the amended bill fully supplied this defect by making Shank’s heirs defendants by their proper names, the necessity for an affidavit, as required by sec. 7, ceased to exist.
The first ground assigned for demurrer is: That the instrument sued upon a.s the certificate or affidavit of Petyma Smith was made before an officer unknown to the laws of Arkansas.
We find on the record a statement purporting to be an affidavit of the loss and nonpayment of the note described in the complainant’s bill, and certified as having been sworn to before one George W. Hannah, who styles himself captain and provost marshal. This paper, as an affidavit, is certainly worthless, and if an affidavit of the facts set forth in it were necessary, we might hold the objection well taken. But we are aware of no statute which requires that such affidavit should be made, in an action in equity, to subject the lands of an intestate to the payment of a debt secured by a mortgage lien. Sec. 66, ch. 133, Gould's Digest, relates exclusively to proceedings at law, and was intended to mitigate the rigors of the common law, which denied a right of action on lost bonds; because under the common law practice, profert was necessary, which could not be given if the laond be lost. But if such was not the case, and such affidavit was proper, it would form no ground of demurrer to the bill, although it might be taken advantage of by motion.
The second ground, as cause of demurrer, is that there is no affidavit of the loss of the instrument sued upon. This is but a repetition of the first ground, which we have held insufficient.
The third ground assigned is, that complainant failed to make proof of the nonpayment of the claim exhibited against the estate of Shanks, before the commencement of the suit. This ground is not sustained by the record. There was filed with the bill the following affidavit:
“State of Arkansas— County of Jefferson.- — I, Brazel B. Smith, administrator of Petyma Smith, deceased, do solemnly swear that nothing has been paid or delivered towards the satisfaction of the above demand, and that the sum of $5,000 above demanded, with eight per cent, interest from the 22d of March, 1859, is justly due. (Signed) B. B. Smith.
“ Sworn to before me, an acting justice of the peace within the state aforesaid, this 28th day of July, 1866.
“(Signed) W. D. Johnson, J. P.”
This affidavit is a literal copy of that prescribed in Gould’s Digest, sec. 102, ch. 4, and is in all respects such as would have been necessary if this claim had been presented for allowance in the probate court.
But the action in this case, while it is for the payment of a debt due by the intestate Shanks, is not an action against his personal representatives, to have satisfaction out of his per sonal assets; and although his personal representatives are made parties, the action is to subject real estate, under a'contracted lien, to the payment of a debt, in which the heirs are the real parties in interest.
Story, in His Equity Pleading, 246, says: “ If the mortgagor, who is the owner of the fee, should die, his heir is an indispensable party to a bill to foreclose: so that, if he be without the jurisdiction of the court, the cause cannot be proceeded in. But, ordinarily, it is not necessary to bring the personal representative of the mortgagor in such case before the court; for the heir alone has the right to the equity of redemption, which it is sought to foreclose, and the mortgagee is under no obligation to intermeddle with the personal assets, or seek an account thereof.”
In the case of Haskell et al. v. Sevier, Adm’r of the estate Jordan, the main question, as in this case, was whether the holder of a debt, who has, in the lifetime of the debtor, contracted for a specific lien on real estate for its payment, shall, after the death of the debtor, at his election, pursue his remedy against the land for payment, or shall be required to abandon it and take his recourse against the personal representatives of the deceased debtor. In that case, Jordan executed to Smith his notes for the payment of a sum of money thereafter to become due, and also executed to Smith his deed of mortgage to secure the payment of the same. Afterwards, and before all of the notes were paid, Jordan and Smith died. Haskell, the administrator of Smith, filed his bill against Sevier, the administrator of the estate of Jordan and his heirs, to foreclose the equity óf redemption and sell the lands. Sevier insisted that Haskell should probate and class his debt with other creditors for payment out of the whole estate; whilst it was insisted, on the part of Haskell, that his intestate, in the lifetime of Jordan, had contracted for a lien upon the lands, had a right at his election to file his claim for probate with other creditors or pursue his remedy for satisfaction out of the lands. This was the main question presented for our consideration, and it was held that the death of Jordan did not affect the rights of Smith, acquired under his contract of lien, which, if valid before Jordan’s death, remained so afterwards; that the land at the time of Jordan’s death was incumbered with Smith’s debt, and brought Smith within the rule that he who is first in time, who has incumbered the property with his own debt when added to his equal equity in other respects, makes his the superior equity, and it entitles him to satisfaction out of the particular estate thus incumbered. Haskell et al. v. Sevier et al., 25 Ark., 152.
The objections taken by defendant’s counsel seem to have arisen out of a misconception of the real grounds of this action, which is not against an estate for satisfaction out of the personal assets, but to obtain a satisfaction out of a particular estate, which had been, by contract, incumbered in the lifetime of the debtor with its payment.
Holding, as we do, that the causes for demurrer were not well taken, and consequently that the bill is sufficient to entitle the complainant to a decree, if proven, we will turn our attention to the remaining question: Have the facts been sufficiently proven to entitle the complainant to a decree in his favor?
An interlocutory decree by default was taken against the administrators. Two of the heirs appear and answer. The material fact denied is that the debt is due ; if not, the heirs will of course be protected.
The recitals in the deed furnish very satisfactory evidence of most of the facts in issue. They show that a note for $15,000 was executed by Lewis Shanks, payable to Petyma Smith, complainant’s intestate; the date of the note, the time when due and the rate of interest, are' all set forth, and that the note was executed in part consideration for the payment of the land therein conveyed to. Shanks, and that the contracting parties therein declare that the deed was executed, in the language of the deed, “ with the understanding of all the parties that a lien is reserved upon the land until the purchase money is fully paid off.” In addition to these facts shown by the deed, which is duly authenticated and made an exhibit in the case, the deposition of the administrator, Smith, which appears to have been regularly taken, is to the following effect: That although not present when the deed was executed, he had been afterwards informed by his intestate, that such a note was executed as that described in the deed; that he knew of his own knowledge that the note was in existence shortly before the federal forces took possession of Pine Bluff; after which intestate told witness that she had been robbed of that and other valuable papers; that intestate was his mother, and after her death, he searched amongst her papers, and in trunks and all places where papers were likely to be kept, and could not find the note; believed it to be lost or destroyed.
This evidence well sustains the facts set forth in the deed and averred in the bill. In view of which the decree in the court below in favor of complainant will be sustained.
Let the decree be affirmed. | [
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Harrison, J.
An appeal was taken in this case in the court below, without supersedeas, on the 27th day of February, 1873; but no transcript was filed here .until the 27th day of February, 1874, when the appellant applied to and obtained from the clerk of this court another appeal, and thereupon filed the transcript.
The appellee has moved to dismiss the appeal thus taken before the clerk, and insists in support of his motion that the appellant having failed to file the transcript of the record within ninety days after his appeal in the court below was taken, he lost the right to file it afterwards, and also to any appeal in the case. Conceding that after the expiration of ninety days the appellant may not, unless for good cause shown, file the transcript, the question presented is: . Has a party who has once taken an appeal and failed to perfect it by filing the transcript in proper time, or the same has for any cause been dismissed, the right to take another appeal at any time within the period in which appeals are allowed? In Yell v. Outlaw, 14 Ark., 414, the court decided that after an appeal had been taken and submitted, and afterwards dismissed by the appellant, he might have a writ of error in the same case.
We think it difficult to find a distinction in principle, or a difference in effect upon the rights of the parties, between a second appeal and a writ of error taken after an appeal has been taken, and for any cause dismissed or abandoned.
The same object is attained or sought, whether the cause is brought here by appeal or writ of error, and the same consequences follow the affirmation or - reversal of the judgment. Pope v. Latham, 1 Ark., 66. In the case just referred to, a distinction was made between the cases where the judgment was not superseded and those where it was; and the court say: “ If the successful party in the court below is not hindered by the appeal from having execution, no good reason is perceived why the appellant may not dismiss his appeal at any time before the final adjudication of it, with like effect as if he had brought the cause here for revision, by writ of error without supersedeas.”
In addition to the reason there given for the distinction, we will remark that the court below has no power over the supersedeas, whether the appeal has reached here or not, and that it is subject to the jurisdiction and control of this court alone. The view we have here indicated is in accordance with the settled practice in the supreme court of the United States, which allows a party to take a second appeal within five years from the date of the rendition of the judgment, when the first has not been legally prosecuted, or been dismissed. Yeaten v. Lenox, 8 Pet., 123; United States v. Curry, 6 How., 106 ; Virginia v. West, 19 How., 182; Costia v. United States, 3 Wall., 46; United States v. Gomez, id., 752.
But whilst we hold that the appellant, notwithstanding he took an appeal in the court below, but failed to perfect it by filing the transcript in time, still has a subsisting right to an appeal, and therefore refuse to dismiss that now pending, we think tbe better practice, where the appeal which does not have the effect to supersede the judgment or decree is for any cause not prosecuted, to be for the appellant to make application to the court to have the case docketed, and then ask to have the same dismissed before applying for a second appeal.
The motion to dismiss the appeal is overruled. | [
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Williams, Sp. J.'
Appellee became bail for the appearance of Joseph Porter before the criminal court of Jefferson, county, at. its February term, 1873, to answer an indictment for robbery. The condition of the bond was to appear at that term and “ at all times render himself amenable to the orders and process of the court in the prosecution of said charge, and render himself in execution if convicted; and if he should fail to perform either of these conditions, to pay one thousand dollars, the amount of the bond.
At the time prescribed in the bond, Porter appeared before the Jefferson criminal court, was arraigned and pleaded to the indictment.
The case, on his application, was moved, by change of venue, to Drew county, as prescribed in Gould’s Dig., ch. 52, secs. 132, 183, et seq., which was the law governing the case at the time.
At the first term, thereafter, of the Drew circuit court, Porter failing to appear, a forfeiture was taken on the bail bond against him and appellee. To the scire facias on this forfeiture, the appellant set up two defenses.
1. That he was an attorney-at-law, enrolled and practicing in the criminal court of Jefferson county at the time he became security in the bond, and that said court had not given him leave to become bail in the case.
2. That the bond was for the appearance of Porter before said criminal court, and not for his appearance before the Drew circuit court; and that the change of venue was ordered and made after the bond was taken, and after Porter had appeared in Jefferson court in obedience to its conditions, and there was no order of court given for Porter to stand on his bail, or directing the bail to be held for the appearance of defendant before the circuit court of Drew county, and that the change of venue was made without the consent of the appellee.
To these defenses, forming two separate paragraphs of an answer, the state demurred; the court below sustained the demurrer as to the second defense, and overruled it as to the first.
Section 4823, Gantt’s Digest, provides, that attorneys-at-law shall not be taken as bail without leave of the court.
We are inclined to the opinion, in which we are sustained by authority, that this is a mere directory law, and that it does not lie in the mouth of the bail to set up this defense. Commonwealth v. Ramsey, 2 Duval (Ky.), 385; Jack v. People, 19 Ill., 57. Yet, in the view we take of this case, we do not deem it necessary to decide this question. Eor if it appear that, upon the whole record, the judgment of the court below was right, it must be affirmed. Let us, therefore, see if the second defense is good, and if not, whether the demurrer to it did not reach the defects in the state’s own case.
If the appellee had proved what he averred in the second paragraph, that Porter appeared and was in custody as the law required, and that the Jefferson criminal court gave no order directing the bail to be held for the appearance of Porter in the Drew circuit court, it would have been sufficient. We believe the condition of the bond is broad enough to have required Porter to have obeyed the order of the court to go to Drew, and to surrender himself in final execution, if convicted, if the court of Jefferson county had so ordered. In cases like this, the whole record is before the court, and even if a defense wqs defectively pleaded, judgment should not be given where that record shows it would be illegal and unjust. The demurrer should, in such case, reach back to the-defect in plaintiff’s case as in pleading.
In this case, the record shows that the order Changing the venue from Jefferson criminal court to the Drew circuit, expressly ordered Porter into the custody of the sheriff, and directed the sheriff of Jefferson to “ transmit his body ” to the-sheriff of Drew.
Giving the fullest scope to the last clause in the bail bond,, and holding that it would bind the bail until the principal, on conviction, was surrendered in execution without any order of court remitting the prisoner to his bail, which we-do not here intend to decide, still, in this case, the express order of the Jefferson criminal court materially affected the-rights of the bail. The law considers a prisoner on bail as in the custody of his surety, who has the right to look after him, and arrest him any where, and surrender him to proper-authority. With such an order before him, it would have-been a difficult undertaking for appellee to have attempted to control Porter’s movements as agáinst the sheriff.
Competent authority having impaired the right of the bail,, we cannot hold him legally responsible. If Porter escaped,, it was from the sheriff of Jefferson or Drew county, whichever, under this order, had the body. If Jefferson had transmitted, as ordered, the escape was not from him. Otherwise, on this record, he appears to be the responsible party. The escape is-certainly not from the bail, who, in law, was his custodian, while his bond was unperformed, and he -at large on it.
Finding, on the whole record, that the judgment of the circuit court of Drew county is right, the same is affirmed.
Mr. Justice Harrison did not sit in this case. | [
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Walker, J.
In the fall of tbe year 1863, Elijah Cheek died, leaving a widow and children, and was possessed of a tract of land in Crittenden county, Arkansas, to which valuable ferry privileges were attached. William E. Cheek, one of his sons, who claimed to be the sole executor of his father’s estate under a will which had been lost, together with the appellant, John H. Waggener and his wife, who was a daughter of the deceased, and several other of the heirs, at the October term 1865, of the Crittenden circuit court, filed their ex parte petition in chancery, in which they averred that Elijah Cheek, in the first of the year 1862, duly executed his last will and testament, in which petitioner, Vm. F. Cheek, was appointed sole executor; that in July, 1862, he'made and published a codicil to said will, and that in the fall of the same year, he also made another codicil; that the original will was placed by the testator in the hands of the executor therein named for safe keeping, and it so remained until after the death of the testator; that the will had been lost from his possession, and that after diligent search he had been unable to find it; that he had found a copy of the will, which was ‘made an exhibit, and which he had proof to establish, concluding with a prayer that proofs might be heard, and the lost will might be established and the codicils probated. At the May term, 1866, the cause was heard upon evidence, without, however, several of the children and grand children of the deceased having-been made parties to the petition, and without notice or appearance on their part. The court, in chancery sitting, ordered and decreed that the lost will be established, and, with the two codicils, be held fully probated, and that a copy of the decree and the original codicils be certified to the probate court, which, however, it appears was not done.
After the petition upon which this decree was rendered was filed, and before the same was heard, or any decree rendered thereon, at the January term, 1866, of the probate court of Crittenden county, "William F. Cheek, with the written consent of part of the heirs of deceased, filed his ex parte petition in said court, in which the same facts were set forth as in his petition in the chancery court, and without having made part of the heirs parties to the petition, and without notice to them or appearance on their part; and thereupon, at the same term of the court, said probate court took jurisdiction of the case, heard the evidence offered to establish the loss of the will and that it and the codicils had been duly executed; and ordered “that a copy of said last will be declared probated in the place and stead of, and •as though it was the original, and that the codicils be also declared probated.” And whereupon letters testamentary were granted by said court to William E. Cheek as sole •executor of said estate.
It appears that, at a subsequent term of the px-obate court, an order was made authorizing and empowering the executor to sell the real estate upon specified terms, and at a particular place, which was not-observed by the executor, who, without reference to the order of court, and under the authority supposed to be confex-red by the will, advertised and sold the lands and ferry privileges at public sale to the appellant, Waggener, for the price of $75,000; of which Waggener paid $10,000 cash in hand, and executed his notes on time to William E. Cheek, as such executor, for the balance of the purchase money; whereupon William E. Cheek, as executor, executed and delivered to Waggener a deed for said land and ferry privileges. The deed puiported to convey the entire interest and estate of Elijah Cheek, deceased, in the lands, but without covenants of warranty of title. To secure the payment of the notes so given, Waggener conveyed the land and privileges so purchased, together with a tavern house and lot, a steamboat and one-half of the ferry privileges held by him independently of such purchase, in trust, to defendant Lyles, conditioned that if Waggener failed to pay the notes as they became due, the trustee should sell the property to pay the same. Waggener failed to pay, and the trustee' advertised the property for sale. To enjoin which sale and for other relief, Waggener and wife (who was a daughter and heir of Elijah Cheek) filed his bill in the Crittenden circuit court against Lyles, the trustee, and all of the children and heirs-at law of Elijah Cheek. The object and scope of the bill was to set aside the sale of the lands and the ferry privileges, sold by William F. Cheek, as executor, to complainant, and to enjoin the collection of the notes executed for the residue of the purchase money. And for specific grounds for relief, it is alleged that the probate court had no jurisdiction over the subject matter of establishing lost wills; that the orders of court establishing and probating the same were void, and not alone for want of jurisdiction of the subject matter; but, also, because the proceeding was ex parte, and without notice to or the appearance of part of the heirs of deceased; and not alone for the reason that the will had never been established or pro<bated, or that there was no legal executor, but that if in fact the will had been probated by a court of competent jurisdiction, still the will itself conferred upon the executor no power to sell the real estate.
As the questiomof the jurisdiction and power of the probate court to set up and establish a will (if well taken) must necessarily dispose of several others dependent upon it, we will without further reference to the pleading, or after-action of the court below, enter upon its consideration.
The constitution confers upon the legislature the power to declare what shall be the proper subjects of jurisdiction of the probate courts; and the legislature, sec. 10, c-h. 180, Grould’s Dig., has provided “ that courts of probate, or the clerks thereof in vacation, subject to the rejection of the court,, shall have the power to take the probate of wills.” The nature of the act to be performed under this section is ministerial rather than judicial, and necessarily presupposes the existence of a will presented for proof of its execution. No reference is made therein to lost wills, or the manner of proceeding to set up or establish them; but in an after section such power is expressly conferred upon courts of chancery in the following language: “Whenever any will shall be lost or destroyed by accident or design, the court of chancery shall have the same power to take proof of the establishment of such will, and to establish the same, as in cases of lost deeds.” The power of a court of chancery to establish lost deeds is one long recognized, and the practice under it requires that all those interested in the deed should be made parties, and have notice of such proceeding. Story’s Eq. PL, p. 86. Section 49, ch. 180, Gould’s Dig., provides that: “Where a decree in chancery is rendered establishing the will, a copy of the decree shall be recorded in the probate court before which the will might have been probated, if it had not been lost or destroyed, and that letters testamentary or of administration with the will annexed shall be issued by such clerk in the same manner as upon a will duly proven before him.” Thus, the filing of the decree of the chancery court, when recorded in the court of probate, confers upon the clerk the power to grant letters executory or of administration with the will annexed, upon such will so established and probated in the chancery court; and after which (but not before), the probate court acquires the same jurisdiction over the administration and settlement of the estate, as it would have had if the original will had not been lost, but had been probated by the clerk or court, and letters testamentary granted therein. Without any consideration of the question as to whether there was or not a valid decree rendered in the chancery court; because, if valid, it was rendered after the probate court had assumed to take jurisdiction of and decide upon the proof necessary to establish the lost will, and of course before any copy was filed, we must hdld that the probate court had no jurisdiction of the subject matter, and that the orders establishing and probating the will are void, and the letters testamentary granted to William E. Cheek conferred upon him no power to act as executor, or to sell the real estate of Elijah Cheek; that complainant Waggener acquired no title by his supposed purchase.
It is contended for the defense that this is a collateral proceeding in which the validity of the proceedings in the probate court cannot be considered or assailed. We do not so consider it. The objection to'the validity of the proceedings of the probate court are not that the court has acted in excess of its powers, or that some act necessary to perfect its jurisdiction has not been complied with ; but that the subject matter submitted to it was one of which it could take no j urisdiction whatever; and when such is the case, whether in collateral or direct proceedings, the fact being apparent upon the record, such orders and proceedings are treated as nullities. This question may be considered as definitely settled by our own and most of the American courts, and in some instances in cases much resembling this.
In the case of Sigourney v. Sibley, 21 Pick., 106, the supreme court of Massachusetts, by Shaw, C. J., who delivered the opinion of the court, said : “ It is a general rule that want of jurisdiction cannot be aided by waiver of exceptions, or even by express consent. If it is true in ordinary cases, it is so a fortiori in cases of probate decrees granting administration, which bind not only those who happen to be before the court as litigant parties, but all those who, as creditors, heir or otherwise, may be interested.” In the case of Gaines v. New Orleans, 6 Wall., 642, title was set up under Relf and Chew, executors, in regard to which the supreme court said: '“Butthese letters cannot avail the defendant, because Relf and Chew, as executors under the will, had no authority to make the sale, and could therefore pass no title to the purchaser. If a court act without jurisdiction, the proceeding is void, and this want of jurisdiction may always be set up against a judgment when sought to be enforced, or when any benefit is claimed under it.”
It is objected in defense, that as Waggener is still in possession of the land upon which he entered under his purchase, he cannot, thus holding, resist the payment of the purchase money upon the ground of defect of title. This objection, though sound in many cases, does not apply in a case like the present. In this case Waggener has acquired no title whatever — has no covenants to which he may resort for redress.
It is not necessary to consider the validity of the decree in chancery, which set up and established the validity of the will. Because, whether valid or invalid, it in no wise formed the basis of any action of the probate court; and because by an agreement of record, signed by the counsel of both parties, it is admitted and agreed that a suit in chancery has been brought by Stokes and wife (the wife being one of the children of deceased) against the other heirs, to set aside the decree in chancery in the Crittenden circuit court, and as that case may come before us upon a direct issue as to the validity of the will, in which all of the parties in interest will be before the court, we prefer to express no opinion upon that question. Nor is it necessary to express any opinion as to the proper construction of the several clauses of the will, or what power is conferred under it, as no will, as we have held, has been probated and made the basis of action of an executor under it
Having disposed of the questions of law necessary to a proper disposition of the case, it becomes necessary to look to the situation of the parties in interest, that we may direct the further action of the court below in the settlement of the equities which have arisen since the sale to Waggener.
The widow and all of the heirs and devisees under the supposed will were made parties by Waggener and wife, as well as the defendant Lyles. Some five of the defendants, including the widow, William F. Cheek and Lyles appeared and answered. The rest of the heirs, some of whom were minors, do not appear to have had service of process; nor did they appear or answer, nor were guardians ad litem appointed to represent the minor defendants. No decree pro confesso appears to have been taken against any of the defendants who failed to answer.
The complainant very fully brought all of the material facts before the court. He admits that he was let into possession of the lands and ferry privileges after his purchase; avers that he acquired no title whatever by his purchase; that the lands and the rents and profits thereof which accrued after his possession; belong to the estate of Elijah Cheek, deceased; that he does not hold adversely to the other heirs; that after his supposed purchase, he made valuable and lasting improvements on the land, of the value of seven thousand dollars; that he is the sole owner of the steamboat, half owner of the ferry privileges, and owner of the house and lot in his own right; that he is willing and offers to surrender the property purchased, and have an account taken of rents and profits, improvements and advancements; offers to place all of the property in the hands of a receiver to be managed and controlled for the benefit of all parties until the final decision of the cause upon such equitable terms as the court may direct; offers to account for the full value of the one-half of the ferry privileges for the time the same was in his possession, and for all rents and profits to be set off against the ten thousand dollars paid in advance on his purchase, which he alleges was paid over to the creditors of Elijah Cheek; that as to the improvements made by him on the property, he is willing to leave the matter to be settled in a proceeding for partition at a proper time, with a prayer for appropriate relief under the case thus made.
The court restrained the sale of the property by the trustee, and appointed James Gf. Berry, receiver, who entered into bond and took the required oath to faithfully discharge his duties as such. Subsequently, Berry reported that, under the power given him by the court, he had sold the steamboat, received part of the money, and taken notes on time for the payment of the balance, together with some other'receipts and expenditures; which report was filed. Upon the filing of the answers of several of the defendants, the court, upon motion of defendants, dissolved the injunction, appointed a receiver to take charge of and sell the property, and that the complainants’ bill be dismissed, from which an appeal was taken to this court.
Under this state of case, and in view of its further disposition, we order and direct that the case be remanded to the court below with instructions to have the defendants who were not served with process, and who did not appear, brought before the court with day to answer and defend. That a receiver be appointed, who shall enter into a sufficient bond for the faithful discharge of his duties as such, shall receive and take into his possession the property and ferry privileges which belonged to the estate of Elijah Cheek, which have been the subject of litigation in this case, and of the rents and profits that have arisen therefrom, since the time complainant was let into possession under his purchase. That a full account of the rents and profits of the lands and of the value of the permanent improvements and ferry privileges be taken, and of the amount for which the steamboat was sold by Berry, the receiver, which was the individual property of complainant, and also of the ten thousand dollars, and that ■complainant Waggener have credit for the same; and if it shall be made to appear, as alleged, that said ten thousand dollars, or any part of it, have been applied to the payment of the creditors of said Elijah, that to the extent of such payment complainant be subrogated to all the rights of such ■creditors, but such subrogation shall only be made to the rights of such creditors, whose claims have been or shall be probated, allowed and classed by and before the proper court, and that in making up an account against the complainants of the rents and profits of the ferry privileges,'he be credited by one-half thereof, the proceeds of the half interest owned by him in the same, and in all other respects according to equity and the practice of the courts not inconsistent with the decision and orders of this court. | [
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English, C. J.
At the October term, 1867* of the probate court of Washington county, Jacob Yoes, administrator de bonis non of Jacob Mullins, deceased, presented for allowance and classification, a claim against the estate of Tandy K. Kidd, deceased. Moore & Kidd, the administrators of said estate, to whom notice had been given, appeared and filed a number of pleas contesting the claim. Issues were finally made up, and at the July term, 1869, submitted to a jury, and there was a verdict for the defendants. The plaintiff filed a motion for a new trial, which was overruled* and he prayed an appeal to the supreme court, which was granted. Then follows a judgment that defendants go hence, and recover costs ’of plaintiff.
The transcript was filed in this court in 1870, the day and month not appearing in the indorsement of the clerk.
At the December term, 1870, the counsel for appellees made a motion to dismiss the cause for want of jurisdiction, etc., which motion seems never to have been disposed of.
It may, perhaps, be unfortunate for appellant that the cause has been permitted to sleep here for four years without a decision on the motion to dismiss. But we must dispose of the case as we find it.
Passing over the objection in the motion to dismiss, that the transcript was filed out of time, we will proceed to consider whether an appeal would lie directly from the probate court to this court, passing over the circuit court.
Before the adoption of the constitution of 1868, there was no provision for a writ of error from this court to any of the courts inferior in grade to the circuit court, nor was there any provision for an appeal from such inferior courts directly to this court. See the remarks of Mr. Justice Dickinson in Frail ex parte, 3 Ark., 561, on our judicial system, grades of courts, etc.
Appeals were allowed from any final order, judgment or decree of the probate court to the circuit court. Gould’s Dig., ch. 4, sec. 197, etc. So, the circuit court had appellate jurisdiction over orders and judgments of the county court. Id., ch. 49, sec. 15, etc.- Appeals allowed from the circuit to the supreme court, and writs of error went from the latter to the former.
The appellate jurisdiction of this court was coextensive with the state, under such restrictions and regulations as were prescribed by law. But judgments of justices of the peace, corporation, probate and county courts were reviewed by the circuit courts, on appeals, before they came before the supreme court for final review.
The follovnng were the provisions of the constitution of 1868, bearing on the question before us.
“ The supreme court shall have general supervision and control over all inferior courts of law and equity. * * Final judgments in the inferior courts may be brought by writ of error, or by appeal, into the supreme court in such manner as may be prescribed by law.” Art. VIL, sec. 4.
“ The inferior courts of the state, as now constituted by law, except as hereinafter provided, shall remain with the same jurisdiction as they now possess: provided, that the general assembly may provide for the establishment of such inferior courts, changes of jurisdiction, or abolition of existing inferior courts, as may be deemed requisite.” Id., sec. 5.
“ All appeals from inferior courts shall be taken in such manner and to such courts as may be provided by law. Appeals may be taken from justices of the peace to such courts and in such manner as may be prescribed by law.” Id., sec. 15.
All this is plain enough, and under these provisions of the constitution of 1868, no lawyer familiar with our system of courts would have thought of taking an appeal directly from the probate to the supreme court in the absence of legislation especially warranting it.
But after the adoption of the constitution of 1868, a code of pleading and practice was prepared by a commission of lawyers not very familiar with our judicial system, and adopted by a legislature less familiar with it. The code of Kentucky, with modifications intended to adapt it to our judicial system, was adopted. Under this code, as originally adopted, there was confusion and uncertainty as to the appellate jurisdiction of the circuit and supreme courts.
Section 15 of the civil code provides that: “ The supreme court shall have appellate jurisdiction over the final orders, and judgments of all other courts of the state, subject to the exception in the next section.”
This is section 15 of the Kentucky Code, with the substitution of the words “ supreme court ” for “ court of appeals,” and “state ” for commonwealth.
The next section of our Code is as follows: “ Sec. 16. Where the action or proceeding is for the recovery of money or personal property, and the matter in controversy does not exceed fifty dollars in value, or, in behalf of the defendant, where the judgment of the inferior court is against him for money or personal property, not exceeding in value fifty dollars, unless reduced below that amount by a setoff or counterclaim, or where the judgment grants a divorce, or where the judgment or order is by the county court, police court, or city, or mayor’s court, or justice’s court, and an appeal is given to the circuit court, the supreme court shall have no appellate jurisdiction.”
This is section 16 of the Kentucky Code, with the substitution of “fifty dollars” for “one hundred dollars,” in the two lines where they occur, and the omission of quarterly courts.
The makers of our Code, in framing this section, seem to have understood that we had no quarterly courts, as Kentucky had, and hence omitted them, but they failed to bear in mind that the county courts of Kentucky had probate jurisdiction, and that we had separate probate courts.
Taking sections fifteen and sixteen of our Code, as above framed, together, and treating them as the only law pn the subject, appeals would lie from all final orders and judgments of the probate court directly to the supreme court.
But section 19 of the Code is as follows: “Circuit courts shall have appellate jurisdiction of the judgments and final orders of probate and county courts on the probate of wills ; the granting or revoking of letters testamentary and of administration ; the appointment and removal of guardians; the settlement of accounts of fiduciaries; the division or partition of land ; the allotment of dower, and the establishment, alteration or discontinuance of ferries, mills and dams, roads and pass ways, and of judgments of justices of the peace,” etc.
This is the same as section 20 of the Kentucky Code, with the omission of so much as relates to quarterly courts, and the insertion of probate courts. And our Code makers, by inserting the words “probate and” before the words “county courts,” have confused the jurisdictions of the probate courts and the county courts.
The county courts of Kentucky having probate jurisdiction, the words probate courts do not occur in section 16 or 20 of the Kentucky Code, and the sections are in harmony, but the omission of probate courts in section 16 of our Code, and their insertion in section 19 left the two sections in confusion and conflict.
But dissecting section 19, and separating the subjects of the jurisdiction of the probate courts from the subjects of the juris diction of the county courts, and the circuit courts had appel - late jurisdiction of the judgments and final orders of the probate courts in the following matters:
1. The granting or revoking of letters testamentary and of administration.
2. The appointment and removal of guardians.
3. The settlement of accounts of fiduciaries.
4. The division or partition of lands.
5. The allotment of dower.
And the circuit courts had appellate jurisdiction of the judgments and final orders of county courts in the following matters:
The establishment, alteration or discontinuance of ferries, mills and dams, roads and pass ways.
Taking sections 15, 16 and 19 of the Code to be the only law in force regulating appeals from judgments and orders of the probate and county courts, the singular result would follow, that in the matters above specified, the appeals would have to be taken to the circuit courts, and in other matters, not specified, the appeals would have to be taken directly to-the supreme court, producing a want of harmony in our judicial system, which it may be supposed the framers of the Code did not intend. x
Section 19 gives the circuit courts no appellate jurisdiction over judgments and orders of the probate courts in the allowance or rejection of claims against estates of deceased persons ; nor does it give the circuit courts appellate jurisdiction over judgments and orders of the county courts in the allowance or rejection of claims against counties, and in some other matters of which the county courts have jurisdiction.
After the adoption of the Code, Mrs. Tilghman obtained the allowance of a contested claim against the county of Chicot, in the county court of that county, and there was an appeal, on behalf of the county, directly to this court. This court decided that section 15 of chapter 49, Gould’s Digest, allowing appeals from the county courts to the circuit courts, in such cases, was still in force, and struck the cause from the docket of this court for want of jurisdiction. Chicot County v. Tilghman’s Executrix., 26 Ark., 461.
In the case now before us, there was a judgment of the probate court against the allowance of a claim against an estate, and the claimant appealed directly to this court. This case is analogous, on principle, to the case above cited. The Code did not provide for an appeal from the probate court to the circuit court in such cases, but the Code did not contain all the law in force on the subject of appeals at the time of its adoption. The omissions of the Code were supplied by provisions of Gould’s Digest, which we have above referred to.
The case must be dismissed for want of jurisdiction. | [
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OPINION OP
THE COURT.
At the last term of this court, a trial was had between the parties to this action, and a judgment rendered in favor of the defendant for 1,377 dollars and 60 cents damages and costs. A motion was afterwards made by the plaintiffs for a new trial, which was not then acted on by the court, but was continued over to the present term, and the only question now is, whether a new trial ought to be granted. The defendant interposed several pleas in bar of the action, and among them the plea of set-off. To this the plaintiffs demurred, but the court overruled the demurrer. The plaintiffs then asked leave to reply, but the court (Judges Selden and Scott) being divided in opinion, leave to reply was refused, and judgment rendered against the plaintiffs on their demurrer to the plea of set-off. That the court erred in refusing leave to reply to the plea of set-off, cannot be seriously denied. In England, for the last twen ty years, this practice has prevailed, and in the United States, we hazard nothing in saying that nine tenths of the courts are governed by the same practice. The old rigid rules which the court in this instance enforced, have long since given way to more enlightened and liberal principles. To quote authority on such a question we deem unnecessary. Every day practice and the repeated decisions of this court prove beyond controversy, that this is now the. settled doctrine of the law. If, then, the court erred on this point, is it a good ground for a new trial? We are of opinion that it is. The errors of a judge in matters of law, as well as the errors of a jury in matters of fact, alike constitute valid grounds for a new trial. This position we think cannot be controverted, for in motions for new trials both grounds are generally relied on, and indeed nothing is more common than for an appellate court to award a new trial for a mistake or misdirection of the judge on a point of law. Now it cannot be denied, that the court below possesses the same powers to do everything while the cause is before it, that the appellate tribunal would have to require to be done. It is true, that after the term has passed, a court has no power over its own judgments, except to correct clerical mistakes, unless those judgments are kept open or suspended by a motion in arrest of judgment, a petition for a rehearing or reargument, a motion for a new trial, or some like motion, which leave the record open and in the power of a succeeding court New trial granted. | [
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OPINION OE
THE COURT.
This is an action brought by Johnson against Reece, for taking and carrying away a negro woman slave. Johnson, on the trial, proved possession in himself, and the taking by Reece; and he further proved that the negro had been in the possession of John Dukes, now deceased, and that Dukes devised the negro to his wife and infant son Isham, and that he was the legal guardian of Isham Dukes; and that before the commencement of this suit he had intermarried with the widow of John Dukes.
To the evidence, so far as it related to the title of Johnson, the defendant objected; but his objection was overruled. We cannot see the ground upon which the objection was based. The plaintiff in the court below might safely have rested his case on the proof of actual possession, and the taking and carrying away by the defendant Reece; but it was not improper, illegal, or irrelevant to go further and show his title to the property, and it was merely unnecessary trouble. We think the court .decided correctly in overruling the objection to the evidence.
The defendant relied upon two grounds of defence: First, he denied the taking by the general issue; and, secondly, he justified the rightful owner of the property. In his plea of justification he averred that the slave in contest was the property of the estate of Isham Dukes, deceased, and that he, Reece, is the legal administrator of the estate, and, as such, was entitled to take the property.
On the trial before the jury, the defendant in the court below offered as a witness Joseph Robbins, who was rejected by the court, on the motion of the plaintiff, on the ground of interest. It appeared in evidence that the witness had intermarried with the widow of Isham Dukes, deceased. The interest of the witness in the event of the cause appears to us to be direct and positive, not remote, contingent, or uncertain. If the defence set up by Reece had been sustained by proof, the slave in contest was a part of the estate of Isham Dukes, deceased, and in that event the wife of the witness was entitled to dower in the negro woman. We think, therefore, the witness was properly excluded, and not permitted to give evidence. This case does not come within any of the exceptions to the general rule, that interest in the event of a cause disqualifies a witness. We are also clearly satisfied that the verdict rendered in this case is responsive to both the issues which the jury were sworn to try. Judgment affirmed. | [
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Williams, Sp. J.
The appellee brought suit in the Crawford circuit court against appellant, and Archibald P. Scarlett and William L. Taylor, on 81st day of August, 1871, for unlawfully taking from the possession of appellee and carrying away a large quantity of goods, wares and merchandise, etc. The second paragraph of the complaint sets up, specially, the fact that plaintiff below was a merchant at Port Smith, and had a general assortment of goods, worth “ eight thousand dollars,” with which he was carrying on his business. That on the 26th day of March, 1870, defendants, Scarlett, Taylor and Walker, caused to be placed in the hands of the sheriff of Sebastian county, a writ of execution, which was wrongfully and unlawfully issued by Taylor, as clerk of Crawford county, upon a judgment rendered in favor of Scarlett, as administrator of Anderson Caldwell, for $4,200 and interest and costs; which judgment had been before that time superseded by the “ order ” and “ mandate ” of the district court of the United States for the western district of Arkansas, which order of supersedeas was then and still is in force. All of which defendants below had notice. That Walker and Scarlett directed the sheriff to make levy of said execution upon all the goods, etc., aforesaid, belonging to the plaintiff, and make sale thereof; and, in obedience to such instructions, the sheriff did seize and take into possession all .the goods, wares and merchandise belonging to plaintiff, and did make sale of a large quantity of the same, amounting in value to four thousand “fifty-six” hundred dollars, which sale was made ac a great sacrifice, and after the sale Walker received the proceeds or a portion thereof to his own use and benefit. The defendants below, Walker and Taylor, who were served with process, filed their answer on the 11th day of December, 1870. This answer contains three paragraphs. In the first they set up: That on the 18th day of May, 1870, plaintiff below filed his petition in the district court-of the United States for the western district of Arkansas, before the judge thereof, then in open court judicially sitting and presiding, stating and alleging in his said petition, the same acts, trespasses and grievances in the second paragraph of his said complaint, stated- and pleaded, and praying for an attachment against the said defendants for their contempt of that court in suing out the same execution in said complaint mentioned, to which said petition said defendant, William Walker, voluntarily entered his appearance, and afterwards, to wit, on the 19th day of the month and year last aforesaid, filed his response thereto; and such proceedings were thereupon had, that afterwards, to wit, on the 5th day of June, 1871, and during the May term of that year of said United States district court, an order was made by said court against said William Walker and entered of record, whereby after reciting, among other matters and things, the suing out of the same execution in the second paragraph of said plaintiff’s said complaint mentioned and complained of, and the proceedings thereunder substantially as set forth in said complaint; it, was among other things'ordered by the United States district court, that the said William Walker pay to the clerk of that court, on or before the 1st day of July, 1871, the said sum of nine hundred and seventy-six dollars, to be held subject to the further order of that court; and that since the making of said order the said William Walker has paid the said sum of nine hundred and seventy-six dollars to the clerk of said court, and the same has since been paid to said plaintiff. And the said defendants, Taylor and Walker, further say that the cause of action in the first and second paragraphs of said plaintiff’s complaint, set forth and pleaded, are one and the same, and not separate causes of action, and so the defendants, Taylor and Walker, do say that the said summary proceedings by attachment for contempt, so instituted and prosecuted by the said plaintiff against them in the said district court of the United States, were and are for the redress of the same supposed wrongs, trespasses, injuries and grievances in said plaintiff's complaint complained of, and none other, etc.
The second paragraph of the answer was a general denial, not guilty.
The third paragraph of the answer avers that the sale of the goods of which plaintiff below complained, was done by the sheriff under the express license and permission of plaintiff below.
Taylor also filed a separate answer, but as he was ultimately discharged by a verdict in his favor, we need not refer to it. Scarlett was not served with process and seems to have been dropped from the case, sub silenlio.
Appellee demurred generally to the first and third paragraphs of the joint answer.
The court below sustained the demurrer as to the first paragraph of joint answer, and overruled it as to the third paragraph.
Walker excepted to this ruling of the court in sustaining the demurrer, and assigns it here as one of the errors committed by the court below. Plaintiff below amended his complaint, by striking out four thousand and inserting fifty-six hundred, which amendment must have been made by interlineation, without erasure, for in copying the complaint the clerk has given us in the complaint both sums as above copied.
On motion of defendants below, plaintiffs below elected to rely on his second paragraph, and the first was stricken out by the court.
The defendants below moved the court to require the plaintiff below to make his complaint more definite; which motion the court overruled and Walker excepted. We shall not further notice this point than to say, that a defendant is entitled, under the general and indefinite system of pleading allowed by our code, to a bill of particulars, which will fully inform him what he has to answer, and such as will give him record protection from future harassment for the same subject matter, if the complaint is not sufficiently explicit otherwise. In this case we see nothing in the exception. The plaintiff below could not have been properly required to file an invoice of his entire stock upon which the trespass was committed.
The issues thus formed upon the 2d paragraph of the complaint, and the 2d and 3d paragraphs of the joint answer, and upon Taylor.’s separate answer; the case was tried by a jury, which rendered a verdict against appellant, Walker by name, for six thousand four hundred and ninety-six dollars. The verdict further found, “ as to defendant, we do find him not guilty;” referring of course to Taylor, as Scarlett seems to have been dropped from the case.
The jury also found specially as follows: “ Whether or not the sale of the goods, wares, and merchandise in plaintiff’s complaint alleged, and the receipt of the proceeds thereof by defendant Walker, was by the leave of the plaintiff, answer no.” Taking this entire proposition with its two distinct propositions, 1st, the sale of the goods, and 2d, the payment to Walker, and we could not, in view of the testimony, comprehend how the jury were able to return a general negative, if we shut our eyes to the fact that they were misled by the court, which, through the entire case, seems to have misapprehended the law governing it. This is manifest in the ad mission of illegal testimony; in the language of appellee’s instructions, which were given and more strikingly manifest, in some of the instructions asked by appellant, and refused. The consent of Euller was certainly given verbally and in writing, to the sale of his own goods in the ordinary way, which he himself superintended.
The ?d, 3d and 4th special findings of the jury had reference to Taylor.
5th. Whether or not plaintiff received back the amount of the proceeds of the goods, wares and merchandise, alleged to have been received by said Walker, or any part thereof, and if any, how much.
The plaintiff did receive back one thousand two hundred and nine dollars of the proceeds of said sale of the goods, wares and merchandise, alleged to have been received by said Walker. Judgment was rendered against Walker for the full amount of the verdict. After judgment, plaintiff below filed a paper, which is called a remittitur in the record, which remits the sumyjf twenty-one hundred and thirty-three dollars of the judgment. After plaintiff below, by instruction of the court, given at his instance and refused to defendant, and by illegal evidence, had caused the jury to be misled as to the measure of damages, and the rule by which they were to be assessed, claiming the full value of the goods, with loss on sales of same, and loss on plaintiff’s credit, and similar standards of measurement, it was a late attempt at reparation, to enter a remittiturafter judgment. He would have done well to have also remitted the speculative value of the goods. Then we would not have presented to us the singular spectacle of a judgment for six thousand four hundred and ninety-six dollars, for taking and holding possession of a stock of goods worth eight thousand dollars, as claimed in the complaint, a part of which was sold off by appellee and the sheriff, bringing him four. thousand dollars, every dollar of which, except one thousand two hundred and nine dollars, paid Walker, he got; and of the one thousand two hundred and nine dollars paid Walker, he returned two hundred and thirty-three dollars, voluntarily, and the balance, nine hundred and seventy-six dollars, was paid by coercion, under the order of the United States court. All the unsold goods were returned, which taking the above valuation and Fuller’s statement, that he sold fifty-six hundred dollars worth of goods to get the four thousand dollars, would be two thousand four hundred dollars. We thus-find, with the verdict added, the account stands thus :
To value of stock of goods as stated iu the complaint, $8,000 00
To remittitur, ...... 2,133 00
$10,133 00
Contra.
By cash, ...... $4,000 00
“ verdict, ...... 6,496 00
“ value of goods returned, - - - 2,400 00
$12,896 00
We thus have two thousand seven hundred and sixty-three dollars, excess of actual damages.
Taking appellee’s complaint as the standard of the value, and seven hundred and sixty-three dollars above the highest estimate he makes in his testimony, to say nothing of the one thousand six hundred dollars difference between the estimated value at retail, and the actual price received for the goods sold, for which loss Walker was not responsible, if appellee had remitted all the money he received back and this excess in the measure of damages, we would have our field of inquiry narrowed, and appellant would have had less cause to complain of excessive damage. Both parties acted under a mis take, and there is nothing in this case which warrants severe punitive damages.
The proper practice would have been to have entered a remittitur upon the record for so much of the amount found by the verdict, and let judgment be rendered for the balance.
Walker moved the court to enter judgment in his favor upon the special finding of the jury. The court overruled this motion correctly. The mere return of goods by a trespasser and the acceptance of them by the.injured party will not of itself bar an action for the taking.
Walker moved for a new trial and set out as grounds for the motion:
1st. Because the damages assessed are excessive.
2d. Because there was error in the assessment of the amount of recovery.
3d. The verdict and special findings are not sustained by sufficient evidence and are contrary to law.
4th. The court erred in giving instructions of plaintiff below.
5th. The court erred in refusing to give defendant’s instructions.
6th. The court erred in permitting illegal evidence to go to the jury.
7th. The court erred in excluding evidence offered by deiendant.
The court below overruled this motion, and appellant excepted, and prepared his bill of exceptions, in which are set out all the testimony given or offered by either party, the instruc tions of the court, etc.
By the bill of exceptions, the facts of the case, which are undisputed, are about as follows:
That Scarlett had recovered a judgment against Fuller in the circuit court of Crawford county. That after judgment, the district court of the United States for the Western district of Arkansas had taken jurisdiction of the cause, and as the complaint states, by its mandate and order, the case had been transferred there, where it had been disposed of favorably to-Fuller, leaving nothing apparent upon the records of Crawford county, to show this action. That Scarlett had taken the case to the supreme court of the United States. Walker, who had been Scarlett’s attorney, and was cognizant of the whole matter, saw in a newspaper a report of the proceedings of the supreme court of the United States, in which the case was then pending, to the effect, that that court had decided that the district court had no jurisdiction or authority to remove a cause after judgment.
That Walker, supposing this to be conclusive of the case in the Federal courts, which was the only obstacle to the execution of the judgment in favor of Scarlett, in the Crawford circuit court, proceeded to order from the office of said clerk a writ of execution, and placed it in the hands of the sheriff of Sebastian county, where Fuller lived. That Baer, the deputy sheriff, came to Fuller’s store with this execution, about the 28th day of March, 1870, and presented it.
Fuller went for his attorney; while he was gone for his attorney, who lived in the same town, Baer levied on his stock and closed the store. Fuller states that the stock was worth between eight and ten thousand dollars.
The store was kept closed one or two days; within that time an arrangement had been made with Walker, by Fuller and his attorney, to the effect that Fuller was to go on with his business, and pay over the proceeds of the sale to Baer, who was to remain in the store and assist in selling the goods at Fuller’s expense, and with that understanding, which was reduced to writing, Fuller and Baer opened the store and proceeded to sell the goods, at and below prime cost, which re duetion was made by Fuller voluntarily and without coercion, or duress, other than his anxiety to get rid of the execution, which both he and his attorney, as well as Walker, thought to be valid and legal. The money received for the sale was deposited in the First National Bank, at Fort Smith, every evening, to the credit of Walker. Fuller testifies, that when said Walker came to Fuller’s store, to prepare the agreement, he asked him how he ascertained that the judgment mentioned in the complaint had been reversed, and that Walker replied, that he had seen a telegraphic dispatch to that effect, that the act of congress of 1868, providing for the removal of causes from the state to the Federal courts after judgment, was unconstitutional and void. That Fuller then asked him, if that was all the information he had in reference to the case; and he replied, no, that he had received a telegram from Garland, the attorney who represented him, Walker, in the supreme court, to the effect, that said judgment had been reversed. This latter statement Walker denies. He states that he saw a newspaper report of the decision of the question, which he still contends was true. But by some means afterwards, in the particular case, the supreme court dismissed Scarlett’s appeal. Fuller states that all the way through, he relied on Walker’s statements, and believed them, an$ the evidence shows pretty plainly that Walked believed his own statements, and so did Fishback, Fuller’s attorney. But if false, there was no relation of confidence between Fuller and Walker ; no such knowledge on the one hand, and ignorance on the other, as to make out a case of fraud, or duress, so as to aggravate what was at best a trespass, for the direct and immediate consequence of which Walker was unquestionably liable. The proof further shows, that at the end of two or three weeks, during which Fuller and Baer had been engaged in selling the goods, when Fuller learned that Walker was mistaken, and Baer then went to Scott county, where Walker was attending court, to see him, and on his return, the store was relieved from the execution, and the goods remaining unsold were restored to Puller. That during the time intervening between the seizure and release, Fuller states that about four thousand dollars of the goods were sold at prime cost and below; of which, about two thousand and seventy-nine dollars had been paid over to Baer, to be deposited in bank; that when Baer released the store and goods, he returned all the funds in his hands, and all that had been collected, or taken from him, except one thousand two hundred and nine dollars, which the proof shows Walker had received. That Walker returned two hundred and thirty-three dollars of this sum, and was compelled by order of the United States court to pay over the balance of nine hundred and seventy-six dollars, which Fuller states he received from the clerk of the United States court. That he had paid Baer for his services while assisting him in selling the goods. Thus, all the actual damages which defendant sustained, which were the natural and legitimate fruits of the trespass, except Baer’s wages, were returned, or coerced from Walker by process. Fuller stated, further, against the objection of Walker, that he was doing a profitable business, and was in good credit at the time of the levy, and that in consequence of said levy, he was forced to close his store and retire from business, and that he lost his credit. This loose, general and indefinite statement, the court permitted to go to the jury, against the objection of Walker, to which ruling he excepted, and we think the exception well taken.
For, even conceding, which we by no means do, that loss of credit and being forced to close business were the natural and immediate consequences of Walker’s trespass, and not too remote and dependent upon other causes, in whole or in part, the witness should not have been allowed to usurp the province of the jury, and broadly assert conclusions instead of facts.
That he did close business was a fact, that he lost credit may or may not have been a fact; it needed specifications as to persons, time, and place. That he was doing business before the levy was a fact, etc. But to allow the witness to say that in consequence of any one fact or a combination of them, certain results transpired, is to allow him to usurp the province of the jury — in this instance, a vital and damaging point, to defendant Walker. Juries at best are too apt to accept ready-made conclusions, rather than take the pains to criticise facts and draw their own. Fuller further testified, against Walker’s objection, that the goods sold under the agreement to satisfy the execution were worth $5,600, that he could have realized that amount out of them, if he had not been interrupted in his business. The objection to this testimony was well taken; the true test of value in this case was, what plaintiff below voluntarily sold his goods for, for Walker was not responsible for what he chose to do. The consequence is too remote. There' is no evidence of duress or fraud; the price at which the goods were sold was set by Fuller, and, except that Baer assisted him in selling at his expense and under his direction, there is nothing in the case to connect Walker with this loss, much less make him responsible for it. But the court should have excluded it as evidence, not on that ground alone, but on the ground that plaintiff had no rights, under the law, to estimate vague, uncertain and speculative prices, and take this as a standard of the measure of damage, which, from their verdict the jury evidently did. Sedg. on Meas. of Dam., 82, 83, 84. Anthony v. Slaid, 11 Met. (Mass.), 290; Eames v. New England Worsted Co., id., 570; Donnell v. Jones, 13 Ala., 490. The last case is in point with this. Burrows v. Wright, 1 East, 298.
The evidence tends to prove that Fuller and Walker both acted in the matter under the impression that Fuller had the judgment to pay because the case had been decided against the latter in the supreme court of the United States.
There was also testimony tending to prove that Fuller was in failing circumstances, at the time the levy was made.
Appellee asked seven instructions. The court gave all but the seventh, which was refused. The instructions of appellee, which were given against the objections of appellant, are as follows.
1. The plaintiff moves the court to instruct the jury, that if they believe from all the testimony in this case that the defen dent, Walker, caused the execution in the complaint mentioned to be issued and levied upon the goods, wares, and merchandise of the plaintiff, thereby causing his house of business to be closed illegally, then they will find for plaintiff.
2. That it is admitted by the answer of the defendant that the judgment of this court in the case of Scarlett, Adm'r of Caldwell, v. Fuller, had been superseded and removed from this court, to the district court of the United States, for the western district of Arkansas, and that a judgment of nonsuit against said Scarlett had been therein rendered, from which an appeal had been taken to the supreme court of the United States, the case was pending and undetermined on the 28th of March 1870, that no execution upon the judgment in this court could -lawfully be issued before the judgment of the district court of the United States for the western district of Arkansas, had been reversed by the supreme court, and its mandate returned and filed in the office of the clerk of said district court.
3. If the jury believe from the evidence that the execution was unlawfully issued by the defendants, or either of them, and the property of the plaintiff was, by virtue thereof, seized, and sold, they should find for the plaintiff, and assess his damages to the actual value of the goods at the time they were seized and sold, and with interest thereon, at the rate of six per cent, per annum, from date of said seizure until the present time.
4. If the jury believe from the evidence that the agreement executed by plaintiff, Fuller, Jacob Baer, and the defendant, Walker, was executed after the goods of the plaintiff had been seized and taken into possession by the Sheriff of Sebastian county, by virtue of an illegal execution, and that said agreement was executed under the belief induced by the misrepresentation of Walker, that said execution was legal and valid, then said instrument would not amount to a defense to the plaintiff’s complaint, and they should find for the plaintiff on that issue.
While it is true that this agreement was not a defense to the action, yet the instruction was misleading, and bore its natural fruit in the special finding, above commented on.
It took as a fact, that Walker misrepresented, and implied that he was directly responsible to Fuller for the misrepresentation. The proof shows no fact in Walker’s knowledge, that was not equally accessible to Fuller; nothing that justifies him in yielding his will captive to Walker’s story. Besides misrepresentation, if of importance, here was a conclusion to be drawn from facts, and was for the jury. In the form in which it was given, it tended to mislead the jury to infer that they could not regard the agreement as valid for any purpose, and that Walker .was responsible for the sacrifice Fuller made of his goods, because he had agreed to sell for Walker’s benefit under misrepresentation. If Walker or Baer had sold the goods under the execution or otherwise, this would have been true. But the price at which Fuller sold them was no part of the agreement. This paper did mitigate the damages by showing that Walker and Bear really made no sale or sacrifice of the goods at all, but that the sale and .the price was Fuller’s voluntary act; it is misleading in not taking the damages for speculative losses out of the estimate; and the 4th instruction should have been so qualified, although as applied to that part of defendant’s answer, which set up plaintiff’s license, the court below decided correctly, that this agreement was not a defense to the action; the language used was not sufficiently guarded, however, and was misleading. This agreement, whether induced by misrepresentation or not, was no defense for an illegal seizure of goods, if executed through mistake even of both parties, as to rights and liabilities. It would no more protect Walker, if he had said nothing, than it would with what it is proved he did say.
But in instructing the jury as to this issue, the court misled them as to another matter. The 3d instruction is misleading in the last clause, in which the court directs the jury to find the actual value of the goods, at the time of seizure.
This is good abstract law, but the jury should have been directed to credit the amount returned, and in view of the error of the court, in allowing Puller to state speculative value, and that the goods were sold at a sacrifice by him, this instruction was calculated to lead the jury to believe, and did so lead them, as we may infer from the exorbitant verdict, to allow plaintiff below his speculative losses by selling at cost. These damages were not the natural and proximate consequences as of Walker’s trespass, but required the contributing concurrence of Fuller’s will, and while we could not regard the written agreement made under mistake, on the one hand, to excuse Walker’s trespass, we cannot, on the other, let Fuller so far escape the consequences of his mistake as to aggravate his damage by the result of his own act; even though that act might have been superinduced by Walker’s misrepresentation, unless the loss was the direct consequence of it. Speculative future events are not admissible, as a rule, for measuring damagesj nor are remote, or indirect consequences, if not proximately caused by the- wrongful act. Sedg. on Meas. of Dam., 82, 83, 84. Anthony v. Slaid, 11 Met. (Mass.), 290. Eames v. New England Worsted Co., id., 570; Donnell v. Jones, 13 Ala., 490. The last cited case was much like this; it was an action for malicious prosecution, whereby plaintiff was compelled to make an assignment, in which plaintiff claimed damages for loss sustained in selling goods on the assignment. It was held to be too remote. So here— in consequence of Walker’s illegal act, plaintiff concluded to sell at a sacrifice to raise the money quickly which he thought due. It was not the natural and proximate result of Walker’s act, although induced by it. The loss, if any, must be Euller’s, not Walker’s. Therefore, in the form in which it was given, this instruction aggravated the error of admitting this illegal testimony, and we cannot be much surprised that in a case which does not seem to call for vindictive damages, after the plaintiff below had received back his goods, which remained unsold, and the proceeds of all that were sold, this jury render a verdict for six thousand four hundred and ninety six dollars, on a stock which plaintiff claimed in his complaint to be worth but eight thousand dollars, an exeessiveness which at once shocks our sense of justice, and one which the remittitur does not wholly remedy.
The defen dent below, Walker, asked several instructions which were refused.
. 1. That if they believe from the evidence that the instrument of writing, bearing date 2d of April 1870, purporting to-have been executed by plaintiff, defendant William Walker, and Baer, deputy sheriff, produced and read in evidence by defendants, relates to the subject matter of the complaint, they'should find for defendants. This instruction was correctly refused.
3. That if they find from the evidence that plaintiff received directly or indirectly, all the money in his complaint alleged to have been received by defendant Walker, he is not entitled to again recover the same.
This ought to have been given, for while the receipt back of the goods alone would not bar plaintiff’s action, he was not entitled to recover their value after receiving them. The fact should have gone in mitigation of damages, and the jury-should have been so instructed.
• For the same reason, the 4th instruction asked by defendant should have been given. It is as follows: That if the jury should find for plaintiff, they should not take into account the proceeds of the goods alleged in the complaint to have been received by defendant, Walker, if they find that plaintiff ■received the same back before the commencement of this suit. The defendant’s 2nd and 5th instructions were given, and as to them no question is made. The court, below erred in admitting testimony on the part of plaintiff against appellant’s exception.
It erred in giving and refusing instructions, as above indicated, and the damages are excessive.
And for these reasons, which are duly set forth in the motion for new trial, the same should have been granted.
We might content ourselves to rest the case here. But there is one question more, which we think should be settled now : that is, whether the first paragraph of the answer is, on its face, a sufficient defense. The legal proposition presented- is old and familiar; but the practical application of it to the facts set up in the answer, and to be determined whether indeed these facts present a case of former recovery, have been matters of no small difficulty. The novelty of the form ■ of presentation, andjthe dearth of authority directly upon the question, have®caused us to deliberate with caution,- and we announce our conclusions now, with some hesitancy, notwithstanding we feel confident of their correctness. Says Bacon, u The law abhors multiplicity of actions; and therefore, whenever it appears on record that plaintiff has sued out two writs against the same defendant for the same thing, the second writ shall abate; for if it were allowed that a man should be twice arrested, or twice attached by his goods for the same thing, by the same reason he might suffer in infinitum." Bac. Abr., tit. Abatement, letter 112, vol. I., p. 28. And further on, he says: “ The law is so watchful against all vexatious suits, that it will neither suffer two actions of the same nature for the same demand, nor even two actions of a different nature.” See same title and letter, vol. I., p. 29.
Where the cause of action is the same, a former suit, though on an inadequate one, is a bar to a second recovery. Pinny v. Barnes, 17 Cow., 420. An action of replevin, in which the value of property was recovered and paid, is a bar to an action for the taking. 21 Barb. S. C., 541. A statute of Alabama provided for a summary remedy against a sheriff to be made on the first day of the term, at which an execution was returnable, upon his failure to make the money which, by due diligence, might have been made. Held, that a judgment for the sheriff, in such proceedings, was a good defense to a suit on the sheriff’s bond, charging him with a breach of duty in the same case; that he had omitted to levy upon goods of defendant in the execution, and with neglecting to sell them after a levy. Chapman v. Smith, 16 How. (U. S.), 114.
As to conclusiveness where less has been recovered in the former proceedings than the plaintiff could recover in the subsequent suit. See Tams v. Richards, 26 Penn. St., (2 Casey), 97. Judgment in a trial of the rights of property will bar an action for damages for the taking. Roberts v. Heim, 27 Ala., 678. So of judgments in trespass, and assump sit, where a party has his election, a recovery in the first brought will bar the second. Rice v. King, 7 Johns., 20. So of case and trespass. Johnson v. Smith, 8 Johns., 383. So of trover and assumpsit. Kitchen v. Campbell, 3 Wils., 304. See also Smith v. Whiting 11 Mass., 445. White v. Philbrick, 5 Greenl., 147. Mash v. Pain, 4 Rowl., 273. Robertson v. Smith, 18 Johns., 459. Elliot v. Porter, 5 Dana, 299. Hyde v. Noble, 13 N. H., 494. Whitney v. Clarendon 18 Vt. (3 Washb.), 252.
In the case of Kendall v. Stokes and others, 3 How. (U. S.), 87, Stokes and others sued Kendall for damage in withholding as. postmaster-general, moneys due plaintiffs as mail contractors, in which plaintiffs claimed that in consequence of this, they had been compelled to pay large sums in discount and interest in order to carry on their business. The proof showed that by act of congress, plaintiffs’ claim had been referred to the solicitor of the treasury, who awarded the plaintiff a given sum, which Kendall was required to pay by mandamus.
The supreme court of the United States, in that case, decided that, after the award by the solicitor, to whose jurisdiction Stokes had submitted, and the receipt of the money, ah action for the original cause could not be maintained, upon the ground that the claimant did not claim, or prove before the referee all the damages he had sustained, and that after having-applied for a mandamus, and got relief by that proceeding, he could not maintain a suit in case for damages. Judge Taney, in delivering the opinion of the court, says: “ The action of mandamus was brought to recover it (i. e., the money due for services as contractors), and the plaintiffs show by their evidence that they did recover it in the suit. The gist of the action in that case was the breach of duty in not entering the credit, and it was assigned by the plaintiffs as their cause of action. The cause of action in the present case is the same and the breach here assigned as well as in the former case, is the refusal of the defendants to enter this credit; ” and after proceeding to show the identity of the cause in both cases, he says: “ That where a party has a choice of remedies for a wrong done to him, and he elects one and proceeds to judgment, and obtains the fruit of this judgment, can he in any case afterwards proceed in another suit for the same cause of action ?
“ It is true that in the suit by mandamus, the plaintiffs could recover nothing beyond the amount awarded. But they knew that, when they elected the remedy. If the goods of a party are forcibly taken away under circumstances of violence, he may bring trespass, and in that form of action recover not only the value of the property, but also what are called vindictive damages, that is, such damages as the jury think proper to give, to punish the wrongdoer. But if instead of an action of trespass, he elects to bring trover, where he can recover only the value of the property, it never has been supposed that, after having prosecuted the suit to judgment, and received the damages awarded him, he can then bring trespass upon the ground that he could not, in the action of trover, give evidence of the circumstances of aggravation, which entitle him to demand vindictive damages. The same principle is involved here.
“ The plaintiffs show that they have sued for and recovered in the mandamus suit the full amount of the award, and having recovered the debt, they now bring another suit upon the same cause of action, because, in the former one, they could not recover damages for the retention of the money.”
This case is strongly in point. If a mandamus is disobeyed, the remedy is by attachment for contempt; in this plea under consideration we have practically a mandamus executed by process of attachment, a coercive proceeding, quasi criminal, yet civil in form and results, set in motion at the instance of Fuller, as a means of private redress which was effective. "We will presume that the United States court had jurisdiction, a,nd acted rightly within its power for the purposes of thisquestion. Beverly v. Stephens, 17 Ala., 701. And unless the want of jurisdiction was so apparent as to render the proceeding void on its face, we could not disregard its action. Baxter v. Brooks, ante, p. 173. Especially when it has been invoked by the party against whom the proceeding is pleaded.
The first paragraph of the answer avers the identity of the subject matter in the United States court with the subject matter of this case; the demurrer admits the fact. If the subject matter in both cases is the same, and the parties substantially the same, as is also averred and admitted, the plea is certainly good. • Recovery from one joint trespasser is a bar to a suit against another; so it can make no difference that Taylor and Scarlett were not parties to the proceedings in the United States court. As to Walker, at least, the plea is good unless from the nature of the proceedings in the United States court, as set up in the answer, we are bound to regard it as purely criminal and punitive and in no manner remedial.
The answer states that it was remedial, and resulted in securing to Fuller the price of his goods. Now should we allow the allegation of the answer that it was a proceeding for contempt, to override the other admitted allegations of the identity of subject matter, and that it was a proceeding instituted by petition for the object effected? The answer is good on its face, for it shows identity of subject matter and parties which is the true test. Ham. on Es., sec. 29. In the case of Eads v. Brazelton, 22 Ark., 516, an injunction was disobeyed, and the court below attached the recusants for contempt, and fined them one thousand dollars as damages to Brazelton for obstructing him in his work in raising a lost steamer. On appeal to this court, the decree which had enjoined Eads, in the court below, was reversed, and the cause was remanded with instruction to dissolve the injunction, which had been granted by the decree below, but ordered that a decree be rendered in favor of Brazelton for the $1,000 fine as damage for being obstructed in his work. Judge Fairchild, in delivering the opinion of this court, after ordering as above stated, uses this language: “ If the fine inflicted had been considered in the court below, and had been a punishment for the contempt of the two defendants’ disobedience to the process of the court, a different decree would have been called for upon this branch of the case.” This ruling recognizes the principle very strongly that, in certain cases, process for contempt can be used to effect a civil remedy, and when so used we must regard it, when chosen by a litigant, and when it results in satisfaction, as exclusive, when it covers the same subject matter, which may be involved in a subsequent litigation.
In the case of Pitman, 1 Curt. Cir. Ct., 186, the United States marshal petitioned the United States court of Maine, and instituted a proceeding — very similar to the one invoked against Walker — as an officer of court, to compel Pitman, the clerk, to pay over money improperly received from the marshal on charges of fees against the United States which had been disallowed.
The court sustained the marshal, and decided that proceedings in the nature of proceedings for contempt was his proper remedy. After attaining satisfaction in that case, the marshal would not have been allowed to sue the clerk in assumpsit, for money had and received, or by any form of civil remedy to enforce the same demand. We are not called upon to determine, and do not decide that this contempt proceeding against Walker, without satisfaction, would have been an answer to this action. That question is not before us. In the ordinary case of a mortgage, the mortgagee has three concurrent remedies, all of which he can invoke at will. Yet after suing on the debt at law and getting his money, he would not be allowed to bring ejectment at law, or foreclose in equity. We therefore find that there is nothing in the allegation of Walker’s answer, that the proceeding in the United States court against him was for contempt, which will override and annul the other averments of identity of subject matter and parties.
The demurrer should have been overruled.
For this error let the judgment of the circuit court of Crawford county in the cause be reversed, and the cause remanded to that court, with instructions to overrule the demurrer to the first paragraph of the joint answer of Walker and Taylor, and proceed in accordance with law, and not inconsistent with this opinion.
Hon. David Walker, J., did not sit in this case. | [
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Williams, Sp. J.
On tbe 12th day of Novembér, 1874, plaintiff presented his petition to one of the judges of this court, in which he averred that defendant, on the 16th day of June, 1873, brought his action at law in the Pulaski circuit court against plaintiff. In his complaint in said action, defendant alleged:
That on the 5th day of November, 1872, at a general election held on that day in the state of Arkansas, pursuant to the constitution and laws of said state, for the election, among other officers, of the governor of the state for the term of four years from the first day of January, 1873, said Joseph Brooks received the highest number of legal votes cast at said election for the office of governor aforesaid, etc.
That the said Joseph Brooks was in all respects legally qualified for said office — stating the facts which brought him within the constitutional requirements as to eligibility — and. was entitled to bb placed in possession thereof, and to enter upon the discharge of the duties of the same.
That on the 7th day of January, 1873, Elisha Baxter usurped the said office of governor, and from thence until the commencement of said action, unlawfully withheld the same from said Joseph Brooks, and received the salary, fees and emoluments pertaining to said office, amounting to the sum of three thousand dollars; and in and by said complaint it was prayed that, by the judgment of said circuit court, the said Elisha Baxter be ousted from the office of governor, and that the said Joseph Brooks be declared entitled' thereto, and placed in possession of the same, and that he also have judgment against the said Elisha Baxter for the salary, etc.
After thus reciting the contents of the complaint of Joseph Brooks, plaintiff, in his petition, further averred :
That he appeared to said action and demurred to the complaint, because it appeared upon the face of said complaint that the-said circuit court had no jurisdiction of the subject of said action. Whereupon said circuit court- overruled said demurrer, and rendered against said Elisha Baxter judgment of ouster from said office of governor, and also judgment for the sum of two thousand, two hundred and eighteen dollars, with interest thereon at the rate of six per cent, per annum from the date of said judgment, with costs. And the said circuit court further adjudged that the said Joseph Brooks was entitled to the said office of governor, and all books, papers and other appurtenances thereto belonging, by virtue of the election in said complaint mentioned.
The plaintiff1 claimed that the court had no jurisdiction, and that its judgment was void. But the>same being of record in the circuit court of Pulaski county, and will, as he believed, be used as a pretext for further attempts to harass and injure him, prays for a writ of certiorari, and that the proceedings and judgment of the Pulaski circuit court be quashed.
A duly certified copy of the record of the proceedings and judgment of the circuit court of Pulaski county, including a copy of all the original papers, is attached to this petition, and fully sustains its statements. On the above mentioned day the writ was ordered by the Hon. William M. Harrison, to whom the application was made.
In response to this writ, the clerk of said circuit court has returned a full and complete transcript of the record in said cause, which, in every particular, corresponds with the transcript exhibited with the petition.
The record before us shows that the court below allowed the counsel of Brooks to submit the demurrer of Baxter, in the absence of his counsel, and decided the question in their absence; and'instead of overruling the demurrer and requiring Baxter to answer, and giving him a right to deny the statements of the petition, and to a trial of the issue as directed by the code of practice of this state, rendered a final judgment ousting Baxter from the office of governor, and for two thousand, two hundred and eighteen dollars. How the court arrived at this exact sum does not appear, as there was no regular assessment either by court or jury; and if the complain^ was regarded as confessed, as the record states that the court held it to be, on the demurrer, for the purpose of ousting the governor, we cannot see how it failed to find $8,000 as the sum due for salary and emoluments, for that fact was as distinctly stated in Brooks’ petition as any other allegation in it.
Baxter, on the 16th of April, 1874, filed his motion to correct the.record entry of the 15th of April, which stated that the parties appeared, so as to have it appear that Baxter was not present by counsel or in person, when his demurrer was submitted, also, a motion to set aside the judgment, on several distinct grounds:
1. The demurrer of defendant to plaintiff’s complaint was called up by the plaintiff’s counsel, and submitted in the absence and without the knowledge or consent of the counsel of Baxter.
2. The demurrer was called up and submitted on a day other than the day fixed by the rules of the court for taking up and arguing demurrers and motions, and on a day when defendant’s counsel had no reason to suppose it could, or would be taken up, and when one of them was confined to his bed with severe illness.
3. The counsel of the defendant understood the court to announce from the bench on Saturday last (that is, the Saturday before the Monday on which the case was called up and submitted by Brooks’ counsel ex parte), that inasmuch as the federal court would be in session the then coming week, no cases would be called during the week, in the absence of counsel engaged in the federal court; hence the counsel of defendant having business in the federal court, did not deem it neces sary to attend this court, to look after this, or any other cases in which they were retained, and were absent when said demurrer was called up and submitted, and when the final judgment was rendered.
4. On the overruling of the demurrer, the court proceeded at once to enter final judgment, when the judgment' should have been that the defendant answer.
5. The court rendered a-final judgment on overruling the demurrer, in the absence of the counsel for defendant, and without giving the defendant any time or opportunity or option to answer.
6. The court proceeded to assess damages and render a money judgment against defendant without any proper submission to the court, or a jury to ascertain the damages on proof.
7. The court had no jurisdiction of the subject matter of the suit, etc.
On the 17th day of April, 1874, was made the following order by the court below, in the case:
“ And now comes the plaintiff by his attorney, and the motion of the said defendant to correct a record entry in this case heretofore filed, coming on to be heard, and the court being of opinion that the said record entry should be amended, it is ordered that the same be so amended as to read as follows :
“ And now comes the plaintiff by his attorney, and this case being subject to call by the plaintiff, and it appearing to the court, defendant by his attorneys was consenting to the submission of the demurrer of the defendant to the complaint of the plaintiff herein, the same is submitted to the court, and by the court taken under advisement, and the motion of defendant heretofore filed herein to set aside the judgment heretofore rendered in this cause, is by the court overruled.”
As to how the fact appears that defendant was consenting to the submission of his demurrer, and how plaintiff’s counsel procured the right to submit defendant’s demurrer for him does not appear; as to this the record is silent. Perhaps the court omitted to give us all the facts in the case, which influenced its conclusions. Be this as it may. the record shows errors of a very gross kind; for which, were the case before us in a direct proceeding, its reversal would be inevitable, however anxious the court might feel for the ends of justice, to sustain the judgment. But this is not a direct proceeding td reverse; but is an appeal to the superintending control of this court; and unless we find a want of jurisdiction over the subject matter of the litigation, or excess of jurisdiction, we can do nothing in this mode of proceeding, and must leave the plaintiff to his remedy by appeal or writ of error.
Article VII, sec. 4 of the constitution of 1868, under which this case arose, provides that the supreme court shall have general supervision over all inferior courts of law and equity. It shall have power to issue writs of error, supersedeas, certiorari, habeas corpus, mandamus, quo warranto and other remedial writs, and hear and determine the same. Final judgment in the inferior courts may be brought by writ of error or appeal into the supreme court. The constitution of 1874 is substantially the same. This section does not materially vary from section 2 of article VI of the constitution of 1836, of' which section 4, article VII of constitution of 1874 is a copy..
In this constitution the language is, “ superintending control,” and instead of providing for appeals and writs of error; as is provided in the constitution of 1868, it simply provides that, except in cases otherwise directed in that constitution the supreme court shall have appellate jurisdiction only. Both constitutions provide in the same language for the above named writs. There is no material distinction between the three constitutions. On this subject they are substantially identi cal. Under the constitution of 1836, it has been repeatedly-held that there was an appellate jurisdiction and a power of superintending control over inferior courts, and in aid of this jurisdiction any one of the writs named in the constitution might be invoked; and although there has been some difference of opinion as to the construction of these two sections in the two constitutions, to wit: in those of 1836 and 1868, as to whether there was in this court any power to issue any of the named writs in the exercise of an original jurisdiction, there has been no difference upon the question of supervising or superintending control. The construction upon that subject has been uniform under both constitutions. We might, therefore, under the constitution of 1868, as well as under that of 1836, class the powers therein given to this court as ordinary .•and extraordinary. The ordinary are invoked by appeal or -writ of error; others, which are extraordinary in the sense that their exercise is unfrequent and also special, are invoked whenever one of the special writs named is applicable, as ¡mandamus, certiorari and quo warranto, whether they are issued in the exercise of an appellate or original jurisdiction.
Where an inferior court usurps jurisdiction, or exceeds that given by the constitution, the jurisdiction of this court may be invoked in such case to arrest the proceeding, as was done in the case of Berry v. Wheeler, by writ of prohibition, or after •the inferior court has assumed to render judgment, the jurisdiction of this court may be invoked, and the writ of certiorari — for which the constitution makes provision — may issue to remove the case here. Where the constitution gives a superior, superintending control over an inferior court, and the law provides no mode of its exercise, this is the proper remedy. Carnall v. Crawford County, infra. In such case the superior court can only quash or affirm, in the absence of statutory regulations. The distinction between ordinary and ex'traor dinary powers of the court was clearly defined in the cases of Woods ex parte, 3 Ark., 53, and Anthony ex parte, 5 id., 358; and although these cases were overruled, the decisions are applicable to the constitution of 1868, as construed in the case of Price and Barton v. Page, 25 id., 527. And this matter is fully reviewed, and the powers and jurisdiction of the court, under the constitution of 1836, which is, like that of 1874, fully defined in Carnall v. Crawford County, 11 Ark., 604; Marr ex parte, 12 id., 84; Allis ex parte, id., 102; Crise ex parte, 16 id., 195; Good ex parte, 19 id., 411, all of which cases arose under the" constitution of 1836. The decision under the constitution of 1868 first followed these (see Jones v. Little Rock, 25 Ark., 284); and afterwards, in the case of Price and Barton v. Page, 25 id., 527, it was held that the constitution of 1836 and that of 1868 were different in this, that that of 1838 prohibited all original jurisdiction in this court, while that of 1868 did not, and therefore this court could take original jurisdiction whenever the writs named were the appropriate legal remedy. But upon this question of superintending control, there has never been any difference in the construction of the two constitutions.
It has been held that where there is no jurisdiction in the inferior court, there can be none by appeal to the supreme court. Latham v. Jones, 6 Ark., 371; Collins v. Woodruff, 9 id., 463; Pendleton v. Fowler, 6 id., 41; Levy v. Sherman, 6 id., 182; Ashley v. Brazil, 1 id., 144.
Where there is a want of jurisdiction, or an excess, the remedy sought in this case is the appropriate if not the only remedy. An appeal would not be proper. Ashley v. Brazil, supra; People v. Judges of Suffolk, 24 Wend., 252. Certiorari is the proper remedy where there has been an excess of jurisdiction apparent on the face of the record; if it has to be made out by collateral facts, the writ does not lie. Ex parte Mayor of Albany, 23 Wend., 277; Rex v. Somersetshire Justices, 6 Dowl. & Ryl., 469; 5 B. & Cress., 816; Queen v. Inhabitants of Westham, 10 Mod., 159 ; Buckner ex parte, 4 Eng. (9 Ark.), 73.
This last case was overruled in Marr ex parte, 12 Ark., 84, only so far as it held that an application might be made direct to this court for a certiorari to the county court, instead of applying to the circuit court. But this court has never overruled the principle announced in Buckner ex parte, that where a court exceeds its jurisdiction, its acts are void, and its proceedings may, upon application to the proper tribunal, be removed by certiorari and quashed. A certiorari will not lie from this court to correct errors of an inferior court which could have been corrected on appeal. Allston ex parte, 17 id., 580.
The superintending control of this court over the circuit court, and the power to arrest its.action by prohibition, or quash its judgment on certiorari, where it usurps jurisdiction, is indisputable.
The remaining inquiry, which will dispose of this case, is: Had the court below jurisdiction of the subject matter of this suit?
The proceedings in this case in the court below were based upon the 12th chapter of the civil code, for repealing or vacating charters, and preventing the usurpation of an office or franchise, and is especially based upon section 525 of the civil code, which section forms a part of said chapter, and is as follows : “ Whenever a person usurps an office or franchise to which he is not entitled by law, an action by proceedings at law may be instituted against him, either by the state or the party entitled to the office or franchise, to prevent the usurper from exercising the office or franchise.” Under this section Mr. Brooks, claiming to be entitled to the office of governor, instituted suit in his own name against Baxter in the Pulaski circuit court.
The 19th section of article VI of the constitution of 1868, provides that “ the returns of every election for governor, lieutenant governor, secretary of state, treasurer, auditor, attorney general and superintendent of public.instruction, shall be sealed up and transmitted to the seat of government by the returning officers, and directed to the presiding officer of the senate, who, during the first week of the session shall ■open and publish the same in the presence of the members then assembled. The persons having the highest number of votes shall be declared elected; but if two (2) or more shall have the highest and equal number of votes for the same office, one of them shall be chosen by joint vote of both houses. ■Contested elections shall likewise be determined by both houses of the general assembly in such manner as is or may hereafter be prescribed by law.”
Now here is a tribunal established by the constitution to try contested elections for governor. If that tribunal had exclusive jurisdiction over contested elections for governor, it will scarcely be contended by any one that the circuit court of Pulaski county had jurisdiction of this case ; for the complaint ■claims to be nothing but a dispute as to the result announced in the canvas of the vote for governor in 1872. If the creation of a tribunal before which such contests are to be heard, establishes an exclusive jurisdiction, then the legislature will not be presumed to have intended to include the officers named in the constitution in that behalf in the provisions of •chapter 12, civil code. Eor then, as to the officers named, the only subject left within legislative control by the constitution' was to prescribe the mode of hearing the contestants, conducting its deliberations and of announcing its conclusion. As to “the question who should compose the tribunal, and how it should be chosen and organized, the constitution itself had .settled — the two houses of the general assembly.
The law in foree, at the adoption of the constitution of 1868, which was adopted by that constitution and continued in force, was found in ch. 62, secs. 100 and 101, Gould’s Dig. The same provision has been carried into the new digest just published. See Gantt’s Dig., secs. 2379, 2380 et seq. This statute fully prescribes the method of conducting such contests before both houses in joint meeting, provides how the case shall be brought before them, and how notice shall be given and proof taken, etc., and is full and minute in all the details of the investigation. But without any law to regulate the proceedings in such case before the general assembly, the jurisdiction of the case would remain there, if it is exclusive. The mere failure on the part of the legislature to provide a mode of conducting the trial would no more oust the jurisdiction than a failure to establish laws governing actions before justices of the peace or probate courts, would destroy their constitutional jurisdiction, and give the power to bestow it somewhere else, by a simple enactment. Constitutions would be worth but little, if they could be thus evaded.
Is the jurisdiction conferred by the constitution exclusive?
This court held in the case of Attorney General on the Relation of Brooks v. Baxter (MS. Op., 1873), that the jurisdiction thus conferred by the constitution on the general assembly was exclusive, and that neither this nor any other state court had jurisdiction to try a suit in relation to such contest, be the mode or form what it might, whether at the suit of the attorney general, or on relation of the claimant through him, or by an individual alone claiming a right to the office; that such issue should be made before the general assembly, and that no other tribunal could determine the question.
In the case last cited, the very right which Brooks claimed in this case came up on his relation through the attorney general, and this decision not only decided the question involved here, but decided the very case; and the institution of this proceeding, after such an announcement in this court, s eems to us an effort to get an inferior court to review the decision of a superior, or at least an attempt through the inferior court to get the question again before this court. If this court had even erred in the first instance, its decision became the law of the case, which could never be disturbed or overruled in this case. Jones ex parte, 2 Ark., 93; Porter v. Doe, 10 id., 186.
The decision of this court in a case, .whether right or wrong, is the law of the case, and the mandate upon the circuit court is obligatory. Pulaski County v. Lincoln, 13 Ark., 103 ; Rector v. Danley, 14 id., 304; Hubbard v. Welch, 11 id., 151; Brooks v. Hanauer, 22 id., 176.
"We might here content ourselves to rest this case. But as the question has been much discussed, and our conclusion may be disputed, "we will be pardoned for entering into a fuller discussion of the reasons for concurring in the opinion heretofore delivered by the former court.
Mr. Berry, who ran for auditor on the same ticket with Mr. Brooks, instituted proceedings in the Pulaski circuit court, under the provisions of the same section of the code under which this case was instituted. Wheeler applied to this court by petition for writ of prohibition against the circuit judge to arrest his action in the case. In that case the question here involved was again presented to this court, and was decided in the same manner, and the writ of prohibition was ordered. See Wheeler v. Whytock, MS. Op., 1873, cited in note to Gantt’s Dig., p. 477.
The office of governor does not exist by virtue of the common law. It is a creation of the constitution. And it is well settled that where a néw right, or the means of acquiring it, is conferred by a constitution or a statute, and an adequate remedy for its infringement is given by the same authority which created the right, parties injured are confined to the redress thus given. The State on the relation of Gresell v. Marlow, 15 Ohio St., 114; Smith v. Lockwood, 13 Barb., 209; Dudley v. Mahew, 3 Comst., 9; Sedg. on Stat. & Const. Law, 94; Com. on relation of Attorney General v. Garrigues, 28 Penn. St., 9; Com. v. Baxter, 35 id., 263 ; Com. v. Leech, 44 id., 332; Pringle v. Carter, 1 Hill (S. C.), 53.
The above cited authorities bear directly upon this question, and many of them are ' directly in point and conclusive of the question.
The case above cited, from 15 Ohio St., is strongly in point with this. There, under provisions similar to ours, wherein a specific mode of contesting elections was provided by statute according to the requirements of their constitution, the supreme court of that state decided that this specific mode alone could be resorted to, to the exclusion of the common law mode of inquiry by proceedings in quo warranto.
Hon. T. M. Cooley, a distinguished writer upon constitutional law, and one of the law professors in the university and a j udge of the supreme court of Michigan, in an article in the International Review (of New York), for January and February, 1875, fully and ably reviewed this whole question, under the title, “ Guaranty of order and republican government in the states.” At page 74 of said Review, after fully setting forth his reasons for the conclusion, he uses this language : “ And by the constitution of Arkansas, the legislature had wisely been vested with complete and final authority in the premises.” And, in a note, Judge Cooley quotes the provisions of our constitution in reference to contested elections for governor, and concludes : “ To our mind, there can be no plausible suggestion that the decision of the general assembly on such a contest is open to judicial review after-wards ; but it may not be inappropriate to refer to Grier v. Shackelford, S. C. Const. R., 642; Batman v. McGowan, 1 Met. (Ky.), 533 ; State v. Marlow, 15 Ohio St., 134; People v. Goodwin, 22 Mich., 496, et al., as in point,”
Pending the disturbances which followed the decision in this case, four of the former judges of this court assumed to open this court, notwithstanding the constitution (art. VII, sec. 3) provided that it should consist of one chief justice and four associate justices; and heard an application in behalf of Joseph Brooks v. Henry Page, State Treasurer, to compel him to hand over money claimed to have been appropriated for suppressing insurrections, by an old law on the statute books since 1838. To the statement made in reference to this simulated case, by Attorney General Williams, in the opinion herein referred to, we will add the additional, statement: that the old statute upon which it was assumed to be based was repealed in 1868, by act approved July 23d of that year, as follows:
11 Be it enacted by the general assembly of the state of Arkansas:
“Sec. 1. That all acts and parts of acts making appropriations for any purpose whatever, passed by the genereal assembly of this state previous to the first day of January, A. D. 1868, be and the same are hereby repealed.
“ Sec. 2. That the amount of, or balance remaining unpaid under said appropriations shall remain in the treasury of the state as unappropriated funds until otherwise provided by law.” See acts of 1868, p. 228.
Those four judges ordered the treasurer to pay Brooks money on a statute that had been repealed nearly six years.
And we will add the further comment, that while the constitution of 1836 provided that a majority of the judges of this court should constitute a quorum, that of 1868 required as above stated. And, although the legislature, early after the organization of the court under the constitution of 1868, had passed an act authorizing the court to be held by a majority of the. judges, yet the members of the court had, up to this time, refused to open unless they were all present; and on more than one occasion, had the court been postponed on account of the absence of one member. The judges very properly held that the constitution having prescribed that the court should consist of one chief justice and four associate justices, it was not competent for the legislature to say it should consist of more or less; and for six years had the court thus acted. Until this case, there had been no pretense of authorityin four judges to open the court. Under the circumstances, we would not be expected to respect this case. But it only assumed to decide, in effect, that the decision of the court below in this case was entitled to respect until set aside by this court.
■ It has been, also, seriously contended that the decision of an inferior court, on the question of its own jurisdiction, is as conclusive as any other decision until reversed. This is the announcement of a general rule without noting and properly applying its exceptions.
It is true, as a general rule, that the question of jurisdiction is, prima jade, within the power of every court to determine for itself, and the decisions of an inferior court, on this question, are, ordinarily, as binding as any other decision. But to this, there are exceptions, as well established as the rule. One of the exceptions to this rule is, where the want of jurisdiction appears, as in this case, on the face of the proceedings. In such case, it is simply void, ab initio. State v. Scott, 1 Baily, 294. To hold otherwise would be to. run into the most monstrous absurdities. Suppose the county court of Pulaski county — which has j urisdiction only over thé fiscal matters, roads, paupers and internal affairs of the county, and has no criminal jurisdiction whatever — were to summon a grand jury, receive at its hands an indictment for murder, and thereon proceed, in the mode prescribed by the criminal code, to trial and conviction, and should upon this, sentence the person charged with the crime to be hung. In such case, the want of jurisdiction would be apparent on the face of the proceedings. Yet if we lost sight of the exception above indicated, the sheriff would be bound to obey the county court and hang the man. Suppose he did so, would any court fail to hold him for the crime he had attempted to punish? "Would the sentence of the county court protect him? This is a strong case, and perhaps would never occur ; yet it illustrates the importance of the exception; but scarcely more strongly than the case before us, wherein the court below not only disregarded a plain provision of the constitution, not only went in the teeth of the decisions of this court, twice pronounced, but in one of them a prohibition had been issued to this very judge ; and in the other, the very case before him here, was decided by this court, holding that neither this court nor any other in the state had jurisdiction. If such proceeding as that is to be respected until set aside by this court, and is to command obedience, even from this court, it is difficult to see what stage of insubordination and assumption of jurisdiction would not be equally entitled to obedience and respect.
We cannot better crown this pyramid of authority for the conclusion we reach, than by citing in full the elaborate and exhaustive opinion of the attorney general of the United States, when this question came before him officially, and wherein it became his duty to investigate it judicially; and upon his opinion the most momentous action of the president of the United States is based; and when we remember that the supreme court of the United States has repeatedly held that the decisions of the political department of the govern ment on these questions are final, we cannot overrate their importance. Luther v. Borden, 7 How., 1; Rose v. Himly, 4 Cranch, 241; Kennett v. Chambers, 14 How., 38 ; United States v. Probasco, 11 Am. L. Rev., 419. Aside from these considerations, the position and distinguished ability of the officer, as well as the conclusive reasoning of the opinion, entitle it to the highest respect:
“ Department of Justice,
“Washington, May 15, 1874.
“ The President. — Sir : Elisha Baxter, claiming to be governor of Arkansas, having made due application for executive aid to suppress an insurrection in that state, and Joseph Brooks, claiming also to be governor of said state, having made a similar application, and these applications having been referred by you to me for an opinion as to which of these two persons is the lawful executive of the state, I have the honor to submit: That Baxter and Brooks were candidates for the office of governor at a general election held in Arkansas on the fifth day of November, 1872. Sec. 19 of art. VI of the constitution of the state provides that ‘.the returns of every election for governor, lieutenant governor, secretary of state, treasurer, auditor, attorney-general and superintendent of public instruction, shall be sealed up and transmitted to the seat of government by the returning officers and directed to the presiding officer of the senate, who, during the first week of the session, shall open and publish the same in the presence of the members there assembled. The person having the highest number of votes shall be declared elected; but if two or more shall have the highest and equal number of votes for the same office, one of them shall be chosen by joint vote of both houses. Contested elections shall likewise be determined by both houses of the general assembly in such a manner as is or may be prescribed by law.’
“ Pursuant to this section, the votes for governor at the said election were counted, and Baxter was declared to be duly-elected. Said section, as it will be noticed, after providing for a canvass of the votes, specially declares ‘ contested elections shall likewise be determined by both houses of the general assembly in such manner as is or mav- hereafter be prescribed by law.’ When this constitution was adopted, there was a law in the state which continues in force, prescribing the mode in which the contest should be conducted before the general assembly; the first section of which is as follows: ‘ All contested elections of governor shall be'decided by joint vote of both houses of the general assembly, and in such joint meeting, the president of the senate shall preside.’ Brooks accordingly presented to the lower house of said assembly his petition 'for a contest, but by the decisive vote of sixty-three to nine, it was rejected by that body. Subsequently the attorney-general, upon the petition of Brooks, applied to the supreme court of the state for a quo ivarranto to try the validity of Baxter’s title to the office of governor, in which it was alleged that Baxter was a usurper, etc. That court denied the application upon the ground that the courts of the state had no right to hear and determine the question presented, because exclusive jurisdiction in such cases had been conferred upon the general assembly by the constitution and laws of the state.
“ Brooks then brought a suit against Baxter in the Pulaski circuit court, under section 525 of the civil code of Arkansas, which reads as follows: “Whenever a person usurps an office or franchise, to which he is not entitled by law, an action by proceedings at law may be instituted against him either by the state or the party entitled to the office or franchise, to prevent the usurper from exercising the office or franchise.” Brooks stated in his petition that he received more than 45,000 votes, and that Baxter received less than 30,000 votes for governor at the said election, and, after declaring that Baxter has usurped the office, prays that it may be given to him by the Judgment of the court, and that he may recover the sum of $2,000, the emoluments of said office withheld from him by Baxter. This presented to the court the simple question of a contest for the office of governor. Baxter demurred to this petition on the ground that the court had no jurisdiction of the case; and afterwards, on the 15th of April, the court, in the absence of the defendant’s counsel, overruled the demurrer, and without further pleadings or any evidence in the case, rendered judgment for Brooks in accordance with the prayer of his petition. Brooks, within a few minutes thereafter, without process to enforce the execution of said judgment, and with the aid of armed men, forcibly ejected Baxter and took possession of the governor’s offices. On the next day after the judgment was rendered, Baxter’s counsel made a motion to set it aside, alleging, among other things, as ground therefor, that they were absent when the demurrer was submitted and the final judgment thereon rendered; that the judgment of the court upon overruling the demurrer should have been, that the defendant answer over, instead of which a final judgment was rendered, without giving any time or opportunity to answer the complaint upon its merits; that the court assessed the damages without any jury or evidence, and finally that the court had no jurisdiction over the subject matter of the suit; but the next day this motion was overruled by the court. Section 4, article IV, “of the constitution of the United States is as follows: “The United States shall guaranty to every state in this union a republican form of government, and shall protect each of them against invasion, and on application of the legislature or of the. executive (when the legislature cannot be convened) against domestic violence.” When, in pursuance of this provision of the constitution, the president is called upon by the executive of a state to protect it against domestic violence, it appears to be his duty to give the required aid, and especially when there is no doubt about the existence of the domestic violence; but where two persons, each claiming to be govern- or, make calls respectively upon the president under said clause of the constitution, it of course becomes necessary for him to determine in the first place which of said persons is the constitutional governor of the state. That section of the constitution of Arkansas, heretofore cited, in my opinion, is decisive of this question as between Baxter and Brooks. According to the constitution and laws of the state, the votes for governor were counted and Baxter declared elected, and he was at once duly inaugurated as governor of the state. There is great difficulty in holding that he usurped the office into which he was inducted under such circumstances. Assuming that no greater effect is to be given to the counting of the votes in the presence of the general assembly than ought to< be given to a similar action by any board of canvassers, yet, when it comes to decide a question of contest, the general assembly is converted by the constitution into a judicial body, and its judgment is as conclusive and final as the judgment of. the supreme court of the state on any matter within its jurisdiction. Parties to such a contest plead and produce evidence, according to the practice provided in such cases, and the controversy is invested with the forms and effect of a judicial procedure. When the people of the state declared in their constitution that a contest about state officers shall be determined by the general assembly, they cannot be understood as meaning it might be determined in any circuit court of the state. To say that a contest shall be decided by decision, and then to say after the decision is made, that such contest is not determined, but is as open as it ever was, is a contradiction in terms. Can it possibly be supposed the framers of this constitution, when they declared contested elections about state officers, including the governor, should be determined by the general assembly, intended that any such contest should be just as unsettled after as it was before such determination of it? Manifestly they intended to create a special tribunal to try claims to the high offices of the state. But the tribunal is not special if the courts have concurrent jurisdiction over the subject. Brooks appeal’s to claim that when a contest for governor is decided by the general assembly, the defeated party may treat the decision as a nullity and proceed dé novo in the ■courts. This makes the constitutional provision as to the contest of no effect, and the proceedings under it are empty form. When the house of representatives dismissed the petition of Brooks for a contest, it' must be taken as a decision of that body on questions presented in the petition. But it is not of any consequence whether or not the general assembly has in fact decided the contest, if the exclusive jurisdiction to do so is vested in that body by the constitution and laws of the state. Section 14 of article Y of the constitution of Arkansas, like most other constitutions, declares that each house of the assembly shall judge of the qualifications, election and return of its members, and it has never been denied any where that these words confer exclusive jurisdiction. But the terms, if possible, are more comprehensive'by which the constitution confers upon the legislative assembly jurisdiction to judge of the election of state officers. Doubtless the makers of the constitution considered it unsafe to 'lodge in the hands of every circuit court of the state the power to revolutionize the executive department at will, and their wisdom is forcibly illustrated by the case under consideration, in which a person who had been installed as governor according to the constitu tion and laws of the state, after an undisturbed incumbency of more than a year, is deposed by a circuit judge, and another person put in his place upon the unsupported statement of the latter that he had received a majority of votes at the election. Looking at the constitution alone (p. 17), it appears perfectly clear to my mind that the courts of the state have no right' to try a contest about the office of governor, but that exclusive jurisdiction over that question is vested in the general assembly. This view is confirmed by judicial authority.
“ Summing up the whole discussion, the supreme court of Arkansas say in the case of the Attorney General v. Baxter, above referred to: ‘ Under this eonstituton the determination of the question as to whether the person exercising the office of governor has been duly elected or not, is vested exclusively in the general assembly of the state, and neither this nor any other state court has jurisdiction to try a suit in relation to such contest, be the mode or form what it may; whether at the suit of the attorney general or on the relation of a claimant through him, or by an individual alone claiming a right to the office. Such an issue should be made before the general assembly; it is their duty to decide, and no other tribunal can determine that question. We are of opinion that this court has no jurisdiction to hear and determine a writ of quo warranto for the purpose of rendering a judgment of ouster against the chief executive of this state, and the right to file an information and issue a writ for that purpose is denied.’ Some effort has been made to distinguish this case from that of Brooks v. Baxter, in the circuit court, by calling the opinion a dictum; but the point presented to and decided by the supreme court was, that in a contest for the office of governor the jurisdiction of the general assembly was exclusive, which, of course, deprived one court as much as another of the power to try such contest. There is, however, another decision made by tbe same court on the precise question presented in the case of Brooks v. Baxter. Berry was a candidate for state auditor on the same ticket with Brooks. "Wheeler, his competitor, was declared elected by the general assembly. Berry then brought a suit under said section 525,, in the Pulaski circuit court, to recover the office. Wheeler applied to the supreme court for an order to restrain the proceedings, and that court issued a writ of prohibition forbidding the said court to proceed, on the ground that it had no jurisdiction in the case as to the question of law involved. The cases of Berry and Brooks are exactly alike. That this circuit court should have rendered a judgment for Brooks under these circumstances is surprising, and it is not too much to say that it presents a case of judicial insubordination which deserves the reprehension of every one who does not wish to see public confidence in the certainty and good faith of judicial proceedings wholly destroyed. Chief Justice McClure, who dissented in the case of the Attorney General v. Baxter, delivered the opinion of the court in the Wheeler case, in which he uses the following language: ‘ The majority of the court in the case of the State v. Baxter, under the delusion that quo warranto and a contested election proceeding were convertible remedies having one and the same object, decides that neither this nor any other state court, no matter what the form of action, has jurisdiction to try a suit in relation to a contest for the office of governor. As an abstract proposition of law, I concede the correctness of the rule, and would have assented to it if the question had been before us. The question now before this court is precisely one of contest, and nothing else. As to all matters of contested elections for the offices of governor, lieutenant governor, secretary of state, auditor,, treasurer, attorney general and superintendent of public instruction, I am of the opinion that it can only be had before the general assembly.’
“He then adds in conclusion: ‘I think a writ oí prohibition ought to go to prohibit the circuit court from entertaining jurisdiction of that portion of Berry v. Wheeler, that has for its object a recovery of the office.’ All five of the judges heard this case, and there was no dissent from these views as to the question of jurisdiction. To show how the foregoing decisions are understood in the state, I refer to a note by the Hon. H. C. Caldwell, judge of the district court of the United States for the southern district of Arkansas, upon section 2379 of the digest of the statutes of the state, lately examined and approved by him, which is as follows: ‘ By the provisions of sec. 19 of art. IV of the constitution, the jurisdiction of the general assembly over cases of contested election for the officers in said section enumerated is exclusive.’ (Attorney general on the relation of Brooks v. Baxter, MS. Op. 1873; Wheeler v. Whytock, MS. Op. 1873).
“ It is assumed in the argument for Brooks, that the judgment of the Pulaski circuit court is binding as well upon the president as upon Baxter until it is reversed ; but where there are conflicting decisions, as in this case, the president is to prefer that one which, in his opinion, is warranted by the constitution and laws of the state. The general assembly has decided that Baxter was elected. The circuit court of Pulaski county has decided that Brooks was elected.
“ Taking the provision of the constitution which declares that contested elections about certain state officers, including the governor, shall be determined by the general assembly, and that provision' of the law heretofore cited which says that all contested elections of governor shall be decided by the legislature, and the two decisions of the supreme court affirming the exclusive jurisdiction of that body over the subject, and the conclusion irresistibly follows that such judgment of the circuit court is void. A void judgment binds nobody. Said section 525, under which this judgment was rendered, must be construed with reference to the constitution and other statutes of the state, and is no doubt intended to apply to county and other inferior officers, for which no provision elsewhere is made. But the constitution takes the state officers therein enumerated out of the purview of this section and establishes a special tribunal to try these contested election cases to which they are parties. The jurisdiction of this tribunal is exclusive. Ohio v. Grisell and Menlon, 15 Ohio, 114; Attorney General v. Garrugues, 28 Penn., 9 ; Commonwealth v. Baxter, 35 id., 263; Commonwealth v. Leech, 44 id., 332. Respecting the claim that Brooks received a majority of the votes at the election, it must be said that the president has no way to verify that claim. If he had, it would not in my opinion, under the circumstances of this case, be a proper subject for his consideration. Perhaps if everything about the election was in confusion, and there had been no legal count of the votes, the question of majorities might form an element of the discussion ; but where, as in this case, there has been a legal count of the votes, and the tribunal organized by the constitution of the state for that purpose has declared the election, the president, in my judgment, ought not to go behind that action to look into the state of the vote. Frauds may have been committed to ihe prejudice of Brooks, but unhappily there are few elections where partisan zeal runs high, in which the victorious party, with more or less truth, is not charged with acts of fraud. There must, however, be an end to the controversy upon the subject. Somebody must be trusted to count votes and declare elections. Unconstitutional methods of filling offices cannot be resorted to because there is some real or imagined unfairness about the election. Ambitious and selfish aspirants for office generally create the disturbance about this matter, for the people are more interested in the preservation of the peace than in the political fortunes of any man. Either of the contestants with law and order is better than the other with discord, and violence. I think it would be disastrous to allow the proceedings by which Brooks obtained possession of the office to be drawn into a precedent. There is not a state in the Union in which they would not produce a conflict and probably bloodshed. They cannot be upheld or justified upon any ground, and in my opinion Elisha Baxter should be recognized as the lawful executive of the state of Arkansas.
“ Since the foregoing was written, I have received a telegraphic copy of what purports to be a decision of the supreme court of Arkansas, delivered on the 7th inst., from which it appears that the auditor of the state, upon a requisition of Brooks, drew his warrant -on the treasurer for the sum of $1,000, payment of which was refused. Brooks then applied to the supreme court for a writ of mandamus upon the treasurer, who set up by way of defense that Brooks was not governor of the state, to which Brooks demurred, and thereupon the court say: ‘ The only question we deem it necessary to notice is, Did the circuit court have jurisdiction to render the judgment in the case of Brooks v. Baxter? We feel some delicacy about expressing an opinion upon the question propounded, but under the pleadings it has to be passed upon incidentally, if not absolutely, in determining whether the re•lator is entitled to the relief asked, for his right to the office, if established at all, is established by the judgment of the circuit court of Pulaski county. We are of opinion that the circuit court had jurisdiction of the subject matter, and its judgment appears to be regular and valid. Having arrived at these conclusions, the demurrer is overruled, and the writ of mandamus will be awarded as prayed for.’ To show the value of this decision, it is proper that I should make the following statement : On the 20th of April, Brooks made a formal applica tion to the president for aid to suppress domestic violence, which was accompanied by a paper signed by Chief Justice McClube and Justices Seakle and Stephenson, in which they stated that they recognized Brooks as governor, and to this paper also is-appended the name of Page, the respondent in the above named proceeding for mandamus. Page, therefore, did not refuse to pay the warrant of the auditor because he did not recognize Brooks as governor, but the object of his refusal evidently was to create such facts as were necessary to make a case for the supreme court. Accordingly the pleadings were made up by the parties, both of whom were on the same side in the controversy, and the issue so made was submitted to judges virtually pledged to give the decision wanted, and there within the military encampment of Brooks they hurriedly but with delicacy, as they say, decided that he is governor, a decision in plain contravention of the constitution and laws of the state, and in direct conflict with two other recent decisions of the same court deliberately made. I refrain from comment. More than once the supreme court of the United States has decided that it would not hear argument in a case made up in this way, and a decision obtained under such circumstances is not recognized as authority by any respectable tribunal. No doubt this decision will add to the complications and difficulties of the situation, but it does not affect my judgment as to the right of Baxter to the office of governor until it is otherwise decided upon a contest made by the legislature of the state. On the 11th inst., the general assembly of the state was convened in extra session upon the call of Baxter, and both houses passed a joint resolution pursuant to sec. 4 of art. IV of the constitution of the United States, calling upon the president to protect the state against domestic violence. This call exhausts all the means which the people of the state have under the constitution to invoke the aid of the executive of the United States for their protection, and there seems to be, under the circumstances of the case, an imperative necessity for immediate action. I have the honor to be, with great respect. “ George H. Williams,
“Attorney General.”
We will not attempt to add anything to this opinion on the subject of jurisdiction.
We have discussed the remedy sought in this case, because this is the first time since this government began, in 1836, that this court has been asked to remove a judgment of a circuit court by certiorari, and to quash it for want of jurisdiction. The fact is a silent compliment to the skill of the makers of our several constitutions, who were able to free them from obscurity on this question of jurisdiction, and is a tribute to the intelligence and integrity of our judiciary. There are but two cases in which this court has been asked to quash the judgments of an inferior court for want of jurisdiction, and they were against county courts: in Buckner ex parte, above cited, and Hudson et al. v. Jefferson County, opinion 1873 ; and the remedy asked in this ease was refused in Buckner ex parte, because the application was premature.
If the title to the office of governor had been determined in Brooks’ favor by a competent tribunal, he might have sued in the Pulaski circuit court for his salary; but the right to this is but an incident, and follows the right to the office of governor as the shadow follows the substance; and before the Pulaski circuit court could, in this case, take jurisdiction of the incident, it must determine the principal question, to-wit: the right to the office. We find, therefore, in this case, an excess of jurisdiction in rendering a money judgment. This case can be distinguished from that of Wheeler v. Whytock, wherein this court refused to prohibit the court below from retaining the jurisdiction for the salary, leaving it there to be progresséd with when the right to the office of auditor, involved in that case, should be properly determined. Here the court below assumed to decide both. But if Wheeler v. Whytock was in conflict with these views, we should not hesitate to overrule it.
Finding that the court below had no jurisdiction over the subject matter of this suit, nor of any of its incidents, and that its proceedings and judgment in this cause are void, the judgment must be quashed.
The Hon. E. H. English, C. J., did not sit in this case. | [
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Walker, J.
Robinson, the owner of a plantation, rented it in the year 1870, to Greenlee, who sublet the land to Mrs. McMahon, who contracted with certain laborers to cultivate the land for one half the crop raised. Mrs. McMahon also contracted to furnish supplies to the laborers to be paid by them, .and did for a time furnish them with supplies, but finally failed to do so, and the plaintiff Kruse furnished supplies to the laborers, and took from them a mortgage upon their part •of the crop raised, with a clause of trust and power to take possession of and sell the crop, if the sums advanced for supplies was not paid. Twenty-seven bales of cotton were raised on the place. The laborers became apprehensive that the ■cotton would be removed, and had the whole crop attached •and taken off by the officer. The attachment suit was against Robinson. Mrs. McMahon set up claim to the cotton and prepared her interplea, which seems not to have been filed, and was possibly abandoned, because by an agreement made between the attorneys of Kruse and Mrs. McMahon and Robinson, the cotton was divided according to the contract between Mrs. McMahon and the laborers, who were the plaintiffs in the attachment suit. Fourteen bales of cotton were set apart for Mrs. McMahon, and thirteen for the laborers which, one of the witnesses deposed, was within one pound of an equal division. Mrs. McMahon took off her part of the cotton, and the thirteen bales set apart to the laborers were to remain .and await the final disposition of the suit, which was subsequently dismissed by the plaintiffs. Before it was dismissed, the laborers gave a bill of sale to Kruse for the cotton set apart to them, who took it into possession. Robinson replevied the cotton out of the possession of Kruse, and in the replevin suit, judgment was rendered in favor of Robinson, who sold the cotton and received the money for it.
Kruse brought an action of trover against Robinson for the cotton. Robinson answered and denied that the cotton was plaintiff’s, and claimed it as his under his claim as landlord. He also answered that he had recovered the cotton in an action of replevin, and set this up in bar of a second action.
The court sustained a demurrer to this second paragraph of the answer and upon the issue thus formed upon the first, the case was submitted to a jury, who found for the plaintiffs, upon which judgment was rendered and defendant appealed.'
Much has been said in argument by counsel as to the respective rights of the parties as landlord and as laborers to specific liens on the crops raked. But as in this case, the suit to enforce the laborers’ lien was dismissed, and as the landlord has failed to set up or assert his claim as such, the case must be determined between the parties upon their rights under the ■contract.
Under the contract with Mrs. McMahon, the laborers were to have one half the cotton, which was divided, and Mrs. McMahon got her part. That set apart to the laborers seems by agreement to have been held over to await the final determination of the attachment suit. "With this, Mrs. McMahon had nothing to do. She had failed to file her interplea and accepted a settlement, in which she received all to which she was entitled.
There is some conflict of evidence as to the claim of Robinson, but the weight of the evidence is, that on the day and at the time the cotton was divided, Robinson was present and disclaimed any interest whatever in the cotton; but be this as it may, he had by contract no claim whatever to the cotton,, and seems subsequently to have based his whole claim upon the fact that he was the owner of the land, which claim, if prosecuted within the time prescribed by statute, might have-secured to him a title' to the cotton for rents; but as this was not done, Robinson had no right whatever to take the cotton into possession and sell it. The mere fact that he was the-owner of the land on which the cotton was raised conferred upon him no such right. Like all others who have inchoate-rights, they must be asserted and perfected under the provision of the law.
It has been contended that as the bill of sale was given whilst the attachment suit was pending, Kruse could gain no-title under it. Concede this to be the case, and still the prior-right under the mortgage had matured, and Kruse had under it a title to the property, and by express provision, to take the cotton into his possession and to sell.
It is also urged that the recovery in the action of replevin is a bar to a recovery in this action. We cannot so consider it. It is true that both actions were for the same property, but there is no such identity of cause of action as to bring the case within the rule. Nothing appears to show whether the action was for the taking or the detention of the property, or whether by the state of the pleadings the title to the property or merely to the possession was put in issue. We think the demurrer to the second paragraph of the answer properly sustained.
The material questions at issue were the ownership of the cotton by the plaintiffs and its conversion by the defendant The proof upon both these points, as well as of the value of the cotton, was sufficient to warrant the verdict of the jury.
The instructions given were substantially correct, and that refused to be given at the instance of the defendant was, under the state of the case, properly refused.
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Hrrison, J.
At the October term, 1873, of the circuit court of Newton county, the grand jury returned into court the indictment which follows :
“Indictment — -Newton Circuit Court — The State of Arkansas vs. William Holman. The grand jury of Newton county, in the name and by the authority of the state of Arkansas, accuse William Holman of a misdemeanor as follows, viz: The said William Holman, on the 1st day of Septem ber A. D. 1873, in the said county of Newton, did willfully and unlawfully, make and commit a public nuisance, by felling timber, and placing fence rails and other obstructions on and in the public road in road district No. 23, against the peace and dignity of the state of Arkansas.
“ Yancy B. Sheppard, Pros. Ati'y.”
The defendant demurred to the indictment on the ground that the facts alleged in it did not constitute a public offense ; which objection was sustained and he was discharged. The state appealed.
The act of March 23, 1873, having repealed chapter 149 of Grould’s Digest, by section 17 of which it was declared an indictable offense to obstruct a public road by felling trees across the same or placing other obstructions therein, and the offender subjected to a fine not exceeding fifty dollars and a forfeiture of two dollars for every day he should suffer such obstruction to remain after being ordered by the overseer to remove it, we have now no statute making such obstruction an offense. But such obstruction may be of such a character as to be a common or public nuisance, and indictable at common law.
Blackstone says : “ Common nuisances are such inconvenient and troublesome offenses as annoy the whole community in general and not merely some particular person.” And in Bacon’s Abridgment, it is said: Every nuisance punishable by a public prosecution must be charged to be ad commune nocumentum, or to the general annoyance of all the king’s subjects; for if they are only injurious to particular persons they are left to be redressed by the private action of the parties aggrieved by them. Bac. Ab., Nuisance, B.
It is not every obstruction in a public road or highway that is an indictable nuisance. It must be such as affects and annoys the whole community; as, for instance, it is not a nuis anee where materials are temporarily placed in the street to be used in erecting a building, if sufficient room is left for the passage of the public on the other side; and the erection of a scaffolding to repair a house, the unloading of a cart or wagon, and the delivery of any large articles, as casks of liquor, if done with as little delay as possible, are lawful. Davis v. Mayor, 14 N. Y., 506 ; Harrower v. Ritson, 37 Barb., 301; Griffith v. McCullum, 46 Barb., 561; Rex v. Cross, 3 Camp., 225.
The owner of land through which a public road passes, has the undoubted right to use it in taking his timber from the land, and the felling it upon it with a view to its immediate removal is not a nuisance, unless the public generally are incommoded and injured by it.
The indictment does not allege any inconvenience or injury to the public from the acts complained of; the objection therefore that it did not charge the commission of any offense was well taken, and the demurrer -properly sustained. The judgment-is affirmed. | [
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Williams, Sp. J.
This suit was commenced in the Phillips circuit court on the 14th of February, 1867. A writ of attachment was issued, upon which the sheriff made the following return, to wit:
“ I executed the within writ of attachment at Phillips county, Arkansas, on the 29th day of March, 1867, by declaring publicly, in the presence of Cameron Biscoe, a citizen of my county, that I did attach the following named lands as the property of the within named defendant, William H. Trader and Ellen Trader his wife.” (Here follows a description of the land.) “ Levied on by virtue of the within writ of attachment. The said William Trader and Ellen Trader, his wife, are not found in my county. Bart T. Turner, Sheriff."
Under the 7th section of the act approved March 7, 1867, this was a good levy on lands, and created a lien on the lands of defendants from the date of the attachment.
This suit was founded on a bill of exchange drawn 13th of March, 1861, by Ella R. Newsome and T. S. N. King, on Bartly Johnson & Co., New Orleans, and made payable on 20th of February after date, to Ella R. Newsome. The bill was indorsed by Ella R. Newsome to plaintiff. This suit is brought against Trader and his wife as one of the drawers, she having intermarried with defendant, W. H. Trader.
There are three counts in the declaration. The first avers presentment to the acceptors at maturity, which, allowing grace, was 23d day of February, 1862, and refusal to pay and notice to defendants.- The second count avers that no demand was made upon acceptors at maturity, and no protest and notice was given until July 8,1862, for the reason that a state of war existed, and there was no intercourse between New Or leans, Louisiana, and Lexington, Kentucky, the former being ■the residence and domicile of the acceptors, and the latter the home and residence of the holder, Harrison; that on July 8, •demand of payment was made on the acceptors, and they refused to pay, and protest and notice to defendants, etc. The third and last count avers the presentment of the bill for payment, '.and the refusal of the acceptors to pay, and the protest, and .avers as an excuse for notice as follows : plaintiff in fact says that the said Ella N., and the said King had no effects in the hands of the said Bartly Johnson & Co., from the time of the •said making of the said bill of exchange to the presentation and protest of the said bill of exchange, nor had they paid the said Bartly Johnson & Co. any consideration for the acceptance and payment thereof, and that they were not damaged for the want of notice of the protest thereof. On the 9th of January, 1868, the appellees filed separate pleas of the general issue, and the appellee, W. H. Trader, filed also a separate special plea in bar; to which last plea the appellant interposed .•a demurrer, which was by the court below overruled, and a final judgment in bar wras rendered in favor of defendants therein. From this judgment the appellant appealed. His appeal was dismissed by this court on the 27th day of January, 1870. See Harrison v. Trader and wife, 25 Ark., 621. The appeal was dismissed because the transcript was not filed within the time prescribed by law.
Appellant sued out a writ of error on the 1st of March, 1870, •one month and four days after the appeal was dismissed in this court. There was no supersedeas, or bond, either on the appeal or writ of error. At the December term, 1870, of the supreme court, a motion was made to dismiss the writ of error, which was overruled. See 27 Ark., 59. At the December •term, 1871, this court reversed the judgment of the court below, and ordered it to sustain tbe demurrer to the plea of Trader. 27 Ark., 288.
When the mandate of this court was filed below, the demurrer to Trader’s special plea was sustained, and the case was tried upon the general issues by the court below sitting as a jury. The court found the issues for the plaintiff, and rendered judgment in personam against defendants, but on motion of appellees, expressly refused to order the judgment to be executed against the property attached.
The record entries are as follows:
“Now on this day come the parties in this cause, and announcing themselves ready for trial, and neither party requiring a jury, this cause is submitted to the court sitting as a jury, when the defendant filed his notice of what he intended to give in evidence, and notice that he should ask the court not to declare any judgment, it might render a lien upon the lands attached herein; and the court heard the evidence, proceeded to declare the law as contained in the seven propositions filed, to which judgment of the court in declaring the 3d, 4th, 5th, 6th and 7th propositions as law, the said defendant excepted at the time. The court thereupon proceeded to find the facts as stated in the finding of facts filed in the cause, and the court being sufficiently advised, etc., doth find that the said defendants are indebted to the said plaintiff in the sum of four thousand, two hundred and thirty-seven dollars. It is therefore considered by the court that the said plaintiff do have and recover,” etc.
And after thus rendering judgment, the court proceeded to order as follows : “ Inasmuch as no supersedeas was issued, nor bond given on the appeal or writ of error, it is further considered by the court that the attachment lien was lost by the judgment of this court pronounced at the November term, 1867, December 1, 1867, to which judgment of the court that the attachment lien was lost, said plaintiff excepted at the time, and brings here into court his bill of exceptions, which is signed, sealed,” etc.
Plaintiff below prepared and filed an elaborate bill of exceptions, and motion for new trial, setting out in full all the evidence, and made a motion for a new trial on the whole case, as well as on the ground of refusing to recognize the attachment lien, which was overruled by the court below, to which appellant excepted. This was a work of supererogation on his part, for the 'declaration, writ, return and proceedings of this court, and of the court below, are all of record, and sufficiently presented the point involving the adverse decision, in which the court below practically held the attachment lien void, and rendered a personal judgment only. It may be fortunate for the plaintiff that defendant filed no motion for new trial, and took no appeal from the personal judgment, or rather, it might have been in such case attended with some risk, for the facts in his bill of exceptions might have been used against himself.
The appellees have gone extensively into the facts and instructions, as set out in the bill of exceptions of appellant, but as they have filed no motion for new trial, nor have appealed, we would not reverse the personal judgment against them on the case before us.
In this case the court found that the draft was drawn in March, 1861, and accepted for accommodation of drawers, to be paid one year afterwards, on an express promise made by the drawers to the acceptors, that cotton was to be shipped to meet it at maturity; that this cotton was not shipped. A jury might, upon this state of facts, have well found, that no notice was necessary, and the court should have instructed a jury that want of effects of drawer in the hands of accommodation acceptor, under such circumstances, would excuse notice; for,' •but for the existing war, the failing to ship cotton would have been a fraud, which the war did not so far excuse as to render demand and notice necessary. As the court acted as both court and jury, we find nothing in the declarations of law and the finding on this point, so shockingly iniquitious as to justify us in reversing the personal judgment.
The whole question then is,'Was the lien of the attachment lost by the erroneous judgment of the court below on the demurrer, and the appeal and writ of error without supersedeas ?
Proof was introduced to show that after the appeal was taken, and pending the same, Trader and wife sold the land. While we cannot assume to conclude the rights of parties not before us, we cannot, on the other hand, swerve from our duties by a consideration of possible results. We shall decide this case just as the court below should have done as between the parties, and unless such purchasers have intervened by interplea, all evidence on the subject of the purchase was extraneous. We do not decide that the purchasers could have interpleaded. We simply mean to say that the purchasers’ rights were not before the court properly, and are not here before us.
The court below having refused to declare the judgment rendered by it a lien on the land attached, and having expressly refused to allow its judgment to be executed against the attached property, and refused to enforce the attachment lien in the only mode known to the law, the plaintiff having •duly excepted to the action, the question before us is, whether this action of the court below is warranted by law. On the part of appellees, it is contended that, by the taking of the appeal without supersedeas, and the ultimate dismissal of that ■appeal in this court was an affirmance of the judgment of the court below, which, it is contended, was an implied dissolu tion of the attachment; and the bringing of a writ of error was a new suit; and being taken without surpesedeas, the judgment below remained in force. We might hesitate, were the question new, to decide, after the dismissal of an appeal for want of being prosecuted in time, that a writ of erfor might be prosecuted ; and might feel strongly inclined to agree with appellees that the dismissal of the appeal was an affirmance. But we have not looked into that question, because, in this case, this question is res adjudicate and it is the law of this case that a writ of error lay after the appeal was dismissed; and if the writ lay in the case, we know of no rule which would limit its operation. The plaintiffs had the statutory period within which to bring it, and all his rights remained unimpaired, although in abeyance until vitalized by the action of this court compelling the court below to withdraw the bar which it had interposed by sustaining erroneously the plea in bar. Appellees cite authorities to show that in case of dissolution of an injunction, an appeal without supersedeas does not reinstate it.
The first case cited is Hart & Hoyt v. The Mayor and Aldermen., etc., 3 Paige, 381. In this case it was held that in the absence of statutory provisions, no appeal from an order dissolving an injunction would restore it, and that there must be an order from the proper court reinstating it pending the appeal, citing Hoyt v. Gelston, 13 Johns., 139; Wood v. Dwight, 7 Johns. C., 295. In the case in 3 Paige, above cited, the chancellor uses this pertinent language : “ It is there insisted that an appeal from an order or decision of the court refusing to grant an injunction gives to the applicant the full benefit of an injunction pending the appeal, and restrains the other party from proceeding.” The chancellor thereupon proceeds to decide that the appeal has no such effect. All the other cases cited by appellees are kindred cases of injunction, except the- case of Simpson v. Simpson, 25 Ark., 487, which was a divorce case. The appellee quotes the language of Justice McClure in the case, in which the late distinguished chief justice facetiously remarks : “ If Mrs. S. had married after the decree of divorce Ind before the taking of an appeal by the appellant, we doubt if the reversal of this judgment would have restored her to the loving embrace of Enoch H. Simpson.” This remark of Justice McClure was mere dicta; but if good law, has no analogy to this case, for a criminal prosecution for bigamy would have been the only remedy Enoch would have had, as there is no writ known to the law to force a wife to the “ loving ” embrace of a divorced husband; and the want of criminal intent would have acquitted Mrs. Simpson in the given case. But it might be quite a different question if the legitimacy of the issue of such a second marriage was presented.
The cases cited by appellee in reference to injunctions indicate clearly the line of distinction between injunctions and attachments. An injunction exists by and inheres in the order of the court; that removed, there is no injunction, and in the absence of a statute, even an appeal with supersedeas would not continue the injunction without an order of some court of competent jurisdiction. Kerr on Inj., 214.
But in attachment liens, the right grows from and inheres in the law, and the act of the plaintiff in bringing. suit properly, and the clerk in issuing the writ, and the sheriff in levying it on defendant’s property as the law directs. These acts being performed, the lien, though inchoate, is. perfect and substan tial; as much so as the lien of a mortgage when properly executed, acknowledged and recorded; as much so as a mechanic’s lien, when the work is done, and the lien proven and filed in the clerk’s office, as the law directs; as perfect as a vendor’s lien, where his purchase money is unpaid for real estate.
If in any one of these cases, any one of these lien-holders has to apply to a court for its action, to enforce his lien, which action of court is equally necessary to all the above liens, would it be contended that the erroneous action of the court in refusing redress, by which the party would be driven to an appellate tribunal, would so far impair his rights as to prevent their enforcement at all?
It is contended that there is here an intervening purchaser. We have no such case before us. This plaintiff is entitled to enforce his lien against the land attached. If there is a purchaser who can establish in fact, or in law, that he is not a purchaser pendente lite, and occupies a berter attitude than the defendant, by reason of any fact or circumstance, or that he got more than his vendor could have, to wit: the land free of the lien by reason of estoppel of plaintiff by some act or declaration, we will decide his case when properly presented.
In the case of Earle v. Couch, 3 Metc., 450, the facts were, that a bill was filed by creditors of James D. Couch, to set aside a conveyance of slaves to his wife, which, it was alleged, was made to defraud Couch’s creditors. In the transaction, one Armstrong conveyed certain slaves to a trustee for Mrs. Couch, and received conveyance of other slaves. Armstrong, in his answer, denied that he had any knowledge of any fraudulent intent on the part of Couch; alleges that the transaction on his part was honest; that he had conveyed four slaves, Esther, Frances, Sam and Henry, to Thompson in trust, in consideration that J. D. Couch had conveyed to him the slaves in controversy and his interest in his father’s estate. Arm strong makes his answer a cross-bill against John Couch, the infant son, and only heir of Mrs. Mary F. Couch, who was then dead, and against the administrator of Thompson, Mrs. Couch’s trustee, who was also dead; and suggests that if the deed from James D. Couch to him should be adjudged fraudulent, and he should be deprived of the property therein conveyed to him by Couch, that his deed to Thompson, the trustee, should be cancelled, and he be restored the slaves therein conveyed. John Couch, a minor, the only heir of Mrs. Mary Couch, was made a defendant to the creditors’ suit against J. D. Couch and Armstrong. On the 13th day of September, 1850, a decree was rendered by which both of the deeds were set aside, to wit: the one from J. JO. Couch to Armstrong, and the one from Armstrong to Thompson, in trust for Mrs. Couch.
The slaves which had been conveyed by Armstrong to Thompson were delivered to Armstrong by order of the court, who sold the slaves to persons who were cognizant of the suit and its results. This decree stood until 1858, when John Couch, who had answered the former suit by guardian ad litem, filed his bill of review; upon hearing of which the former decree was set aside, and the case opened as to the rights of the infant John Couch ; from which decree the purchasers of the slaves from Armstrong, who were parties, appealed. In delivering the opinion of the court, Judge Peters uses this language:
“ But another question materially affecting the interest of all the appellants is presented; and that is, are they to be regarded as purchasers 'pendente Hie? At the time the original decree was rendered, the appellee was an infant, and so was when the bill of review was filed. The several purchases were made by appellants between those periods. Said decree, when they made their purchases, was liable to be reviewed and set aside upon a bill of review, or reversed by suing out a writ of error;” and cites the case of Clary v. Marshall's Heirs, 4 Dana, 95, wherein that court held that a purchaser of a tract of land from a party who had obtained a decree and conveyance of the land from a commissioner appointed by the court for the purpose, which decree was set. aside upon a bill of review filed after his purchase, acquired no better title to the land than his vendor had; that he was a purchaser pendente lite, and bound by the proceeding under the bill of review. He also cites Debrell v. Foxworthy, 9 B. Monr., 228, where the same rule was applied. He then concludes: “We see no reason why the same rule should not apply here.” We think these cases bear a striking analogy to the case now before us.
In the case of Simmon v. Price, 18 Ala., 405, in which was the question of an administrator’s final settlement, and the right of a former administrator, who had finally settled, to call a subsequent administrator de bonis non, to account for liabilities of the estate to him as former administrator. From the action of the orphan’s court appeal was prosecuted; pending the appeal without supasedeas, the administrator de bonis non had distributed the estate to the heirs, and his settlement had been made and approved by the orphans’ court. The supreme court of Alabama held that this did not debar the original administrator from requiring of his successor a final settlement, with him, which was the matter involved in the appeal. In delivering the opinion of the supreme court, Dargan, C. J., uses this language : “ When a judgment is reversed, the rights of the parties are immediately restored to the same condition in which they were before its rendition; and the judgment is said to be mere waste paper,” and cites Dupuy v. Roebuck, 7 Ala., 484.
In the case of Argenti v. San Francisco, 30 Cal., 461, the su preme court of California held that the consequence of the reversal of a judgment was, that the partiesen the court below have the same rights which they originally had, citing Phelan v. Supervisors of San Francisco, 9 Cal., 15; Steane v. Acquire, 7 id., 443.
Mr. Drake, in his work on Attachments, sections 411, 412, says: “The dissolution of an attachment necessarily discharges from its lien the effects or credits on which it may have been executed, whether reduced to possession by the officer, or subjected in the hands of garnishees. When dissolved, the defendant is entitled to a return of the property on demand, unless the judgment of dissolution be suspended by writ of error or appeal. This, it is said, takes away the defendant’s right to demand the property, and the officer, if he have notice of the writ of error or appeal, would hot be justified in returning the property. But if before writ of error or appeal the defendant demand it, and the officer gives it up, the latter cannot afterwards, on reversal of the judgment, be held responsible for it.
The dissolution of an attachment, however, does not, it appears, so far destroy it, that under no circumstances can the plaintiff, upon the reversal of the judgment, reassert his right to the avails of the attachment. Thus, where two attachments were executed on the same effects, and that first executed was quashed, and the judgment quashing it was reversed, but in the mean time the property was sold and the proceeds paid to the plaintiff in the second attachment, it was decided that the first attachment creditor was entitled to recover -from the second the sum paid to him, citing Carpenter v. McCorkle, 9 Grattan, 177.
But where over three years had elapsed before the writ of error was prosecuted, it was held in Morrow v. Holloway, 3 G. Greene, 157, that the attachment was not revived as against third persons. This was based purely upon the ground of the unreasonable delay.
These decisions have reference to personalty; as to which it is necessary that a reasonably prompt conclusion to the litigation must be had. If not, the party delaying may impair his rights. But as to real estate, the law is somewhat different. Says Mr. Drake, at sections 239, 240, “ The effect of an attach ment of real estate is to give plaintiff a lien upon the property and this lien has been held to be as specific as if acquired by the voluntary act of the debtor, and stands on as high equitable ground as a mortgage, citing Carter v. Champion, 8 Conn., 549.’ * * “ Unlike the case of a levy on personalty, the officer levying acquires no lien or special property in the land. He is not required or authorized to take possession of it, nor in any event is he accountable for it, or for its rents. His agency and authority are terminated whenever the duties are performed for which process was put into his hands. The lien created by the attachment, whatever may be its character, is in the attaching creditor, and he only can release or discharge it.” Much stress is laid in the argument of appellees as to the want of a supersedeas. The office of a supersedeas is merely to suspend the execution of a judgment. There was no execution to be suspended, except for cost in this case. The law, as it then stood and now is, required a bond only for the purpose of indemnifying the party, whose execution was suspended, for the delay. The plaintiff below was willing to pay the costs, or risk an execution for them, and no other judgment needed a supersedeas.
The consequence of the judgment of the court was a dissolution of the attachment; the appeal suspended the judgment as to every thing except its execution for money due for cost, and but for the statute which prohibits appeals and writs of error from suspending the execution of judgments unless a a bond is given, tbe effect of appeals and writs of error would be to suspend all action in the court below for all purposes, because the jurisdiction of the cause is no longer there, but is transferred to the appellate court. Our statute extends only to supersedeas of executions, all other features of the court’s action are suspendedby-an appeal or writ of error; and if the cause is reversed, the rights of parties stand as though no action had ever taken place in the inferior court. In this case, what better bonded indemnity did defendants wish than the original attachment bond, which was good until the case was finally disposed of?
It is argued also that titles are jeopardized if the law is, that the lien is restored and relates back; that a purchaser finds a clean title on the record, except a dissolved attachment, as to which the party has three years within which to appeal, etc. If a party desiring to purchase a tract of land finds it in this condition, he is bound to know the law, and he can either let his purchase alone, or apply to the plaintiff in the attachment and get a direct statement, which will estop him, that he does not intend to prosecute it. If he fails to do this he takes the chances and risks of showing some act or circumstance other than the mere dissolution, to warrant him in claiming to be an innocent purchaser.
We therefore, find no error in the proceeding of the court in rendering judgment against defendants herein, and the same is affirmed; but finding error in tbe proceeding of the' circuit court of Phillips county in holding and declaring that the lien of plaintiff on the land attached was lost, and in re-' fusing to order execution against the same, said orders and rulings are in all things reversed, annulled and set aside, with costs, and the judgment of the court below will be executed accordingly.
English, C. J., did not sit in this case.
This dicta is sustained by the following authorities: Kerr on Inj., marg. p. 636, note; Hicks v. Michael, 15 Cal., 107; Merced Min. Co. v. Fremont, 7 id. 130; Garrow v. Carpenter et. al., 4 Stew. & Porter (Ala.,) 336; Boren et. al. v. Chisholm, 3 Ala., 513. Contra, Turner v. Scott, 5 Randolph, 332. — Rep. | [
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Walker, J-
The executors of the estate of Keatts filed their bill in equity to foreclose a mortgage executed by •Still-well and wife, to secure the payment of a debt of $5,000 and interest.
A demurrer was filed to the bill, which was overruled, and without further defense, a decree was rendered against the defendants, from which they have appealed to this court.
The defendants contend that the bill is defective:
First. That no exhibit has been made of complainant’s authority to sue.
Second. That no right of foreclosure has yet accrued on the mortgage.
Third. That the debt for which the mortgage was given is not due.
The first ground of demurrer taken, we think, was properly overruled. The failure to file the exhibit was not properly ground for demurrer. The exhibit constituted no part of the pleadings, nor was it the ground for equitable relief. The letters testamentary could only be evidence of the right of action in the complainants, and if deemed important to the defendants, should upon motion have been filed.
The second and third grounds for demurrer are substantially the same. It is true that the note was not due until June, 1876. But the interest became due semi-annually, and there was due and payable according to the terms of the contract, more than $2,000, at the time the suit was brought. And the mortgage was given to secure the payment of the interest as well as the principal.
These being the only grounds specially set forth as cause of demurrer, under the code practice, all others are considered as waived, except such as are necessary to constitute a cause of action.
The remaining question, therefore, is: Have the complainants set forth such facts as entitle them to recover of the defendants, and for the relief prayed ?
The complainants, with more than usual clearness and precision, show a right of action in themselves as executors, set forth the contract, the mortgage, the property conveyed, the terms and conditions of the mortgage, make it an exhibit, file a copy of it with the certificates of acknowledgment and record, state that the interest which has accrued, amounting to $2,051, is due and remains unpaid; with an appropriate prayer for judgment, that the equity of redemption be foreclosed, and the estate sold to pay the interest due; with a further prayer for further payment of interest, and finally for the principal debt when it shall become due.
We have deemed it unnecessary to set forth the several averments at greater length, because there is but one question which can arise as to the sufficiency of the bill, which is: Have the complainants made such averments as are necessary to charge the defendant Laura E. Stillwell, who is sued as a feme covert?
It is not sufficient for complainants to show their own right ©f action; but they must, with apt averments, show the liability of the defendants to them.
Story, in his Equity Pleadings, p. 505, says: “ It is not sufficient to show the title and interest of the plaintiff in the subject matter in the suit; but there must be such averments as show that the defendant also has an interest in the subject matter, and is liable to answer to him therefor.”
Have the complainants shown that Laura E. Stillwell, a feme covert, has contracted a debt, or executed a deed, by force of which she has made herself liable to complainants ? It is not questioned but that she signed the note and the mortgage deed intended to secure the payment of the debt; nor can it be questioned that, although a feme covert, she may, under certain circumstances and for certain purposes, so contract as to bind her separate estate. But for what consideration this note was given does not appear. The ownership of the land mortgaged is not disclosed. It is true, a feme covert may contract a debt by which she may bind her separate estate; but was such the case in this instance; had she an estate of her own to be charged ? If not, her contract is void. Perry, in his work on Trusts, vol. 2, p. 253, after a lengthy review of the English decisions, says: “ It is established in England that a wife’s general contracts may be satisfied out of her separate estate, if they were entered into with reference to, or upon the faith and credit of such estate; and that the contract of a married woman, being a nullity unless made with reference to her separate estate, will be presumed by the court (unless something else appears) to be made in reference to her separate estate, and therefore binding upon it.” And says, further, that this rule has been sanctioned and adopted in the states of Connecticut, Maryland, North Carolina, Missouri, Florida and Georgia, whilst the states of New York, Vermont, Wisconsin, New Jersey, limit the power of contracting in relation to her separate estate, or for the benefit of such estate, or for her own personal benefit upon the faith and credit of such estate. Perry, 255. By this rule, the wife’s general engagements, which have no reference at the time to her separate estate, or to her own benefit, cannot be enforced against such separate estate.
The same author, after a review of the decisions of the several courts of the states, says: “In a majority of the United States, a more limited rule was applied, and the contracts of married women were not. enforced against their separate estates, unless their contracts were made in relation to their estates, or for their personal benefit, and the same principles are applied in enforcing contracts of married women under the statutes." Perry on Trusts, 279.
It will be perceived that the point of difference between the decisions of the courts of the several states is, that part of them have adopted the rule as held by the English courts, which give validity to the wife’s contracts which have no reference to her separate estate, whilst the other states have limited the right of the wife to contract alone with regard to her separate estate, made for the benefit of her estate, or for her personal benefit. To the correctness of this more restricted right to contract, we yield our assent upon principle, and more particularly under the provisions of our constitution of 1868, under which this contract was made, because whilst it does enlarge the capacity of the feme covert to take and hold the estate, as her separate property, and also to devise and bequeath it, no power is given to sell or convey her separate estate, and with the exception of her power to take and hold the estate, and to devise or bequeath it, she rests under the same disabilities as if no such constitutional provision had been made. The wife had no greater power to contract after, than she had before this constitutional provision was ordained. No remedy at law ever existed with regard to her contracts, even when made in reference to her separate estate. The remedy is not properly against the person, but is in equity, and upon equitable principles against her separate estate. The judgment or decree cannot bind her; but it is against the separate estate, which is laid hold of to satisfy a debt contracted upon the credit of it, or in regard to it, when made directly in reference to such estate.
The authorities cited by counsel to show that a contract made by a feme covert, apparently without reference to her separate estate, will be, by implication, taken as relating to the wife’s separate estate, has been held applicable under the rule that the wife has general power to contract, but is inconsistent with the rule which we have adopted, which restricts the power to contract unless in direct reference to the wife’s separate property.
As a general rule, the wife has no power to contract and bind herself, and if the pleader wishes to charge her, and fix a liability upon her, to account out of her separate estate, he must state such facts as take his case out of the general rule, and fix upon her such liability; and as these facts do not appear in the pleadings, no cause of action is made against the wife.
Newman, in his work on Pleading and Practice, p. 667, says: “ It is not only necessary for the petition to show that the plaintiff has title or interest in the subject matter of controversy, but also that the defendant is liable. Thus if a married woman is sued for a debt, evidenced by a promissory note executed by her when she is a feme covert, and the fact of the coverture appears on the face of the petition, as she is not by law bound by her contracts, nor liable to the plaintiff, she may demur, unless the facts alleged in the petition also further show a state of case in which she was authorized to bind herself by the writing sued on.”
And because in the case before us, no such averment is made, nothing whatever to show that the note made was intended to charge her separate property, or that she had a separate estate, or even that the lot of land conveyed by mortgage was hers, or that she had any interest in the same other than such as is hers by virtue of the marriage relation, we must hold that the demurrer was well taken. If in fact this contract was intended to charge the separate estate of the wife, an averment of the fact should be made.
The sufficiency of the acknowledgment of the deed is questioned, and must arise upon the trial of the cause, when the deed is offered as evidence to support the allegation. And when, as in this case, the cause is set for hearing upon the complaint and the exhibits, before the court could proceed to render a decree against the wife, it became necessary to see whether she had in fact executed the mortgage; and at this point we may notice the argument of complainant’s counsel.
It is contended that although the certificate of acknowledgment is not in compliance with the statute, as between the parties to the deed, it was valid and binding, and as effectually conveyed the estate by mere act of signing, sealing and delivery, as if acknowledged and recorded. In most instances this is undoubtedly true, but- then, when the deed is not acknowledged, it must be proven to have been executed by the grantors, and when an attempt is made to make this proof, as to the fact of whether the wife executed the deed, the question arises as to whether any other evidence of that fact can be re ceived, than that of her privy examination and voluntary acknowledgment that the deed is her voluntary, unrestricted act. The authorities touching this point are numerous. The case of Landers v. Bolton, 26 Cal., 408, is fully in point. Sawyer, J., who delivered the opinion of the court, said: “ Eor the purpose of protecting the wife against fraud, coercion, and undue influence of any kind, the acknowledgment of the wife is made part of the deed itself, or, perhaps more properly speaking, an indispensable part of the evidence of its execution. To secure perfect freedom of action, the wife must be examined separate and apart from her husband, and even at the last moment, the right of retracting is secured to her. It must appear in the certificate of acknowledgment that she stated that she did not wish to retract. In her case the certificate cannot be made, as in others, upon proof by subscribing or other witnesses. The acknowledgment in person before the proper officer, and his certificate in the form prescribed by law, is the only evidence admissible that she ever executed the instrument. All other proof, in court or out, is incompetent.”
The defect in the certificate in the case under consideration is, that it is not shown that the examination was taken in the absence of her husband, which is expressly required to be done by our statute. The acknowledgment was, for this defect, insufficient. It is not sufficient to show that she executed the deed, and delivered it, but to make the act hers, she must do so without the undue influence of her husband, and she must declare this fact upon privy examination, when freed from the restraint thrown around her by the presence of her husband.
As this proof was necessary to make her deed valid, in 'its absence, the court had no evidence whatever upon which to render a decree against her, and in no event could a decree against her personally be rendered, as appears in this case to have been done.
Eor these errors, the decree of the court below must be reversed and set aside, and the cause remanded, with leave to-the complainants to amend their bill if they choose to do so. | [
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English, C. J.
Patrick Hurley and James. Hurley were •jointly indicted in the Washington'circuit court, for murdering John Schiner, by shooting him with a gun. They severed, and James Hurley was tried on the plea of not guilty, verdict of murder in the first degree as charged, motion for new trial overruled, bill of exceptions, sentence of death and appeal.
Twenty-two grounds for a new trial were assigned in the motion :
I. That the court compelled the appellant to go to, trial-without being served, according to law, with a copy of the indictment.
The statute provides that: “ It shall be the duty of the clerk of the court in which an indictment against any person for a capital offense may 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 leastforty-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.” Gantt’s Dig., sec. 1825.
It appears of record that the appellant was arraigned, and pleaded not guilty, Sept. 29, 1870. It appears from the bill of exceptions, that the clerk made and delivered to the sheriff a certified copy of the indictment, which was delivered to the appellant in person, at 5 o’clock P. M., Sept. 26, 1870, in the absence of his counsel, and that the appellant remained in prison, without an interview with his counsel, until he was brought out for arraignment and trial. The indictment was found at the previous term of the court.
The objection seems to be, that the copy of the indictment was served on the appellant when he was in prison, and in the absence of his counsel. Under the statute, the copy may be delivered-to the prisoner or his counsel. If delivered to the prisoner, the statute does not require it to be done in the presence of his counsel, nor that the prisoner shall be brought into court to be served with the copy. If between the time of the service of the copy and the arraignment, the prisoner has had no opportunity of consulting with counsel, the court has the discretion to allow him reasonable time for that purpose be. fore requiring him to plead to the indictment, and this is usually done. But the point here seems to be that he was served in the prison, and in the absence of his counsel, and ’there'was no error in this.
II. The second ground assigned in the motion for a new-trial is, that the court erred in compelling the appellant to go to trial without his having been served in accordance with law with a list of jurors properly and legally selected for the trial •of the cause.
It appears from the bill of exceptions that when the appellant was brought into'court for trial, he objected to the progress of the cause, because he had not been served in accordance with law, with a copy of the venire. In support of the objection, he proved by the sheriff that at the time he was served with a copy of the indictment, as above stated, he was also served with a certified list of the twenty-four jurors, selected, and impaneled for the term, in the manner prescribed by the code, and the court overruled the objection and directed the trial to proceed.
Any objection to the panel should have been taken by-motion to set it aside. Anderson v. The State, 5 Ark., 444.
If, under the code practice, the appellant was entitled to a list of the jurors, as he was under the former practice (Gould’s Dig., ch. 52, sec. 155, 156), and as to which we express no opinion, as the question is not raised, it is no valid objection that the list was served on him when in prison and in the absence of his counsel, which seems to be the matter of complaint in this case.
III. That the court erred in deciding that one O. S. Darling, who had been summoned by the sheriff as juror, was disqualified to be a juror.
It appears from‘the bill of exceptions (No. 2) that after the regular panel had been exhausted by challenges, etc., without making up a jury, Darling, with others, was brought in by the sheriff as a talesman, and being questioned on oath touching his competency, stated that he was disfranchised by the laws of Missouri, from whence he came to Arkansas in September, 1868. That the reason why he thought he was disfranchised by the laws of Missouri was, that the registrars there had refused to let him vote. He had served in the confederate army, and had never advocated or voted for reconstruction anywhere. Had lived in Washington county since September, 1868; had never been convicted of any crime, nor held an office before the war, nor taken any oath before or since the war to support the constitution or government of the United States, except an oath which he took near the close of the war ; had never engaged in uncivilized warfare, etc., and was not upon the grand jury that found the indictment in this case, etc. Upon this examination, the court decided that he was not competent to serve as a juror, and appellant excepted.
A juror must be an elector. Gantt’s Dig., sec. 3673. By a clause in the constitution of 1868, as originally framed, a person disqualified as an elector or from holding office in the state from which he came was not permitted to register, vote, or hold office in this state. Clause 2d, sec. 3, art. VIII.
Whether Darling was legally disfranchised by the laws of Missouri, we cannot say, nor do we think the court below could have decided with an assurance of being right, for the franchise laws of Missouri were not introduced in evidence. Darling’, however, stated that he had been refused registration in Missouri, and the court, perhaps, thought it safer to reject than to admit him as a qualified juror.
But whether the court was right or wrong in this, it'is not material to decide, for if wrong, the erroneous rejection of a talesman would be no sufficient cause for granting the appellant a new trial. He had no legal right to have that particular person as a juror. The court might have excused the talesman from serving on the jury for any cause deemed sufficient, in its discretion, without legal prejudice to the appellant.
We have not overlooked the provision of the code, that decisions of the court upon challenges to the panel, of for cause, etc., shall [not be subject to exception (Gantt’s Dig., sec. 1978), but we have no occasion, in this case, to pass upon the effect or. constitutional validity of this provision of the code.
IV. That the court erred in permitting the state to read in evidence to the jury the deposition of Thomas Bevens.
The testimony of Bevens was taken before the committing magistrate, in the presence of the appellant, reduced to writing by one of the counsel for the state, by agreement with the counsel for appellant, read over to the witness, sworn to and subscribed by him, etc. The precise language used by the witness wras not written, but the substance of his testimony was taken down. He had become a nonresident of the state before the trial, and the prosecuting attorney had been unable to procuré his attendance.
These were the material facts about this deposition, proven to the court when it was offered in evidence, as shown by the bill of exceptions. (No. 3.) The court permitted the deposition to be read to the jury, against the objection of the appellant.
It is a provision of the constitution of the United States, and of the constitution of the states generally, that in criminal prosecutions the accused “ shall be confronted with the witnesses against him,” or as expressed in our bill of rights -of 1836, “ to meet the witnesses face to face.” It is remarkable that a similar provision is not to be found in the constitution of 1868, which was in force when this cause was tried below.
But the admission of the deposition of Bevens was no violation of this old landmark of the criminal law. He had been legally sworn and examined before the committing magistrate, in the presence of the appellant, and where he had an opportunity of cross examination, his testimony had been reduced to writing, read to and subscribed by him, and delivered to the clerk by the magistrate, and the witness was-out of the jurisdiction of the, court when his deposition was offered in evidence on the trial, and was admissible as secondary evidence. 1 Greenl. Ev., sec. 11; Bostick v. The State, 3 Humph., 344; State v. Valentine, 7 Iredell, 224; Pope v. The State, 22 Ark., 372.
Y. That the court erred in refusing to permit to be read to the jury, the evidence of John Morrow, as contained in the last bill of exceptions in the case of The State v. Patrick Hurley, jointly indicted with appellant.
This is a mere statement in the motion for a new trial, and it is not shown by bill of exceptions that such evidence was offered and excluded.
YI. That the court erred in admitting the testimony of Hugh Glass, as set out in bill of exceptions No. 5.
The bill of exceptions does not show that any specific ob jection was made to the competency or relevancy of the testimon}r of this witness, nor has the counsel for appellant referred, in his brief, to this point. We are left to conjecture what particular objection was made to the testimony of Glass in the court below, and we are not disposed to attempt to-decide conjectural questions. Some of the facts stated by Glass may have been remote from the issue, or immaterial, but if so, we do not see how they were prejudicial to the appellant.
VII. That the court erred in permitting the jury, when they retired to consider of their verdict, to take with them the deposition of Thomas Bevens.
The deposition of Bevens was read in evidence,- as above shown.
It appears from the bill of exceptions (No. 4) that after the cause was argued, and the charge of the court given to. the jury, and when they were about to retire, the court detached the-deposition of Bevens from other depositions, etc., returned by the committing magistrate, which had not been read in evidence, and delivered it to the jury, and they took it with them on retiring, against the objection of appellant.
Upon retiring for deliberation, the jury may take with them all the papers which have been received as evidence in the cause. Gantt’s Dig., p. 422, sec. 1942; Atkins v. State, 16 Ark., 590.
VIII. That the deposition of Bevens was read by the jury during their retirement, in the absence of the' appellant.
The deposition having been read in evidence to the jury, and the court haying permitted them to take it with them on retiring to consider of their verdict, they had the right to read it, and the appellant had no right to be present.
IX. X, XI, XII, XIII, XIV. The ninth, tenth, eleventh^ •twelfth, thirteenth and fourteenth grounds, assigned in the motion for a new trial, relate to the 'instructions given and refused by the court to the jury.
The court, of its own motion, gave to the jury a written charge of considerable length, and which we deem it unnecessary to copy. The court told the jury in substance, that the appellant (with his brother, Patrick Hurley) was indicted for murder in the first degree; stated the substance of the indictment, defined that grade of ofíense very nearly in the language of the statute, informed the jury of the material facts necessary to be proven by the state, made some remarks upon the law of conspiracy, and of principals in the crime of murder, called the attention of the jury to the fact, that the killing of Schiner, and that he came to his death by violence was not controverted, and that the state had attempted to connect the appellant with the killing by circumstantial evidence only, and then proceeded to instruct the jury in relation to the character and weight of such evidence, very much in the language of the text books, cautioning the jury that they could not convict the defendant unless satisfied by the evidence of his guilt beyond a reasonable doubt, and explaining the legal meaning of such doubts.
It appears from the bill of exceptions that the counsel of the appellant made general objections to the charge; such as that it was redundant, argumentative and abstract, especially that portion of the charge relating to conspiracy.
That the charge was unnecessarily long, superabundant, may be true, but we are not aware that we have the power, or that it is proper for us to undertake to prescribe exact limits for the charges of circuit judges in murder cases, though we think they should be as brief as the circumstances of the case will admit, concise, clear and comprehensive.
It is also true that a portion of the charge was argumentative, but the judge was comparing the relative yalue of direct and circumstantial evidence, and arguing as the text writers do, that if direct evidence, or eye-witnesses were required to convict persons of crime, many secret crimes would go unpunished. The judge made no argument, however, tending to induce the jury to convict the appellant upon the circumstances in proof before them. He stated, argumentatively, merely, that which is the law, that where the corpus delicti is proven, the guilty agency of the accused may be established by circumstantial evidence.
It may be, that portion of the charge relating to the law of ■conspiracy was, to some extent, abstract, though there were two persons charged with the murder, and some circum.stances in evidence tending to connect them in a common criminal purpose and act, but if there was anything objectionable in this portion of the charge, it was amply qualified by several instructions moved for appellant on the same subject and given by the court.
Upon the whole, the charge seems to have been fair, impartial, and made up of principles of law expressed substantially correct.
Ten instructions were asked for appellant, which were nearly as “rendundant” as the charge of the court; all of which were given but the ninth and tenth.
'The ninth was: “That if the jury believe from the evidence in this case, that Thomas Bevens, or any other person, mid James Hurley or Thomas Bevens and either James Hurley or Patrick Hurley, killed John Schiner, mentioned in said indictment, but cannot tell from the testimony and me not satisfied which two of the three did the killing, or were connected therewith, they should find the defendant not guilty.”
It was not necessary for the state to prove that any two persons .killed Schiner, or. were criminally connected with the killing. It was sufficient for the state to prove that appellant did the killing, or that some other person, no matter who, committed the murder, and that appellant was present, aiding, abetting or assisting in the perpetration of the crime.
True, the appellant and Patrick Hurley were jointly indicted for the offense, but if they had been tried together, one of them might have been acquitted and the other convicted. But they severed and it was sufficient, on the trial of the appellant, to prove his guilt, though the jurj’ might have been in doubt as to whether Patrick Hurley, Bevens, or any other person implicated by the evidence, had a criminal agency in the commission of the murder. Gantt's Dig., secs. 1237-8; Dennis v. State, 5 Ark., 252. The instruction was properly refused.
The tenth was: “ That in this cause the question as to whether the defendant is guilty of being accessory after the fact to the murder of John Schiner does not arise, he not being charged in the indictment against him of that offense.”
We are at a loss to conjecture why this instruction was asked. The appellant was indicted as a principal, and not as an accessory after the fact, and was not, and could not have been convicted upon the indictment, as an accessory after the fact. We cannot see how the refusal of this instruction could possibly have been prejudicial to the appellant.
XY, XYI. Fifteenth, that the verdict was contrary to law ; and sixteenth, that it was contrary to evidence.
The verdict was in good form, and responsive to the indictment. The indictment charged appellant with murder in the first degree, and the verdict was : “ We, the jury, find the defendant, James Hurley, guilty of murder in the first degree in the manner and form as charged in the within indictment.”
Schiner seems from the evidence to have been the solitary occupant of a cabin near Fayetteville. On the morning of the 14th of December, 1870, he was found lying dead near his house, and the falling snow was melting on his warm, bleeding body. A large leaden ball had passed through his body, entered his house through a window pane, struck the opposite wall and fallen to the floor or ground. His skull was also fractured. The appellant and his brother Patrick lived at the house of one Morrow, about thirty yards from the cabin of the deceased. By the ball, a gun, ramrod, tracks in the snow, other mute witnesses and circumstances, they were connected with the crime. The jury who tried the appellant had all the facts and circumstances in proof before them. It was their province to weigh them and determine their. sufficiency to establish his guilt. They found him guilty; the presiding judge refused to set aside the verdict, and it is not our province to review the evidence and pass upon its weight.
XVII. That the jury were not sworn in accordance with law, but were illegally sworn.
The record entries show that the jurors were sworn, but the form of oath administered is not set out in the entries, nor in the bill of exceptions. In the absence of any showing to the contrary, it must be presumed that the oath was administered in pfoper form. Greenwood v. The State, 17 Ark., 332.
XVIII. That the jury were not, during the trial of the cause, in charge of the proper officer of court duly sworn in accordance with law.
On this point the bill of exceptions shows nothing. The record entries show, with unusual particularity, that the jurors were placed in charge of a sworn bailiff whenever they left the jury box during the trial.
XIX. That the jury were not sworn all together, and after they weré all selected.
The record entries show that the regular panel was exhausted by challenges, etc., and only part of the jurors ob tained. Such as were taken were sworn to try the cause. The sheriff was sent out for talesmen, brought them in, and from them other jurors were selected and sworn; and this process was repeated until the jury was completed, each lot of jurors so obtained being sworn when selected.
The record shows that all the jurors were sworn, but it does not show that the twelve were sworn together, after they were all selected. It was sufficient, we think, that they were all sworn, and not necessary that they should be sworn all together.
XX. That the court refused to permit the jury to take with them, when they retired to consider of their verdict, the instructions given by the court of its own motion, and the instructions given for appellant.
The bill of exceptions shows that when the jury were about to retire to consider of their verdict, the court refused to permit them to take from the bar the written instructions given them by the court. Whether the jury asked permission to take them, or the counsel for appellant asked the permission, does not appear.
By section 11, árt. VII of the constitution of 1868, in all trials by jury, the judges were required to give their instructions and charges in writing. See also Gantt’s Dig., 1930. Under the former practice, the judges gave their charges verbally, or in writing, at their pleasure. If exceptions were taken to them they were reduced to writing, and set out in the bills of exception. Instructions moved by the parties .were generally reduced to writing, though sometimes moved verbally, and reduced to writing if made the subject of exceptions. In taking bills of exception, controversies frequently arose as to the precise language employed in verbal instructions. It may perhaps have been to prevent such controversies, that the clause in the constitution referred to was framed. Be this as it may, we have no statute nor are we aware of any absolute rule of practice, requiring the judge to permit the jury to take with them, when they retire to make up their verdict, the instructions of the court. We think it a matter of discretion with the judge. If he does not, for any cause deemed sufficient, permit the jury to take them, and they fail to remember them, or are in doubt about them, they can require the officer in charge of them to conduct them into court, and ask that the instructions, or any part of them, be repeated to them. Gantt’s Dig., sec. 1948.
XXI, XXII. The twenty-first ground assigned in the motion for a new trial is: .
“That in the -record and proceedings of this cause, there is manifest error in the action of the court in the returning of the verdict by the jury.”
And the twenty-second is:
“And because said proceedings and verdict of the jury are in utter violation of law.”
The record shows that the jury were ■ conducted into court by the bailiff in charge of them, and in the presence of the appellant and his counsel, delivered the verdict copied above. That they were polled at the request of appellant, and severally assented to the yerdict.
The record also shows that Wm. A. Hunter, one of the jurors, on being called from a list of jurors in which his name had 'been incorrectly written Hunten instead of Hunter, stated his true name tobe Hunter: and it appearing to the satisfaction of the court that said Hunter belonged to the original panel of jurors for the term, that the ticket on which, his name was written before drawing contained his proper name, and that by a clerical misprision his name was written, in an entry of the proceeding of Sept. 29, 1870, Hunten; on motion of the state, the entry was corrected by inserting his proper name.
In all this we see no irregularity of which the appellant had any cause to complain; nor in the whole record do we find any error for which the judgment should be reversed.
The judgment must be affirmed, and its affirmance properly certified to the court below and to the Governor of the state. | [
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English, C. J.
This was a bill to enforce a vendor’s lien, brought in the Phillips circuit court, by Thomas. Pearce against John J. Foreman, alleging in substance, that on the 17th of December, 1858, plaintiff sold to defendant the S. E. 1-4 of sec. 18, T. 2 N., R. 3 E., 160 acres, for $1,120, one ■third cash, and the balance in one and two years, for which notes were given. That at the time of the sale, plaintiff executed to defendant a deed for the land, which was duly acknowledged and recorded, and copy exhibited. That the note first maturing was paid. That in April, 1866, plaintiff brought suit on the second note, in his own name, for the use of Wm. D. Bice, and afterwards, in the same year, obtained judgment, on the law side of the Phillips circuit court, against defendant for $496.51, principal and interest due on the note, etc., which remained unpaid, and a transcript was made an exhibit. That the note was never assigned to Bice, but delivered as collateral security for a debt which was due to Bice from plaintiff; and that the note and judgment belonged to plaintiff. That since the judgment was obtained, defendant had been duly adj udged a bankrupt, under the provisions of the act of congress of March 2, 1867, and received his discharge. That no part of said judgment had been paid, and the same was a lien upon said tract of land. Prayer that the judgment be decreed to be a lien, and the land sold by a commissioner for satisfaction.
The deed exhibited with the bill recites the payment of the purchase money; and was filed for registration Dec. 23, 1859. Foreman answered, admitting the purchase of the land at the time and on the terms stated in the bill, and that the deed exhibited was a copy of the original, executed to him by plaintiff. Then states that on the-day of-, 1859, he (Foreman) sold to one J. 0. Boyd fifty acres of said tract of land, and executed his bond for title thereto, which, not being under his control, he was not able to produce. That said Boyd was a purchaser of said land for a valuable consideration, and without notice of any purchase money being due therefor from defendant. Further states, that on the 12th da3r of December, 1865, and before the rendition of said judgment, he sold and conveyed to E. H. Bartlett, of Phillips county, the remainder of said tract of land, being 110 acres, which would more fully appear by reference to exhibit A., made part of his answer. That he was not the owner, and had no interest in said tract of land at the rendition of said judgment. That said Bartlett was a purchaser of said land for a valuable consideration, and without notice as to any purchase money being due therefor from defendant.
After Foreman’s answer was filed, there is a record entry of 14th December, 1871, stating that the parties appeared, by their solicitors, and, on motion, leave was granted to make Edward H. Bartlett, and the unknown heirs of John C. Boyd deceased, defendants; and thereupon Bartlett entered his appearance, and a warning order was made for the unknown heirs of Boyd.
Bartlett answered. He stated that it was true, as would more fully appear by exhibit A. to Foreman’s answer, that he purchased said land therein mentioned, at the time and for the consideration mentioned, and makes said exhibit his own.
That he was a purchaser of said land for a valuable consideration, and without any notice of any incumbrance on the same, or that any of the purchase money was due or unpaid, to any party. Knew nothing of the judgment mentioned in the bill, and made no answer as to that.
Exhibit A. to Foreman’s answer, adopted by Bartlett as an exhibit to his answer, is a deed from Foreman and wife to Bartlett, for 1,180 acres of land, made up of a number of tracts, and among them 110 acres of the tract in controversy, described as the fractional S. E. 1-4 of sec. 18, etc. The deed recites a consideration of $15,000, as in hand paid by Bartlett to Foreman, and bears date 12 th December, 1865.
After Bartlett answered, the plaintiff, on leave, filed an amendment to his bill, alleging, in addition to the allegations made in the original complaint, that Foreman’s discharge in bankruptcy did not operate to release him from the payment of the unpaid purchase money of said land, because of a fraud perpetrated by him upon the rights of the plaintiff, in this, to wit: that in December, 1865, Foreman was still seized of said land, and plaintiff’s lien thereon for the unpaid purchase money was unimpaired, and said purchase thereby” amply secured; but said Foreman being at that time largely indebted, and in failing circumstances, and in part already insolvent, violated the good faith which the said plaintiff reposed in him in delivering him a deed to said land before the full payment. of the purchase money, and conveyed the .-said land to his brother-in-law, the said Bartlett, without' notice, as said Foreman avers; that the purchase money remained unpaid, intending, by said conveyance to deprive plaintiff of his lien on said land, and debar him from ever recovering the unpaid purchase money; wherefore, plaintiff further prays that judgment in personam be rendered against said Foreman for said unpaid purchase money, etc.
- An attorney, appointed to represent the unknown heirs of Boyd, reported to the court that he had made diligent inquiry and could learn of no heirs of Boyd, or other persons interested in the land, except those before the court. That he had no knowledge of the facts set forth in the complaint, but required strict and full proof the same.
■ The cause seems to have been submitted upon the above pleadings without evidence, and the court dismissed the bill for want of equity, and plaintiff appealed.
1. Had a demurrer been interposed to the original bill by Foreman, it may be that it should have been sustained. He was the.only person made defendant, and the bill averred that he had been adjudged a bankrupt under the act of congress of March 2, 1867, and received his discharge. If so, and he was the owner of the land against which appellant sought to enforce his alleged lien for purchase money, when adjudged a bankrupt, his title passed to his assignee, subject to the equitable lien of appellant for unpaid purchase money, and there remained no ground on which the bill could be maintained against Foreman. Bump., 107; Story’s Eq. Plead., secs. 1228, 1526.
Foreman did not demur to the bill, but answered, and in his answer disclosed the fact that before he was adjudged a bankrupt, he had sold fifty acres of the land to Boyd, and given him a bond for title, and the remainder to Bartlett, and made him a deed. If this be true, nothing passed to Foreman’s assignee in bankruptcy but the legal title to the fifty acres, subject to the equitable rights of Boyd or his representatives, and of appellant.
Whether the allegations of fraud made in the amendment to the bill against Foreman, and which he"did not answer, were sufficient to make him personally liable, notwithstanding his discharge, we need not decide.
2. On the disclosure in the answer of Foreman that he had sold fifty acres of the land to Boyd, there was an attempt to make his unknown heirs parties. Publication was ordered, without amendment of the bill or affidavit, but it does not appear to have been made. Gantt’s Dig., secs. 4528-9.
The statement in the answer of Foreman that he sold fifty acres of the land to Boyd, and gave him a bond for title, and the general averment that he was an innocent purchaser, without notice, would not be a good defense if pleaded by Boyd or his heirs, because notice at any time before the deed is executed is sufficient.
It was proper, however to make the legal representatives of Boyd parties.
3. But Bartlett was made a party, and answered the bill, setting up title to one hundred and ten acres of the land. He avers that he purchased the land of Foreman, at the time and for the consideration mentioned in the deed, made an exhibit to the answer of Foreman, and that he was a purchaser for a valuable consideration, without notice that any^of the purchase-money was due to appellant and unpaid.
This answer was too loose to make out the defense of an innocent purchaser.
To make out the defense of innocent purchaser for value, it-is necessary that the purchaser should, in his answer or plea, state the deed of purchase, the date, parties and contents briefly,, and that the vendor was seized in fee and in possession, and. should state the consideration, with a distinct averment that it was bona fide and truly paid, independent of the rental of the-deed; and should deny notice previous to, and down to the-time of paying the money and the delivery of the deed; and if notice is specially charged, should deny all circumstances-referred to from which notice can be inferred. The notice must be positively, and not evasively denied, whether it be or-be not charged by the bill. Boone v. Chiles, 10 Pet., 210; Ledbetter v. Walker, 31 Ala., 177; Wells v. Morrow, 38 id., 128; 2 Lead. Cas. Eq., Hare & Wall., 91; Byers & McDonald v. Fowler et al., 12 Ark., 286; Miller v. Fraley et al., 21 id., 35 ; Tuley et al. v. Ready et al., 27 id., 98.
Nor did Bartlett produce any evidence to sustain his answer, bad as it was. Where the defense of innocent purchaser is setup affirmatively, as in this case, and not in response to allegations of the bill, he must show an actual purchase for value fully completed, though he may not be bound to prove negatively that he had no notice át the time of the purchase. 2 Lead. Cas. Eq., Hare & Wall., 124, 125.
4. It is insisted for appellees that appellant showed no right, to maintain the bill against any of the parties. That the legal title to the debt was in Rice, for whose use appellant brought the suit at law on the note for the unpaid purchase money, and obtained judgment. There is nothing in this. The bill alleges that the note was not assigned to Rice, but delivered to him as collateral security for a debt due to him from appellant, and that the note and judgment belonged to appellant. Being the owner of the debt, he had the right to bring the bill to enforce the equitable lien upon the land, if there was any, as against parties claiming the land. Crawley v. Riggs et al., 24 Ark., 563.
As to appellee Bartlett, who failed to interpose a valid defense, the bill was improperly dismissed.
The decree dismissing the bill must be reversed, and the cause remanded for further proceedings. | [
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SMITH, J.
Appellants were plaintiffs in the court below, and sued to recover the difference between the contract price and the market value on the sale of 110 head of sheep. Appellee defended upon the ground that the agreement, if any made, related to the sale of goods, wares and merchandise for the price of more than $30 and was, therefore, within the statute of frauds. Appellants alleged that a partial payment of $50 had taken the transaction out of the statute. A verdict was directed in appellee’s favor, and, in reviewing this action, we need, therefore, only consider the undisputed evidence and that offered in appellant’s'behalf. •
It was shown by the vice-president and by the cashier of the Bank of Jonesboro that Freer had arranged with that hank to cash drafts drawn by him on Mark Summers, of West Plains, Missouri, and that the draft drawn in payment of the sheep would have been paid upon presentation. But it was never presented. These officers stated that had payment of the draft been refused, they would have charged it to the account of appellee; but there was no reason to assume that the jury would have found that such a contingency would have arisen, because the officers of the Bank of Jonesboro testified that the Bank of West Plains, Missouri, had agreed to honor all drafts drawn by Freer on Summers and cashed by the Bank of Jonesboro.
The draft in question reads as follows:
‘ ‘ MARK SUMMERS, Live Stock Dealer No. 1214.
West Plains, Mo., Aug. 29, 1916.
Pay to the order of S. W. Woods $50.00
Fifty........................................................................................................................Dollars
pounds
For purchase money of on 110 head sheep sold me, W. D. Freer.
(Signed) W. D. Freer, Buyer.
To Mark Summers,
West Plains, Mo.
122 West Main Street. ’ ’
The terms of the sale were completely agreed upon, and the necessity pxily remained of weighing the sheep to ascertain the balance due. The check was given in part payment of the purchase price, and was accepted as such. Appellee denies that this was done, but as there was evidence tending to establish that fact, we must assume that the jury would have so found ha-d the cause been submitted on that issue.
The briefs in the case are largely devoted to a discussion of the question whether part payment of the purchase money can be made by check or draft, thereby taking the transaction out of the statute. Our statute on the subject reads as follows:
“No contract for the sale of goods, wares and merchandise, for the price of thirty dollars or upward, shall he binding on the parties unless, first, there be some note or memorandum, signed by the party to be charged; or, second, the purchaser shall accept a part of the goods so sold, and actually receive the same; or, third, shall give something in earnest to bind the bargain, or in part payment thereof.” Section 3656 of Kirby’s Digest. It will' be noted that the statute does not require the payment to be made in money.
The cases chiefly relied upon by counsel are those of McLure v. Sherman, 70 Fed. 190, and Groomer v. McMillan, 128 S. W. (Mo.) 285. The Federal case held that payment may be made by check; while the Missouri case held to the contrary. The Missouri case recognizes a check, however, as sufficient if it is received by the seller as an absolute payment, but says that this fact must be clearly established.
Payment is defined in Volume 29 Am. & Eng. Enc. of Law, (2d Ed.), pages 969, 970, as follows: “What the parties agree shall constitute payment, the law will adjudge to be payment. It is competent for parties to designate by their contract how and in what payment may be made. It is by no means true that payment can only be made in money; on the contrary, it may be made in property or in services. In short, whatever the parties agree shall constitute payment will be regarded by the courts as payment, provided the thing agreed upon is of some value. A check given by the buyer when it is accepted in payment and is actually paid satisfies the statutes.”
And in 30 Cyc. p. 1191, it is said: “An order drawn by the debtor upon a third person in favor of the creditor for the payment of money or goods is not a payment of the debt unless such order has been actually paid, or accepted by the creditor as a discharge of the debt pro tanto. It is not enough that the creditor accepts the order unless he accepts it as a payment. On the other hand, if the order is accepted by the creditor as pay ment, or is actually paid to the creditor, or if the creditor agreed to accept such order when the debt was created, the debt is extinguished pro tanto. At any event, where due diligence is not used in collecting or enforcing the accepted order, whereby the claim is lost, the order is deemed a payment.” These authorities cite a large number of cases which discuss this subject of payment.
The question here involved was considered by the Supreme Court of Iowa in the case of Rohrbach v. Hammill, 143 N. W. 872. It was there said: “We understand the contention of appellant to be that there must be an actual payment of a part of the consideration before the contract is taken out of the statute of frauds; that the delivery of a check is not a payment in itself and of itself until the same is paid, until the consideration, evidenced by the check, has passed into the hands of the vendor. This proposition is supported by authority, but it is also true that parties may agree that a check be taken as absolute payment of the debt, or in discharge of a portion of the consideration agreed to be paid, and it will then have the effect of a payment, taking it out of the statute of frauds.” And in the opinion, the court pointed out that, as there was evidence to support the purchaser’s theory,'that the check had been given and received as payment pro tanto of the purchase price, that question was properly submitted to the jury. In the discussion of the law of the question, that court said:
“A check, such as the one in question, is a negotiable instrument. It is a thing of value. It may be the subject of larceny. Checks are in common use, and pass from hand to hand. It is the usual and ordinary way of transacting business of any magnitude, and courts take judicial notice of such custom. Courts ought not to assume ignorance of that which is known to all men. The subject here under discussion is considered in Groomer v. McMillian, 143 Mo. App. 612, 128 S. W. 285; Griffin v. Erskine, 131 Iowa 444, 109 N. W. 13, 9 Ann. Cas. 1193.
“The case of Conde v. Dreisam Gold Mm. & Mill Co., 3 Cal. App. 588, 86 Pac. 828, we think states correctly the rule as applied to cases of this kind as follows: Mt is further claimed that a draft or check is only conditional, and mot absolute, payment of the debt for which it is given, and does not extinguish the debt, unless it is expressly agreed that it shall constitute payment. This is undoubtedly the rule in this State. * * * Mr. Benjamin thus states the rule: ‘A check is accepted as a particular form of cash payment, and, if dishonored, the vendor may resort to his original claim, on the ground that there has been a defeasance of the condition on which it was taken.’ Benjamin on Sales (7th Ed.) pp. 755, 772. We do not, however, understand the rule to require that there should be express words or writing of the parties agreeing that the cheek should be absolute payment. The circumstances and the conduct of the parties taken together may show an express understanding that the check is taken in satisfaction of the debt, or estop the creditor from claiming the contrary.”
' And we approve the conclusion of that court that, while a delivery and acceptance of a check or draft does, not, in all cases, discharge the original debt pro tanto, but that it may be so delivered and received, and that, when this is done, payment has been made and the transaction in which it was made is taken out of the statute of frauds. This question should have been submitted to the jury, and for the error of the court in failing so to do, the judgment will be reversed and the cause remanded. | [
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HART, J.,
(after stating the facts). (1) It is first contended by counsel for the defendant that the court -erred in not granting him a continuance on account of the absence from the State of Irvin Scruggs and Effie Scruggs his wife. In his motion the defendant stated that Irvin Scruggs and Effie Scruggs lived near him, and if present would testify that as far back as the summer of 1915, they discovered that Benton had illicit relations with the wife of the defendant, that they communicated this fact to the defendant and also on subsequent occasions discovered the same fact and communicated it to the defendant; that on the night before the separation of the defendant and his wife in November, 1916, that Benton was found at the home of the defendant at a late hour of the night; that he was confronted by the defendant and admitted to him that he was ruining his home and that if he would leave him alone that he would leave before sunrise the next morning; that the witnesses would further testify that after this Scruggs became morose and moody and seemed to take no further interest in life; that his condition finally became such they regarded him as insane; that these witnesses had removed to the State of Texas about the first of February, 1917, and that if a continuance was granted h'im he could procure their attendance at the next term of the court. The court did not err in refusing a continuance on account of the absence of these witnesses. In the first place the killing occurred on the first day of July, 1917. The defendant after the shooting got in a car with his brothers and went to the town of Searcy and surrendered to the sheriff. He was indicted on the 17th of July, 1917, and his trial was commenced on the 27th day of July, 1917. All the parties lived out in the country. The absent witnesses were of the same name as the defendant and the defendant knew where they went when they left the neighborhood. He knew what their testimony would be and made no effort whatever to have their depositions taken. Besides this it was proved by several other witnesses that Benton had been having illicit relations with the wife of Scruggs and no attempt whatever was made by the State to disprove this fact. It is true there were no other witnesses present on the night in November when the defendant and Benton had their difficulty but several witnesses came in after the difficulty and testified in regard to the actions of the parties. They testified that the separation of Scruggs and his wife occurred on account of her illicit relations with Benton and the undisputed evidence shows that the defendant knew of the intimacy of his wife with Benton and killed Benton on this account. The only defense was that he was insane at the time he committed the act. The testimony of the absent witnesses would have been in part as to facts which were undisputed and cumulative as to the other facts.
(2) It is next contended that the court erred in its ruling as to the competency of two jurors. The jurors were examined separately at great length. We do not deem it necessary to set out their entire testimony. When the whole record bearing on this aspect of the case is read, it is fairly inferable that each of these jurors had formed his opinion from hearsay and not from talking with persons who were witnesses in the case. Each of them said that he had no prejudice against the defendant and that he could try the case entirely in accordance with the evidence adduced at the trial. Jackson v. State, 103 Ark. 21; Bealmear v. State, 104 Ark. 616. Hence there was no error in refusing to grant his .motion for a continuance.
(3) It is next insisted that the court erred in instructing the jury in the absence of the defendant. The defendant was confined in jail during the trial. The record shows that after they had deliberated on the case for considerable time, they Came back into the court room and requested the court to re-read the instructions. The court re-read all the instructions that it had previously given to the jury but did not give any additional instructions. The defendant was not in the court room at the time but his attorney was present. He did not request the presence of the defendant and did not object to the instructions being ré-read to the jury in his absence. He saved his exceptions to the giving of the instructions exactly as he had done when the instructions were first read to the jury, that is to say, he made both general and specific .objections to the giving of the instructions on the ground that they were wrong in the respects pointed out by him. In support of their contention, they rely upon the case of Kinnemer v. State, 66 Ark. 206. In that case the court re-read the instructions exactly as first given to the jury. The defendant was not present when this was done and the record -does not show that even his' counsel was present. The court held that the re-reading of the instructions was tanta mount to instructing the jury originally and that it was error to do so in the absence of the defendant. It is true the court said that even had the record showed affirmatively the presence of defendant’s counsel that his counsel could not have waived his presence while the jury was being instructed. This language was not necessary to the decision of that case and the decision must be considered with reference to the facts of that particular case. Hence that case can not be taken as an authority that the presence of the defendant can not be waived by his counsel. There are authorities to the effect that the presence of the defendant at his trial can not be waived by his counsel but we need not consider these cases for this court has taken the contrary view. It is well settled in this State that the defendant has a right to be presexxt during the whole of his trial when any substantive step is taken, but ixx the case of Davidson v. State, 108 Ark. 191, it was held that when the record shows that counsel acted for the accused in waiving his right to be present at the rendition of the verdict, it will be presumed in the absence of a showing.to the contrary, that they had authority from the accused to waive that right. The right to be present at 'every stage of the trial is a personal right limited to crimixxal prosecutions and is not a jurisdictional limitation upoxx the authority of the court because it secures simply a personal right of the defendant axxd in no manner affects the jurisdiction of the court. It may be waived by the defendant himself. The defendaxxt has the right to be represented by counsel who it is presumed is always fully advised by the defendant. It is a xxxatter of commoxx knowledge that the rights of the defendant are always better preserved by his attorney than could be done by himself. We can coxxceive of no good reason why he may not waive by his attorney anything that he might waive in person. In the absence of a showing to the contrary the presumption is that the attorney had the right to waive his presexxce when the in structions were re-read to the jury. Therefore this assignment of error is not well taken.
(4) It is next insisted that the court erred in telling the jury that in considering the question of whether the defendant was sane or insane at the time of the killing it might also consider all his acts at the time, before and since the killing. Counsel for the defendant claim that there is no evidence in the case showing the acts of the defendant since the killing. The record shows that the defendant walked out of the church deliberately after the shooting, went to the home of one of his brothers and got in an automobile with his brothers and then went to the county seat and surrendered to the sheriff. Hence the court did not err in giving this instruction to the jury.
(5) It is next insisted that-the court erred in giving on its own motion instruction number-5, which is as follows:
“The court instructs the jury that the law presumes every man to be sane until the contrary is shown; and when insanity is set up as a defense by a person accused of crime, in order that the defense may avail, the jury ought to believe from the evidence that at the time of the commission of the alleged crime, the mind of the accused was so far affected with insanity as to render him incapable of distinguishing between right and wrong in respect to the act with which he is charged; or, if he was conscious of the act he was doing and knew its consequences, that he was in consequence of his insanity wrought up to frenzy which rendered him unable to control his actions or direct his movements.”
Counsel claim that the instruction is almost a literal copy of one condemned in Bolling v. State, 54 Ark. 588. A review of that case leads us to the conclusion that counsel are mistaken. The court in that case did condemn' an instruction that the defense should show that the accused was at the time of the killing insane to such an extent as not to know right from wrong. The instruction in the present case does not make this the test at all but on the contrary states the test to be that the defendant must be incapable of distinguishing between right and wrong in respect to the act with which he is charged.
Counsel assign as error the .action of the court in giving certain instructions and its refusal to give other instructions. We do not deem it necessary to set out these instructions or to discuss them in detail. We have carefully examined them and find them to be in accord with the principles of law decided in Bell v. State, 120 Ark. 530.
We find no prejudicial error in the record and the judgment will be affirmed. | [
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HUMPHREYS, J.
Appellee, telegraph operator at Delmar, boarded appellant’s local freight train No. 84, at Biscoe, Arkansas, while on the house track about 150 yards west of the depot, at 8 o’clock p. m. on the 17th day of November, 1915, for the purpose of riding down to Dagmar, six miles east of Biscoe. He took a position between the tender of the engine and a box car with one foot on the draw-head of each and held to the back of the tender with one hand. The depot was on the north side of the track. In appellant’s position, his back was towards the north. The train pulled out of the house track far enough east to clear the switch and this movement placed the engine opposite the depot. The train then backed on the main line west for the purpose of connecting with that portion of the train which had been disconnected when the train came into Biscoe from the west. During the backward movement of the train and while it was running smoothly, appellee fell to the track. The wheels of the engine backed over both legs and practically severed the limbs below the knees. There was evidence tending to show that the conductor struck the appellee with a brake stick on the shoulder and back, causing him to dodge, release his hold and fall to the track where he received the injury. Appellee knew the conductor when he saw him, but no personal acquaintanceship existed between them. They had never had any personal differences, quarrels or altercations. The trainmen had not seen the conductor from the time they first backed west from the depot onto the house track until about 10 or 15 minutes after the injury. When first seen by them after the injury, the conductor was at the caboose at the extreme west end of the train with a brake stick in his hand, in a dispute with-intoxicated bridge men who were also insisting upon riding the train to Dagmar.
The conductor claimed that he rode the engine as the train backed west to pick up cars in the house track, and checked some cars at the switch; then went to the caboose, while the train was pulling out of the house or side track towards the depot. The brakeman operating the switch, nor the one coupling the cars, nor the engineer nor fireman saw the conductor en route to the caboose from the depot. Appellee admits drinking four bottles ,of beer during the day. There is evidence tending to show that appellee was drunk immediately before and after boarding the train. There is also evidence tending to show that he was sober at that time. It is conceded that appellee was a trespasser at the time of the injury. Appellant’s theory is that appellee fell from the train on account of drunkenness and received the injury. Appellee’s theory is that the conductor remained at the depot while the train backed west onto the house track for the purpose of getting additional cars, and when the train pulled out of the switch east towards the depot and stopped, that the conductor boarded the • train with a brake stick in his hand and discovered appellee stealing a ride, knocked him off the train and then proceeded to the eaboose.where he was found when the injury was reported to him. Appellee was removed from the place where injured to the depot where he remained for two hours. He was then placed on one of the seats in the caboose attached to a freight train and carried to a hospital in Little Rock. The distance was 52 miles, and the journey requires six hours. During the trip, he suffered great pain and it was necessary to give him sedatives all along. When the train jerked and jolted, he would scream out with pain. When informed that his legs would have to be cut off, he began to cry and asked for a pistol to shoot himself. He arrived at the hospital at 4 o’clock in the morning, and about 8 o’clock the following night, his legs were amputated. He remained in the hospital for nine months. At the time of the trial, some two years after the injury, one limb was still raw and the other not entirely well. Appellee was.32 years of age at the time of the injury, and had an expectancy of 33 9-10 years. His average earning capacity was about $65 per month.
Appellee brought suit against the appellant in the Calhoun circuit court for $50,000 compensatory, and $5,000 punitive damages. He recovered a judgment for $25,000 as compensatory damages and $2,500 punitive damages, from which ¿n appeal has been prosecuted to this court.
(1) It is insisted that the court erred in refusing to give a peremptory instruction to the jury in favor of appellant. . If there is sufficient legal evidence in the record to sustain the finding of the jury to the effect that Mr. Dale, the conductor, while acting in the scope of his employment, knocked appellee off of the train, which was under his control, which was the proximate cause of the injury, then appellant was not entitled to a directed verdict in its favor. It is a settled principle of law in this State that a railroad company is liable for the tortuous acts of its servants resulting in the injury of another, if acting at the time within the scope of his employment, or in the line of his duty. Railway Co. v. Hackett, 58 Ark. 381; St. D., I. M. & S. R. Co. v. Grant, 75 Ark. 579; St. L., I. M. & S. R. Co. v. Pell, 89 Ark. 87; St. L., I. M. & S. R. Co. v. Robertson, 103 Ark. 361. In the instant case, the jury was instructed not to return a verdict for appellee unless a preponderance of the evidence showed that Dale, the conductor, knocked appellee off of the train while acting within the scope of his employment. It is admitted that the jury was correctly instructed in this regard.
(2) The contention was made that there is no substantial evidence to show that the conductor knocked appellee off the train; or, if there was substantial evidence to show that fact, then there was no substantial evidence to show that the conductor was acting in the line of his duty at the time. Appellee testified positively that the conductor knocked him off the train with a brake stick. It was strictly within the province of the jury to pass upon the credibility of the witness and the weight to be attached to his evidence. Unless his evidence was contrary to the physical facts, the findings of the jury based on his evidence are conclusive on appeal. We have examined the evidence very carefully to discover whether the conductor had an opportunity to strike him. He could have struck appellee while the train was backing west the last time. There was sufficient lapse of time after the injury and before the conductor was seen at the caboose for him to have gotten off the train and walked to the caboose. His testimony was accepted by the jury and is not contradicted by the physical facts. It alone was sufficient to support the verdict under the rule on appeal. His testimony, however, was corroborated to some extent. ■When the conductor was found a short time after the injury, he had a brake* stick in his hand such as was described by appellee. Enough was testified to by parties present at the time to indicate that appellee had been knocked off the train. We think the finding of the jury that the conductor knocked appellee off the train is supported by sufficient evidence of a substantial nature.
(3) It next becomes pertinent to inquire whether there is substantial evidence to show that the conductor was acting in the line of his duty when he struck appellee. It has heretofore been said by this court that, “Whether the particular act of a servant was or was not in the line of his duty is a question for the jury to determine from the surrounding facts and circumstances, * * * St. L., I. M. & S. R. Co. v. Hendricks, 48 Ark. 177. This court has also said that it was clearly in the line of a conductor’s duty to expel or remove a trespasser from the train in his charge. St. L., I. M. & S. R. Co. v. Robertson, 103 Ark. 361.
Dale, conductor, testified that he had the train in charge and that it was a part of his duty not to permit trespassers to ride on the train if he knew it. Appellee testified that the conductor used some rough language which he did not understand and knocked him off the train; that they had no personal acquaintance and that they had never had any differences or altercations; that he was a stranger to the conductor. From the evidence of both, the jury had a right to infer that the conductor was acting within the scope of his employment when he thus removed appellee from the train. There is nothing in the record from which to infer that the conductor was attempting,' by the act, to effect some independent purpose of his own. He did not know the appellee. He had no ill feeling or malice toward him or personal quarrel with him. Only a few minutes after the injury, he was found trying to keep objectionable characters off of the train. There is sufficient legal evidence in the record to support the finding of the jury that the con ductor was attempting to eject appellee from the train when he struck him.
(4) It is insisted that the court erred in giving the following instruction on the measure of damages: “If the jury find for the plaintiff they will assess his damages at such a sum as will compensate him for the bodily injury sustained, if any; the physical pain and mental anguish suffered and' endured by him in the past, if any; and that which he will endure in the future, if any, by reason of said injury; his loss of time, if any, and his pecuniary loss from his diminished capacity for earning money throughout life, if any; and from these, as proven from the evidence, assess such damages as will compensate him for the injuries received.”
This court has refused to reverse cases in which an instruction on the measure of damages similar to the present one was given. St. L., I. M. & S. R. Co. v. Cantrell, 37 Ark. 522; St. L., I. M. & S. R. Co. v. Hydrick, 109 Ark. 239; St. L., I. M. & S. R. Co. v. Cobb, 126 Ark. 225. We adhere to our former rulings regarding it.
(5) Lastly, it is insisted that the verdict for compensatory damages for the sum of $25,000 is grossly excessive and the result of passion and prejudice. There is no positive evidence in the record showing that the jury was swayed by passion or prejudice. If any existed, it must be inferred from the amount of the verdict returned. It is evident that the earning capacity of appellant is practically destroyed. This means a loss of between $60 and $70 a month to him for about 33 years. His expectancy at the time of the trial was 33 9-10 years. His mental anguish and physical suffering was almost beyond endurance. As a result of this injury, appellee will necessarily endure a 'degree of mental anguish all the days of his life. We do not think the amount of the verdict in this particular case is disproportionate to the loss of earning power, and physical pain gnd mental anguish already endured, and yet to be endured, as established by the evidence. After a full consideration of all the facts and circumstances in the case, we are not prepared to say that the amount is so excessive as to necessarily indicate that the verdict is the result of prejudice or passion.
No error appearing in the record, the judgment is affirmed. | [
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McCULLOCH, C. J.
William L. Cowden, a resident of the State of Kansas, secured a policy of accident insurance upon his own life, payable to his wife, Florence L. Cowden, from the defendant, Business Men’s Accident Association of America, an insurance corporation domiciled at Kansas City, Missouri. Cowden met his death on or about September 27, 1913, while the insurance policy was in force. His body was found in the Missouri River at Kansas City on October 1,1913, and due notice of death was given by the beneficiary in accordance with the terms of the policy. Proof of loss was made and furnished on blanks provided by the company, and payment of the policy was refused on the ground that the manner of death did not come, within the terms of the policy, so as to create liability on the part of the insurer.
The present action to recover on the policy was instituted by the beneficiary, Mrs. Cowden, in the circuit court of Marion County, Arkansas, nearly three years after the death of her husband. The trial of the cause before a jury resulted in a verdict in favor of the plaintiff for the amount of the policy and the court rendered judgment for the amount, and also for attorney’s fees, but refused to enter judgment in favor of the plaintiff for the twelve per centum damages prescribed by statute. The defendant appealed from the ¡judgment and the plaintiff cross-appealed from that part of the judgment refusing to allow damages. The verdict of the jury was rendered in plaintiff’s favor pursuant to a peremptory direction by the court.
The first question presented here for.our consideration is whether or not the court erred in directing a verdict. The policy of insurance constituted, according to its terms, an undertaking on the part of the defendant company to pay the amount named therein to the said William L. Cowden in the event of his accidental injury, or, “in the event of accidental death to pay to Florence L. Cowden (his wife) the benefits * * * provided such injury or death be caused during his membership, solely and exclusively by external, violent and accidental means.” Reference is made in the policy to the by-laws of the defendant association and the same were declared to be a part of the policy. The by-laws contained a provision to the effect that the company should not be liable for “intentional injuries inflicted by the insured while sane or insane, or by any other person while sane or insane, except assaults committed for the sole purpose of burglary or robbery,” which said provision was, by express stipulation of counsel entered on the record at the time of trial, conceded to exclude liability on the part of the company for death of the insured caused by self-inflicted injuries, or by injuries inflicted by any other person “except assaults committed for the sole purpose of burglary or robbery. ’ ’ At the beginning of the trial the following agreement was entered into- concerning the facts:
“It is admitted that William L. Cowden, the insured, is dead, his body haying been found in the Missouri River at Kansas City about October 1, 1913, with a wound on the head and face on the right side that penetrated the brain and caused his death. It was a sharp and in cised wound that did not fracture the bone or tear the flesh. It was just cut.”
Thereupon the court announced a ruling as follows: “Upon that admission the burden of proof is upon the plaintiff to show that proofs of death were furnished to the company, and upon the defendant to show that the insured came to his death as a result of murder, and not an accident. ’ ’
(1) The plaintiff then introduced certain letters received from the defendant’s manager of the claim department acknowledging receipt of the proof of loss within due time, and subsequently denying liability under the policy. The plaintiff then rested her case, and no other proof was introduced in the case except the further admission above referred to concerning the exclusion of liability for certain causes of death. The ruling was not accurate in declaring the extent to which the burden rested on the defendant, but jphe court was correct in holding that the admission of facts set forth in the record cast upon the defendant the burden of proof to show that the death occurred from one of the causes which exempted the company from liability and constituted a defense to the action. In other words, the admission of the fact that the death occurred from violent, external means made out a prima facie case in favor of the plaintiff, and put the burden of proof on the defendant to show that the death resulted from a self-inflicted wound, or from a wound inflicted by another person for purposes other than for burglary or robbery. The point is expressly ruled by the decision of this court in the recent case of Aetna Life Insurance Co. v. Taylor, 128 Ark. 155, 193 S.W.540, where we said that ‘ ‘ accident policies generally contain a clause, the purpose of which is to relieve the insurer from responsibility in case of death of the insured caused by intentional injuries inflicted by the insured or some third person, or caused by disease, or caused by voluntary exposure to unnecessary danger, etc., and that, where the insurer sets up the breach of one of these conditions as a defense, the burden is, of course, upon it to prove by a preponderance of the evidence that death was caused by a breach of one of these conditions.” The present case falls squarely within this rule. The policy in suit provided for payment in the event of death of the insured “solely and exclusively by external, violent and accidental means” but a further condition was prescribed in the by-laws which exempted the company from liability in certain events. So where the proof adduced either by the testimony of witnesses or by agreement of parties made out a prima facie case in favor of the plaintiff by establishing the death from “external, violent and accidental means” the burden shifted to the defendant to prove that the death resulted from some of the causes falling within the exemption prescribed in the by-laws.
(2) The only remaining question, then concerning the correctness of the court’s ruling in giving a peremptory instruction is whether or not, upon the admission of this fact, there was sufficient testimony to warrant a submission to the jury of the issue cause of death from some of the means which would have exempted the defendant from liability. There is a presumption against suicide. Grand Lodge v. Bannister, 80 Ark. 190; Aetna Life Insurance Co. v. Taylor, supra. In the face of that presumption and of the conceded facts set forth in the agreement concerning the condition of the body when found, it can scarcely be urged with any degree of plausibility that a finding of suicide would have been justified. There is no circumstance tending to establish suicide and nothing from which any reasonable inference to that effect could have been drawn. So there was certainly no error in the failure of the court to submit that question to the jury. The condition of the body as shown by the agreement; was, it is true, sufficient to warrant the inference that death was caused by a violent blow inflicted by some other person, and that question should have been submitted to the jury if a finding thereon would have been determinative of the liability of the defendant. But, under the terms of the policy, and the-rules of evidence applicable to the trial of the issue, it devolved upon the defendant to prove not only that the death of Cowden resulted from wounds inflicted by some other person, but also that the assault was for some purpose other than for burglary or robbery. Now there was nothing in the meager circumstances set forth in the agreement that would have justified the jury in determining what the purpose of Cow-den’s assailant was. That was purely speculative and was a matter of conjecture which the jury would have had no right to indulge in. In other words, there was entire absence of proof as to the purpose of the assailant and therefore, there was nothing to submit to the jury on that issue. The defendant simply failed to maintain the burden cast upon it to make out a defense and the court was correct in directing a verdict in favor of the plaintiff.
(3) Numerous other errors of the court are assigned. It is contended that the proof of loss furnished by the plaintiff was insufficient to show on its face liability of the company in accordance with the terms of the policy, and that the court erred in refusing to render judgment in favor of the defendant on that account. The contention is that proofs of loss making an affirmative showing of liability is a condition precedent to the maintenance of an action. Conceding that the proof of loss fails to show on its face a case of liability against •the defendant, or even that it shows affirmatively a cause of death for which the defendant was not liable, yet we do not agree with counsel that this state of the proof would prevent recovery. The proof of loss is a condition of the policy which may be waived by the insurer and is waived by accepting, without objection as to form, the proofs offered by the claimant. Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475; Home Ins. Co. v. Driver, 87 Ark. 171. The policy provided that proof of loss should be made out on blanks furnished by the company, and it appears that that was done in the present case. No objection was made to the form or subject-matter of the proof, but liability was denied solely on the ground that the facts of the case did not make the company liable under the policy. Counsel argue the point as if the terms of the policy were sufficient to restrict liability to a case affirmatively made out by the statements in the proof of loss. In other words, it is argued that under the by-laws the liability of the company is conditioned upon an affirmative showing of liability made in the proof of loss rather than upon the facts as they really exist and proved on the trial of the cause. Such is not, we think, the law, and that view of the matter is in conflict with our decision in the recent case of Columbian Woodmen v. Hewitt, 122 Ark. 480. In that case the requirement of the policy was that where the claim was based upon the fracture of a bone an X-ray photograph must accompany the proof of loss, and it was contended that in order to establish liability it was necessary to furnish with the proof of loss itself an X-ray photograph revealing the fracture, but we held to the contrary and held that even if the photograph failed to disclose the fracture, yet there might be recovery upon proof being adduced at the trial showing that there was in fact a fracture of the bone. The decision of the Supreme Court of the United States in the case of Insurance Co. v. Rodel, 95 U. S. 232, is also in point and establishes the law contrary to the contention of counsel for defendant.
It is next insisted that the court erred in refusing to permit defendant to introduce in evidence the proof of loss furnished by plaintiff as an admission concerning the death of the insured. There is a controversy between counsel as to what really occurred, but an inspection of the record leads us to the conclusion that the court did not refuse to permit defendant to introduce the proof of loss for the purpose named, but, on the contrary, expressly ruled that the proofs could be introduced for consideration by the jury as an admission of fact made by the plaintiff concerning the cause of death. When the court announced its ruling, counsel for defendant shifted \ their position, insisting that the proofs, of loss were competent to show their insufficiency, or, to use the precise language of counsel at the time the incident occurred, ‘ ‘ to show that there was no proof of claim.” The evidence was not competent for that purpose, as it is shown by the uncontradicted evidence that the proof had been accepted by defendant without objection and the insufficiency of the proof was, therefore, waived. Counsel failed to take advantage of the offer of the court to introduce the proofs of loss, and the record does not show that the same were introduced at all for any purpose. The bill of exceptions contains the document merely as an offer on the part of the defendant to introduce it, but it was not introduced before the jury for consideration for any purpose. Defendant can not, however, complain for tAe reason that it declined to accept the court’s offer to introduce the proofs of loss with a restriction of the consideration for the purpose named. We find no error according to the record in this regard.
(4) The plaintiff took the deposition of two witnesses, and the same were duly filed, but did not introduce the depositions in evidence. The defendant thereupon claimed the right to introduce the depositions, but the court refused to permit this to be done and the.ruling is assigned as error. The depositions were taken upon notice, and not by agreement, and counsel for defendant appeared and cross-examined the witnesses, and also brought out new matter from the witnesses upon which counsel for plaintiff cross-examined. Notwithstanding the conflict of authority on the question, this court has steadily adhered to the rule that where depositions are taken by a party upon notice to be used in an action at law, they can not be introduced over the objection of the party by his adversary, the rule being otherwise where the depositions are taken by agreement. Greenville Stone & Gravel Co. v. Chaney, 195 S. W. 13. Counsel for de fendant insist that the reason upon which onr ruling is based is that the party has not had an opportunity to cross-examine, and that in this particular case that reason for the rule is absent and the rule itself should not apply9. It is a mistake, however, to say that the reason stated by counsel is the only one upon which the decision of this court is based. On the contrary, other reasons were distinctly given in the first case announcing the rule. Sexton v. Brock, 15 Ark. 345. The question was very carefully considered in that case and the opinion by Chief Justice Watkins laid down the rule which appears to be sound in reason and has never been departed from by this court. Suffice it to say the present case falls within that rule, and our former decisions are now adhered to.
(5) The remaining assignment to be discussed relates to that part of the judgment which awards recovery of attorney’s fees, and we are of the opinion that the court erred for the reason that the liability under this policy does not fall within the terms of the statute of this State authorizing the recovery of 12 per centum damages and reasonable attorney’s fees in cases where loss occurs and the insurance company fails to pay after demand. Act of March, 1905, page 307. We have held that the statute is highly penal and should be strictly construed, and we refused to apply it to a policy issued by a fraternal insurance society. Knights of Maccabees v. Anderson, 104 Ark. 417. In the case of Arkansas Mutual Fire Insurance Co. v. McManus, 86 Ark. 115, we upheld the constitutionality of the statute and in the opinion treated it as one borrowed from the State of' Texas, where it has been upheld as the proper exercise of the police power. The Supreme Court of the United States upheld the constitutionality of such statutes on the ground that they constituted conditions upon which corporations are permitted to do business in a given State. Fidelity Mutual Life Assn. v. Mettler, 185 U. S. 308. The statute was evidently intended by the lawmakers as a part of our insurance laws regulating insurance companies doing business in this State, and was intended as a protection to the holders of policies written in the progress of that business. It was not intended to penalize insurance companies for failure to comply with contracts executed and to be performed wholly within another State, for otherwise the effect would be to give an extraterritorial force to a highly penal statute. We should not attribute any such intention to the lawmakers. It is insisted by counsel for plaintiff that this court in the case of Massachusetts Bonding & Ins. Co. v. Home Life & Accident Co., 119 Ark. 102, held that the statute applied to losses which occurred outside of the State under policies written elsewhere, but such is not the purport of that decision. We merely held there that a penalty could not be collected out of, the assets of an insolvent corporation because of the failure of the receiver to pay, and the question was not raised there as to the right to impose a penalty under the statute on a policy written elsewhere and where the loss occurred in another State. The property insured in that particular case was situated in Arkansas and that would differentiate the facts in that case from those' in the present case. However, we hold that the statute was not intended to penalize a company on policies which were written and which matured in another State.
The court was in error, therefore, in rendering a judgment for recovery of attorney’s fees and that part of the judgment is reversed. In other respects the judgment is affirmed. | [
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SMITH, J.
Appellant is a married woman, and was sued alone for slander. The complaint alleged that she said of and concerning appellee, who was the plaintiff below, that “John Butler is a dirty liar and a thief, meaning thereby to charge the plaintiff with having been guilty of committing, a theft.” Appellee was appellant’s tenant on her farm, and they had disagreed about the rent, and she desired to eject him from the farm. One witness for appellee testified that appellant had said that she wanted appellee to move from her place because he was a liar and a thief and she did not want him about her. Another witness testified that appellant had said appellee was not a proper character to have on her place, that he was a devil and a thief and a snake in the grass. And substantially the same testimony was given by.another witness. These remarks, according to. the witnesses, were made at different times by appellant to persons who sought to pacify her when she spoke to them about appellee and evidenced great bitterness of feeling.
Appellant denied having made the remarks attributed to her, and testified that one of the witnesses against her was a partisan of her adversary, and had sided with him in her controversy over the land, and had himself denounced her for her attempt to eject appellee from the farm, and she denied making the remark testified to by the other witnesses. She also testified that during the period of time when the remarks derogatory to appellee were said to have been made she was confined to her bed with a mental and physical disorder. But the suit was not defended upon the ground that appellant was mentally irresponsible.
,(1) The court charged the jury that the words alleged to have been used were actionable per se, and to find for the plaintiff in some ;sum, if they found they were used by appellant with reference to him; but gave no instructions on the subject of punitive damages, although both compensatory and punitive damages were sued for.
The testimony devéloped the fact that appellant was a married woman. But no request was made that her husband be joined as a defendant, and no instruction was asked on that subject, and the court was not requested to make any order in regard thereto. If it be conceded that the husband is a proper party — which we do not decide — that question can not be raised here for the first time. Hixson v. Cook, 130 Ark. 401.
Nor can we review the action of the court in giving or refusing instructions, as no exceptions in this respect appear in the motion for a new trial.
Appellant insists that the court erred in instructing the jury that the words alleged to have been employed were actionable per se, and that such would not be the case if they were used as mere terms of abuse, and that from the circumstances under which they were used it was apparent that they were not intended or understood as charging a felony or a crime. But wehave no such question in this case. The words alleged to have been used were not addressed to appellee, but were said about him, and the suit was not defended upon the ground that the words used were mere epithets and were not intended nor understood as imputing the charge which their ordinary meaning implies, and the court did not err in the charge on this subject. Stallings v. Whittaker, 55 Ark. 494; Gaines v. Belding, 56 Ark. 94; Jackson v. Williams, 92 Ark. 486.
(2) The serious question in the case is whether or not error was committed in refusing to grant a new trial on account of the misconduct of R. B. Turner, a juror. Affidavits were filed by witnesses Wackerly and Alvis to the effect that prior to the trial Turner, who appeared to be familiar with the case, had stated to them that appellee ought to recover damages in his suit. These witnesses were examined before the court, and, while they substantially repeated the material part of their affidavits, their testimony, taken as a whole, somewhat modified their affidavits. The juror was also examined in open court on the hearing of the mption for a new trial, and he testified that he knew the parties to this litigation, as he lived in the neighborhood in which they resided, and that he was somewhat familiar with the facts concerning the controversy between the parties to this litigation over the land, and he admitted that he may have mentioned the case to the witnesses Wackerly and Alvis; but he stated that he had never heard any of the witnesses talk about the case, and had never heard the merits of the case discussed, and had not formed or expressed an opinion regarding it. Wackerly and Alvis were not witnesses in the case except upon this collateral matter. It is provided by Section 4492 of Kirby’s Digest that no person fshall be sworn as a juror who has formed or expressed an opinion concerning the matter in controversy, and if such person conceals that fact when interrogated as a juror, and thereby imposes himself upon the litigants, the court should grant a new trial when these facts are made to appear. But we can not say, from the testimony heard by the court below, that any imposition was practiced by the juror. The court heard the evidence and passed upon it, and we are bound by that finding, as it does not appear to have been arbitrarily made.
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KAREN R. BAKER, Judge.
hA jury in Crawford County Circuit Court convicted appellants Luis Camacho-Mendoza, Conrado Giovany Cordona-Duarte, and Angel Yonis Romero of possession of cocaine with intent to deliver and possession of drug paraphernalia. Each appellant received a sentence of 480 months for possession with intent to deliver and a sentence of 120 months for possession of drug paraphernalia. The sentences were to run consecutively. On appeal, appellants assert first that the trial court committed error when it denied their motion for a directed verdict based on a lack of probable cause for the initial traffic stop made by Trooper Waters, and second, that appellants did not waive their Miranda rights voluntarily, knowingly, and intelligently. Because appellants’ arguments were not preserved for our 12review, we affirm appellants’ convictions.
On January 23, 2008, appellants Luis Camacho-Mendoza, Conrado Giovany Cor-dona-Duarte, and Angel Yonis Romero were traveling along Interstate 40 near Van Burén in a blue Chevrolet Cobalt. State Trooper Chris Waters was parked at mile-marker ten along Interstate 40 and was watching traffic in the eastbound lane. He testified that when appellants’ vehicle passed him in the eastbound lane, he observed several air fresheners hanging from the vehicle’s rear view mirror. Trooper Waters followed the vehicle. He noticed a North Carolina Rent-A-Car bumper sticker as well as a bar-code sticker on the rear bumper. He testified that he was going to “run the tag” on the vehicle. He acknowledged that at this point the driver, Camacho-Mendoza, “had done nothing illegal.” The report came back indicating that the North Carolina tags on the vehicle were not registered to a Chevrolet Cobalt but to a Chrysler Sebring.
Based on the fictitious tags, Trooper Waters suspected that the vehicle could be stolen. He, therefore, initiated a stop. Trooper Waters approached the vehicle on the passenger side and asked Camacho-Mendoza to accompany him to his patrol car. Trooper Waters said Camacho-Mendoza appeared very nervous, had “trembling” hands, and would not make eye contact with him. Camacho-Mendoza told him that Romero had rented the vehicle, and Camacho-Mendoza identified Romero as the passenger sitting in the front seat of the vehicle. Trooper Waters then approached the passenger side of the vehicle to obtain the rental | .¡agreement. As he did so, he observed Romero putting something in the front of his pants. Trooper Waters testified that he believed that Romero was reaching for a gun, and based on that belief, Trooper Waters pinned Romero’s chest to the seat of the vehicle. Trooper Waters pulled Romero’s shirt back and saw a duct-taped package. Realizing it was not a gun but rather possible contraband, he pulled Romero from the vehicle. Simultaneously, Trooper Waters instructed Camacho-Mendoza to put his hands on the patrol car. At this point, another officer arrived to assist Trooper Waters. Romero was handcuffed, and the package was pulled from his pants. Another duct-taped package was found under the seat, along with $2450 in cash.
Trooper Waters testified that during his encounter with the suspects, he did not have any difficulty communicating with any of them, despite their Hispanic backgrounds. Waters testified specifically that Camacho-Mendoza “seemed to understand the reason [he] stopped him.” Trooper Schmidt explained that he Mirandized the appellants once they were transferred to the Fort Smith State Police Headquarters. Trooper Schmidt testified that he read aloud the rights form in English while appellants followed in Spanish. Camacho-Mendoza signed the Spanish form and wrote “yes” on each of the five lines. Camacho-Mendoza indicated to Schmidt that he understood his rights. Trooper Schmidt stated that “when [he] talked to them in English they gave [him] appropriate responses in English.” Schmidt stated that it did not appear that the appellants had any problem answering the | ¿officers’ questions. Trooper Schmidt asked Camacho-Mendoza if he needed an interpreter, and Camacho-Mendoza responded that he could understand the troopers’ questions without an interpreter. Appellants signed the Miranda forms and gave tape-recorded statements.
Camacho-Mendoza testified on his own behalf. He stated that he was a resident of Mexico and that he had been in the United States for two years. He stated that he currently lived with his wife and child in Winston-Salem, North Carolina. While living in North Carolina, he was employed at a Burger King restaurant and Cracker Barrel where he was responsible for cleaning the establishments and washing the dishes. Camacho-Mendoza described the events that led up to his arrest. He stated that in January 2008, Cordona-Duarte and Romero invited him to a party in Texas. Camacho-Mendoza explained that before leaving for Texas, a person known as “The Dog” sent them money to rent a car in Charlotte, North Carolina. Romero rented the vehicle in his name. Camacho-Mendoza testified that he was leaving his current job in hopes of finding construction work in Texas. When they arrived in Texas they met The Dog, and he instructed them to go to Los Angeles. Appellants were in Los Angeles for only one day; while they were there, “the package was passed to [them] at a gas station.” Camacho-Mendoza testified that he suspected that the package contained drugs, although he did not know what type of drugs. He also suspected that it was The Dog that made the drug deal and that The Dog was using them “to make the delivery.”
Camacho-Mendoza testified that they left Los Angeles and intended to drive straight Lback to North Carolina. Although Camacho-Mendoza did not have a valid United States drivers’ license, he alternated with the others in driving the rental car. He had just begun to drive when they were pulled over while driving on Interstate 40 in Arkansas on their way back to North Carolina. Camacho-Mendoza testified that he was nervous when Trooper Waters pulled him over because he knew that he was illegally in the United States and feared that he would be deported. Camacho-Mendoza stated that he exited the vehicle. Trooper Waters began asking him questions, and Camacho-Mendoza testified that he “didn’t understand” Trooper Waters’s questions. He explained that the packages of drugs were “on the floor” of the vehicle and were “visible.” Appellants were taken into custody, and Camacho-Mendoza stated that he remembered Trooper Schmidt handing him a written form in Spanish. He admitted that he signed the form, but stated that he could “read a little bit.” He only attended school for “about two years.” He stated that even after being transferred to Fort Smith, he still “didn’t understand all of the questions at the time.” He testified that he was afraid of the drug dealers involved in the transaction, and based on that fear, he gave the police the contact information that he had for the dealers.
Cordona-Duarte testified that he could “read and write in Spanish a little” and that he could “not read and write in English.” He testified that he had only three years of schooling. He had been in the United States for nine years and had worked at Cracker Barrel for six years. He testified that The Dog was going to get him construction work in Amarillo, Texas. |ñWhen they arrived in Amarillo, they met The Dog. He explained that they stayed in Amarillo for a couple of days before leaving for Los Angeles with “two things that were wrapped up.” He stated that he did not know what was in the packages. He suspected that the packages contained drugs, but “it was [too] late.” He felt that he was “tricked.” The Dog made all of the arrangements. Cordona-Duarte testified that he had already been paid for delivering the packages. He explained that once the men were at the Fort Smith police headquarters, his request for an interpreter was denied. He stated that Trooper Schmidt read him a rights form that was in English, and he was handed a Spanish form that he could only read “a little.” He testified, however, that he signed the form.
Romero testified that he had been living in the United States for ten years and had been working with a permit as well as a Social Security number. He testified that he had an eighth grade education and could read and write in Spanish. He stated that he met Cordona-Duarte and Camacho-Mendoza at a party in North Carolina. In January 2008, the three of them decided to go to Texas. He was told that there was work in Amarillo and that The Dog, whom he had never met, would transfer money to him ($3000) in North Carolina. He stated that he rented the vehicle in Charlotte, North Carolina. Three days later they left for Amarillo, where they stayed for two days. They met up with The Dog, and he told the men to go to Los Angeles where he had friends with work for the men to do. He testified that he realized that the work was not construction work when The Dog told the men to go straight |7back to North Carolina from Los Angeles. He testified that he had not used or seen drugs before, so he did not understand the situation. He stated that Camacho-Mendoza had two cellular phones on his person and that Camacho-Mendoza was the one that was in contact “with The Dog or the people [they] were supposed to meet” during the trip. He testified that in Los Angeles, two packages were loaded into the rental car and the men were instructed to return to Charlotte. He described the two packages as appearing to “contain white stuff’ and being wrapped “in plastic and duct tape.” He testified that the men were supposed to be getting $500 for the delivery.
Romero also gave his version of the events during and after the traffic stop. He explained that he was sitting in the front seat of the rental car when Trooper Waters pulled them over. He stated that he was asleep when Trooper Waters approached the passenger side of the vehicle and that Trooper Waters woke him and asked him for his driver’s license. Romero explained that when he leaned forward to get the rental agreement from the glove box, Trooper Waters saw the package lying on the floor. Trooper Waters asked Romero to hand him the package, and in the process, “it ended up in [his] lap.” The Trooper then placed his hand on Romero’s shoulder and asked him to get out of the car and handcuffed him. Romero specifically denied putting the package down his pants.
Romero stated that at the police station he gave Trooper Schmidt permission to record the conversation. Trooper Schmidt asked him questions in English, and Romero stated that sometimes he understood the question and sometimes he had to ask Schmidt to repeat the |squestion. Schmidt had Romero read the rights form in Spanish. Romero admitted to signing the form. He stated, however, that his request for an interpreter was denied. He testified that he spoke “little English” and understood “some wor[d]s.” He admitted that he was speaking English on the video tape, but that he did not “speak perfect English.”
The crime lab report showed that the white powdery substance taken from appellants’ vehicle was cocaine and that the two packages together weighed 1,987.3 grams. Following the investigation, appellants were charged with one count of possession of cocaine with intent to deliver and one count of possession of drug paraphernalia. After a jury trial, appellants were convicted on both counts and sentenced to 600 months’ imprisonment in the Arkansas Department of Correction. This appeal followed.
For their first point of error, appellants allege that the trial court committed error when it denied their motion for a directed verdict. As part of their directed-verdiet motion, appellants argued below that without the physical evidence and the statements from appellants, there was insufficient evidence to support their convictions. They moved to dismiss the charges on the basis that Trooper Waters lacked probable cause to stop the vehicle. For their second point of error, appellants assert that their Miranda rights were not waived voluntarily, knowingly, and intelligently because their rights were not adequately communicated in either Spanish or English, preventing appellants from understanding the nature of their rights or the consequences of waiving them. For these reasons, appellants assert that all physical evidence seized and statements made should have been suppressed.
lsThe issue of suppression of the physical evidence and statements was presented to the court for the first time at the close of the State’s evidence. Appellants did not file a motion to suppress prior to trial nor did they object to the introduction of either the evidence or statements when they were presented to the jury. A similar argument was presented to this court in Holt v. State, 15 Ark.App. 269, 692 S.W.2d 265 (1985). In Holt, this court held
We decline to reach the merits of the issue raised by the appellant because the issue was not properly presented to the trial court. Although the appellant, on appeal, labels his motion a “motion to dismiss,” in reality it was a motion to suppress the evidence coupled with a motion for a directed verdict. Motions to suppress are governed by Rule 16.2 of the Arkansas Rules of Criminal Procedure. Rule 16.2(b) requires that such a motion be timely filed, but not later than 10 days before trial, except that the trial court has discretion to allow a later motion to suppress on a showing of good cause. No motion to suppress was filed prior to trial, and no attempt was made to demonstrate good cause for waiting until the close of all evidence to attempt to exclude a portion of the evidence which was presented to the jury without objection. We hold that the attempt to suppress the evidence was not timely, and need not have been considered by the trial judge. Jackson v. State, 266 Ark. 754, 585 S.W.2d 367 (Ark.App.1979), cert. denied, 444 U.S. 1017, 100 S.Ct. 670, 62 L.Ed.2d 647 (1980). Further, since there was no objection to any of the evidence or testimony at the time it was presented to the jury, there was no basis for striking that evidence later.
Id. at 270-71, 692 S.W.2d at 267.
As in Holt, appellants made no motion to suppress the evidence and statements, nor did they object to the evidence or testimony as it was submitted to the jury. A contemporaneous objection is required to preserve an issue for appeal. Dulaney v. State, 327 Ark. 30, 937 S.W.2d 162 (1997); see also Fields v. State, 349 Ark. 122, 76 S.W.3d 868 (2002) (stating that a contemporaneous objection is required to preserve an issue for appeal). ImBecause appellants failed to move to suppress the evidence or to make a contemporaneous objection, their arguments are not preserved for our review. Nor do we find this to be the type of alleged error exempt from our requirement of a contemporaneous objection under Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).
Furthermore, were appellants’ arguments regarding sufficiency of the evidence preserved, they are unavailing. In determining the sufficiency of evidence, we review all of the evidence that was introduced at trial, and we disregard any alleged trial errors. Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000) (citing Eichelberger v. State, 323 Ark. 551, 916 S.W.2d 109 (1996), which states that an appellate court reviews all of the evidence introduced at trial, whether correctly or erroneously admitted) (emphasis added).
The evidence introduced at trial showed that Trooper Waters initiated a traffic stop of appellants’ rental vehicle after he determined that the tags were not registered to that vehicle. Trooper Waters discovered a duct-taped package on Romero, a duct-taped package under the seat, and more than $2400 in cash. Each package contained a kilo of cocaine. Appellants each signed a rights form indicating that they understood their rights and then gave incriminating statements. Therefore, there was sufficient evidence that supports appellants’ convictions for possession of cocaine with intent to deliver and possession of drug paraphernalia.
Affirmed.
ROBBINS and MARSHALL, JJ„ agree. | [
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ELANA CUNNINGHAM WILLS, Justice.
|! This appeal arises out of a tax audit performed by the appellant, the Arkansas Department of Finance and Administration (DF & A), on the appellee, Bryce Company, LLC (Bryce). Bryce is a company located in Searcy that produces flexible packaging for food products. The issue in this case is whether one of the items used by Bryce during its printing process constitutes “equipment” exempt from taxation pursuant to Arkansas Code Annotated section 26-52-402 (Supp.2005) and Arkansas Gross Receipts Tax Rule GR-55.
DF & A conducted an audit of Bryce over two periods: from July 2008 to February 2004, and from March 2004 to April 2006. As a result of the audit, DF & A determined that Bryce owed state and local taxing authorities $99,660.20. DF & A disallowed Bryce’s claim that its purchases of “stiekyback tape” were exempt from gross-receipts taxes. In addition, |2DF & A denied Bryce’s request for a refund of certain gross-receipts taxes it had already paid on purchases of stiekyback tape.
Bryce protested the assessment of the taxes and the denial of its request for refund on September 22, 2006. DF & A held a hearing on Bryce’s protest on September 6, 2007, and subsequently issued an administrative decision finding that the stiekyback tape was taxable under Arkansas’s Gross Receipts Act. Ark.Code Ann. §§ 26-52-101 to -914 (Supp.2005). Bryce then filed a complaint in White County Circuit Court on August 26, 2008, seeking a determination from the court that the stiekyback tape was exempt from gross-receipts taxes and an order directing DF & A to refund the amount of taxes paid.
After a bench trial on September 22, 2008, the circuit court entered an order on October 7, 2008, finding that the sticky-back tape “has the same status as the die plate.” DF & A filed a motion for more specific findings of fact and conclusions of law, arguing that the order did not provide enough detail for appellate review and that it was ambiguous in its reference to a “die plate,” because neither party argued that the stiekyback tape was exempt under GR-56 of DF & .A’s Gross Receipts Tax Rules. (See N.l, swpra.) The circuit court subsequently entered findings of fact and conclusions of law on November 19, 2008, specifically finding that the sticky-back tape met the definition of “equipment” found in | ¡¡Arkansas Code Annotated section 26-52-402 and in GR-55 of the Gross Receipts Tax Rules and was thus exempt from taxation under the Gross Receipts Act. DF & A filed a timely notice of appeal on December 15, 2008, and now argues, as its sole point on appeal, that the circuit court erred in finding that the stiekyback tape satisfies the manufacturing machinery and equipment exemption of section 26-52^402 and Arkansas Gross Receipts Tax Rule 55.
Tax exemption cases are reviewed de novo on appeál, and the findings of fact of the trial court are not set aside unless they are clearly erroneous. Weiss v. Chem-Fab Corp., 386 Ark. 21, 984 S.W.2d 395 (1999) (citing Aluminum Co. of Am. v. Weiss, 329 Ark. 225, 946 S.W.2d 695 (1997)). This court has also held that “[tjhere is a presumption in favor of the taxing power of the state, and all tax-exemption provisions must be strictly construed against the exemption.” Chem-Fab, 336 Ark. at 25, 984 S.W.2d at 397. This court has frequently reiterated the phrase “to doubt is to deny the exemption.” Eg., Citifinancial Retail Servs. v. Weiss, 372 Ark. 128, 133, 271 S.W.3d 494, 498 (2008); Pledger v. C.B. Form Co., 316 Ark. 22, 25, 871 S.W.2d 333, 334 (1994); Pledger v. Baldor Int’l, 309 Ark. 30, 33, 827 S.W.2d 646, 648 (1992). Further, this court has declared in the past that a taxpayer must establish an entitlement to an exemption from taxation “beyond a reasonable doubt.” Rineco Chem. Indus. v. Weiss, 344 Ark. 118, 40 S.W.3d 257 (2001); Leathers v. Warmack, supra; Pledger v. Baldor, supra.
|4In April of 2009, however, the General Assembly amended this beyond-a-reasonable-doubt burden. Act 755 of 2009 amended the tax-procedures statutes and declared that “[t]he standard of proof for the taxpayer to establish facts to support a claim for an exemption, deduction, or credit is clear and convincing evidence.” Ark. Code Ann. § 26-18-313 (Supp.2009). DF & A argues that this new standard of review should not be given retroactive application to the instant ease because the tax assessments and refund claims were for periods prior to the effective date of Act 755 and, without an express legislative intention | sto the contrary, prospective application is presumed. Bryce, on the other hand, argues that the statute should be given retroactive application because it was clearly intended to be remedial or procedural, and such enactments are not within the presumption against retroactive application. However, as discussed below, we conclude that Bryce’s proof satisfied either burden, and it is therefore unnecessary for us to determine whether the statute should be applied retroactively in this case.
Turning to the merits of the appeal, DF & A argues that the circuit court erred in finding that the stickyback tape used by Bryce satisfied the “machinery or equipment” exemption under section 26-52-402 or Arkansas Gross Receipts Tax Rule 55. Under Arkansas’s tax laws, a gross-receipts or sales tax is levied on all sales to any person of tangible personal property. Ark.Code Ann. § 26-52-301(a) (Repl.2008). However, section 26-52-402(a)(l)(A) exempts
Gross receipts or gross proceeds derived from the sale of tangible personal property consisting of machinery and equipment used directly in producing, manufacturing, fabricating, assembling, processing, finishing, or packaging of articles of commerce at manufacturing or processing plants or facilities in the State of Arkansas[.]
Section 26-52-102 goes on to explain that the gross-receipts tax exemption is intended to apply “only [to] such machinery and equipment as shall be used directly in the actual manufacturing or processing operation at any time from the initial stage when actual manufacturing or processing begins through the completion of the finished article of | (¡commerce and the packaging of the finished end product.” Ark.Code Ann. § 26-52-402(c)(l)(A) (Repl. 2008). The word “directly” in the preceding subsection is “used to limit the exemption to only the machinery and equipment used in actual production during processing, fabricating, or assembling raw materials or semifinished materials into the form in which such personal property is to be sold in the commercial market.” Ark.Code Ann. § 26 — 62—402(c)(1)(B) (Repl.2008). The General Assembly further qualified the phrase “used directly” as follows:
Machinery and equipment used in actual production includes machinery and equipment that meet all other applicable requirements and which cause a recognizable and measurable mechanical, chemical, electrical, or electronic action to take place as a necessary and integral part of manufacturing, the absence of which would cause the manufacturing operation to cease.
Ark.Code Ann. § 26-52-402(c)(2)(A)(i) (Repl.2008).
Under Arkansas Code Annotated section 26-52-105(b) (Repl.2008), the Director of the Department of Finance and Administration is directed to promulgate rules and regulations for the proper enforcement of the Gross Receipts Act. Those rules and regulations encompass GR-55, which provides the following definitions:
F. DEFINITIONS.
1. “Machinery” means mechanical devices or combinations of mechanical powers and devices purchased or constructed by a taxpayer or his agent and used to perform some function and to produce a certain effect or result. Machinery in-eludes electrical, mechanical, and 17electronic components which are a part of machinery and are necessary for the machine to produce its effect or result.
2. “Equipment” means any tangible personal property other than machinery as defined in GR 55(F)(1) of this rule used directly in the manufacturing process except those items specifically excluded from the exemption as provided in GF-55(B)(8).[ ]
The circuit court below was asked to determine whether the stickyback tape met these definitions. At trial, Ronnie Britton, a tax auditor at DF & A, testified that he reviewed Bryce’s purchase invoices and toured the company’s plant in order to determine how the stickyback tape was utilized in the plant. Britton described the stickyback tape as being attached to a printing plate containing the picture that is to be printed on the packaging onto the printing sleeve. The packaging, sleeve, plate, and stickyback tape is run through a machine, and after the use of the tape is completed, it is discarded. Based on his observation that the tape was not used on an ongoing basis, Britton concluded that the stickyback tape was not exempt from Arkansas’s sales tax.
Jimmy Swain, the site manager for Bryce, has worked for the company for nearly twenty years. He also testified at trial, explaining that Bryce provides flexile packaging for confectionary foods and that the stickyback tape is used in the printing process on that | ^packaging. According to Swain, the stickyback is placed on a printing sleeve that fits onto a solid cylinder, and then a polymer printing plate is placed over the stickyback. Without the sticky-back, the plate would not be held onto the sleeve. The plate is then what prints the image on the packaging.
Swain described the stickyback’s function in the printing process as having a certain density or “durometer” to it, which allows it to serve as a cushion under the polymer printing plate and provides for a uniform print on the polypropylene snack bags. The images on those bags are built up of multiple dots imposed on top of each other. The stickyback is more adhesive on the sleeve side than on the plate side in order to allow for repositioning of the plate, if necessary. The bottom side of the stickyback is also channeled or crosshatched, which allows for air to escape from under the plate material, which allows the plate to lie flat and produce an even image. Swain explained that the “durometer,” or softness, of the material is also important, because that softness allows the printing plate enough softness to adjust to any irregularities in the surface being printed. That softness, combined with the thickness of the stickyback (roughly twenty one-thousandths of an inch thick) also provides “enough forgiveness to be able to get a uniform printout across the web.”
Swain acknowledged that, in time, a printing plate will wear out, although they would generally last up to one million linear feet. When a plate wears out, it is stripped from the stickyback, the sticky-back is removed from the sleeve and discarded, and new stickyback | flis put on the sleeve along with a new plate. However, with some smaller jobs that had less frequent print runs, Swain said that Bryce could leave the plate and the stickyback in place on the sleeve and re-use it later.
As mentioned above, the circuit court determined that the stickyback tape fell within the statutory definition of “equipment” and was therefore exempt from sales tax. On appeal, DF & A argues that the stickyback tape does not satisfy either the statutory definitions or the interpretations given to the term by this court in the cases of Weiss v. Chem-Fab Corp., 336 Ark. 21, 984 S.W.2d 395 (1999), or Ragland v. Dumas, 292 Ark. 515, 732 S.W.2d 118 (1987).
In Ragland v. Dumas, this court interpreted the word “equipment” in section 26-52-402. In that case, Eddie Dumas was a builder of temporary roads to oil-drilling sites, using gravel in the construction of those roads. After an audit, DF & A assessed more than $20,000 in sales taxes against Dumas. Dumas challenged DF & A’s assessment of sales taxes, arguing that the gravel he used in his road-building activities should be exempt as machinery or equipment. Id. at 518, 732 S.W.2d at 119. The circuit court disagreed on this issue, concluding that the gravel was not used directly in the oil-processing operation. Id.
On appeal, this court considered whether the gravel furnished to build temporary roads could properly be called “equipment.” The court noted that the word “has been referred to as an exceedingly elastic term, the meaning of which depends on context.” Id. at 520, 732 S.W.2d at 120. The court noted that the context involved in that case was ^“whether a contractor’s gravel furnished to build temporary roads can be viewed as equipment under § 84-1904(r),[ ] used directly in the process of extracting oil.” Id. The court concluded that it was
clear that the General Assembly, by the use of the terms machinery and equip ment, intended implements, tools or devices of some degree of complexity and continuing utility and not materials, such as gravel and crushed rock, that become fully integrated into a temporary road, the utility of which ends upon the termination of each oil-extraction project.
Id.
In a later case, Weiss v. Chem-Fab Corp., supra, DF & A challenged the trial court’s determination that certain chemicals, used in milling airplane parts, constituted tax-exempt equipment. The chemicals in that case were applied to aluminum and titanium airplane parts to anneal the metals and etch away excess metals. Some of the chemicals could be reused, but most had to be discarded and replaced after being used. Other chemicals were sprayed on the airplane parts to check for cracks; these chemicals were completely consumed during the process and required replacement after each use. Chem-Fab, 336 Ark. at 24, 984 S.W.2d at 396-97. After Chem-Fab requested a refund for sales taxes paid on these chemicals and was denied by DF & A, Chem-Fab filed suit in Garland County Chancery Court. The chancellor found that the chemicals were equipment under section 26-52-402. Id.
|nOn appeal, this court adhered to the definition of “equipment” set out in Bag-land, stating that equipment “means ‘implements, tools or devices of some degree of complexity and continuing utility.’ ” Id. at 26, 984 S.W.2d at 398. The court first considered whether the chemicals were “implements ... of some degree of complexity” and concluded that they were because they both “serve[d] as instruments or tools to soften metal or to mill away excess metal” and were “by their very nature complex substances.” Id.
The court also considered whether the chemicals possessed continuing utility. The court contrasted the chemicals, which were not fully integrated into any other particular object and were used directly in the processing of a number of aircraft parts, with the gravel in Ragland, which became fully integrated into the temporary road and had no utility after each oil-extraction project was completed. Id. The court concluded that the chemicals therefore had “continuing utility,” as well as the requisite degree of complexity. Id.
We conclude that the stickyback tape in the present case meets these case-law-based criteria as well as the regulatory definition of equipment and the simple statutory requirement that the alleged equipment be “used directly in the actual manufacturing or processing operation.” § 26-52-402(c)(l)(A). As noted above, the word “equipment” is “an exceedingly elastic term, the meaning of which depends on context.” Ragland, 292 Ark. at 520, 732 S.W.2d at 120.
Here, the tape possesses some degree of complexity, as described by site manager Swain, in that it is cross-hatched to permit proper airflow and of a specific thickness and | ^softness to provide for even printing. A given segment of tape is used over as much as one million linear feet, and even though it must eventually be discarded, it can be — and sometimes is — retained and reused for smaller printing jobs. Finally, the statute declares that, for an item to be “used directly” in the manufacturing process, it must “cause a recognizable and measurable mechanical, chemical, electrical, or electronic action to take place as a necessary and integral part of manufacturing, the absence of which would cause the manufacturing operation to cease.” § 26-52 — 402(c)(2)(A)(i). Without the stickyback tape, the mechanical process of printing the polyethylene packaging could not be accomplished. Accordingly, we conclude that the circuit court did not err in deter mining that the stickyback tape was equipment that was exempt from sales taxes.
Affirmed.
. Section 56 DF & A’s Gross Receipts Tax Rules specifically exempts dies and molds from gross receipts taxes under certain circumstances. See also Ark.Code Ann. § 26-52-402(c)(2)(B)(i) (Repl.2008).
. The genesis of the rule that tax exemptions have to be established beyond a "reasonable doubt” appears to be in cases such as Wiseman v. Madison Cadillac Co., 191 Ark. 1021, 88 S.W.2d 1007 (1935), and McCarroll v. Mitchell, 198 Ark. 435, 129 S.W.2d 611 (1939). Each of these cases quoted the Fourth Edition of 2 Cooley on Taxation as stating that "[e]xemptions are never pre sumed, the burden is on a claimant to establish his right to exemption, and an alleged grant of exemption will be strictly construed, and cannot be made out by inference or implication, but must be beyond reasonable doubt.” Wiseman, 191 Ark. at 1029, 88 S.W.2d at 1011; McCanoll, 198 Ark. at 441, 129 S.W.2d at 614 (emphasis added). These early cases do not appear to speak about the burden of proof imposed on one who claims a tax exemption; rather, they state that the legislative grant of exemption itself must be set out in terms that are beyond reasonable doubt. A case from 1883, St. Louis, I.M. & S. Railway v. Berry, 41 Ark. 509 (1883), states that grants of immunity from taxation "should be so clear that there can be neither reasonable doubt nor controversy about [their] terms.” Our later cases have apparently applied this principle more broadly than was originally intended, holding diat the taxpayer must prove the exemption beyond a reasonable doubt See, e.g., Mann v. McCanoll, 198 Ark. 628, 638, 130 S.W.2d 721, 726-27 (1939) (citing McCarroll v. Mitchell, supra, as holding that tax exemptions must be shown to exist "practically beyond a reasonable doubt”).
. The emergency clause of Act 755 stated that manufacturers and businesses had "found that it is substantially more difficult to prove they are entitled to a tax exemption, deduction, or credit in Arkansas than in most other states based on the court interpretation that the taxpayer must present facts that establish their right to a tax exemption ... ‘beyond a reasonable doubt.' ” § 3, 2009 Acts Ark. 755. Thus, with Act 755, the General Assembly appears to have intended to clarify the exact burden of proof in such cases.
. GR-55(B)(3) excludes "hand tools, buildings, transportation equipment, office machines and equipment, machinery and equipment used in administrative, accounting, sales or other such activities of the business involved, or any and all other machinery and equipment not directly used in the manufacturing operation.”
. This statutory provision is now Arkansas Code Annotated section 26-52-402(c). | [
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Mr. Chief Justice English
delivered the opinion of the court.
Sally Fred, the plaintiff in error, was indicted in the Pulaski Circuit Court for aiding and abetting her husband, James M. Freel, in 'the murder of Jacob Ortncr. She was tried separate!}', convicted of murder in the second degree, sentenced to the penitentiary for seven years, moved for a new trial, which was refused, offered to file a motion in arrest of judgment, which the court rejected, as being out of time, and she excepted, set out the evidence, etc., and brought error.
Her counsel has urged numerous objections to the regularity of the proceedings in the court below, which have been duly considered, but such of them only need be noticed as present plausible grounds for reversal.
1. The new trial was asked on the grounds, that the court erred in charging the jury, and that the verdict was contrary to law and the evidence.
The plaintiff' in error moved the court to instruct the jury as follows:
“ If the jury believe from the evidence that the act charged in the indictment was committed by the defendant Sally Freel, in the presence of the defendant James M. Freel, and that the said James M. Freel is and was her husband at the time of its commission, they must find the defendant, Sally Freel, not guilty under the indictment.”
Which the court refused : and the plaintiff in error then moved the court to instruct the jury as follows:
“ That if they believed from the evidence that she was the Avife of the said defendant James M. Freel, and that the said act charged in the indictment was done or committed by the defendant, Sally Freel, in the presence of the said defendant, James M. Freel, the presumption of law is that the said act was done and committed by her under and on account of the coercion of the said defendant, James M. Freel, and that this presumption continues until it is rebutted by evidence on the part of the State showing that she did not so act under such coercion.”
Which the court refused; and, of its own motion, instructed the jury as follows:
“ That under the indictment herein, they can find the defendant guilty of murder in the first degree, or murder in the second degree, or manslaughter. That the fact that the offence charged in the indictment Avas committed by defendant in the presence of the said defendant, James M. Freel, the husband of this defendant, affords her no legal excuse or justification for its commission.”
(a) Mamage does not deprive the wife of the legal capacity of committing crime. Where she voluntarily commits crime, of any grade, the mere presence of her husband does not excuse her.
It is said in some of the English books, that if she commit treason, murder, or robbery, by the coercion of her husband, the laAV on account of the odiousness and dangerous conse quences of these crimes, will not excuse her. Arch. Grim Pita. Sf Ev. 6; Roscoe Cr. Ev. 956;- Hale P. C. 44. Mr. Bishop thinks the better opinion is that the coercion of the husband will exempt her from criminal liability for any offence whatever. Bishop Cr. L. sec. 277. But see Wharton, 53.
It is agreed by the authorities, that, by the common law, the coercion of the husband is not to be presumed from his presence in cases of treason, murder and robbery, though as to other felonies and misdemeanors, perhaps, the rule is otherwise, il). and note to Hale 46, Stokes <$• Ing. Ed.
Our statute declares that: “ Married women, acting under the threats, commands or coercion of their husbands, shall not be found guilty of any crime or misdemeanor, if it appear from all the facts and circumstances of the case that violence, threats, commands or coercion, were used.” Dig. Gh. 51, sec. 1, of Part 1.
The first instruction moved by the plaintiff in' error was properly refused by the court, because it assumes the law to be, in effect, that the wife cannot commit a crime in the presence of her husband — or at least that his presence exempts her from criminal liability.
The second was also properly refused, because it assumes that the coercion of the husband is to be presumed from his presence,in a case of murder (the instruction does not discriminate between offences), which is contrary to the common law rule, and not warranted by our statute.
The charge given by the court, of its own motion, to the effect that the presence of the husband was no legal excuse or justification for the commission of the offence by the wife, was substantially correct.
If the common law rule was that the coercion of the husband was no excuse for the wife in treason, murder and robbery, as stated by the English authors above cited, (but controverted by Mr. Bishop,) then the effect of our statute was to extend the rule, and make the coercion of the husband an excuse for the wife in “any crime or misdemeanor;” but there is nothing in the statute from which it may be inferred that the Legislature meant to extend the rule further, and make the presence of the husband raise the presumption of compulsion in all cases; on the contrary, the excuse of the wife is made to depend, by the terms of the statute, upon its appearing, “ from all the facts and circumstances of the case,” that coercion was used.
(b.) It is insisted that the court erred in charging that the plaintiff in error might be convicted of manslaughter, under the indictment in this case. The argument is, that she is indicted as an accessory before the fact to the crime alleged against her husband, as principal, and that if the husband be guilty of manslaughter only, she is guilty of no offence, as there can be no accessory before the fact to' manslaughter.
An accessory before the fact is, according to Sir Matthew Hale, one who being absent at the time of the commission of the offence, doth yet procure, counsel or command another to commit it. Absence is indispensably necessary to- constitute one an accessory; for, if he be actually or constructively present when the felony is committed, he is an aider and abettor and not an accessory before the fact. 1 Hale PI. C. 615; 1 Leach 515; Arch. Cr. PL Ev. 14, note; 4 Black. Com. 367.
In all felonies there may be accessories, except in crimes which the law deems sudden and unpremeditated, as manslaughter, which, therefore, can have no accessories before the fact. And therefore, if A be prosecuted for murder, and B as accessory before the fact, if A is found - guilty of manslaughter merely, B must be acquitted, lb.
The distinction between principals and accessories, only obtains in felonies; in misdemeanors all are principals.
Principals are eithe* in the first degree, or in the second degree, tie who actually commits the offence is said to be principal in the first degree; he who is present aiding and abetting him in doing it, is said to be principal in the second degree. Arch. Cr. PI. Ev. 11.
Such is the common law definition of principals in the first and second degree, and of accessories before the fact.
In this case, the husband is charged to have inflicted the fatal blow, and the wife (the plaintiff in error) is alleged to have been present, aiding, abetting, and assisting him in the commission of the crime. According to the common law defininitions, therefore, she is not indicted as an accessory before the fact, but as a principal in the second degree; and, by the common law, she, as well as her husband, might be convicted of 'manslaughter. State vs. Coleman, 5 Porter 40; Arch. Cr. Pl. & Ev. 12, 13, and notes.
An accessory is defined by the Revised Statutes to be, “he who stands by, aids, abets or assists, or who not being present, aiding, abetting or assisting, hath advised and encouraged the perpetration of the crime;” and it is declared that “ he] who thus aids, assists, abets, advises, or encourages, shall be deemed in law a principal, and punished accordingly.” Rev. Stat., ch, 44, p. 248; Gould’s Dig. ch. 51, Part 11, secs. 1, 2.
In this definition, the distinction between accessories before the fact and principals in the second degree, as observed in the common law definitions as above given, is lost sight of.
In the Act of 17th December, 1838, modifying the penal code to correspond with the establishment of a penitentiary, it is declared that “ all persons being present, aiding and abetting» tvr ready and consenting to aid and abet in any of the offences mentioned in the act, etc., shall be deemed principal offenders, and indicted and punished as such.” Gould’s Dig., ch. 51, Part II, sec. 5.
It is clear, that under this statute, if the husband, who is alleged to have inflicted the mortal wound, was guilty of manslaughter, and the wife was present, aiding and abetting in the commission of the offence, she also might have been convicted and punished for the same crime.
(c.) But little need be said in relation to the sufficiency of the evidence to sustain the verdict. There is no total want of testimony to sustain any material allegation in the indictment. For the credit of humanity, and especially of the sex of the plaintiff in error, it is to be regretted that the jury were unable to account for her conduct on some other hypothesis than that she was criminally aiding and abetting her husband in the commission of murder. The substance of the material portions of the evidence, as stated by the witnesses, is that previous to the day of the killing, Freel and Ortner, the deceased, had quarreled, and Freel had threatened him. On the, day of the killing, Freel and wife, and Ortner met at the house of one Blackburn, who kept whiskey to sell. On meeting in the yard, Freel and Ortner went back of the house together, and after conversing there for a while, and making up their previous quarrel, they returned, went into the house, and Freel saying it was Ortner’s treat, he bought some whiskey, and they drank together. After they had drank several times, perhaps, Freel offered Ortner another’ dram, and Ortner refusing to drink, Freel said to him that he was mad. Ortner then got up and went out of the house, Freel followed him, caught him by one arm, and at the same time Mrs. Freel caught him, with both hands, by the other arm, and while they both thus held him, Freel stabbed him eight or ten .times with a pocket knife, Ortner struggling all the while to get his arms loose, and in the words of one of the witnesses, raising Mrs. Freel off the ground three or four times in the struggle. He died of the wounds thus inflicted upon him.
2. The trial was had, and the verdict rendered on the 14-th of November, and on the 19th of the same month, the plaintiff in error offered to file the motion in arrest of judgment, which the court refused to permit to be. filed.
Sec. 123, chap. 133, Digest, provides that motions in arrest of judgment shall be made within four days after the trial, etc.; and section 130 of the same chapter declares that no judgment shall be set aside in any of the courts .of this State, on motion, unless such motion shall be made within four days after the rendition of such judgment, etc. These sections are a part of the chapter regulating the practice in civil suits. Portions of the provisions of this chapter are expressly made to apply to criminal prosecutions, by sees. 168, 169, 170, etc., ch. 52, Digest, but no reference is made to the provisions in relation to motions in arrest, or to set aside judgments, etc.
We are inclined to the opinion that the provisions of the statute in question were not intended to appfyto criminal cases; and that it is within the power, and the duty of the court to arrest the judgment at any time during the term at which it is rendered, whenever it is made to appear that the defendant is illegally convicted.
But the error of the court in refusing to permit the motion to be filed, is no cause for the reversal of the judgment, unless there was some irregularity in the record, for which the judgment should have been arrested; and if such irregularity existí the plaintiff is entitled to the benefit of it on error.
(a.) The first ground of the motion in arrest is, that the indictment was not found by a legally constituted grand jury.
The indictment was found at the May term, 1859, and the record entry in relation to the grand jury, is as follows:
“ Proceedings had on the 17th day of May, 1859 — Grand jury —Special venire.
This day, it appearing to the court, that since the discharge of the regular grand jury, several persons have been committed to jail for offences committed in Pulaski county, it is ordered that a venire facias do issue to the sheriff of said county, commanding him to summon a special grand jury, to be in attendance on this court, on Thursday morning next, at eight o’clock, to investigate such offences as have been committed or discovered since the discharge of the regular panel of grand jurors of said county; and the same is accordingly issued.”
A further entry shows that in obedience to the order, sixteen good and lawful men were summoned, and empanneled, etc.
The statute provides, that “ If any offence be committed or discovered during the sitting of any Circuit Court, after the grand jury attending such court shall have been discharged, such court may, in its discretion, by an order, to be entered on the minutes, direct the sheriff to summon a special grand jury.’t Dig. ch. 52 sec. 78.
We think it substantially appears from the entry, that one or both of the contingencies upon which the court was authorized by the statute, to order a special grand jury to be summoned, had occurred.
But where the court makes the order, though the happening of the contingency be not recited, yet, in the absence of any affirmative showing to the contrary, the presumption would be in favor of the regularity of the order. State vs. Brooks, 9 Ala. 17.
In this case, the court commenced its term on the first Monday of May. Ortner was killed, it appears, on the 15th, and on the 17th of May the order for the special grand jury was made.
{b.) The 2d, 3d, 4th, and 10th grounds of the motion in arrest of the judgment, relate to the form of the indictment.
The objections taken to the form of the indictment are extremely technical and unsubstantial. The indictment is drawn substantially in accordance with the precedents for indictments for murder against principals in the first and second degrees. Though the statute, {Dig., ch. 51, Pari^ll, sec. 5,) declares that persons being present, aiding and abetting, etc., in murder, and other felonies, shall be deemed principal offenders, and indicted and punished as such; and although they may be convicted and punished upon an indictment charging them as having committed the offence, {Arch. Cr. Pl. Ev. 13;) yet it is the usual practice to indict aiders and abettors as such. Ib.
In this case, Freel is charged, in the' usual form, with having inflicted the mortal wound, etc., and it is alleged that the plaintiff in error “ on, etc., with force and arms, at, etc., feloniously was present, aiding, abetting, and assisting the said James M. Freel, the felony and murder aforesaid to do and commit.”
Then follows the conclusion: “ And the jurors aforesaid, upon their oaths aforesaid, do say that the said James M. Freel and said Sally Freel, the said Jacob Ortner, in manner and form aforesaid, on, etc., at, etc., feloniously, wilfully, and of their malice aforethought, did kill and murder, contrary,” etc., etc.
(c.) The 5th, Gth, 7th, 8th, and 9th grounds of the motion in arrest, relate to the form of the verdict.
The verdict is as follows:
“ We, the jury, find the defendant, Sally Freel, not guilty, in manner and form as charged in the indictment, but we find her guilty of murder in the second degree, and assess the punishment at seven years imprisonment in the penitentiary house of the State of Arkansas.”
It is insisted for the plaintiff in error, that, by the form of the verdict, she was acquitted altogether, and that she should have been discharged.
There certainly would be much force in the argument, but for the latter clause of the verdict, which, unfortunately for the plaintiff in error, expressly finds her guilty of murder in the second degree.
The statute classes murder into first and second degrees, and provides that “ the jury shall, in all cases of murder, on conviction of the accused, find by their verdict, whether he be guilty of murder in the first or second degree.” Dig. p. 338.
The practice, under the statute, is to charge the accused with murder generally, without alleging the degree of the crime, leaving the jury to find that by their verdict.
We think there is no room to doubt but that the jury intended, by their verdict, to find the plaintiff in error, not guilty of murder in the first degree, but to find her guilty of murder in the second degree. Such is the legal effect of the verdict.
(d.) The 11th ground of the motion in arrest is, that the record does not show that the plaintiff in error was present when the verdict was returned into court.
The trial commenced and terminated on the 14th of November. The record shows that she was present, and announced herself ready to proceed with the trial, when the jury were empanneled and sworn. Immediately followdng the entry showing the return of the verdict, is an entry stating that pending the trial she excepted to certain decisions of the court, and leave was granted to her to prepare her bill of exceptions. Then follows an entry that she be again remanded lo the custody of the sheriff, etc. The record shows no adjournment of the court between the time the jury were empannelled, and the time she was remanded.
We think it appears, with sufficient certainty, from these record entries, that she was present when the verdict was returned into court. Sweeden vs. State 19 Ark. R. 210.
(e.) The 12th ground of the motion in arrest is, that the record does not show that there was a legal venire, etc., and a copy of the list of jurors served upon the plaintiff in error, etc.
It appears from the record entry, that both of the prisoners were arraigned at the May term, pleaded not guilty, and the cause was continued. At the next term, on the 8th of November, by consent of parties, a venire was ordered for thirty-eight good and lawful men, etc., for the trial of the cause. On the 14th of November, the prisoners were again brought into court, and on the application of Freel the cause was continued as to him. Whereupon the State and Mrs. Freel announced themselves ready for trial, and a jury was selected and empanneled from the veniremen summoned and returned upon the venire issued under the above order.
The plaintiff in error went into trial without objection to the order for the venire, the number of men directed to be summoned, the form of the writ, or its return. Such objections are not available after the trial, but must be taken by challenge to the array.
The record entry of the trial, after stating that the State and the prisoner, Sally Freel, announced themselves ready to proceed with the trial of the issue, etc., states that — “ the sheriff “ returns into court here the venire facias issued herein, and it “ appears from his return indorsed thereon, that a copy of the “ names of the jurors summoned on said venire has been served “ on said defendant, Sally Freel, at least forty-eight hours pre- “ vious to this time; and the persons so summoned by the sheriff “ being called, certain of them came and are selected as a jury “for the trial of this cause, to wit: Edward Fears, etc., etc., “ twelve good and lawful men.’ etc.”
The venire and the sheriff’s return thereon, are copied in the transcript before us. The return, after setting out the names of the jurors summoned, in obedience to the writ, states: “ And “ I further certify that I served a true and perfect list of the “ above names, to the within named defendants, James M. “ Freel, at 20 minutes to 6 o’clock, November 9th, 1859.”
The venire issued for jurors for the trial of both of the prisoners (before the cause was continued as to James M. Freel,) and it is probable that the omission of the name of Sally Freel in the return was a mere misprision of the sheriff. He states that he served a .copy of the list “ to the within named defendants.”
Be this as it may, where the prisoner goes to trial without objecting that a list of the 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. See Stuart vs. The State, 13 Ark. 735.
3d. After the final judgment was rendered against Mrs. Freel, she prayed an appeal to this court, which was granted. She applied to this court, upon a transcript of the record, for a supersedeas, which was granted, on the ground that from the testimony, as set out in the bill of exceptions, it appeared that Ortner was killed after the indictment was found; but the order granting the appeal not being embraced in the transcript presented to the court, a writ of error and supersedeas were awarded.
Afterwards, on motion of the attorney general, the prisoner was brought into the court below, and the error in the bill of exceptions as to the time the offence was committed, was corrected — the error having occurred, not in the testimony, but in the drafting of the bill of exceptions. The amended record was brought here on certiorari.
It is objected for the plaintiff in error that the court had no power to cause the record to be amended after the appeal was granted. There is nothing in this objection. Instances have frequently occurred in which errors in the record have been corrected by the court below, after appeal or writ of error, and the amended record brought up by certiorari. McNeil vs. Arnold et al. 17 Ark. 157.
Finding no error in the record for which a new trial should be granted, or the judgment arrested or reversed, the'judgment must be affirmed. | [
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Mr. Chief Justice English,
delivered the opinion of the Court.
This was a bill filed by Elias N. Conway, on the 14th of Julj^ 1853, in the Sevier Circuit Court, against Ezekiel Kinsworthy, the unknown heirs of Samuel Hall, deceased, William Burton, and the unknown heirs of George T. Boring, deceased. The objects of the bill were to obtain partition of the N. E. and the S. E. fractional quarters of section 12, in Township 14 South, Range 32 West, and to establish and quiet complainant’s title to one-third of said tracts of land.
There was a decree pro confesso against all of the defendants except Kinsworthy, who answered; and upon the final hearing the bill was dismissed for want of equity, and Conway appealed.
Kinsworthy, in his answer, relied upon two grounds of defence: first, that he had purchased the lands, in good faith, without notice of Conway’s claim; and second, that the relief sought by the bill was barred by lapse of time.
Conway’s claim to the lands is derived as follows:
• On the 15th day of March, 1836, Samuel Hall executed to Alexander Burton, (the father of the defendant, William Burton,) George T. Boring and John R. Conway, a sealed instrument, reciting that, by virtue of the act of Congress, of 24th May, 1828, etc., he was entitled to a donation of land not exceeding two quarter sections, which he had the right to enter with the Register of the proper land office in Arkansas; that he had sold to said Burton, Boring and Conway, all his right and title to the land to be entered by his donation claim, and authorized them to enter the land in his name, but it was not known at that time upon what lands the claim would .be located— therefore, it was witnessed by the instrument that said Hall, in consideration of the sum of $260, to him in hand paid by Burton, Boring and Conway, covenanted with them that he would, on demand by them, or without such demand as soon as a patent should be issued by the President of the United States, execute and deliver to them, their heirs, etc.; a deed, with covenants of warranty, for all such lands as might be entered by virtue of his donation claim, etc., etc. He further covenanted that his right to the donation had been proven up before the Register of the Land Office, at Washington, and that he would furnish additional proof if required, etc.
The instrument was acknowledged by Hall, and registered in the Recorder’s office of Sevier county, where he then resided.
On the 17th of August, 1839, after the donation claim had been located upon the lands above described, situate in Sevier county, and the certificate of entry was issued, but before the patent was granted, John R. Conway conveyed to the appellant, Elias N. Conwaj’', an undivided third of said lands, reciting in the deed that they had been entered by virtue of Hall’s donation claim, and that the Register’s certificate had been issued for the lands in his favor, etc.
The deed was acknowledged and filed for registration in the Recorder’s office of Sevier county, on the day of its execution.
The title of the appellee, Kinsworthy, is derived as follows:
On the 14th of December, 1839, a patent was issued by the President of the United States, to Hall for the lands above described, which was filed for registration, and recorded in the Recorder’s office of Sevier county, on the 28th of January, 1840.
On the 7th day of March, 1840, Hall, by absolute deed, with covenants of warranty, sold and conveyed the lands to Robert Hamilton, of Sevier county, for $300; and the deed was duly acknowledged, and filed for registration in the office of the Recorder of said county, on the 18th of June, 1840.
On the 1st November, 1838, H. S. and A. Roach recovered a judgment against Hamilton, in the Sevier Circuit Cóurt; upon which an execution was issued to the sheriff of said county,'on the 12th of August, 1845, levied upon the lands in question, with other lands, etc., as the property of Hamilton; which were sold by the sheriff, on the 13th of October, 1845, and purchased by Benjamin L. Brittin and Grandison D. Royston, jointly; to whom, on the day after the sale, the sheriff executed a deed for the lands, which was acknowledged in open Court, and filed for registration in the office of the Recorder of said county, on the 15th of October, 1845.
On the 1st of July, 1847, Royston and wife, by quit claim deed, sold and conveyed his undivided interest in the lands to Brittin; and the deed, duly acknowledged, was filed for registration 12th August, 1847.
On the 23d September, 1847, Brittin sold and conveyed all his right, title, claim and interest in and to the lands to Kinsworthy, without warranty, except as against persons claiming under him, etc., and the deed was duly acknowledged, and on the 18th November, 1847, filed for registration, etc.
The material facts proven by the depositions, read upon the hearing, are, in substanc.e, as follows:
Brittin deposed that at the time Royston and himself purchased the lands at the sheriff’s sale, he supposed they were getting a clear and perfect title; that he never heard of any adverse claim to them until after he sold and conveyed them to Kinsworthy. That, during the time deponent and Royston owned them jointly, they paid the taxes on them, etc.
Royston deposed that at the time he and Brittin purchased the lands they were-understood to be in the possession of Hamilton; and from that time to the year 1847, he considered them to be in the possession of Brittin and himself. At the time Brittin and himself purchased them, he supposed they were getting a good title. Never heard of any adverse claim until after the institution of this suit. Had no knowledge of the instrument executed by Hall to Conway, Burton and Boring.
Jackson deposed that he was sheriff of the county of Sevier from 1840 to 1848; that Hamilton claimed the lands and paid tatxes on them until they were sold under execution, as his property, in October, 1845; after which Brittin and Royston paid taxes on them as long as deponent was sheriff. Neither the appellant, Conway, nor any person for him, paid any taxes on the lands while the deponent was in office.
Hawkins deposed that the first knowledge that he had of the lands in dispute was in 1842, when they were held and claimed by Hamilton, who, some time during that year, placed in deponent’s hands a deed from Hall to him (Hamilton,) for the lands; and requested deponent to sell them to one Paxton. The deed was placed in deponent’s hands, to be shown to Paxton as evidence of Hamilton’s title, etc. Hamilton continued to exercise ownership over the lands until some time in the year 1845, when, they were sold by the sheriff as his property, and purchased by Brittin and Royston; who claimed possession of and exeicised acts of ownership over themun til some time in the year 1847, when Kinsworthy purchased them, and had claimed the possession and ownership of them ever since. Defendant knew the lands well, had lived near them, and in the neighborhood where Hamilton resided, for nineteen years.
There had been no actual residence or improvement on the lands since witness had known them, but they had been claimed by Hamilton and others, as above stated.
Penny deposed that he was sheriff of Sevier from 1848 to 1850, and that the lands, for these years, were assessed to Kins-worthy, and the taxes paid by him. The appellant, nor any one for him, paid taxes upon them-while deponent was sheriff, etc.
By the sealed instrument of 15th March, 1836, Hall sold to Burton, Boring and John R. Conway, his unlocated donation claim (commonly known as a Lovely claim), and covenanted to make them a deed conveying to them the legal title to the lands to be entered with the claim, after the issuance of the patent. When the patent was granted to him, he held the legal title to the lands as a trustee for their benefit. On his failure or refusal to comply with his contract, they had two remedies against him: a suit at law for breach of his covenant to convey, of a bill in equity to compel him to a specific performance of the contract.
On the 7th of March, 1840, and after the issuance of the patent to him, Hall, in open and direct violation of his contract, and of his duty and obligation as a trustee, sold and by absolute deed acknowledged and put upon the public records, conveyed the lands to Hamilton. Prior to this time the appellant had purchased the claim of John R. Conway to the land, and succeeded to his right to bring a suit in equity to enforce the contract of Hall to convey the legal title, etc.
From the time Hamilton purchased the lands of Hall until the 13th October, 1845, he openly claimed them, and paid taxes on them. They were then sold by the sheriff, after public notice, as his property, and purchased by Brittin and Royston, who took the sheriff’s deed, acknowledged in the Circuit Court, and put upon the public records. They held and claimed the lands, and paid taxes on them jointly until July. 1847, when Royston conveyed to Brittin, who shortly after sold and conveyed them to Kinsworthy, and both of these conveyances were recorded. Kinsworthy claimed and paid taxes on the lands from the time he purchased them until the institution of this suit by appellant, 14th July, 1853.
Thus, a period of over thirteen years elapsed from the time the right of appellant to bring his suit accrued until the filing of the bill; during all which time there is no proof that he asserted any claim to the lands, or exercised any dominion over them; but the appellee, and the persons through whom he claimed, (Brittin, Royston and Hamilton,) during that time, and for more than the full period prescribed by law for the limitation of actions for the recovery of lands, suits upon covenants, etc., held the legal title to the lands, exercised dominion over them, and openly claimed them adversely to the right of the appellant.
Under these circumstances we think the relief sought by the appellant was barred before the filing of the bill. Harris vs. King, 16 Ark. 126; Harriet et al. vs. Swan et al. 18 Ark. 507; Sullivan vs. Hadley et al. 16 Ark. 145.
Hamilton having purchased the legal title to the lands of Hall, he and the other persons holding the legal title under him, were constructively in possession of the lands. (Angell on Lim. p. 400; United States vs. Arredonda et al. 6 Peters, 743; Lessee of Clarke et al. vs. Courtney et al. 5 Ib. 354; Green vs. Liter, 8 Cranch, 229.)
The lands being wild and unimproved, it was not necessary for the person holding the legal title to actually go upon them, and enclose or improve them, to constitute such adverse possession as would cause, the statute of limitations to commence running against appellant. Angell on Lim. 421, 422, 423; Ewing vs. Burnett, 11 Pet. 53; Draper vs. Shoot, 25 Mo. 19. Open and notorious acts of ownership are sufficient in such case. Ib.
The decree of the court below is affirmed.
Absent, Mr. Justice Rectos. | [
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Hon. Thomas Johnson, Special Judge,
delivered the opinion of the court.
This was a suit instituted on the chancery side of the Pulaski Circuit Court, on the 28th day of February, 1850, by James Guthrie against William Field, Charles Rapley, Henry M. Rec tor, Matilda Johnson, Robert W. Johnson, and Benjamin Johnson, as executors of Benjamin Johnson, deceased, William P. Thomason, John Joyes, Eliza Gist, as administrator of Robert P. Gist, deceased, and the unknown heirs of John P. Dulaney, deceased, defendants, and alleging in his bill, that on the 31st of December, 1833, said Field being indebted severally to himself and to the said Thomason, Joyes, Dulaney and Gist, executed on that day, to them all jointly, a deed of conveyance and mortgage for the security of such indebtedness, and which deed recites that the said Field, in consideration of the premises therein after set forth, and the sum of five dollars, to him paid by them, hath granted, bargained and sold, and thereby did bargain and sell, alien and convey unto them, three lots of land, situate in the city of little Rock, and known on the map of said city as lots ten, eleven and twelve, fronting on Cumberland street, and on the corner of Cumberland and Cherry streets, and therein further covenanted that said lots should thereafter be free from all rights of dower, and other incumbrance whatsoever; and made a general warranty of the title thereof, subject, however, to the condition thereunder written; that whereas, the said Field was indebted to the said Thomason in the sum of one hundred and eighty-one 50-100 dollars, and to the said Dulaney in the sum of one hundred and ninety-nine 20-100 dollars, and to the said Joyes in the sum of one hundred and seventy-eight 12-100 dollars, and to the said Gist in the sum of one hundred and sixty-one dollars and sixty-eight cents, and each sum to bear six per cent, interest until paid, and that if the said Field should pay to the said parties, respectively, the sums due to them as aforesaid, with the interest thereon, one-third in six months, one-third in twelve, and the residue in eighteen months, from the date of said deed, then it was to be void; that said deed so executed was acknowledged, and recorded in the county court clerk’s office of Pulaski county, in which said lots were situated, and that a certified copy of the same was made a part of the bill, and exhibited marked No. 1. That the lots so conveyed are situated in block thirty. two in the city of Little Rock, and west of the Quapaw line; that on the 4th day of October, 1843, said Field and wife, by deed of mortgage, conveyed said lots, with other property, real and personal, to the said Rapley and Johnson, to indemnify them, as his securities, on a note to the Bank of the State of Arkansas, for five hundred dollars, which deed was duly executed, acknowledged and recorded, and is made a part of the bill, and marked exhibit No. 2. That on the 25th of May, 1844, the said Field made another conveyance of said lots, with other property, real, personal and mixed, to the said Rapley and Rector, to indemnify them, as his securities, on certain debts due by him, and therein set forth, which said mortgage was duly acknowledged and recorded, a certificate of which, with all the certificates, -was prayed to be taken as apart of the bill, and marked No. 3. That the debt to Thomason had long since been discharged; that Dulaney was dead, and insolvent, and that no administration had been taken on his estate: that Gist was also dead, intestate, and that the s'aid Eliza had been duly appointed administratrix; that Benjamin Johnson had also died, having made his last will and testament, and that Matilda, Robert W., and Benjamin Johnson were thereby appointed his executors; that on the 11th of January, 1841, he recovered a judgment in Pulaski Circuit Court against said Field on said demand, for the sum of two hundred and ninety-four 80-100 dollars, and costs of suit, upon which execution was issued and nothing made; a copy of the record was then exhibited and made a part of the bill. He then concludes with a prayer for a foreclosure and sale of the mortgaged property. Eliza Gist, one of the defendants, appeared and filed her answer, in which she admitted the execution of the mortgage, and joined in the prayer for a foreclosure. The appellant, Guthrie, on the 9th of February, 1854, moved for a decree pro confesso against such of the defendants as had failed to answer his bill, which' was refused by the chancellor, but on the contrary, he decreed a discontinuance of the suit. From this decree Guthrie appealed to this court, where the decree of the chancellor was reversed, and the cause remanded. After the cause was sent back to the court below, it was continued from time to time to time, for the defendants to answer, until November 7th, 1856, at which time the defendant Field filed his answer. He admitted the execution of the mortgage, as alleged in the bill, and that it was executed in Pulaski county, in the then territory of Arkansas;that he supposed at the time, that he was indebted to the appellant in the sum therein specified, but in truth and in fact he did not owe him anything, and executed said mortgage in ignorance of his rights; that he did not learn the true state of facts until after the execution of the mortgage, and alter the judgment at law in favor of complainant against him, mentioned in the bill; that he ascertained the fact by obtaining vouchers and evidences from the State of Kentucky. He then states the facts referred to, and they are, substantially, as follows: That on the 14th of May, 1828, Charles M. Thruston, of Louisville, Kentucky, assigned to him (Field) all his right, title and claim, which he had upon Hayden Edwards for professional services, and which were then claimed, set forth and demanded in a judicial proceeding, in the Jefferson Circuit Court, in the name" of said Thruston, against said Edwards and Thomas J. Johnson, and that he also authorized him to prosecute said suit in his name. That on the 5th of November, 1829, at the November term of the Jefferson Circuit Court, the said suit was determined and the decree obtained by Thruston, for two hundred dollars, as his fee in the case referred to in his bill, as to, and against Edwafds, and that Johnston should pay the said sum to the complainant in that bill, that execution issue for the same, and that said decree was satisfied on the 16th of November, 1829, by payment to the complainant in this case, as the counsel of record of the said Thraston, and placed his name on the docket as such, in his own proper hand writing, and that as such solicitor, he had the right to control said decree for his benefit, that he received the money due on said decree, and thereby became responsible to him for the amount of the same; that he has frequently demanded it, but that he had refused, and still refuses to pay it, or to allow it as a set-off, or extinguishment of the amount stated in the mortgage. He then charges that the complainant had notice of the assignment of the decree to him by Thruston, at the time of its rendition, and when the same was paid and so received by him, and that by virtue of such assignment, he had become the equitable owner thereof, and that in truth and in fact, he was his counsel in that behalf. He therefore denies that he was indebted to the complainant when the mortgage was executed, and that the same was executed by him through mistake, and procured by the complainant either by intentional concealment of the facts, or from want of recollection on his part as to the collection and responsibility for said money. He denies that he has ever received the amount of the decree referred to, and prays that an account may be taken between himself and this complainant. He admits the making of the other deeds and mortgages mentioned in the bill, and also the recovery of the judgment at law in favor of the complainant against him, for the debt specified in the mortgage. He then claims the benefit of the statute of limitations, and sets up lapse of time as a bar, and denies generally the equity of the bill, etc.
John R. Redding testified, that there was such a case as that 0/ Charles- M. Thruston vs. Thomas J. Johnston and Hayden Edwards, on the chancery docket of the Jefferson Circuit Court, in the State of Kentucky, in the year 1829; that the name of C. M. Thruston was marked as the attorney in the original bill, and Guthrie in the amended bill; that he did not know in whose handwriting it was; that there was an entry of satisfaction on the record in said case, and that it was not signed by any one.
Hamilton Pope testified, that he examined the office of the clerk of the Jefferson Circuit Court, in the State of Kentucky, and found that, on the 15th of May, 1828, a bill in chancery was filed in the name of Charles M. Thruston, against Playden Edwards and Thomas J. Johnston, that the bill was in the handwriting of said Thruston, and that no name was signed or marked to it as counsel; that it was signed by O. M. Thruston, and in the handwriting of said Thruston; that in the same case he found an amended bill, which was drawn, as he supposed, by James Guthrie; that the body of said bill was in his handwriting, that it was signed Guthrie, P. Q,., was in the handwriting of said Guthrie.
Henry Pirtle, also, testified, that he had been counsellor at law and judge in Kentucky ever since the month of April, 1820, and that an attorney at law or solicitor in 1829, and at the time he was deposing, whose name appeared on the record, was authorized, where nothing appeared to the contrary, to enter satisfaction of a decree or judgment, or receive payment of either, for one year next after the rendition of such decree or judgment.
The cause came on for final hearing on the 21st day of January, 1858, when the bill was dismissed, and from which decree the complainant has appealed to this court. The first ground of defence relied upon by the defendant, Field, is easily dis posed of, and requires neither argument nor authority to settle it. It is perfectly manifest that in no possible state of the case could the complainant be held responsible to the defendant for the decree referred to in his answer, there being an utter failure, in the proof, to fix upon the former a knowledge of the fact of the assignment to the latter, or that he had any interest in it whatever. The next and principal ground relied upon by the defendant, Field, relates to the lapse of time as constituting a bar in analogy to the statute of limitations at law. This defence, we consider, well sustained by the record. But it is urged very earnestly, and at considerable length, that the defendant cannot claim the benefit of this, as it does not appear that he has been in possession of the mortgaged property a sufficient period of time to bar an ejectment, or for any time whatsoever, and that in the absence of such a showing, the law presumes the possession to have been with the complainant, in whom the deed of mortgage vested the legal title. If it be conceded that such is the legal presumption, in the absence of any reservation in the deed, and where there is no record to overturn it, the question to be decided is, whether there is anything in the pleadings in this case to rebut and overturn such presumption. The bill is totally silent as to the possession, and the answer is equally so, and in case there is nothing in the record to remove such presumption, the onus rests upon the defendant. The defendant in his answer claims the benefit of ■the statute of limitations, and also of lapse of time. The statute is not pleadable in chancery in a strict and technical sense, but lapse of .time is available in analogy to the statute. It appears from the complainant’s own showing, that after the execution of the mortgage to him, which occurred on the 1st of December, 1833, the defendant executed two others of the same lands, one on the 4th of October, 1843, and the other on the 25th of May, 1844, and that in each of the latter he expressly reserved the right to retain possession until the same should be disposed of in due course of law. Here, then, is evidence to prove that the complainant did not, in reality, go into possession of the premises upon the execution of the mortgage which he now seeks to foreclose, or at least that he did retain it a sufficient length of time to mature a title as against the defendant. If the defendant was in possession on the 4th of October, 1843, ten years not having elapsed since the execution of the mortgage to the complainant, it is clear that the latter cannot hold it upon the ground of possession alone, and it is equally certain that the period which intervened between that date and the institution of this suit, was wholly insufficient for that purpose. The bill, upon its face, shows that the suit to foreclose was not instituted until after a lapse of fourteen years and more, from the maturity of the last installment secured by the mortgage> and also that the complainant could not have acquired title by means of possession.
In view of this state of fact, the legal presumption of possession in the complainant is left without any foundation to rest upon, and is effectually overturned. This proposition is greatly supported and strengthened by the fact that the com plainant brought his suit to foreclose after so great a lapse of time, since the absolute title would have vested in him long prior to that period had he been in the actual possession. The complainant having thus deprived himself, by his own showing, of the legal presumption which might otherwise have obtained in his favor, we will now proceed to determine how the matter stands upon the subsequent proceedings. The defendant, in effect, interposed the plea of the statute of limitations, to which the complainant tendered an issue bj his replication. This issue threw the burden of proof upon the complainant. The rule is the same in equity and at law In the case of Taylor vs. Spears, 1st Eng. Rep. 385, this court said that “ an-issue taken on the plea of the statute of limitations, that the cause of action accrued within six years, the burthen of proof lies on the plaintiff, and he must prove a cause of action within the limit. There is no statute expressly fixing the lapse of time which shall bar a suit to foreclose a mortgage, but the courts of equity have adopted as the period of limitation, the length of time which is allowed the mortgagee to bring ejectment in order to obtain possession of the land, and satisfy his debt out of the rents and profits, and this period is ten years. See 16 Ark. Rep. 145, Sullivan vs. Hadley. The onus probandi having been thus cast upon the complainant, and he having failed to adduce such testimony as to take the case out of the operation of lapse of time, as set up in analogy to the statute, the plea stands confessed, and, consequently, the decree of the chancellor is correct, and ought to be affirmed. Let the decree of the chancellor be, in all things, affirmed.
Mr. Justice Fairchild did not sit in this case. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
The declaration in this case commenced thus:
“ Henry Kent, plaintiff, by attorney, complains of William H. Wells, Stephen Gaster and Charles W. Millerd, late partners in trade, under the firm name and style of W. II. Wells & Co., defendants,” &c., and contained two counts, one upon a note alleged to have been made by the defendants, without stating the manner of its execution: whether by the firm name, or otherwise; the other upon an account stated.
The defendants interposed a plea in abatement: that no such partnership as William II. Wells, Stephen Gaster and Charles W. Millerd, under the name and style of W. H. Wells & Co., ever existed, and as such partners they never executed the note sued on, but that the defendants and one Alexander B. Hale constituted the partnership firm of W. H. Wells & Co., and, as such last mentioned partnership, they executed the note sued on.
The plaintiff demurred to the plea, the court overruled the demurrer, and he rested, permitted final judgment to be given, and brought error.
The contract declared on being joint and several, the plaintiff, under the statute, had the right to sue part, or all of the partners, at his election. The substance of the plea in abatement is, that one of the partners and makers of the note was not sued. This was no defence to the action. The declaration alleges that the defendants made the note, and this was the material matcer to be answered. The allegation in the commencement of the declaration, that they were late partners, was not a material matter, (Swinney et al. vs. Burnside & Co. 17 Ark. 38); nor was it material to state in the declaration that there was another member of the firm, and maker of the note, who was not sued. Hicks et al. vs. Branton et al., M. S. S.
The judgment must be reversed, and the cause remanded, with instructions to the court below to sustain the demurrer to the plea in abatement, etc. | [
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Mr. Chief Justice English
delivered the opinion of the court.
This was a writ of quo warranto issued by the clerk of the Pulaski Circuit Court, on the motion of the attorney for the State, whereby the sheriff was commanded to summon W. R. Smith and George C. Jones, to appear etc., and show by what warrant they exercised the right to issue and put into circulation, bills or notes of the Cincinnati and Little Rock Slate Gompanij, and the powers and privileges of banking; it being alleged that they had located a banking institution in the State, known and called by the name and style of “ the Cincinnati and Little Rock Slate Company,” and had opened a banking office in the city of Little 'Rock, and kept regular banking hours, for the purpose of issuing and circulating their bills, and had issued and put into circulation a large quantity of said bills.
The writ was returned served on Smith, and not found as to Jones.
Smith filed a response to the writ, stating that he did not claim,or exercise the right or privilege of banking, or of issuing and putting into circulation bills or notes of said company, for such purpose as alleged, etc. But at the time of the issuance and service of the writ, he was the mere officer and servant of said company, being the cashier thereof, and in no wise assuming or claiming in his individual capacity, or by reason of any association with said Jones, to use or exercise any corporate powers or functions whatever.
Respondent, protesting that the remedy, if any, sought to be obtained by the writ, had been misconceived, and should have been sought against the company, and that he was not-bound by law to answer the same, other than as above, nevertheless proceeds to state, that at the time of the issuance and service of the writ, he was, and still continued to be, the cashier of the Cincinnati and Little Rock Slate Company, a corporation of the State, created by an act entitled “ An act to grant a charter to the Cincinnati and Little Rock Slate Company,” approved the 15th December, 1852, which was a public act, etc. That he was appointed such cashier by the president and directors of the company, pursuant to the provisions of the charter, etc., and in that capacity had been in the service and employment of the corporation at Little Rock, and engaged in the discharge of such duties as usually and properly appertain to said office of cashier.
That in and by said act, and for the purpose, as declared in its preamble, of developing the resources of the State, and of encouraging capitalists, etc., to take the necessary steps for the development of such resources, it was, amongst other things, enacted, that for the purpose of facilitating the operations of said company, they should have power to draw and sell drafts or bills of exchange, in such sums and amounts as they might think proper, on the different cities to which they might ship their merchandize.
That in order to facilitate the operations of said company, and in the transactions of its business, said president and directors have caused to be drawn, sold and issued divers drafts or bills of exchange, in such sums or amounts as they thought proper, and all of the same form or tenor, (a copy of one of which bills for five dollars is exhibited.)
That all such drafts and bills of exchange were sold and issued for value received, in the business transactions of the company, and that they were payable at the office of the treasurer and agent of said company, in the city of New York, where all such of them as had been presented for payment had been paid, taken up and cancelled, and never afterwards re-issued.
That if such drafts or bills of exchange, from the time of the sale and issuance of them by said company, and before the presentation of them for payment to the said treasurer of the company in New York, had been circulated and passed by delivery, and so, being used as a medium of exchange, fulfilled in that mode the office of currency in business transactions, it was a legitimate and beneficial operation, such as may and does result from the use , of ordinary bills of exchange, when issued by any private individual or corporation, as a medium of exchange, and without contravening any law, etc. That the company had not, as far as respondent knew, drawn, sold, or put into circulation, as currency, any notes thereof, and had not had drawn, sold or issued any drafts or bills of exchange, except of the form and tenor, and in the manner above stated.
The court sustained a demurrer to the response, and rendered judgment — “ that the right, privilege and franchise of issuing and putting into circulation said bills or notes of the Cincinnati and Little Rock Slate Company, by the said|respondents, be seized into the hands of the State, as being exercised and issued by the said defendants, without any sufficient warrant or authority, and in violation of the laws of Arkansas, and that the said State do have and recover from respondents all the costs in and about this prosecution expended.”
The defendants appealed.
The 8th section of the charter of the Cincinnati and Little Rock Slate company provides; “ that for the purpose of facilitating the operations of said company, they shall have power to draw and sell drafts or bills ©f exchange, in such sums or amounts as they think proper, on the different cities to which they may ship their merchandize.”
It was not the intention of the Legislature, by this section of the charter, to confer any banking privileges up on the company, or to authorize them to issue bills, to be used as a circulating medium; and if such had been the intention of the Legislature, they had not the constitutional power to confer such privileges upon the company. Amend, to Const, oj Nov. 1846.
If the company claimed and exercised the privilege of banking, or attempted to convert their bills into a circulating medium, as they perhaps did, notwithstanding the plausible response of Smith, it was an abuse of the charter — a misuser — for which, upon a writ of quo warranto issued against the corporation, the franchise granted to the corporators, by the charter, might be seized by the State. The People vs. Utica Ins. Co., 15 John R. 389.
But upon quo warranto against a mére officer or servant of the corporation, there could be no judgment of seizure for ah abuse of the charter. Commonwealth vs. Dearborn et al. 15 Mass. 125; King vs. Cor. of Bedf. 6 East, 356; Queen vs. Taylor, 11 Ad. & El. 949. Though, under our statute, in a proceeding against the corporation, the writ may be served upon an officer of the company, the action and judgment are against the corporation. Dig. Ch. 39.
The judgment must be reversed, and the cause remanded. | [
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Mr. Justice Compton
delivered the opinion of the Court.
The appellant, Ann P. Kirkpatrick, by her next friend Elijah Kirkpatrick, exhibited her bill in the Ashley Circuit Court to enjoin the sale of certain lands, levied on as the property of her husband, Elijah Kirkpatrick, to satisfy a judgment which the appellees, Buford & Pugh, had recovered against him.
The bill charges that by ante-nuptial settlement, made in the State of Georgia, by and between Mrs. Kirkpatrick and the said Elijah, certain articles of household furniture were settled upon her, to her sole and separate use, free from the control of her husband, and exempt from his liabilities; that she continued afterwards to hold the furniture as her own separate property until she and her husband were about moving to the State of Arkansas, when she sold it, and with the proceeds, or a portion of them, after her arrival in Arkansas, entered at the United States Land Office, in her own name, the lands levied on; and denies that they were the lands of her husband, or subject to his debts.
A demurrer was sustained to the bill and Mrs. Kirkpatrick appealed.
Two questions were raised upon the demurrer in the court below, and have been argued here: 1st, whether there was any equity in the bill; and 2d, whether the husband was a necessary party.
As to the first of these propositions, it may be said to be true, as contended by the counsel for the appellees, that the husband has an interest in the freehold estate of the wife, which maybe seized and sold on execution. 2 Kent Com. 131. But that is not the question involved. We are called on to determine whether the proceeds of the sale of Mrs. Kirkpatrick’s separate property, or the lands she purchased with them, are to be regarded as her separate estate. That they are so regarded, and subject to the same rules as was the original estate before it was sold and converted into a different species of property, has, in effect, been repeatedly held in the English and American courts. Gore vs. Knight, 2 Vern. 535; Hearle vs. Greenbank, 3 Atk. 709; Felleplace vs. Gorges, 1 Ves. p. 48; Hathaway vs. St. John, 20 Con. 343; Quick vs. Garrison, 10 Wen. 335; Merret vs. Lyon, 3 Barb. S. C. 110; Strong vs. Skinner, 4 ib. 546; Young vs. Jones, 9 Humph. 555.
.There being no provision in the ante-nuptial agreement restraining the right of Mrs. Kirkpatrick to dispose of the household furniture, she must, in respect to it, be considered in equity as a feme sole, with full power to make disposition of it in any mode she chose to adopt. Strong vs. Skinner, 4 Barb. S. C. 553; Jaques vs. Methodist Episcopal Church, 17 John. 548. If by a mere sale of the separate estate and the investment of the proceeds in the purchase of other property, she lost her estate, and the husband acquired the property thus purchased, without any intention on her part to give it to him, then this unqualified right of disposition was a delusion, and its exercise an injury.
In Hathaway vs. St. John, 20 Con. 343, supra, the wife was the owner of bank stock as her separate property. The stock was sold at her request, and the avails laid out in real estate; which, through the agency of her trustee, was first mortgaged and then sold to secure and pay for a pair of horses and carriage, which were bought for and went into the possession of the wife. The property being afterwards in the possession of the husband, it was attached as his property at the suit of a creditor. In replevin by the wife’s trustee against the creditor, it was held: 1st, that when the land was sold and the horses and carriage purchased, the wife had, in equity,full capacity to act as a feme sole in relation to the property, and to direct the sale of the former and the purchase of the latter; and 2nd, that the temporary possession of the husband at the time the property was attached, did not essentially vary the right of the wife or of her trustee.
In Ferguson & Neill vs. Moore and wife, 19 Ark. 387, the same principle was pressed in argument, upon' the authority of Young vs. Jones, 9 Humphrey 555, and Mr. Justice Scott said: “The doctrine contended for by the counsel for the appellee, that the right of property, in a married woman, attaches to the fund arising from the sale of her sole and separate.estate, to the same extent which existed in regard to the property before the sale, although doubtless sound in itself, has no application to this branch of the case, because here, as we have seen, the wife had no sole and separate property in the lands in question.”
It is admitted that property may be purchased with the products of the wife’s separate estate, and put into the possession of the husband under such circumstances as to raise the presumption that the wife intended it should be a gift to the husband, and not that he should hold it as her trustee, as in McGlinsey vs. McGlinsey, 14 Serg. & Raw. 64;. Shirley vs. Shirley, 9 Paige Ch. 363. But in this case, there is nothing stated in the bill from which a gift by Mrs. Kirkpatrick to her husband could be inferred, and a court of equity will interpose to protect her separate estate against his creditors. Shiiley vs. Shirley, supra.
That the husband was a necessary party to the bill, there can be no doubt. Mr. Justice Story, in his work on Eq. Plead, sec. 63, lays it down as the correct practice in such cases, that the wife “ought to sue as sole plaintiff, by her next friend, and the husband should be made a party defendant; for he may contest that it is her separate property, and the claim may be incompatible with his marital rights.” In the case before us, the husband was brought before the court in no other capacity than as next friend to the wife; and in that attitude a decree would not affect his rightsjas husband.
There being merits in the bill, and it being defective in no other respect than that the husband was not made a party, the court should have dismissed it without prejudice — and not absolutely. The decree must therefore be reversed, and the cause remanded with instructions to dismiss the bill without prejudice to the right of Mrs. Kirkpatrick to bring a bill with proper parties. | [
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Mi*. Chief Justice
English delivered the opinion of the Court.
This was a motion by Scarborough, in the Marion Circuit Court, for judgment against Arnold, as sheriff, founded on the provisions of sec. 76, chap. 68, Gould’s Dig.
It was alleged in the motion that by virtue of an execution in favor of Scarborough against Jesse Mooney and others, Arnold levied upon and offered for sale certain lands, as the property of Mooney, which were purchased by Pearson and Moore at $111 50; and that Arnold had returned upon the execution that he had sold the lands to them, for that sum, but that they had not paid him therefor. That Arnold failed to have the money in court on the return day of -the fi. fa., and also refused to pay it to the plaintiff, etc. Wherefore he moved for judgment against him for the amount of the money bid for the lands, with interest, and damages at the rate of ten per cent, per month, as provided by the statute, etc.
Arnold stated in his response to the motion, that Moore and Pearson bid off the lands at the sum stated, but refused to pay him the money. That when the sale was made, he demanded the money of them, and they promised to pay it to him on the next morning; and that, on the next morning they refused to do so; and that, when he ascertained they would not pay him the amount bid by them for the lands, the time prescribed by law for judicial sales had expired, and that he could not legally offer the lands for sale a second time.
The matter was submitted to the court, by consent of parties, and the plaintiff read in evidence the execution, return, etc.
Arnold stated in his return on the fi. fa., that he offered the lands for sale, that one tract was bid off by Pearson for $107, and the other by Moore at $5, w'hich sum of money remained wholly unpaid, etc., and the execution unsatisfied, etc.
Wm. Byers, Esq., the attorney for the plaintiff in the execution, testified that he was present at the sale, and, immediately on the close of the sale, directed Arnold to demand the money of Pearson, stating to him that he believed, from the conduct of Pearson, that he intended to deceive Arnold, and would not pay him the money. Witness also told Arnold, at the time, that if he did not do his duty about the matter, he would hold him responsible. That Arnold went, as he- said, to Pearson and Moore, and demanded the money, and they told him they would pay it to him the next day, or some time thereafter, the exact time not recollected by witness. Witness then told him if he waited on them for the money, he would do so at his peril. A few days after the sale, Arnold told witness that Pearson refused to pay his bid, alleging that the defendant in the execution had no title to the land bid off by him. Witness frequently requested Arnold to settle the matter, during the term of the court at which the sale took place.
The court overruled the motion for judgment, and discharged the defendant, and the plaintiff appealed.
The section of the statute, under which the motion was made, declares: “ If any officer sell any property under execution, whether he received payment therefor or not, or shall make the money in any execution specified, or thereon indorsed, and directed to be levied, or any part thereof, and shall not have the amount of such sale, or the money so made, before the court, and pay over the same according to law, he shall be liable to pay the whole amount of such sale, or money by him made, to the person entitled thereto, with lawful interest, etc. and damages, etc., at the rate of ten per cent, per month, etc. And the party aggrieved is given a remedy by action against the 'officer and his securities, on his official bond, or by motion for judgment against the officer.
Under this section of the statute, the officer is liable to an action, or motion for judgment, in two cases; first, where he sells property, under execution, and fails to pay over the amount of the sale, whether he received the money or not; and, second,where he receives money on the execution, and fails to pay it over. Levy vs. Lawson, 5 Ark. 213.
It was expressly held in State use, etc. vs. Borden et al., 15 Ark. R. 615, that where a sheriff offers land for sale under an execution, and it is struck off to a bidder, who refuses to pay his bid, it is not such a sale of the property, within the meaning of this section of the statute, as would make the officer responsible for the amount.
In the case before us, the lands were bid off by Pearson and Moore; the sheriff demanded the money of them immediately; they promised to pay it to him on the next day, but on the next day refused to do so. He did not execute to them deeds for the lands, or treat the sale as completed, by his return, or otherwise, so as to assume responsibility for the amount bid by them for the lands.
It follows that the appellant, in proceeding by motion under the 76th section of chap. 68, of the Dig., mistook his remedy.
If the appellee was guilty of a breach of official duty in not offering the lands for sale again, on the failure of Pearson and Moore to pay the amount of their bids, when the lands were struck off to them, and as a consequence returned the execution without making safe of the property taken in execution, the 74th and 75 sections of the 68th chapter of the Digest, prescribe for the appellant an ample remedy.
The judgment of the court below must be affirmed. | [
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PER CURIAM
In accordance with the resolution adopted by the Arkansas Judicial Council on October 9, 1976, whereby the Council requested that the Supreme Court establish a permanent Judicial Planning Committee to improve the administration of justice in Arkansas, the Judicial Planning Committee of Arkansas is hereby established.
1. The name of the Committee shall be the “Judicial Planning Committee”. It shall meet regularly to perform research and make recommendations on a long-range basis to improve the administration of justice in the Courts of Arkansas. The Committee shall prepare an annual master plan and a multi-year plan for improving the state court system and shall incorporate into its plans special provisions pertaining to criminal justice in the Courts. The Committee may establish advisory committees to assist it in its deliberations and promote involvement of the public, the executive and legislative branches of government, and other interested parties, in its efforts to upgrade the state court system. The Committee shall be empowered to review applications to the Law Enforcement Assistance Administration for assistance in court projects, to establish priorities for improving the state court system, and to develop and coordinate programs for improving the courts.
2. The Committee shall consist of twelve members as follows: One Supreme Court Justice to serve as chairman, three Circuit Judges, three Chancery Judges, three Municipal Judges, one Prosecuting Attorney, and one criminal defense attorney or public defender, to serve terms of two years’ duration. A majority shall constitute a quorum. The Arkansas Judicial Department shall assist the Committee, administer its operations, and provide necessary staff subject to the approval of the Committee and this Court.
3. This Court may request recommendations of persons to serve on the Committee from the Arkansas Judicial Coun cil, the Arkansas Municipal Judges’ Association, the Arkansas Prosecuting Attorneys’ Association, and the Arkansas Bar Association.
4. This order shall be effective on December 13, 1976.
Byrd, ]., not participating. | [
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Conley Byrd, Justice.
The appellant, Osage Oil and Transportation, Inc., contends by this appeal that Section 17B-4(c) of Ordinance No. 1893 of the City of Fayetteville is unconstitutional because it provides for summary removal of signs upon an ad hoc determination by the City’s Building Inspector that a particular sign is unlawfully maintained. In support of its contentions, appellant relies upon McLean v. Fort Smith, 185 Ark. 582, 48 S.W. 2d 228 (1932). The City of Fayetteville on the other hand relies upon our decisions in McKibbin v. Fort Smith, 35 Ark. 352 (1880) and Harvey v. DeWoody, 18 Ark. 252 (1856), which permit summary action by a city when no factual dispute is involved.
In the trial court appellant stipulated that it did not obtain the permit required by the sign ordinance to erect its sign and that the sign otherwise violated the sign ordinance because of the size and set back restrictions in the ordinance. Since appellant readily admits that its sign as erected is in violation of the sign ordinance, we affirm the judgment upon the basis set forth in McKibbin v. Fort Smith and Harvey v. DeWoody, supra, without reaching the constitutional issue raised by appellant. This is in accord with our long standing rule that we will not pass upon constitutional questions if the litigation can be determined without doing so, Searcy County v. Stephenson, 244 Ark. 54, 424 S.W. 2d 369 (1968).
Appellant also suggests that Section 17B-4(c) of Ordinance 1893 of the City of Fayetteville is ultra vires because the penalty provisions set forth in Ark. Stat. Ann. § 19-2829(h) are exclusive. We find no merit in this contention because Ark. Stat. Ann. § 19-2831 provides:
“This Act [§§ 19-2825 — 19-2831] shall be construed liberally. The enumeration of any object, purpose, power, manner, method, or thing shall not be deemed to exclude like or similar objects, purposes, powers, manners, methods, or things.”
Appellee has abstracted additional portions of the record and now contends that it is entitled to recover the costs thereof. We deny this request for two reasons:
(1) the abstract of the appellant was sufficient to present the issue upon which it relied; and
(2) appellee neglected to tell this court the amount of the actual costs or time spent in abstracting the additional portions of the record.
Affirmed.
We agree: Harris, C.J., and Holt and Roy, JJ.
We upheld the validity of this sign ordinance in Board of Adjustment of Fayetteville v. Osage Oil and Transportation, Inc., 258 Ark. 91, 522 S.W. 2d 836 (1975). Appellant erected the sign between the date of the trial court’s judgment and our reversal but no vested rights were acquired thereby. | [
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Frank Holt, Justice.
This is an interlocutory appeal by the state pursuant to Arkansas Rules of Criminal Procedure, 16.2 (d) and 36.10 (1975). The trial court held that the description “and curtilage and appurtenances contained in the description of the premises to be searched as stated on the face of the search warrant is of no legal consequence.” The court then “ordered that any and all evidence contained in any out building or on any premise other than the residence and the area [a garden] observed by [the officer] be suppressed.” We make it clear that the only issue presented is whether the words “and curtilage and appurtenances” were a sufficient description in a search warrant to allow the search of a chicken house located 20 to 40 feet from the described residence or farmhouse and a hay shed located 300 feet from the house and 25 to 30 feet from a barn described in the search warrant. It appears that no evidence (marijuana) was found in the barn.
It is well established that only unreasonable searches and seizures are prohibited by our State (Art. 2, § 15) and Federal (Fourth Amendment) Constitutions. Wickliffe & Scott v. State, 258 Ark. 544, 527 S.W. 2d 640 (1975); and Carroll v. United States, 267 U.S. 132 (1924). The degree of particularity required of a description in a search warrant is governed by the facts and circumstances of each case. Easley v. State, 249 Ark. 405, 459 S.W. 2d 410 (1970); and Perez v. State, 249 Ark. 1111, 463 S.W. 2d 394 (1971).
Here the search warrant contained a description of a farmhouse with a red barn and also the additional words “and curtilage and appurtenances.” Pursuant to this description, the officers searched the farmhouse and the other buildings adjacent thereto, all within 300 feet of the described house. In Walker v. U.S., 225 F. 2d 447 (5th Cir. 1955), the court said:
The barn here searched was a domestic building constituting an integral part of that group of structures making up the farm home. Every case must be decided upon its own peculiar facts, and we hold that, under the facts here, this barn was a part of the curtilage. In Taylor v. United States, 1931, 286 U.S. 1, 52 S. Ct. 466, 76 L. Ed. 951, the house searched was a metal garage adjacent to the dwelling house; in Robinson v. United States, 6 Cir. 1948, 165 F. 2d 752, the search was a smokehouse; and in Walker v. United States, 5 Cir. 1942, 125 F. 2d 395, 396, the search was of a shed consisting of a chicken house and garage, which stood fifty to sixty feet from the dwelling house; in each instance it was considered that the curtilage was involved.
See also Rosencranz v. United States, 356 F. 2d 310 (1st Cir. 1966); United States v. Meyer, 417 F. 2d 1020 (8th Cir. 1969); and 68 Am. Jur. 2d, Searches and Seizures, § 78. Cf. Durham v. State, 251 Ark. 164, 471 S.W. 2d 527 (1971). In the case at bar we hold the description of the farmhouse, barn, “and curtilage and appurtenances” was sufficient to authorize the officers to search the chicken house and hay shed on the farm.
Reversed and remanded. | [
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Elsijane T. Rov, Justice.
On April 22, 1975, appellant Horace Rogers was charged under Ark. Stat. Ann. § 41-1001 (Repl. 1964) with the crime of burglary. He was additionally charged with being a habitual criminal according to the provisions of Ark. Stat. Ann. § 43-2328 (Supp. 1975).
Appellant was tried and found guilty of burglary. Thereafter evidence of prior convictions was introduced by the State in support of its charge under the Habitual Criminal Statute. The past convictions included charges of burglary and grand larceny to which appellant had entered a plea of nolo contendere; a sentence under the provisions of Title 18 U.S.C. §§ 5031-42 for the crime of uttering committed during appellant’s minority and a two year sentence received by appellant in Oklahoma stemming from a guilty plea to a charge of second degree burglary. The charge of grand larceny to which appellant entered a plea of nolo contendere resulted in a five year probationary sentence.
Appellant first cites error in the lower court’s ruling which admitted as evidence of a previous conviction his probationary sentence for grand larceny. Appellant contends that inasmuch as he was not committed to prison as a result of the charge of grand larceny, but rather received a probationary sentence, this could not be construed as a conviction and cannot serve as the basis for applying the Habitual Criminal Statute.
In support of this argument appellant cites State Medical Board v. Rodgers, 190 Ark. 266, 79 S.W. 2d 83 (1935), Tucker v. State, 248 Ark. 979, 455 S.W. 2d 888 (1970), and Sutherland v. Arkansas Department of Insurance, 250 Ark. 903, 467 S.W. 2d 724 (1971), as reflecting the view that a commitment to prison is a necessary predicate to a finding of a conviction. The Habitual Criminal Statute is not controlled by the same interpretative logic that has governed the decisions earlier cited.
Rodgers, supra, concerned construction of a statute providing for revocation of a license to practice medicine upon “conviction of a crime involving moral turpitude.” Tucker, supra, concerned construction of a statute providing “that a person who has been convicted of a felony, and has not been pardoned, is disqualified to act as a grand or petit juror.” Southerland, supra, concerned construction of a statute providing that an insurance agent’s license could be revoked upon “ ‘ [c]onviction, by final judgment, of a felony involving moral turpitude.’ ” (Italics supplied.) Each of these cases dealt with only one particular crime and none involved the Habitual Criminal Statute which in the emergency clause stated that:
. . . [T]he passage of this Act will provide for greater punishment of habitual criminals and reduce the number of persons committing more than one felony and reduce the number of crimes committed in this State. * * * (Italics supplied.)
The statute provides that:
Any person convicted of an offense, which is punishable by imprisonment in the penitentiary, who shall subsequently be convicted of another such offense, shall be punished as follows: (Italics supplied.)
The crime with which appellant was charged and found guilty was punishable by a term of imprisonment. The legislature intended the word “conviction” as used in Ark. Stat. Ann. § 43-2328 (Supp. 1975) to mean the establishment of guilt prior to and independently of judgment and sentence. This usage of the word “conviction” has been specifically recognized by the Court. In Fanning v. State, 47 Ark. 442, 2 S.W. 70 (1886), the Court stated:
A conviction is defined to be “that legal proceeding of record which ascertains the guilt of the party, and upon which the sentence or judgment is founded.”
The statutory purpose was to discourage individuals from repeatedly committing acts constituting felonies under our law, i.e., acts which are “punishable by imprisonment in the penitentiary.” It was the repeated commission of such offenses which concerned the legislature, not the actual punishment by imprisonment or lack of it which the offender received for any such previous offense.
It would not be reasonable to assume that the legislature intended a person who was found to have committed a felony for which he was actually imprisoned should receive a harsher penalty than a person who was found to have committed the same felony but was placed on statutory probation. For the foregoing reasons we find no merit in this contention.
Appellant also questions the admission of testimony that he had been charged in the United States District Court with the crime of uttering and sentenced under the Federal Juvenile Delinquency Act to a term not to exceed his minority-
An adjudication in federal court as a juvenile delinquent is not deemed a criminal conviction. Fagerstrom v. U.S., 311 F. 2d 717 (8th Cir. 1963). The stated legislative intent of the Act is that any adjudication of juvenile delinquency thereunder shall result in the determination of a status and not conviction for a crime. Cotton v. U.S., 355 F. 2d 480 (10th Cir. 1966). See United States v. Caniff, 521 F. 2d 565 (2d Cir. 1975), cert. denied 423 U.S. 1059, 96 S. Ct. 796, 46 L. Ed. 2d 650 (1976), to the same effect.
For the foregoing reasons the court erred in allowing the sentence under the Federal Juvenile Delinquency Act to be admitted in evidence.
The erroneous admission of this conviction requires that appellant’s plea for a sentence reduction be recognized. Ark. Stat. Ann. § 43-2328 provides in part applicable to this appeal that:
If the fourth or subsequent offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term less than his natural life, then the person shall be sentenced to imprisonment for the fourth or subsequent offense for a determinate term not less than the maximum sentence provided by law for a first conviction of the offense for which the defendant is being tried, and not more than one and one half (1 1/2) times the maximum sentence provided by law for a first conviction; provided, that any person convicted of a fourth or subsequent offense shall be sentenced to imprison ment for not less than five (5) years.
Since we have determined that of the two prior convictions contested by appellant as inadmissible one must be so declared, three previous admissible convictions remain. When cumulated with appellant’s instant conviction the language of § 43-2328(3) becomes applicable. This section makes mandatory the imposition of the maximum term of imprisonment, 21 years, against one falling within its ambit. It additionally provides that a multiplier may be used to lengthen this term, and it is clear that the jury, in sentencing appellant to a 31 1/2-year term of imprisonment, thus increased the period of incarceration by use of this device. However, because we cannot ascertain beyond speculative persuasion what role the inadmissible conviction played in enhancing appellant’s sentence and because the potential for prejudice is thereby engendered, we reduce this sentence to the minimum permissible term, or 21 years. See Roach v. State, 255 Ark. 773, 503 S.W. 2d 467 (1973), and Richards v. State, 254 Ark. 760, 498 S.W. 2d 1 (1973).
Accordingly, should the attorney general decide, within 17 days, to accept this reduction the judgment will be affirmed as modified. Otherwise the judgment will be reversed and the cause remanded for a new trial.
Fogleman, J., dissents.
Title 18 U.S.C., §§ 5031-42. | [
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John A. Fogleman, Justice.
This appeal is from a judgment quashing service of process for improper venue. Appellant Cavette brought suit against appellee Ford Motor Credit Company in the Circuit Court of Phillips County alleging conversion of a 1975 Ford truck, in which appellee had a security interest, by taking it in the nighttime.
Summons was issued, directing the Sheriff of Pulaski County to serve it on appellee by serving The Corporation Company at 620 West Third Street in Little Rock. The return of the Sheriff of Pulaski County recites that it was served by delivering a copy to Jan Zanoff, assistant secretary to The Corporation Company, statutory agent for the service of process. After this summons had been served as directed, appellee filed a motion to quash the service upon the ground that Phillips County was not the proper venue for the action against appellee, a foreign corporation with its only place of business in Pulaski County. The circuit court granted the motion, finding that Ford Motor Credit Company was a foreign corporation, domiciled in Michigan, with its principal place of business at Dearborn, Michigan, but duly licensed to do business in the State of Arkansas; that service was had on appellee’s designated agent for service in Pulaski County; and that appellant had alleged that he was indebted to appellee for the purchase price of the truck.
Both of appellant’s points for reversal rest upon the premise that venue in Phillips County is proper under Ark. Stat. Ann. § 27-608 (Repl. 1962), and for the purposes of this opinion we will assume that there was property of, or debts owing to, Ford Motor Credit Corporation, in Phillips County. Even so, there seems to be no question about the status of Ford Motor Credit Company as a foreign corporation authorized to do business in Arkansas.
We can agree with appellant that, for garnishment purposes, the situs of his debt to appellee could be taken to be in Phillips County under the holding in St. Louis Southwestern Ry. Co. v. Vanderberg, 91 Ark. 252, 120 S.W. 993, cited by appellee. But this fact does not control the venue under our statutes except where service on the defendant is constructive. See Jacks v. Central Coal & Coke Co., 156 Ark. 211, 245 S.W. 483, where this section was invoked by a foreign corporation as fixing the venue in a personal injury action. Appellant argues that Ark. Stat. Ann. § 27-605 (Repl. 1962) fixing venue for a domestic corporation in the county in which it is situated or has its principal office or place of business or in which its chief officer resides is complimented by § 27-608 as to foreign corporations. But this would decidedly differentiate between foreign and domestic corporations as to venue of identical causes of action. Such a differentiation in an Arkansas statute has been held to unconstitutionally discriminate against, and deny equal protection of the laws to, foreign corporations. Power Manufacturing Co. v. Saunders, 274 U.S. 490, 47 S. Ct. 678, 71 L. Ed. 1165 (1927), reversing 169 Ark. 748, 276 S.W. 599. We have continually and repeatedly recognized the impact of Power in our venue statutes. See Chapman & Dewey Lumber Co. v. Bryan, 183 Ark. 119, 35 S.W. 2d 80; Anheuser-Busch v. Manion, 193 Ark. 405, 100 S.W. 2d 672; Crutchfield v. McLain, 230 Ark. 147, 321 S.W. 2d 217; B-W Acceptance Corp v. Colvin, 252 Ark. 306, 478 S.W. 2d 758. In the last case cited we stated the full impact of Power, saying:
*** Consequently, venue cannot constitutionally be laid against such a foreign corporation in any county where the venue would not be proper in a suit against a domestic corporation or a resident individual.
Apparently, we have not otherwise specifically considered § 27-608 in the light of Power, probably because of the Jacks decision and because of Millsap v. Williams, 236 Ark. 416, 366 S.W. 2d 705, where we held it applicable to a corporation not authorized to do business in Arkansas, but did not decide whether, in view of Ark. Stat. Ann. § 27-347 (Repl. 1962), it controlled venue when the foreign corporation has a place of business or office in this state where service of summons may be had. Appellant argues, however, that no other venue statute applies to foreign corporations in actions in personam and that, in spite of Power, the state may make a reasonable classification, even in venue statutes, to adjust its laws to fit particular situations, so long as the classification is not arbitrary, relying upon Kelso v. Bush, 191 Ark. 1044, 89 S.W. 2d 594. But Kelso involved an individual non-resident defendant who had no place of business or domicile at which to fix local venue or by which her status might be compared with that of a domestic corporation or natural person and we found the difference between her situation and that of the foreign corporation in Power to be substantial and controlling. The same rationale might well be applied to a foreign corporation not authorized to do business in Arkansas. But we see no indication that the rule of Power relating to foreign cor porations doing business within the state by her permission and having a place of business and a resident agent on whom process may be served does not govern here. According to Power the situation of a corporation authorized to do business in the state is not distinguishable from that of a domestic corporation or individual insofar as venue of transitory actions is concerned.
Furthermore, we do not agree with appellant that there is no venue statute as to actions against a corporation such as appellee in the absence of § 27-608. We have held that venue statutes such as Ark. Stat. Ann. §§ 27-613, 614, 615 are applicable to corporations, both foreign and domestic. Harger v. Oklahoma Gas & Electric Co., 195 Ark. 107, 111 S.W. 2d 485, cert. den. 304 U.S. 569, 58 S. Ct. 1038, 82 L. Ed. 1534; International Harvester Co. v. Brown, 241 Ark. 452, 408 S.W. 2d 504; Mack Trucks of Arkansas, Inc. v. Jet Asphalt & Rock Co., 246 Ark. 101, 437 S.W. 2d 459. However desirable it might seem to construe § 27-608 as appellant would have us do, we must construe it in a manner that would not render it unconstitutional, if reasonably possible to do so. Arkansas Department of Labor v. American Employment Agency, 257 Ark. 509, 517 S.W. 2d 949; Gibbs v. State, 255 Ark. 997, 504 S.W. 2d 719; Stone v. State, 254 Ark. 1011, 498 S.W. 2d 634. To construe the act as appellant does would render it unconstitutional under Power. We must therefore adhere to the position that this statutory provision does not fix venue where a foreign corporation is authorized to do business in Arkansas.
The judgment is affirmed.
We agree. Harris, C.J., Roy and Hickman, JJ.
Dictum in this case which indicates that a foreign corporation might have been sued in a county in which it had property or there were debts owing to it should be disregarded, insofar as it may be taken to indicate that venue may be laid under it in an action in personam against such a corporation which has been authorized to do business in Arkansas. There is also dictum in Pacific Insurance Company of New York v. Droddy, 240 Ark. 535, 400 S.W. 2d 673 which should not be considered as authority for venue in actions such as this. | [
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John A. Fogleman, Justice.
Appellant was convicted of attempted burglary on jury trial. His several points for reversal are combined under two arguments: that circumstances surrounding appellant’s pretrial identification by a witness for the state were so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification and that evidence of other crimes was improperly admitted.
The pretrial identification was made by James Uselton. Evidence submitted at a pretrial hearing on appellant’s motion to suppress the identification revealed:
On August 19, 1975, in Barling, Arkansas, at approximately 9:30 p.m., as James Uselton was walking home from his mother’s house he heard a noise that he described as glass breaking. He then saw a person run from behind the Medi-Sav Drug Store. He called a local police officer, Dale Lairamore, who investigated the area and later discovered that an air conditioning vent had been pried loose from the drug store. Lairamore testified that it was dark when the incident happened. Uselton described the suspect as a male wearing black or dark clothing, with medium-length, or collar-length hair. Lairamore had seen Synoground seated on a bench about a hundred yards from the drug store after the incident was reported, and had a good look at him and ascertained his identity.
After the appellant was arrested, charged, and had retained counsel, Lairamore went to the home of Uselton and showed him pictures of five subjects. Uselton was standing beside Lairamore’s police car when he examined these photographs. Four of them showed both front and profile views of male faces. The other showed only a front view of a male face. The picture of the accused was in color and bore the numbers 8 22 75. The others were black and white and bore the numbers 11 27 73, 8 29 73, 2 15 74 and 4 14 73. Lairamore testified that Uselton looked through the pictures several times and said, “Well, it’s kinda hard to tell” because all he saw that night was the side of the person. Lairamore stated that he then told Uselton to look at the part that shows the side view and to imagine “the person as he was dressed that night;” that Uselton then covered part of the picture with his hand and went through them a couple of times. He stated that Uselton told him that one of the photographs was “kind of close” but another looked more like the man he saw, and the hair was about the same. The latter was the photo of the appellant. It took about five or six minutes for Uselton to pick out the appellant’s picture. Lairamore testified that the pictures were not arranged in any particular order and that he did not say or do anything that would indicate which picture represented the suspect.
Uselton testified at the hearing that when the incident happened that it was “about dark,” and the street lights were on and he only got a glimpse of the subject, seeing only a part of one side of his face. He further testified that when he looked at the photographs that Lairamore told him to remember about the black pants and shirt. He covered the profile views in the photographs so that little beside the hair was showing. He stated that he looked through the pictures, and that they did not help him much in looking at the face, but he identified the “guy with blond hair with a white shirt, ” that there were no other pictures that looked like the subject he saw that night. The prosecuting attorney asked, “Do you know this gentleman sitting here at the defense table, the one in the middle?” Uselton answered, “No, sir, I sure don’t.” The prosecuting attorney then asked, “You don’t ever recall seeing him before?” “No, sir, I don’t.” “Do you recall a Preliminary Hearing which you testified in before?” “He was blond, blond hair.” Uselton insisted that the person he saw that night had blond hair and said that he made his identification of the picture by the light blond hair, but admitted that the person at the defense table, who was identified for the record as the appellant, did not have blond hair. The witness identified correctly the photograph he had previously picked out and stated that it looked like the appellant and that the person in the picture did not have blond hair, but again stated that he saw a blond-haired subject that night. Uselton recalled having identified someone at a preliminary hearing, but said that this person had blond hair.
Uselton stated that he identified the picture as being of the man he saw on August 19 only by placing his hand over a portion of the profile view so that he could see only the portion of the head from the eyes on back, and that the identification was made primarily by looking at the hair and the side of the face. He said that he did not see any other pictures that resembled the man he saw on August 19.
On redirect examination Uselton suddenly remembered that as he waited for Lairamore to investigate, that the man in black clothes had “came back around . . . and that’s when I, when I seen his whole face then .. . He dropped something. He bent over and I still noticed the blond hair, he had light blond hair.” In spite of this, he said he had difficulty in identifying any photograph until he covered the profile view in the manner he had described. He did not identify a frontal view.
Uselton testified that he had only gone through the eighth grade and could not remember when he moved from Barling to Ft. Smith. The motion to suppress was denied. When testifying at the trial, which was three days later, Uselton insisted that the man he saw running out of the alley had hair that was blondish brown, brown, and dark. The motion was again made and denied at the trial on the merits, after Uselton had testified.
The unreliability of eyewitness identifications has often been noted. See Note 6, U.S. v. Wade, 388 U.S. 218, 228, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) where the following authorities are cited: Borchard, Convicting the Innocent; Frank & Frank, Not Guilty; Wall, Eye-Witness Identification in Criminal Cases (1965); 3 Wigmore, Evidence § 786a 3d Ed. (1940); Rolph, Personal Identity; Cross, Criminal Investigation 47-54 (Jackson Ed. 1962); Williams, Proof of Guilt 83-98 (1955); Wills, Circumstantial Evidence 192-205 (7th Ed. 1937); Wigmore, The Science of Judicial Proof §§ 250-253 (3d Ed. 1937). This factor was of prime importance in the Supreme Court decision that an accused has a constitutional right to the assistance of counsel at a lineup identification. United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). The Supreme Court declined to extend the right to counsel to photographic showups, U.S. v. Ash, 413 U.S. 300, 93 S. Ct. 2568, 37 L. Ed. 2d 619 (1973) but did recognize that pretrial identification procedures could be so suggestive as to create a substantial possibility of irreparable misidentification. Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); Simmons v. U.S., 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968).
Normally the reliability of eyewitness identification of a defendant is a question for the jury. But, when the procedures leading to the identification are so defective as to undermine its reliability, the identification is inadmissible as a matter of law. “[C]onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. U.S., supra; Foster v. California, 394 U.S. 440, 22 L. Ed. 2d 402, 89 S. Ct. 1127 (1968). In addition, we have held that identity cannot ordinarily be established by evidence of an extrajudicial identification as original evidence. Trimble v. State, 227 Ark. 867, 302 S.W. 2d 83. To determine whether such an error had occurred we view the totality of the circumstances. Simmons v. U.S., supra; Foster v. California, supra; Stovall v. Denno, supra.
Other than the dissimilarities between the photographs already noted there was no direct evidence that the witness was influenced by any suspicious pretrial procedures. However, the witness’s confusion as to the color of the hair of the accused at the time the crime was allegedly committed, his statements that he didn’t know the defendant (in the room where the in camera hearing was held) and had never seen him before, together with his complete failure at the hearing to state that it was the defendant who ran out from between the buildings, casts a thick cloud of doubt over the identification and the procedure relating to the identification of appellant as the would-be robber. At the hearing, it was demonstrated that all the witness identified was the hair, which, considering variation in color, might have been a wig. The conclusion that Uselton’s courtroom identification was suggested only by viewing a color photograph bearing a current date and by the developments at the suppression hearing seems inescapable, when considered along with the grave uncertainty about Uselton’s ability to otherwise identify appellant. An identification as patently unreliable as this one should have been suppressed because of the substantial possibility of irreparable misidentification. King v. State, 253 Ark. 614, 487 S.W. 2d 596; West v. State, 255 Ark. 668, 501 S.W. 2d 771.
Appellant’s second argument will likely arise on retrial therefore must be considered. At the trial Jeanne Teague testified that she had dated the appellant and had lived with him for a while. The prosecuting attorney asked her why she terminated the relationship. She answered, “He was shooting drugs and I —.” The defense thereupon moved for a mistrial. The motion was denied. When the prosecutor continued that line of questioning the witness stated that appellant was taking amphetamines. Defense objections were overruled.
Evidence of other crimes is properly excluded because Anglo-American notions of fair play require that a defendant be convicted for the offense charged, not because he had done other illegal acts. But evidence of other crimes is not always excluded.
“If other conduct on the part of the accused is independently relevant to the main issue — relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal — then evidence of that conduct may be admissible, with a proper cautionary instruction by the court.” Alford v. State, 223 Ark. 330, 266 S.W. 2d 804.
The defendant was convicted of attempted burglary. This crime is defined in Ark. Stat. Ann. § 41-1007 as “[t]he unlawful attempt to break or enter a house, tenement, railroad car, automobile, airplane or any other building . . . by day or night, with the intent to commit any felony or larceny ...” The intent to commit any felony or larceny is an element of this crime. It is incumbent on the state to present evidence of this intent, although a larcenous intent may be inferred under certain circumstances, Scates v. State, 244 Ark. 333, 424 S.W. 2d 876. See, Graham v. State, 224 Ark. 25, 271 S.W. 2d 614; Pope v. State, 216 Ark. 314, 225 S.W. 2d 8.
The Alford case is the only authority cited by the defendant to support his position. That case was reversed, not because the evidence of the other crime was not relevant, but because the evidence was not needed by the state as the facts in that case were developed. The court explained:
“Thus our cases very plainly support the common-sense conclusion that proof of other offenses is competent when it actually sheds light on the defendant’s intent; otherwise it must be excluded. In the case at bar it seems to us idle to contend that there was any real question about Alford’s intent, concerning which the jury needed further enlightenment.”
Jeanne Teague’s testimony that appellant had a taste for controlled drugs, obtainable at a drug store, is relevant to the issue of the accused’s intent to commit larceny. Pope v. State, supra.
Furthermore, the state also had a right to prove that the accused had a motive for committing the crime, whether this proof of motive discloses the commission of other crimes or not, at least if the evidence is so closely connected with the main issue that it tends to prove the crime charged. Pope v. State, supra. See also, People v. Durso, 40 Ill. 2d 242, 239 N.E. 2d 842, (1968); Grubb v. State, 551 P. 2d 289 (Okla. Cr., 1976). In the Illinois case evidence of other crimes involving possession, sale and use of narcotics was admitted to prove the motive for murder — that the murder was punishment for shorting on drug profits. In the Oklahoma case evidence that the accused had escaped from the penitentiary was admitted to prove motive for concealing stolen property, a birth certificate and Social Security card — to be used for the purpose of concealing his own identity.
The judgment of this court is that the case be remanded for a new trial at which the identification of the defendant by James Uselton be excluded from evidence.
We agree. Harris, C.J., and George Rose Smith and Jones, JJ. | [
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Frank Holt, Justice.
This is an action to recover damages for the physical injuries sustained by the appellant, Mrs. Capps, when she slipped and fell on a wet spot in her garage. Appellants alleged that the accident was caused by the appellee contractor’s negligence in failing to provide adequate drainage in the construction of the driveway of appellants’ home and in failing to correct the alleged defect after notice was given to it. At the close of appellants’ proof, the trial court granted appellee’s motion for a directed verdict. Appellants contend that the trial court erred in finding that, as a matter of law, there was an assumption of risk by Mrs. Capps.
Assumption of risk bars recovery whenever it is shown, as a matter of law, that a dangerous situation existed which was inconsistent with the safety of the plaintiff; that the plaintiff knew the dangerous situation existed and realized the risk of injury from it; and that the plaintiff voluntarily exposed himself to the dangerous situation which proximately caused his claimed injuries. Spradlin v. Klump et al, 244 Ark. 841, 427 S.W. 2d 542 (1968); McDonald v. Hickman, 252 Ark. 300, 478 S.W. 2d 753 (1972); Price v. Daughterty, 253 Ark. 421, 486 S.W. 2d 528 (1972); and AMI Civil 2d § 612.
The primary thrust of appellants’ argument is that the testimony of Mrs. Capps clearly shows there was no voluntary assumption of risk. During the three months the appellants had occupied their new home, they had noticed on several occasions that water collected in the garage following a rainfall. This was caused by a half inch “crown” in the driveway during its construction. The “crown” diverted water into the garage. Appellee was made aware of this defect and had not corrected it at the time of the accident. Mrs. Capps worked during the daytime and regularly returned home at lunchtime to tend to the needs of her mother who was bedfast as a result of a broken hip. On the day Mrs. Capps fell, it rained just before lunchtime resulting in the collection of water in the garage. There were three entrances into her house. The entrances, other than from the garage, were locked from the inside. Mrs. Capps testified that she used the garage door entrance because she “had no other choice but to go through the water.” However, she walked “very carefully” to avoid a mishap since she recognized that it was “dangerous” to walk through the water.
In McDonald v. Hickman, supra, we quoted with approval:
As Prosser puts it: ‘Knowledge of the risk is the watchword of assumption of risk.’ Under ordinary cir cumstances the plaintiff will not be taken to assume any risk of either activities or conditions of which he is ignorant. Furthermore, he must not only know of the facts which create the danger, but he must comprehend and appreciate the danger itself. Prosser on Torts, § 68 (4th ed., 1971). See also Restatement of Torts (2d), § 496 D (1965) ....
In Price v. Daugherty, supra, we said:
Assumption of risk occurs only when the injured person actually knows and appreciates the danger. The standard is a subjective one, being based upon what the particular person in fact sees, knows, understands, and appreciates.
Here the defective condition was completely open and obvious. Mrs. Capps readily admitted on cross-examination that she saw, knew, and understood the hazardous condition and appreciated it to the extent that she felt it was necessary to walk “very carefully” in the area. This was not an emergency situation since Mrs. Capps regularly came home at lunchtime to tend to the needs of her mother. In the circumstances, although we view the evidence most favorable to appellants, as we do on appeal from a directed verdict, we must hold that the court correctly held that the appellants’ action is barred by Mrs. Capps’ assumption of the risk. See Spradlin v. Klump, el al, supra.
Appellants’ final contention for reversal is that the trial court erred in admitting an offer and acceptance agreement between the parties, because provision 9 of the agreement contains language which excludes certain warranties. This contention is without merit since it clearly appears from the record that the exhibit was not considered by the court in directing a verdict on the grounds of assumption of risk.
Affirmed.
Roy, J., dissents. | [
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Elsijane T. Roy, Justice.
On August 27,1975, appellant O. W. Fletcher was arrested for the offense of driving while under the influence of intoxicants and refusing to take an intoximeter test. During the course of the arrest, Officer Mike Wilson informed appellant of his rights pursuant to Ark. Stat. Ann. § 75-1045 (c)(3) (Supp. 1975), but appellant was not informed that law enforcement officers would assist him in obtaining an additional test if he so desired. Appellant refused the test. He did not contest the trial in Municipal Court but appealed for a trial de novo in Circuit Court.
In the interim between the municipal court and circuit court trials appellant was again convicted in municipal court for driving while under the influence of intoxicants. On trial de novo on the first charge in the circuit court appellant was found guilty and the jury assessed his penalty on the driving while intoxicated charge as 24 hours in jail, a $100.00 fine and suspension of drivers license for 30 days. Conviction of refusal to take the intoximeter test brought a suspension of driving privileges for 30 days to run concurrently with the other suspension.
Appellant first contends “the court erred in allowing the introduction of the results of the intoximeter test,” relying upon the case of Small v. City of Little Rock, 253 Ark. 7, 484 S.W. 2d 81 (1972). In Small the Court excluded the results of the “breatholator test” when the subject was not advised of his rights, but stated that the case would not be dismissed if there were other evidence of intoxication which made, of itself, a fact question. Here appellant insists that because he was not advised the arresting officer would assist him in securing an independent medical opinion the results of the test are inadmissible.
The rights to which one is entitled, when requested to submit to a test for intoxication, are contained in Ark. Stat. Ann. § 75-1045 (c)(3), which reads as follows:
(3) The person tested may have a physician, or a qualified technician, registered nurse, or other qualified person of his own choice administer a complete [chemical] test or tests in addition to any administered at the direction of a police officer. The law enforcement officer shall advise such person of this right. The refusal or failure of a law enforcement officer to advise such person of this right and to permit and assist the person to obtain such test or tests shall preclude the admission of evidence relating to the test or tests [taken] at the direction of a law enforcement officer.
In the instant case appellant never took the test, and, therefore, there were no results to exclude. He refused to submit to the test because, according to his own testimony, he thought he would be declared guilty no matter what the outcome revealed. It naturally follows that appellant, in not having any test results introduced into evidence against him, was not deprived of the right the statute cited is intended to insure. Thus this contention is wholly without foundation.
Appellant’s second argument is that the court erred in permitting the City to inquire regarding a subsequent conviction of driving while intoxicated - second offense.
The date of the offense for which appellant was standing trial was August 27, 1975. The date of the trial de novo before the circuit court was February 17, 1976. Appellant took the stand and offered testimony in his own behalf.
The issue of appellant’s credibility arose when on direct examination he testified as follows:
Q. Okay, you have worked out there for twelve years?
A. Yes, sir.
Q. Before this event in August of 75 that we are talking about here when you were stopped by Officer Wilson, had you ever been arrested for anything before?
A. No, sir, not since I have been in Newport I have never been arrested.
Q. Have you éver been convicted of anything?
A. No.
Q. During the entire twelve years?
A. That is right. (Italics supplied.)
On cross-examination, testing the credibility of the witness, it was revealed by appellant’s own testimony that he had been convicted of five misdemeanor charges since 1975. These included the driving while intoxicated - second offense on February 6, 1976, which he testified was on appeal, but whether an appeal was pending was disputed by the City. At this point the court overruled the appellant’s objection. Since the record reflects that appellant by his own testimony invited the questions concerning his previous arrests we find no reversible error in this attack on his credibility. See Montaque v. State, 219 Ark. 385, 242 S.W. 2d 697 (1951).
Affirmed.
We agree. Harris, C.J., and Byrd and Holt, JJ. | [
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George Rose Smith, Justice.
The appellants, Mr. and Mrs. Mason, brought this action for damages arising from the appellees’ asserted failure to complete a contract by which they were to construct a dwelling house for the Masons. The trial judge directed a verdict for the defendants, on the ground that the plaintiffs’ proof of damages was insufficient to enable the jury to fix the pecuniary loss. For reversal it is contended that the proof was sufficient.
The trial judge was right. The measure of damages in a case of this kind is the difference between the unpaid portion of the contract price and the reasonable cost of completing the construction. Sternberg Dredging Co. v. Dawson, 171 Ark. 604, 285 S.W. 32 (1926); Northern Constr. Co. v. Johnson, 132 Ark. 528, 201 S.W. 510 (1918). At the trial these appellants offered no evidence whatever that would have enabled the jury to fix the amount of damages in dollars and cents.
Even so, the appellants, citing Crow v. Russell, 226 Ark. 121, 289 S.W. 2d 195 (1956), argue that if the loss is shown with certainty the damages need not be proved with exactness. That case is distinguishable, however, not only because it involved a loss of future profits but also because the opinion recites a number of dollars-and-cents figures that were considered by the jury. The case at hand is similar to Tolbert v. Samuels, 229 Ark. 676, 317 S.W. 2d 715 (1958). There we upheld the chancellor’s refusal to award damages, because “there is no evidence at all by which we could attempt to determine the pecuniary loss that resulted from this injury. That damage of this kind may be hard to prove in dollars and cents does not justify our reaching into the air for a figure that would represent only an unsupported guess or\ our part.” That same difficulty would have confronted the jury in the present case. Moreover, an experienced builder would presumably have been able to estimate the cost of completing the house for the Masons.
We note that the appellants did establish a breach of contract on the part of the contractors, All-Servis Builders, Inc., and Albert Cullipher, and therefore might have sought nominal damages. The point is not before us, however, as no such request was made in the trial court, nor has the point been argued on appeal. Even if the issue had been raised, we do not remand a cause for a new trial merely because nominal damages were not awarded. Crutcher v. Choctaw, O. & G. R.R., 74 Ark. 358, 85 S.W. 770 (1905).
Affirmed.
Fogleman and Byrd, JJ., would award nominal damages and costs. | [
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Carleton Harris, Chief Justice.
Appellant, David Ryan, was convicted by a jury of possession of a controlled substance (marijuana) with intent to deliver in violation of Ark. Stat. Ann. § 82-2601 et seq. (Supp. 1975), and sentenced to four years confinement in the Department of Correction, with a fine of $7,500.00. From the judgment so entered, Ryan appeals, arguing several points for reversal.
Proof on the part of the state reflects that a Cross County deputy sheriff, Jerry Dallas, was driving past a trailer park in Wynne, about 5:00 P.M. on March 12, 1975, when he saw appellant and several other persons standing in a group in the park. Dallas was familiar with appellant and some of the others in the group, and stated that he had knowledge that some of the people observed had dealt in drugs. The deputy noticed that appellant had a brown paper sack in his hands. When Dallas stopped his car to investigate, appellant “took off running” with the sack. About three or four minutes later, though, while the deputy was questioning the other members of the group, a resident of the trailer park, Melvin Swink, came up and told Dallas that he had surprised a young man, whom he later identified as appellant, placing something in his (Swink’s) boat. Swink had asked the man what he was doing and the man replied, “I’m hiding something,” but then said, “I’ll get it,” and pulled a brown paper sack from the boat. Swink told Dallas that the man walked around a nearby trailer, toward a large drainage ditch behind the trailer, carrying the sack. When the man reappeared from behind the trailer, a moment later, he was no longer carrying the sack. Another resident of the trailer park, Ray Dean Davis, also had observed appellant.
Deputy Dallas and the two citizens, Swink and Davis, began searching the drainage ditch, which belonged to the city, for the sack. Dallas soon received a report that appellant had been sighted nearby, and he left to look for appellant, requesting Swink and Davis to continue searching in the ditch for the bag. Shortly thereafter, Swink found a brown paper sack in the ditch, near a culvert; the sack contained 15 plastic “baggies” of green vegetable matter. Swink and Davis kept the sack for a few minutes, until Dallas returned, and gave it to him. By that time Dallas, who had not found appellant, had radioed for assistance and had requested a state policeman, Fred Odom, to “stake out” the trailer park in case appellant returned. Dallas then took Swink and Davis, together with the sack, to the sheriff’s office for questioning.
Odom apprehended appellant, who had returned to retrieve his automobile, and the officer then took appellant to the sheriff’s office; no interrogation of any sort occurred before Odom surrendered custody of appellant to Deputy Dallas. At that point, Dallas orally advised appellant of his rights, reading them from a written statement and explaining them. Dallas said that he asked appellant if he understood the rights, and appellant answered in the affirmative. Officer Odom, who had brought appellant to the office, was present and fully corroborated the testimony of Dallas. Both men stated that no threats or inducements of any type were made to appellant and Ryan at no time requested a lawyer or asked for the questioning to cease.
According to Dallas, appellant said that he had had possession of the marijuana for only a few hours, and had brought it to the trailer park to “stash” it in a friend’s trailer. Appellant admitted that the sack was his and that “he was the only one who had anything to do with it. ” According to the officer, Ryan related that he ran when someone in the group told him that “a police car had hit his brake lights and he just simply got scared standing there with this in his hand and he ran ... he said that he went around to this boat in the trailer park and was going to hide it, this sack, hide this sack in a boat . . . said this man confronted him and he [appellant] told him he would get the package ... he got the package back out of the boat and went on through the trailer park and threw it in the ditch and then he said that he went on home . . . when he was [later] coming into the trailer court to try to get his car he was arrested there.”
Officer Odom likewise testified that appellant admitted that the sack was his, and contained 15 bags of marijuana.
Appellant attacks two links in the chain of evidence. First, he argues that the state failed to connect the brown sack found in the ditch with appellant, “and this brown sack could be anyone’s sack”; second, that one of the “baggies” containing marijuana was not labeled as having been taken from Ryan when it was sent to the state laboratory for analysis, and was improperly identified on trial; i.e., the integrity of the chain of evidence was not maintained.
A review of the evidence presented by the state shows that these arguments have no merit. Swink testified that he saw appellant walk behind a trailer, which was only seven or eight feet from the drainage ditch, with the sack in his hands, and re-emerge a few moments later without the sack. Swink reported this to Deputy Dallas, and immediately returned to the ditch and began searching for the sack, which he subsequently found. Moreover, the small possibility that anyone else might have placed the sack in the ditch was completely removed by the admission of appellant himself, to Deputy Dallas, “what he did was went (sic) near a culvert and threw it in the ditch.” Neither at the pretrial hearing nor the trial did any witness ever challenge the veracity or accuracy of the officer’s testimony about this statement.
Further, the admitted mislabeling of one of the “baggies” taken from the sack did not prejudice appellant. Again, the facts are undisputed. After Deputy Dallas received the sack from Swink, he locked it in the evidence room at the sheriff’s office, where it remained until the trial. However, another deputy, Hank Williams, was authorized to remove three of the “baggies” from the sack so that they could be sent to the state drug laboratory as samples for identification. Williams drew three “baggies” at random from the sack, and labeled two of them, respectively, “E-l, suspect David Ryan,” and “E-2, suspect David Ryan.” The mislabeling occurred when Williams marked the third bag, “E-3, suspect Keith Coffey.”
The mistake on the third tag was not discovered until after the jury had retired, when the court reporter noticed the incorrect name. The trial court disclosed this information in open court to counsel, and the prosecuting attorney explained that appellant and Keith Coffey had been arrested a few days apart for drug offenses, and that samples taken from both had been sent to the state laboratory at the same time. Counsel agreed to investigate the matter to find whether the samples had been confused.
The trial court subsequently conducted another hearing on the mislabeling, when Deputy Williams returned to testify. Williams stated that he had simply made a mistake in writing the name on the label, and no possibility existed that he might have confused the samples. Williams reaffirmed his previous testimony that all three bags came from appellant’s sack, and stated, “[sjome way I marked Coffey on Ryan’s bag.” After Williams testified the trial court denied appellant’s motion for a mistrial, commenting that “[i]t is rather evident and obvious and the Court so finds that the defendant, David Ryan, was not in any way prejudiced by the confusion or mix-up due to the erroneous labeling of the drug sample. There has been no showing of any possible prejudice, which could have resulted against the defendant, David Ryan.”
This court summarized the law applicable to this point in Wickliffe and Scott v. State, 258 Ark. 544, 527 S.W. 2d 640:
“In West v. United States, 359 F. 2d 50, 55 (8th Cir. 1966), cert. den. 385 U.S. 867 (1966), the court said:
Appellant seems to be arguing that as long as it is conceivable that the evidence could have been tampered with, it should not have been admitted. This, however, is not the law. The government need not exclude all possibilities of tampering. The Court need only be satisfied that in reasonable probability the article had not been changed in important respects. *
Further, the court held that the [trial] court is accorded some discretion in determining the admissibility of evidence.
“In Fight v. State, 254 Ark. 927, 497 S.W. 2d 262 (1973), we said, ‘[TJhe purpose of the chain of identification is to prevent the introduction of evidence which is not authentic.’ To the same effect are Witham v. State, 258 Ark. 348, 524 S.W. 2d 244 (1975); and Freeman v. State, 238 Ark. 804, 385 S.W. 2d 156 (1964).”
In the instant case there is no question that the trial court did not abuse its discretion in refusing to declare a mistrial simply because one of the three samples was mislabeled. See Perez v. State, 249 Ark. 1111, 463 S.W. 2d 394.
Let it be remembered that at no point in the prosecution of this case, neither in the pretrial hearing nor the trial itself, was there any contradiction of the officers’ testimony that Ryan had admitted to them that the sack contained marijuana that he had procured, that belonged to him, and that he planned to “stash” somewhere. Nor does appellant, even on appeal, challenge the validity of the two other tested samples of marijuana. Thus, even if error were committed in admitting the mislabeled sample, no prejudice resulted because of appellant’s own admissions and the other evidence in the case. See United States v. King, 485 F. 2d 353 (10th Cir. 1973); United States v. Spinks, 470 F. 2d 64 (7th Cir. 1972), cert. denied, 409 U.S. 1011; United States v. Deaton, 468 F. 2d 541 (5th Cir. 1972), cert. denied, 93 S. Ct. 1386; Beatty v. United States, 357 F. 2d 19 (10th Cir. 1966); Caldwell v. United States, 338 F. 2d 385 (8th Cir. 1964), cert. denied, 380 U.S. 984.
It is asserted that the trial court erred in admitting the sack, its contents, and appellant’s admissions to the officers into evidence. This contention has already been found to be without merit and no further comment is necessary.
It is contended that the information filed was insufficient because it was not filed under oath by the prosecutor, and further, because it did not specify to whom appellant intended to deliver the marijuana. We have held that neither the Constitution nor the statutes require that the information be under oath. Bazzell v. State, 222 Ark. 473, 261 S.W. 2d 541. Of course, as to the second phase of the argument, the intent to deliver element is a legal presumption embodied in Ark. Stat. Ann. § 82-2617 (d) (Supp. 1975). For that matter, one who possesses marijuana for sale probably does not know himself to whom it might be sold.
Appellant offered an instruction that “equality before the law is recognized for all persons, and such equality shall not be denied.” The trial court refused the instruction. Of course, the instruction was entirely abstract, there being no contention that Ryan was being denied equal protection of the law, i.e., some other defendant received a lesser penalty, or no penalty at all, for the same offense. Not only that, but a review of the instructions given by the trial court reflects that they fully and fairly stated the law applicable to the case.
Finally, it is alleged that the punishment imposed was unconstitutionally cruel and unusual.' We have held numerous times that if a sentence comes within the limits imposed by statute, it is not “cruel and unusual.” Randle and Wright v. State, 245 Ark. 653, 434 S.W. 2d 294; Stout v. State, 249 Ark. 25, 458 S.W. 2d 42. The sentence given falls within the provisions of the statute; in fact, the imprisonment part of the sentence was not much more than the minimum, and the fine imposed was only half that authorized under the law.
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John A. Fogleman, Justice.
Appellant Grigsby was sentenced to life imprisonment without parole for the capital felony murder of John Henry Childers while in the perpetration of a robbery. We find no reversible error and affirm.
Among his stated points for reversal are the following:
THE COURT ERRED IN OVERRULING DEFENDANT’S MOTION IN LIMINE THAT JURORS WHO WOULD NOT CONSIDER THE DEATH PENALTY NOT BE EXCUSED FOR CAUSE IN THAT PART OF THE TRIAL AT WHICH DEFENDANT’S GUILT OR INNOCENCE WOULD BE DECIDED.
THE COURT ERRED IN OVERRULING DEFENDANT’S MOTION FOR PAYMENT OF TRAVEL EXPENSES AND WITNESS FEES TO EXPERT WITNESSES WHO WOULD TESTIFY THAT A JURY COMPOSED ONLY OF PERSONS WHO WOULD BE WILLING TO CONSIDER THE DEATH PENALTY IS MORE LIKELY TO CONVICT THAN IS A JURY COMPOSED OF A CROSS SECTION.
THE COURT ERRED IN OVERRULING DEFENDANT’S MOTION FOR A ONE WEEK CONTINUANCE IN ORDER TO PRESENT EVIDENCE THAT A JURY COMPOSED ONLY OF PERSONS WHO WOULD CONSIDER THE DEATH PENALTY IS MORE LIKELY TO CONVICT THAN IS A JURY COMPOSED OF A CROSS SECTION.
THE COURT ERRED IN OVERRULING DEFENDANT’S MOTION FOR A DIRECTED VERDICT AS TO CAPITAL FELONY MURDER AND FIRST DEGREE MURDER AND IN SUBMITTING AN OFFENSE HIGHER THAN SECOND DEGREE MURDER TO THE JURY.
THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY THAT THE STATE MUST PROVE THE ELEMENTS OF A MURDER IN ORDER FOR THE DEFENDANT TO BE CONVICTED OF A CAPITAL FELONY.
We see no point in discussing these points because the record and arguments supporting them are virtually identical to those in Venable v. State, 260 Ark. 201, 538 S.W. 2d 286 (1976). Our rejection of these arguments there is controlling here.
Appellant argues that the court erred in excusing prospective juror Blan, who was acquainted with the appellant and his family and who had found it difficult to say that he could try the case fairly and impartially without being influenced by this acquaintance. Even though he finally responded in the affirmative to appellant’s attorney’s question whether he could render a verdict based on the evidence presented in court and applied to the instructions of law given by the court, the circuit judge pursued the matter further, obviously because the state’s attorney had challenged Blan for cause on the basis of earlier answers. When the judge asked Blan if he felt that he could be totally fair and impartial to both the state and the defendant if he was taken on the jury, Blan answered, “I don’t believe I could be totally fair, no.” The trial judge did not abuse his discretion by honoring the challenge for actual bias. Ark. Stat. Ann. § 43-1919 (Repl. 1964). See Henslee v. State, 251 Ark. 125, 471 S.W. 2d 352.
Appellant argues the following points for reversal:
THE COURT ERRED IN ALLOWING A DEFENSE WITNESS TO TESTIFY ABOUT CARTRIDGE CASES FOUND TWO DAYS AFTER THE OFFENSE WAS ALLEGED TO HAVE BEEN COMMITTED WHEN THE WITNESS WAS UNABLE TO SAY THAT THE SCENE WAS IN THE SAME CONDITION THAT IT WAS IN ON THE DAY OF THE ALLEGED OFFENSE.
THE COURT ERRED IN OVERRULING DEFENDANT’S OBJECTION TO FURTHER DESCRIPTION OF THE SCENE WHERE THE BODY WAS FOUND WHEN THE WITNESS WHO DISCOVERED THE BODY LEFT THE SCENE FOR APPROXIMATELY TWO HOURS AND RETURNED WITH A DEPUTY SHERIFF.
The two points are considered together because they are argued jointly by appellant, who relies upon Oliver v. Miller, 239 Ark. 1043, 396 S.W. 2d 288. The gist of appellant’s argument is that the evidence admitted was too remote to be relevant and that the evidence was prejudicial, particularly since the evidence of murder was circumstantial and important inferences could be drawn from this testimony.
In evaluating this argument, we take into consideration a statement made by Grigsby to a police officer which was subsequently admitted into evidence without objection by appellant. That statement had exculpatory features, but appellant did admit therein that on the evening of the date in question he and Childers had been riding around drinking; the two were alone on a side road off Highway 309, when Grigsby showed Childers a .25 caliber automatic pistol, which Childers examined and started firing. Grigsby was quoted as saying that he grabbed Childers’ arm and the gun went off, after which Childers’ eyes started looking funny and he walked back to the car, sat down on the seat and fell over on it; Grigsby pulled him out, put him in the “edge of the bushes,” took a 120 bill and a $5 bill from Childers’ overalls, threw his billfold over by a tree, and took the car, leaving the man and a little white dog at the scene; he met Billy Belt and Mrs. Velma Smith along the road and told them what he had done. Grigsby stated that he, Mrs. Smith and Belt stopped along the Carbon City Road and fired at a beer can with his .25 caliber pistol, and that he later offered to sell the weapon to a man named Highfield.
Velma Smith had testified substantially as follows:
Appellant came to her house on July 18, 1975. Someone she did not know was in a brown and white Chevrolet that Grigsby was driving on this occasion. Mrs. Smith left with Billy Belt. Later they met Grigsby “coming back to town,” driving the same automobile. Still later they met him “over by Hillard’s farm” coming toward Ozark on Highway 309, still driving the same car. She and Belt proceeded to O’Kane Island and Grigsby followed them there, where they all were drinking beer and talking and Grigsby told them he had killed a guy in Fort Smith, or thought he had. Mrs. Smith and Belt started back to the “Rock,” a tavern in Paris, but stopped on a dirt road, where they were soon joined by Grigsby still driving the same car, when Belt and Grigsby fired several shells at a beer can from a “gun” Grigsby had.
There was evide ice tending to show that John Henry Childers was the person Mrs. Smith had seen at her house in the brown and white Chevrolet and that the vehicle belonged to Childers. There was testimony that Grigsby had also told Warren George Highfield on July 18, 1975, that he had shot a man and that Grigsby had tried to sell a .25 automatic pistol to Highfield.
On Sunday, July 20, Billy Joe Davis was “riding around” in his pickup truck on Highway 309 and turned off on an old lane. After driving about a half mile, he turned around and started to get out of his truck, when he heard a dog barking. Since he was unable to see the dog, he called it. The dog came running out of a roll of wire. Behind the wire, Davis then saw the feet of a human. He immediately came to town and reported to Deputy Sheriff Kenneth Ross that he had found a dead man. This occurred about 10:45 a.m. Davis directed Ross to the place where the body lay. Ross remained there until Sheriff Pritchard and Arkansas State Police Criminal Investigator Stevens arrived at about 12:15 p.m. Ross examined the body. He described the location as a junk yard. He said the body was not easily seen from the road. Albert Helmert, radio dispatcher for the sheriff’s office, testified that he accompanied the sheriff to the scene, where he found four empty cartridges for a small caliber pistol and a billfold. He also testified that he went with Ross, Mrs. Smith and others to a place along Carbon City Road, where six empty “hulls” and one bullet were found.
It is difficult to see how the introduction of the cartridges found at the place Belt and Grigsby fired at a can could have prejudiced appellant. The finding of six bullets and some cartridge cases along the Carbon City Road was relevant only to the identity of the weapon from which the fatal bullets were fired, but there really does not seem to have been any issue on this point.
The medical examiner testified that the death of Childers was caused by multiple .25 caliber gunshot wounds, at least one of which could not likely have been self-inflicted. It was a question for the jury to say, after considering the circumstances, whether the fatal wounds were inflicted by Grigsby or they were accidentally inflicted, or whether someone else had subsequently come to the scene and fired .25 caliber bullets into the wounded body of Childers: The four cartridges found at the scene where the body was found and the four .25 caliber bullets taken from the body were shown by expert testimony to have been fired from the same weapon. This evidence had some bearing on the question whether there was a remote possibility that someone else wounded Childers after Grigsby left. The lapse of two days was not sufficient to make this evidence irrelevant. The description of the scene and the location of the body could also have had some bearing on the real issue, i.e., whether Childers was murdered or whether he was accidentally wounded in the manner described in Grigsby’s statement. Stevens testified that Childers’ body was in a brush area behind a pile of wire approximately 30 feet north of the roadway. This testimony along with that of Ross constituted the only significant description of the scene, except for that given by Davis.
The question of admissibility of this evidence is one of relevance to the issue. In Everett v. State, 231 Ark. 880, 333 S.W. 2d 233, we stated that the test of admissibility of evidence over an objection for irrelevancy is whether the fact offered in proof affords a basis for rational inference of the fact to be proved. It is sufficient if the fact may become relevant in connection with other facts or if it forms a link in the chain of evidence necessary to support a party’s contention. Glover v. State, 194 Ark. 66, 105 S.W. 2d 82. See also, Horne v. State, 253 Ark. 1096, 490 S.W. 2d 806; Williams v. State, 257 Ark. 8, 513 S.W. 2d 793. The state’s evidence on the question whether Childers was accidentally or deliberately wounded was largely circumstantial, and the fact that the body was not readily seen is a circumstance which might be taken to show that Childers had been taken to this scene deliberately and his body left where it would not be readily found.
Too precise admeasurements of logical relevancy should not be used to withhold from a jury circumstances which may shed some helpful light on the issues. State v. Micci, 46 N.J. Super. 454, 134 A. 2d 805 (1957); State v. Smith, 5 Wash. App. 237, 487 P. 2d 227 (1971); State v. Hamilton, 264 N.C. 277, 141 S.E. 2d 506 (1965), cert. den. 384 U.S. 1020, 86 S. Ct. 1936, 16 L. Ed. 2d 1044; Karnes v. Commonwealth, 125 Va. 758, 99 S.E. 562, 4 ALR 1509 (1919). See also, States. Stokes, 250 La. 277, 195 So. 2d 267 (1967); State v. Shiren, 15 N.J. Super. 440, 83 A. 2d 620 (1951), aff’d. 9 N.J. 445, 88 A. 2d 601 (1952); Haley v. State, 84 Tex. Cr. Rep. 629, 209 S.W. 675, 3 ALR 675 (1919). It is enough that the evidence may tend even slightly to elucidate the inquiry or to assist, however remotely, in a determination probably founded on truth. New v. State, 211 S. 2d 35 (Fla. App. 1968); Holmes v. Goldsmith, 147 U.S. 150, 13 S. Ct. 288, 37 L. Ed. 118 (1893). See also, State v. Stokes, supra. When evidence on an issue is circumstantial, it is never irrelevant to put in evidence any circumstance which may make the proposition at issue more or less probable. Johnson v. Commonwealth, 115 Pa. 369, 9 A. 78 (1887). Relevance is determined, not by resemblance to, but by connection with, other facts. Oseman v. State, 32 Wis. 2d 523, 145 N.W. 2d 766 (1966). See also, Karnes v. Commonwealth, supra. Objections to circumstantial evidence upon the grounds of irrelevancy are not favored because the force and effect of circumstantial facts usually, and almost necessarily, depend upon their connection with each other. Bowline v. Cox, 248 Ala. 55, 26 S. 2d 574 (1946).
The latitude of the trial judge’s discretion in admitting circumstantial evidence is great. Holmes v. Goldsmith, supra; Oseman v. State, supra; State v. Alexander, 78 Wyo. 324, 324 P. 2d 831 (1958), cert. den. 363 U.S. 850, 80 S. Ct. 1630, 4 L. Ed. 2d 1733; Bond v. State, 105 Ga. App. 627, 122 S.E. 2d 310 (1961); New v. State, supra; Bowline v. Cox, supra. See also, Karnes v. Commonwealth, supra. Evidence of any fact which aids in establishing the defendant’s guilt or innocence is usually held relevant, even though only a slight inference may be drawn from the fragmentary fact and it is only a link in the chain of facts which must be proved to make the proposition at issue more or less probable. Oseman v. State, supra; State v. Smith, supra; State v. Stokes, supra; Johnson v. Commonwealth, supra. See also, Jenkins v. Commonwealth, 167 Ky. 544, 180 S.W. 961, 3 ALR 1522 (1915); Haley v. State, supra. The trial judge’s determination on the question of admissibility of such evidence is to be reversed only if he has abused his wide discretion. U.S. v. Campbell, 466 F. 2d 529 (9 Cir., 1972), cert. den. 409 U.S. 1062, 93 S. Ct. 571, 34 L. Ed. 2d 516. See also, Holmes v. Goldsmith, supra. It has been said that such an abuse of discretion should not be found by an appellate court unless it manifestly appears that the evidence questioned has no legitimate bearing upon the question at issue and is calculated to prejudice the accused in the minds of the jurors. Moore v. U.S., 150 U.S. 57, 14 S. Ct. 26, 37 L. Ed. 996 (1893).
We find no abuse of the trial court’s discretion and the inability or failure of the state to show that conditions of the scene remained unchanged during Davis’ two hour absence was a matter for the jury’s consideration in weighing the evidence, but did not take the question of admissibility of the evidence outside the scope of the judge’s discretion.
Appellant argues that his motion for directed verdict and reduction of his charge to one of first degree murder should have been granted. This argument is based upon his contention that the only evidence about what happened at the time of the killing showed that he took Childers’ property after the killing, and that there is no evidence that this taking was anything other than an afterthought. For us to rule as a matter of law that the robbery was an afterthought would require that portions of Grigsby’s statement, which was mostly exculpatory, be taken at face value. If indeed Grigsby murdered Childers, and the killing was not accidental, it would be difficult to believe that anything other than robbery motivated the killing. Suffice it to say that the circumstantial evidence here furnishes adequate support for the jury’s finding that Childers was killed in the perpetration of a robbery. See Upton v. State, 257 Ark. 424, 516 S.W. 2d 904.
In his statement, Grigsby said that he was hitchhiking on Highway 10 when Childers picked him up and took him to Childers’ house trailer where they started drinking wine and beer. The appellant, approximately thirty years old, and the deceased, described as an elderly man, spent the afternoon visiting bars and drinking. Grigsby was unemployed and later in the day had to borrow money from Childers to pay for a bottle of whiskey. In his statement, Grigsby said that he had stolen the death weapon from a woman in Fort Smith, from whence he had started his hitchhiking journey. He stated that he had thrown the pistol away.
For the purpose of considering appellant’s argument (which was approached but not actually reached in Upton v. State, supra and Upton v. State, 254 Ark. 664, 497 S.W. 2d 696) there is no substantial difference in the capital felony murder statute under which he was prosecuted, Act 438 of 1973 [Ark. Stat. Ann. § 41-4702 (Supp. 1973)] and its predecessor, Ark. Stat. Ann. § 41-2205 (Repl. 1964), i.e., the definitions were substantially the same. In the earlier statute, murder committed in the perpetration, or attempt to perpetrate, robbery was made murder in the first degree. In the 1973 act the unlawful killing of a human being when committed by a person engaged in the perpetration of or in the attempt to perpetrate robbery was made a capital felony.
We find no room for quarrel with appellant’s assertion that larceny from the body of one killed, as an afterthought, would not constitute a capital felony. We do not agree, however, that the jury was bound to accept his exculpatory statement to the officer or that there was no evidence from which the jury could reasonably infer that the taking of the deceased’s automobile and money was a part of the same acts and transactions in which Childers was killed, and that robbery was the motivating purpose of the incidents taking place at the death scene.
The underlying rationale of the felony-murder rule, both statutory and common law, is that the killing constitutes a part of the res gestae of the accompanying felony and both are parts of one continuous transaction. People v. Mason, 54 Cal. 2d 164, 4 Cal. Rptr. 841, 351 P. 2d 1025 (1960); Bizup v. People, 150 Col. 214, 371 P. 2d 786, cert. den. 371 U.S. 873, 83 S. Ct. 144, 9 L. Ed. 2d 112; Conrad v. State, 75 Ohio St. 52, 78 N.E. 957 (1906); State v. Anderson, 10 Wash. 2d 167, 116 P. 2d 346 (1941). Where the robbery and the killing are so closely connected in point of time, place and continuity of action as to constitute one continuous transaction it is proper to consider both as a single transaction and the homicide as a part of the res gestae of the robbery. Bizup v. People, supra; People v. Mason, supra. The sequence of events is unimportant and the killing may precede, coincide with or follow the robbery and still be committed in its perpetration. Conrad v. State, 75 Ohio St. 52, 78 N.E. 957 (1906); State v. Anderson, 10 Wash. 2d 167, 116 P. 2d 346 (1941).
Where the killing and the felony cannot rationally be disassociated, an inference that the killing was part of the res gestae is justifiable, particularly as against retrospective subjective disavowal. State v. Anderson, supra. Where the circumstances permit an inference that the killing and the robbery were all part of one transaction, the state is not required to prove intent to commit the felony by direct evidence. People v. Mason, supra. It has been aptly said that from the very nature of things it is often impossible for the state to know at just what instant a killing was committed — whether in the commission of a felony or while withdrawing from the scene of a felony. State v. Anderson, 10 Wash. 2d 167, 116 P. 2d 346 (1941); State v. Whitfield, 129 Wash. 134, 224 P. 559 (1924). The Supreme Court of California has said that it has never required proof of strict causal relationship between the felony and the homicide. We agree with that court that the statute was adopted for the protection of the community, not the lawbreaker, and to make punishment of this class of crime more certain and not to relieve the wrongdoer from any probable consequences of his act by placing an unreasonable or unnatural limitation upon the res gestae. People v. Mason, supra.
Intent in such a case as this may be gathered from what was done. State v. Hauptmann, 115 N.J. Law 412, 180 A. 809 (1935). Certainly, the intent may be found from the facts and circumstances in a particular case. Commonwealth v. Hart, 403 Pa. 652, 170 A. 2d 850, cert. den. 368 U.S. 881, 82 S. Ct. 130, 7 L. Ed. 2d 81. In a case in which an accused testified that he struck a fatal blow in self-defense and in a confession had said that he had decided to take his victim’s money as the latter lay on the ground after having been struck, the Pennsylvania Supreme Court held that the argument that the intention to rob originated after the assault on the deceased did not merit serious consideration in view of the jury’s verdict finding the accused guilty of murder in the perpetration of a robbery. The court said that it was immaterial when the design to rob was conceived, if the homicide occurred while the accused was perpetrating or attempting to perpetrate a robbery, pointing out that the circumstances leading up to the attack were indicative of an assault with intent to rob. Commonwealth v. Stelma, 327 Pa. 317, 192 A. 906 (1937). In considering a similar contention, the Pennsylvania court later had this to say in Commonwealth v. Hart, supra:
Defendant’s highly technical argument amounts to this: Unless the Commonwealth proves that the intention to commit a robbery was formed before the beginning of the fatal assault, the evidence cannot amount to a murder which was committed in the perpetration of a robbery. In other words, defendant would require a televised stop-watch in every robbery or felony-killing to prove that the felonious intent existed before the attack. It is rare, we repeat, that a criminal telephones or telegraphs his criminal intent and consequently such intent can be properly found by the jury from the facts and circumstances in a particular case. *****
The law which has been in existence for many centuries in England and for ages in our Country, was enacted for the safety and protection of peaceable citizens of each community and we will not permit it to be thwarted or evaded by such a far-fetched and realistically-absurd construction of the Penal Code.
We agree with the sentiments of the Pennsylvania Supreme Court. We find the circumstantial evidence of intent sufficient to support a finding that appellant was guilty of capital felony.
We have, as we do in cases where the penalty imposed is death or life imprisonment, reviewed the record for other objections made by the defendant during the proceedings in the trial court and find none worthy of consideration.
The judgment is affirmed.
We agree: Harris, C.J., George Rose Smith and Jones, JJ- | [
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Frank Holt, Justice.
This is an accounting action brough in behalf of certain relatives of Mrs. Gertrude Sharpe, deceased, in the name of the appellant which is administrator of her estate. This case presents the question of the validity of various inter vivos gifts during 1972 and 1973 totalling $59,-738.65 and $6,000 on January 2, 1974, allegedly made to the appellees (and the two children of the Phillipses) by the deceased. These gifts were allegedly made during the last twenty-three months of her life. She was seventy-six years old at the time of her death, February 16, 1974. Appellees are the deceased’s niece, Lela Glasco, her husband Lee Glasco, their daughter Rosa Lee Phillips and her husband Douglas Phillips. A general power of attorney was executed by the deceased to Douglas Phillips on January 26, 1971, and in that capacity he handled the transactions in question which occurred during the interval of March 16, 1972, and January 2, 1974. The accounting hearing was brought by appellant seeking a judicial declaration that the alleged inter vivos gift transfers were invalid based upon (1) breach of fiduciary duty by misappropriation and overreaching, (2) lack of comprehension by reason of mental incompetency, (3) undue influence, and (4) lack of the deceased’s intent or delivery concerning the alleged gift transfers.
The chancellor found and decreed that:
Gertrude P. Sharpe was mentally competent until the last few weeks of her life and then had lucid intervals; that none of the defendants exerted undue influence or overreaching over Gertrude P. Sharpe as to any transfers of property within the meaning of the law; that the gifts made to Douglas Phillips, Rosa Lee Phillips, Jennifer Lyn Phillips, John D. Phillips Jr., Lee Blasco and Lela Glasco by Gertrude P. Sharpe in her life, **** were valid legal gifts from Gertrude P. Sharpe in her lifetime **** with the following two exceptions:
(1) . . . . the said jewelry were not valid gifts inter vivos or gifts cause mortis, and consequently, the aforesaid jewelry must be turned over to the Plaintiff, Mercantile Bank as Administrator ....
(2) That the $3,000.00 check drawn by Mrs. Gertrude P. Sharpe on November 3, 1969, made payable to Douglas Phillips with a notation, “Loan” and endorsed by the said Douglas Phillips, is not barred by the three-year Statute of Limitations and there is insufficient corroboration of Douglas Phillips’ testimony to show that the debt had been forgiven ....
The complaint of the appellant was otherwise dismissed and hence this appeal. Appellees cross-appeal from the decree with respect to the $3,000 check.
Since the appellant’s contentions and arguments made under points 7, 8 and 9 are so related, we will discuss them first and together in order to prevent repetition. The thrust of appellant’s argument is that the deceased did not have sufficient mental competency during the last 23 months of her life to be capable of exercising competent judgment regarding the questioned gift transfers; appellees, being in a fiduciary relationship, have not met the burden of establishing no undue influence or overreaching and, therefore, the chancellor erred in finding the gifts in question were valid, legal gifts. We cannot agree.
It is not disputed by the appellees that a fiduciary relationship existed between appellee Douglas Phillips and the deceased at the time of the alleged gifts. Neither do the appellees question the rule in Barrineau v. Brown, 240 Ark. 599, 401 S.W. 2d 30 (1966), and our similar decisions relied on by appellant; i.e., a donee who has a fiduciary relationship to the donor has the burden of proof, by clear and convincing evidence, to overcome the presumption of invalidity of a gift when it stems from such a relationship.
There is volunimous testimony, both lay and expert, regarding the deceased’s mental capacity. There was some testimony that she was not the same after her husband passed away in 1965 and some testimony that indicated a change after her only child was killed in 1949. There was a great deal of testimony by some of her relatives and, others, including a daytime and nighttime attendant, that during the two years preceding her death in February, 1974, she was at times confused, disoriented and had difficulty recalling facts. She was repetitious in her conversations and actions and was irrational in her behavior. Several witnesses said at times she was just like a child and was not competent to engage in business transactions. There was medical evidence she suffered from cerebral arteriosclerosis (hardening of the arteries) which resulted in senility.
There was an abundance of testimony that most of the time she was entirely rational and able to transact business. Lewis Goad, president of her bank and a friend for more than thirty years, testified “ [S]he needed help in her business but I agree, that given sound help and advice there was no reason why she couldn’t transact business.” The assistant cashier of her bank, who observed the deceased at the bank for twenty- seven years, testified she would characterize her behavior “|J]ust as normal as any elderly person could be.” The pastor of her church testified that she attended church regularly until she became ill in January, 1974. She was active in her Bible class. He visited her in her home once or twice a month and saw her occasionally about town. During the times he observed her “as far as mental judgment and competency are concerned I would say that by and large that she knew who she was, where she was and what she was doing.”
Several witnesses, who saw her regularly including some of her neighbors for many years, testified that they considered Mrs. Sharpe as being rational, normal, mentally alert and competent. Her personal physician, Dr. Swingle, who had treated the deceased for twenty years and saw her socially, testified that up until the last two years of her life she was 100% lucid. From September 1, 1973, until January 28, 1974, he saw her about seven times professionally and socially on occasions. During that time he considered her 80% lucid until she was hospitalized for a physical illness on the latter date. He also testified on cross-examination that “I believe that Mrs. Sharpe was lucid enough to retain in memory, without prompting from another person, the extent and condition of the property she had disposed of by will, inventory and gifts and bequests.....It was my opinion that Mrs. Sharpe was lucid and same and had no defect of reasoning as far as I could ascertain.” According to him she was an exceptional physical and mental specimen until the latter part of 1973.
The appellees, Mr. and Mrs. Glasco, had lived across the street from the Sharpes since 1946. Mrs. Sharpe’s husband gave the Glaseos $4,500 for the purchase of their home in 1964. Mrs. Glasco is Mrs. Sharpe’s neice. During these many years they were very attentive to her every need. When Mrs. Sharpe broke her hip and arm in 1969, she lived with them approximately three months. The appellees, Douglas and Rosa Lee Phillips, lived in a nearby town. Mrs. Phillips is the Glaseos’ daughter and Mrs. Sharpe’s great neice. They, likewise, were constantly solicitous and attentive to Mrs. Sharpe. There was uncontradicted testimony she considered the Glaseos and the Phillipses to be her children and the Phillipses’ children, John and Jennifer, her grandchildren. A close friend and neighbor io the deceased and her husband for many years and who saw her regularly testified as abstracted:
I just don’t see how the relationship of the Glasco and Sharpe family could be any better. They were very close and looked after them day and night.... I would say she looked on them as the only family she had left to look after her, as her children. . . . Well, she had, as I said, her good days and bad days in her memory, but when she was at herself she was at herself, and she never failed to talk sense when I talked to her and when I saw her and visited her. ... I don’t know what Mrs. Sharpe would have done without the Glaseos and the Phillipses. I really don’t.
In referring to John and Jennifer Phillips, this friend said Mrs. Sharpe “talked about she was going to educate the children. ... It was just like they were her own children. ” This is supported by a letter from Mrs. Sharpe in February, 1972, to her bank authorizing the use of certain funds to educate the Phillipses’ children.
Appellee Douglas Phillips is an insurance agent, a C.L.U., with training and experience in business matters. After Mrs. Sharpe’s husband died in 1965, she relied upon him, without any remuneration to him, in the conduct of her business affairs. Her property interests were extensive and reflect total assets of $627,584.84 (real estate $273,000, cash, $500 car, and securities $354,084.84). The attorney, who prepared the legal instrument in January, 1971, giving appellee Phillips a general power of attorney, testified that both Mrs. Sharpe and Douglas Phillips were in his office and there was a discussion as to what she wanted. He then drafted the document, read and explained it to her. She executed in his presence. As abstracted, “[I]t appeared to me that Mrs. Sharpe completely understood it and I thought that it would meet the purposes for which they came. ” Appellee Douglas testified that the deceased directed him to make the gifts in question during the last two years of her life as part of an overall estate tax gift plan and he considered her competent to make the gifts. Several witnesses testified without contradiction that Phillips’ reputation in the community for truthfulness, honesty and integrity was good. One witness said as abstracted “I would say that very well describes his reputation. His integrity is beyond question I would say.”
Appellee Douglas Phillips’ testimony is corroborated by Grover Freeman, a C.P.A., who testified that following Mrs. Sharpe’s husband’s death in 1965 and on various occasions during the last few years of her life, he discussed with her the subject of gift and estate problems and the advantages of having a program of gifts to alleviate her estate taxes. As abstracted, “I would say that Mrs. Sharpe was aware of the tax problems involved in the estate taxes as a result of her husband’s estate tax situation. ... I recommended that she might consider making some gifts to the people that she might be considering in her will [appellees are made beneficiaries in Mrs. Sharpe’s 1967 will] anyway to take it out of the estate to save estate taxes. ... I made the recommendation to her to purchase these bonds [government bonds] and save taxes. This was part of the estate planning that I did with her. I do not recall any other recommendations I made to her besides these gifts and bonds, and generally that was the extent to our conversation in that regard. She bought $100,000 worth of bonds. ... In 1970 she was considering estate taxes and means of avoiding or reducing them. I made the recommendations regarding the gifts at that time. I think she understood generally what was being said to her. ... I might say this, that Mrs. Sharpe had no trouble understanding and following through on a suggestion that she buy $100,000.00 of Federal Government Bonds at a favorable price to alleviate estate taxes. I didn’t have to explain that twice.” In further corroboration, there were five quarterly gift tax returns signed by her covering the period of gifts from March 16, 1972, until December 31, 1973. These five returns identified in detail the gifts which total $59,-738.65. A gift of $3,000 each to John and Jennifer was made on January 2, 1974. Since she died in February, 1974, no gift tax return for that quarter was made.
In summary, the inventory of Mrs. Sharpe’s estate consisted of $627,584.84 in total assets. In her 1967 will she made various specific bequests to her relatives and charities. Among these was an interest in her home to the Glaseos and $10,000 to the Phillipses. However, by specific bequests and the residual clause of her will, the vast part of her estate was left to her brother, sisters and numerous other relatives. Her accountant testified that he had disucssions about a gift tax program with her for the purpose of alleviating her estate taxes. It appears that following these discussions, the gifts in question were made. Five quarterly gift tax returns were filed in 1972 and 1973 detailing the names of the donees, the amounts and the dates of the gifts. It is undisputed that they were signed by Mrs. Sharpe and approved by her accountant. Over one-half of the amount of the questioned gifts were made to the Phillipses’ children, John and Jennifer, regarded by her as her grandchildren. It appears one or both of them were college students. There was testimony by a disinterested witness and a letter from Mrs. Sharpe to her bank indicating her desire to educate John and Jennifer. It is further undisputed that the appellees were kind to Mrs. Sharpe and took painstaking care of her every need for many years. She regarded them as her children.
The finding of the chancellor on a fact question will not be disturbed by us on appellate review unless the finding is against the preponderance of the required evidence. Nutt v. Strickland, 232 Ark. 418, 338 S.W. 2d 193 (1960). In Murphy v. Osborne, 211 Ark. 319, 200 S.W. 2d 517 (1947), we aptly said “the chancellor saw each witness when he testified. The chancellor observed the demeanor on the witness stand, the inflection in the voice and the hesitancy or rapidity of the words flowing from the mouth of the witness. The chancellor thus had an opportunity to see more than the mere words on the printed page which, alone, come to this court.” In the case at bar the chancellor had the advantage of seeing and hearing the witnesses in resolving the disputed issues. Therefore, when we consider this together with all the evidence, we cannot say his finding as to competency, undue influence and overreaching is not supported by clear and convincing evidence.
We next consider appellant’s contention that the chancellor erred in allowing the appellees to introduce appellee Douglas Phillips’ answers to appellant’s interrogatories. Appellant argues that the answers contained inadmissible self-serving declarations and hearsay. We perceive no prejudice because the interrogatories were offered “expressly not for evidentiary purposes” but solely for the purpose of proving they were made and to constitute a waiver of the dead man’s statute. In Motors Insurance Corporation v. Lopez, 217 Ark. 203, 229 S.W. 2d 228, this court said:
A statement made out of court is not hearsay if it is given in evidence for the purpose merely of proving that the statement was made, provided that purpose be otherwise relevant in the case at trial.
Appellant also asserts that the chancellor erred in holding that the appellees’ introduction of appellee Douglas Phillips’ answers to appellant’s interrogatories constituted appellant’s waiver of the dead man’s statute, Arkansas Constitution (1874), Schedule 2, which provides in pertinent part:
.... in actions by or against executors, administrators or guardians in which judgment shall be rendered for or against them, neither party shall be allowed to testify against the other as to any transactions with or statements of the testator, intestate or ward, unless called to testify thereto by the opposite party.
Appellant argues that when the appellee Douglas Phillips’ answers are introduced on behalf of appellees, it cannot truly be said that he was “called to testify by the opposite party,” and, consequently, no waiver of the dead man’s statute resulted by the use of the interrogatories. Appellees respond that by the use of the interrogatories directed to appellee Douglas Phillips, the appellant waived any disqualification of Phillips as a witness. We agree. Smith, Administratrix v. Clark, 219 Ark. 751, 244 S.W. 2d 776; Hood, Executrix v. Welch, 256 Ark. 362 (1974); and Tenny v. Porter, 61 Ark. 329, 33 S.W. 211 (1895).
We next consider appellant’s assertion that the court erred in admitting hearsay testimony of appellee Lee Glasco and appellee Douglas Phillips regarding conversations with the deceased’s husband, A. J. Sharpe, who died in 1965. Appellant argues that the testimony of Glasco and Phillips concerning Sharpe’s generosity was incompetent as hearsay and irrelevant since the question of whether or not Sharpe was a generous man is not an issue. We review chancery cases de novo and consider only such testimony as is competent. Newsom v. Reed, 177 Ark. 177, 6 S.W. 2d 10 (1928). Suffice it to say, here we consider the evidence sufficient without considering the asserted incompetent testimony.
Appellant next contends that the chancellor erred in permitting appellee Douglas Phillips’ “almost carte blanc leeway in incorporating discussions that Phillips alleges ensued with deceased since most of Phillips’ testimony violates the substance and spirit of the hearsay rule and/or the dead man’s statute.” Appellant argues that since virtually all the substance of Douglas Phillips’ testimony is founded upon unreliable self-serving recapitulations of his conversations with deceased, “it would serve little purpose to enumerate practically all the pages of his direct examination testimony that incorporates pervasive hearsay as well as violations of the Dean Man’s Statute.” That part of the argument relating to the dead man’s statute is repetitious and was disposed of earlier in this opinion. As to that portion of appellant’s argument referring specifically to certain conversations as self-serving declarations and hearsay, suffice it to say that we deem other evidence sufficient without considering the asserted examples of inadmissible evidence.
Appellant next asserts that the court erred in admitting picture film strips that had been spliced and edited by appellee. The film in question was a motion picture reel prepared by appellees for trial from several boxes of film which the Phillipses and Glaseos had taken over a period from Easter, 1956, to Christmas, 1965, showing occasions of visits of the two families with Mr. and Mrs. Sharpe. Appellant argues that the motion picture “may not” accurately show what they are represented to portray because the film was spliced and edited without any unbiased supervision; fabrication is “entirely possible” since there is no practical way to determine exactly what was deleted; and to allow such edited and spliced films involving remote occasions as distant as 1956 is so unreasonable as to constitute abuse of the trial court’s discretion. We cannot agree. Here there is no evidence that the films do not represent an accurate reproduction or that they convey a false impression. Counsel for appellant was given an opportunity to view any edited portions of the film in appellees’ possession and to supply any films that it felt were relevant. The pictures were properly admitted. Sloan v. Newman, 166 Ark. 259, 266 S.W. 257 (1924).
Neither can we agree that the chancellor erred in refusing to allow into evidence portions of Dr. Schoettle’s deposition. It is asserted that the court rendered inadmissible relevant admissions against interest allegedly made by appellee Lee Glasco. The evidence about which appellant is concerned is a medical history of the deceased taken from a hospital admissions record which was made when deceased was admitted to the hospital on January 28, 1974. It appears the record itself was not offered into evidence. Suffice it to say that the authenticity of the hospital record was not properly established by any testimony under oath. Further, the portion asserted as being relevant is admittedly based upon the mere assumption of Dr. Schoettle, the deponent.
On cross-appeal it is contended that the trial court erroneously held that the claim based upon the $3,000 debt of appellee Douglas Phillips was not barred by the three year statute of limitations. Ark. Stat. Ann. § 37-206 (Repl. 1962). The thrust of cross-appellant’s argument is that the check given by Mrs. Sharpe to Phillips for $3,000 marked “loan” did not constitute a written contract and since more than three years expired before appellant’s action was commenced, the chancellor erred in not holding the suit was barred. We cannot agree. Appellee Phillips was given power of attorney before the three year statute of limitations had expired. In this fiduciary capacity he was her business advisor and she relied upon him in the conduct of her affairs. Therefore, he is estopped to invoke the statute of limitations. See Leach v. Moore, 57 Ark. 588, 22 S.W. 173 (1893); 51 Am. Jur. 2d, Limitation of Actions, § 452; 45 ALR 3d 630.
Affirmed on direct and cross-appeal.
Byrd, J., dissents. | [
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Carleton Harris, Chief Justice.
A jury convicted appellants, Bill and Helen Wilkens, of possession of stolen goods, and fixed punishment at 14 years for each in the Department of Correction. From the judgment so entered comes this appeal. It is asserted that the convictions are not supported by substantial evidence; that the trial court erred in excluding certain evidence, and that the prosecuting attorney was permitted to ask questions during cross-examination which constituted prejudicial error. We proceed to a discussion of these points.
Two witnesses testified with regard to the relevant elements of the offense. Rimer Clark, a Benton County deputy sheriff, stated that he searched appellants’ home pursuant to a search warrant (the validity of which is not challenged), on March 7, 1975, and found the television in what appeared to be appellants’ “living room,” connected to an electrical socket and apparently in use. The deputy removed the set and returned it to the sheriff’s office, where it was identified as property stolen from Horace Holland’s residence in Madison County on November 11, 1974.
The owner, Horace Holland, testified that his home was burglarized on November 11, 1974, with the television and several other items missing. Holland said that he had paid $550.00 for the set, two years before the theft, and that he valued it at $300.00 when it was stolen.
Appellants and one of their employees testified that the television set was brought to the premises by Jack Humphrey, a friend and former employee of the appellants, who left it there. The Wilkinses stated they were not aware that the television had been stolen, and that they did not buy it from Humphrey. The defense offered by appellants will be more fully discussed under the next point. The testimony, if believed by the jury, was sufficient to sustain the conviction.
Although the defense was permitted to offer testimony that the Wilkenses were unaware that the television was stolen, that they did not buy it, and that Wilkens later told Humphrey that he would have to remove the set because appellants were getting ready to move, the court would not permit Mrs. Wilkens to testify concerning statements by Humphrey relative to his reason for bringing the television to their premises.
Appellants then proffered the testimony of Mrs. Wilkins to the effect that Humphrey had told her that the television belonged to him and his wife; “that they had been separated and were going back together and that he wanted to leave [the television] there until the reconciliation could be arranged and so indicated to her that it was his property, he and his wife’s property.” Counsel further offered to prove by Mrs. Wilkens that Humphrey had “indicated” to her “that this property was his property,” and “that it was her impression at all times that the property belonged to Jack Humphrey.” The trial court sustained the state’s objection to this proffer, ruling that Mrs. Wilkens could not testify about what someone else had told her, and that appellants would have to produce the witness, Humphrey.
Appellants testified that a subpoena had been issued for Humphrey, but had been returned with a notation that he could not be located, and such subpoena does appear in the record. It is vigorously contended that the exclusion of this testimony deprived them of an opportunity “to explain the circumstances and reasons for the possession.”
The proffered evidence was not admissible as far as establishing the truth of the statement made, but we think, under our cases, that Mrs. Wilkens should have been permitted to testify to the facts proffered as a matter of showing her reason, and motive, in accepting the television. In Daniels v. State, 168 Ark. 1082, 272 S. W. 833, this court pointed out that it was a matter for the jury to determine the reasonableness and sufficiency of the explanation given by the accused of his possession of the stolen property, and in Stewart v. State, 214 Ark. 497, 216 S.W. 2d 873, we again mentioned that the possession of the property justified an inference that such possession was a guilty one “and may be of controlling weight unless explained by circumstances or accounted for in some other way consistent with innocence.”
Of course, it is purely a matter for the jury to determine the weight of testimony offered, but we are of the view that the trial court should have permitted Mrs. Wilkens to offer her reasons for accepting the television from Humphrey, such reasons, if believed by the jury, being consistent with innocence.
It is asserted that the court erred in permitting the prosecuting attorney to ask appellants whether they were guilty of other criminal offenses. Most of the questions asked appellants related to whether they were guilty of being in possession of certain items of stolen property, the questions specifically mentioning the property and the person from whom such property had been stolen. To each question appellants answered in the negative. A large number of such questions were asked. The rule is stated in Black v. State, 250 Ark. 604, 466 S.W. 2d 463, where we said:
“We have held that one cannot be asked if he has been indicted, or charged, or accused, of other crimes, but for the purpose of testing credibility, one may be asked if he has been convicted of a particular offense, or if he was guilty of some particular offense. The state is bound by the answer that the witness gives.”
Particular complaint is made about two questions asked; in one instance the prosecutor asked Mr. Wilkens if he was guilty of arson, which was answered, “No.” and the prosecutor then added to his question whether appellant was guilty of “burning your own home?” In another instance, the question propounded was, “Are you also guilty of the crime of being in possession of stolen property recently stolen from Mr. Bill Rollins and being in your possession one crystal earrings, one jet drop earrings, etc.”
In the first instance, it appears only that the prosecutor was endeavoring to comply with our directive that the question be specific, i.e., relate to some particular offense. The second question, containing the phrase, “being in your possession” appears improperly worded and in the nature of testimony by. the prosecutor, but there could have been no prejudice, since Mrs. Wilkens herself admitted that Ithe articles in question had been recovered from the auction house that she and her husband operated.
As previously stated, there were a number of these questions asked (seven or eight) and appellants appear to be arguing that the questions were not asked in good faith, but that the interrogation was solely for the purpose of inflaming the jury against the appellants. However, there is no showing whatsoever that the questions were not asked in good faith, and certainly there is no rule of law that limits the number of such questions, so long as the interrogation complies with our requirements, and is made in good faith. Actually, Mrs. Wilkens admitted being in possession of several of the items inquired about. The court did not err in permitting these questions.
Because of the error heretofore discussed under Point 2, the judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
It is so ordered. | [
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Frank Holt, Justice.
The only issue on appeal is whether there was sufficient compliance with the notice requirement of § 19.2 of the Little Rock City Code to allow a proposed initiated measure, Lifeline Electric Rates Ordinance, to be placed on the November 2, 1976, ballot. The chancellor held there was a substantial compliance with the publication requirements. However, the court felt constrained to hold the publication was insufficient because, when enforcement of election laws is sought befpre the election, a strict compliance is mandatory. Consequently, the measure should be removed from the ballot. Appellants contend for reversal that a substantial compliance is sufficient.
It is true that in some election contests we have held all provisions of the election laws are mandatory if enforcement is sought before election in a direct proceeding for that purpose and, generally, after election all should be held directory only in support of the result. McKenzie v. City of Dewitt, 196 Ark. 1115, 121 S.W. 2d 71 (1938); Phillips v. Rothrock, 194 Ark. 945, 110 S.W. 2d 26 (1937); Cowling v. City of Foreman, 238 Ark. 677, 384 S.W. 2d 251 (1964). However, strict compliance of the notice of publication has never been required where to do so would place it in the power of a ministerial officer to prevent the holding of a legal election. Hildreth v. Taylor, 117 Ark. 465, 175 S.W. 40 (1915); and Wheat v. Smith, 50 Ark. 266, 7 S.W. 161 (1887).
§ 19.2 supra, provides, in pertinent part, that after the city clerk determines the sufficiency of any initiative petition filed with that official “[t]hen the city clerk shall report his final finding to the board of directors, and if it be ascertained that such petition is signed by the requisite number of electors, said directors shall direct the city clerk to publish for one time, not less than thirty (30) days prior to the municipal election, in some newspaper having a general circulation in the municipality the full text of the proposed measure to be submitted to a vote of the people. ...”
Here, it appears undisputed that appellants filed their initiated petition with the city clerk on September 1, 1976, or 62 days before the November election. Amendment No. 7, Arkansas Constitution (1874), prescribes the time frame for filing the petition as being not more than 90 nor less than 60 days. The provisions of § 19.2, supra, are derivative of our Amendment No. 7, our Initiative and Referendum Amendment.
The proposed measure here was published by appellants themselves on October 2, 1976, which was within the required 30 day limitation. However, the publication by the city clerk, as required by § 19.2, supra, was October 8, 1976, or 25 days before the election. With respect to Amendment No. 7, we have long accorded a liberal interpretation to that Amendment. In Coleman v. Sherill, 189 Ark. 843, 75 S.W. 2d 248 (1934), the sufficiency of the ballot title of a local initiated act was questioned before the election. In ordering the proposed measure placed on the ballot, we said “ .. . Amendment No. 7 contemplates a liberal construction and, if substantially complied with, the proposition should be submitted to the vote of the electors.” In Reeves v. Smith, 190 Ark. 213, 78 S.W. 2d 72 (1935), an action challenging the sufficiency of the initiative petitions was instituted before the election. In upholding the sufficiency of the petitions, we said:
Amendment No. 7 necessarily must be construed with some degree of liberality, in order that its purposes may be well effectuated. Strict construction might defeat the very purposes, in some instances, of the amendment.
In Leigh v. Hall, 232 Ark. 558, 339 S.W. 2d 104 (1960), there was an action brought before the election alleging the publication of an initiative proposal was not within the time frame. The petitions were filed on various dates. We found the publication sufficient by selecting a filing date that would validate the measure. We said:
This court is definitely committed to the proposition that Amendment Seven should be liberally construed to effectuate its purpose.
There we again recognized:
Strict construction might defeat the very purposes, in some instances, of the amendment. **** ‘A realization that behavior and conduct in all affairs of life is never perfect, requires due allowances must be made for human frailties. Therefore only a substantial compliance is required.’
Accordingly, in the case at bar, we apply the rule of liberal construction since this is an initiated measure.
Here, on the record presented, it appears that the initiated petition was filed 62 days before the election date or within the permissible time frame. Thirty days before the election the appellants themselves published “the full text of the proposed measure” for the adoption or rejection by the voters on November 2, 1976. Five days later, or 25 days before the election, the city board of directors published exactly the same proposed ordinance to be voted upon November 2, 1976. We note, however, that it is conceded the city clerk was not at fault nor derelict in her duties in any manner. The substance of the two publications is substantially identical even to the extent that both indicate that the voters would have an opportunity to approve or reject the measure at the general election. We hold there was substantial compliance with the publication requirement.
The decree is reversed and the cause remanded for proceedings not inconsistent with this opinion.
Reversed and remanded. | [
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J. Fred Jones, Justice.
The appellant Juan Centeno was charged on several counts of burglary and grand larceny and was placed in the county jail pending trial. At his trial for burglary and larceny of guns from the Sam Grumpier home, the jury was unable to agree on the burglary charge but found him guilty of grand larceny. The jury was unable to reach a decision as to punishment and the trial judge sentenced the appellant to twelve years in the Arkansas Department of Correction.
On appeal to this court Centeno has designated the following points on which he relies for reversal:
The court erred in allowing appellee to introduce evidence of appellant’s flight from confinement.
The court erred in allowing the appellee to ask questions of irrelevant matters prejudicing the jury.
We find no merit to either assignment.
At the trial of the case the sheriff was permitted to testify that after the appellant had been arrested and placed in jail he escaped from the jail and was again apprehended. The appellant contends that this testimony was inadmissible and prejudicial to him in the trial of the charge on which he was being tried. He argues that since he was incarcerated in jail under charges of having committed several separate felonies, testimony pertaining to his escape from jail would be inadmissible as evidence of guilt on the particular charge for which he was being tried as distinguished from the other charges pending against him.
The appellant is apparently asking us to adopt an exclusionary rule discussed in Underhill’s Criminal Evidence § 373, 5th ed., 1956, and 22A C.J.S. § 631 (1961), to the effect that evidence of an attempted escape by a prisoner in jail awaiting trial for two distinct crimes is not relevant to show that he is guilty of either. Although this exclusionary rule was followed by other state courts in two early cases, People v. McKeon, 64 Hun. 504, 19 N.Y.S. 486 (1892), and State v. Crawford, 59 Utah 39, 201 P. 1030 (1921), it has been rejected by several jurisdictions in more recent cases. State v. Hudson, 491 S.W. 2d 1 (Mo. App. 1973); Archie v. State, 488 P. 2d 622 (Okla. Crim. 1971); People v. Neiman, 90 Ill. App. 2d 337, 232 N.E. 2d 805 (1967); Fulford v. State, 221 Ga. 257, 144 S.W. 2d 370 (1965); Chapple v. State, 528 S.W. 2d 62 (Tenn. 1975). The rationale applied in these more recent cases is that the question of whether an escape shows consciousness of guilt of the offense on trial, when the defendant is also charged with other offenses, is a question of fact for the jury, going to the weight of the evidence, rather than a question of law for the court, going to the admissibility of the evidence. In Arkansas, evidence of an accused’s flight is a circumstance to be considered along with other evidence in determining the accused’s guilt. Murphy v. State, 255 Ark. 90, 498 S.W. 2d 884 (1973); Rowe v. State, 224 Ark. 671, 275 S.W. 2d 887 (1955). Thus, in Arkansas, the words of the Illinois Court in People v. Neiman, supra, for rejecting the exclusionary rule, are applicable.
It would seem inappropriate to hold evidence of attempted escape inadmissible against an accused who was awaiting trial on various charges, and to admit such evidence against the accused who was charged with only one offense. Such procedure would reward the professional criminal and punish the neophyte.
Also, in Fulford v. State, supra, the Supreme Court of Georgia said:
It would place upon the State an impossible burden to prove that one charged with multiple violations of law fled solely because of his consciousness that he committed one particular crime. It is better logic to infer that the defendant, who is charged with several offenses, fled because of a conscious knowledge that he is guilty of them all.
In Chapple v. State, supra, the Court of Criminal Appeals of Tennessee said: “[W]e think the attempted escape when in confinement on both of the charges would be relevant on the trial of either.”
The appellant’s second point is directed at various names and Social Security numbers discovered by the investigating officers in connection with their investigation. Other witnesses had testified that the appellant had used an alias in pawning guns allegedly taken from the Crumpler residence. In Glover v. State, 194 Ark. 66, 105 S.W. 2d 82 (1937), this court said:
It is an accepted rule that a relevant fact will not be rejected because not sufficient in itself to establish the whole or any definite portion of a party’s connection, “but all that is required is that the fact must legitimately tend to prove some matter in issue, or to make a proposition in issue more or less probable. Indeed, it is sufficient if the fact may be expected to become relevant in connection with other facts, or if it forms a link in the chain of evidence necessary to support a party’s contention, although requiring other evidence to supplement it.” 22 C.J. § 91, page 164,
The appellant also argues that the trial judge made prejudicial comments in connection with the Social Security numbers. The trial judge inquired whether the appellant actually used one of the spurious Social Security numbers in connection with the transaction involved and the answer was that he did not. Furthermore, the appellant failed to object to the judge’s comments as comments on the evidence and, therefore, waived his right to argue this issue on appeal. Powell v. State, 231 Ark. 737, 332 S.W. 2d 483 (1960). The appellant also argues that the court erroneously permitted cross-examination of the appellant concerning his guilt in other criminal activities. We find no merit in this contention. Butler v. State, 255 Ark. 1028, 504 S.W. 2d 747 (1974).
The judgment is affirmed. | [
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Conley Byrd, Justice.
Following our decision in Skelton v. B. C. Land Co., 256 Ark. 961, 513 S.W. 2d 919 (1974), denying a net operating loss carryover to B. C. Land Co., appellant Walter Skelton, Assistant Director of the Department of Finance and Administration, filed a certificate of indebtedness and caused an execution to be issued thereon on February 3, 1975. On March 31, 1975, the Govennor signed Act 676 of 1975. Section 1 of Act 676 provided that, for income tax purposes, an acquiring corporation would succeed to any net operating loss carry-over that the acquired corporation could have claimed — i.e. it brough the Arkansas income tax law in conformity with the provisions of § 381 and § 382 of the Internal Revenue Code. Sections 2 and 4 of Act 676 provide as follows:
SECTION 2. The provisions of this Act shall apply to all corporate income returns for income years beginning on or after January 1, 1975, and to all corporate income tax returns filed for years prior to January 1, 1975 which are pending on the effective date of this Act and on which the taxes have not been paid.
SECTION 4. It is hereby found and determined by the General Assembly that the present corporate income tax law does not permit one domestic corporation which acquires the assets of another domestic corporation to succeed to the net operating loss carry-over of the acquired corporation under any circumstances; that the absence of any such authority creates a serious hardship on some acquiring corporators and that provision should be made as soon as possible for permitting such acquiring corporations to succeed to the net operating loss carry-over of the acquired corporations under specified conditions, and that this Act is designed to accomplish this purpose. Therefore, an emergency is hereby declared to exist and that this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”
Pursuant to a petition filed by appellee on April 2, 1975, the trial court entered a final order on August 20, 1975, holding the certificate of indebtedness to be void. For reversal, appellant makes the following contentions:
“I. Act 676 of 1975 is not applicable to the appellee because his tax return was not pending on the effective date of the Act.
II. The appellee has failed to meet his burden of proof showing his entitlement to this tax deduction.
III. Act 676 of 1975 is inapplicable to the appellee because the rights of the State had vested prior to the effective date of the Act and therefore those rights are protected from legislative invasion.”
Under points I and II, supra, appellant takes the position that appellee’s income tax return was not pending on the effective date of Act 676, supra. In this connection appellant would have us construe the phrase “which are pending on the effective date of this Act” to exclude all corporate income tax returns that had become res judicata in the courts. However, Section 2 does not refer to court litigation but to income tax returns. Furthermore, in making this contention appellant ignores the cardinal principle that in construing remedial legislation the courts should do so with appropriate regard to the spirit which prompted its enactment, the mischief sought to be abolished and the remedy proposed, United States v. Colorado Anthracite Co., 225 U.S. 219, 32 S. Ct. 617, 56 L. Ed. 1063 (1912) and Peet v. Mills, 76 Wash. 437, 136 P. 685 (1913). When the provision with respect to pending corporate income tax returns is construed with respect to the mischief sought to be abolished and the remedy proposed, we must agree with the trial court that appellee’s corporate income tax return, uoon which a certificate of indebtedness had been filed and an execution issued, was “pending on the effective date of the Act” within the meaining of Section 2 of Act 676, supra.
Little need be said as to appellant’s contention that appellee has not proven its entitlement to the provisions of Section 2 of Act 676, supra. Since appellant has agreed that appellee meets all of the criteria established in Section 1 of the Act, there is no dispute as to the facts.
In making the argument that Act 676 of 1975 was inapplicable to appellee because the rights of the State had become vested prior to the effective date of the Act, appellant relies upon cases involving only the rights of private individuals, Files, Auditor v. Fuller, 44 Ark. 273 (1884). However, the general rule applicable to individuals does not apply to retroactive legislation impairing a state’s own rights, Greenaway’s Case, 319 Mass. 121, 65 N.E. 2d 16 (1946) and People ex rel. Clark v. Gilchrist, 243 N.Y. 173, 153 N.E. 39 (1926). A state has no vested rights which are immune from its legislative control, 16 C.J.S. Constitutional Law § 243 (1956).
Affirmed.
George Rose Smith, Fogleman and Roy, JJ., dissent. | [
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George Rose Smith, Justice.
The appellant was fined in the Waldron municipal court for having failed to stop for a red traffic light. Upon trial de novo in the circuit court the jury returned a verdict of guilty and imposed a $25 fine. This appeal is evidently prosecuted as a matter of principle.
The appellant asserts, although the record does not clearly show, that the trial in the municipal court consisted of this statement by the municipal judge: “The officer is going to say that you did run the light, you will say you did not. I will find you guilty, and I know that you will appeal. I do not wish to waste my time. I find you guilty; now file your appeal.” An appeal to circuit court was duly taken.
If the appellant’s version of what occurred in the municipal court is correct, the municipal judge clearly deserves censure for conduct wholly lacking in that patience and impartiality which should characterize all judicial proceedings. Nevertheless, we cannot follow the appellant’s argument that the circuit court was somehow deprived of jurisdiction to hear the matter. It is t'rue that the municipal court had exclusive jurisdiction in the first instance over violations of city ordinances. Ark. Stat. Ann. § 22-709 (Repl. 1962). That jurisdiction, however, was exercised by the municipal court’s finding of guilty and its imposition of a fine. Even though the court’s exercise of its jurisdiction was erroneous, owing to its refusal to hear testimony, the statute provides for an appeal to the circuit court, where the accused is entitled to an entirely new trial, “as if no judgment had been rendered” in the municipal court. Ark. Stat. Ann. § 44-509 (Repl. 1964). It appears, that the appellant received a fair trial in the circuit court — a trial that was not influenced or affected by whatever may have taken place in the municipal court. We find no basis for setting aside the circuit court’s judgment.
Affirmed.
We agree. Harris, C.J., and Fogleman and Jones, JJ. | [
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John A. Fogleman, Justice.
Appellant Roger Dale Pennington was convicted for violating Ark. Stat. Ann. § 41-3508 (Repl. 1964) which proscribes escape from a penitentiary. He appeals alleging that the state failed to sufficiently prove that he was the same Roger Pennington who had been convicted of kidnapping and robbery and committed to the Department of Correction; or that his custody, at the State Hospital, was lawful.
To convict a person of the crime of escape in violation of § 41-3508 the state must present evidence that the accused was convicted of a crime, was committed to the Department of Correction and escaped from the custody of the Department. It is not sufficient merely to offer evidence that someone by the same name as the accused was convicted, but there must be evidence that the accused is the same identical person who was convicted. State v. Murphy, 10 Ark. 74.
The state submitted as evidence certified copies of a judgment and order rendered in St. Francis County on June 1, 1971, finding one Roger Pennington guilty of robbery and kidnapping and sentencing him to serve two concurrent 21-year sentences. The judgment ordered the clerk of the court to deliver a certified copy of the judgment to the Sheriff of St. Francis County to be delivered to the Department of Correction as authority for confinement of Pennington. The certified copy of the commitment recites that it was issued on June 10, 1971. The certified copy of the judgment also recites that the state’s attorney was Fletcher Long, Jr., defense attorney was Knox Kinney and the docket number was 7898.
The Superintendent of the Tucker Unit, Arkansas Department of Correction testified that he was responsible for the records of the inmates incarcerated there; that he had with him the original records of Roger Dale Pennington. He stated that Arkansas Department of Correction Admission Summary (state’s exhibit 2) and Status Assignment Release Date Record (state’s exhibit 3) were kept in the normal course of business and that it was the regular course of the business at Tucker to keep such records. Although appellant’s attorney objected at trial that there was an insufficient foundation laid for the admission of the records into evidence, this argument was not pursued on appeal and we cannot, without further research, say that the foundation was insufficient.
A copy of the admission summary, included in the record, bears the name Roger Pennington, inmate No. 62258. A photograph bearing the numbers 62258 and 6-19-71 is attached. This record recites that two concurrent 21-year sentences were rendered on June 1, 1971 in St. Francis County, docket number 7898, for the offense of robbery and kidnapping; that the state’s attorney was Fletcher Long and defense attorney was Knox Kinney. The copy of the Status Assignment Release Date Record included in the record bears the following: Inmate Name: Pennington, Roger; Date, 9-13-74; Assignment, Rel-State Hospital. The witness testified that this record shows that Pennington was sent out to the State Hospital on September 13, 1974.
Two other witnesses testified that they were employed at the State Hospital on October 30,1974. They stated that they recognized Pennington as having been a patient at the hospital on that day; that Pennington had been shackled with a leather ankle cuff to a wheelchair but that on the evening of October 30, 1974 the wheelchair was found empty, close to an open window; that they searched for Pennington but he was not found in the hospital or on the grounds.
Appellant does not allege that the state has failed to sufficiently prove that he was in the State Hospital on October 30, 1974, that he had been an inmate at Tucker, or that the prison records refer to him. He alleges only that the state has not presented sufficient evidence to prove that he is the same person who was convicted of robbery and kidnapping in St. Francis County on June 1, 1971, but does not otherwise challenge the accuracy of the records kept in the regular course of business.
Although it is incumbent on the state to present evidence that the accused is the same person who was previously convicted, the proof of identity may be circumstantial, State v. Murphy, supra. The identity of facts recited on the judgment and sentence with the Admission Summary could not likely have been the result of coincidence; therefore the state has sufficiently proved the identity of the appellant by circumstantial evidence, which is substantial.
Appellant’s second contention is also without merit. It is from the State Hospital that the appellant escaped, and he now claims that there is no evidence that he was in the lawful custody of the State Hospital. Ark. Stat. Ann. § 46-106 (Supp. 1975) provides that all commitments are to be made to the Department of Correction. It is provided in § 46-150 that an inmate may be taken, when necessary, to a medical facility outside the institution and in Ark. Stat. Ann. § 46-153 (Supp. 1975) that the Commissioner may transfer an inmate for observation and diagnosis to the State Hospital. It was not required, for the purposes of Ark. Stat. Ann. § 41-3508 that the state prove that a transfer of an inmate from one institution to another was necessary so long as it was within the authority of the Department to make such transfer. The state must prove only that the accused was in the custody of the Department of Correction when he escaped. The records in evidence and the testimony of the Superintendent of Tucker and the other witnesses are sufficient to show that the appellant was transferred from Tucker to the State Hsopital; therefore he was still in the custody of the Department of Correction when he escaped, insofar as Ark. Stat. Ann. § 41-3508 is concerned.
There is another matter which we must mention in connection with this appeal. Appellant moved to dismiss the deputy public defender as his attorney on this appeal. We denied that motion by a Per Curiam order of this court without prejudice to appellant’s filing a supplemental pro se brief on appeal with this court. When afforded the opportunity to do so, appellant failed to address himself to the issues on appeal. He simply filed a “Motion to Dismiss Appointed Counsel and Strike Attorney’s Brief” on December 17, 1976. This hand lettered document was nothing more than a renewal of his previous motion. By filing it, in spite of notice by the clerk of this court on November 24, 1976, that the pro se brief had not been received, appellant has waived the right to file such a brief.
The judgment is affirmed.
We agree. Harris, C.J., and George Rose Smith and Holt, JJ. | [
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SMITH, J.
Appellees were accommodation endorsers of the note of T. J. Patterson to the order of the First National Bank, of Corning, Arkansas. The note was not paid at its maturity, and the bank recovered judgment against all signers thereof, when Patterson requested appellant McCabe to sign a stay bond with him, staying said judgment, and McCabe did so, under the impression that it was the desire of all the judgment debtors that he do so. As a matter of fact, appellees did not desire appellant McCabe to sign the stay bond, and they, themselves, refused to sign it, but on the contrary, stated to the justice of the peace that they did not desire the judgment stayed but desired that an execution be issued at dnce and levied upon the property of Patterson.
Upon the maturity of the bond, an execution issued against both the principal and surety, which was satisfied by appellant McCabe by paying the amount thereof,' and he thereupon, pursuant to Section 4627 of Kirby’s Digest, obtained judgment before the justice of the peace against the judgment debtors for the amount paid by him. In the meantime, Patterson had become insolvent and apparently indifferent as to the future progress of the litigation. An appeal was prayed by the other judgment debtors, and the’cause was heard by the court below upon an agreed statement of facts, which contained substantially the recitals of facts set out above. The court rendered judgment for all the defendants, including Patterson, which was evidently a clerical misprison, as he did not appeal from the judgment of the justice of the peace, and no one appears for him here, and no one appeared for him in the court below. The judgment in his favor must, therefore, be reversed and the judgment of the justice of the peace is declared to be in full force and effect. Did the court properly find for the other defendants? Appellant argues that, when he executed the stay bond for appellees, he became their surety, and, when he was compelled to pay the judgment against them, by reason of having executed the stay bond, they became liable to him for the amount so paid under the provisions of. Section 7924 of Kirby’s Digest, which provides that, when any bond, bill, or note for tbe payment of money, shall not be paid by the principal debtor, but is paid by the surety, the principal debtor shall refund to the surety the amount so paid. But this statute only inures to the benefit of one who has discharged one of the legal obligations mentioned above under which he rested at the time of its discharge. It does not protect the mere volunteer. Appellees were not parties to this stay bond, and did not desire its execution. It was not executed at their request, or for their benefit, and so far as appellees are concerned, appellant must be regarded as a volunteer. Section 325 Brandt on Suretyship (3 Ed.). The sections of Kirby’s Digest cited above, under which appellant prays judgment, do not authorize the rendition of judgment under the facts stated, and the court, therefore, properly refused to render judgment in appellant’s favor. | [
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HART, J.
On August 26, 1916, Robert L. Pettus sued J. A. Rawls and Allie Rawls for the sum of $294.11. He alleged they owed him for merchandise. An itemized account duly verified was filed with the complaint.
The defendant answered denying all the allegations of the complaint and pleading in bar of the action the statute of limitations of three years. The case was tried before a jury on March 21, 1917. At the conclusion of the evidence the court told the jury that the last payment on the account was made in February, 1913, and that the account was barred by the statute of limitations, the suit having been brought in August, 1916. The jury were therefore directed to, return a verdict for the defendant which was accordingly done. From the judgment rendered the plaintiff has appealed.
It is conceded that the last payment was made in February, 1913, and that the account is barred by the statute of limitations unless the following constitutes a payment: On the itemized account under date of Nov-
ember 9, 1909, there appears the folowing charge: “On the Redman account $12.98. ’ ’ On the credit side of the account appears in pencil the following: “By Redman 3-5 1914, $12.98.” Pettus claims that this is a credit on the account. His testimony on the point is as follows:
“Q. All you did was to make a correction in the account by crediting her with this item that was charged to her in 1909 ?
A. Yes, sir.
Q. And no payment was made on the account?
A. Not in money.
Q. You just gave her credit for this amount charged in 1909?
A. I agreed to give her credit.
Q. She was not out anything ?
A. She did not pay anything then. ’ ’
This testimony is not sufficient to constitute proof of a payment of the date of March 5, 1914. To constitute payment the money or other thing must pass from the debtor to the creditor for the purpose of extinguishing the debt and the creditor must receive it for the same purpose. 30 Cyc. 1180; McAbee v. Wiley, 92 Ark. 245.
Tested by this rule it is perfectly plain that there was no payment. The creditor simply made a correction of an item of the account on his books by crediting Ms debtor with an amount with which she had been erroneously charged.
It follows that the judgment must be affirmed. | [
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McCULLOCH, C. J.
This is an appeal from the decree of the chancery court of Greene County setting aside and refusing to confirm a sale of real estate made by a commissioner of the court under a foreclosure decree rendered at a former term. Appellant instituted an action in the chancery court to foreclose a mortgage on the land executed to him by Levi Jones, and on November 9, 1916, the court rendered a final decree in favor of appellant for the recovery of the mortgage debt and a foreclosure of the mortgage. Time was given for the defendant in the decree to pay the debt and on failure to do so the commissioner was directed to sell. Pursuant to the decree the commissioner sold the land at public outcry on December 30, 1916, and appellant bid $959.86, the amount of his debt and interest and the cost of the action and expenses of sale, and being the highest bidder, the property was knocked off to him by the commissioner. At the next term the commissioner’s report of sale came up for confirmation. In the meantime Jones, the original defendant, died, and his widow and children filed exceptions to the report, accompanied with an offer to pay to appellant the amount of his purchase price of the property and interest and costs. A deposit of a sum sufficient to cover these amounts was made with the clerk of the court. The court sustained the exceptions and refused to confirm the sale.
Testimony was adduced at the hearing of the exceptions and it appears that between the date of the de cree and the date of the sale Jones made effort to raise the money to satisfy the decree. He employed an attorney in Paragonld to attend to the matter for him, and the attorney arranged with one of the banks in Paragould to lend sufficient sum to Jones to enable him to discharge the decree. Before that arrangement was perfected Jones became sick and never recovered from the illness. He died the following February. Jones and his family were living at a small town in an adjoining county at the time and the attorney who was employed by him to secure the loan testified at the hearing that he received a letter shortly before the sale, written by Jones, or some one for him, instructing him to bid the land in at the sale, but that he (the attorney) did not feel justified in doing that. The testimony shows that the land is worth at least $2,000, and possibly as much as $2,500.
Jones and his wife executed a conveyance tíf the land to their oldest son so that the latter could convey it to his mother after the redemption from the mortgage, the testimony showing that the conveyance was made solely for the purpose of getting the legal title in the name of the wife in contemplation of the husband’s death. The testimony justifies the conclusion that Jones was too sick to give attention to the business of raising the funds to pay off the mortgage before the date of sale, and that but for his serious illness the arrangement to borrow the money and pay off the mortgage would have been consummated. The advertisement and sale of the property were regular in every respect, and it is not contended that there was any fraud or unfairness on the part of appellant or of the commissioner who conducted the sale.
It is the settled doctrine of this court that mere inadequacy of price does not afford sufficient grounds for withholding confirmation of a judicial sale, and if the ruling of the chancellor in this case can be upheld it must be on the grounds of unavoidable casualty in the severe illness of Jones, which prevented him from mak ing arrangement to pay off the mortgage and stop the sale.
In the case of Colonial & U. S. Mortgage Co. v. Sweet, 65 Ark. 152, Judge Battle announced the rule which has been frequently followed that confirmation of a judicial sale should not be withheld where it appears that “the property sold has brought its market value, and the purchaser and those conducting or controlling it have committed no fraud, unfairness or other wrongful act injurious to the sale, and there is no occurrence, or special circumstance, affording, as in other cases, a proper ground for equitable relief.”
We are of the opinion that the circumstances of this case bring it within the latter part of the rule stated by Judge Battle, or at least that we can not say that the evidence in the case preponderates against the finding of the chancellor and does not afford justification for refusing to confirm the sale. It is reasonably certain that but for the illness of Levi Jones, the mortgagor, the decree would have been discharged by payment before the day of sale. He appears to have diligently set about the task of borrowing the money and employed an attorney to attend to it for him. He was guilty of no negligence in that' respect, nor was his attorney negligent, for he could not consummate the loan which he had negotiated without the presence of his client. The circumstances under which the mortgagor was placed before the time of sale constituted a casualty which was unavoidable, speaking in a reasonable sense, and it would not be equitable to confirm the sale. The decree is therefore, affirmed. | [
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McCULLOCH, C. J.
Appellant instituted separate actions against appellees Gflessner and Biggs, respectively, for the possession of certain lands in Logan County. The two actions were transferred to equity, and by consent consolidated, and tried together, and a final decree was rendered in favor of each of said appellees.
Appellant claimed each of the tract of land in controversy under a deed from the Commissioner of State Lands, the State’s title being based on a sale pursuant to a decree of the chancery court of Logan County for overdue taxes under the act of March 12, 1881. See Acts of 1881, p. 63. Appellees answered, setting forth numerous grounds for an attack upon the validity of the overdue taxes decree, and among other things alleged that they held the lands under patents from the United States, and that the lands were owned by the government and were, therefore, not subject to taxation at the time of the original void assessment or at the time of the institution of the suit in which the sale was decreed.
(1) The decree recites that the cause was heard upon “the record evidence, oral evidence, and patent deeds, papers, and other documentary evidences in said case.” It is conceded that the patents do not show the dates when the titles passed from the government to the entrymen under the original entries, but it is contended that the mere reference in the patents to the original certificates by numbers makes them parts of the patents so as to constitute parts of the record on which the case was tried below, and that we ought to compel the production of the certificates and treat them as parts of the record. It is, however, a mistake to assume that a mere reference to the certificates brought them into the record without having been read to the court and filed, or brought in by bill of exceptions.
(2) There is, therefore, nothing in the record to prove that the title passed out of the government at a time earlier than the date of the respective patents in the case, which was after the institution of the overdue tax suit. The chancery court found that the overdue tax decree was void for want of jurisdiction of the court which rendered it, and that is correct if the lands belonged to the United States Government. The decree in the overdue tax suit is not open to collateral attack merely for correction of errors, but if the court was without jurisdiction because of the fact that the lands in question belonged to the government, the decree was void, and, in that respect, not open to collateral attack. Burcham v. Terry, 55 Ark. 398.
Upon the record presented the decree of the court is correct and the same is, therefore, affirmed. | [
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HART, J.
Charley J. Larkin Svas indicted for the crime of selling intoxicating liquors without license. He was tried before a jury and convicted, his punishment being fixed at a term of one year in the State penitentiary. From the judgment of conviction he has duly prosecuted an appeal to this court. ,
Oscar Hamlin testified that during the fall of 1916, that he saw Charles Larkin at the fair held at Berryville, in the Eastern District of Carroll County, Arkansas; that he did not know Larkin at that time but has since become acquainted with him; that in company with Jim Skelton he went into the defendant, Larkin’s, place, at Berryville during the fair and bought two drinks and a pint of whiskey from him; that Skelton also bought some liquor from the defendant at the time; that after he got the drinks from the defendant he told him that he would give a dollar for what was left in the bottle; that the defendant said, “You loan me a dollar until I see you again;” that the defendant set the whiskey on the counter and that he went in and got it; that he left the dollar with the defendant. James Skelton in all essential respects corroborated the testimony of Hamlin. He said they first bought drinks of whiskey from the defendant and paid for them; that the drinks were poured out in glasses from a quart bottle; that Hamlin offered the defendant a dollar for all that was left in the bottle. The defendant made the remark, “You loan me a dollar;” that Hamlin laid the money down, went up and took the bottle of whiskey and carried it out and that the defendant took up the dollar which Hamlin had laid down.
Carl Spriggs testified that during the same fair he went into the defendant’s place with old man Howell and bought some whiskey from him. He also testified that he told his father-in-law, Elmer Gohn, while driving past the defendant’s place of business that he thought they could get some whiskey there; that his father-in-law gave him a dollar and that he went in and threw down the dollar and Larkin gave him a pint of whiskey, three bananas in a sack, and twenty cents in change, which he took back to where his father-in-law was; that this occurred during the fair in the fall of 1916, at Berryville, Arkansas.
Elmer Gohn testified that they drove up in front of Larkin’s place of business and that Carl Spriggs said to Larkin, “What have you got to drink?” that Larkin replied nothing but water; that Spriggs then said, “I have plenty of that at home. Have you any whiskey?” That Larkin hesitated a little and then said, “If you want me to, I might get you. a drink; ’ ’ that they drove across the street; that he gave Spriggs a dollar; that Spriggs went back to Larkin’s place and came out of it with a pint of whiskey and a little sack with three bananas in it; that they drank the whiskey and it was a poor grade.
Other witnesses for the State also testified that the defendant sold whiskey during the fair at Berryville in the fafi of 1916.
The defendant testified for himself, and denied that he had sold whiskey to Hamlin, to Skelton, to Spriggs or to any one else during the fair at Berryville in the fall of 1916, or at any other time.
Joseph Howell was one of the witnesses who testified that he had bought whiskey from the defendant. The defendant testified that Howell came into 'his place of business with a sore throat and. that he gave him a drink of whiskey; that after Howell drank the whiskey he bought a quarter’s worth of cigars and paid for them but that he did not charge Howell for the whiskey. He further testified that he and Skelton would sometimes order whiskey together; that they would keep the whiskey in a bottle in his place of business; that when Skeíton came in to take a drink out of the bottle, he would buy soda pop from him to drink with the whiskey. He testified that he heard of other persons near his place of business selling whiskey during the fair at Berryville in the fall of 1916, and that he reported them to the officers. Other evidence was introduced by the defendant to corroborate his testimony.
(1) The evidence for the State warranted the verdict of the jury. At the conclusion of the evidence the State was required to elect and elected to stand on the sale made to Oscar Hamlin. The court told the jury that the State elected to try the defendant upon the alleged sale made to Oscar Hamlin and that he must be convicted, if convicted at all, upon this particular sale and not upon any other sale made by him. The court also told the jury that proof of the other alleged sales was admitted to the jury for its consideration in determining whether or not a sale was made to Hamlin and not for any other purpose.
(2) The defendant objected to the testimony of Carl Spriggs and Elmer Gohn and Joseph Howell specifically on the ground that the State had elected to try him at the last term of the court on the sale to Carl Spriggs; that these witnesses had testified on the trial of that case and that their testimony was substantially the same as their testimony in the present case and that the defendant had been acquitted of that charge. The prosecuting attorney admitted this to be true. The court, however, admitted the testimony in question over the objection of the defendant and counsel for the defendant duly saved their exceptions to the ruling of the court. This brings before ns, then, the question of whether or not the court erred in admitting the testimony of Carl Spriggs and the other witnesses just referred to.
It is true that in a prosecution under an indictment charging the illegal'sale of liquors in general terms, where the State elects to rely on a particular sale for conviction, the general rule of the criminal law, prohibiting the proof of similar crimes, applies. There are, however, certain well known exceptions to the general rule. In Ketchum v. State, 125 Ark. 275, evidence of other distinct sales was held admissible to illustrate the character of business conducted by the defendant. In that case the defendant claimed that he had not been engaged in the selling of whiskey since the first day of January, 1916, and that he only operated a family grocery store. Proof was made of other sales after the finding of the indictment. The court expressly told the jury that the defendant could not be convicted of any sales made after the finding of the indictment, but that under the circumstances the testimony was admissible to show that the business of selling liquor was carried on by the defendant at the place where the sale was charged to have been made.
Again, in Turner v. State, 130 Ark. 48, 196 S. W. 477, the defendant was charged with selling intoxicating liquors. The proof was that he had sold cider containing alcohol in such quantities that the persons who drank it be came drunk. In that case the State relied for a conviction upon the sale to a particular person. The court did not admit the sale of cider to other persons in aid of the State’s proof that the defendant was guilty of selling to the particular person but the evidence of the sales to other persons was admitted solely for the purpose of showing that the cider was the same kind of cider that had been sold to the prosecuting witness and that it would produce intoxication upon those who drank it. In short, the testimony of sales to other persons was admitted to show the character of the liquor sold.
Another exception to the general rule is that in order to show a plan or system on the part of the accused to engage unlawfully in the liquor business, evidence of other sales than that for which the accused is prosecuted is admissible. See ease note to 18 A. & E. Ann. Cas., pp. 850 and 851; Stovall v. State (Texas), 97 S. W. 92, and cases cited; Archer v. State, 45 Md. 33, and State v. Peterson (Minn.), 108 N. W. 6. It will be observed that in the sale to Hamlin the defendant requested Hamlin to lend him a dollar and when Hamlin did so he permitted Hamlin to take away all the whiskey that was left in the quart bottle. Spriggs says that when he purchased the pint of whiskey from the defendant that the defendant gave him a little sack with three bananas in it. The defendant himself denied that he made any sales of liquor whatever. With reference to the sale to Howell the defendant stated that Howell had a sore throat and that he gave him a drink of whiskey for it; that just .afterwards Howell purchased a quarter’s worth of cigars from him and paid him for them. So in looking to the record it would appear that the defendant had a certain system as to making sales. The evidence was admitted for the purpose of showing the course of business of the accused with reference to the illegal sale of liquor and the testimony tended to show, that the transaction charged was a sale in accordance with the system pursued by the defendant.
(3) It will be remembered that Hamlin testified that Skelton was with Mm when the sale was made and the defendant Mmself testified that Skelton bad an interest in tbe liquor and would only buy soda water when he came to take a drink of liquor out of the bottle which had been left in the defendant’s place of business. But it is contended by counsel for the defendant that the testimony of the sale to Spriggs should not have been admitted because the defendant had been acquitted at the last term of the court on the charge of making the sale to Spriggs.
In the case of State v. Raymond, 24 Conn. 204, defendant was charged with keeping intoxicating liquors with intent to sell the same in violation of law. William Taylor was allowed to testify that he had purchased of Raymond at his place of business at two different times intoxicating liquors. This was admitted to' show that Raymond kept intoxicating, liquors with the intent to sell the same. The prosecuting attorney admitted that charges were pending in the superior court against Raymond for making these sales to Taylor. In that case the defendant claimed that the sales to Taylor could not be used as evidence to convict him because if they could it would subject Raymond to two or more prosecutions for the same offense. The court held that the evidence was admissible to prove that he had sold to Taylor other liquor of the same kind in his store. The court said that the evidence of the sales to Taylor was admissible, not for the purpose of convicting the defendant of keeping that liquor for sale, but only for the purpose of showing the intent with which he kept the liquor, for the keeping of which he was being prosecuted. So here the court •carefully protected the defendant against conviction of any charge except the one for which he was being prosecuted. Hence we are of the opinion that the court did not err in admitting the testimony of Spriggs and the other witnesses of the sale made to Spriggs.
The assignment of error based upon the giving of certain instructions at the request of the State and refusing others asked by the defendant was disposed of by the principles of law which we have just discussed and announced. Hence it is not necessary to set out these instructions or to discuss them in detail.-.
It is next contended that the court erred in permitting Elmer G-ohn to testify to a transaction and conversation between himself and Carl Spriggs with reference to the purchase of a pint of whiskey because the defendant was not present at the time. The record does not bear counsel out in their contention. Gohn testified that he and Spriggs drove up in front of the defendant’s place of business and that the defendant seemed to hesitate about letting Spriggs have the whiskey then; that they drove across the street; that he, Gohn, gave Spriggs a dollar to purchase whiskey with; that Spriggs went back to the defendant’s place of business and came out with the pint of whiskey and a sack with three bananas in it. So it will be seen that the witness’ testimony referred to matters of which he had personal knowledge and could not in any sense be considered to be hearsay.
(4) Defendant asks for a reversal of the judgment because of certain alleged prejudicial remarks made by the prosecuting attorney in his argument to the jury. The remarks complained of do not appear in the bill of exceptions. It is true that they are set out in the defendant’s motion for a new trial, but this is not sufficient. The language objected to must appear in the bill of exceptions. This is the only authenticated record of matters which occurred at the trial outside of the judgment roll itself. Obviously it would not do to allow the defendant to make up his own assignments of error in his motion for a new trial without there being a record made of them by a bill of exceptions or other appropriate method.
(5) Finally it is insisted that the judgment should be reversed because of the separation and conduct of the jury.
With his motion for a new trial, the defendant filed his own affidavit in which he stated that the sheriff permitted the bailiff in charge of the jury to go home while the jury was deliberating and that while the jury was deliberating the sheriff permitted the jurors to mix and mingle with the crowd. In contradiction of his affidavit, the State proved by the sheriff and by the deputy who assisted him in having charge of the jury that the jurors were not permitted to separate “while deliberating on their verdict. Some of the jurors were permitted to go from the jury room to the toilet in another part of the courthouse on the same floor, but it was shown that the jurors were under the eyes of the sheriff or his deputy while doing this and that they did not speak to any one. Affidavits of two of the jurors were also filed in which they state that the members of the jury were not allowed to mix and mingle with the public and were not allowed to converse with any one from the time they were empaneled until they were discharged.
We have carefully examined the record and find no prejudicial errors in it and the judgment will therefore be affirmed. | [
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McCULLOCH, C. J.
(1) The Arkansas National Bank, a banking corporation engaged in business at Fayetteville, Arkansas, appellant Fulbright being president and managing officer, sued W. L. Stuckey in the chancery court of Washington County, and a decree was rendered in its favor against Stuckey for recovery of a debt due on contract. The Mcllroy Banking Company, another hanking corporation, was made party defendant in the action for the purpose of compelling the latter to foreclose its lien on certain property pledged by Stuckey so that the surplus proceeds could be applied on the debt due from Stuckey to the Arkansas National Bank. Certain credits were allowed to Stuckey over the objections of the bank, and the decree in the bank’s favor was for the balance of the debt after allowing those credits. Both of the parties, Stuckey and the Arkansas National Bank, appealed to this court .and the decree was reversed on the appeal of the bank and the cause was remanded with directions to the chancery court to enter a decree in favor of the bank for an amount in excess of the amount of the original decree of that court. Arkansas National Bank v. Stuckey, 121 Ark. 302. After the rendition of the first decree in the chancery court, and while the case was pending here on appeal, the chancery court rendered a decree in favor of Mcllroy Banking Company against Stuckey for the recovery of the amount of its debt and for foreclosure of the lien on Stuckey’s property. The pledged property was sold in accordance with the decree and the amount of proceeds was credited, leaving a balance of $2,498.82 due Mcllroy Banking Company on the personal decree in its favor against Stuckey. On the remand of the original cause to the chancery court the Arkansas National Bank insisted that the decree rendered in its favor in accordance with the directions of this court should be declared to be prior in point of time and superior to the decree in favor of Mcllroy Banking Company as a lien on Stuckey’s unincumbered property, but the court decided to the contrary and the Arkansas National Bank again appealed to this court, where it was decided that the prior lien of the first decree was not displaced by the remand of the cause with directions to enter another decree for the amount due. 128 Ark. 76. While the second appeal was pending in this court, Mcllroy Banking Company sued out an execution on the decree against Stuckey for the balance due after crediting the proceeds of the pledged property and the sheriff levied the execution on a piece of real estate owned by Stuckey in the City of Fayetteville and sold the same on execution at public outcry to appellant, who was the highest bidder. The sum of $1,800 was the price bid by appellant.
After the property was knocked off to appellant by the selling officer he agreed to execute the next day a note for the purchase price in accordance with the terms of the sale, but when requested by the sheriff to do so the next day, he declined. Appellant based his refusal to make good his bid on the ground that he had made the bid upon faith of representations of an agent of the Mcllroy Banking Company that the execution lien of that bank was a superior one and that he had since been advised that the lien of the Arkansas National Bank under its decree against Stuckey was superior. Appellee as .sheriff tendered a certificate of purchase which was refused by appellant and at the expiration of the statutory term of credit .allowed on such sales, appellee sued to recover the amount of the bid. Appellant defended in the court below on the ground stated above for his refusal to make good his bid, and also on the ground that the sheriff could not maintain an action on the bid without reselling the property in accordance with the statute, which provides that when a bidder at an execution sale “shall refuse to pay the amount bid for any property struck off to him the officer making the sale may again sell such property to the highest bidder, and if any loss shall be occasioned thereby, the officer may recover such loss by motion before any court or justice of the peace.” Kirby’s Digest, § 3283. Appellant also contended that the decree in favor of Mcllroy Banking Company was not for a personal recovery against Stuckey, but only constituted an ascertainment of the amount due for enforcing a lien on 'the pledged property. There was a trial before a jury, but upon the evidence adduced the trial court directed a verdict against appellant and an appeal has been prosecuted from the judgment rendered. The decree upon which the execution was issued reads as follows, (omitting caption and formal recitals):
“It is therefore, by the court ordered, adjudged and decreed that the said Mcllroy Banking Company do have and recover of and from the said W. L. Stuckey, the sum of $7,375.64, interest and all its costs in this action, and that if the judgment, interest and costs be not paid and fully discharged within ten days from its date, the commissioner of this court is hereby ordered and directed to proceed to sell for cash at public sale at the west front door of the courthouse in the City of Fayetteville, Washington County, Arkansas, after advertising said sale for four weeks in a newspaper published in Washington County, Arkansas, all of said stock in the said White Lime Company so pledged and delivered by the said W. L. Stuckey to the said Mcllroy Banking Company and if said stock should not sell for a. sum sufficient to pay said judgment in favor of the said Mcllroy Banking Company, that the said Mcllroy Banking Company have personal judgment against the said W. L. Stuckey for the satisfaction thereof, and if said stock should sell for a sum in excess of the judgment herein rendered in favor of the said Mcllroy Banking Company, interest and cost, then the clerk of this court is ordered to hold the excess subject to the further orders of this court.”
It is contended that this did not constitute a personal decree against Stuckey, but merely ascertained the amount due and directed a sale of pledged property for the purpose of crediting the proceeds on the amount due and reserved for future action the. question of rendering a personal decree. This seems to us a strained construction of the language of the decree, which was obviously intended as a personal one against Stuckey for the recovery of the amount due, with instructions to sell the pledged property and credit the proceeds. It is in the customary form in which such, decrees are rendered and we entertain no donbt that the proper interpretation of the language used is to treat it as a final decree for the recovery of the amount named.
(2-3) The main question of law involved in the case is whether or not the statutory remedy against a purchaser at an execution sale who refuses to comply with his bid is the exclusive remedy at law and completely supersedes the common-law remedy which a selling officer had of maintaining an action against the purchaser for the full amount of his bid. It seems to have been well settled at common law that a selling officer could maintain an action against the purchaser for the amount of the bid upon the latter’s refusal to comply with the terms of the sale. Murfree on Sheriffs, § 897; 25 Am. & Eng. Enc. of Law, p. 838; 17 Cyc., p. 1259; Freeman on Executions, § 313; Armstrong v. Vroman, 11 Minn. 220; Friedly v. Scheets (Pa.), 11 Am. Dec. 691.
It is insisted that the word “may” in the statute should be construed to mean “shall” so as to render the statute mandatory and make it exclusive of all other remedies against a delinquent bidder. Such a construction of the word used is often employed by courts so as to carry out the obvious meaning of the law-makers, but that construction is usually adopted in cases where a new right, as well as a remedy, is created. 2 Lewis ’ Sutherland Statutory Construction, § 720. The learned author just referred to states the rule as follows:
“Where a new remedy is given by statute and there are no negative words or other provisions making it exclusive, it will be deemed to be cumulative only and not to take away prior remedies.”
The statute under consideration merely confers a new remedy, but does not create the right to compel the purchaser to comply with his bid, for that right existed independently of the statute, and we' think that it still exists in its original form. The statutory remedy is cumulative. Dawson v. Miller, Admr., 20 Tex. 171, 70 Am. Dec. 380.
Counsel for appellant insist that the contrary rule with reference to the construction of this statute has been adopted by this court in the following cases: State, use Jones, etc., v. Borden, 15 Ark. 611; Newton v. The State Bank, 14 Ark. 9; State v. Lawson, Sheriff, 14 Ark. 114. We do not construe those decisions as holding that the statute in question is exclusive of the common-law remedy, for the effect of the court’s decisions in those cases was merely to hold that the selling officer was not responsible for the amount of the bid unless it was paid, as the statute prescribed another remedy which he had a right to adopt.
The statute of frauds is pleaded in this case, but it has been very generally held, as shown by the cases cited on the brief of appellee, that the return of the selling officer is sufficient memorandum of the sale to take the transaction out of the operation of the statute of frauds.
(4-5) The next contention of appellant is that the court erred in refusing to permit him to prove at the trial that the agents of Mcllroy Banking Company instructed the sheriff to make the sale under the execution as a lien superior to all others, and that the sale was in fact made under the claim on the part of the agents of Mcllroy Banking Company that the execution in favor of that bank constituted a superior lien. It is argued that since this court has held that the lien of the Arkansas National Bank under its original decree was not displaced by the remand ordered by this court that the assertion of superiority of lien by the Mcllroy Banking Company constituted either a fraud upon appellant as a bidder or that it constituted a mistake under which appellant labored when he made the bid, which justified him in withdrawing his bid upon discovering the error. This argument is unsound for the reason that the rule of caveat emptor applies to execution sales and the mere assertion of superiority of liens by the agents of the Mcllroy Banking Company constituted neither a misrepresentation of fact nor such a mutual mistake of fact as would afford relief to appellant from the bid. No contractual rights arose between appellant and the Mcllroy Banking Company for they dealt at arms length as adversaries in the assertion of superior liens against the property of Stuckey. If both parties to the controversy asserted their respective claims in good faith and appellant purchased the property under the belief that as a matter of law the lien, of the Mcllroy Banking Company was superior, yet the mutual mistake as to the law on the subject can not, under the circumstances of this case, be treated as such a mistake of fact as will relieve appellant from his obligation. There was, in other words, no mistake of fact, but merely a mistake of law, in the view of the matter most favorable to appellant. The offered evidence was therefore, immaterial, and the court was correct in excluding it.
(6) The remaining contention is that the sheriff can not maintain the action because the form of note or bond presented to appellant to sign in furtherance of his bid specified interest at eight per centum per annum. The statute (Kirby’s Digest, § 3281), provides that sales under execution shall be on credit of three months, and that the purchaser must give bond with security “for the payment of the sale money, bearing interest from date.” This means the legal rate of interest, or six per centum per annum, and the sheriff had no right to demand a note bearing interest at the rate of eight per centum. Appellant did not, however, base his refusal to sign the note upon that ground, and there is no indication that the sheriff intended to violate the statute, but the inclusion of interest at the rate of eight per centum was a mistake which did not avoid the sale, nor prevent the sheriff from enforcing the remedy to compel appellant to comply with his bid.
The judgment is correct upon the undisputed testimony in the case, and the same is affirmed.
Humphreys, J., not participating. | [
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HUMPHREYS, J.
Appellant, who is a civil engineer, brought suit in the circuit court for the Jonesboro District of Craighead County against appellees on a bond to recover a fee of $5,000 for making a survey preliminary to the attempted organization of Big Creek Drainage District in Craighead County.
Appellees denied liability upon the bond and pleaded res adjudicaba.
The cause was heard upon the complaint, answer, the original petition filed in the matter of the attempted formation of Big Creek Drainage District, and all the orders and judgments of the circuit court rendered in connection with said district. The complaint was dismissed and the cause is here on appeal.
Big Creek Drainage District was attempted to be organized by appellees under Act 279 of the General Assembly of the State of Arkansas for the year 1909, as amended by Act No. 221 of the public acts of 1911. All the necessary steps preliminary to the. organization of said district, as provided by said act, were complied with. In the course of the proceedings, the required statutory bond was filed by these appellees. Appellant was duly appointed engineer to make the preliminary survey and signed and filed his report in the manner provided by law. Upon hearing, the cause was dismissed for the want of jurisdiction, on the 1st day of July, 1912. This order was not entered. Appellant filed a motion to reinstate the cause for the purpose of adjudicating the costs of the preliminary survey. He also moved for a nunc pro tunc order to enter the judgment rendered by the court dismissing the cause for the want of jurisdiction. The above motions were presented to the court for consideration on September 25,1915, and the following judgment was rendered on that date:
“It is therefore by the court considered, ordered and adjudged that this cause be dismissed for want of jurisdiction, and that as this order was made and rendered on the 1st day of July, 1912, that same be entered now for then, and the motion to reinstate and tax costs to pay the engineer’s claim for fees is on that account denied and dismissed.”
The bond executed by appellees was a statutory bond conditioned for the payment of the costs and expenses of the survey in the event the proposed district should not be established.
This court has held that it was proper to present the claim for the costs and expenses of a preliminary survey in the original proceeding for the formation of the district. Burton v. Chicago Mill & Lumber Co., 106 Ark. 296.
Appellant filed a motion to redocket the original case for this purpose and to mmc pro tunc the original decree dismissing the proceeding for the want of jurisdiction. The court entered the original decree now for then and for the reason that the original proceeding was dismissed for the want of jurisdiction the court denied and dismissed the motion to reinstate and tax costs to pay the original claim for fees. It was appellant’s duty to appeal from this order for it was a final adjudication of his claim.
The plea of res adjudicada to the action of appellant was a good and sufficient defense.
The judgment is affirmed. | [
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HART, J.
This was an a.ction brought by J. R. Batte against the St. Louis Southwestern Railway Company for damages growing out of an injury to his eye inflicted by a cinder from the locomotive of one of its passenger trains on which the plaintiff was a passenger.
Some time in September, 1916, J. B. Batte and his son boarded one of the defendant’s passenger trains at Spirit Lake, Arkansas, for Texarkána, Arkansas. The train was going west. They paid their fares and took a seat in the smoking car facing the way the train was going. The plaintiff sat next to the aisle and his son next to the wall on his left. The window at the end of their seat was closed but the one at the end of the seat in front of them was up. The windows in the. car were not screened. Just before they got to Texarkana, the plaintiff felt something blow in his eye. It struck pretty hard and caused him severe pain. A physician was called to examine his eye and removed therefrom a foreign substance imbedded in the ball of the eye immediately over the sight, about the size of a small pin head. It looked like a coal cinder. The eye had the appearance around the place where the cinder was found imbedded in it of having been burnt as from the heat of the cinder. The plaintiff’s eye was badly damaged from the cinder striking it and becoming imbedded in it.
It was shown on the part of the railroad company that its engines burned coal in making steam; that the draught of the engine blows out coal cinders; that there is a screen or net work or wire from the exhausts for the purpose of preventing cinders from being blown out; that the meshes of this net are some smaller than a lead pencil; that the screens are to prevent the throwing out of cinders and fire; that if the meshes of these screens were small enough to prevent any cinders from being thrown out that there would not be draught enough in the engine to make steam; that all of the defendant’s passenger engines burn coal and the engines have nets in the smoke stacks to keep them from throwing sparks.
It was also shown on the part of the plaintiff that the windows of the car could have been screened with little cost without in any way interfering with the service of the cars; that the screens could have been put in on the outside of the windows without interfering in the least with raising them.
At the conclusion of the evidence the court instructed a verdict for the defendant company, and from the judgment rendered the plaintiff has appealed. .
The Legislature of 1913 passed an act requiring railway companies operating passenger trains in this State to keep their cars screened at certain times. Acts of 1913, page 152. This act was repealed by the Legislature of 1915. Acts of 1915, Act 243, p. 903.
The injury to the plaintiff was received in September, 1916, so that it will be seen the railroad company was not in violation of any statute for failing to place screens on the windows of its passenger coaches.
(1) It was the' contention of the plaintiff that the defendant company was guilty of negligence in failing to screen its ear windows to protect its passengers from injuries like the one inflicted in this case. We do not agree with 'Counsel in this contention. It was the duty of the defendant company to keep its engines in good repair and see that they were supplied with the best known appliances to prevent the escape of cinders. It was also its duty to see that its engines were properly operated and that-such was the case at the time the injury occurred. Missouri K. & T. Ry. Co. v. Orton (Kan.), 73 Pac. 63.
(2) The undisputed evidence in the present case shows that the company was not negligent in the construction of the nets in the smoke stack of its locomotive. The undisputed evidence, however, does not acquit the company of negligence in the management and operation of its engine or in inspecting and keeping in repair the network in the smoke stack. Section 6773 of Kirby’s Digest provides that all railroads operating in whole or in part in this State shall be responsible for all damages caused by the running of trains in this State. The railroad did not go far enough in this case to overcome by the undisputed evidence the prima facie case made out in favor of the plaintiff under this statute. It should not only have shown that the engine of the train was supplied with the best known appliances to prevent the escape of cinders, but it should also have shown that the appliances had been duly inspected and were in good repair at the time the plaintiff received his injuries. It should also have been shown that its engine was being properly and skillfully managed and operated at' the time the injury occurred.
It is true the evidence shows that cinders of the size of the one in question could come through screens of the most approved pattern in use; but it is equally true that many more such cinders would escape if the net or screen was torn or i'f the engine was not operated in a skillful manner. The burden being upon the defendant to .overcome the prima facie case for the plaintiff under the statute, it follows that the court erred in directing a verdict for the defendant. For that error the judgment will be reversed and the cause remanded for a new trial.
Smith, J., dissents. | [
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WOOD, J.
This cause was tried in a justice of the peace court on September 6, 1916. Plaintiff gave notice of appeal, and an affidavit for appeal was filed on Sep tember 12, 1916. The circuit court convened on September 18, 1916. The transcript of the justice’s docket relating to the cause was filed on March 8, 1917. The defendant moved the court to dismiss .the appeal, which motion was granted, and from a judgment dismissing the appeal the cause is here.
The statute provides that on or before the first day of the circuit court next after the appeal shall have been allowed the justice shall file in the office of the clerk of such court a transcript of all the entries made in his docket relating to the cause, together with all the process and all the papers relating to such suit. Kirby’s Digest, § 4670.
It was the duty of the plaintiff below to see that his appeal was perfected on or before the first day of the circuit court next after the time of the filing of his affidavit, which, together with the notice and prayer for appeal, constituted the steps that were necessary for him to take in order' to have his appeal allowed. While the statute makes it the duty of the justice to file the transcript, it is nevertheless the duty of the party taking the appeal to see that this is done. Hughes v. Wheat, 32 Ark. 292; Wilson v. Stark, 48 Ark. 73: Carden v. Bailey, 87 Ark. 230.
Where the transcript is not lodged on or before the first day of the term of the circuit court next after the appeal is allowed and no excuse for the delay is shown, the circuit court may dismiss the appeal or affirm the judgment for the lack of proper diligence on the part of the appellant in prosecuting his appeal. Carden v. Bailey, supra; Bates v. Mitchell, 96 Ark. 555; Hart v. Lequieu, 110 Ark. 284.
The judgment is, therefore, correct, and it is affirmed. | [
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PER CURIAM.
Appellant, Avery Darnell Williams, by and through his counsel, Clint Miller, has filed the instant motion for rule on clerk. The State has not responded to the motion. Our clerk refused to accept the record because the order granting the extension of time in which Appellant could file the record was not timely entered.
Appellant was convicted in Pulaski County Circuit Court of theft of property and of being a habitual offender. A judgment and commitment order was entered on January 28, 2009, and a timely notice of appeal was filed on February 26, 2009. On May 20, 2009, Appellant filed a timely motion, pursuant to Ark. R.App. P. Crim. 4(c), requesting an extension of time to file the record on appeal. The circuit court signed an order granting the extension on May 27, 2009, finding that good cause had been shown for the extension and that the State had been notified and did not object. The order, however, was not entered of record until May 28, 2009, ninety-one days after the record was due to be filed.
Pursuant to Rule 4(c), the circuit court may order an extension of time to file the record if such order is entered before expiration of the ninety-day time period provided for in Ark. R.App. P. Crim. 4(b). Thus, in the instant case, the May 28 order granting the extension was untimely. Counsel for Appellant accepts fault for the untimely filing of the order. We view this matter under Rule 4 as we do a violation of Ark. R.App. P. Civ. 5. As counsel has accepted fault, we grant the motion for rule on clerk. See McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). A copy of this opinion will be forwarded to the Arkansas Supreme Court Committee on Professional Conduct.
Motion granted. | [
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Hon. Harris Flanagin, Special Judge,
delivered the opinion of the court.
This was an action of ejectment by Bettison vs. Budd, for lots one, two, three and four, in block twelve, east of the Q,uapaw line, in the city of Liltle Rock. Judgment was given for the defendant, and it was brought to this court, and reversed. See Bettison vs. Budd, 15 Ark. Rep. 546.
Afterwards, in July, 1857, the case went to a jury, who found a verdict for the plaintiff for lot four, (only,) on which there was judgment. The plaintiff brought error.
The case went to trial on the pleas of not guilty, ten years limitation. The plaintiff, at the trial, introduced a deed from John J. Budd to the plaintiff, dated June 23d, 1840, for the lots one, two and three, which deed was regular on its face, acknowledged and recorded. The plaintiff, also, read in evidence a judgment of the Circuit Court of Pulaski county, against John J. Budd et al., and a sheriff’s deed, dated in 1840, for lots two and four, purporting to be made by authority of a levy and sale of the above lots, on execution founded upon the above judgment. The deed was acknowledged and recorded. The plaintiff proved the possession of the defendant at the commencement of this suit, and a demand for the lots before suit brought.
The defendant then read in evidence three deeds from the Auditor of the State, for lots one, two and three, in the usual form, dated in February, 1847, and purporting to be founded on a forfeiture for the non-payment of taxes for the year 1844. He then proved that he had possession since the spring of 1837. That one Frail had possession before that time — that when the plaintiff left the State in 1841, he left Merrick agent to pay the taxes on his lands, but said nothing about his lots — that defendant had paid taxes on one, two and three from 1847 to 1854.
The plaintiff by way of rebutting the testimony of the defendant, and to destroy the effect of said deed, offered in evidence, from the record of the sheriff’s advertisement of lands for the non-payment of taxes in 1844, and the record of the sale of land for the non-payment of taxes for that year, this extract: “ Owners unknown, all of block 12, E. Q. line, in Little Rock, “year 1844, State tax 1 50, county tax 1 50, whole amount “ including costs 4 03, to the State 1, 2, 3, 6 and 12, balance “ paid before sale.”
The plaintiff then offered in evidence two books purporting to be together the assessment list of Pulaski county, for the year 1844, and one of them had ón it a certificate, that it was the original assesment list of Pulaski county, signed by the then assessor and collector; also, there was on it a receipt, signed by said assessor and collector, for the tax book of that year. He also proved that one Herndon Haralson was clerk of Pulaski county, in 1844, and was dead at the time of the trial: That said books were found in tbe office in the fall of 1844, and had ever since remained' there, and had been constantly recognized as the original assessment list for that year. The plaintiff proposed to prove by said books, that the lots one, two and three, were not assessed in that year, in the name of “ owners unknown,” or “unknown owners.” The defendant objected to their introduction because they were not marked filed, and because it did not appear that they were filed on or before the time required by law. The objection was sustained, and the plaintiff excepted.
The exclusion of these books is assigned for error: Thereby he was prevented from showing, that the land was not assessed in the name of “unknown owners.”
The statute in force at the time of the foregoing assessment, required that the assessor should file his original assessment list, on or before the 25th day of March, in each year, with the clerk of the County Court. English's Digest 874. The filing of a paper does not consist of the marking put on it by the clerk, but in placing it as a permanent record in the office, or case where it belongs. The State vs. Garvin, 7 Eng. Rep. 64; Thompson & Boyer vs. Foster’s admr., 1 Eng. 210; Keith vs. Berkley & Wood, 2 Eng. 469. There is sufficient and satisfactory evidence that the books offered were the assesment list of Pulaski county for the year 1844. As to the t,ime of filing — it was there in the fall of 1844, and it was turned over to the successor of the clerk who received it, as such list. The clerk who received it is dead, so it cannot be proved when it was received. The sheriff filed it in the proper office, and since the date of filing does not appear, it will be presumed that it was filed within the time prescribed by law. Maury Ex. vs. Cooper Ex., 3 J. J. Marshall 225; Wheelock vs. Hale, 3 N. Hamp. Rep. 310; Wilson vs. Gale, 4 Wendell 623.
The only remaining question is, whether the facts proposed to be proven were material and relevant.
Under our laws,..tax titles are to be upheld, when held in conformity with law, and when they can be sustained by any reasonable intendment. Hogan vs. Brashears, 8 English 230. No exception can be taken to a deed, but such as shall apply to the real merits of the case, and consistent with a fair and liberal interpretation of the intention of the General Assembly. Digest sec. 131, Title Revenue. “Trivial non-conformity” of the proceedings of a sale, with the law, which in no way touch the merits of the case, would not invalidate a sale. Patrick vs. Davis, 15 Ark. 370. On the other hand, the proceeding to sell land for taxes is by a special authority, and there must be a substantial compliance with the law, or the sale cannot be sustained; and while the deed of the auditor is prima facie evidence of the regularity of the proceedings, it may be attacked by proof of fatal irregularities. Merrick vs. Fenno and Hutt, 15 Ark. 331; Patrick vs. Davis, ib. 370; Hogan vs. Brashears, 8 English 230.
An assessment is essential as the first step in a proceeding to sell land for taxes. It has been said to fill the place of a judgment in an execution sale; if there is no assessment, then there is no charge upon the land. It is essential that a levy be recited to make a valid deed by the collector. Pillow vs. Roberts, 7 English 822.
Our laws evidently contemplate that, while an assessment and sale in a wrong name shall not invalidate the sale, the assessment and sale shall be in the same name. Sec. 11 of our revenue law provides, that the assessor shall make an alphabetical list of the names of property holders. Sec. 13, the assessor shall attach to each name a description of his property. Sec. 43, the clerk shall make two tax books. Sec. 95, English’s Digest, the assessor shall make a list of lands and town lots, setting forth the owner’s names as the same are described in the tax book. Sec. 96, a copy of the list shall be advertised. Sec. 97, a copy of the list shall be recorded.
In every step it is evidently intended that the owner’s name shall be the same in the assessment, as in the advertisement and sale.
This is not a mere technicality, for if the assessment fills the place of a judgment, and the tax book the execution, then, assuredly, a vital variance between the two, as to the person taxed, -would be fatal. .
We therefore hold that the assessment, advertisement, and sale, must be in the same name. Shemmin vs. Inman, 26 Maine Rep. 232; and Wait vs. Gilmore, 2 Yeats 330.
Let the judgment be reversed.
Mr. Chief Justice English did not sit in this case. | [
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Mr. Justice Compton
delivered the opinion of the Court.
The appellant was convicted in the Pulaski Circuit Court upon an indictment for selling spirituous liquors on Sunday, contrary to the statute.
The evidence shows that the liquors were sold by a clerk, employed by the appellant in a retail establishment in the city of Little Rock.
The first objection relied on is, that the corporation court of Little Rock has exclusive jurisdiction of the offence. That this objection is not maintainable, has been well settled by the previous adjudications of this court. In Rector vs. The State, 1 Eng. 187, and Durr vs. Howard, Ib. 461, it was held that so much of the act of the 21st February, 1840, as confers on the city justices of Little Rock, as a corporation court, jurisdiction to hear and determine certain crimes, among which offences of the character charged against the appellant are embraced, was unconstitutional and void. The same principle was decided in Eason vs. The State, 6 Eng. 481, and recognized in Rutzell vs. The State, 15 Ark. 67.
There is nothing in the argument now pressed upon the court, which causes us to doubt the soundness of these decisions.
The next objection taken is based upon the refusal of the court to give the jury certain instructions moved by the appellant. The instructions were, in substance, 1st. That if the jury believed from the evidence that the sale was made within the corporate limits of the city of Little Rock, and that the appellant, at the time of the sale, had a license from the corporate authorities of the city to retail spirituous liquors, they must find him not guilty. 2d. That unless the jury believed the appellant “ personally sold the liquors,” they should acquit.
The argument is, that the first instruction should have been given, because section 7 of the act of February, 1838, gives the city authorities exclusive power to license the retail of liquors wdthin the corporate limits of the city. Now, it was certainly not the design of the Legislature, by the act of 1838, to exempt the inhabitants of the city of Little Rock from the operation of a general law of the State prohibiting the desecration of the Sabbath. See McCuen vs. The State (No. 4), 19 Ark. 636.
The second instruction was properly refused. It was calculated to mislead the jury by making the impression that the employer could not.be held responsible, under anjr circumstances, if the sale was made by the clerk. The law is, that even though the employer did not make the sale himself, yet if he expressly authorized or co-operated in the illegal act of the clerk, they were both guilty.
Upon an examination of the testimony, as set out in the bill of exceptions, the court is of opinion there is no total want of evidence to support the verdict.
The judgment must be affirmed. | [
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Mr. Justice Compton
delivered the opinion of the Court.
In an action of ejectment, Devaney & wdfe recovered of Galloway a tract of land, known as the S. W. ¿ sec. 29, T. 2 N., R. 11 W., containing 160 acres.
The case was tried in the court below upon an agreed statement of facts, from which it appears that, on the 7th of May, 1842, Hardy Robinson, who was the father of Mrs. Devaney, by deed of that date, duly executed and recorded, conveyed to her the land in controversy, reserving to himself a life estate; and that on the 25th of March, 1853, he made his will, by which, among other legacies, he bequeathed as follows:
“ Item 5. I will and bequeath unto my son, Henry Robinson, and my daughter, Nancy, (now Mrs. Devaney), in equal portions, the proceeds of eighty acres of land, lying about two miles north-east from Little Rock, known as the Cypress tract, the proceeds to be paid to them after the said land is sold, and the money collected, as hereinafter indicated. * * * Item 7th% I will and bequeath to my beloved wife, Mary Frances, absolutely in her own right, in fee simple forever, the plantation on which I now reside, known as Mount Gallant, embracing 640 acres of land more or less, and any and all other real estate which I may own, except the 80 acre Cypress tract above described.”
It also appears that Robinson died soon after making his will, and that Galloway intermarried with his widow.
Devaney & wife claim title to the premisfes under the deed of the 7th of May, 1842, and Galloway under the 7th item of the will above quoted, insisting that the former instrument was in legal effect but a will, and was consequently revoked by the latter.
The conveyance to Mrs. Devaney was not copied into the bill of exceptions, and we have nothing before us from which to determine its character and legal effect, except the agreed statement, that it was the deed of Hardy Robinson, duly executed and recorded, by which he conveyed the land to Mrs. Devaney, reserving to himself a life estate in it. Taking this to be true, the proposition that the mere reservation of a life estate in Robinson necessarily made the conveyance testamentary in its character, is not maintainable. On the contrary, under our system of conveyancing, the deed vested Mrs. Devaney with a present interest in the land t© be enjoyed in futuro. The authorities relied on by the counsel for Galloway are cases where an animus testandi appeared, either from the face of the instrument itself, or from circumstances attending its execution. There being no such evidence in this case, there is nothing to warrant the conclusion that the conveyance to Mrs. Devaney was intended to be testamentary, and we therefore hold it strictly a deed, which Robinson had not the power to revoke, even if he had desired to do so.
The Court deem it unnecessary to notice the legal proposition that Mrs. Devaney was compelled to elect whether she would hold the land conveyed by the deed, or take the proceeds of the sale of that devised by the will, further than to remark that no such question arises upon the record; because it does not appear that Robinson ever attempted to devise by his will the same land which he had previously conveyed to Mrs. Devaney by the deed of 7th of May,' 1842.
Seeing no error in the record, the judgment must be affirmed with costs. | [
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Mr. Justice B’AiRcntLD
delivered the opinion of the court.
While the appellants, six in number, were proceeding to make distribution of the effects of James McClelland, deceased, among themselves as the only heirs, the appellee appeared among them, setting up by petition to the Probate Court of Union county, then engaged in the distribution, that, in 1852 he married Elizabeth McClelland, a daughter and heir of James McClelland, deceased, by her had a son named James Andrew Pearce, that his wife died in January, 1856, leaving her son her heir, and that the son died in February, 1856, that no part of her father’s estate ever came to the hands of the petitioner’s wife or son. James McClelland, deceased, died, about or before 1854. Claiming then as heir of his son, the petitioner asked that the pending proceedings for the disposition of the estate might be stayed or that he be declared to be entitled to one-seventh part thereof.
To this petition the appellants demurred, and the Probate Court sustained the demurrer, and the petitioner appealed to the Circuit Court.
The Circuit Court reversed the judgment of the Probate Court, and setting the case for trial anew, gave leave to the appellants to answer the petition, but they refused to do so, ■preferring to rest upon their demurrer.
The Circuit Court further proceeded a.s follows:
“ It is considered by the court that petitioner be, and he is entitled to one heir’s part, that is, one-seventh part of the said estate of the said James McClelland, deceased, as heir to James Andrew Pearce Lowry. But this court not being advised as to the portion which would be coming to the said petitioner— whereupon, to save costs, etc., the defendants not admitting that petitioner is legally entitled to recover any part of said estate, but denying the same, but admit that if said petitioner be entitled to recover, that said estate amounts to the sum of four thousand nine hundred dollars, and his portion, if entitled to recover, is seven hundred dollars as his part of such estate, as said heir.”
The court then gave judgment in favor of the appellee against the appellants for seven hundred dollars.
The Circuit Court was right in reversing the judgment of the -Probate Court, and in its declaration of the interest of the appellee in the estate of James McClelland, deceased. And, although it might have been better to have proceeded as it began, to have one-seventh part of the estate passed over to the appellee by some legal and usual course of distribution; after the concession, and we may say request of the appellants, that the judgment should be personal against them, and for the amount of seven hundred dollars, and as no contrary intimation on their part has been made in this court, we affirm the judgment, with the belief that substantial, though informal justice will thereby be done. | [
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Mr. Justice Fairchild
delivered the opinion of the court.
More than four days after verdict for the defendant, the plaintiffs below, who are the plaintiffs in error, filed a motion for ,a new trial, which was stricken from the files on motion of the. defendant, and because the court considered that under the 123d section of chapter 126 of English’s Digest, it had no discretion to entertain the motion.
If the circuit court had simply refused, in the exercise of its discretion, to allow the motion for anew trial to remain on file, because filed too late, this court wmuld be slow to interfere wfith the discretion exercised; but when, as shown by the bill of exceptions, the action of the court was not discretionary, but in obedience to a-statute it considered imperative, this court may if it do not- consider the statute imperative, direct the court to use, but not how to use its discretion.
And it \yould seem better that statutory regulations concerning the despatch of business in court, should be considered advisory merely, and not destructive of the powe,r of courts to make them conformable to the unforeseen contingencies of legal practice: Courts of original jurisdiction, better than superior tribunals or foreign bodies, can adapt general rules to the exigencies of current business. A golden mean in the administration of justice is found, when rules of practice can cause it to be dealt out with certainty and despatch, but with due regard to accidents that befall, and frailties that beset the men that are the agents of such administration.
From considerations of this sort, and from the happily plastic nature of the practice in courts of common law and equity, a distinction has been made between directory and imperative statutes, which has been fully recognized by this court.
The 3rd section of chapter 73 of English’s Digest is that the plaintiff, in a writ of garnishment, shall on or before the return day of the writ, file the allegations and interrogatories, upon which he may be desirous of obtaining the answer of the garnishee, yet this court held that the “language of the statute, though imperative in its terms in respect to the filing of the allegations and interrogatories, and also of the answer of the garnishee, must of necessity confer upon the court a sound legal discretion over the whole matter; and to enable it upon good cause shown by either party, to extend the time within such limits as not materially to affect the legal rights of either.” Lawrence vs. Sturdevant, 5 Eng. 133.
In that case time was given to the plaintiff to file allegations and interrogatories upon a subsequent day.
The 27th section of the 17th chapter, English’s Digest, requires the answers to the allegations and interrogatories to be filed on or before the third day of the next term after the allegations and interrogatories of the plaintiff are filed; and the 28th section directs that in default of answer, if judgment should be entered against the defendant, the court shall enter judgment against the garnishee for the amount of the plaintiff’s debt, and damages and costs, upon which the court remarked that, “notwithstanding the pcr-emptory language of the statute in requiring judgment to be entered against the garnishee, in default of an answer within the time prescribed, and although there are no provisions of the statute upon that subject, authorizing the court to grant further time for answering, or to set aside a judgment "'taken for want of an .answer, yet we do not understand that the exercise of the usual discretion of the courts upon that subject, for the attainment of justice upon proper causes she wn, is either abolished, abridged or impaired. It is a necessary and inherent power pertaining to the courts in the administration of justice, that the very end and object of their institution may not be defeated, A different construction would so fetter and paralyze the power of the courts that they must frequently do wrong, from mere inability to do right, Wilson vs. Phillips, 5 Ark. 184; See also Perkins vs. Reagan, 14 Ark. 48.
We think the court below would not have assumed too much power, had it exercised its discretion, in determining whether the motion for a new trial should have remained upon the files.
The action is debt upon a promissory note of the defendant in error and others, to the plaintiffs in error.
On the trial, the defendant'offered to read the deposition of Thomas P. Whitt, to which the plaintiffs objected, because it consisted of what the witness had heard one Hardy say about the satisfaction of the claim sued on, when it was not proven that Hardy was'the agent of the plaintiff's, and when the deposition did show that Hardy was the agent of the defendant.
The court overruled the objection and permitted the deposition to be read to the jury.
Whitt deposed that Wm. D. Lee and the defendant were securities for A. Strasser to the plaintiffs, and to Garthwaite, Griffin & Co., both of New Orleans, on two notes, which were placed in the hands of Hardy & Carleton, attorneys; that Hardy told him that Hardy and Carleton had received from Strasser good claims enough to pay both notes; and that, again, Hardy told him, that the notes were paid. The witness knew that Hardy & Carleton had receipted Strasser for the claims taken from him. from having had the receipt in his possession, and it had in it claims on good and solvent men, to an amount sufficient to pay both notes.
The witness gave the reason for his conversations with Hardy, which it is not material to repeat.
What Hardy might say about the payment of the note to the plaintiffs was not evidence, if he had been their agent to receive payment, for it would only have been the statement of one who ought himself to be a sworn witness before his statements would be evidence. Whitt might have reason to be satisfied of their truth, but -without the sanction of a judicial oath, and opportunity to cross-examine, they cannot be taken as true against the plaintiffs unless they had been part of a transaction in which Hardy had acted as their agent.
But when it was not shown by the deposition, nor by other testimony, that Hardy was the agent of the plaintiffs, when he made the alleged statement to Whitt, the illegality of the matter in the deposition as evidence is more striking.
The court should not have permitted the deposition to be evidence before the jury.
The note sued upon was signed A. Stasser, William V. Tatum, security, W. D. Lee, security.
The defendant introduced W. D. Lee, one of the signers of the note in suit, as a witness, after having executed and delivered to him a release as follows:
“ Know alljnen by these presents: that I, William Y. Tatum, do hereby acquit, release, and forever discharge W. D. Lee, from, of and against all and every such claim or demand of any and every sort, nature, or description, of, for, and in respect of a suit now in court pending, wherein J. M.- Gould & Co., are plaintiffs, and I, William V. Tatum, defendant, and the note on which said suit is founded, and in plaintiffs’ declaration men tioned. And from and against all recourse on the said Wm. D. Lee, or action over against him for any amount whatever of debt, damages, interest or costs, or any other thing appertaining to the said suit, or the said note, or either or any part thereof. In testimony whereof, I have hereunto set my hand and seal this 20th day of October, A. D. 1857.
Wm. Y. TATUM, (Seal.)
The plaintiffs objected to Lee being allowed to testify, but the court disallowed the objection, and Lee was sworn, and testified on the trial.
The release is very exact and very full, and would have answered its purpose well, in making Lee a competent witness, had it been signed by the partners composing the firm of J. M. Gould & Co. But William V. Tatum’s name to it, though it released Lee from contribution to Tatum, could not remove the disqualification which the law attaches to Lee’s interest to defeat the suit, to avoid his own direct liability to the plaintiffs on the note. Had judgment been obtained on the note, till paid the plaintiffs could have sued Lee upon it. He was then interested so to testify as to discharge his impending obligation to the plaintiffs, and from that Tatum’s release did not discharge him. He was an incompetent witness for Tatum. The court erred in allowing him to testify.
The defendant offered to read in evidence the following endorsement upon the note sued on, in the hand writing of Mr. Hardy, “Rec’d on this note seventy-five dollars paid John M. Gould in New Orleans, April, 9th 1852.”
The indorsement was not competent to affect the plaintiffs till Hardy’s authority to make it had been proven. This was not done. If he had been their attorney, 'the money was ncit paid to him, but to one of the plaintiffs in a place foreign to Eldorado, the place of business and residence of Hardjq and if Hardy knew the fact of payment, his endorsement of it cannot be taken to prove, or tend to prove the fact. And it is shown that the plaintiffs never had possession of the note in suit. The endorsement was read to the jury against the objection of the plaintiffs, which should not have been permitted.
At the time of trial another suit was pending against Tatum, brought by Garthwaite, Griffin & Co., and the defendant offered to read the declaration filed in it as evidence; to which the plaintiffs objected.
Why this should have been introduced could never have been supposed, but for the explanation in the bill of exceptions, that it was to prove the statement of Whitt as to the amount of the two notes he had spoken of, the note in suit and one to Garthwaite, Griffin & Co.
If Garthwaite, Griffin & Co., all or any of its members, had .sworn before a competent court, on a matter in controversy, what is contained in their declaration, it would not have affected the plaintiffs, they not being parties to the controversy. But to adduce as evidence against Gould & Co. unsworn declarations, about a matter not pertaining to the controversy between them and Tatum, and as the written statements of parties who had never made them, and which are not of a kind to charge a party with the truth of their contents, and to support a witness whose testimony was entirely incompetent, was erroneous.
The plaintiffs offered to prove that they had never sanctioned the receiving of the collateral security taken by Hardy & Carleton, and that when informed thereof, they expressly disapproved of the arrangement. The bill of exceptions shows that they offered to do this by their own saying, which we do not understand. The fact could have been shown by legal testimony, by the witness Carleton, or by any other witness that knew the fact, or by correspondence with the makers of the note, or with Hardy & Carleton.
If by the usual course of business, by verbal or written communication, the disavowal of the plaintiffs was made, it ought to have been received as evidence. The evidence was objected to by the defendant, and the objection was sustained.
The pleadings have not been detailed, for under no state of pleading could the deposition of Whitt, the endorsement on the note, and the declaration of Garthwaite, Griffin & Co. have been competent testimony, nor Lee have been a competent witness, unless upon immaterial issues that would have been fruitless to the defendant below, though decided in his favor.
The judgment of the Circuit Court of Union county in this case rendered is reversed, with instructions to set the case for trial, and to proceed therein according to the ruling herein made, and according to law. | [
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Mr. Justice Compton
delivered the opinion of the Court.
This was a bill brought by Morrison against Peay, as the Receiver of the assets of the Real Estate Bank, to enforce the specific performance of a contract for the lease of certain premises known as the u Buckner lands,” situate in Clark county, and for quiet enjoyment, etc.
Peay answered, denying, on information, the contract set up in the bill, insisted that it was not in writing, and relied specially on the statute of frauds. He also made his answer a cross-bill, in which he charged thatMorrison entered into the possession of the premises as tenant of the Bank from year to year, and so continued in possession from the 1st January, 1853, to the time of filing the bill; and prayed a decree against him for the possession of the premises, with such back rents for the use and occupancy thereof as might be deemed reasonable.
The Chancellor denied the relief sought by the original bill, and decreed against Mon-ison on the cross-bill. From which decree he appeals to this Court.
That there was a contract for the lease of the premises, entered into between the Bank, acting through the trustees under the deed of assignment, and Morrison, is sufficiently shown. The terms of the contract were these: The lands being much trespassed on — being about to grow up in briars and thickets, and the fences decaying, it was agreed that Morrison should take possession of the lands on the 1st January, 1853, and have the use thereof until the 1st October, 1801; as a consideration for which, he was to put and keep a good fence around all the open land, and cultivate the same — was to build upon the premises four good negro houses, pay the yearly state and county taxes upon all the lands, and surrender peaceable possession thereof, in good order and condition, to the trustees of the bank, or their successors, on said 1st day of October, 1861.
This contract was not reduced to writing, nor was there a memorandum of it in writing, signed by the trustees or any person authorized to do so for them. It was. therefore within the statute of frauds, (Gould's Dig. chap. 74, see. 1,) and it is insisted for the appellee that there was no sufficient part performance to take the contract out of the statute — and that if there was, the bargain was unconscionable, and the enforcement of it would be inequitable under all the circumstances.
What is to be deemed a part performance, in the sense of a court of equity, is now well settled. In Lester vs. Foxcroft, (1 White & Tudor's Leading Cases in Equity, Marg. p. 507,) decided at a very early day in England, specific performance of a parol agreement for a lease of lands was decreed, notwithstanding the statute of frauds, after acts of part performance on the part of the lessee, by pulling down an old house, and building new ones according to the terms of the agreement.
This case was. decided upon the principle that it would be against conscience to suffer the party who had entered and expended his money on the faith of a parol agreement, to be treated as a trespasser, and the other party to enjoy the advantage of the money laid out. See Bond vs. Hopkins, 1 S. & L. 433.
Again, at a later period, in Morphett vs. Jones, 1 Swan. Ch. Rep. 172, specific performance of a parol agreement for a lease was decreed after part performance by delivery of possession.
The Master of the Rolls said: “ In order to amount to part performance an act must be unequivocally referable to the agreement; and the ground on which courts of equity have allowed such acts to exclude the application of the statute, is fraud. A party who has permitted another to perform acts on the faith of an agreement, shall not insist that the agreement is bad, and that he is entitled to treat those acts as if it had never existed. That is the principle, but the acts must be referable to the contract. Between landlord and tenant, when the tenant is in possession at the date of the agreement, and only continues in possession, it is properly observed that in many cases continuance amounts to nothing; but admission into possession having unequivocal reference to contract, has always been considered an act of part performance. The acknowledged possession of a stranger in the land of another, is not explicable except on the supposition of an agreement, and has, therefore, constantly been received as evidence of an antecedent contract, and as sufficient to authorize an enquiry into the terms — the court regarding what has been done as a consequence of contract or tenure.”
The doctrine, upon which these cases stand, has been adhered to by the courts, both in England and in this country, with remarkable uniformity. Mr. Justice Story, in his work on equity jurisprudence, ml. 2 sec. 761-2, lays it down as a general rule, “that nothing is to be considered as a part performance which does not put the party into a situation which is a fraud upon him,unless the agreement is fully performed. Thus, for instance, if upon a parol agreement, a man is admitted into possession, he is made a trespasser, if there be no agreement valid in law or equity. Now, for the purpose of defending himself against a charge as a trespasser, and a suit to account for the profits in such a case, the evidence of a parol agreement would seem to be admissible for his protection, and if admissible for such a purpose, there seems no reason why it should not be admissible throughout. 'A case still more cogent might be put, where a vendee, upon a parol agreement for a sale of land, should proceed to build a house on the land, in the confidence of the due completion of the contract. In such a case there would be a manifest fraud upon the party, in permitting the vendee to escape from a due .and strict fulfillment of such agreement.” The same learned author adds, however, that “ in order to make these acts such as a court of equily will deem part performance of an agreement wdthin the statute, it is essential that they should clearly appear to be done solely with a view to the agreement being performed. For, if they are acts which might have been done wdth other views, they will not take the case out of the statute, since they cannot pro perly be said to be done bj way of part performance of the agreement.”
An application of these principles will enable us to determine whether there was such part performance as to enable the appellant to relief.
In his' answer to the cross-bill he denies entering upon the lands as the tenant of the Bank from year to year, and avers that he went into possession under the contract above stated, setting it up in the answer, which, being responsive to the cross-bill in this particular, becomes evidence not only of the terms of the contract, but also that the appellant was admitted into possession under it. and with a view to its performance; and while there is no evidence of an understanding that he was to_ have possession as tenant from jrear to year, or upon terms other than those of the contract set up in the original bill, and averred to be true in the answer to the cross-bill, the. acts of the Trustees, and of the appellant, subsequent to the entry of. tffe latter upon the lands — extending through aseries of years— are strongly corroborative of the statement contained in the answer to the cross-bill, as to the nature of the occupancy of the premises by the appellant, and of the terms upon which he went into possession. The appellant was in possession for several years prior to the removal of the Trustees from the further management of the affairs of the Bank, and with their knowledge; and they,.at no time during this period, required rents, nor contracted for any, other than the repairs which the appellant had engaged to make. The witness, Bozeman, proves that the appellant repaired-the fencing, as by his contract he was to do, and also built the negro houses which were framed, underpinned with rock, and their chimneys made of brick. The character of the improvements, and the fact that their cost^ exceeded the value of the yearly rent of the premises, are utterly inconsistent with the idea that they were made by the appellant, for his own convenience, as a tenant whose lease was uncertain for a longer period than one year; and can but be regarded as an evidence favoring the conclusion that the improvements were put upon the premises in part performance of the agreement for a lease until October, 1861.
As to the argument that this is a case where the Court ought not to interfere, it may be remarked that the specific performance of contracts is said to be a matter of discretion in the Court. This must not be understood, however, to mean an arbitrary, capricious discretion, dependent upon the mere pleasure of the Judge, but a sound and reasonable discretion, governed, as far as it may be, by general rules and principles, but which, at the same time, withholds or grants relief according to the circumstances of each particular case, when these rules and principles will not furnish any exact measure of justice. 2 Story Eq., sec. 742. In view of this principle, and upon an examination of some of the adjudications in which it has been applied, (King et al. vs. Hamilton, 4 Peters 311; Mechanics Bank of Alexandria vs. Lynn, 1 Ib. 376; Phillips vs. Thompson, 1 John. Ch. Rep. 132; 5 Gilman 223,) we have reached the conclusion that there is nothing in this case which would warrant a denial of the remedial power of the Court.
The parties were fully competent to contract with each other — the contract was fairly made, without fraud or mistake, was upon good consideration, its terms clearly proven, and it unattended with any circumstances which would make its enforcement inequitable. The only objection urged is, that the lands were not leased on terms sufficiently advantageous to the Bank. This was matter for the judgment of the Trustees, who, it must be supposed, had capacity to transact business. No doubt they thought, at the time the contract was made, that it was for the best — but if experience has shown that the Bank has realized less than it might have realized, it is surely no reason why the contract should not be faithfulty performed by both parties. The objection, viewed in the most favorable light, amounts to a mere naked hardness of bargain; and, to sanction it would be to make a bad bargain a good excuse for bad faith. No Court has ever gone so far as that— especially when, as in the case before us, it would enable the party urging the objection, to practice a fraud on the party-seeking to enforce the contract.
The Court is of opinion, under all the circumstances, that the agreement of the parties ought to be specifically performed. The decree of the Chancery Court must, therefore, be reversed, and a decree declaring the agreement to be as valid and binding as if it were a formal written lease, and to restrain the appellee from disturbing the possession of the appellant until 1st October, 1861, be rendered in this Court, and certified to the Court below. | [
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Elsijane T. Roy, Justice.
Appellant Donna Key brought this action to void, as usurious, contracts entered with Worthen Bank & Trust Company, N.A. (Worthen) in conjunction with the issuance of BankAmericard and Master Charge bank cards. Appellant agreed to pay an annual membership fee of $12 in each credit plan and to be responsible for credit extended for purchases made on the basis of authorized use of the cards. She agreed to pay for such purchases currently or in installments on which interest would be charged.
Thereafter appellant charged certain items on her Master Charge account, for which she later paid Worthen although she refused to pay the annual membership fee. On her BankAmericard account she charged certain items amounting to $95.42 which she refused to pay. She also refused to pay the $12.00 membership fee added to the account, contending that the entire account was tainted with usury because of assessment of the membership fee. Worthen denied the membership fees were interest, but admitted that if the chancellor determined otherwise then interest on appellant’s accounts exceeded the Arkansas maximum. In addition, Worthen counterclaimed for the balance of both accounts, including the membership fees.
The chancellor heard the case on the pleadings and a stipulation of facts. He found the membership fees were not imposed as a condition of a loan or extension of credit, but as a valid condition of membership in the bank card plan and not as a cloak for usury. The trial court also awarded Worthen judgment on its counterclaim for the balance on each account. From that decree Mrs. Key has brought this appeal.
The application forms of both cards are almost identical, and the one signed by appellant for the BankAmericard credit plan reads as follows:
I have applied for membership in Worthen Bank & Trust Company’s BankAmericard credit plan. If my application is approved, I agree to pay an annual fee of $ 12.00 for membership in the plan and for issuance of a bank card for use in conjunction with the plan. I understand that the payment of the fee is required as a condition of membership in the plan, whether or not I use the bank card for the purpose of obtaining credit, and I agree that the fee may be charged to my BankAmericard account. (Italics supplied.)
The following portions of the stipulation are pertinent to the issue:
1. * * * Credit applications are taken from applicants and a card or cards will be issued if the applicant meets certain predetermined credit standards established by Worthen. The decision of whether or not to issue a card or cards is made by Worthen. The applicant states the credit limit desired and, if the issuance of the card is approved, Worthen then determines whether the requested credit limit should be granted.
2. * * * The card-issuing bank has contracts with merchants under which the merchants agree to accept charges on bank cards in payment for goods or services. The card-issuing bank agrees to pay the merchants cash for the charge slips generated by the use of the card or cards issued by the bank. * * * By participating in a bank card plan, a merchant is relieved of the necessity of providing charge accounts for his customers and of the risk of accepting checks from customers. If the merchant complies with his contract governing acceptance of bank card charges, he receives cash for the charge slip and the card-issuing bank takes on the risk of collecting from the cardholder and carries the receivables generated by the use of the card. This is the manner in which all card plans operate generally, and it is the manner in which Worthen operated its BankAmericard and Master Charge plans at all times relevant hereto.
The issuer ordinarily waits a period of time, something less than a month, before rendering its statement. If the cardholder pays within 25 days of the billing date then no finance charge is added, but if not, ten percent (10%) interest is added as a finance charge.
The parties also stipulated as to what D. E. Fortson, senior vice prssident of First Arkansas Bankstock Corporation, who s knowledgeable in the bank card industry, would testify if called as a witness. His testimony inter alia would be:
. . . ; that a bank card is proof of the holder’s favorable credit rating and it is not unusual for a bank card to be used and accepted as a credit reference, particularly when a cardholder is in a city other than the city of his residence, and that merchants and innkeepers will cash checks for travelers who are holders of bank cards, relying on the generally known fact that such cards are issued to persons of financial responsibility and proven creditworthiness; that a bank card is a valuable convenience, because travelers can charge airline tickets, hotel bills, restaurant bills, and purchases from merchants on bank cards, obviating the necessity of carrying large amounts of cash on trips, and cardholders can pay the card-issuing bank for all charges at one time, without incurring a finance charge if paid within 25 days of billing, . . . ; that a membership fee is identical to the type of fee charged by companies issuing travel and entertainment cards, such as the American Express card; that the annual fee for an American Express card is $15.00.
* * *
That it is Worthen’s position that membership in a bank card plan is a valuable banking commodity because it affords a cardholder services and conveniences, entirely apart from and in addition to the extension of credit, that would not otherwise be available to the member/cardholder; that member/cardholders would be willing to pay for these incidents of membership; that a. membership fee properly may be charged on an annual basis; and that a fee for membership may be made even though each member may not avail himself of all available features of membership.
Appellant if called as a witness for rebuttal would testify:
. . . that she used her bank cards for the extension of credit only, and not for any of the other purposes described in the stipulated testimony of Mr. Fortson.
Appellant contends whether termed a “membership fee,” a “service charge,” or whatever terminology is used, the annual fees charged by BankAmericard and Master Charge constitute “interest” and the transactions in question are violative of Article 19, § 13 of the Arkansas Constitution, which prohibits a greater rate of interest than 10% per annum.
Appellant also cites as authority for her position Arkansas cases which hold as usurious laws having “hidden items” and/or “multiple transactions” designed to allow the lender to charge more than 10%. We agree with the legal principles enunciated in these cases but do not find them to be appropos here since the membership fees are not hidden items and do not fall within the “multiple transactions” prohibitions.
The burden of proof is on appellant to prove that the contracts are usurious. An intention to charge a usurious rate of interest will never be presumed, imputed or inferred where the opposite result can fairly and reasonably be reached. Brown v. Central Arkansas Production Credit Assn., 256 Ark. 804, 510 S.W. 2d 571 (1974); Davidson v. Commercial Credit Equipment Corp., 255 Ark. 127, 499 S.W. 2d 68 (1973).
Here the membership fee was not imposed in connection with receiving a loan from Worthen or with any specific extension of credit. Mrs. Key came to the bank voluntarily seeking membership in specific bank plans. Appellant’s applications for the cards stated she understood the membership fee was required whether or not she used “the bank card for the purpose of obtaining credit.”
Mrs. Key was not a necessitous borrower who as a prerequisite to a loan was forced to buy something which she did not want. On the contrary, the bank card is a convenience to the cardholder, and the extension of credit is only one of several features of the card.
It serves as a credit reference similar to a letter of credit enabling the holder to cash checks or otherwise trade upon the recognition of credit worthiness which the card affords. Since merchandise and services can be secured without the necessity of writing checks it is very much like a check writing service. However, when the cardholder finds it necessary to cash checks while out of town the card is particularly helpful because it may solve credit worthiness and identification problems which often arise. It also obviates the necessity of carrying large amounts of cash with all the attendant risks. The value of the security feature of an instrument permitting only the bearer thereof to use it to obtain cash, goods or services has long been recognized by the issuance of traveler’s checks, for which a charge is validly made.
We have previously held that contracts or fees collateral to the lending or borrowing of money, if in themselves lawful and made in good faith, do not infect the “borrowing transaction” with usury, although their effect may be to increase the sum payable from the borrower to the lender. See Leavitt v. Marathon Oil Co., 186 Ark. 1077, 57 S.W. 2d 814 (1933); Commercial Credit Plan v. Chandler, 218 Ark. 966, 239 S.W. 2d 1009 (1951).
We find the agreement here was openly made in good faith and the membership fee is collateral to any interest imposed in connection with a loan or the extension of credit. Our decision is not to be interpreted as withdrawal by this Court from its long established position that we will not permit evasion of the constitutional prohibition against interest charges in excess of 10%. See Winston v. Personal Finance Company of Pine Bluff, Inc., 220 Ark. 580, 249 S.W. 2d 315 (1952), where we held the loan usurious and stated: “ . . . here the ‘service charge’ is a mere shell to conceal the kernel of usury.”
However, in the case at bar we agree with the chancellor that the membership fee is not a cloak for usury, but that it is valid consideration paid for the many services available to members in the bank card plans. It is immaterial that Mrs. Key chose not to use the privileges attendant to ownership of the bank cards as these privileges were available to her and furnished valuable consideration for the membership cards.
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John A. Fogleman, Justice.
David A. Owen underwent abdonimal surgery by Dr. F. M. Wilson, assisted by Dr. Henry S. Keisker, on February 6, 1969, in the operating room at St. Bernard’s Hospital in Jonesboro. On June 10, 1975, Owen and his wife filed the complaint in this action against Drs. Wilson and Keisker and employees of the hospital, alleging that the physicians negligently closed the incision made for the operation without removing a surgical instrument they had introduced into his body and that the hospital employees had negligently failed to count the surgical instruments used. The physician defendants and Aetna Casualty & Surety Co., the carrier for the hospital, denied negligence and pleaded the statute of limitations. Ark. Stat. Ann. § 37-205 (Repl. 1962). Each of them filed a motion for summary judgment with supporting affidavit. The motions were based upon the statute. The trial court granted these motions and we affirm.
The facts considered were those stated in affidavits by the physicians, the administrator of the hospital and by appellants. Viewed in the light most favorable to appellants, these affidavits showed that:
Dr. F. M. Wilson performed a right hemicolectomy on David A. Owen on February 6,1969. He was assisted by Dr. Henry W. Keisker. There was no instrument count at the end of the operation before the incision was clos ed. Appellant had an infection in the area of the surgery and remained in the hospital for 23 days. The infection continued for some four months thereafter. Appellant was seen by Dr. Wilson on nine visits by the patient, the last on January 20, 1970, for routine postoperative care. On the last occasion appellant complained of réctal bleeding. Appellant, not having regained his strength two years after the operation, sought and obtained treatment by a chiropractor between June, 1971, and January 18, 1975. Appellant had diarrhea most of the time for six years following the surgery and on two occasions — April 11, 1973 and October 2, 1973 — had emergency treatment prescribed by Dr. G. D. Poole and Dr. Bascom P. Raney, respectively, at St. Bernard’s Hospital. Finally appellant went to Dr. Wilson on January 28, 1975, thinking that his condition must have been related to the surgery. When he told Dr. Wilson of his suffering from diarrhea, this physician ordered X-rays, which disclosed a hemostat or surgical clamp in appellant’s abdomen. Appellant was told by the doctor that the clamp had been left inside him by mistake at the time of the 1969 surgery. On February 19, 1975, Dr. Buckman of Little Rock removed a six-inch surgical scissors from appellant’s abdomen. No X-rays or other procedures which would have disclosed the presence of the surgical instrument had been ordered or taken prior to those taken in January 1975.
Both physicians and the hospital administrator denied that the presence of the surgical instrument was concealed from the patient. Dr. Wilson and Dr. Keisker each stated that he had no knowledge or reason to believe or suspect the presence of the surgical instrument prior to the X-rays Dr. Wilson ordered taken. The hospital administrator stated that no employee of the hospital concealed the presence of the instrument from appellant or anyone else.
The applicable statute, Ark. Stat. Ann. § 37-205 (Repl. 1962), reads:
Hereafter, all actions of contract or tort for malpractice, error, mistake, or failure to treat or cure, against physicians, surgeons, dentists, hospitals, and sanitaria, shall be commenced within two [2] years after the cause of action accrues. The date of the accrual of the cause of action shall be date of the wrongful act complained of, and no other time.
Appellants rely entirely upon the “continuing tort” theory to prevent the bar of the statute. Under this theory, it is urged that the “wrongful act” commences when the surgeon closes an incision without removing a foreign object he has inserted and continues as long as the object remains undetected. Appellants’ theory is that there was a continuing invasion of the patient’s body by the physician which constituted a continuing tort. Appellants proceed upon the assumption that this court has not heretofore decided whether the “continuing tort” theory operates to toll the statute of limitations and read Williams v. Edmondson, 257 Ark. 837, 520 S.W. 2d 260 as not deciding that question. Appellants properly admit that the theory was advanced in that case. We did reject that theory in Williams, however, when we said that the continuing tort theory best addressed itself to the General Assembly, which has the responsibility for establishing public policy on that issue. Our views on the subject remain unchanged. They were not confined to the particular fact situation there presented. The negligence both here and there took place at the time the physician acted or failed to act. In Williams, it was at the time of reading the X-rays. Here it was at the time of closing the incision without removing the foreign object.
Appellants also argue that even if the statute would operate as a bar to their cause of action, it is unconstitutional and void because it deprives them of property without due process of law in violation of the Fourteenth Amendment to the United States Constitution. They rely in part upon Emberson v. Buffington, 228 Ark. 120, 306 S.W. 2d 326, where we found Ark. Stat. Ann. § 75-915 (Repl. 1957) in violation of § 13, Art. II of the Arkansas Constitution. That statute was considerably different. It completely deprived a certain class, i.e., persons related to the driver of a motor vehicle, of any remedy for damages caused to them by the negligence of the driver while they were passengers in a vehicle driven by him. That is not the case here. Any statute of limitations will eventually operate to bar a remedy and the time within which a claim should be asserted is a matter of public policy, the determination of which lies almost exclusively in the legislative domain, and the decision of the General Assembly in that regard will not be interfered with by the courts in the absence of palpable error in the exercise of the legislative judgment. Tipton v. Smythe, 78 Ark. 392, 94 S.W. 678, 7 LRA (n.s.) 714, 115 Am. St. Rep. 44, 8 Ann. Cas. 521. The statutory time within which an action must be brought cannot be judicially pronounced unreasonable unless it is so short as under the circumstances to amount to a practical denial of the right itself. Steele v. Gann, 197 Ark. 480, 123 S.W. 2d 520, 120 ALR 754. We are in no position to say that the legislative determination that two years (rather than the three years provided by the statute in Steele) is such an unreasonably short period of time for those situated like appellants to discover and assert their cause of action, absent fradulent concealment, to deprive them of due process of law or to deprive them of any remedy. It is not contended here that there was any concealment by appellees. There is really little difference in the effect of the “continuing tort” theory and the theory that the statute does not begin to run until discovery of the wrong, which we rejected in Steele v. Gann, supra.
It is true that we did not actually decide the constitutional questions posed here in Williams. We did, however, clearly imply that the act was constitutional by reference to our holding in Carter v. Hartenstein, 248 Ark. 1172, 455 S.W. 2d 918. There we upheld a statute limiting actions for deficiencies in design, planning and supervision of construction of improvements to real estate to four years. It seems that the problems of discovery of hidden defects in structures would be at least as great as in human beings. Humans are conscious of pain, illness, and other symptoms of disorder, but hidden defects in buildings may not be evidenced for many years, and then perhaps only because injuries and damages have been inflicted by reason of them. Still, we found no constitutional infirmity in the statute there involved. The vital question is one of reasonableness, and the courts may not strike down a statute of limitations unless the period before the bar becomes effective is so short that it amounts to a virtual denial of the right itself or it can be said that the legislature has committed palpable error. Tipton v. Smythe, supra; Carter v. Hartenstein, supra; Steele v. Gann, supra; Mills v. Scott, 99 U.S. 25, 25 L. Ed. 294 (1879). See also, Canadian Northern Railway Co. v. Eggen, 252 U.S. 553, 40 S. Ct. 402, 64 L. Ed. 713 (1920); Wichelman v. Messner, 250 Minn. 88, 83 N.W. 2d 800, 71 ALR 2d 816 (1957). In making this evaluation the basic policy reasons for statutes of limitations come into play. They were well expressed in Chase Securities Corp. v. Donaldson, 325 U.S. 304, 65 S. Ct. 1137, 89 L. Ed. 1628 (1945) in these words:
Statutes of limitation find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost. [Citation omitted.] They are by definition arbitrary, and their operation does not discriminate between the just and the unjust claim, or the avoidable and unavoidable delay. They have come into the law not through the judicial process but through legislation. They represent a public policy about the privilege to litigate. *****
Appellants’ arguments as to constitutionality have been rejected by the Supreme Court of Missouri in considering a statute very similar to the one before us. Laughlin v. Forgrave, 432 S.W. 2d 308 (Mo. 1968). We also must reject appellants’ arguments which might more appropriately be addressed to the General Assembly as policy matters.
The judgment is affirmed. | [
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Frank Holt, Justice.
This appeal arises from a judgment in favor of appellee in a suit involving the extent of the coverage of an automobile insurance policy issued by appellant to appellee. During the time appellee’s insured vehicle was being repaired, it became necessary for him to borrow his daughter’s and her husband’s car. The daughter was staying with her parents during the time her husband was stationed overseas in the military service. When appellee drove the borrowed car, he struck a pedestrian. As a result a suit was filed by the pedestrian for damages against appellee. Appellee made demand upon appellant to defend the suit pursuant to the terms of his insurance policy. Appellant refused stating that the borrowed automobile was not an insured vehicle under the “TEMPORARY USE OF SUBSTITUTE AUTOMOBILE” clause, since the automobile was owned by and furnished for the regular use of appellee’s daughter who was a member of the appellee’s household. After appellee’s successful defense of the personal injury suit against him, he brought this action to collect his attorney’s fees, expenses and a penalty against appellant for its refusal to defend the suit. At trial the court denied appellant’s motions for a directed verdict. For reversal of the judgment, based on a jury verdict in appellee’s favor, appellant asserts that the evidence is insufficient to support the verdict.
In determining whether a verdict is supported by substantial evidence, we review the evidence in that light which is most favorable to the appellee and indulge all reasonable inferences favoring the support of the jury’s findings. Ark. State Highway Comm. v. Cook, 257 Ark. 98, 514 S.W. 2d 215 (1974); and Fields v. Sugar, 251 Ark. 1062, 476 S.W. 2d 814 (1972). Here appellant argues that no substantial evidence exists from which the jury could have found that the automobile driven by appellee at the time of the accident was a temporary substitute automobile within the meaning of the policy. The relevant provision of the insurance contract provides:
VII TEMPORARY USE OF SUBSTITUTE AUTOMOBILE While a described automobile is withdrawn from use, such insurance as is afforded by this policy applies to another automobile not owned by or furnished for the regular use of the named insured or spouse, or members of the same household, while temporarily used as a substitute for such automobile. This insuring agreement does not cover as an insured the owner of the substitute automobile or any employee of such owner.
It is undisputed that appellee’s daughter and her husband were co-owners of the automobile. The issue then is narrowed to a determination of whether there was sufficient evidence to sustain the jury’s implied finding that appellee’s daughter was not a member of his household.
Appellee’s daughter, Brenda, was eighteen years of age and living with her parents when she was married to her husband in June, 1968. The couple first lived with his grandmother approximately one month until he was inducted into the military service. Brenda returned “to my mother’s and father’s house.” Before her husband left for overseas duty, he had a three weeks’ furlough during which time they resided with his grandmother. Then in October or November, 1968, she again moved back with her parents and lived with them until July, 1969. At that time, her husband came home for about a one month’s furlough during which time they visited relatives. After that furlough, he returned overseas. Brenda then “went again to live with [her] mother and father” where she was residing in September, 1969, when her father borrowed her and her husband’s car which was involved in the accident. It appears that Brenda did not drive. During the approximate one year that Brenda lived with her parents, she would occasionally visit relatives. Her parents exercised no control over her. She contributed no money to her maintenance, although she occasionally did some cooking and cleaning. Her parents did not expect her to contribute anything. She had no outside employment and “re [lied] upon [her] father to feed and clothe” her. She received a government allotment check, which originally was $100 a month and eventually raised “to a hundred thirty sometimes or a hundred and forty,” and from which she made the $81 car payment using the balance for her spending money. She testified that her and her husband’s income “was not enough” to require the filing of a tax return. For the taxable year 1969, the appellee father claimed Brenda as a dependent on his income tax return.
We turn now to the law applicable to the recited facts. In American Homestead Ins. Co. v. Denny, 238 Ark. 749, 384 S.W. 2d 492 (1964), we reiterated:
‘It is the duty of the Courts to construe the language [in an insurance contract] used by the parties and such construction is performed by considering the sense and meaning of the terms which the parties have used as they are taken and understood in their plain ordinary and popular sense.”
In the case at bar the policy provision is referred to by the courts as a restricted “drive other cars” clause which is found in liability insurance policies. It does not appear that we have previously construed this particular provision. Here, as indicated, we must determine if there is any substantial evidence that appellee’s daughter was not a member of his “household.” If she was a member, then the policy excludes coverage. We have had occasion to interpret the term “household” in a theft insurance policy which excluded coverage if it was found that the plaintiff’s son, serving in the military, was not a “household” member. In affirming a finding that he was a member, we said in Central Manufacturer’s Mut. Ins. Co. v. Friedman, 213 Ark. 9, 209 S.W. 2d 102 (1948), in pertinent part:
We think the word ‘household’ as used in this section of the policy, supra, meant domicile, residence or place of abode. ‘Household’ is defined in Bouvier’s Law Dictionary, Rawle’s Third Revision, vol. 2., page 1462, as follows: ‘Those who dwell under the same roof and constitute a family.’
In Lontkowski v. Ignarski, 95 N.W. 2d 230 (Wis. 1959), the court defined the word “household” as follows:
‘Household’ is defined by Webster as ‘those who dwell under the same roof and constitute a family.’ That definition corresponds with the common and approved usage of the term and is supported by judicial authority. ‘Persons who dweli together as a family constitute a household. ’
See also Fleming v. Traveler’s Ins., 39 So. 2d 885 (Miss. 1949); Aler v. Travelers Indemnity Co., 92 F. Supp. 620 (D. Maryland 1950); Leteff v. Maryland Casualty Co., 91 So. 2d 123 (La. App. 1956); Simon v. Milwaukee Automobile Mut. Ins. Co., 115 N.W. 2d 40 (Wis. 1962); Giese v. Karstedt, 141 N.W. 2d 886 (Wis. 1966); Tomlyanovich v. Tomlyanovich, 58 N.W. 2d 855 (Minn. 1953); Alabama Farm Bureau Mut. Ins. Co. v. Preston, 253 So. 2d 4 (Ala. 1971). The appellee has cited us no authority to the contrary.
In Alabama Farm Bureau Mut. Ins. Co. v. Preston, supra, the insured’s daughter lived with her parents during the time her husband was overseas in the armed service. Her father was involved in a collision while driving her and her husband’s car. The court addressed itself to the question as to “whether Carol [the daughter] was a resident of Preston’s [the father] household at the time of the collision within the exclusion provision of his policies with the insurer.” In holding that she was a resident of the insured’s household at the time of the collision within the meaning of the policy and denying coverage, the court said:
Under the undisputed facts, Carol came to ‘stay’ with her parents while her husband was overseas. While she did not intend to stay permanently with her parents, nevertheless her stay was to extend for an indefinite time. She was not a mere temporary visitor. Actually, she did remain in her parents’ home for over a year. It was during this time that Mr. Preston had the collision while driving the Dodge automobile. We hold that under the undisputed facts the conclusion is dictated that Carol was residing in her father’s home at the time of the collision. The language of the policy here involved is not legally ambiguous. Such language excludes liability of the insurer under the facts shown.
The rationale expressed there is applicable in the case at bar.
The justification of the exclusionary clause here, which is characterized as the “drive other cars” provision, is well stated in Fleming v. Traveler’s Ins., supra:
We are dealing with a contract of insurance. We must inquire what the parties thereto meant. Practical consideration must be given play, interpreted in the light of the purpose of the policy provision. This provision has repeatedly held to reveal an obvious purpose to avoid a multiple coverage of several vehicles owned by members of the same family, who, by their close intimacy may be expected to use the car of each other without hindrance and without permission, thus increasing the liability of the insurer who has a right to expect each owner to contract for his own coverage.
AppeMee argues that the exclusion clause here is ambiguous and should, therefore, be construed most strongly against the insurer. Life and Casualty Ins. Co. of Tennessee v. Gilkey, 255 Ark. 1060, 505 S.W. 2d 200 (1974). We are of the view that the exclusionary provision of the policy is clear and legally unambiguous. It is unnecessary to resort to rules of construction in order to ascertain the meaning of an insurance policy when no ambiguity exists. McKinnon, Admx. v. Southern Farm Bureau Casualty Ins. Co., 232 Ark. 282, 335 S.W. 2d 709 (1960). The terms of an insurance contract are not to be rewritten under the rule of strict construction against the company issuing it so as to bind the insurer to a risk which is plainly excluded and for which it was not paid.
In the case at bar, we hold that the evidence, when viewed most favorably to the appellee, is not substantially sufficient to support the jury’s finding that appellee’s daughter was not a member of his household at the time he borrowed and was driving her automobile.
Reversed and dismissed. | [
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Frank Holt, Justice.
In this eminent domain case, pursuant to Ark. Stat. Ann. § 76-532 (Repl. 1957), appellant condemned a strip of land approximately 50’ wide and 126’ long out of a city lot 70’ wide. The strip was taken for the asserted purpose of restoring public access to an adjacent parcel of land which was landlocked as a result of the recent construction of a highway. On appellee’s motion the cause was transferred to chancery court for a determination as to whether the taking of the lot was for public use. The chancellor enjoined the appellant from any further construction on or use of the tract involved. From that ruling comes this appeal.
Appellant contends that the court erred in holding that the lands taken by appellant were not taken for a public use. It argues that the taking was necessary because restoration of public access to the adjacent property would substantially reduce right-of-way costs and, therefore, would be in the best interest of the state. Appellant argues further that in effect the taking of appellee’s property constituted an exchange of property. Appellant relies upon Arkansas Highway Commission v. Morgan Estate, 243 Ark. 450, 420 S.W. 2d 525 (1967). We find no merit in appellant’s arguments.
Private property can be taken under the power of eminent domain only for a public use. City of Little Rock v. Raines, 241 Ark. 1071, 411 S.W. 2d 486 (1967); Cloth v. Chicago R.I. & P. Ry. Co., 97 Ark. 86, 132 S.W. 1005 (1910); and Ozark Coal Co. v. Pa. Anthracite Rd. Co., 97 Ark. 495, 134 S.W. 634 (1911). Whether or not a proposed use for which private property is taken is for a public or private use is a judicial question which the owner has a right to have determined by the courts. City of Little Rock v. Raines, supra.
Here appellant’s own witness testified, as abstracted:
The public is using this. They are paying for it. . . . The purpose of the highway acquiring this was for access to Mr. Corbin’s use. The right of way department made this decision to acquire a private right of way for Mr. Corbin to get service access to the property. . . . But it was a condemnation. That is solely for the purpose of providing Mr. Corbin a private driveway, to reduce damages to the adjoining property. ... I don’t think the Highway Department is going to maintain this property. We made the right of way available for Mr. Corbin’s use. We haven’t traded any property with him. We haven’t conveyed it to anybody. We do not intend to maintain it and Mr. Corbin would have no right to convey it as a right of way into his property. . . . Mr. Corbin has no control over that road. . . . There was no trade of this piece of property. ... I consider that I traded in the sense that I restored access that I had taken. . . . that was our intent, to restore access to Mr. Corbin’s property to reduce damages. . . . There was not any piece of property exchanged for this piece of property.
The evidence adduced by appellant clearly shows that this taking was not for a public use. To the contrary, it was for the purpose of providing a private driveway and this the state cannot do.
Since we agree that the taking was not for public use, we deem it unnecessary to consider appellant’s other contention that the court erred in finding that appellant did not comply with Ark. Stat. Ann. § 76-2203 (Repl. 1957).
Affirmed. | [
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Conley Byrd, Justice.
Appellant Johnny R. White was charged by information with the offense of possessing marijuana for the purpose of delivery allegedly committed on November 22, 1974. The jury found him not guilty of the offense charged but returned a verdict finding him guilty of only possessing marijuana. From a judgment assessing a $250 fine and a one year jail sentence, appellant appeals contending that mere possession of marijuana was not a misdemeanor offense under Act 590 of 1971, as amended by Act 186 of 1973.
Act 590 of 1971, being the Uniform Controlled Substance Act, comprises in excess of 38 pages in the 1971 Acts. Section 1, containing 24 different definitions provides in so far as here pertinent, as follows:
“SECTION 1. As used in this Act:
(d) ‘Controlled substance’ means a drug substance, or immediate precurson in Schedules I through V or Article II of this Act.”
Article II of Act 590 of 1971 contained Schedules I through V and marijuana was classified as a substance in Schedule I.
Section 1 of Article IV of Act 590 of 1971 provided as follows:
SECTION 1. (a) Except as authorized by this Act, it is unlawful for any person to manufactur, deliver, or possess with intent to manufacture or deliver, a controlled substance.
(1) Any person who violates this subsection with respect to:
(i) a controlled substance classified in Schedule I or II which is a narcotic drug, is guilty of a crime and upon conviction may be imprisoned for not more than fifteen (15) years or fined not more than $25,000, or both;
(ii) any other controlled substance classified in Schedule I, II, or III, is guilty of a crime and upon conviction may be imprisoned for not more than five years, fined not more than $15,000 or both;
(¡ii) a substance classified in Schedule IV, is guilty of a crime and upon conviction may be imprisoned for not more than 3 years, fined not more than $10,000.-00, or both;
(iv) a substance classified in Schedule V, is guilty of a crime and upon conviction may be imprisoned for not more than one year, fined not more than $5,000, or both.
(b) Except as authorized by this Act, it is unlawful for any person to create, deliver, or possess with intent to deliver, a counterfeit substance.
(b) (1) Any person who violates this subsection with respect to:
(i) a counterfeit substance classified in Schedule I or II which is a narcotic drug, is guilty of a crime and upon conviction may be imprisoned for not more than 15 years, fined not more than $25,000 or both;
(ii) any other counterfeit substance classified in Schedule I, II, or III, is guilty of a crime and upon conviction may be imprisoned for not more than 5 years, fined not more than $15,000, or both;
(iii) a counterfeit substance classified in Schedule IV, is guilty of a crime and upon conviction may be imprisoned for not more than 3 years, fined not more than $10,000, or both;
(iv) a counterfeit substance classified in Schedule V, is guilty of a crime and upon conviction may be imprisoned for not more than one year, fined not more than $5,000, or both.
(c) It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this Act. Any person who violates this subsection is guilty of a misdemeanor. Provided, any person who is convicted of a third or subsequent offense for violation of this subsection shall be guilty of a felony and shall be subject to imprisonment in the Penitentiary for not less than two (2) nor more than five (5) years.”
In Act 186 of 1973 marijuana was removed from Schedule I of Article II and placed in a new Schedule VI. No amendment was made at that time to Section 1 of Act 590 which defined a “controlled substance” as a “drug, substance, or immediate precursor in Schedules I through V of Article II of this Act.” However, Act 186 of 1973 did provide:
SECTION 2. Subsection (a) of Section 1 of Article IV of Act 590 of 1971 as amended the same being Arkansas Statutes Section 82-2617 (a) is hereby amend-eh to read as follows:
‘(a) Except as authorized by this Act, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.
(1) Any person who violates this subsection with respect to:
(i) a controlled substance classified in Schedule I or II which is a narcotic drug, is guilty of a felony and upon conviction may be imprisoned in the state penitentiary for not less than five (5) years nor more than thirty (30) years or fined not more than $25,000, or both;
(ii) any other controlled substance classified in Schedule I, II, III, or VI is guilty of a felony and upon conviction may be imprisoned in the state penitentiary for not less than three (3) years nor more than ten (10) years, fined not more than $15,000, or both;
(iii) a substance classified in Schedule IV, is guilty of a felony and upon conviction may be imprisoned in the state penitentiary for not less than one (1) year nor more than three years, fined not more than $10,000, or both;
(iv) a substance classified in Schedule V, is guilty of a felony and upon conviction may be imprisoned in the state penitentiary for not less than one (1) year nor more than two (2) years, fined not more than $5,000, or both.’
SECTION 3. Subsection (c) of Section 1 of Article IV of Act 590 of 1971 as amended, the same being Arkansas Statutes Section 82-2617 (c) is hereby amended to read as follows:
(c) It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this Act. Any person who violates this subsection is guilty of a misdemeanor. Provided, any person who is convicted of a third or subsequent offense for violation of this subsection shall be guilty of a felony and shall be subject to imprisonment in the penitentiary for not less than two (2) nor more than five (5) years. Provided however, any person who unlawfully possesses a controlled substance listed under Schedule I of this Act shall be guilty of a felony and upon conviction thereof, shall be imprisoned in the state penitentiary for not less than two (2) years nor more than five (5) years.”
Obviously subsection (c) of Section t of Article IV as amended by Act 186 of 1973 does not make the mere possession of marijuana a misdemeanor if the definition in Section 1 (d) of Act 590 of 1971, is substituted for the term “controlled substance.” Under that construction only possession of drugs appearing in Schedule I through V are classified as misdemeanors.
To avoid the definition of a “controlled substance” as used in Section 1 (d) of the Uniform Controlled Drug Act, the State makes two arguments — i.e. (1) appellant did not properly raise the issue in the trial court, and (2) “it would indeed he an absurd result to construe the failure of Act 186 to amend § 82-2601 (d) [Section 1 (d) of Act 590] to include possession of marijuana, the crime of which appellant stands convicted.” To do so, says the State, “would clearly thwart the obvious intent of the Legislature.”
We find no merit to the contention of the State that the issue was not properly raised in the trial court. Such issues go to the jurisdiction of the trial court and can be raised at any time, even after a guilty plea by certiorari, Switzer v. Golden, Judge, 224 Ark. 543, 274 S.W. 2d 769 (1955).
Neither can we agree with the State as to its second con tention for the rule of law with respect to statutory construction of penal provisions is that nothing will be taken as intended which is not clearly expressed and all doubts must be resolved in favor of the accused, Bennett v. State, 252 Ark. 128, 477 S.W. 2d 497 (1972). This rule comes to us from the early common law and is well known to lawyers and legislators alike. Consequently, when the doubts as to the construction of the use of the term “controlled substance” in subsection (c) of Section 1 of Article IV of Act 590 of 1971, as amended by Act 186 of 1973, is considered in the light of the strict construction rule, we must agree with the appellant that the mere possession of drugs classified in Schedule VI of Article II of the Uniform Controlled Substance Act as amended by Act 186 of 1973, do not constitute a misdemeanor.
Reversed and dismissed.
Jones, J., dissents.
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John A. Fogleman, Justice.
Appellant Cotner sued International Harvester Company seeking to recover damages, alleging breach of warranties of merchantability and of fitness for a particular purpose on the sale of two new large 1972 model International Transtar trucks. He appeals from a judgment based upon a directed verdict in favor of appellee International Harvester Company. Appellant asserts five points for reversal. Since we feel that we must affirm the judgment upon one of these points, even assuming that appellant is correct on all the others, we will discuss that point only. It is:
THERE WAS SUFFICIENT EVIDENCE OF NOTICE GIVEN BY PLAINTIFF, WITHIN A REASONABLE TIME TO DEFENDANT OF THE BREACH OF WARRANTIES TO CONSTITUTE A JURY QUESTION ON THE ISSUE OF NOTICE.
Since we disagree with appellant and agree with the circuit judge on this point, even when we view the evidence in the light most favorable to appellant, appellant had no cause of action against appellee.
A buyer is required to notify the seller of any breach within a reasonable time after the buyer discovers it or he is barred from any remedy. Ark. Stat. Ann. § 85-2-607 (3) (a) (Add. 1961). The trucks were purchased in February, 1972 and delivered in July, 1972. Appellant testified that they ran well and served his purposes until after they had been driven a minimum of 120,000 miles. The first trouble in August, 1973, arose from a problem with air filters. The basis of appellant’s claim, insofar as this appeal is concerned, however, was alleged defects in the flywheel housing and transmissions. The first problem of any significance with the truck, which appellant designates as No. 5, occurred in Ft. Worth on October 29, 1973, when the flywheel housing broke. Repairs were made at appellee’s company store there. It was again repaired in Amarillo, Texas, at the International Harvester store on May 25, 1974. On September 4, 1974, repairs were made in Amarillo at Quality Truck Repair (whiclv does not appear to have had any connection with appellee). This truck was taken into the shop at Razorback International, an independent dealer, in April, 1975. It had then recorded at least 243,000 miles of travel.
The first problem with the other truck, No. 4, arose when the flywheel housing broke in June, 1974 and repairs were made by an independent International Harvester dealer. The next necessity for repair occurred in January, 1975. This was done at R & D Truckers in Pine Bluff. Repairs for piston and crankshaft trouble (problems that were not related to the flywheel or transmission) were done by Razorback International in October, 1974, and again in April, 1975, when it had traveled approximately 240,000 miles. At least a part of this work was done under the warranty.
During the time Cotner was having these problems with the trucks, he admitted that he did not write International Harvester or telephone International Harvester headquarters. He only talked with Mr. King, a salesman, who had sold him the trucks, about replacing them, some time in the give Cotner a better deal. Cotner also talked to the mechanics dependent dealership was established, thinking they would give Cotner a better deal. Cotner also talked to the mechanics at the International store in Pine Bluff about the cause of his flywheel housing problem. He said they didn’t know what was causing it.
Appellant argues that notification was sufficient to meet the statutory requirement because the repairs on truck No. 5 were made in October, 1973 and May, 1974, at International Harvester stores in Ft. Worth and Amarillo, Texas; because he had talked to the salesman for International Harvester in Pine Bluff about trading the trucks because they weren’t doing the job for which he had purchased them; and because he had talked to the mechanics in Pine Bluff about the flywheel housing and transmission problem. He says that since there was a statement on the Owner’s Service Policy that emergency warranty service could be obtained from the nearest International Harvester dealer and that there were more than 3,-000 authorized International truck service centers through 50 states, appellee had notice of the specific problem and undertook its repair. Considered either collectively or individually, we find no substantial evidence of notification in these facts.
It is true that the requirements of notification are not stringent. Notice need only be sufficient to inform the seller that the transaction is claimed to involve a breach and thus to open the way for negotiation of a normal settlement. It must, however, be sufficient to let the seller know that the transaction is still troublesome and must be watched. Comment 4, § 85-2-607. The purpose of the requirement is to enable the seller to minimize damages in some way, such as correcting the defect and to give some immunity from stale claims. L. A. Green Seed Co. of Arkansas v. Williams, 246 Ark. 463, 438 S.W. 2d 717. Ordinarily, the sufficiency of notice is a question of fact for the jury based upon the circumstances. L. A. Green Seed Co. v. Williams, supra.
The intent of the provision, however, is that the seller be informed that the buyer proposes to look to him for damages for breach. Comment 4, Ark. Stat. Ann. § 85-2-607; Anderson, Uniform Commercial Code (2d Ed.) 207, § 2-607.4; Dailey v. Holiday Distributing Corp., 260 Iowa 859, 151 N.W. 2d 477 (1967), The notice must be more than a complaint. It must, either directly or inferentially, inform the seller that the buyer demands damages upon an asserted claim of breach of warranty. Dailey v. Holiday Distributing Corp., supra. In spite of the fact that the question of reasonableness of notice, as to time, form and substance is usually a question of fact, where all the evidence is such that it can lead reasonable minds to only one conclusion as to the sufficiency of notice, the question presented is one of law to be resolved by the court. Dailey v. Holiday Distributing Corp., supra. Where a manufacturer or seller is never advised of a claimed breach of implied warranty or that the buyer is looking to it for compensation or reimbursement, there is not a notification sufficient to hold the manufacturer or seller liable. Dailey v. Holiday Distributing Corp., supra; Lynx, Incorporated v. Ordnance Products, Inc., 273 Md. 1, 327 A. 2d 502 (1974).
In this case, all indications from the skimpily abstracted evidence are that Cotner paid all repair bills relating to the defects of which he now claims, except for the last occasion, when the repairs were done by Razorback International, an independent dealer, which was not even in existence when the sale was made or when most of the problems with these defects were encountered. Conversation with a salesman which appellant himself characterizes as relating to “trading the trucks in” could not be taken to constitute notice, even if we could say that the salesman was a person to whom effective notification could be given. Cotner’s asking mechanics employed by appellee how he could stop the trouble could not constitute notification to the seller. To say the least, in no instance did Cotner ever indicate that he looked to appellee to remedy the situation or to pay any damages. Boeing Airplane Co. v. O’Malley, 329 F. 2d 585 (8th Cir., 1964); Overland Bond & Investment Corp. v. Howard, 9 Ill. App. 3d 348, 292 N.E. 2d 168; and Morris Plan Leasing Co. v. Bingham Feed & Grain Co., 259 Ia. 404, 143 N.W. 2d 404, relied on by appellants, are readily distinguishable on the facts.
The judgment is affirmed.
We agree. Byrd, Roy and Hickman, JJ.
This truck had previously undergone considerable repairs due to damages suffered in a wreck in June, 1973.
This truck had also undergone repairs for damages suffered in wrecks in June and September, 1973. | [
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Conley Byrd, Justice.
For reversal of a robbery conviction — with the use of a firearm, appellant William Jessie Harris raises the issues hereinafter discussed.
The record shows that the Scottish Inn Motel was robbed sometime between 11:30 p.m. and midnight on January 21, 1975, by a man brandishing a single shot shotgun. Taken in the robbery was some six hundred dollars in currency and some quarters. The robber also took a moneybag that contained the housekeeper’s keys to the motel.
An investigator, Mike Goomeer, was dropping another officer off at the Scottish Inn around 11:30 to pick up his car. While there he noticed that nobody was at the office desk and that a Ford automobile described as 1968-1970 white over light tan was parked at an odd angle in a parking space away from the other automobiles. Based upon the information given by Mike Goomeer, Officer James Bolin arrested appellant at 12:10 a.m., some twenty minutes after the robbery was reported. Appellant at the time was driving a white over light olive green 1969 Ford. The automobile was fairly dirty at the time. In the automobile the officers found $667.00 consisting of paper money and five rolls of quarters. The search also revealed a single shot shotgun loaded with single “0” buckshot and a red moneybag containing a bronze key attached to an identification tag reading “Scottish Inn Housekeeper.” Mike Gooneer identified the automobile driven by appellant as the car he had previously observed at the Scottish Inn.
As can be seen from the foregoing summary of the evidence, we can find no merit to appellant’s suggestion that there was no substantial evidence to support the jury’s verdict.
The contention of appellant that the trial court erred in admitting evidence concerning property seized from appellant without introducing the property has no merit. See Swearingin v. State, 251 Ark. 700, 474 S.W. 2d 111 (1971) and Maynard v. State, 252 Ark. 657, 480 S.W. 2d 353 (1972).
Neither can we find any merit to appellant’s contention that he was denied the effective assistance of counsel because of the trial court’s refusal to grant a continuance. The record shows that through his retained counsel he had previously obtained two continuances. On the day before trial he switched counsel and asked for another continuance. Obviously a trial court does not abuse its discretion in denying a continuance in such instances. Any other rule would permit a defendant to get successive continuances so long as he had the money to hire a new lawyer for each court setting.
Affirmed.
We agree: Harris, G.J., and Holt and Roy, JJ. | [
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George Rose Smith, Justice.
In June of 1975 the appellant killed R. C. Edwards, with whom she was living, by shooting him some fourteen times with a rifle. She was charged by information with second-degree murder and with the commission of that felony by means of a firearm. The jury returned a verdict of guilty upon each count and imposed consecutive sentences of ten and five years.
The appellant makes a twofold constitutional attack upon the firearm statute. Ark. Stat. Ann. §§ 43-2336 et seq. (Supp. 1975). It is argued, without the citation of any supporting authority, that the statute denies the equal protection of the laws, because a similar enhanced punishment is not imposed for the commission of a homicide by some other means, as by the use of a knife or poison. Classification, however, is permissible if it has a rational basis and is reasonably related to the purpose of the statute. Dicks v. Naff, 255 Ark. 357, 500 S.W. 2d 350 (1973), cert. den., 415 U.S. 958 (1974). We think it goes without saying that in view of the ever-increasing number of felonies committed by means of firearms, the' legislature was justified in specifying an additional penalty for those offenses. Certainly the appellant has not met her burden of proving facts sufficient to overcome the presumption that the statute is valid.
Alternatively it is asserted, again without the citation of any supporting authority, that the appellant was placed in double jeopardy by the jury’s finding (a) that she was guilty of murder (actually committed with a firearm) and (b) that the sentence should be lengthened by five years under the firearm statute. We rejected a somewhat similar, though not identical, argument in Barnes v. State, 258 Ark. 565, 528 S.W. 2d 370 (1975).
Here, too, the argument is unsound. Unquestionably the legislature may adopt a graduated scale of offenses, as by making assault with a deadly weapon a more serious crime than simple assault. In like manner the legislature might have made second-degree murder committed by means of a firearm a more serious offense than simple second-degree murder. In substance the firearm statute achieves just that result, by allowing the jury to find the accused guilty of simple second-degree murder and then to enhance the punishment upon a further finding that the crime was committed by means of a firearm. Inasmuch as the legislature might have reached the same goal by taking either of two routes, it cannot be said that one solution to the problem is constitutional and the other not.
A secondary contention is. that the trial court was wrong in refusing to give credit upon the sentence for the appellant’s pretrial confinement. In denying counsel’s request the trial judge remarked: “They offered her five years, and she wouldn’t take it.” We do not agree with that reasoning, but the court’s denial of the requested credit was nevertheless justified. The record contains an affidavit of indigency as a basis for the appointment of counsel, but we find no proof that the appellant’s failure to make bond was due to her indigency. In that identical situation we have sustained the trial court’s denial of jail time. Graves v. State, 258 Ark. 477, 527 S.W. 2d 611 (1975).
Affirmed.
We agree. Harris, C.J., and Fogleman and Jones, JJ. | [
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George Rose Smith, Justice.
Upon trial by jury the appellant was found guilty of first-degree rape and was sentenced to a 40-year prison term. Two points for reversal are argued.
First, Duncan testified in his own defense. On cross-examination the prosecutor inquired about Duncan’s guilt in a number of earlier instances, this being a typical question: “In March, the 7th of 1954, in Sacramento, California, were you guilty of burglary?” Duncan denied his guilt with respect to all the offenses except a battery committed in California on July 8, 1953. Upon objection the prosecutor admitted, in chambers, that his questions were taken partly from an F.B.I. “rap sheet”, but that document was not displayed to the jury.
It does not appear from the record before us that the questions were improper. An accused may be asked in good faith, on cross-examination, if he is guilty of having committed a named criminal offense, though he cannot be asked if he was indicted or accused of a crime. Moore v. State, 256 Ark. 385, 507 S.W. 2d 711 (1974); see also the American Bar Association’s Standards Relating to the Prosecution Function and the Defense Function, § 5.7d (Approved Draft, 1971). Here there was no request that the F.B.I. rap sheet be made a part of the appellate record. Consequently, we have no way of determining whether it contained enough information about the various asserted offenses to justify a good faith inquiry about Duncan’s guilt. We do not imply that a mere showing that Duncan had been arrested 20 years earlier in another state upon a certain charge would be adequate information to form the basis for such a question.
It is also argued that the supposed offenses were too remote in time to have any bearing upon Duncan’s credibility. Our cases have not been completely harmonious upon this issue of remoteness. We do not explore the matter, however, because the judgment must be reversed upon another ground. At the retrial the newly adopted Uniform Rules of Evidence will be in force, because new procedural statutes ordinarily apply to pending cases. DeLong v. Green, 229 Ark. 100, 313 S.W. 2d 370 (1958). Rules 608 and 609 make changes in the law with regard to proof of specific instances of prior conduct on the part of the witness and with regard to prior convictions. Ark. Stat. Ann. § 28-1001, Rules 608 and 609, effective July 1, 1976. With the limited information supplied by this record about Duncan’s earlier conduct or convictions, we are not in a position to pass upon the effect of the new rules in this case.
Secondly, a reversal is sought on the basis of a juror’s having read a newspaper account that was published on the morning of the second day of the trial. The story, which appeared in a Jonesboro newspaper (where the case was being tried), contained this statement: “During a lengthy cross examination, Burnett read from a three page Federal Bureau, of Investigation rap sheet listing Duncan’s arrests dating back to 1953.” When the issue was raised upon a resumption of the trial, one juror admitted that he had read the article (although the jurors had been instructed not to read newspaper reports of the trial). In response to questions by the court — questions that were understandably very leading — the juror said that he could put the newspaper account entirely out of his mind and not be influenced by it in any manner. The defense motion for a mistrial was overruled.
The motion should have been granted, especially in view of the earlier protracted cross-examination based upon the rap sheet. The State, in arguing that the court’s ruling was right, relies upon our holding in Howell v. State, 220 Ark. 278, 247 S.W. 2d 952 (1952). It does not clearly appear from that opinion that the newspaper accounts contained any information not already disclosed by the testimony in the case. Here, to the contrary, the press report described a three-page F.B.I. rap sheet, the existence of which had not been made known to the jury. In Shroeder v. Johnson, 234 Ark. 443, 352 S.W. 2d 570 (1962), such a rap sheet was mentioned and displayed during the testimony of a witness, though it was not examined by the jury. The trial judge pointedly and positively instructed the jury to disregard the rap sheet. We nevertheless granted a new trial, because we could not say with certainty that the possibility of prejudice had been removed. Here the necessity for a new trial is even more clear. Hardly any juror, after having admittedly disobeyed the judge’s instructions not to read press accounts of the trial, would confess even a possibility of being influenced by the consequences of his own misconduct. He might very well think that such an admission on his part would result in his being charged with contempt of court. In the circumstances we cannot say with assurance that the appellant was not prejudiced by the incident.
Reversed.
We agreé. Harris, C.J., and Fogleman and Jones, JJ. | [
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PER CURIAM
The Clerk’s refusal to file this appeal raises the issue of how to calculate the seven months limitation in Ark. Stat. Ann. § 27-2127.1 (Supp. 1975) for docketing appeals when a motion for new trial has been properly filed and acted upon pursuant to Ark. Stat. Ann. § 27-2106.3, § 27-2106.4 and § 27-2106.5. The record shows that the trial court announced its decision on February 24, 1976 and entered a decree thereon on April 6, 1976. The petitioner here, however, filed a motion for new trial on the basis of newly discovered evidence on March 31, 1976, and on April 29, 1976 the trial court by order set the hearing for May 21, 1976. Following the taking of additional evidence on May 21st, the trial court formally denied the motion for new trial on June 2, 1976. On that same day petitioners filed their notice of appeal from the decree of April 6, 1976 and the order denying the motion for new trial. Thereafter, the trial court properly granted an additional extension of time for the preparation of the transcript. When the record was presented to the Supreme Court Clerk for filing, the Clerk refused to file the record because more than seven months had elapsed from the time the original decree was entered on April 6, 1976.
As pointed out in St. Louis Southwestern Ry. Co. v. Farrell, 241 Ark. 707, 409 S.W. 2d 341 (1966), the provisions of Ark. Stat. Ann. § 27-2106.3 through § 27-2106.6 (Supp. 1975), were enacted to remedy an awkward situation created by Act 555 of 1953 with reference to motions for new trial. While that case only involved the time for filing of the notice of appeal it also demonstrates the awkward situation that would be created by calculating the seven months from the date of the entry of the original decree as the Clerk has done here — i.e. a trial court by holding a motion for new trial under advisement for more than seven months could thwart an appeal on any matter except that involved in the motion before the court notwithstanding the fact that the complaining party’s time for giving notice of appeal had not expired. When we consider the practical effect of giving a party ten days from the denial of a motion for new trial in which to file a notice of appeal, we must conclude that the seven months limitation in Ark. Stat. Ann. § 27-2127.1 (Supp. 1975), must be calculated from the date of an order denying a properly filed and presented motion for new trial pursuant to Ark. Stat. Ann. § 27-2106.3 through § 27-2106.5 (Supp. 1975).
It follows that the petition for Rule on Clerk to file the record in this case must be granted. | [
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Darrell Hickman, Justice.
On April 15, 1975 the Appellees signed an Offer and Acceptance Agreement to purchase two houses for a total of $20,000.00. The Offer was accepted on the same date. The Appellees made a down payment of $150.00, and the balance was to be paid in cash. The Agreement was silent as to the date the property was to be transferred. The Offer and Acceptance Agreement contained a clause that the risk of loss until the closing date was assumed by the seller. On April 23rd the Appellees purchased from the Appellant fire and extended insurance coverage on each house in the amount of $11,000.00. On April 30th one of the houses burned to the ground. The Appellant declined to pay the claim.
The sole issue submitted to the Court, by stipulation, was whether or not the Appellees had an “insurable interest” in the property at the time of the fire. The lower court held that the Appellees did have an insurable interest and awarded judgment in the sum of $10,950.00, plus 12% statutory penalty and $4,000.00 attorney’s fee.
The Appellant contends that the Appellee did not have an insurable interest at the time of the loss and that the $4,-000.00 attorney’s fee was excessive and should be reduced.
An insurable interest has been defined in Arkansas by the Legislature in Ark. Stat. Ann. § 66-3205 (2) (Repl. 1966).
“Insurable interest” as used in this section means any actual, lawful, and substantial economic interest in the safety of [or] preservation of the subject of the insurance free from loss, destruction, or pecuniary damage or impairment.
It is undisputed that the Appellees paid $150.00 towards the purchase price of the property. Also, the Appellees had, on its face, a legal, enforceable contract.
The record contains no evidence that the Appellees made a material misrepresentation to the Appellant insurance company.
In the case of Briscoe v. National Union Fire Insurance Com pany, 248 Ark. 220, 451 S.W. 2d 205 (1970), the Court ruled on a similar problem and held that the insurance company was not liable. However, in the Briscoe case, there was a finding that the claimant suffered no actual loss of cash or property.
The Arkansas Statutes clearly state that an insurable interest means any actual, lawful, and substantial economic interest in the property.
In the absence of misrepresentation or fraud, and based on the facts that are recited, the Appellees clearly had an insurable interest.
The attorney’s fee is approximately one third of the amount of the judgment and is found to be reasonable. No additional fee will be allowed on appeal.
Affirmed.
We agree: Harris, C.J., and Fogleman and Roy, JJ. | [
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George Rose Smith, Justice.
The executors of the will of Pearl Vick filed this petition for a construction of its residuary clause, which reads: “All the rest and residue of my estate, whether real, personal or mixed, I give, devise and bequeath [to] Kenneth Binns to distribute among my relatives as he sees fit. ” The probate court held that the testatrix intended to create a trust, but the beneficiaries were so indefinite that the attempt failed; so the residual estate passed to Miss Vick’s heirs, by intestacy. For reversal Kenneth Binns contends (a) that no trust was intended, (b) that if a trust was intended it did not fail, and (c) that the bequest should be construed as an outright gift to him.
In considering the situation that existed when the testatrix made her will, we adhere to this familiar rule of law: “We must look to the will to determine the testator’s intention, but in getting this view we should place ourselves where he stood, and should consider the facts which were before him in deciding what he intended by the language which he employed.” Eagle v. Oldham, 116 Ark. 565, 174 S.W. 1176, 1199 (1915). Such extrinsic evidence is admitted not to show what the testator meant, as distinguished from what the words of the will express, but to show the meaning of the words that he used. Ellsworth v. Ark. Nat. Bank, 194 Ark. 1032, 109 S.W. 2d 1258 (1937).
Pearl Vick made her will a few months before she died at the age of 84, survived by a brother, two sisters, and the descendants of eight other brothers and sisters. She devised her only real property, a half interest in a house, to two nephews, A.O. Vick, Jr., and the appellant, Kenneth Binns, who were named as executors. There were a few specific bequests to others including two rings and a television set. An electric fan was left to Kenneth. According to Kenneth’s candid testimony, his aunt’s only other possessions were her clothes, to which the residuary clause presumably applied. What Miss Vick never knew was that she was entitled to an inheritance of about $6,000, which was paid to her estate after her death. By the petition now before us the executors of Miss Vick’s will asked the probate court to determine the disposition of that money.
The trial judge’s decision was right. Kenneth, in disputing his aunt’s intention to create a trust, argues that since the will was drafted by an attorney, the absence of any reference to a trust shows that none was intended. Not so. It is an elementary rule of law, doubtless known to the attorney, that a trust may be created without the use of the words “trust” or “trustee.” Thomason v. Phillips, 192 Ark. 107, 90 S.W. 2d 228 (1936); Cockrill v. Armstrong, 31 Ark. 580 (1876). More important, the attorney must have expected the residuary clause to apply only to the testratrix’s personal effects, such as her clothing. In the circumstances there was no occasion for him to waste time and expense in creating a formal trust.
We must, however, apply the language of the residuary clause to the situation that actually arose. Ark. Stat. Ann. § 60-409 (Repl. 1971). Laying aside the possibility of an outright gift to Kenneth, which we shall discuss in a moment, an intended trust is the most reasonable and most practical inference from the language of the will. The question then arises, what did the testatrix mean by her direction that Kenneth distribute the property “among my relatives as he sees fit”?
The word “relatives,” when used in a will, is ordinarily construed in either of two ways. It may be taken to mean the testator’s legal heirs, in which case the bequest is valid. Or it may be taken to mean all persons related to the testator, in which case the bequest usually fails for uncertainty. The authorities are examined in the annotation following Hahn v. Bernheim, 57 A.L.R. 1169, 82 Mont. 198, 266 Pac. 378 (1928).
Here Kenneth is not entitled to a reversal upon either interpretation. If the word “relatives” was used in its broad sense, the trust fails, as the probate judge held. If it was used in its narrow sense, Kenneth can claim no beneficial interest in the estate. He is not an heir at law of his aunt, his mother having survived her sister, the testatrix. Here it should be emphasized that there is no appeal by the testatrix’s heirs or other relatives or by the co-executors of the will. Kenneth alone comes to this court, as an individual, and thus cannot prevail without showing that the judgment is pecuniarily prejudicial to him. No such showing is made.
Finally, the residuary clause cannot fairly be construed to express an intent to make an outright gift to Kenneth. The transfer of the property to Kenneth, “to distribute among my relatives as he sees fit,” is not another way of saying, “I leave all my residuary estate to Kenneth for his own benefit.” There had already been a specific bequest of a fan to Kenneth. That provision would have been unnecessary had the testatrix meant for all the residuary estate to go to Kenneth. It is also argued that the testatrix’s language is merely precatory, but we think it to be imperative under the reasoning of our earlier cases. See Cockrill v. Armstrong, supra; Gregory v. Welch, 90 Ark. 152, 118 S.W. 404 (1909).
Affirmed.
Byrd, J., dissents. | [
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Darrell Hickman, Justice.
This case involves the review of a finding by a juvenile court that a minor, Debbie L. Hatcher, was a delinquent and the judgment that she be committed to the Arkansas State Training School. The charge at the hearing was that she had committed attempted battery by trying to poison another girl.
At the proceedings before the juvenile court on the poisoning charge, records of a previous charge of shoplifting and a finding of guilt were considered by the juvenile court in finding that the minor should be committed to the training school.
The judgment was appealed and the circuit court found, dc novo, that the minor was guilty of attempted battery, beyond a reasonable doubt, and should be committed to the training school. In the disposition of the case, the court considered the records and evidence regarding the shoplifting f'harge over the objection of counsel. The objection was the minor did not have counsel nor was the right to counsel waived at the hearing on the shoplifting charge. It is not disputed that the minor did not have counsel at the hearing on shoplifting. The circuit court made a written finding that the minor was afforded her constitutional rights, in the hearing on the shoplifting charge, and specifically waived the right to counsel.
The record regarding the hearing on the shoplifting charge consists of a petition, a printed form-order and a voluntary supervision agreement. The printed form-order recites that the minor and the parents were advised of their right to counsel. There is no mention in the form of waiver of the right to counsel. During the circuit court hearing, the probation officer testified that the juvenile court referee had read the minor and her parent their rights, according to the rights form, after the minor failed to acknowledge them. The record is silent beyond these facts.
The law requires that a juvenile, charged with an offense which would subject the child to a finding of delinquency and a loss of liberty by incarceration in a penal institution, must be afforded the same rights to counsel that an adult has in a criminal proceeding under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In Re Gault, 387 U.S. 1 (1966).
In the Gault case the court stated:
. . . the child and his parents must be notified of the child’s right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child.
They had a right expressly to be advised that they might retain counsel and to be confronted with the need for specific consideration of whether they did or did not choose to waive the right.
The court went on to say that acknowledgement of the right to have counsel was not a waiver.
In this case there is no evidence that the child or the parent waived the right to counsel, or were told they must waive that right, and, therefore, it was error for the juvenile court and the circuit court to consider any records or evidence regarding the previous charge. Therefore, the decision must be set aside and the case remanded.
The other allegation of error is the evidence is insufficient to adjudge this minor delinquent. There is sufficient evidence to support the findings of the juvenile court and the circuit court that Debbie L. Hatcher was guilty beyond a reasonable doubt of the act of attempted battery.
This case is remanded to the circuit court with instructions that the matter be further remanded to the county court for proceedings not inconsistent with this opinion.
Reversed and remanded.
We agree. Harris, C.J., and Fogleman and Roy, JJ. | [
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George Rose Smith, Justice.
Charged with first-degree murder in the shooting of Jason Crutchfield, the appellant was found guilty of second-degree murder and received the maximum sentence, 21 years. His principal argument for reversal is that the court should have submitted the issue of self-defense to the jury.
The court was right in refusing to submit that issue. We find no substantial evidence from which the jury could have found that Hughes acted in self-defense. According to the State’s eyewitnesses, the homicide occurred in a pool hall, during the daytime. Hughes was the aggressor, accusing Crutchfield of being “one of them smart ones.” Crutchfield was unarmed and was making no hostile demonstration that might have caused Hughes to be fearful for his own life. According to the proof, Hughes held a pistol some two or three inches from Crutchfield’s chest and shot with little or no provocation.
Hughes elected not to testify. His theory of self-defense rests principally upon his own out-of-court statements, which were introduced by the State as part of its case in chief. Immediately after the homicide Hughes fled from the state and was eventually apprehended in Alaska. The State showed that in the course of his flight Hughes admitted to witnesses that he had shot Crutchfield, but he further stated that he was only trying to scare him and that he thought Crutchfield had a gun. There is, however, nothing whatever in the testimony to warrant the jury in finding that Hughes had any reason to believe that Crutchfield, even if he had been armed, had any intention of inflicting bodily harm upon Hughes. There is also testimony that some sort of argument took place between the two men. Needless to say, one who engages in an argument with another person is not entitled to kill his adversary merely because he thinks him to have a gun. Yet here the proof stops at that point and consequently falls short of presenting a submissible issue of self-defense.
The appellant is correct, however, in asking that he be given credit for pretrial jail time. The State admits that when a defendant receives the maximum sentence, as here, he is entitled to credit for pretrial jail time that was attributable solely to his inability to make bail, owing to indigency. Smith v. State, 256 Ark. 425, 508 S.W. 2d 54 (1974). That is the situation here with regard to the appellant’s pretrial confinement in Arkansas from September 28, 1975, until January 30, 1976. Credit must be given for that period. On the other hand, from August 1 until September 28 Hughes was confined in Alaska, as a fugitive from justice awaiting transportation back to Arkansas. That delay was obviously attributable not to his inability to make bond but to his having fled from Arkansas to Alaska. Consequently no credit should be given for those 58 days.
The judgment, as so modified, is affirmed.
We agree: Harris, C.J., and Fogleman and Jones, JJ. | [
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PER CURIAM
Appellee’s motion to dismiss the appeal is denied. The motion is based upon non-compliance with Ark. Stat. Ann. § 27-2127.1 (Supp. 1975) and Rule 26 A, Rules of the Supreme Court, 3 A Ark. Stat. Ann. (Supp. 1975, p. 135) in that: notice of application for extension of time for filing the record in this case was not given to appellee’s attorney; the order granting the extension did not recite that a reporter’s transcript of the evidence had been ordered; and the order did not recite that the extension was related to the inclusion in the record of evidence stenographically reported.
The failure of an appellant to take further steps to secure the review of a judgment or decree, after having given notice of appeal does not affect the validity of the appeal, but is ground for such action as this court may take, which may include dismissal of the appeal. Ark. Stat. Ann. § 27-2106.1 (Repl. 1962). In this case we do not deem it appropriate to dismiss the appeal.
It is clear from the affidavit of the court reporter filed with appellant’s response that the extension was based upon her inability to complete the transcript due to her heavy workload and that appellant’s application for extension was made upon her request. In this respect the situation is unlike that in Perry v. Perry, 257 Ark. 237, 515 S.W. 2d 640. Although it is not seriously contended that appellee’s attorney was served with notice of the application, it is clear that appellee’s attorney inquired of the clerk of the trial court some time after the expiration of 90 days after the notice of appeal was filed and learned that the motion had been filed and the extension granted. Yet appellee took no action in the matter until more than 150 days had elapsed after the date of filing of the notice of appeal, when notice was given to appellant’s attorney that appellee would move to dismiss. We cannot agree that appellee’s showing of prejudice is sufficient basis for dismissal of the appeal in view of the fact that if it had been greatly prejudiced it could have availed itself of the procedure set out in Norfleet v. Norfleet, 223 Ark. 751, 268 S.W. 2d 387.
Hickman, J., not participating. | [
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DONALD L. CORBIN, Justice.
| Appellant, Doyle Dewayne Frye, appeals the judgment of the Benton County Circuit Court convicting him of the rape of A.C., his then-nine-year-old niece, and sentencing him as a habitual offender to life imprisonment. Our jurisdiction is pursuant to Ark. Sup.Ct. R. 1 — 2(a)(2). For reversal of the judgment, Appellant alleges the trial court erred in making three evi-dentiary rulings. We find no merit to the arguments and affirm the judgment of conviction, which was entered pursuant to a jury verdict.
Appellant does not challenge the sufficiency of the evidence; therefore, only a brief recitation of the facts and evidence is necessary. The State alleged that Appellant raped his niece by penetrating her vagina digitally and orally during the late night of August 1 or the early morning of August 2, 2006. A jury heard testimony from multiple witnesses including the victim, other family members, and law enforcement officials about the events and 12circumstances occurring before, during, and after the rape. We relate the evidence in detail only as required to understand Appellant’s three assignments of error.
As his first point for reversal, Appellant alleges the trial court erred in admitting the hearsay testimony of the child-victim’s mother, Bobbie Jean Murchison, concerning statements the child made to her about the rape. The trial court allowed the testimony as an excited utterance, over Appellant’s objection that the statement was made after a significant delay following the startling event and in the absence of testimony that the child was still under the effects of the event.
On appeal, Appellant points out that the testimony was about an event that occurred, by the mother’s own admission, prior to 2:00 a.m. that morning. Appellant thus emphasizes there was a significant break in time between the alleged event in the early morning and the evening when the family had moved into a new apartment. Appellant further emphasizes that the child’s statement was made in response to questioning from her mother, rather than a statement blurted out in response to the alleged stressful event. In sum, argues Appellant, the alleged incident and excitement had clearly ended that eve ning by the time the family had moved into their new apartment when the victim made the statement.
Appellee responds by pointing out that this court has followed the trend observed and discussed in Smith v. State, 303 Ark. 524, 798 S.W.2d 94 (1990), of allowing an expansion of the time interval between the startling event and the statement when the | sdeclarant is a child. Citing Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986), Appellee further responds that excited utterances may come as answers to questions, particularly from victimized children.
Arkansas Rule of Evidence 803(2) provides an exception to the hearsay rule for excited utterances, regardless of the availability of the declarant. For the exception to apply, there must be an event which startles or excites the declar-ant. Rodriguez v. State, 372 Ark. 335, 276 S.W.3d 208 (2008). In addition, it must appear that the declarant’s condition at the time was such that the statement was spontaneous, excited or impulsive, rather than the product of reflection and deliberation. Id. The statements must be uttered during the period of excitement and must express the declarant’s reaction to the event. Id. It is within the circuit court’s discretion to determine whether the statement was made under the stress of excitement. Id.
This court has recognized there are several factors to consider when determining if a statement falls under the excited utterance exception in Rule 803(2): the lapse of time, the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event, and the subject matter of the statement. Smith, 303 Ark. 524, 798 S.W.2d 94. When adopting these factors from the decision in United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980), this court observed that the lapse of time between the startling event and the out-of-court statement, although relevant, is not dispositive. Smith, 303 Ark. 524, 798 S.W.2d 94. This court observed further in Smith the fact that the declarant’s 14statement was made in response to an inquiry was likewise not controlling. Id.; see Jackson, 290 Ark. 375, 720 S.W.2d 282.
In this case, the evidence showed that the nine-year-old declarant was raped both digitally and orally by her uncle in the middle of the night, dismissed shortly thereafter by her sleeping mother when she was searching for another place to sleep, and then evicted along with her parents and siblings the following morning and forced to find a new place to live. It was while unpacking and settling in the new apartment that the child victim made the challenged statement about the abuse that occurred during the early morning hours. Her mother’s husband observed something wrong with the child and asked her mother to check on her. After doing as her husband suggested, the mother checked on her daughter and stated the child was crying, upset, and not her normal self when she made the challenged statement that she was glad that Appellant “didn’t come to live with us.... because he had been touching her and he licked her ... and she didn’t like the way that that felt. And he licked her all the way down and pulled her panties to the side.”
This court has observed that sexual abuse is á startling event within the meaning of Rule 803(2). Killcrease v. State, 310 Ark. 392, 836 S.W.2d 380 (1992). Whether the statement was made under the stress of the excitement of the event rather than after intervening reflection and deliberation is a matter included within the trial court’s discretion to admit or exclude evidence, and we will not reverse a trial court’s decision regarding the admission of evidence absent a manifest abuse of discretion. Rodriguez, 372 |5Ark. 335, 276 S.W.3d 208. The fact that the declarant in this case is a young child and a victim of rape are certainly appropriate factors for the trial court to consider. Also appropriate to consider is the fact that the declar-ant was undergoing the continued stress of her family’s eviction, finding a new place to live, and then moving. Under these circumstances, it is quite possible this was the child’s first real opportunity to report the startling event. See Smith, 303 Ark. 524, 798 S.W.2d 94 (citing Morgan v. Foretich, 846 F.2d 941 (4th Cir.1988)). Although it is not known the exact number of hours that had elapsed, the statement was made less than twenty-four hours following the startling event and in response to her mother’s questions. As we stated in Smith, 303 Ark. 524, 798 S.W.2d 94, these factors are not controlling of the analysis, especially when considered in light of the other factors, such as the brutal criminal event, the young age of the victim, the upset demeanor of the victim, and the subject matter of the statement. For these reasons, we conclude Appellant’s argument is without merit and the trial court did not abuse its discretion in ruling the challenged testimony admissible under the excited-utterance exception to the hearsay rule.
As his second argument for reversal, Appellant contends the trial court erred in allowing Investigator Richard Feast to give his opinion as to the truthfulness of Appellant’s statements made during a custodial interview. Investigator Feast testified for the State about his arrest and subsequent interview of Appellant. On cross-examination, Investigator Feast stated that he informed Appellant of his Miranda rights, that Appellant was cooperative and Rstrongly maintained his innocence from the very beginning, but that his body language indicated he had something to hide. Defense counsel continued asking questions about Appellant’s demeanor during the interview, even going so far as to ask, “Are you an expert at body language?” Investigator Feast responded, “I’ve been to school on it, yes.” After further questions from defense counsel about his training, the investigator clarified that he was not holding himself out as an expert on body language. On redirect examination, the prosecution inquired further into Investigator Feast’s training in interview techniques. He explained that based on his training and on his experience of interviewing several hundred witnesses, he felt Appellant’s body language indicated he was being deceptive.
At this point, Appellant’s counsel objected as follows: “Judge, I believe at this point the State is trying to elicit testimony in the form of an expert opinion, and we feel that Investigator Feast had in no way been qualified as an expert.” After the State responded that the defense had opened the door, Appellant’s counsel stated, “Well, if he is going to testify as to a conclusion reached, we feel that that would be in the form of an expert opinion and that he would need to be specially qualified for that.”
The trial court allowed the testimony to continue “to a certain extent,” not as an expert but because the defense had initiated the line of questioning and therefore the State should be allowed to clarify as to why the investigator continued to ask repeated questions in the face of Appellant’s consistent denials that he touched the victim inappropriately. Investigator Feast then testified that he continued to ask Appellant questions despite shearing denials, because “over a period of time sometimes they do come out and tell the truth and that’s what I was searching for.” The State inquired whether the investigator felt like what Appellant was saying was the truth. Investigator Feast replied, “No.” The testimony then approached a new subject, without any further objection by Appellant.
On appeal, Appellant contends that Investigator Feast’s testimony was inadmissible as expert testimony under Ark. R. Evid. 702 because it would not aid the jury in understanding the evidence or in determining a fact in issue. Appellant contends the lay jurors were fully competent to determine whether Appellant was telling the truth. Therefore, citing Buford v. State, 368 Ark. 87, 243 S.W.3d 300 (2006), he argues, the challenged testimony invaded the province of the jury as it was not the type of testimony that is beyond the ability of the jury to understand and draw its own conclusions. We are precluded from reaching the merits of this argument, however, because this point is not preserved for appellate review.
This court has repeatedly held that arguments not raised at trial will not be addressed for the first time on appeal. Buford, 368 Ark. 87, 243 S.W.3d 300. Moreover, parties cannot change the grounds for an objection on appeal, but are bound by the scope and nature of their objections as presented at trial. Id. At trial, Appellant objected on the grounds that the State was attempting to elicit expert-opinion testimony from Investigator Feast without first qualifying him as an expert. Appellant did not object below, as he now argues on appeal, to the investigator’s testimony as it related to Appellant’s truthfulness. The scope |sand nature of Appellant’s objection at trial went solely to the witness’s qualifications or lack thereof as an expert. Appellant cannot now argue for the first time on appeal that the investigator’s testimony went to the matter of Appellant’s truthfulness and invaded the province of the jury.
As his third and final assignment of error, Appellant points to the admission into evidence of his prior convictions in Florida for misdemeanor lewd battery with a child and felony driving under the influence with a suspended or revoked license. These convictions were admitted during the cross-examination of Appellant’s wife, Janice Frye. The trial court ruled they were admissible because Appellant had opened the door to character evidence on direct examination.
The State responds that this issue is not preserved for review; however, it is clear from the record that two side-bar discussions were held where the issue of opening the door to character evidence was discussed. At both side-bars, Appellant argued that he had not opened the door for character evidence because he had not asked Mrs. Frye to comment on Appellant’s good character; rather, he simply inquired about Appellant’s opportunity to commit the abuse in the very narrow context of her ability to observe the events going on in the living room from her vantage point in the bedroom. Given these two side-bar discussions, we conclude Appellant’s objections below were specific to preserve the issue of character evidence and prior convictions for our appellate review.
| (Alternatively, the State responds that the trial court was correct in ruling Appellant opened the door to character evidence. We agree that Appellant did indeed open the door for his prior convictions when his wife testified on direct that she had been married to Appellant for sixteen years, that over those sixteen years she had gotten to know Appellant very well, and that she did not believe that Appellant was guilty of these charges.
Under Ark. R. Evid. 404(a)(1), evidence of a person’s character or a trait of his character is not admissible for proving that he acted in conformity therewith on a particular occasion, except by the accused or by the prosecution to rebut the same. Thus, “[o]nce the admissibility of character evidence is established under Rule 404, Rule 405 establishes the methods of proof which may be utilized.” Smith v. State, 316 Ark. 407, 411, 872 S.W.2d 848, 845 (1994). Rule 405(a) provides that once character evidence is admissible, one permissible method is reputation or opinion testimony, and further that “[o]n cross-examination, inquiry is allowable into relevant specific instances of conduct.” Smith, 316 Ark. at 411, 872 S.W.2d at 845 (quoting Ark. R. Evid. 405(a)).
Mrs. Frye stated that during her sixteen-year marriage to Appellant she had gotten to know Appellant pretty well and that she did not think Appellant was guilty of the crime charged. This testimony came out during the first five questions asked on direct examination. Despite Appellant’s contention to the contrary, the only purpose these questions could have had at this point in Mrs. Frye’s testimony was to show that Appellant |inwas not a person who was disposed to commit the crime charged. Therefore, Mrs. Frye was a character witness according to Rule 404.
This court has recognized that when a defendant produces a character witness, the defendant opens the door to evidence that might otherwise be inadmissible. Smith, 316 Ark. 407, 872 S.W.2d 843. In Smith, this court stated:
Rule 405 clearly provides that in cross-examining a defendant’s character witness, it is permissible to inquire into the witness’ knowledge of specific instances of conduct. Such cross-examination tests the witness’s knowledge of the defendant’s reputation and that, in turn, may go to the weight to be given his opinion. Further, Rule 405 places no limit, other than relevancy, on the kind of instances of misconduct with respect to which cross-examination may occur.
Id. at 411-12, 872 S.W.2d at 845 (citations omitted). Thus, in Smith, this court upheld the admission of prior convictions when offered to rebut the defendant’s opinion testimony. Accordingly, we conclude the circuit court did not err in ruling that Appellant had opened the door for the prior convictions through his wife’s opinion testimony.
Pursuant to Ark. Sup.Ct. R. 4r-3(h), the record in this case has been reviewed for all objections, motions, and requests made by either party, which were decided adversely to Appellant, and no prejudicial error has been found.
The judgment of conviction is affirmed. | [
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McCULLOCH, C. J.
Appellant Fairbelle Byrkett was the widow of A. W. Shirey, who died in Lawrence County, Arkansas, in the year 1910, and this appeal is from an order of the chancery court of Lawrence County striking out a bill of review filed by her attacking the correctness of a consent decree of that court rendered in the year 1910 dividing the property of said Shirey. It appears from the allegations of the bill of review filed by appellant that Shirey left a will whereby he bequeathed and devised all of his property to the Grand Lodge of Independent Order of Odd Fellows, but tbe will was contested by tbe heirs of Shirey, and appellant elected to take ber dower as widow; that after tbe filing of tbe contest of the will tbe widow and tbe beirs, and tbe Grand Lodge of Odd Fellows entered into a compromise written agreement whereby appellant as widow should take forty per centum of tbe gross value of the estate, each of tbe two beirs ten per centum, and tbe Grand Lodge of Odd Fellows forty per centum, after payment of debts; that in order to carry out the contract a joint suit was filed in tbe chancery court for tbe division of tbe property and tbat appellant’s attorneys, whom she bad previously employed, assumed tbe authority to enter into a new contract changing the terms of the old contract so tbat appellant was to get only forty per centum of the net value of the estate after payment of debts. Appellant alleged in the bill of review tbat she bad not authorized ber attorneys to change the contract, and tbat she was sick and unable to attend tbe session of tbe chancery court at which tbe final decree was entered by consent of all parties dividing tbe estate in accordance with tbe provisions of the'last contract. Tbe bill of review was stricken out on tbe ground tbat it bad been filed without permission of the court.
It is settled by the decisions of this court tbat it is not necessary to obtain leave of tbe court to file a bill of review founded on errors of law apparent on tbe face of tbe record, but tbat it is necessary to first obtain leave of the court before filing a bill of review based on newly discovered evidence. Long v. Long, 104 Ark. 562. Counsel for appellant contend tbat tbe present proceedings fall within the first rule, and set forth error in tbe proceedings, apparent on tbe face of tbe record. We do not think tbat counsel are accurate in their analysis of tbe charge set forth in tbe bill, for tbe statement does not make out a charge of error on tbe face of tbe record. The two contracts and tbe decree of tbe court, with all of its recitals as to appearances of the parties is set forth in the bill of review, but the substance of the charge is that the attorneys exceeded their authority in entering into the new contract and.in consenting to the new decree, and that appellant was sick and unable to attend the session of the court. This in effect is an allegation of additional evidence to show the lack of authority on the part of the attorneys and the inability of appellant to attend the trial to protect her rights. From the facts recited in the record iself, the court could not. have entered any other decree than the one it did render dividing the property in accordance with the terms of the agreement. The matters set forth in the bill of review merely tended to show that evidence could be adduced, if an opportunity was given, to show that the decree was erroneous because the attorneys had no authority to enter into a compromise agreement.
It is not contended that there was any abuse of the court’s discretion in refusing to allow the bill of review to be filed; in fact, the present appeal is not from an order of the court refusing to grant permission to file a bill of review, but the appeal is to test the question of the right» to file a bill of review without obtaining the court’s consent.
Affirmed. | [
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SMITH, J.
Harold and Ellis Jenkins are brothers, and were jointly indicted as accessories before the fact to robbery. Their trials were separate, but both were convicted, and they have each prosecuted an appeal to this court. The questions raised in these appeals are so similar that we dispose of them in a single opinion. The principals in the crime were D. F. Lemmons and John Quattlebaum, and-the indictment alleged that it was committed by robbing R. E. Kent, cashier of the Bank of El Paso, of $1,700, lawful money of the United States, of the value of $1,700 and the ownership of the money was alleged to be in Kent as cashier of the bank.
Both Quattlebaum and Lemmons confessed their guilt, and testified at the trial that the Jenkins boys were parties to the conspiracy to rob the bank, although they were not present when the crime was committed.
(1) There was a motion for a continuance in each case, on account of the absence of Harry Bans, who, if present, would have testified, according to the recitals of the motion, that he had talked with Quattlebaum about the case, and Quattlebaum had told him that neither of the Jenkins boys had advised or encouraged the commission of the crime, and neither of them had any part in it. In the motion filed in Harold Jenkins’ case, it was recited that Henry Pearl, an absent witness, would testify that he was with Harold Jenkins on Friday and Saturday before the commission of the robbery, and that Jenkins was not with Quattlebaum or Lemmons on those days and had no conversation with them. This testimony was important because Quattlebaum and Lemmons had fixed Friday and Saturday as the time when the final details of the robbery were perfected.
It appears, however, that the sheriff made a non est return on the subpoena three - days before the day of trial, and that the defendants knew the witnesses were not, residents of the county to whose sheriff the subpoenaes were issued, and no showing is made that the sheriff to whom the subpoena was issued and delivered could ever have served it. The motion recites that depositions can, and would be taken if time were granted and the case postponed to a later day in the term of the court.
This testimony appears to be largely enmnlative to that of four witnesses who were present at the trial and did testify, and we can not say that the court abused its discretion in overruling the motion for a continuance. Holub v. State, 130 Ark. 245.
The real and difficult question in each of the cases is whether there was a variance between the allegations of the indictments and the proof in each case. Kent, the cashier, testified that the money stolen was the property of the Bank of El Paso, a corporation, and that it did not belong to him, and none of it was on his person; but he also testified that he was the officer of the bank in charge of the money, and that it was taken from the bank and out of his custody and possession by putting him in fear. It is earnestly insisted by counsel for appellant that the allegation of ownership being essential, there is a fatal variance, because the testimony shows the bank to have been the owner of the money, and not Kent, the cashier. This same question was raised in the case of State v. Montgomery, 79 S. W. 693, where the Supreme Court of Missouri decided that a clerk having possession of his employer’s money has a sufficient ownership thereof to support an allegation of ownership in the clerk in an indictment for robbery.
This is a well considered case, and, in reaching the conclusion stated above, the court reviewed numerous authorities dealing with the characteristics of the crime of robbery which distinguishes it from other forms of theft, and the reasoning of the court is so cogent that we quote liberally from the opinion. It was there said: “The question presented by this record # * * is whether a clerk left in charge of, and intrusted with the care of, his employer’s cash, with authority to sell his goods and make change out of the drawer, is not a person in whom the ownership of such money may be laid, as against a robber * * * The question is one of much practical moment. Mr. Mills bore a contract relation to Mr. Radford, by which, in consideration of his wages as clerk, the law, in the absence of an express agreement, implied a promise on his part to exercise care and prudence in the management of Mr. Radford’s store in the course of his employment. Certainly the law imposed upon him the obligation of collecting the price of the goods he sold, and of accounting for the same. He was, for that purpose, intrusted with the cash register ; and by virtue of his employment he was authorized to take money out of the register to make change when he sold an article, and was required to place his receipts in the register. He was an agent for hire, and Mr. Radford had, by the course- of business adopted delivered to him the possession of the cash in the register, in law, as effectually as if he had gone through the most formal act of delivery. The delivery in this case, while not the transfer of the absolute title to Mr. Rad-ford’s money, was a transfer of its possession, with its accompanying temporary rights. Even bailees without reward have an interest sufficient to enable them to sue tort feasors, and to maintain trover against all strangers to the bailment who wrongfully invade their possession. Possession is prima facie evidence of right, and the party who seeks to dispossess should show a better title; and, moreover, the possessor sustains a responsibility to the true owner. ’ ’
After citing the decision of the Court of Appeals of New York in the case of Brooks v. People, 49 N. Y. 436, to the same effect, the opinion of the Supreme Court of Missouri continues:
“The same question again arose on a statute in the same words in State v. Adams, 58 Kan. 365, 49 Pac. 81, and the court very aptly says: ‘The characteristic of robbery, distinguishing it from other forms of larceny, lies in the violence inflicted on the person of one in possession of the property, or in putting him in fear of injury to his person. So far as the mere taking is concerned, the offense is neither greater nor less if filched in any other way. The gravity of the offense lies in the breach of the peace, in the personal violence inflicted, or the terror excited in the mind of the individual robbed. At common law it was never held that the property taken must belong to the person robbed. It was sufficient that the property belonged to the person robbed or some third person.’ ‘As against the robber, a servant has the same right and rests under the same duty to preserve and defend his possession of the property that the owner has. He is the custodian, and has a right to oppose with violence, if necessary, the violence offered by the robber. As against him, he stands as owner, and we think the statute intended to extend to him the full measure of protection that it gives to the owner or bailee. The principles governing civil actions for the recovery of property wrongfully taken have no application in a case of robbery.’ ” See, also, Commonwealth v. Butts, 124 Mass. 449.
(2) We approve the decisions of these courts, and the reasoning leading to their conclusions, and we follow their lead in holding that the ownership of property taken by robbery may be alleged to be in the party from whom the property was taken, where the property was taken either directly from the person or in the presence of the party robbed by the exercise of force or a previous putting in fear. Clary v. State, 33 Ark. 561; Routt v. State, 61 Ark. 594.
(3) The indictment alleged that the money stolen was lawful money of the United States; and it is said the testimony does not establish this allegation. It does not appear that any witness said, in express terms, that the money stolen was lawful money of the United States. But this is the necessary meaning of all that was said on that subject. The cashier described the money as $645 in gold, and as currency and silver and minor coim Other witnesses used the same terms, and also referred to portions of the money as greenbacks and as bills, and it is perfectly obvious that in each instance the witness was talking about the medium of exchange circulating in this country which we call money and which is measured in dollars, and we conclude, therefore, that there was no failure of proof on this subject. Cook v. State, 196 S. W. 922.
(4) It is insisted that error was committed in permitting witnesses to detail conversations had with the defendant prior to the arrest of one, and at the time of the arrest of the other, and subsequent to the robbery, because they were indicted as accessories before the fact. But any admission of a defendant, whenever made, which tends to show his connection with the crime charged in the indictment, is admissible against him.
(5) Affidavits were filed touching certain alleged misconduct of the jury in the Ellis Jenkins case. An affidavit of a juror was filed which recited that the jury retired to a room in the courthouse where there was a set of the Arkansas Reports, and that, after the jury had failed to agree, a member of the jury found and read the decision of this court in the case of Fox v. State, 102 Ark. 393, whereupon the jury then agreed upon its verdict. The evidence of this fact appears from the affi-' davit of the juror, and the statute forbids a juror from thus impeaching his verdict. Section 2423, Kirby’s Digest. The only competent evidence on this subject consisted of the affidavit of an attorney, who stated only that there was a set of the Arkansas Reports in the room to which the jury retired; and a new trial can not be granted on that evidence.
Exceptions were saved to the action of the court in giving, and in refusing to give, instructions on the subject of the sufficiency of the corroboration of an accomplice. „But, without setting out these instructions, it may be said that they declare the law in conformity with the decisions of this court in the cases of Celender v. State, 86 Ark. 23, and Russell v. State, 97 Ark. 92.
It is finally argued that there is not sufficient corroboration of the testimony of accomplices to sustain the conviction. But, as to Harold Jenkins, it may be said that several witnesses testified that he had spoken to them about robbing the bank, and one witness he had asked to assist in the robbery was told that the bank would be robbed about three weeks before that crime was committed. Harold Jenkins was in El Paso at the time of the robbery, offering a mule for sale, which he did not sell; and one witness testified that shortly before the robbery Jenkins asked him what he supposed Kent would do if a man walked into the bank and threw a gun on him and told him to hand out the dough.
As to Ellis Jenkins, the testimony is to the effect that he sent Sid Quattlebaum to El Paso to assist the robbers in making their escape, and that he attempted to exculpate Sid Quattlebaum, and he explained circumstances leading to Sid’s arrest. He was shown to have attempted to assist one of the robbers in making his escape from the jail, and that lie made the statement that if he did not get him out, they were all stuck. Damaging statements were made at the time of his arrest, and the principal part of the stolen money was found in his possession.
Explanations of these circumstances were offered, but the jury has passed upon them, and we need only to say that, if these explanations were not credited, the evidence of corroboration is sufficient to meet the requirements of the law.
Finding no prejudicial error in either case, the judgments in both cases are affirmed. | [
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SMITH, J.
This litigation arose out of a bond executed by appellees to guarantee the performance of the following contract:
“This agreement, made this 22d day of November, A. D. 1913, at De Pere, Wisconsin.
“Witnesseth, that whereas, James C. Johnson of Little Rock, Arkansas, desires to purchase of the A. E. Lange Medical Company of De Pere, Wisconsin, on credit and at salesman’s wholesale prices, to sell again on his own account to consumers in the following territory, excepting the incorporated municipalities located therein, Pulaski County, State of Arkansas, its medicines, extracts, .spices, soaps, toilet articles, perfumes, stock and poultry preparations and other articles furnished by it, paying his account for such goods in installments as hereafter provided.
“Therefore, he hereby agrees to sell no other articles than those sold him by said company and to have no other business or employment.
“He further agrees to pay said company for all articles purchased under this contract the current wholesale prices of such articles by remitting in cash each week to said company an amount equal to at least the wholesale prices of such goods as sold for cash and collected for by him, in accordance with the provisions of the weekly report blank of said company, and for that purpose as evidence of good faith he shall submit to said company complete itemized weekly reports of his business, provided, however, if he pays this account in full on or before the 15th day of said month he shall be allowed a discount of six per cent. (6%) from current wholesale prices.
“At its option the company shall also sell bim on credit a wagon selected from its current catalogue of Lange’s wagons and charge same to his account, less any cash payment he may make, at the regular time price quoted in catalogue, for which he agrees to pay within a reasonable time by making special remittance on his account.
“When the sale or purchase of articles under this contract shall be permanently discontinued for any reason or upon notice given by either party it is therefore terminated, and he further agrees to settle in cash within a reasonable time for balance due said company on account.
“The company further ágrees to repurchase from him at termination of this contract and at salesman’s wholesale prices then current, such of its articles as he has on hand and returned to them by freight prepaid to De Pere, Wisconsin, in as good salable condition as when originally sold him. Unless prevented by strikes, fires, accidents or causes beyond its control, said company agrees to fill and deliver on board cars at De Pere, Wisconsin, his reasonable orders* provided his account is in satisfactory condition, and to charge all articles sold him under this contract to his account .at current salesman’s wholesale prices, also to notify him promptly of any change in wholesale prices.
‘ ‘ The company further agrees to exchange new goods for all of its articles used to the trial mark only, also such other of its articles as said company may hereafter authorize, in writing to be placed on trial, same to be returned to them in compliance with such written authority, and by freight prepaid to .De. Pere, Wisconsin.
‘ ‘ The company further agrees to allow credit for all freight charges on its shipments going into the States of Wisconsin, Minnesota, Iowa* Illinois, Indiana, Michigan and Ohio, and to allow credit-equal to one-half the freight charges on its shipments going into all other States, unless otherwise specified by said company, provided, that no shipment shall weigh less than one hundred pounds.
“The company also' agrees to give salesman credit for all mail orders going from them into -the said salesman’s territory after first deducting salesman’s wholesale price and expenses of delivering.
“Said company further agrees to furnish him free of charge at De Pere, Wisconsin; report blanks, order blanks, advance cards, printed return envelopes for his use, also to furnish him free of charge after he has ordered goods, our monthly sales letter, selling suggestions and such other booklets and letters as they may issue from time to time as to the best methods of selling to consumers, such goods as purchased by him, but it is expressly agreed that nothing contained in such letters, books or suggestions and advice shall be construed as in any way modifying the terms of this contract.
“This contract is subject to acceptance at the home office of the company and is to continue in force as long as his account and the amount of his purchases remain satisfactory to said company, or until terminated as provided above; providéd, however, that said James C. Johnson, or his guarantors, may be released from this contract at any time by paying in cash the balance due said company on account.
“E. A. Lange Medical Company,
“By R. C. French, “President and Manager.
“James C. Johnson.
“Salesman sign here in ink or indelible pencil.”
Pursuant to this contract, goods were shipped to Johnson, which have not been paid for, the amount of which is not questioned.
It was contended by appellant in the trial of the cause in the court below that the contract sued on was one for the sale of goods, while it was contended by appellees that the contract is so ambiguous that its true meaning could not be ascertained except when it is interpreted by the conduct of the parties in the performance of its provisions.
It was shown at the trial'that the appellant company had from two hundred to seven hundred representatives throughout the country, and that appellee Johnson was required to make regular reports of the progress of his sales. One of these reports covered cash sales, another report was made on collections, and another of goods sold on credit, while a monthly report was made of the goods on hand; and that the goods were sold at a price fixed by appellant; and that Johnson made duplicate slips of every sale, one of which was given to the purchaser, and the other was kept by himself for use in making up his reports ; and he was allowed to sell his goods only in the rural parts of Pulaski County, another salesman having the exclusive right to sell in the cities of Little Rock and Argenta; and that Johnson was encouraged to sell his goods on credit, and that he did so, and was unable to make collections, and that this failure to collect caused him to fall behind in his accounts. The literature sent out by appellant to Johnson promised him credit for all mail orders received in his territory; but there appears to have been no such orders. Johnson was furnished with a book containing 109 pages of printed matter, consisting principally of price lists. There was stamped on the flyleaf of the book this statement: “This book sold only to Lange’s salesmen. The price $5 charged will be credited upon return of this book to us, regardless of its condition, when the salesman discontinues as a Lange’s agent. ’ ’ All of this matter was introduced over the objection-and exception of appellant. There was some other evidence, but we have stated substantially the evidence which appellees say show the relation between the parties to have been that of principal and agent.
It was shown, and not denied, that appellant was a foreign corporation, and had not complied with the laws of this State permitting such corporations to do business in this State.
The court submitted to the jury the question whether the contract between appellant and Johnson was one creating the relation of vendor and vendee, or that of principal and agent.
The jury returned a verdict reciting a finding that Johnson was the agent of appellant and that on that account they had found for appellees (defendants).
We have been called upon recently to construe several contracts more or less similar to the one set out above, and we have recognized each of these cases as pre senting a close question as to whether or not there was any such ambiguity as made it proper for the court to submit its interpretation to the jury. The first of these cases was that of Clark v. Watkins Medical Co., 115 Ark. 166, where we held that the record presented a question for the jury, and reversed the judgment of the court directing a verdict for the medicine company upon the theory that the contract was one of bargain and sale, and not one creating the relation of principal and agent. We had the same contract before us in the case of Watkins Medical Co. v. Williams, 121 Ark. 539, and reaffirmed our opinion in the earlier case. We had a somewhat similar contract before us in the case of Rawleigh Medical Co. v. Holcomb, 126 Ark. 597, and we set out in the opinion in that case the conduct of the parties in the execution of its provisions, and announced our conclusion to be that the contract was one of bargain and sale, and not one creating the relation of principal and agent.
It appears from this record that Johnson, and other similar representatives, were sometimes designated in appellant’s printed matter as agent, while at other times he was referred to as salesman; but we said in the opinions in the cases above cited that the mere designation of one as an agent did not make him such, and that one might sell his goods to whom he pleased, and might prescribe exactions in regard to the price to be charged and the manner of reselling without changing the character of the transaction as a sale.
We find in this record no evidence tending to show that the intention of the parties to the contract set out above was to create the relation of principal and agent which did not appear in the case of Medicine Co. v. Holcombe, supra, and this case must, therefore, be ruled by that rather than by the earlier cases cited above, and we hold, therefore, that the evidence set out above, though all of it be competent, does not create the relation of principal and agent when considered in connection with the written contract into which the parties had entered.
There was evidence on the part of one of the ¡sureties that he had been induced to sign the bond by reason of fraudulent representations in regard to the character of the obligation he was assuming. This fraudulent representation is said to consist in the statement contained in a letter from the .appellant company to Johnson, to the effect that the bond merely guaranteed Johnson’s honesty and good faith. But the contention can not be sustained for two reasons. The first is, that the terms of the bond are. plain and unambiguous, and no contention is made that the surety was prevented from reading, the bond, or that he did not know what its provisions were when he signed it. The contention of the surety can not be sustained for the second reason that the alleged false representation is not, in fact, false. The sureties undertook to “guarantee, jointly and severally, the honest and faithful performance of the ¡said contract. ’ ’ . And it was not a faithful performance of the contract for Johnson to sell the goods to persons who would not pay for them. If the contract was one of bargain and sale — and we so hold— then Johnson had the right to sell the goods for cash or on credit, as the contract contained no stipulation to the contrary, but he alone could exercise a discretion as to whom credit should be extended, and it would not have been a faithful performance of the contract for Johnson to ¡sell to any one who would not pay, for the purpose of increasing his profits if, perchance, the purchaser should pay, while, by so selling his wares, he was imposing upon the company the risk of loss if payment were not made.
We conclude, therefore, that the sureties are not exonerated from liability under the bond, and the judgment of the court below will be reversed and judgment will be entered here for $633.23, and interest, the amount sued for. | [
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WOOD, J.
This suit was instituted by the appellants against the appellees, the city of Paris and commis sioners of certain local improvement districts in that city. The complaint set up, in substance, that ten resident owners of real estate in each of the respective districts had petitioned for the formation of. the district, and that the ordinance was duly passed by the town council laying off the districts; that petitions were presented by the real estate owners within the districts praying for the improvements to be made, and the city council, by resolution, fixed a day for the hearing of these petitions, notice of which was duly published; that committees wére appointed to ascertain whether the signers in these petitions constituted a majority in value of the real property in the district; that the committees in their reports showed that the signers did constitute a majority, in value, and the council, by resolution, adopted the reports and declared that the petitions were signed by a majority in value of the owners of real property within the districts, and the districts were created and commissioners duly appointed, etc., and that such commissioners, unless enjoined, would proceed to let contracts for making the improvements contemplated; that the organization of such districts was wholly void because a majority of the owners of real property within the districts did not sign the petition.
The complaint shows on its face that it was filed more than thirty days after the adjudication by the city council that the petitions were signed by a majority in value of the owners of real property in the districts.
The appellees demurred to the complaint and moved to dismiss the same, the grounds of the motion and demurrer being that the action was not brought within thirty days after the action of the city council finding and declaring that the petitions for the creation of the improvement districts constituted a majority in value of the owners of real property in such district. The court sustained the demurrer and dismissed the complaint, and from that judgment this appeal comes.
Section 27 of article 19 of the Constitution provides: “Nothing in this Constitution shall be so construed as to prohibit the General Assembly from authorizing assess ments on real property for local improvements in towns and cities under such regulations as may be prescribed by law, to be based upon the consent of a majority in value of the property holders owning property adjoining the locality to be affected; but such assessments shall be ad valorem and uniform.”
On March 3, 1913, an act of the General Assembly was approved, providing the plan for establishing local improvement districts in cities and tovpis, under which the districts here challenged were created. The first section of the act provides: “If within three months after the publication of any such ordinance, persons claiming to be a majority in value of the owners of real property within such district adjoining the locality to be affected shall present to the. council a petition praying that such improvement be made, which petition shall designate the nature of the improvements to be undertaken, and that the cost thereof be assessed and charged upon the real property situated within such district, the city clerk or town recorder, by order of the city or town council, shall give notice by publication once a week for two weeks in some newspaper published in the county in which such city or town may lie, advising the property owners within the district that on a day therein named the council will hear the petition and determine whether those signing the same constitute a majority in value of such owners of real property. At the meeting named in the notice, the owners of real property within shall be heard before the council which shall determine whether the signers of said petition constitute a majority in value, and the finding of the council shall be conclusive unless within thirty days thereafter suit is brought to review its action in the chancery court of the county where such city or town lies. In determining whether those signing the petition constitute a majority in value of the owners of real property within the district, the council and the chancery court shall be guided by the record of deeds in the office of the recorder of the county, and shall not consider any unrecorded instruments. ’ ’
The complaint shows that the- above act was complied with by the town council and the appellants only .challenge the finding and declaration of the council that the petitions for the improvement districts each contained a majority in value of the real estate within the limits of the districts.
• Appellants contend that a petition signed by a majority in value of the property owners in the proposed district giving their consent to the improvement is a jurisdictional prerequisite to the validity of ordinances creating such districts, and that the determination of the council that the petitions are signed by a majority in value of the owners of real property in such district, although ascertained and determined in the manner provided by the statute, is not conclusive, as declared therein, unless within thirty days thereafter suit is brought to review its action in the chancery court of the county in which such city or town lies.
(1) This court has held in several cases that a consent of a majority in value of the property holders owning property within local improvement districts in towns and cities is jurisdictional, and without such consent all proceedings therefor are void. See among the number of the latest cases, Imp. Dist. No. 1 of Clarendon v. St. L. S. W. Ry. Co., 99 Ark. 508; Waters v. Whitcomb, 110 Ark. 511; Bell v. Phillips, 116 Ark. 167; Hamilton v. Board of Imp. Light & Water Dist. No. 2 of Wynne, 123 Ark. 327.
(2) This court has never held that the Legislature could not constitute the city council a tribunal for the purpose of determining whether or not the petitions for local improvement districts within the city were signed by a majority in value of the owners of real property within the districts; nor that it was beyond the power of the Legislature to make the findings of such board, when ascertained in the manner directed by the statute, conclusive unless their action was appealed from within a reasonable time. As to whether the Legislature has such power is the real and only issue presented on this appeal, and that exact question was decided in Waters v. Whit comb, supra, contrary to appellants’ contention here. In that case we said: “Appellant alleges in his complaint that the petition was not, in fact, signed by a majority in value of the property owners, and contends that the statute is unconstitutional in so far as it attempts to make the determination of the city council on that question conclusive. * * * The Constitution does, in unmistakable terms, make the right to levy assessments for local improvements in cities and towns depend upon the consent of a majority in value of the owners of adjoining real property as evidenced by their signatures to the petition therefor. But it does not limit the power of the Legislature to provide a tribunal for the ascertainment of that fact. Shibley v. Fort Smith & Van Buren District, 96 Ark. 410; Board of Directors of Jefferson County Bridge District v. Collier, 104 Ark. 425. * * * The Legislature has, in the statute under consideration” (the act under review here) ‘ ‘ erected a tribunal for the ascertainment of the consent of the majority. This is done upon notice, and the right of the property owners to apply within a limited time to courts for correction of an unfounded decision is preserved. The statute is, we think, a valid exercise of legislative power. ’ ’
In view of the limited areas of local improvement districts within towns and cities it could hardly be said that thirty days is so short a time that it practically denies property owners the right to be heard. The time, though short, we believe was sufficient to enable property owners who are affected by the improvement to appear and to be heard, and thus their constitutional right of due process is preserved.
It follows that the judgment of the court sustaining the demurrer and dismissing the appellants’ complaint is correct, and the same is affirmed. | [
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WOOD, J.
The question presented by this appeal is whether or not the writ of certiorari will lie to set aside the judgment of the county court, based upon a claim for fees for services rendered the county by a firm of attor neys, which, claim shows upon its face that it was not verified, and where the authority of these attorneys to represent the county in litigation, if any existed, is hot shown on the face of the rcord.
In Burgett v. Apperson, 52 Ark. 213, 220, Judge Cockrill, speaking for the court concerning the writ of certiorari, said: ‘ ‘ The writ is granted in two classes of cases: First, where it is shown that the inferior tribunal has exceeded its jurisdiction; and, second, where it appears that it has proceeded illegally and no appeal will lie, or that the right has been unavoidably lost.” See, also, Ex parte Goldsmith, 87 Ark. 519. The case at bar does not come within either of these classes.
(1) In the matter of allowing claims and disbursing money for county purposes the county court has exclusive original jurisdiction. Const. of Ark., Art. 7, sec. 28; Saline County v. Kinkead, 84 Ark. 329, 331.
(2) The jurisdiction of county courts therefore over the subject-matter of allowing claims against the county is derived from the Constitution, and although section 1453 of Kirby’s Digest forbids any county court to allow any claim that is not verified as required by that section and while the allowance of any claim not so verified would be unauthorized and an error for which the judgment of such court could be set aside or reversed on appeal, yet the above statute does not take away or effect the jurisdiction, that is, the constitutional power vested exclusively in the county court over the subject-matter of allowing or refusing to allow claims presented against the county.
“Jurisdiction is the power to hear and determine the subject-matter in controversy between the parties to the suit; to adjudicate or exercise any judicial power over them. Rhode Island v. Massachusetts, 12 Peters 657, 717, and other cases collated in Black’s Law Dictionary, p. 673, under the word “jurisdiction.” Words & Phrases.
(3) The fact that a claim, when presented to the county court for allowance is not verified in the manner required by the above statute does not take away from the county court the jurisdiction to adjudicate the question as to whether or not such a claim should be allowed. The statute, section 1453, supra, prescribed a method of procedure which the court must pursue in exercising its constitutional jurisdiction, but that is another and entirely different matter from jurisdiction to adjudicate upon the subject-matter of the allowance of claims and disbursements of money by the county court.
The principles announced in Saline County v. Kinhead, 84 Ark. 329, and Van Hook v. McNeil Monument Co., 107 Ark. 292, settle the proposition that the statute requiring a verification of a claim presented against the county is not jurisdictional. In the first case the court had under review a special statute requiring certain officers to verify their fee-bills, and if found correct it was made the duty of the county court to audit and allow same. The court, in that case, held that section 1453 of the digest was not applicable. The court said of the special act: “It directs that the fee-bill shall be sworn to, but the neglect of the claimant to thus verify it does not oust the county court of its jurisdiction.” While there was a special act, and the language was somewhat different from the language of the general act, nevertheless what was said there is applicable to the act now under consideration, as was decided in Van Hook v. McNeil Monument Co., supra. In the latter case the claim was one that came within the terms of the general statute as to verification, and the court said: “It has been held by this court that the failure to properly verify a claim is not jurisdictional.” Citing Saline County v. Kinkead, supra.
The judgment of the county court does not come within the second class mentioned in Burgett v. Apperson, supra, for the reason that it was neither alleged nor proved that an appeal by the appellees would not lie from such judgment of the county court under section 1487 of Kirby’s Digest, providing for appeals from such judgments; nor does it anywhere appear in this record that an appeal by appellees was unavoidably lost.
(4) This ■ court has often ruled that a writ of certiorari should not be used in any case where there is or has been a right of appeal unless the opportunity for appealing has been lost without fault of petitioner. A fortiorari, in one of the latest cases upon the subject, we said: “Unless the judgment sought to be canceled is void on its face, or the right of appeal has been lost without fault on the part of the defendant, the writ of certiorari can not be invoked. The writ of certiorari can not be used as a substitute remedy for appeal.” Kenyon, Ex’r. v. Gregory, 127 Ark. 525, and cases there cited. See also other cases collated in Crawford’s Digest, Yol. 1, p. 903-905.
(5) The judgment of the county court allowing attorneys’ fees was certainly not void on its face. As to whether or not the county court proceeded to allow the fees contrary to the statute, and whether its judgment was erroneous because the claim for such fees was not verified as required by the'statute, and because there was no order or contract made between the county court and the attorneys, as set up in the petition, were matters which could and should have been corrected by appeal. But, as we have stated,- these were subject-matters within the jurisdiction of the county court.
For aught that appears to the contrary on the face of the judgment record of the county court allowing this claim for fees, the court may have found that the fees were earned in cases under a contract of employment with the county court and in cases deemed by it of sufficient importance to justify the employment of additional counsel to assist the prosecuting attorney. In recent cases we have held that the county court has power to employ additional counsel when in his judgment the interests of the county are of sufficient importance to demahd it. Sumpter v. Buchanan, 128 Ark. 498; Oglesby v. Fort Smith District of Sebastian County, 119 Ark. 567, 572; Leathem v. Jackson County, 122 Ark. 114; Spence & Dudley v. Clay County, 122 Ark. 157, 161. That proof could have been made showing the employment of coun sel by the county court, under circumstances that justified such employment, and that the counsel so employed rendered the services for which they presented their claim is enough to render void the writ of certiorari issued herein. See State, Use Izard County v. Hinkle, 37 Ark. 532; St. Francis County v. Roleson, 66 Ark. 139.
It follows from what we have said that certiorari will not lie to quash the judgment of the county court, and that the court erred in issuing the writ and in granting appellees the relief prayed for in their petition. The judgment is therefore reversed and the writ of certiorari is quashed, and the cause is dismissed. | [
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HUMPHREYS, J.
Appellee brought replevin in the Marion Circuit Court against B. F. Stewart, constable of Jefferson township, Lee Sinor and appellant to recover a horse and mule which had been levied upon and taken into custody by the constable under an execution, regular on its face, issued on a judgment theretofore obtained by appellant against appellee. It was .alleged in the complaint that the Bank of Yellville had a mortgage on the horse and mule at the time the execution was levied on them and that for that reason they were not subject to levy .and sale under the execution.
Appellant answered for himself and B. F. Stewart, the constable, in substance, that the property was not wrongfully taken from appellee, and denied that appellee was entitled to the possession thereof. He admitted that the property was seized under an execution as alleged in appellee’s complaint, and charged that as soon as they discovered that the property was mortgaged in favor of the Yellville Bank he instructed the CQnstable to return it to appellee and that the property was tendered to appellee on or about the 20th of November, 1916, but appellee refused to accept same.
Lee Sinor filed separate answer setting up that he was the keeper of a livery stable on or about the 11th day of November, 1916, and that the constable brought the property and placed it in his stable for purposes of feed and care; that he fed and cared for the stock up to the institution of the suit in replevin and that he was entitled to a lien on the stock in the sum of $80 under and by virtue of Section 5044 of Kirby’s Digest; and as a further defense he charged that he and the constable tendered the property to appellee on or about November 20, 1916, and that appellee refused to accept same.
The. cause was heard upon the pleadings, oral evidence and instructions of the court. The court instructed the jury to return a verdict in favor of appellee for the team and to determine whether or not they were wrongfully detained and to ascertain the usuable value of the property during the time of detention. The jury re turned a verdict in favor of appellee for his team and assessed damages for the detention thereof in the sum of $67. A judgment was rendered in accordance with the verdict against Lee Sinor, B. F. Stewart and J. J. Cherry. Neither Lee Sinor nor B. F. Stewart have appealed and are bound by the judgment. J. J. Cherry took the proper steps and has prosecuted an appeal to this court.
The evidence in the case is conflicting as to whether the property was unconditionally tendered back to appellee after being seized under the execution; but the undisputed evidence revealed the fact that the property was in custodia legis, under process regular upon its face, when appellee instituted suit in replevin for it. There had been no sale of the property under the judgment or process at the time appellee instituted suit. This court said in the case of Emerson v. Hopper, 94 Ark. 384, that “Property taken by an officer under process regular upon its face should, as between the officer and the owner from whom it is so taken, be considered as in custodia legis. The remedy of the owner in such case, where the process is apparently good but void in fact, is not to sue the officer for the property or for damages, but he may proceed, as was said in Crowell v. Barham, 57 Ark. 195, to attack the process and the proceeding under which it issued ‘in any form of action the law affords at any time.’ If the property has been sold under the void proceeding, he can then successfully maintain replevin for it. He is not remediless, even though he may not maintain replevin against the officer under the statute.”
The instant case is ruled by the case of Crowell v. Barham, 57 Ark. 195, and Emerson v. Hopper, 94 Ark. 384.
For the error indicated, the judgment is reversed and the cause against appellant Cherry is dismissed. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
Bill filed by Wm. R. Miller, 15th July, 1855, in the Independence Circuit Court, against David S. Fraley, Lewis W. Kin-man, and the firm of Moses Greenwood & Co., composed of Greenwood and Thomas E. Adams.
The case made by the bill is, in substance, as follows:
On the 18th March, 1854, Goff obtained a judgment in the Independence Circuit Court, against Lewis W. Kinman; upon which an execution was issued, 31st March following, to the sheriff of said county, and levied upon the N. E. qr. and the N. E. qr. of the N. W. qr. of Section 26; and the S. E. qr. of the N. W. qr. and the N. W. qr. of the N. W. qr. of Section 25, in Town. 14 N. R. 5 W., with other lands, as the property of Kinman, which were sold 4th September, 1854, and purchased by David S. Fraley, to whom the sheriff executed a deed therefor on the 6th of September, 1854,-which, on that dajr, was acknowledged in Court, and filed for registration on the 25th June, 1855, in the office of the Recorder of said county.
That the sale was fraudulent and void in equity, because the lands were purchased with the means, and for the benefit of Kinman, the defendant in the execution, and that the deed was taken in the name of Fraley, who held the lands after the sale for the use of Kinman, to prevent them from being sold to satisfy other judgments outstanding against him, etc.
That afterwards, on the 30th January, 1855, Kinman being indebted to Moses Greenwood & Co. of New Orleans, sold the lands to them, in extinguishment of the debt, and for an additional consideration in money, and Fraley and wife executed a deed to them. That the deed recited a consideration of $1400, as paid to Fraley, which was untrue, the entire consideration having passed to Kinman, for whose benefit Fraley held and conveyed the lands, etc.
That on the 21st March, 1854, William and John Park obtained a judgment against Kinman, in the Independence Circuit Court; upon which, on. the first of April following, an execution was issued to the sheriff of said county, levied upon the lands above described, with othei’s, as the property of Kinman; which were sold on the 4th of September, 1854, and purchased by complainant, Miller; to whom, on the 28th March, 1855, the sheriff executed a deed for the lands; which, on the same day, was acknowledged in Court, and on the 16th of May, following, filed for registration in the office of the Recorder of the county, etc.
That Greenwood & Co., were present by their agent, when complainants purchased the land at sheriff’s sale, and consequently knew when they purchased them of Kinman, through Fraley, that they were perpetrating a fraud on the rights of complainant.
Complainant submits that the purchase made by Kinman, through Fraley, of his own lands, at the sheriff’s sale, under the execution in favor of Gof, for fraudulent purposes, did not divest or pass any title whatever, and that consequently complainant, by his purchase, acquired a full and perfect title to the lands, free from all claims that could be made by Fraley, and Greenwood & Co., on account of the fraudulent purchase as set forth above, etc.
The bill prays that the deed from the sheriff to Fraley, and the deed from Fraley and wife to Greenwood & Co., be declared null and void; and that the title to the lands be vested in complainant, free from incumbrance on account of the fraudulent transactions, perpetrated by the defendants, as set forth in the bill, etc.
Kinman did not answer the bill — Greenwood & Co., and. Fraley answered.
The substance of so much of the answer of Greenwood & Co., as is material to be stated, is as follows:
They admit that Fraley and wife, by deed in fee, with special warranty against claims or incumbrances derived through or suffered by them, executed, acknowledged and filed for registration, on the 29th, but bearing date the 30th of January, 1855, conveyed to the respondents the lands described in the bill.
That respondents, on the 25th September, 1854, obtained judgment against Kinman, in the Independence Circuit Court, for $1118 22 debt and damages, which sum, with interest to the 29th January, 1855, being due to respondents, besides $8 50 costs, Kinman, on being applied to for payment or settlement of the judgment, an execution being previously issued thereon, and being in the hands of the sheriff, proposed to George C. Adams, the agent of respondents, to procure to be conveyed to them the lands in question for the sum of $1400 00, of which sum said judgment should compose a part, and the residue should’ be paid to Kinman. That Kinman told Adams, the agent, and Mr. Fairchild, the attorney of respondents, who had obtained, and was then controlling the judgment for their benefit, that the lands were held by Fraley, but that he (Kinman,) could procure a conveyance of them to be made to respondents, if their debt against him was thereby paid.
That after due reflection upon the proposition, it being considered by Adams, upon whom, as between him and the attorney of respondents, was thrown the responsibility of accepting or rejecting the proposition, it was concluded that it should be accepted, if Fraley would so convey, and if the attorney should, upon examination of the title to the lands, declare it to be good.
That Kinman declared the title to the lands to be perfect; and Fraley, on being applied to, declared his willingness to convey the lands to respondents, if it could be done in satisfaction of their judgment against Kinman, although he stated that he was under no obligation so to do, having bought them in for himself, and without any promise to hold them in trust for Kin-man, or any one whatever.
That, in the examination of the title, the attorney of respondents became satisfied that the title to the lands had been absoly invested in Kinman, by purchase from Wm. H. Bateman, who had held them by full unencumbered title; that they had been sold under execution issued upon the judgment in favor of Goff, as alleged in the bill, and purchased by Fraley. That although several judgments and executions had been obtained, and issued against Kinman, the proceedings under which Fraley’s title was derived, were the oldest judgment and the first execution.
Respondents were informed and believed that their said attorney had no knowledge or suspicion that the lands were claimed at that time by any other than Fraley under his purchase; and they allege that there was nothing on record that could apprise their attorney of the existence of complainant’s claim, because his deed was not executed until the 28th of March thereafter, nor filed in the Recorder’s office until the 16th May, 1855.
That their attorney went to the Recorder’s office, and examined the record of conveyances, relating to said lands, and could find no record of any claim thereto, conflicting with the title of Fraley; and was told by the Recorder, in answer to special questions put to him by the attorney, that no deed or conveyance affecting said lands was on file in the office that had not been recorded.
From all which circumstances, and from being entirely ignorant that complainant had any claim to said lands, or that they had ever been sold under any execution other than the one under which Fraley purchased them, and that the sale to him was under the oldest judgment and execution, that had been rendered and issued against Kinman, the attorney supposed the title to the lands that was proposed to be conveyed to the respondent to be good, and so thinking, proposed and obtained the execution of the conveyance from Fraley and wife to re spondents, etc., a copy of |vhich was made an exhibit to the bill, etc.
Respondents then acquitted Kinman from their said judgment, and immediately passed over to him the amount which the price allowed for the lands exceeded the judgment; except that by agreemeut between Kinman and Adams, eight per cent, interest was allowed respondents, instead of six, the former being the usual rate of interest, and legal when stipulated for, upon contracts made in New Orleans, where Kinman contracted the debt with respondents, upon which their judgment was obtained, etc., etc., and except the further sum of §10 for taxes paid upon the lands for the year 1854, by the attorney of respondents, which were unpaid, and which Kinman allowed to be charged to him in the settlement.
That the whole of the purchase money, and the whole consideration passed from respondents to Kinman, and by the consent of Fraley, in whom appeared to be the legal title, before the sheriff’s deed was made to complainant, and before the agent and attorney of respondents had any information or’suspicion of his claim. And the attorney had no thought or suspicion from the special warranty given by Fraley, that the title to the lands was not good, but considered it right and reasonable for Fraley to warrant against his own acts and incumbrances only.
Respondents say that the foregoing facts are stated upon information derived from their agents in the settlement of the matter; that they themselves had no thought that any claim would or could be set up to said lands in opposition to their title, so derived, until after the commencement of this suit.
That the judgment and execution, under which Fraley bought the lands, were older than those under which complainant purchased: that the sale to Fraley was made prior to that to complainant, and that the deed to Fraley was executed 26th September, 1854, and the deed from him to respondents, 29th January, 1855, and both were at once, after their execution, filed in the Recorder’s office, while the deed to complainant was not made until the 28th March, and not filed for record until the 18th May, 1855.
Respondents insist that the sale to complainant was Amid, because after the lands had been sold under a prior execution and older judgment, they could not again be sold so as to confer any title to any body; and that in attempting to make such sale the sheriff exceeded his power and duty, and complainant had no right to bid, and obtained no title in buying.
“ And these respondents claim the full benefit of purchasers “ of the said lands in good faith, and. for a valuable considera- “ tion, which was their whole worth and more, without notice “ of any fraud, adverse claim, or incumbrance, and after not “ being able to find any, after diligent examination of their “ attorney, and having made full payment and received full “ deed thereto, before notice of the claim of Miller.”
Respondents also insist that complainant’s purchase was void, because the lands in dispute, and others, Avere sold together, and not by separate tracts, etc.
The answer also contains a demurrer to the bill, etc.
Upon the final hearing the bill was dismissed for want of equity, and Miller appealed.
It appears from the proof in the cause, that Kinman Avas insolvent; that there Avere a number of judgments against him, and that the judgment in favor of Goff, under which Fraley purchased the lands, was the oldest, and that under which the appellant purchased was the next oldest.
There can be no doubt from the answer of Fraley, and the depositions read on the hearing, but that he purchased the lands at the request, and with the means furnished by Kinman, upon an agreement to hold them for his use and benefit. Though, by the sale, purchase, and conveyance of the sheriff, Fraley obtained the legal title to the lands, yet in consequence of the arrangement between Kinman and him, his title was fraudulent and Aroid as against the creditors of Kinman, and in equity, he held the lands as a trustee for their benefit. The title was Avorthless in his hands as against any creditor of Kinman, or any person purchasing under the judgment of a creditor; and the title conveyed by him to Greenwood & Co., was equally worthless and void, if they purchased with notice of the fraud; and this is the principal question in the cause: did they purchase the lands with notice of the fraudulent arrangement between Kinman and Fraley, or were they bona fide purchasers for a valuable consideration, without notice of the fraud, etc.
And, first, it is to be determined .whether the answer of Greenwood & Co., sufficiently sets up this defence.
The bill charges the fraud, and states the facts which constitute the fraud, but does not expressly allege that Greenwood & Co., had notice of the fraud when they purchased the lands of Fraley. But it is well settled that a party claiming protection as a bona fide purchaser, or mortgagee, from the fraudulent grantee of real estate, must deny notice of the fraud although notice thereof is not charged in the complainant’s bill. Manhattan Co. vs. Evertson, 6 Paige, 457; Gallatian vs. Cunningham, 8 Cow. 361; Brace vs. Duchess of Marlborough, 2 Peet Will. 495; Moore vs. Clay, 7 Ala. 742; Denning vs. Smith, 3 Johns. Ch. R. 345; Wilson vs. Hillyer et al. 1 Saxton, 63; Jenkins vs. Bodley, et al. 1 Sm. M. Ch. R. 343. He must deny notice positively and not evasively, and he must even deny fully and in the most precise terms, every circumstance charged in the bill from which notice could be inferred. Ib.; 2 H. & W. Lead. Cas. Eq. R. 85.
If the agent-or attorney of Greenwood & Co., who made the purchase for them, had notice of the fraud, it was notice to them. Willard's Eq. Juris. 608.
The answer of Greenwood & Co. should have positively denied notice of the fraud down to the time of paying the consideration and receiving the deed, etc. Byers et. al. vs. Fowler et al. 7, Eng. 286.
It may be seen by an examination of the answer, which is above substantially set out, that notice of the fraud is, in no portion of the answer, positively denied.
It is true that in one paragraph of the answer, which we have copied literally, the pleader states that “ respondents claim ike full benefit of purchasers, etc., without notice of any fraud,” but this is no such positive denial of notice of the fraud, at the time they purchased the lands, etc., as is required by the well established rule of pleading in such cases.
The answer of McDonald, in the case of Byers et al. vs. Fowler et al., which was held to be insufficient, is fuller and more explicit and pointed in its denial of notice of the fraud than the one now before us.
If Greenwood & Co., or their agent, or attorney, had in fact no notice of the fraudulent arrangement between Kinman and Fraley, when they purchased the land of Fraley, paid the purchase money and took the deed frqm him, it \yould have been an easy and simple matter for them to have denied it in the explicit and positive manner required by the well established and familiar rule on the subject.
But it is insisted by the counsel for appellees that it is too late, after replication to the answer, to object that its denial of notice is insufficient; and that, notwithstanding the defective answer, the appellees are entitled to the full benefit of any proof upon the hearing that they purchased in good faith, without notice, etc.; and it is pressed upon the Court that its decision on this point, in Byers et al. vs. Fowler et al., is erroneous, and should be overruled. Through respect for the learning of the eminent counsel (Mr. Fairchild), insisting upon a review of that case, we have carefully examined the authorities upon which it rests, and considered the arguments urged against its correctness, and have concluded not to disturb it.
Want of notice of the unregistered deed, or of fraud, etc., may be interposed as a defence by plea or by answer.
If done by a defective plea, the complainant may set the plea down for argument, which has the effect of a demurrer, and take the judgment of the Court upon its sufficiency. But if the complainant reply to the plea, all objections to its sufficiency, whether of form or substance, are thereby waived; and if the matter alleged in the plea be proven upon the hearing, no matter how defective a defence it may be, the defendant is entitled to a decree, etc. Peay, Rec'r, vs. Duncan et al., 20 Ark.
Bnt this rule does not apply to a defective defence set up by answer.
An answer performs two offices: it responds to the discovery sought by the bill, and sets up matters of defence. 'If the responses of the answer to the discovery sought by the bill be imperfect or unsatisfactory, the complainant may except; but there is no such thing as excepting, to such portion of the answer as alleges matter of defence. Matter of defence is for the benefit of the defendant, and not the complainant, and is intended to bar the relief sought by the bill. If insufficient, or defectively alleged, the complainant is not required, by any rule of chancery practice, to except for the purpose of compelling the defendant to put in a better defence. Nor is a demurrer to an answer allowed. The consequence is, that the matter of defence relied on by the defendant, must be stated at his peril, and if insufficient, he cannot make a better defence by proof upon the hearing than he has made in his answer. Gallatian et al. vs. Cunningham, 8 Cow. 361.
It is true, as suggested by the counsel for the ■ appellees, if the complainant deem the defence set up by the answer insufficient, he may set the cause down for hearing upon bill and answer, without replication, which operates, in effect,, as a demurrer to the answer; but this the complainant can rarely do, on account of the denials, usually contained in the answer, of matters charged in the bill, material to the complainant’s recovery.
It follows that the answer of appellees (Greenwood & Co.), containing no direct and positive denial of notice of the fraud, the appellant was not bound to prove notice, and any proof made by the appellees, on the point, was of no avail; as held in Byers et al. vs. Fowler et al.
In Servis vs. Bealy, 32 Miss. (3 George) 88, Mr. Chief Justice Smith makes a remark that would seem to militate against the soundness of Byers et al. vs. Fowler et al.; but the point being a matter of practice merely, it is better that it should remain settled as it is, than to disturb it, even if there were more than one adjudication against it. There are many questions of more importance, upon which the American cases are not in harmony.
It is very fully stated in the answer of Greenwood & Co., and sufficiently proven by the depositions read upon the hearing, that their agent and attorney purchased the lands of Kin-man, and took a conveyance from Fraley, without actual notice that appellant had previously purchased the lands under execution against Kinman. It is true, also, that, at the time the agent, etc., of Greenwood Co. purchased the lands, the sheriff’s deed to appellant had not been executed, and, of course, not filed for registration.
But this does not help the title of Greenwood & Co. The purchase of Fraley being void for fraud, and appellant having purchased the lands under a judgment, constituting a lien upon the lands next in priority to that under which Fraley purchased, his title was valid as against Fraley, and also as against, Greenwood & Co., who, for want of any sufficient denial thereof, must be held to have purchased with knowledge of the fraud which vitiated the title of their vendor. Under such circumstances, if appellant had purchased the lands, under the judgment, after Greenwood & Co. bought them of Kinman, his title would have been good, even if he had purchased with full knowledge that they had previously bought them.
It is submitted in the answer of Greenwood & Co., that the lands having been sold under the oldest judgment — that in favor of Goff, under which Fraley purchased — the second sale, under the judgment in favor of the Parks, and under which appellant purchased, was void, and conferred no title, etc.
Judge Bevins testifies that he had control of the execution in favor of the Parks, and having satisfied himself, from observing the conduct of Kiiiman and Fraley, that the purchase of the lands by the latter, under the execution in favor of Goff, was fraudulent, the lands were again put up and sold by the sheriff, at his instance, under the execution in favor of the Parks, and purchased by appellant.
In the case of Byers & McDonald vs. Fowler et al., the lands were first sold under an execution against Tully, and bought by Grollman upon a fraudulent agreement to hold them for the benefit of Tully. McDonald purchased of Grollman. After which the lands were sold under a junior judgment against Tully, and purchased by Fowler & Denton, who filed a bill to cancel MMDonaid’s title, etc.; and their purchase held to be valid — McDonald losing the lands for the want of a sufficient denial, in his answer, of notice of the fraud between Tully and Grollman.
Fraley having purchased the lands with Kinman’s means, and for his benefit, the lands remained, in legal contemplation, the property of Kinman, and subject to be sold for the satisfaction of .the demands of his creditors. We cannot, therefore, hold the title of the appellant void, upon the mere allegation in the answer, that he purchased at a second sale of the lands.
It is also submitted in the answer of Greenwood & Co., that the title of appellant was void, because the lands were sold together, and not by separate tracts.
This the Statute authorizes, upon the consent of the defendant in the execution, (Digest, chap. 68, sec. 54), which, it appears from the return of the sheriff in this case, was given.
If, by such sale, the lands were sacrificed to the injury of creditors, whether such consent would make the sale legal and valid, we need not decide in this case, the allegations of the answer on the subject being too meagre, and there being no fraud or unfairness attributed to the appellant in connection with the sale.
We have not overlooked the fact that the return of the sheriff shows that appellant purchased the lands at a price which must have been grossly inadequate; but this fact is not noticed in the answer, nor are there any allegations showing that any fraudulent conduct of the appellant, or of the sheriff superinduced him, produced such result in the sale; and mere inadequacy of price, in the absence of fraud, does not, it is well settled, vitiate the sale.
Other questions have been discussed by counsel, which the view we have taken of the main question in the cause, renders it unnecessary for us to notice.
The decree of the Court below, dismissing the bill for want of.equity, must be reversed, and the cause remanded, with instructions to the Court to reinstate the bill for further proceedings.
Absent, Mr. Justice Rector. | [
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Mr. Justice Compton
delivered the opinion of the Court.
' The questions presented for our determination in this case, arise upon the pleadings in the Court below.
The action was assumpsit by James W. Chandler and Mary Ann, his wife — formally Mary Ann Camp — Levi Stuart and Tempe Caroline, his wife — formerly Tempe Caroline Camp— against Joel Chandler, on an instrument in writing of the following tenor:
“ ALABAMA, >
Benton County. )
Whereas, John S. Chandler has this day made a disposition of his negro property by lot; and whereas, a negro boy named Eatt has fallen to the heirs of Joel Chandler, appraised to live hundred dollars, their part being only three hundred and fifty-one dollars, leaving a balance of one hundred and forty-nine dollars after several divisions; which balance of one hundred and forty-nine dollars, I, for the said heirs, promise to pay the heirs of Temperance Camp, on or before the first day of January, 1845, hereby giving a lien on said negro boy, until said sum of money is paid with interest from date, for value received of them, this 19th day of December, 1842.
his
JOEL ¡*¡ CHANDLER.”
mark
The declaration contained three special counts, together with the common counts usual in actions of assumpsit. The judgment being rendered on the first and second counts, so much only of the pleading as relates to those counts need be stated.
The first count is on the written agreement, is in good form, and avers that the defendant promised to pay the sum of money in the agreement mentioned, to the plaintiffs, Mary Ann and Tempe Caroline, by the style and description of “ the heirs of Temperance Camp,” etc.
The second count is, also, on the written agreement, is in like good form, and was, that the said Temperance Camp, at the time the agreement was executed, was, and is now still living— that she then had, and from thence until now has had two only children, the plaintiffs, Mary Ann and Tempe Caroline; and that the defendant meant, by said agreement, to promise to pay the plaintiffs, Mary Ann and Tempe Caroline, the sum of money therein specified, etc.
To these counts the defendant pleaded, in substance, as follows:
1st. That at the time the negroes of John S. Chandler were divided, it was agreed, between the parties interested in the division, that the shares oí those to whom the negroes were given, should be equal, and that, in order to make them so, the parties receiving negro property of greater value than the common share, should execute to those receiving less, their note or agreement in writing for the payment of the difference in money; that the said John S. being then indebted, and it being doubtful whether he had retained property sufficient to pay his indebtedness, it was further agreed that such notes or agreements should be placed in the hands of a third person — one James Henley — for safe keeping, there to remain until it could be ascertained whether the said John S. had retained property sufficient for the payment of his debts, and in the event it should be found he had not, that the parties among whom his negroes had been divided, should contribute equally from their respective allotments to make up the deficiency — after which, said notes or agreements were to be delivered to the parties to whom they were made payable, provided they had contributed their respective, portions towards making up such deficiency, but if they had not, and the parties who executed the notes or agreements had done so for them, in amounts equal to those expressed in the notes or agreements, then Henley was to deliver the notes or agreements back to the makers thereof. And the defendant averred that, pursuant to the above understanding and arrrangement, he executed the instrument sued on and delivered it to Henley, for the purposes aforesaid — it being for the difference between a common share and the value of the allotment given the children of the defendant in the division of the negroes; that afterward, a contribution for the payment of the debts of the said John S. became necessary, and the plaintiffs, Mary Ann and Tempe Caroline, failed to contribute; that the defendant contributed for them an amount more than equal to that mentioned in the agreement sued on, but neglecting to take the agreement out of Henley’s hands, as he then had a right to do, the plaintiffs got possession of it by means unknown to him, etc.
2d. That the cause of action did not accrue to the plaintiffs within five years next before the commencement of the suit.
3d. That the defendant did not promise to pay the plaintiffs, Mary Ann and Tempe Caroline, by the style and description of the heirs of Temperance Camp; nor did he, by said agreement, mean to do so.
4th. That the plaintiffs, Mary Ann and Tempe Caroline, are not the heirs of Temperance Camp.
To the 1st and 4th pleas the plaintiffs demurred. To the second they replied that, at the time the cause of action accrued, the plaintiff, Mary Ann, was a feme covert, and the plaintiff, Tempe Caroline, an infant under the age of twenty-one years, and that they continued so to be from thence until within five years next before the commencement of the suit. To the third they joined issue. And the defendant demurred to the plaintiffs’ replication to the 2d plea.
The Court sustained the demurrer of the plaintiffs to the 1st and 4th pleas of the defendant, and overruled the demurrer of the defendant to the plaintiffs’ replication to the 2d plea. The defendant rested, and, by consent, the issues of fact were submitted to the Court, who found for the plaintiffs. Judgment was rendered on the finding, and the defendant appealed.
1. In sustaining the demurrer to the first plea, the Court erred. The facts set up show that the instrument sued on was not delivered to the plaintiffs. It was put into the hands of Henley, a stranger, to be delivered to the plaintiffs on a condition which the plea avers was never performed. Where a bond is conditionally delivered to the obligee himself, it is operative and binding from the time of the delivery, though the conditions be never performed. But where the bond is conditionally delivered to a stranger, it is said to be delivered as an escrow, and has no efficacy, and is not operative and binding until the conditions are performed. These principles have been held to apply to promissory notes. Archer vs. Whalen, l Wend. 182; 1 Root 87; Scott vs. State Bank, 4 Eng. 36; and, it may be added, that they apply to all written contracts.
2. It is insisted for the appellant that the second plea sets, up a limitation of five years, when the limitation was three years; and that, therefore, a repleader should have been awarded. The argument is, that prior to the passage of the act of 14th December, 1844, the period of limitation as to suits on instruments of the description here declared on, was three years, and although, by the act of 1844, the period of limita.tion is five years; yet, the act being prospective in its operation, as repeatedly held by this Court, did not apply to causes of action which had accrued at its passage, but to such only as accrued thereafter. This is granted, but it does not follow that the proposition is maintained. An application of the rule laid down in the argument, to the facts of the case under consideration, leads us to a conclusion directly the reverse of that reached by the counsel. The instrument sued on, though dated the 19th December, 1842, was not payable until the first of Jan. 1845. When then did the cause of action accrue? Certainly hot until the maturity of the instrument, which was after the passage of the act of the 14th December, 1844. The general rule is, that the cause of action or suit arises when and so soon I as the party has a right to apply to the proper tribunal fon relief. Ang. on Lim., p. 41. The plaintiffs, by their replica-j tion to this plea, brought themselves within the saving clause in' favor of infants and married women, contained in the act of 1844, and the demurrer to it was, therefore, properly overruled.
3. The demurrer to the fourth plea was well taken. That plea was bad, for the reason that it neither denied any material allegation in the declaration, nor set up any fact in avoidance.
The Court below having erred in sustaining the demurrer to the first plea, the judgment must be reversed, and the cause remanded for further proceedings.
Absent, Mr. Justice Rector. | [
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Mr. Chief Justice
English delivered the opinion of the Court.
This was an application, by Daniel H. Sessions, to the Chicot Circuit Court, for a mandamus against Martin R. P. Mathis, the sheriff of said county.
The material facts stated in the petition, are: that on the 12th January, 1853, the relator and Charles R. Sessions, since deceased, executed to Biscoe and others, residuary Trustees of the Real Estate Bank, under the deed of assignment, two notes for $10,456 each, due at two and three years, with eight per cent, interest, etc. That the notes were drawn in the ordinary form, and for a debt previously contracted. That afterwai’ds, by an order of the Chancery Court of Pulaski county, the Trustees were removed, and the assets of the Bank placed in the hands of Gordon N. Peay, as Receiver, etc., who brought suit against the relator upon the notes, in the Chicot Circuit Court, and, in December, 1856, obtained judgment for the amount of principal and interest due thereon. That an execution had been issued upon the judgment to Mathis, as sheriff of Chicot county, who was about to make a levy upon the property of the relator.
That on the 8th of March, 1858, the relator tendered to Mathis, in payment of the judgment, thirteen of the bonds of the State, issued to the Real Estate Bank, under the provisions of its charter, etc., with the coupons thereto attached, amounting, principal and interest, to $20,837 30, together with a sufficient sum in specie to cover the remainder of the judgment, costs, etc., which Mathis refused to receive in payment, etc.
So much of the response of Mathis as need be stated, is, -in substance, as follow's:
“That the judgment was founded on the two notes mentioned in the petition, which were given by the relator and Charles R. Sessions, as part consideration for a tract of land, purchased by them, on the 12th of January, 1853, known as the Linwood plantation, situated on the Mississippi river, about five miles above Columbia, in the county of Chicot, from the late Trustees of the Real Estate Bank, at and for the gross sum of $41,824 00, under an agreement and express understanding that said tract of land was sold and should he paid for at specie rates and prices, and not for bonds, coupons, or any other medium of payment whatsoever; that the parties did so purchase, and had paid down in specie $20,912 00, and had given said notes for the residue, in specie, and which were known and understood and agreed to be paid in gold and silver coin, and in no other medium whatsoever; that those notes were taken and received by the said Trustees of the Bank as specie notes, and as such came to the hands of Gordon N. Peay, as Receiver of the Bank, and have ever been held and treated as specie notes; and that the Receiver claimed the right of enforcing the collection thereof in gold or silver only, and had so directed on said execution,” etc.
The relator demurred to the response, the Court overruled the demurrer, and he rested and appealed.
At the time Sessions tendered the bonds and coupons to the sheriff in payment of the judgment, the act of 12th January, 1853, was in force, which required the Receiver of the assets of the Real Estate Bank, to receive them inpayment of debts due the bank, etc., Acts of 1852, p. 19G.
We have decided in Thruston et al. vs. Peay, ante, that it was within the constitutional power of the legislature to make the over due coupons attached to bonds of the State issued to the Real Estate Bank, receivable in payment of debts due the bank, or the Trustees under the deed of assignment, etc.
But the bonds were not duo at the time they were tendered to the sheriff in this case, and it is by no means clear that the legislature possesses the constitutional power to compel the Receiver of the bank to take them in payment of debts due to it before their maturity.
.The bank, by its endorsement of the bonds, contracted with the purchasers or holders of them, to pay the interest half yearly, and the principal at a time stipulated in the bonds. The charter of the bank did not require it to pay the bonds before they were due. Nor did the deed of assignment require the Trustees to take them up before maturity.
But waiving this question, and conceding, for the purposes of this case, the power of the legislature to provide for the payment of debts due the bank in bonds of the State before their maturity; let us enquire whether Sessions is not bound by the contract, which, it is alleged in the response of the sheriff, he made with the Trustees of the bank in relation to the medium, in which the debt was to be paid.
The notes were executed on the 12th of January, 1853, the same day on which the act above referred to, providing for the payment of debts due the bank, or Trustees, in bonds, etc., was approved. But whether the contract was made before or after the approval of the law, or whether the parties knew of its passage, and contracted in reference to it, does not appear from the petition or response.
But let it be conceded that the act was passed before the contract was made, and that the parties were informed of its passage, and contracted in reference to its provisions. The Trustees were the representatives of the stockholders and creditors of the bank, which had made an assignment of its effects in consequence of being unable to meet its engagements. It had in circulation bills, bonds, etc., which were at a very great depreciation in the market, and which, it may be supposed, the Trustees and Sessions knew to be, by law, receivable in payment of debts due to it, or which might become due and payable to the Trustees as such. Under these circumstances the Trustees sold to Sessions a valuable plantation; which constituted part of the assets of the bank, at a specie valuation, and upon an express contract that the purchase money was to be paid in gold and silver, and not in bonds, coupons, or any other medium of payment whatever. Such was the contract of the parties, as stated in the response, and admitted by the demurrer.
That it was lawful for the Trustees to make such a contract, under the circumstances, does not admit of a doubt. If by law Sessions had the privilege of paying a debt to the Trustees in bonds or coupons, he had the right by contract to-waive the privilege. Paup et al. vs. Drew, 10 Howard (U. S. R.) 223.
It is submitted by the counsel of appellants that the response does not allege that the agreement, that bonds, etc., were not to be taken in payment of the purchase money, was inserted in the notes, and that a parol contemporaneous agreement to that effect could not be pleaded or proven.
■ It is doubtless true, that if a note, upon its face, is payable in bonds, coupons, bank bills, or property, p.arol evidence of a contemporaneous agreement, that the note was to be paid in specie, is inadmissible, because it is contradictory of the written contract of the parties.
But there is no showing in this case that it was expressed in the face of the notes that they were to be paid in bonds or coupons. The petition states that the notes were drawn in the ordinary form, by which we understand that they were made payable in dollars, because, if expressly made payable in bonds and coupons, the pleader certainly would have so stated. It also appears that the judgment upon the notes was for dollars.
It would not, therefore, be contradictory, but consistent with what is expressed in the face of the notes, to admit parol proof of the agreement that they were not to be paid in bonds or coupons, but in specie. McMinn vs. Owen, 2 Dallas 173; Dick vs. Martin, 7 Humph. 263; Murchin vs. Cook et al. 1 Ala. 41.
The proof would simply amount to this: At the time Sessions gave his notes to the Trustees, payable in dollars, the law (as it is assumed) gave him the privilege of paying the debt in bonds and coupons, at maturity, but by a parol contemporaneous agreement, which was part of the contract, in pursuance of which the notes were executed, but not expressed in the face of the notes, he expressly waived the privilege of paying them in bonds, coupons, or any other medium than gold and silver.
The judgment of the Court below must be affirmed. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
This is an appeal from the chancery side of the Circuit Court of Drew county.
The bill was filed by Benjamin Chapman, and alleged, in substance, that his brother, Abner Chapman, died in the Creek nation, in the year 1845, leaving an estate consisting of $5,200 in cash; goods, wares and merchandize of the value of $8,000; notes, accounts and liabilities amounting to $4,000; nine negroes, named Charlotte, Sally, Amy, Martha and her two children, Ailsy and her child, and a woman whose name was not recollected, worth $5,000; ten head, of cow's worth $50; a wagon and four oxen, worth $200; thirty or forty hogs, worth $150; and two horses, worth $150.
That after the death of Abner Chapman there came into the estate, by an indebtedness of John Hill, a negro woman named Ailsy, and her child, and a negro man named Sam, worth about $1,800; in cash $137 50; 700 bushels of corn, worth $350; two yoke of oxen, worth $100; and one wagon, worth $100.
That Abner Chapman made a will, the provisions of which the complainant attempts to state and construe, alleging the will to be in the possession of Cutlet J. Atkins, the executor, who is made defendant. The will was made an exhibit to the answer of Atkins, and is as follows:
CREEK NATION, )
Canadian. $
T, Abner Chapman, living in said nation, in the year of our Lord, one thousand eight hundred and forty-five, taking into consideration the uncertainty of life; being at an advanced age and infirm in health, do this day conclude and decide to make my will, last and testamentary. In the name of God!-Amen. Maturely deliberating, in my proper mind and senses, do this day, the 31st of August, and the year above stated, make the following distribution of my property, to-wit: I bequeath unto
Robert Chapman’s orphans — being my brother’s children; Henrietta Atkins’ children• — my sister; Benjamin Chapman’s heirs— my brother; John D. Chapman’s heirs, my brother; and to Solomon D. Chapman, my brother, loithout heirs; all of my brothers and sister's children to receive five hundred dollars per family, first, and then my estate to be equally divided among all; taking Solomon D. Chapman, my brother, as aforesaid,into said division; giving to each of my brothers and sisters, having children, five hundred dollars extra. And considering, further, of a promise made my negroes, when purchasing them, that I would not carry them from their native country, request my executor, hereafter named, in the'event of my death, to suffer them to choose their masters, within their own country, and to be so disposed of.
And in order to have my will fully carried into effect, after my death, I appoint Catlet J. Atkins, my brother-in-law, my sole executor, with the assistance of John Hill, my present clerk, which will assist in settling my unsettled affairs, after death, and for him to receive, in addition to his present salary, five hundred dollars (five hundred extra) per year, until-my affairs are entirely settled to the satisfaction of my legatees.
In witness whereof, I Abner Chapman, in my proper mind, as aforesaid, hereunto assign my name, and make my seal in presence, this day and date before written.
ABNER CHAPMAN, [Seal.]
Before us this 30th August, 1845, Abner Chapman, the assignee of the within will, agreed to and subscribed his name and made his seal.
JNO. H. BRODNAX,
JAS. L. ALEXANDER, JOHN PHIPPS.
The bill further alleges that Robert Chapman, who died before. the death of the testator, left seven children, his heirs, Micajah. Gena, Abner, Mary, and three others, whose names were not known, all of whom resided in Georgia.
That Henrietta Atkins, named in the will, was the sister of the testator, and wife to Catlet J. Atkins.
That John D. Chapman died in the year 1843, leaving a widow, Martha, and three children, Benjamin D., Cincinnatus, and John D., who resided in Alabama.'
That Solomon D.. Chapman died in 1852, without children, leaving a widow, Caroline H., who also resided in Alabama.
All of whom were made defendants.
That Abner Chapman was not in debt when he died, and that Atkins took possession of his entire estate, without probate of the will or letters testamentary, there being no court in the Greek nation to grant the same, and converted the estate to his own use and benefit; except $2,500, which he paid to complainant (Benjamin Chapman) as part of his legacy; $250, paid by him to the heirs of Robert Chapman, and $150, to Solomon 1). Chapman.
Complainant alleges, upon his estimate of the value of the estate, and upon his construction of the will, that he was entitled to have received a legacy of about $4,500; his sister, Airs. Atkins, a like amount; the heirs of Robert Chapman and John D. Chapman, each (per stirpes) the same amount, and Solomon D. Chapmaii within $500 of that sum.
That-in December, 1849, complainant visited Atkins, at his residence in the Creek nation, and obtained from him $250, for which he gave him his note, bearing date the 12th of said month. That, at the same time, Atkins, taking advantage of complainant, who could neither read nor write, fraudulently obtained from him a note for $1,024, representing it to be a refunding bond, etc.
That, notwithstanding bbth of said notes were obtained from complainant by fraud, Atkins had instituted a suit, by attachment, against him, upon the notes, in the Circuit Court of Drew county, cause.d his slaves and other property to be attached, and that the suit was still pending and undetermined.
The bill prays that Atkins be perpetually enjoined from collecting the notes, that he account for the assets of Abner Chapman’s estate, and that the amount due from him, with interest, be distributed among the parties in accordance with the provisions of the will.
Atkins answered, making no objection to the jurisdiction of the court, and stating an account of the assets which came to his hands, with schedules, etc., showing what disposition he had made of the same, etc.
Publication was made as to the other defendants, some of whom answered, admitting the truth of the allegations of the bill, and offering to submit to such decree as the court might make in the matter.
On the heai’ing, the court decreed that the will be established, and referred the case to a master to state an account of the assets, etc., and, on the coming in of the master’s report, rendered a final decree, perpetually enjoining the suit at law upon the notes, and distributing the amount found to be in Atkins’ hands by the master, among the legatees, etc. Atkins appealed from the decree.
Pending the proceedings in the court below, the complainant died, and the suit was revived in the name of Guice, his adminstrator.
It appears that Abner Chapman was a white man, and a trader in the Creek nation, where he resided at the time of his death, and for a number of years before, and that he left an estate at the place of his domicil, composed of negroes, merchandize, other personal property, choses in action, etc.; which he had undertaken to dispose of by will, and which came into the hands of Atkins, who was named in the will as executor.
If the validity of the will had been contested, the right of Chapman to make a will, and the mode of making it, would have been determined, we suppose, by the laws and usages of the Creek nation, where he was domiciled, and where his property \vas. Story Com. L. Ch. XI; 1 Lomax Ex. 1Í4.
But Atkins took possession of the property and acted under the will, and neither he nor any of the parties interested have contested its validity. Nor did he, by answer or otherwise, object to the jurisdiction of the court below, but submitted to be treated as executor, or trustee, under the will, and to account for the estate which came into his hands as such.
1. It is first to be determined, upon a construction of the will, to whom the testator intended to bequeath his property.
It is manifest, we think, from the language employed in the will, that it was the intention of the testator to bequeath five hundred dollars to the children, by families, of each of his three brothers, and his sister, who had children; and then to divide the residue of the estate equally among his brother Solomon D., who was without children, and the children, by families, of the other brothers and sister. And that the testator did not intend to give any part of his estate to his brother Benjamin, the complainant, or to his sister, Mrs. Atkins.
Such, too, was the construction placed upon the will by the court below, as shown by the decree; for though upon the death of the complainant, the case was revived in the name of his administrator, yet the decree was rendered in favor of his heirs, as legatees under the will. But his heirs were not parties to the suit, and it was irregular to render a decree in their favor without making them parties. So the decree treated the children of Mrs. Atkins as legatees, and declared that their father, the appellant, should be permitted to hold in his hands that portion of the estate which was going to them. They also should have been made parties, but were not.
The counsel of the parties here, on both sides, concede that the above construction of the will is correct.
The solicitor who prepared the bill, had not the will before him at the time, and drafted the bill, no doubt, upon his client’s representations as to its contents. Having fallen into an error, he attempted to remedy it by the decree, instead of amending the pleadings, and making the proper parties.
2. On the hearing Atkins offered to read in evidence the depositions of James C. Glcnnon and James Logan, which appear to have been regularly taken, filed and published in the cause; but the court excluded the deposition of Glennon, and portions of the deposition of Logan.
Glennon’s deposition was excluded on the ground that he was the security of Atkins in the attachment bond, filed by him in the attachment suit against the complainant, which the bill sought to enjoin.
The exclusion of this deposition was an error. The witness was not a party to this suit, nor had he any disqualifying interest in its result. The disqualif}dng interest must be some legal, certain and immediate interest, however minute, either in the event of the cause itself, or in the record, as an instrument of evidence in support of the claims of the witness, in a subsequent suit. It must be a legal interest, as distinguished from prejudice or bias, etc. 1 Greenlf. Ev. 493.
The attachment bond was conditioned, we suppose, in accordance with the statute, that the plaintiff in the action would prove his debt on demand, on a trial at law, or that he would pay such damages as might be adjudged against him.
The filing of the bill for injunction, by the defendant in the attachment suit, was a concession that he had no adequate defence at law. If he succeeds in making the injunction perpetual, there can be no trial at law, and no breach of the condition of the bond by a failure in the action. If the injunction is dissolved, and the plaintiff in the attachment suit allowed to proceed with the action, there may be a failure to prove the debt, etc., and a breach of the condition of the bond, and the witness might, in that event, become liable as security on the bond. But his deposition conduces to defeat the relief prayed by the bill for injunction, and to produce the event on which his liability depends. Hence, he testified against his interest. If an action were brought on the bond on the ground that the attachment was sued out upon a false affidavit, (See Taylor vs. Ricards et al. 4 Eng. 383,) it is not perceived that the decree in this case, whatever it may be, could be used by the witness as available evidence in his defence.
The portions of Logan's deposition which were excluded, relate to certain papers which were made exhibits to the answer of Atkins, and filed in the cause.
The ground upon which these portions of the deposition were excluded by the court, does not appear in the record. If because the papers referred to were not sufficiently identified by the witness, we think the court erred. The witness refers to the exhibits by their marks and numbers as designated and identified by the answer. And if he left any doubt as to their identity, it was removed by the affidavit of the solicitor of the appellant, offered in connection with the deposition, that the exhibits were present and shown to the witness when ho testified. It appears that the exhibits themselves were read upon the hearing without objection.
The provision of the statute (Dig. chap. 55, sec. 18,) requiring exhibits to be attached to the deposition, etc., was only intended for greater certainty and security in proving them, and does not apply to a case where the exhibits are made a part of the bill, or answer, and filed with it.
The design and object of the law are answered, if the exhibits are shown to the witness and identified. Nick's heirs et al. vs. Rector, 4 Ark. 276.
3. In the answer of appellant, he states the appraised value of the entire estate admitted by him to have come into his hands, deducts the amount of payments upon demands against the estate, expenses, etc., losses from bad debts, etc., alleges that the true balance to be distributed among the legatees was $5683 91, and states how it was distributed, which of them had been paid, etc.
The master appointed by the court below to state an account, etc., proceeding upon the same plan, makes the amount for distribution among the legatees $12,708 60.
Finding a number of errors in the account, as stated in the answer, as well as in the report of the master, we have referred the matter to the clerk of this court, as master, to take and state an account correctly upon the pleadings and evidence, treating the deposition of Glennon and the whole of Logan’s deposition as competent evidence. From his report it appears that the gross amount of the estate with which appellant was chargeable, is §19,960 76, and the total amount with which he is entitled to be credited for accounts, notes, etc., not collected, demands and expenses paid, commissions, etc., is §12,099 86, leaving a balance distributable $7,860 90.
In this estimate appellant is charged with a list of accounts for 1844-5, amounting to §1521 01, with which he failed to charge himself in the statement exhibited-with his answer, as did the master of the court below. This is the only error of much importance on the debit side of the account exhibited with the answer.
The answer, in response to allegations of the bill, positively denies that any other assets than such as are-included in schedules exhibited, came to the hands of appellant. Upon the unr corroborated testimony of one witness (Rogers,) the master of the court below erroneously charged the appellant with $1,000, as the value of a house and lot, etc., of the testator, and with a note for $2,000 on John Hill.
The answer, in response to the allegations and interrogatories of the bill as to the available debts due to the estate, states the amount of the accounts, notes, bills, etc., which came into the hands of the appellant as assets, exhibiting a shedule, and also exhibits a list of the claims which he was unable to collect, amounting to $7,161 94. He states that these claims were upon Indians, who refused to pay them, and that there was no law in the Creek nation by which he could enforce their payment. The deposition of Logan sustains the answer as to the inability of the appellant to collect the list of claims exhibited as worthless, and he is not contradicted by the other witnesses. The master of the court below allowed the appellant a credit for but one-third of the amount of these claims.
In the account made out by the master of this court, the appellant is credited with the entire amount of the claims alleged by him to have been uncollectable.
These are the prominent and more important errors committed by the master below, in arriving at the amount to be distributed among the legatees, which we have caused to be corrected.
4th. The mode in which the balance, in the hands of the appellant, should be distributed, and the payments made by him to the legatees, are next to be considered.
To the $7,860 90 stated above to be the balance distributable, must be added $365 09, paid by appellant out of the assets of the estate, to John Hill, on account of Solomon D. Chapman, and with which appellant is credited as for so much paid upon the demand of Hill against the estate, and which will be more fully explained below. This makes the amount to be distributed $8,225 90, and which is distributable among the legatees
as follows:
To Benj. Chapman’s children................ $1,745 19 4-5
To John D. Chapman’s heirs................. 1,745 19 4-5
To Robert Chapman’s heirs.................. 1,745 19 4-5
To Henrietta Atkin’s children................ 1,745 19 4-5
To Solomon D. Chapman. ($500 less)......... 1;245 19 4-5
$8,225 90
Benj. Chapman’s children. — It appears that on the 2d of January, 1846, appellant paid to Ben. Chapman, (who claimed the legacy left to his children,) $1,250; on the 12th of March following, he paid him the further sum of $1,250, and took from him a refunding receipt; and on the 26th of the same month, he paid him $70 in merchandize, making the aggregate sum of $2,570.
Appellant states in his answer, that these sums were paid shortly after the estate came into his possession, upon an over estimate of its value, and when he did not anticipate so great a loss on account of uncollectable debts as afterwards occurred.
It seems from the testimony of Rogers, that the payment of the 12th March, 1846, was not made in money, but in slaves belonging to the estate, (Charlotte and her two children, Sally and Amy.) And in order to comply in form w'ith the provision of the will that the slaves should be sold in the Creek Nation? by an agreement between the parties, the three slaves were transferred, by bill of sale, from appellant to one Pain, a resident of the Nation, and by him to the wife and children of Benjamin Chapman.
It also appears that a final settlement was made between appellant and Benj. Chapman, on the 20th of December, 1849, in relation to the estate, legacy, etc.; that appellant represented to Benjamin that he had been overpaid, exhibiting to him a statement, with schedules, etc., of the assets etc., of the estate; that the amount due to him was but $1,545 97, and that he having received $2,570, was overpaid $1,024; for which latter sum Benjamin executed to appellant his note, which is one of the notes upon which the attachment suit sought to be enjoined in this case was brought by appellant.
The allegations of the bill that this note was obtained from complainant on false representations as to the character of the instrument, are positively denied by the answer of appellant, and are not sustained by any evidence.
The only misrepresentation which appears to have been made by appellant, in the settlement, was as to the true balance of assets in his hands, subject to distribution among the legatees, and as to the amount really due to complainant’s children.
It appears, also, that after this final settlement was completed, complainant borrowed of appellant $250, for which he gave him his note, with his (complainant’s) son, John D., as security, and upon which complainant paid witness, Glennon, for appellant, $110, on the 13th of May, 1852, as he testified. This is the other .note upon which the attachment suit was brought. It has no connection with the estate, or legacy due to complainant’s children, and as-to it the injunction must be dissolved and appellant permitted to proceed with his action at law.
Benjamin Chapman’s children being entitled to but $1,745 19 4-5, and he having received $2,570, the appellant paid over to him $824 80 1-5 more than his children were entitled to.
He having received $2,570 out of the assets of the eslate, without any legal right to it, but which belonged to his children, and the other legatees, he must be treated as having received it as a trustee in equity for their benefit.
It would be just, perhaps, to treat the three slaves, which Benjamin Chapman obtained of the appellant, at $1,250, and caused to be conveyed to his wife and children, as belonging to his children, and as a payment to them of so much of their legacy; and they should be subrogated to the right of appellant to recover of their father’s estate $495 19 4-5, the balance due them upon their legacy; and the other legatees, to whom appellant is indebted, should be subrogated to his right to recover of Benjamin Chapman’s estate $824 80 1-5, being amount overpaid him on legacy due his children, with interest from the time he received it.
John D.' Chapman’s heirs — did not answer the bill or,appear.
The appellant avers, in his answer, that the legacy devised to them was paid, and overpaid as.follows: That they were indebted to John D. Hill, at the time of the death of the testator, for merchandise furnished them by Hill, at his instance, in a sura exceeding the amount of their legacy, which appellant was compelled to pay out of the estate. There is no proof of the truth of this allegation other than what appears on the face of the account rendered by Hill against the estate, and which, it is in proof, appellant was compelled to pay in order to get the property of testator out of the possession of Hill. In the account there is a charge for “ goods furnished Mrs. Black, in Wetumpka at the request of testator, as per schedule rendered, $1,4G5 23.” But there is no evidence in the record before us that Mrs. Black was one of the heirs of John D. Chapman, The bill states that he left three children, named Benjamin D., Cincinnatus, and John D., and a widow named Martha.
The testator is also charged in the account of Hill, with an item of $147 25, on account of Cincinnatus Chapman, and an item of $579 15, on account of B. D. Chapman, as per accounts rendered.
In the absence of other evidence, we cannot regard 'these items as payments upon the legacy due to them. Though for want of a legal remedy, in the Indian country, appellant may have been compelled to pay Hill’s account, in order to obtain possession of property belonging to the testator, and was consequently entitled to a credit for the amount so paid, as upon a demand against the estate, yet there is no proof in the record before us that the heirs of John D. Chapman, or either of them, had obtained merchandise, or any thing else, from .Hill, at the instance of the testator, or otherwise, as charged in the account.
If it had been satisfactorily proven, as alleged, that appellant, in paying Hill’s account as a demand against the testator, thereby legally discharged the claim of John D. Chapman’s heirs upon him for the legacy beqeathed to them, the $1,745 194-5 star ted above to be distributable to them, would, nevertheless, have to be paid by appellant, and distributed among the other legatees, because he paid Hill’s account out of the assets of the estate, and in ascertaining the distributable balance in his hands the master of this court has credited him with the-entire amount of the account as a demand against the estate paid by him.
Robert Chapman's heirs — answered the bill, admitting that appellant had paid on the legacy due to them $220, and no more. No additional payment to them is alleged by appellant, or proven. Balance due to them $1,525 194-5.
Solomon D. Chapman — having died in 1852, some years after the death of the testator, his administrator -was, by law, entitled to collect any portion of the legacy that remained due to him, to be appropriated for the benefit of his creditors, or distributed to his heirs at law; and his administrator should have been made a party. (See Lemon's Heirs vs. Rector et al. 15 Ark. 437; Pryor vs. Ryburn, 16 ib. 671; Anthony vs. Peay et al. ib. 24. His widow was made a defendant to the bill, and answered, offering to submit to such decree as the court might deem just to make. She did not claim dower in the legacy, nor did the court decree her any.
The bill alleges that appellant had paid Solomon D. Chapman but $150.
The answer of appellant states that he was indebted to John Hill, at the time of the death of the testator, for merchandise furnished him at the instance of the testator, and which the appellant had to pay out of the estate. The amount is not .stated. In the account rendered by Hill, against the estate, and which the appellant paid, and is credited with,,as above shown, is an item dated March, 1841,for “goods furnished Solomon D. Chapman, by request of testator, as per schedule, giving all just credits, $965 09.”
Rogers testified, that in 1846, he was employed by Solomon D. to take from Alabama to Benjamin Chapman, in the Creek nation, a power of attorney authorizing him to settle with appellant as “ administrator,” of Abner Chapman for Solomon D. That witness accordingly delivered the power of attorney to Benjamin, who made a settlement with appellant for Solomon D., after appellant had paid TIill’s account, against the estate. That $600 of the amount which appellant had paid to Hill on Solomon D;’s account, had been previously paid by Solomon D., and witness protested against his being charged with that amount in the settlement, but it was done. That appellant then estimated the shares that would be going to the other legatees at about $2,500 for each family, and settled with Benjamin, as agent for Solomon D., on such estimate. That appellant made an estimate of what Solomon D., was entitled to under the will, deducted therefrom the amount which he stated that Solomon D. had previously received, which left a balance in his favor of $884 91, for which sum appellant executed his note payable to Solomon D. or bearer, and promised to pay it out of the first money he collected for the estate. Witness stated that this note was in his possession at the time he gave his deposition in the case, that nothing had been paid upon it, and that he had brought suit upon the note in the Drew Circuit Court. Whether, this settlement was ever approved by Solomon D. does not appear. Nor does the witness state how Pie happened to bring suit on the note, or for whose benefit. There is no proof that Solomon D. ever repudiated the settlement.
The court below distributed the entire balance of assets found to be in the hands of appellant by the master, among the heirs of Benjamin Chapman, the heirs of Robert Chapman, the heirs of John D. Chapman, and the children of Mrs. Atkins, leaving nothing in appellant’s hands to meet the note executed to Solomon D. by him, and thus standing out, and giving him no credit therefor, as a payment to Solomon D. upon his legac}r, which was an error in the decree.
It is to be inferred from the testimony of Rogers that <$365 0!) of the charge of $965 09, embraced in Hill’s account against the estate, and paid by appellant, was properly charged to Solomon D. in the settlement, which, added to the amount of the note for $884 91, makes the sum of $1,250, which, upon the facts now appearing in the case, must be regarded as having been paid to Solomon D. upon his legacy, and which, wdthout the $600, which Rogers states was wrongfully charged to him in the settlement, exceeds the amount distributable to him as above stated.
The $365 09 having been paid by appellant out of the assets of the estate, and credited to him as part of the amount paid by him to Hill, it has been added to the balance to be distributed among all of the legatees, including Solomon D., as above stated.
5. The effects of the testator came into the hands of appellant about the first of the year 1846. He received $5,116 54 in cash; a number of slaves, which must have yielded to him some hire or labor from the time he took possession of them; and a stock of goods, which he converted to his own use', charging himself with the value put upon them by appraisers selected, perhaps, by himself. Logan, however, testifies that it was the best disposition, for the benefit of the estate, which appellant could have made of the goods in the Indian country, owing to the difficulty of making collections upon sales to the Indians, etc. The value of the slaves, goods, and cash on hand, constitutes the principal portion of the assets of the estate with which the appellant is charged; and upon all of the facts of the case, we think it but just that he should be charged with interest upon the unpaid legacies from the 1st of January, 1848.
For the errors above indicated, the decree of the court below must be reversed, but for the want of proper parties such final decree cannot be rendered here as should have been rendered below. The cause must be remanded, with instructions to the court to dissolve the injunction, and permit the appellant to proceed with the action at law as to the note for $250; and that, upon the proper parties being brought before the court, a final decree be rendered as indicated in this opinion, etc.
Absent, Mr. Justice Rector. | [
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Mr. Justice Fairchild
delivered the opinion of the court.
Three counts of the indictment in this case were quashed, but the third was held to be good by the Circuit Court, and charged Powell with employing his slave John in a retail grocery, where ardent spirits were sold in quantities less than a quart.
To this count Powell pleaded not guilty, and on trial it was proved by two witnesses, that Powell and John W. Wallace kept a dram shop in Yan Burén, in Crawford county, during the year previous to the finding of the indictment; that John was frequently in the dram shop, seeming to be kept about the house to bring water, sweep, go on errands, and the like, and that he frequently was sent to set out liquors to customers, and that they could not say whether John belonged to Powell or to Wallace.
By another witness the same facts of employment of John were proven, only that the witness had frequently seen John both serve|customers, and receive the pay therefor; that he was frequently alone at the grocery in charge of it, and that he, frequently, or generally, .slept in the grocery, as the witness thought; that he brought water, swept the house, -would bring out Powell’s horse, and appeared to be kept about the establishment to do anything Powell & Wallace wanted to have done; that John was a mulatto, reported to belong to Powell, and that witness had heard Powell claim him as his.
The court instructed the jury, that to establish the offence, it was sufficient to prove that the slave was employed in the grocery, and that such employment as sweeping the house, rolling barrels, and bringing water and the like, was sufficient to constitute the offence.
Although in this case the proof is positive, that the slave did more in the grocery than to sweep, bring water, roll barrels and the like, by helping customers to liquor, and the instruction might have been as broad as the facts, yet it was right. What is prohibited by the statute is the employment of a slave about the grocery, doubtless for the evil example to other negroes, and for the facilities thereby afforded to them to obtain liquor; and any employment of a slave, by which he has, or may have access to ardent spirits, is within the mischief apprehended, and prohibition enforced by the act.
There was no error in this instruction.
The court also instructed the jury that if they found the defendant guilty, they would assess the fine at any sum between fifty and one hundred dollars; that in fixing the amount, they should be governed by the circumstances and aggravations of the offence; that this discretion in fixing the amount, was a legal discretion which they could not disregard; that it would be a wrong exercise of it, to assess the highest damages for the least aggravated offence, or to assess the lowest penalty lor the most aggravated offence, and that to do otherwise would not accord with their oaths as jurors.
This instruction is the subject of vehement complaint by the counsel of Powell.
The court did not assume that Powell was guilty, with the least, or the most aggravation, or that he was guilty at all, and although the taste of the counsel is much shocked that the court should speak to the jury of what might be, or not, a violation of their oath, we do not think the instruction was illegal, or calculated to mislead the jury; and therefore the defendant is not entitled to any relief here on account of the instruction. Even if we thought the chai’ge questionable in point of propriety, which we do not say, it would not be as much so, as for the court itself, on account of the chai’ge, to be accused of extravagant language and dictatorial assumption.
By the verdict of the jury the defendant’s fine was assessed at seventy-five dcllai's. He moved for a new trial because the verdict was against evidence and law, because the charge of the court was contrary to law, and a usurpation of the province of the jury. The motion was overruled, and he excepted, setting out the evidence, instructions and motion for a new trial, and appealed.
We have already decided that the instructions were not contrary to law, or calculated to mislead the jux-y, and we now decide that there was no usurpation by the court over the jury, and that the verdict was not contrary to law and evidence, or either, and that the appellant take nothing by his appeal. | [
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