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John A. Fogleman, Justice.
Appellant-employer contends that appellee-claimant’s workmen’s compensation claim cannot be considered as having been controverted under the terms of the Workmen’s Compensation Act and, for that reason, it has no liability for fees for appellee Henning’s attorney. The basis for this contention is that appellant, within the time allowed it after the claim was filed with the commission, advised the secretary of the Workmen’s Compensation Commission the claim would not be controverted. We hold that the evidence was sufficient to support the commission’s finding that the claim was controverted.
Henry A. Henning had suffered a heart attack on November 6, 1974. Initially, appellant took the position that the heart attack was not causally related to Henning’s duties and he was afforded medical care and disability benefits under an insurance program provided by appellant under a contiract with an insurance company. On February 25, 1975, Henning was advised the company considered the heart attack to be “personal.” The next day he consulted attorney Robert N. Hardin, who wrote the Workmen’s Compensation Commission, asserting a claim for workmen’s compensation benefits and asking that appellant be requested to make its position known. The commission sent a copy of Hardin’s letter to appellant, asking it to state its position. On March 31, 1975, appellant advised the commission that it would not controvert the claim. This was within the allotted time, as extended upon appellant’s request. In the letter confirming its acceptance of responsibility for the claim, appellant stated that it was sending a copy of the letter to Hardin, so he would know that appellant did not intend to controvert the claim.
Henning had been called to meet with Charles R. King, Jr., administrator of Alcoa’s self-insured workmen’s compensation program on February 25, 1975. It was at that meeting that Henning was told that appellant had “ruled” that his heart attack, suffered when he lifted a fellow employee of Alcoa from an ambulance at the emergency room of the Saline County Hospital, was personal. The next day he advised Hardin what had happened. He spent about 15 minutes in Hardin’s office. He did not return there before he learned that.Alcoa was going to treat his claim as compensable. He required no further legal assistance in connection with his claim.
King testified substantially as follows:
I did the preliminary workup on the case. Henning was called out on an ambulance run when a mechanic was injured in one of our buildings. Henning drove the ambulance to the hospital. I understand that while Henning was in the emergency room he collapsed. The doctors and nurses suspected that it might be a heart attack and they began to treat him, putting him in intensive care. I discussed the case with our personnel manager, our company physician and the people in our corporate workmen’s compensation department. We finally made a determination that it was not compensable and we would not pay workmen’s compensation. With the personnel manager’s approval, I apprised Henning of this fact. I would not take issue that the date was February 25, 1975. I explained that we had investigated the case and we had taken the position that we would not pay workmen’s compensation and that, if he disagreed, he had certain rights under the Workmen’s Compensation Law. The matter was closed until the claim was filed. No one on behalf of Alcoa ever filed a notice of injury. On review, after the claim was filed, we felt that it was not a workmen’s compensation case, but that we could not successfully defend our position in court. We did not discover any additional evidence that changed our mind or our position.
Appellant contends that under the provisions of Ark. Stat. Ann. §§ 81-1317 and 81-1319 (Repl. 1960) a claim cannot be considered as controverted until after a claim has been filed by an injured employee with the commission and the employer has either filed a notice of controversion or failed to timely state its position. We cannot agree with such a narrow construction of these sections. We must construe and apply the statutory provisions of the Workmen’s Compensation Act liberally in favor of the claimant in the light of its beneficent and humane purposes, resolving all doubtful cases in favor of the claimant. International Paper Co. v. Tidwell, 250 Ark. 623, 466 S.W. 2d 488.
The sections of the act upon which appellant relies are as follows:
81-1317. Notice of injury or death. - (a) Time for giving. Notice of injury or death for which compensation is payable shall be given within sixty [60] days after the date of such injury or death (1) to the Commission and (2) to the employer.
(b) Form. Such notice shall be in writing and shall contain the name and address of the employee and employer, a statement of the time, place, nature and cause of the injury or death, and shall be signed by the person claiming compensation, or by someone in his behalf.
(c) Failure to give notice. Failure to give such notice shall not bar any claim (1) if the employer had knowledge of the injury or death, (2) if the Commission determines that the employer has not been prejudiced by failure to give such notice, (3) if the Commission excuses such failure on the ground that for some satisfactory reason such notice could not be given. Objection to failure to give notice must be made at or before the first hearing on the claim.
81-1319. Payment of compensation. - (a) Payment. Compensation shall be paid directly to the person entitled thereto without an award, except in those cases where liability has been controverted by the employer. If the compensation beneficiary is a mental incompetent or a minor of tender years or immature judgment, the Commission may in the exercise of its discretion direct that payment shall be made to a legally appointed guardian of the estate of such incompetent or minor.
(d) Right to compensation controverted. Each employer desiring to controvert the right to compensation shall file with the Commission, on or before the fifteenth (15th) day following notice of the alleged injury or death, a statement on a form prescribed by the Commission that the right to compensation is controverted on the grounds therefor, the names of the claimant, employer, and carrier, if any, and the date and place of the alleged injury or death. Failure to file such statement of controversion shall not preclude the urging of any defense to the claim subsequently filed, nor shall the filing of a statement of controversion preclude the urging of additional defenses to those contained in such statement of controversion. [Emphasis ours.]
The significance of appellant’s contention lies in the terms of Ark. Stat. Ann. § 81-1332 (Repl. 1960). That section follows:
81-1332. Fees for legal services. - Fees for legal services rendered in respect of a claim shall not be valid unless approved by the Commission, and such fees shall not exceed thirty per centum (30%) on the first one thousand dollars ($1,000.00) of compensation, or part thereof, twenty per centum (20%) on all sums in excess of one thousand dollars ($1,000.00), but less than two thou sand dollars ($2,000.00) of compensation, and ten per centum (10%) on all sums of two thousand dollars ($2,-000.00) or more of compensation. Whenever the Commission finds that d claim has been controverted, in whole or in part, the Commission shall direct that fees for legal services be paid by the employer or carrier in addition to compensation awarded, and such fees shall be allowed only on the amount of compensation controverted and awarded. Whenever the Commission finds a claim has not been controverted, but further finds that bona fide legal services have been rendered in respect to the claim, then the Commission shall direct the payment of such fees out of the compensation awarded. In any case where attorneys’ fees are allowed by the Commission, the limitations expressed in the first sentence herein shall apply. In determining the amount of fees, the Commission shall take into consideration the nature, length and complexity of the services performed, and the benefits resulting therefrom to the compensation beneficiaries. [Emphasis ours.]
Appellant relies principally upon Horseshoe Bend Builders v. Sosa, 259 Ark. 267, 532 S.W. 2d 182. But this case is neither controlling nor persuasive, even though we reversed the Workmen’s Compensation Commission’s finding that the claim in that case was controverted. There we simply held that neither failure to pay nor dilatory payment of compensation benefits amounts to controversion per se. Although we held that, under the facts in that case there was no controversion, the holding certainly implies that the determination whether a claim was controverted may be a question of fact, and not one determined mechanically upon ascertaining whether, after the employee has complied with § 81-1317 by filing written notice with the commission and the employer, the employer responds by accepting the claim as compensable or filing a statement of controversion. See also, Garner v. American Can Company, 246 Ark. 746, 440 S.W. 2d 210. Use of the mechanical approach in determining whether a claim was controverted by resort to the pleadings was actually rejected in International Paper Co. v. Remley, 256 Ark. 7, 505 S.W. 2d 219.
A principal, if not the primary, purpose of determining whether or not a claim is controverted is for the purpose of determining who is liable for the claimant’s attorney’s fees. Making an employer liable for the attorney’s fees of the employee serves legitimate social purposes. Among them are discouraging oppressive delay in recognition of liability, deterring arbitrary or capricious denial of claims, and insuring the ability of necessitous claimants to obtain adequate and competent legal representation. See 3 Larson, Workmen’s Compensation Law, 15-584 through 15-611, §§ 83.10 — 83.13 (1976); Note, Workmen’s Compensation — Attorneys’ Fees and Amount of Recovery, 8 Ark. L. Rev. 195. These fundamental purposes are not unlike those served by the statutes governing allowance of attorney’s fees in litigation between an insured and an insurer.
Just as is the case with insurance policy holders, an employee in a covered employment is entitled to rely upon his employer to promptly and honestly comply with its obligations, the payment of which is of very great importance to him, in respect both of amount and promptness, and the police power of the state is appropriately utilized to protect the employee for expenses incurred due to what may sometimes be heartbreaking delays, to encourage reasonably prompt settlement of all proper claims, and to deter refusal to settle just claims and to compensate the employee for trouble and expense of legal action which unwarranted delay and refusal make necessary. See discussion of authorities in Arkansas Insurance Co. v. McManus, 86 Ark. 115, 110 S.W. 797. The social needs addressed are sufficient basis for use of the state’s police power in aid of these purposes. See, Life and Casualty Co. v. McCray, 291 U.S. 566, 54 S. Ct. 482, 78 L. Ed. 987. See also, American Liberty Mutual Insurance Co. v. Washington, 183 Ark. 497, 36 S.W. 963. Permitting recovery of such fees in insurance cases was intended to prevent defenses for the purpose of delay or other vexatious litigation. John Hancock Mutual Life Ins. Co. v. Magers, 199 Ark. 104, 132 S.W. 2d 841.
If the fundamental purposes of such statutes are to be achieved, it must be considered that their real object is to place the burden of litigation expense upon the party which made it necessary. See Globe & Rutgers Fire Ins. Co. v. Batton, 178 Ark. 378, 10 S.W. 2d 859; Commercial Union Assurance Co. v. Leftwich, 191 Ark. 656, 87 S.W. 2d 55. It has been implied that this particular statutory provision is one, among others, inspired by a disproportionate ability of the parties to conduct the litigation or as a legislative “penalty” for the wrongful conduct of the party held liable. See Note, Taxability of Attorneys’ Fees as Costs, 9 Ark. L. Rev. 70, where it was suggested that softening the impact of litigation upon certain ¿rásses who are typically caught in a disadvantageous position is desirable.
These factors were not articulated but, beyond a doubt they induced our holding that the commission did not err in finding that a claim was controverted in part, when there was justification for a claimant’s employing an attorney because payments had been stopped, even though the employer had previously accepted the injury as compensable, and she was still undergoing medical treatment. Pike County Poultry Co. v. Kelley, 243 Ark. 460, 420 S.W. 2d 523. There it appears that no claim had been actually filed with the commission until after medical payments and payments for the healing period had been terminated by the employer on the assumption that the healing period had ended upon its physician’s discharge of the claimant. It also appears from this opinion that the issues hinged upon the question whether the commission’s finding that the claim was controverted was supported by substantial evidence. This was also the basis of our affirmance of the allowance of attorney’s fees on that part of an award which appellant offered to pay by a check bearing the notation “Final Settlement,” before appellee employed an attorney, in International Paper Company v. Remley, supra, 256 Ark. 7. There we said that the facts constituted substantial evidence that the employer was using its control of the purse strings as a coercive means of controverting the claim, in fact, if not by its formal pleadings. Such an inference is certainly justifiable here, because appellant finally accepted the claim as compensable without any evidence having been brought to its attention that was not known to it when it rejected the claim. If appellee had not then employed an attorney, he would have been in a rather helpless situation. It may well be that there is no basis for allowance of attorney’s fees where the attorney has not performed any substantial service. See Wallace v. Jewell, 210 Ark. 274, 195 S.W. 2d 340. But in this case the conclusion that Henning would never have been compensated had he not employed Hardin is certainly not unreasonable if not inescapable.
In Littlejohn v. Earle Industries, Inc., 239 Ark. 439, 389 S.W. 2d 898, after a claim had been filed, the employer and insurance carrier stated they were not controverting the claimant’s right to compensation and payment of medical expenses. We held that the legislature had entrusted to the Workmen’s Compensation Commission the right to determine the necessity of a claimant’s securing the services of an attorney to preserve his benefits. We also said that the courts should not question the discretionary power of the commission in the matter of an attorney’s fee unless the determination is clearly wrong or unless there is a gross abuse of discretion. In that case the only question requiring adjudication by the commission was that pertaining to the end of the claimant’s healing period. The evidence was held to be sufficiently substantial to support the commission’s finding that the claim was controverted. From this case it would seem, and logically so, that if there is substantial evidence to support a finding that a claim is controverted, there is no abuse of the commission’s discretion to award attorney’s fees, and that this court cannot reverse the commission’s finding in the absence of a gross abuse of discretion. See also, Garner v. American Can Co., supra, 246 Ark. 746.
We reject the mechanistic construction of the act that would permit an employer, or carrier, to refuse compensation until after the employee has been forced to employ an attorney and then escape liability for the attorney’s fees by formally advising the commission that it will not controvert the claim asserted by that attorney. To do so would put form above substance. It would also be inconsistent with our treatment of the statutes governing allowance of attorney’s fees in actions against insurance companies. In such cases, the statutes do require that suit be brought. But when this has been done, it is only necessary, in order to invoke the statute, to show facts from which it can reasonably be inferred that the company understood that payment was demanded and that it refused to make it. Metropolitan Life Ins. Co. v. Shane, 98 Ark. 132, 135 S.W. 836. It is not necessary that the demand be formal if there is a clear refusal to pay. Phoenix Insurance Co. of Hartford v. Fleenor, 104 Ark. 119, 148 S.W. 650. When the denial of liability is clear and the claimant is compelled to employ an attorney to enforce his claim, the statute is applicable. Globe & Rutgers Fire Ins. Co. v. Ballon, supra, 178 Ark. 378; Commercial Union Assurance Co. v. Leftwich, supra, 191 Ark. 656. This rule applies even if no specific demand has been made when the insurance company informs the claimant in no uncertain terms that it will not make payments and that it denies liability. Continental Casualty Co. v. Vardaman, 232 Ark. 733, 340 S.W. 2d 277. Liability for attorney’s fees attaches wherever an insured is required to file suit, even though the insurer confesses judgment before trial. Federal Life & Casualty Co. v. Weyer, 239 Ark. 663, 391 S.W. 2d 22.
A liberal construction favoring the claimant mandates a holding that the question whether a claim is controverted be one of fact to be determined from the circumstances of the particular case, only one of which is the status of the formal proceedings before the commission, and that, as in other such determinations, the commission’s finding should not be reversed if there is substantial evidence to support it, or it is clear that there has been a gross abuse of discretion.
Appellant argues, in the alternative, that the award of the maximum allowable fee in this case was an abuse of discretion. The Workmen’s Compensation Commission has a great deal of discretion in fixing and approving the amount of attorneys’ fees. Sisk v. Philpot, 244 Ark. 79, 423 S.W. 2d 871. The statutory limitation on the amount is that the fees “shall not exceed” a percentage of the compensation awarded. Ark. Stat. Ann. § 81-1332. The very words “shall not exceed” indicate that the maximum allowance should not be made in every controverted case. We have said that there is no requirement that the maximum attorneys’ fees be given. Garner v. American Can Co., supra. We have likewise said that the statute is in the nature of a restrictive one in that the commission must observe fixed limitations. Norsworthy v. Georgia Pacific Corp., 249 Ark. 159, 458 S.W. 2d 401. The statute is a limitation on the amount that may be paid. Wallace v. Jewell, supra. The importance of hearing testimony regarding the fee has been noted. Lundell v. Walker, 204 Ark. 871, 165 S.W. 2d 600.
On May 22, 1975, the Administrative Law Judge took evidence on the issue of whether the claim was controverted, and whether appellant’s attorney was entitled to a fee. The Administrative Law Judge requested that claimant’s attorney testify as to his services so that a fee might be determined in the event the judge decided that the claim was controverted. Claimant’s attorney declined on the ground that it would be a moot question if the judge held for Alcoa. The judge agreed with this position but promised, if both parties agreed to the procedure, that there would be an additional hearing on the matter of fees if he decided the claim was controverted. After the judge decided that the claim was controverted, he awarded the maximum fee without any additional hearing. The commission also held that the claimant’s attorney was entitled to the maximum fee and the Circuit Court affirmed the decision.
The appellant observed that as of August 1, 1976, the claimant’s attorney had been paid $1,171.46; and, if the claimant lives out his average life expectancy of thirteen years, his attorney would also be entitled to $4,495.40 plus ten percent commission on additional medical and hospital services. Except for proceedings relating to allowance of attorney’s fees, the record discloses no services except those rendered prior to acceptance of the claim, consisting of one client interview of 15 minutes’ duration and one letter. The claimant states that he knows of no other case where the commission has awarded less than the maximum fee in a controverted case. He argues that he is entitled to the fee because Alcoa exercised bad faith in denying the claim and handled the claim in a haphazard manner. He asserts that maximum fees should be imposed so that employers will carefully investigate and sparingly deny cases in order to avoid the extra expense. But the imposition of attorney’s fees is not purely punitive. To make them so would not be consistent with the lack of statutory requirement that the refusal to pay be unreasonable or arbitrary and with the requirement that an attorney’s services be necessary and substantial. See Pike County Poultry Co. v. Kelley, supra, 243 Ark. 460; Wallace v. Jewell, supra, 210 Ark. 274. See also, 3 Larson, supra, at § 82.12, p. 15-591.
In fixing the amount of the fee the statute requires the commission to take into consideration the nature, length and complexity of the services performed as well as the benefits resulting to the claimant. Sisk v. Philpot, supra, 244 Ark. 79. When judgments are recovered against insurance companies, we have said that attorney’s fees allowed should be commensurate not only with time and work required but also with the ability present and necessary to meet the issues that arise and that, to be reasonable, they should not be so small or low that well prepared attorneys would avoid that class of litigation or fail in the employment of sufficient time for thorough preparation but should be sufficient to compensate for the engagement of counsel thoroughly competent to protect the interests of the claimant. John Hancock Mutual Life Ins. Co. v. Magers, supra, 199 Ark. 104. These considerations are also important in workmen’s compensation cases.
It may not be necessary in every case for the commission or Administrative Law Judge to take evidence to be considered in addition to the trial record, because the record itself speaks to these issues, and in some cases the maximum fee would be so clearly indicated that no evidence could justify a lesser amount. In Union Central Life Ins. Co. v. Mendenhall, 183 Ark. 25, 34 S.W. 2d 1078, it was held that the court erred in fixing the amount of attorney’s fees without a hearing on the motion for them and without hearing evidence tending to establish the proper amount. Where, as here, the record indicates that a bare minimum of services was rendered, it was an abuse of discretion to award the maximum fee without additional evidence that this fee was justified.
The judgment is affirmed insofar as the question of controversion is concerned, but reversed as to the amount of attorney’s fees allowed and remanded with directions to the circuit court to remand the case to the commission for further proceedings not inconsistent with this opinion.
We agree. Harris, C.J., and George Rose Smith and Jones, JJ.
We tacitly recognized the significance of a prompt assumption of liability by a carrier in Wallace v. Jewell, 210 Ark. 274, 195 S.W. 2d 340.
For an excellent discussion of this subject, see Trammell, One State’s experience With the Statutory Remedy for Insurer’s Delays — A problem in Payment, 10 Ark. L. Rev. 439. | [
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Elsijane T. Roy, Justice.
The Highway Beautification Act of 1965 (23 U.S.C. § 131 et seq.) requires states to provide “effective control” of outdoor advertising devices along certain highways or suffer a reduction of 10% in the amount of federal-aid Highway funds otherwise available. Billboards along federal-aid highways can only be erected, after the passage of state-conforming legislation, in accordance with an agreement established between the state and the Secretary of Transportation.
To conform to this federal requirement, the Arkansas legislature enacted statutes authorizing the Arkansas State Highway Commission (hereafter Commission) to enter into a regulatory agreement with the Secretary of Transportation, and authorizing the Commission to establish a permit and enforcement mechanism for carrying out the provisions of the statutes. The Commission thereafter adopted a draft agreement and a series of regulations which were approved by the Secretary of Transportation January 29, 1972.
Appellants challenge the above statutes and regulations, appealing from the trial court’s determination that they are valid. Appellant Lloyd Yarbrough owns and operates a large cold storage and open market facility located on Interstate 40 just south of Clarksville, Arkansas. He is engaged in the business of buying, selling and growing fruit, vegetables and other produce. Yarbrough, pursuant to lease agreements, has placed advertising devices on lands owned by appellants Johnny Wilhelmsen and Ozark Real Estate Company.
It is uncontradicted that the signs in question were erected after the effective dates of both the federal and the state enactments; that no permits were sought as required; and that the signs are in violation of the statutory requirements. However, appellants contend the statutes are unconstitutional and seek a declaratory judgment to this effect.
Appellant Yarbrough first urges the Commission should be enjoined from ordering the signs removed because of lack of notice to him. The record reflects the required legal notice of 30 days was given by the Commission to appellant-landowners and also that appellant Yarbrough had actual notice. Furthermore, removal of the signs was deferred pending determination of the case on the merits, so we find this contention without substance.
Appellants urge there is an unlawful delegation of legislative power to the Commission in authorizing it to promulgate the regulations. We do not find this to be true. The legislature declared the purpose of the statutes, and the scope of authority delegated to the Commission is well defin ed. Pursuant thereto authorized regulations have been promulgated by the Commission. We find the administrative standards prescribed by the legislature have been carried out by the regulations which are valid, adequate and reasonable.
Appellants specifically contend that the legislation is violative of Article 2, § 22 of the Arkansas Constitution and that they have been denied due process and equal protection of law.
This Court recognizes Article 2, § 22 protects individual property rights, but the individual’s use and enjoyment of property is always subject to reasonable regulations in order to preserve the welfare of the public at large.
In the case of Board of Adjustment of Fayetteville v. Osage Oil & Transportation, Inc., 258 Ark. 91, 522 S.W. 2d 836 (1975), issues similar to appellees’ contentions were raised, and we held inter alia that:
The basic power of a municipality to regulate the size and location of billboards and other commercial signs has been sustained in so many jurisdictions that it would be a waste of time and effort to cite the cases. Such regulations have been upheld upon many grounds, including the promotion of traffic safety, the control of potentially hazardous structures, and the fundamental considerations of city planning and city beautification that underlie the zoning concept itself. * * *
In the case of Markham Advertising Company, Inc., et al. v. The State of Washington, et al., 73 Wash. 2d 405, 439 P. 2d 248 (1968), reh. denied 393 U.S. 1112, 89 S. Ct. 854, 21 L. Ed. 2d 813 (1969), the court held a statute regulating outdoor advertising was not an unconstitutional exercise of police power as it promoted the convenience and enjoyment of public travel, protected public investment in the highways, attracted visitors to the state and conserved the natural beauty of areas adjacent to the highways.
In General Outdoor Advertising Co. v. Dept. of Public Works, 289 Mass. 149, 193 N.E. 799 (1935), the court held that the regulation of outdoor advertising along the highway was a valid exercise of the police power, stating inter alia:
It is, ... , within the reasonable scope of the police power to preserve from destruction the scenic beauties bestowed on the Commonwealth by nature in conjunction with the promotion of safety of travel on the public ways and the protection of travellers from the intrusion of unwelcome advertising.
To the same effect see Ghaster Properties, Inc. v. Preston, 176 Ohio St. 425, 200 N.E. 2d 328 (1964), and New York State Thruway Authority v. Ashley Motor Court, Inc., 10 N.Y. 2d 151, 218 N.Y.S. 2d 640, 176 N.E. 2d 566 (1961).
In Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S. Ct. 1536, 39 L. Ed. 2d 797 (1973), the United States Supreme Court, quoting from Berman v. Parker, 348 U.S. 26, 75 S. Ct. 98, 99 L. Ed. 27 (1954), held that:
* * * The concept of the public welfare is broad and inclusive .... The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful, as well as healthy, spacious as well as clean, well balanced as well as carefully patroled.
At least 49 of the 50 states have enacted legislation in compliance with the Highway Beautification Act. See 71 Mich. L. Rev. 1296, 1328.
Appellants charge that Ark. Stat. Ann. §§ 76-2501 et seq. (Supp. 1975) abridge the equal protection clause by providing compensation for the owners of outdoor advertising devices, or property leased for outdoor advertising purposes, existing prior to the effective date of the statute, without providing compensation for individuals who erect such devices after that date. We find this contention without merit since the legislation became effective JaTmary 29, 1972, with the signing of the federal/state agreement and according to appellant Yarbrough’s own testimony he erected his signs in June, 1975.
The equal protection clause does not prohibit all statutory classification. In Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971), the Court stated:
* * * A classification “must be reasonable, not arbitrary, and must rest on some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.”
The equal protection clause prohibits invidious discrimination and does not require identity of treatment. Clark v. Dwyer, 56 Wash. 2d 425, 353 P. 2d 941 (1960); Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 75 S. Ct. 461, 99 L. Ed. 563 (1955); and Walters v. City of St. Louis, 347 U.S. 231, 74 S. Ct. 505, 98 L. Ed. 660 (1954).
In view of the very real difference in the legal interest of the owners of prior nonconforming uses and later illegally initiated uses, the classification herein is reasonable and valid and appellants have no standing to complain.
Appellants also argue that the Commission’s regulations deny them equal protection of law because they discriminate against agricultural pursuits. The statutory scheme contemplated an exemption for those areas which were already heavily commercialized or industrialized and sought to prevent areas devoted mainly to agricultural activities or forestry land from becoming glutted by signs which would obstruct the view and detract from the beauty of the landscape. Few aesthetic features will be found in zoned or unzoned commercial or industrial areas, while rural and residential areas are more likely to include places of scenic beauty and historic interest. This classification to preserve pastoral scenery and eliminate disharmonious advertising has a substantial, fair and reasonable relation to the object of the legislation. Reed v. Reed, supra.
In recognizing the validity of different classifications in the Osage Oil case, supra, this Court said:
* * * The on-site business signs and the off-site outdoor billboard fall into different categories, are erected for different purposes, and are subject to different regulations. * * *
The outdoor advertising sign, on the other hand, is not maintainable as a matter of right; such signs have been prohibited altogether. See the extended discussion in General Outdoor Adv. Co. v. Department of Public Works, 289 Mass. 149, 193 N.E. 799 (1935). * * * -
Appellant’s final contention is that irreparable injury will be suffered by the peach and apple growers of Johnson County if they are denied the right to advertise and the general public will be damaged by not knowing where purchases of this sort may be made. Appellant Yarbrough testified as to the volume and value of sales for overripe peaches and the need for the “illegal” signs to advertise his produce in order to make quick sales, but he failed to give any comparison figures or to make any reasonable projection of losses causing irreparable injury. We find that he has not been denied the right to advertise, but the right has been limited by valid restrictions. Testimony at the trial indicated the possibility of “on premise” signs and use of space available near appropriate exits, but these admittedly had not been explored by appellant Yarbrough at the time of the trial. Furthermore, appellants had no vested right to capitalize on the flow of traffic over Interstate 40. In view of lack of proof on this issue of damages and our determination that the legislation herein is constitutional, appellants must also fail on this contention.
For the foregoing reasons the decree is affirmed.
When the bill was initially presented to Congress, President Lyndon B. Johnson stated:
In a nation of continental size, transportation is essential to the growth and prosperity of the national economy.
But that economy, and the roads that serve it, are not ends in themselves. They are meant to serve the real needs of the people of this country. And those needs include the opportunity to touch nature and see beauty, as well as rising income and swifter travel. (71 Mich. L. Rev. 1296).
Act 640 of 1967, amended by Act 999 of 1975 (Ark. Stat. Ann. §§ 76-2501 et seq. (Supp. 1975) ).
The one exception, South Dakota, brought suit to compel the Secretary of Transportation to pay $3,361,546.60 of federal-aid highway funds,- withheld for noncompliance for the fiscal year 1973, to which the state otherwise would have been entitled. The court entered a summary judgment upholding the Secretary’s determination and refusing to order payment of the money to South Dakota. South Dakota v. Volpe, 353 F. Supp. 335 D.C. (1973). | [
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] |
Elsijane T. Roy, Justice.
Appellant Warren Renfro was found guilty in the Municipal Court of Conway, Arkansas, on a count of overpossession and possession for sale of intoxicants and on a count of selling intoxicants in a dry county. He was fined $750 on each count. Appellant timely appealed the municipal court actions to the Circuit Court of Faulkner County. On October 6, 1975, appellant did not appear at a scheduled pre-trial hearing, and the trial court made a docket entry forfeiting the bail bonds on the appeals and affirmed the municipal court in both cases.
When the judgments reflecting the docket entries were filed appellant then filed motions to vacate and set aside the judgment forfeiting the bail bonds and affirming the municipal court action. Appellant’s motions in each case, were overruled, and this appeal followed.
For reversal appellant contends the judgments of the circuit court forfeiting bail bonds and affirming the municipal court convictions denied him substantive and procedural due process of law because of insufficient notice. The only notice appellant had that his appeals were to be considered by the circuit court was a multi-page calendar which listed his appeals among 203 criminal non-jury matters and stated, “The cases appearing on this docket are listed for plea, arraignment, and pre-trial only.”
Appellee contends appellant had an affirmative duty to be present at the October 6, 1975 hearing and also to request a setting for trial. In support of its position the State cites Ark. Stat. Ann. § 44-507 (Repl. 1964), which provides:
If the appellant shall fail to appear in the circuit court when the case is set for trial, . . . , then the circuit court may, unless good cause be shown to the contrary, affirm the judgment of the [lower] court and enter judgment against the appellant .... (Italics supplied.)
Appellee’s position would have merit if we could find that the 14-page calendar constituted a setting of the cases for trial; however, the calendar stated “pre-trial only. ” Although circuit court always remains open [Ark. Stat. Ann. § 22-312 (Repl. 1962)] we do not deem the notice given here sufficient to comport with the requirements of Ark. Stat. Ann. § 22-311 (Repl. 1962) nor with federal requirements of due process.
The Supreme Court of the United States said in Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975):
There are certain bench marks to guide us, however. Mullane v. Central Hanover Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950), a case often invoked by later opinions, said that “[m]any controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” * * * (Italics supplied.)
Appellant received no proper notice that his appeals would be heard on the merits on October 6, 1975. Failure to give such notice is failure to meet the minimum requirement of due process.
Reversed and remanded for appropriate proceedings in circuit court.
We agree. Harris, C.J., and Fogleman and Hickman, JJ- | [
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Elsijane T. Roy, Justice.
Appellant C. W. Curan was charged in Miller County on January 17, 1974, with the crime of robbery in violation of Ark. Stat. Ann. § 41-3601 (Repl. 1964). He subsequently was tried and convicted of a crime in the State of Texas. On March 1, 1974, an extradition warrant was issued for appellant by the Governor of Texas, and Arkansas requested a hold on July 5, 1974.
On September 5, 1975, while incarcerated in Texas, appellant filed a pro se motion to dismiss the robbery charge pending against him in Arkansas on the ground that he had been denied a speedy trial. On November 3, 1975, he filed a pro se petition for writ of mandamus in this Court to compel the Miller Circuit Court to act on his motion to dismiss. In an unpublished per curiam order dated March 22, 1976, appellant’s petition was denied.
Arkansas authorities requested temporary custody of appellant on December 4, 1975, which request was granted and appellant was returned to Arkansas. On April 9, 1976, another motion to dismiss the charges against appellant was filed, alleging that he had been denied the right to a speedy trial. After a hearing on April 19, 1976, the trial court found that appellant had not been denied his constitutional right to a speedy trial and thus was not entitled to have the charges against him dismissed. From the trial court’s ruling comes this appeal.
Appellant relies upon two points for reversal, the first being that the trial court should have sustained his motion to dismiss based upon the denial of the right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution.
The United States Supreme Court has held that the right to a speedy trial is so basic and fundamental that it applies in state criminal cases. Klopfer v.North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967). The Court also has held that one who is imprisoned in another jurisdiction has a right to a speedy trial, and on demand a state has a duty to make a diligent and good faith effort to secure the presence of the accused from the custodial jurisdiction of another state and afford him a trial. Dickey v. Florida, 398 U.S. 30, 90 S. Ct. 1564, 26 L. Ed. 2d 26 (1970).
In Smith v. Hooey, 393 U.S. 374, 89 S. Ct. 575, 21 L. Ed. 2d 607 (1969), the United States Supreme Court held that the Sixth Amendment guarantee of a right to a speedy trial is essential to protect at least three basic demands of criminal justice:
[1] to prevent undue and oppressive incarceration prior to trial, [2] to minimize anxiety and concern accompanying public accusation and [3] to limit the possibilities that long delay will impair the ability of an accused to defend himself. (Citation omitted.)
The Court has recognized, however, that the right to a speedy trial is necessarily relative, and that it is consistent with delays and depends upon circumstances. Beavers v. Haubert, 198 U.S. 77, 25 S. Ct. 573, 49 L. Ed. 950 (1905); Pollard v. United States, 352 U.S. 354, 77 S. Ct. 481, 1 L. Ed. 2d (1957).
In Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the Court set out four factors to be assessed in determining whether an accused has been deprived of his right to a speedy trial. The four factors identified by the Court are “length of delay, the reason for the delay, the defendant’s assertion of his right and prejudice to the defendant.”
In the instant case the length of delay is regrettable, but it must be viewed in the light of the reason for the delay. There is no showing of a lack of good faith on the part of the Arkansas officials. Before appellant could be tried in Arkansas, he was incarcerated in another jurisdiction. Almost as soon as Arkansas officials discovered appellant’s whereabouts they placed a hold on him, but before appellant could be returned he began his efforts to have the charges against him dismissed. In spite of appellant’s efforts to have the charges dismissed there are no indications that he made any effort to demand a trial. In Barker, supra, the Court said:
. . . [F]ailure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.
Although the delay in terms of passage of time is obvious, it was caused for the most part by the efforts of appellant to have the charges against him dismissed. Furthermore, appellant has furnished no special evidence of prejudice to him attributable to the delay. In light of all the circumstances we find the trial court properly refused to dismiss the charges against appellant.
Appellant also contends that since he was denied a speedy trial he should have been discharged from custody pursuant to Ark. Stat. Ann. § 43-1708 (Repl. 1964). This section provides:
If any person indicted for any offense, and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after the finding of such indictment, he shall be discharged so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner.
In State v. Davidson, 254 Ark. 172, 492 S.W. 2d 246 (1973), a defendant incarcerated in Colorado filed a motion for dismissal of the charges against him on the ground that the State of Arkansas had not given him a speedy trial pursuant to § 43-1708. The motion was granted by the trial court, and the State appealed. This Court reversed the trial court’s ruling, holding that:
* * * When an accused is incarcerated in a federal institution or another state, he is not incarcerated or held on bond awaiting a determination of whether he is guilty or innocent, but is incarcerated for the commission of another crime for which he has been found guilty. In such situation there is no good reason why the accused should not be required to place himself on record in the attitude of demanding a trial before he would be entitled to discharge under § 43-1708 or § 43-1709. (Italics supplied.)
In Davidson the Court further held that a motion to dismiss the charges for failure to grant a speedy trial does not constitute a demand for trial for purposes of § 43-1708.
The Interstate Agreement on Detainers, Ark. Stat. Ann. § 43-3201 (Supp. 1975), to which Texas is also a party, outlines the procedure for demand of a speedy trial by an accused incarcerated in one state with charges pending against him in a sister state. There are no indications in the record that appellant ever gave the prosecuting attorney or Miller County officials written notice of his place of imprisonment, demanded final disposition of the charges against him or otherwise provided information required by the Interstate Agreement on Detainers.
Finding no merit in appellant’s contentions, the trial court’s refusal to grant the motion to dismiss is affirmed.
Affirmed.
We agree. Harris, C.J., and Byrd and Holt, JJ. | [
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Conley Byrd, Justice.
For reversal of their convictions for possessing more than an ounce of marijuana with intent to sell and deliver, the appellants, Roy James Powell and Georgia Marie Powell raise the following issues:
1. The trial court erred in not granting appellants ’ motion to quash search warrant and to suppress any items obtained from such search.
2. The trial court erred in not directing a verdict for appellants.
3. The trial court erred in not permitting appellants to impeach the testimony of witness, Joe Morgan.
4. The trial court erred in not permitting appellants to introduce into evidence the petition to revoke suspended sentence of witness for the State, Joe Morgan.
5. The trial court erred in not ordering the return of appellant, Roy James Powell, funds confiscated by the officers.
The facts stated most favorably to the jury’s findings show that after an informant, Joe Morgan, had made a purchase of a lid of marijuana from the Powells with a marked $20 bill, a search warrant was obtained to search the home. When the searching officers knocked on the door of the Powell home, there was some resistance by Mr. Powell while Mrs. Powell was seen running through the house and handling a plastic bag. Joe Morgan testified that when he purchased the lid of marijuana, he gave the marked $20 bill to Mrs. Powell and that she went into another room and got him the marijuana and brought him his change — the lid cost $15.00. At the time of the search and arrest $1,264.00, including the marked $20 bill, was taken from the Powells.
POINT I. The attack upon the search warrant is two fold—i.e. (1) there is no statutory authority for city officers to serve a search warrant and (2) Officer Presley, who signed the affidavit for the search warrant had no reason to believe Joe Morgan. We find no merit in either contention. Ark. Stat. Ann. § 43-204 authorizes a search by a “public officer” and the city police would certainly fall within the definition of a public officer.
To support the argument that Officer Presley had no reason to believe Joe Morgan, the appellants rely upon portions of Joe Morgan’s testimony elicited at the criminal trial to collaterally attack the affidavit presented to the magistrate who issued the search warrant. However, we held in Liberto & Mothershed v. State, 248 Ark. 350, 451 S.W. 2d 464 (1970), that the validity of the issuance of a search warrant could not be retrospectively attacked by the production of other evidence.
POINT II. We find no merit to the contentions of either of the Powells that they were entitled to a directed verdict. The testimony of Joe Morgan is sufficient to sustain the verdict when viewed from the substantial evidence rule applied to jury verdicts. In addition there was other evidence from the searching officers that tied both of the Powells to the possession for sale of the drugs.
POINTS III & IV. In making the contentions that they were entitled to impeach the credibility of Joe Morgan’s testimony on collateral matters appellants recognize that we have ruled to the contrary in Spence v. State, 184 Ark. 139, 40 S.W. 2d 986 (1931), and in Swaim v. State, 257 Ark. 166, 514 S.W. 2d 706 (1974), but suggest that those authorities should be overruled. We decline to overrule those authorities which are based upon Ark. Stat. Ann. § 28-707 (Repl. 1962). Without the restriction on collateral matters a simple trial could be carried on for years. The rule applies also to impeachment of a witness where an indictment has been returned against him, Anderson v. State, 34 Ark. 257 (1879).
POINT V. Appellants assert that the trial court relied upon Ark. Stat. Ann. § 43-2403 (Repl. 1964), for not returning the money taken from them at the time of the search and arrest. The State contends that the possession of a large amount of cash money had independent relevance to the charge and that the State properly held it for evidence. Except for the marked $20 bill that was in the possession of Powell at the time of his arrest, we can find no authority that would support the confiscation of the Powells’ money pending the trial. Ark. Stat. Ann. § 43-2403, was before this court in Lawson v. Johnson & Ashley, 5 Ark. 168 (1843), and we there stated:
“This provision of law, we have no doubt, creates a lien in favor of the State, on all of the property of a person charged with a criminal offence, wheresoever it may be within the limits of the State, which attaches upon and binds it, not only in the hands of the accused, but also in the hands of any other person who shall, in any manner, possess or hold it, from the time of the arrest or indictment found, as mentioned in the Statute, until the accused is discharged from the prosecution, or such fines and costs, as shall be adjudged against him, are paid. But it surely was not the design of the law to confiscate the property of the accused, or to divest him of the possession or use of it pending the prosecution.”
Except for the marked $20 bill, the money taken from the Powells should have been returned upon a signed receipt identifying the amount and kind of bills. To hold otherwise would run the risk of confiscating a person's property without due process of law.
However, the marked $20 bill, that was used to purchase the illegal drugs, was specifically identifiable as such and was subject to seizure pursuant to Ark. Stat. Ann. § 43-205 (Supp. 1975).
It accordingly follows that the judgment of conviction is affirmed but the trial court is reversed in so far as it refused to refund the money, other than the marked $20 bill, to the appellants.
Affirmed in part and reversed in part.
We agree: Harris, C.J., and Holt and Roy, JJ. | [
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HART, J.,
(after stating the facts). The plaintiff resided in the town of Stuttgart in the Northern District of Arkansas County, and the telephone company had its principal office there. Its lines extended into the Southern District of Arkansas County and it had-a branch office there. The plaintiff brought this suit in the Southern District and the telephone company moved to transfer it to the Northern District. The court refused to make the transfer and its ruling is now assigned as error calling for a reversal of the judgment.
The Legislature of 1909 passed an act regulating the service of summons on corporations. Section 1 provides that all foreign corporations and domestic corporations who keep or maintain in any of the counties in this State a branch office or other place of business shall be subject to suits in any of the courts in any of said counties where such corporation so keeps or maintains such office or place of business and that service o'f summons upon the agent or employee in charge of said office or place of business shall be sufficient service and shall give jurisdiction to any of the courts of this State held in the counties where such service of summons is had. Acts of 1909, page 293.
The Legislature of 1913 passed an act establishing two judicial districts in Arkansas County. Courts were to be held at Stuttgart for the Northern District and at DeWitt for the Southern District. Section 6 provides that said districts for all purposes of the act shall be considered as separate and distinct counties and that the mode and place for trying suits shall be determined by the general law applicable to different counties. Acts of 1913, page 192.
(1) It is the contention of counsel for the telephone company that the latter act repealed the former one. We do not agree with counsel in this contention. A special act will not repeal a general law unless there'is a manifest repugnancy in their provisions or one was obviously intended as pro tanto a substitute for the other. 36 Cyc., p. 1093.
(2) There is a field of operation for both statutes. The later special act does not in express terms repeal the former one. Repeals by implication are not favored. The two acts were passed to accomplish different objects and their provisions are not irreconcilable or necessarily inconsistent. Both may stand and be operative without being repugnant to each other. Chamberlain v. State, 50 Ark. 132, and McFarland v. State Bank, 4 Ark. 415.
Neither can it be said that because the act of 1913 was enacted after the act of 1909, that the provisions of the former do not apply to the judicial districts created by the latter act. The statute of 1909 is general in its terms and must be held to apply to any county or district existing during the life of the act. Hence it could not be said that the general act did not apply because it was enacted prior to the passage of the special act of 1913.
(3) It is next contended that the court erred in giving instruction No. 1, which is as follows: would be liable for $100 penalty and an additional sum of $5 per day for each day thereafter that it failed to supply plaintiff with telephone connections and service. ’ ’
“You are instructed that telephone companies, by the necessities of commerce and by public use, have become common carriers of communications, and as such must supply all applicants alike, who are similarly situated, within ten days after written demand therefor and can not discriminate in favor of or against any one, and if you find from the testimony in this case that the plaintiff, Miss Alice Malcomb, applied for telephone service in the city of Stuttgart, Arkansas, and a mutual contract was signed by her and defendant company on the 18th day of September, 1916, which contract is in evidence and was complied with on the part of the plaintiff, and after ten days from the date of said contract defendant company had not supplied her with telephone connections with its switchboard in said city as alleged in her complaint, and as provided in said contract, then defendant company
In this contention we think counsel are correct. In the case of Southwestern Telegraph & Telephone Company v. Murphy, 100 Ark. 546, in construing a statute in all respects similar to the one now under consideration except as to the penalty provided, the court said:
“The manifest purpose of the statute is to inflict a penalty on a telephone company, not for negligence or inattention in failing to repair its instrumentalities for supplying service, but for wilful refusal to furnish telephone connections and facilities without discrimination or partiality to all applicants who comply or offer to comply with the rules. The statute forbids discrimination, and mere neglect or inattention in repairing instruments does not constitute that. The most that the evidence tends to establish is negligence in failing to repair plaintiff’s telephone. There is nothing to show that this was prompted by any intention to deprive plaintiff of the use of his telephone, and for that reason we are of the opinion that the question of discrimination during that period should not have been submitted to the jury. That error calls for a reversal of the judgment, for we have no means of determining whether the verdict of the jury was based upon that feature of the case or upon the other as to removal of the telephone in June. ’ ’
It is manifest that the instruction complained of is contrary to the decision of the court just quoted. Under the instruction as given the jury was required to find for the plaintiff if the defendant company had not supplied her with telephone connections within ten days after the date of her contract with the company regardless of the fact of whether the failure was wilful or not. The burden of the proof was on the plaintiff to bring the .ease within the terms of the statute. It is true the undisputed evidence shows that the company failed to install the telephone within the limit of time prescribed by the statute, but it can not be said that the undisputed evidence shows that the failure was wilful or prompted by any intention to deprive the plaintiff from having a telephone.
According to the evidence adduced by the company, its servants went to the place of business of the plaintiff within reasonable hours for the purpose of installing a telephone under the contract. The house was closed up. They went again on two separate days and did not find any one there.
According to the plaintiff’s own testimony she did not open her business until very late in the morning from 9:30 to 10:30 o’clock. The servants of the company did not know where the plaintiff resided. Under these circumstances the giving of the instruction in the form1 set out above was prejudicial to the rights of the defendant company. See also Southwestern Tel. & Tel. Co. v. Garrigan, 107 Ark. 611, and Hill v. Southwestern Tel. & Tel. Co., 117 Ark. 104.
For the error in giving instruction No. 1, at the request of the plaintiff, the judgment must be reversed and the cause remanded for a new trial. | [
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HART, J.,
(after stating the facts),. The note in question was transferred to the plaintiff bank for value before its maturity. '
It is earnestly insisted by counsel for thev plaintiff that the note sued on was negotiable in form under our Negotiable Instrument Law (Acts of 1913, p. 270), and that the court erred in not so stating to the jury. But the views we shall hereinafter express make it unnecessary for us to decide this question. The trial court was evidently of the opinion that the note was not negotiable; for in its general instructions to the jury it refused to submit the question of whether or not the plaintiff was an innocent holder before maturity for value and in the usual course of business. The court submitted the case to the jury on the question of the false representations of the salesman of Donald-Richard Company.
Among other instructions at the request of the defendant it gave the f ollowing:
“If you find from the evidence that defendant was induced to buy the goods by reason of false and fraudulent representations of the salesman of Donald-Richard Company, and if you further find that defendant offered to return the goods within a reasonably fit time after discovering such fraud, then your verdict will be for the defendant. ’ ’
The plaintiff asked the court to give the following instructions:
“No. 3. Fraud is a material false representation, made with a knowledge of its falsity, or a reckless disregard of whether it is true or false, intending that the party to whom it is made shall rely upon it, and the party to whom it is made must have the right to rely upon such statements, and he must rely upon them, and so relying act upon them to his injury.”
“No. 4. By material misrepresentation is meant a false statement about existing or past facts, as distinguished from expressions of opinion of what could be done in the future; statements that goods were salable or would increase sales, and bring business are mere matters of opinion and do not constitute fraud.”
(1) Tbe court gave instruction No. 3 but modified instruction No. 4, by striking therefrom tbe words “were salable or.” Tbe court did not err in giving tbe instruction on tbis phase of the case asked by tbe defendant nor in striking from tbe instruction No. 4 as asked by tbe plaintiff tbe words'“were salable or.” Tbe company manufactured tbe goods which it offered for sale. Its place of business was in another State. Tbe buyer bad no opportunity to inspect tbe goods before he purchased them and bad a right to rely upon the representations made by tbe seller of goods of his own manufacture. In such cases tbe law implies a warranty that tbe articles shall be merchantable and reasonably fit for tbe purposes for which they were intended. Main v. Dearing, 73 Ark. 470; Main v. El Dorado Dry Goods Co., 83 Ark. 15; American Standard Jewelry Co. v. Hill, 90 Ark. 78; and Metropolitan Discount Co. v. Fondren, 121 Ark. 250.
(2) Tested-by tbe principles' of law laid down in these cases it is perfectly evident from tbe testimony recited in tbe statement of facts of tbe witnesses for the defendant (and which need not be repeated here) that tbe evidence is legally sufficient on tbis phase of tbe case, to warrant tbe verdict. Tbis being true it becomes immaterial to decide whether or not tbe note sued on was ne-' gotiable in form under our Negotiable Instrument Act; for, if it be assumed that the note was negotiable in form still tbe court was right in rendering judgment in favor of tbe defendant on tbe general verdict. We have copied into tbe statement of facts tbe special interrogatory submitted to tbe jury and tbe answer thereto. Under tbis tbe court submitted to tbe jury the question of whether or not tbe plaintiff was an innocent purchaser. Section 6207 of Kirby’s Digest, provides that in all actions tbe jury may be required by tbe court in any case in which they render a general verdict to find specifically upon a particular question of fact to be stated in writing and that this special finding is to he recorded with the verdict. Section 6208 provides that .when the special finding of fact is inconsistent with the general verdict, the former controls the latter, and the court may give judgment accordingly. So it will be seen that under our statutes, a general verdict for the defendant imports a finding in his favor upon all the issues in the case which are consistent with the special findings returned by the jury. Little Rock & Ft. Smith Ry. v. Miles, 40 Ark. 298, and Mauney v. Millar, 117 Ark. 633. There is no inconsistency in the present case between the general and special verdict. Indeed, the latter aids the former..
(3) It is contended by counsel for the plaintiff that the special finding of the jury was based upon the theory that the note was non-negotiable. "We do not agree with counsel in this contention. The jury specifically answered that the plaintiff was not an innocent purchaser. ' The court in framing the interrogatory defined an innocent purchaser of a note to be one who obtains it in due course of business, for value before maturity, in good faith without notice of any defenses the maker might have had to it. The jury must have had in'mind this definition of an innocent purchaser when it made its special findings. It is well settled that when a question of consistency between the general verdict and the special one arises, nothing is presumed in aid of the special findings, while every reasonable presumption is indulged in favor of the general verdict. Morrow v. Bonebrake, 84 Kan. 724, 34 L. R. A. (N. S.) 1147, and Kafka v. Union Stock Yards Co. (Neb.), 110 N. W. 672.
Mr. Thompson says that, if possible, the special findings will be interpreted so as to support the verdict rather than overturn it. Thompson on Trials, (2 Ed.), Sec. 2693.
(4) Finally it is insisted that there is no testimony in the record upon which to base the finding that the plaintiff was not an innocent purchaser for value. But we can not agree with counsel in this contention.
It is true that the cashier of the bank testified that his bank purchased the note sued on for value in the usual course of business before maturity and that at the time he did not know for what the note was given or that the defendant had any defense to it.
On cross-examination, however, the cashier detailed a state of facts which tended to contradict this testimony and from which the jury might have found that the bank was not an innocent purchaser for value. The bank had been extensively engaged in purchasing notes of between one hundred and two hundred dollars in amount for several years prior to the transaction in question. It knew that the company was engaged in the wholesale manufacture and sale of toilet articles to merchants in various parts of the country. More than five hundred notes of about the same amount as the note sued upon had been transferred by the company to the bank during the past few years. These notes were given by persons scattered over different states. No investigation of their financial standing was made by the bank when the notes were transferred to it, except to ask the manufacturing company if the makers were solvent. The cashier stated that he understood in a general way that the notes were customers ’ notes; that he had been a witness in from twenty-five to fifty suits on notes of this kind during the past few years and that the defense of fraud similar to the defense made in the present case had been set up in about twenty-five per cent of these cases; that the bank had been successful in from seventy-five to eighty-five per cent, of them; that the manufacturing company was required to put $1.25 in collateral in notes for every $1.00 furnished by the bank; that the company paid .all the expenses of suit when it was necessary to sue on the notes. The bank and the manufacturing company were engaged in business in the same city and under the circumstances detailed above the jury was warranted in finding that the bank was not an innocent purchaser of the note sued on. Holland Banking Co. v. Booth, 121 Ark. 171; First Na tional Bank of Iowa City v. Smith (Col.), 136 Pac. 460; Johnson County Savings Bank v. Rapp (Wash.), 91 Pac. 382, and Johnson County Savings Bank v. Gregg, 117 Pac. 1003.
It follows that the judgment must be affirmed. | [
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HART, J.
Mary C. West sued J. A. West in the circuit court for the alleged conversion of sixty-five bushels of corn, worth $50, two tons of hay worth $25 and one bale of cotton of the value of $65, making a total of $140. The facts are as follows:
J. L. West was originally the owner of the land on which the corn, hay and cotton in controversy was grown. He married Mary C. West and subsequently a decree of divorce was granted to her. In the divorce suit commissioners were appointed to allot to Mary C. West one-third of certain lands which were decreed to belong to J. L. West. The lands in controversy were embraced in the decree. Prior to the time J. L. West married Mary C. West he conveyed the lands in controversy to J. A. West and other children by his first wife. They instituted a suit in the chancery court against Mary C. West to quiet their title to the land, and asked that the claim of Mary C. West be set aside as a cloud upon their title. Mary C. West defended the action on the ground that the deed from J. L. West to Ms children was in fraud of her marital rights and by way of cross-complaint asked that it be canceled.
The chancellor found in her favor, and a decree was entered accordingly. This court held that the chancellor erred in holding that the conveyance of J. L. West to his children was in fraud of the marital rights of Mary C. West. It was ordered that the decree of the chancellor be reversed and the cause be remanded with directions to grant the prayer of the complaint. The opinion will be found in 120 Ark. 500, under the style of West v. West.
The chancery court entered a decree in obedience to the mandate of the Supreme Court. After the decision by the Supreme Court, J. A. West, for himself and the other owners of the land, notified Mary C. West of the decision, and told her that he would take charge of the lánds and the rents therefrom for himself and the other tenants in common. At that time she had collected the com and hay rents from the land for the year 1915, but had not collected the rents from the cotton.
The opinion of the Supreme Court in the case just referred to was delivered on November 1,1915. It was a few days after this that J. A. West went to see Mary C. West about the rents. J. A. West, for himself and co-owners, collected the rent cotton from the tenants on the land.
J. A. West testified that Mary C. West pointed out the corn and hay to him and told him that she wished he would get it out of her way at once; that she had other uses for the barn, and that he did so.
Mary C. West admitted that the corn, hay and cotton grew on the land which was decreed to J. A. West and others in the chancery suit against herself. She stated that just after the decision of the Supreme Court J. A. West came and told her that the Supreme Court had given them the land and demanded the rents. She said that she told him he had better know what he was doing before he took the rent com and cotton away. The cot ton, corn and hay in question is the rent from the land just referred to.
The circuit court found in favor of the plaintiff, and judgment was rendered in her favor for the value of the corn, hay and cotton involved in this action. The case is here on appeal.
We are not favored with a brief on the part of counsel for Mary C. West, and are at loss to know on what ground the court below found in her favor. The land on which the crops in question were grown was decreed to belong to J. A. West and others, and it follows that they would be entitled to collect the rents therefrom. It is admitted that the property involved in this suit was the rent from that land.
Therefore, the court should have rendered judgment in favor of the defendant. For the error in not doing so, the judgment will be reversed and the cause remanded for a new trial. | [
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WOOD, J.,
(after stating the facts). (1) The testimony bearing on the issues of fact in this case are exceedingly voluminous, and it could serve no useful purpose to set out and discuss the same in detail. After careful consideration of it we have reached the conclusion that J. T. Harmon, a few days after the death of his son, S. W. Harmon, gave to his other sons the property which he inherited from his son, S. W., and this gift was made complete by their accepting and taking possession of the property. The preponderance of the evidence tends to show that after the property was given to them by their father, something more than a month before his death, they took charge of the same and divided it among themselves. The gift from the father to the sons was an absolute gift inter vivos; although there is testimony tending to show that at the time the gift was made the donor was afflicted with an incurable malady and knew that he could not get well. Notwithstanding this fact, where the gift is made not in contemplation of death, but to take effect and become complete immediately upon the delivery, and the taking pos session of the property by the donee, the gift is one inter vivos, notwithstanding the donor may be upon his death bed. There is nothing in the testimony to warrant the conclusion that J. T. Harmon did not intend that the title to the property should pass to his four sons, the donees, during his life and immediately upon their taking, possession of the same, which occurred, as above stated, something more than a month before his death.
This court, upon a thorough consideration of the essentials to constitute a gift causa mortis in Hatcher v. Buford, 60 Ark. 169, 176, said: “We think the better doctrine upon the transfer of the title to gifts causa mortis is that which accords with Justinian’s definition, and recognizes the subject matter of the gift as becoming the property of the donee in the event of the donor’s death. This seems to be the rule adopted by the English courts of chancery, and is supported also by eminent American courts and text writers.” See also, Ammon v. Martin, 59 Ark. 191.
(2) When a gift is made by one who is afflicted with a fatal malady and who at the time of the making of the gift has no hope of recovery, and where the gift is made in contemplation of the near approach of death the presumption is that such gift was causa mortis, but this presumption may be overcome by proof to the contrary, and such was the case here.
In the same case (Hatcher v. Buford, supra), after recognizing the above doctrine, we said: “But it must not be forgotten that an absolute gift when inter vivos may be made by one upon his deathbed, and who is aware of the near approach of death from the ailment.”
In Lowe v. Hart, 93 Ark. 548, this court said: “Where a holder of a certificate of deposit intended as he handed it to another to pass title immediately, and the latter accepted it as her own, the gift was inter vivos, though the donor knew he was about to die.”
(3) This disposes of the issue raised by the intervention of Mrs. Martha Harmon, as administratrix of the estate of J. T. Harmon, deceased, and also of her individual claim for dower. The gift by1 J. T. Harmon of the property inherited by him from his son, S. W. Harmon, to his other four sons being one inter vivos, his widow has no rights therein either as administratrix or in her own right as widow.
(4) The next question is, did the Harmon brothers, the donees of the interest of S. W. Harmon, in the business of Harmon & Harmon, as an inducement to C. Gr. Harmon to buy their interest in such business, agree that they would trade with him and that their respective accounts should be credited on the notes. This was purely an issue of fact, and it would greatly lengthen this opinion to discuss the testimony in detail bearing upon it. After a careful consideration of the testimony on this issue, we have reached the conclusion that the preponderance of the evidence shows that there was no such agreement. But even if there was such an agreement, the appellant could not enforce it in this suit, for the reason that the Harmon brothers and the appellant reduced their contract concerning this purchase to writing and evidenced the amount that was to be paid in consideration for the purchase by a promissory note. To permit appellant to prove that a plain promissory note, payable under the law in money, was, under the terms of a contemporaneous parol agreement, to be paid partly in merchandise would be to violate the rule which prohibits the production of parol evidence to vary or contradict the terms of a written contract. Such is the effect of the decisions of this court and of the authorities generally. Borden v. Peay, 20 Ark. 293; Bishop v. Dillard, 49 Ark. 285; Tisdale v. Mallett, 73 Ark. 431, and other cases cited in appellees brief.
The preponderance of the evidence shows that the appellees John and Frank Harmon were innocent holders for value of the notes in suit. The testimony showed that the other brothers had transferred before maturity for value, their interest to the appellees. The court heard oral testimony on this issue and the testimony shows that the appellees held receipts from the other brothers showing that Silas and Henry Harmon had assigned their interest to the appellees.
There is no error in the decree of the court and the same is therefor affirmed. | [
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WOOD, J.
This suit was instituted by the administrator of the estate of F. G. Keich against W. T. Thorn and others to foreclose a mortgage executed by Thom and wife to Keich to secure an indebtedness of $1,000. Davis was made a party defendant on account of the alleged existence of a second mortgage executed by Thorn and wife to. him. He filed a cross-complaint against Thorn and wife, setting up, in substance, that on November 20, 1906, W. T. Thorn had executed to Davis a note in the sum of $950, due November 20, 1907, and that on March 19, 1908, Thorn had executed his note to Davis in the sum of $950, due January 1, 1909; that on December 31, 1913, Thorn had executed his note to the Jonesboro Trust Company in the sum of $1,500, payable one year after date, which the Jonesboro Trust Company, in due course, had sold to Davis.
Without setting up in detail the answer of Thorn to the cross-complaint of Davis, it in substance alleged that the note for $1,000 and the note for $950 were barred by the statute of limitations of. five years, and that the $1,500 note was signed by Davis as surety without the authority and consent of Thorn, the maker, long after the date when the note was executed by Thorn and his wife to the trust company and that such signature was an unauthorized and unwarranted act on the part of Davis; that the payment of the note to the trust company by Davis was therefore voluntary and that he could not recover on same against the makers.
The testimony is substantially as follows:
The notes executed respectively November 20, 1906, and March 19, 1908, each bear an endorsement showing that the sum of $10 was paid on each note on November 1, 1911. The appellants contend that these payments were not made by them, and that the endorsements were therefore not valid.
The assistant secretary of the Jonesboro Trust Company testified that he entered the endorsements of the payment of $10 on each of the notes; that Thorn and Davis came in the bank and explained that they wanted to make a payment on the notes. He got the notes and the money. Davis was keeping the notes in the. bank at the time. Thorn handed witness the money, and witness got the impression that Thorn got the money from Davis. The purpose of the payment, as he gathered from what was said at the time, was to keep the notes from running, out, from being barred by the statute of limitations. "Witness’ recollection was that Thorn, said that he borrowed the money to make this payment on the notes from Davis, or else Davis said he would loan the money to Thorn. Witness would not be right positive that the date of November 1,1911, was the correct date, but was reasonably sure that it was either that date or about that time. The language of the witness on this point is, “My impression now is that the date is correct, but I have no way of fixing the date absolutely. It might have been a day or two, or three days after that.” Again, “It is possible it might have been four years ago. I am1 pretty sure it was only a short time from the date that is on the notes there. I handle a great many notes at the bank and do not pretend to charge my memory with the actual date of particular occurrences.”
Davis testified concerning these payments, in substance, as follows: That he called Thorn’s attention to the notes and suggested that he had better make a payment on them. Thorn said that he would like to pay them off but did not have the money. Davis told him that he would loan him the money to go in the bank and make the payment on them. They went in the bank, and Armstrong, the cashier, got the notes. As they were walking from the door to the window Davis gave Thorn the $20. Thorn handed it to the cashier. Davis told the cashier that he would loan the money to Thorn. Davis and Thorn several times talked about the notes becoming barred if the payment was not made. The real purpose and intention on the part of Davis and Thorn with reference to the loan of the $20 by Davis to Thorn on the occasion mentioned, and the-payment by Thorn on the notes was to renew the notes, that is, give them new life, to keep the statutes of limitations from running. Witness had no recollection of other than the date that appears on the notes about the time when the payments were made. Witness did not instruct the cashier, who endorsed the payment on the notes, to date the payments back, and did not hear Thorn tell him to do so. The date, November 1, 1911, was the correct date so far as witness knew.
Thorn testified that the note of November 20, 1906, and the note of March 19,1908, had never been renewed or paid in any way, and that they were still in life unless barred by the statute of limitations. He never paid the $10 endorsed on each of the notes. He explains how this took place, as follows: Davis asked witness to go over to the bank a minute. He did not say what he wanted and witness had no idea. He went to the bank teller’s window and told Mr. Armstrong to hand him his notes. Davis said, “You haven’t got any money, have you?” This made witness a little angry, and he stepped back a bit. Davis threw two bills in the window. Witness did not know what the amount was. Witness heard the cashier say, “I don’t believe that will constitute a credit.” Davis said it would. “The pretended credit is dated November 1, 1911. I just had cashed this check here at the First National Bank for $242. I did not ask Davis to let me have any money to pay on the notes. ’ ’ Davis and witness went to the bank on June 5, 1914, and there never was any other time when witness went there with Davis.
John Bussell Lane testified that there was a notation on the mortgage record showing the mortgage from Thorn to Davis, as follows: “The within mortgage is credited with $10, November 1,1911,” signed “C. H. Da vis, A. B. Lane, clerk, by John R. Lane, deputy.” Witness was present at the time the writing was done and Davis requested the notation to be made this way. Witness thought the notation was placed there some time in June, 1914. Davis said that $10 had been paid along in November, and he made the entry on the record to correspond with what he said was the date of the payment of the money.
The court found that Thom had paid the $10 on the $950 note of November 1,1911; also that on the same date he paid the sum of $10 on the $1,000 note.
The finding of the chancellor is sustained by the preponderance of the evidence. The testimony of the cashier and of Davis to the effect that the payment was made by Thorn November 1, 1911, under the circumstances detailed by them, is not overcome by the testimony of Thorn to the contrary, nor by the testimony of the clerk-showing that under the direction of Davis he entered on" the margin of the record of the mortgages a credit for $10 as of November 1, 1911, but that these entries were not made until some time in the summer of 1914. The clerk testified that Davis at the time he requested him to enter this notation said that the payments had been made along in November, and that the entry was made on the record “to correspond with what Davis said was the date of the payment of the money. ’ ’ This tends to show that Davis had neglected to enter the credits on the margin of the record of the mortgages on the date when the payments were made, but it does not contradict the testimony of Davis to the effect that the payments were in fact made November 1, 1911, the date appearing on the notes. The notes respectively for $950 and $1,000 are therefore not barred by the statute of limitations.
Concerning the alleged unauthorized alteration of the $1,500 note, Armstrong testified that this $1,500 note was executed in collection of a previous note of Thornton upon which Davis was surety. The $1,500 note was executed to the trust company by Thornton, but there was never any agreement entered into with Thornton or Davis' that Davis should be released upon any of the indebtedness. Witness’ understanding was that Davis would endorse the Thorn note as surety. Witness thought that not over a week elapsed after Thorn signed the note before Davis came in and signed it.
Davis testified that he was not at the bank when Thorn signed the $1,500 note, and did not remember how long it was after the date of the note before witness signed it. His understanding was that the $1,500 note took up other notes of Thorn that witness had signed as surety. The bank had never entered into any agreement that witness was to be released from the indebtedness. The $1,500 note was merely a renewal of the old obligation upon which witness was surety and to the same extent of the $1,500 note.
The secretary of the trust company, who wrote the $1,500 note, said that he did not presume there was any agreement on the part of the trust company that Davis ’ personal obligation on the indebtedness should be released. Davis and Thorn did not sign the note at the same time. The $1,500 note was given in payment of another note of Thorn to the trust company which Davis had signed as surety.
Thorn testified concerning the $1,500 note as follows: “He (Davis) never spoke to me about any of these notes except the $1,500 note payable to the Jonesboro Trust Company. This note has been renewed once or twice. Davis told me that they were cutting up about that note at the bank, and I said that I would see what I could do about it. I went down to Mr. Mason and asked if they would renew this note and take the mortgage themselves, that is, let me make the mortgage direct to the bank, instead of to Davis as security. The note I signed was dated December 31, 1913, and made in the bank at the time. I did not know that Mr. Davis’ name was on this note until some time in December, 1914. I did not ask him to go to the bank and pay any portion of this debt. I did not know he had taken up this note until Mr. Lamb showed it to me. ’ ’ He further testified that when he gave the $1,500 note to the bank the bank did not say that it, intended not to have Davis on it as surety. It was witness’ idea to get Davis off of it. “It wasn’t proper for Davis to sign it because I carried him this note and tore his name off and handed it to him. He couldn’t have thought he was a surety on it when I gave him his signature. I got the old note with Davis’ name on it on the 31st of December, 1913, the same day as the renewal note for $1,500 was made to the bank without Mr. Davis ’ name on it. It was a few days after that that I showed Mr. Davis the old note with his signature off of it and he didn’t say anything about signing any notes for me.”
From the above testimony it clearly appears that Thorn executed the $1,500 note in payment of prior indebtedness to the trust company on which Davis was his surety, and that there was no intention upon the part of the trust company to release Davis as surety on this indebtedness, and the note was manifestly signed by him as surety in recognition of his obligation as such on the notes which the $1,500 note was given to pay. Even though this may have been done without the knowledge or request of Thorn, it did not in any manner affect the liability of Thorn to the trust company on the note.
In Mersman v. Werges, 112 U. S. 139, 142, it is said: “Where the signature added, although in form that of a joint promisor, is in fact that of a surety or guarantor only, the original maker is, as between himself and the surety exclusively liable for the whole amount, and his ultimate liability to pay that amount is neither increased nor diminished; and, according to the general current of the American authorities, the addition of the name of a surety, whether before or after the first negotiation of the note, is not such an alteration as discharges the maker.” The authorities to this effect are collated in 2 C. J., p. 1219, n. 1. See, also, 1 R. C. L. 982; Miller v. Finley, 26 Mich. 249. This is well settled by our own court, as well as the authorities generally.
Of course, any material unauthorized alteration that affects the liability of the maker of the note, by increas ing or decreasing the same, would invalidate the contract. See Overton v. Matthews, 35 Ark. 147, and other cases cited in appellant’s brief.
But such is not the case here. The signing of the $1,500 note by Davis did not change the contract of appellant Thorn to the trust company in any essential particular. It neither increased nor diminished his liability as the maker of the note.
It was held in Ryan v. Springfield First National Bank, 148 Ill. 349, that “the effect of an alteration in a written instrument depends upon the nature of the alteration, and the person by whom and the intention with which it was made. If neither the rights nor the interests, duties or obligations of either of the parties are in any manner changed, an alteration may be considered as immaterial. ’ ’
The decree is therefore correct, and is, in all things, affirmed. | [
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McCULLOCH, C. J.
The judgment of the trial court was ag*ainst the receiver of the railway corporation upon a cause of action which arose during the operation of the railroad by the receiver, for which the corporation was not responsible. After the rendition of the judgment the receiver was discharged by order of the court which appointed him, and the property in his hands was surrendered to the corporation, subject to all liabilities incurred by the receiver. The railway corporation then came to this court and asked to be substituted for the receiver, as appellant in the case, on the ground that it was interested in the result by reason of the surrender to it by the receiver of the property. The request was granted and the corporation was substituted. The judgment was affirmed, and we are now asked to render judgment against the substituted appellant.
We find no statutory authority for that procedure, and. the rendition of such a judgment would constitute the exercise of original jurisdiction. The substitution was allowed because of a showing of interest by the corporation in the result of the appeal. To render judg ment against the substituted appellant would necessitate a determination of the extent of that interest and the grounds of liability of the corporation, if any, for the debts of the receiver, and that would be an inquiry involving the exercise of original jurisdiction. The fact that a decision as to the liability of the railway corporation for debts of the receiver would depend entirely upon an interpretation of the order of court and the report' of the receiver filed here by consent, and would not involve any outside investigation as to the facts, does not change the character of the proceedings so as to make it other than original. It- would introduce a new issue not involved in the trial of the case below and the fact that it is an issue which arose since the trial below does not bring it within the appellate jurisdiction of this court. Appellee is, "with respect to any remedy he may have as against the railway corporation by reason of its acceptance of a surrender of the property under the order of the court, in the same situation he was before the appeal was prosecuted to this court. He has merely secured here an affirmance of the judgment against the receiver and the question of liability of the railway corporation for the satisfaction of that judgment is one to be determined in a court of original jurisdiction in a suit to enforce that liability. Whether that should be by independent .action or by intervention in the suit where the receivership was pending we can not now decide.
The denial of the remedy sought here is, of course, without prejudice to appellee’s right to resort to any other available remedy in a court of original jurisdiction.
Motion overruled. | [
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SMITH, J.
Two suits are embraced in this appeal, both of which were brought to recover damages from appellee on account of the failure of the railway company to deliver certain shipments of cotton. The causes were consolidated and tried together, and are treated in the briefs as a single case.
Two consignments of cotton were shipped to appellant, the first consisting of thirty-one bales, and designated as the Peacock cotton. The second consisted of fifty-three bales, and is referred to by the witnesses as the Mears cotton. The Peacock cotton was received in Pine Bluff on November 16,1915, and was delivered by the railway company on that day to the Pine Bluff Compress & Warehouse Company. The Mears cotton was delivered to the same compress company on November 26, 1915. This compress company’s warehouse, together with the cotton herein sued for, was destroyed by fire on November 28/1915. It is not contended that the railway company was guilty of any negligence in the destruction of the cotton, but liability is sought to be enforced against it as a carrier, upon the theory that there had been no completed delivery of the cotton to the consignee at the time of the fire.
The bills of lading under which both consignments were shipped contained the following clause: “For loss, damage or delay caused by fire occurring after forty-eight hours, exclusive of legal holidays, after notice of the arrival of the property at destination, or at port of export (if intended for export), has been duly sent or given, the carrier’s liability shall be that of warehouseman only.”
The Peacock cotton had been in the warehouse for twelve days at the time of the fire, and appellant had ac-' tual knowledge of that fact during all that time. The Mears cotton, however, had only been received on Saturday afternoon before the fire occurred on the following day at about 3:45 p. m., and no notice of its arrival had been communicated to the consignee before its destruction. However, both shipments had been actually delivered to the compress company pursuant to a general direction from appellant to so deliver its cotton.
Over appellant’s objection, there was offered in evidence a contract between the railway company and the compress company, wherein it was agreed upon the part of the compress company, that it would receive at its own risk cotton consigned to consignees who stored their cotton in its warehouse, and that it would assume responsibility for loss of or damage to cotton so delivered to it by the railway company. The action of the court in admitting this contract is assigned as error by appellant, upon the ground that it was not aware of nor a party to the contract, and that its right to assert a demand against the railway company as a carrier can not be affected by a contract which the railway company had with a third party to assume liability which would otherwise rest upon the railway company.
It is admitted that the compress company was engaged in the business of receiving and storing cotton for customers, on terms agreed on between them, and that appellant was a cotton factor and had made arrangements with the compress company to receive from the railway company cotton consigned to appellant and to store it in consideration of the customary charges and hold it for appellant until it was sold and ready for delivery by appellant to the purchasers in the ordinary course of its business. It was the practice of the compress company to take samples of all cotton stored with it and to send these samples immediately to the consignee, and that these samples were used in making sales of the cotton, and it is also shown that samples of the Peacock cotton had been delivered to appellant pursuant to this custom.
Appellant requested the court to give an instruction numbered 3, which presents its theory of the case. That instruction reads as follows:
“3. If you find from the evidence that under the rules and custom of the defendant, as receiver of said railway company, as to the delivery of cotton, that straight shipments of cotton, that is, not to shipper’s order, were treated as shipments to shipper’s order, and before the cotton would be delivered to the consignee he was required to pay the freight thereon and delivered the bill of lading therefor to defendant’s agent and get from such agent a clearance showing the payment of the freight bill upon said cotton and a delivery of the bill of lading therefor, and that said rule or custom of said railway company was in force at the time the cotton sued for was burned and had been in force for a long time prior thereto, and that said cotton would not be delivered to the consignee without a compliance with such rule or custom, then there was no delivery of said cotton to the consignee until he had complied with such rule or custom. Therefore, if you find from the evidence in these cases that the cotton sued for was delivered to the Pine Bluff Compress Company at Pine Bluff, Ark., by the defendant as receiver of said railway company and before the cotton would be delivered to the Southern Grocery Company, it was required under the rules or custom of said defendant, to pay the freight on said cotton and to surrender the bill of lading therefor to the agent of said defendant and to get from such agent a clearance showing the payment of the freight and the surrender of the bill of lading therefor and then was required to present such clearance to the agent of the compress company before the compress company would deliver the cotton to the plaintiffs, Southern Grocery Company, and this had not been done before the cotton was destroyed by fire, then there was no delivery of said cotton to the Southern Grocery Company by defendant, and you should find for the plaintiffs, unless you should find from a preponderance of the evidence that the compress company in receiving said cotton from defendants was acting as the agent of the Southern Grocery Company.”
The court refused to give this instruction, but, upon the contrary, directed the jury to return a verdict in favor of appellee, and this appeal has been prosecuted to reverse the judgment pronounced upon the verdict so rendered.
Appellee seeks to justify this action of the court upon two grounds. The first is that there was an actual and complete delivery of the cotton; that the railway company retained no custody of it and no power to control and direct its disposition for any purpose. And upon the second ground that the fact, if true, that the railway company did assume control, or even actually did control, the disposition of the cotton, after its delivery to the compress company, would not make it liable to appellant as a carrier, because such control was for the purpose merely of securing the payment of its freight charges, and that the retention of control for this purpose would not, and did not, operate to make it liable as a carrier.
The railway company calls attention to the fact that it was the intention of the appellant, even if it had gotten the clearance from the railway company for the cotton, to leave the cotton stored in the warehouse of the compress company until the same was sold, and there was testimony on the part of an officer of the compress company that that company would have issued warehouse receipts for the cotton upon the presentation to it either of the clearances from the railway company or the surrender to it of the bills of lading together with a guaranty to pay the freight on the cotton therein covered. The railway company, therefore, insists that under this proof the verdict was properly directed in its favor, on the theory that there had been an actual physical completed delivery of the cotton to the consignee.
(1) In testing the action of a trial court in directing a verdict, we are required to take the evidence offered against the verdict, and to give it its highest probative value, including all inferences reasonably deducible therefrom.
(2) In the excellent brief filed in behalf of the railway company, it is assumed that the compress company was, in fact, the agent of the consignee, and if this concession is made, it must necessarily follow that the verdict was properly directed. But this admission is not made; in fact, the controversy over the agency of the compress company is the essence of this lawsuit. And if the evidence on this subject is not undisputed, and if it may be reasonably inferred from this evidence that the compress company was in fact the agent of the railway company in holding the cotton, then that question should not have been taken away from the jury.
It was shown, and not denied, that for many years the railway company had the practice of issuing clearances to the consignees of cotton which it had delivered to the compress company. These clearances recited the point of origin of the shipment, the marks upon the cotton, and the number of bales, and the other evidences employed for the identification of the cotton, and concluded with the following statement: ‘ ‘ The owner of the above cotton having accepted control of same, you will please discontinue reporting same to this company for insurance protection for our account after midnight above date.”
The manager of the appellant company, and other large handlers of cotton at Pine Bluff, testified that it was the custom of the railway company, without exception so far as they were advised, to issue this clearance for cotton after the same had been cheeked up and it was found that the freight had been properly paid, and that these clearances were delivered to the agents of the compress company, whereupon those agents issued to the consignees warehouse receipts showing that the compress company held for the account of the respective consignees the bales of cotton of the weights, numbers and marks indicated in the warehouse receipts. It is shown, and not denied, that it was the custom of the appellant company to send its representative to the office of the freight agent of the railway company and to check up with that officer the cotton which had been received in Pine Bluff for appellant, and for this representative of the appellant to issue cheeks in payment of the freight thereon. It is shown that this representative of appellant, after being advised of the receipt of the Peacock cotton, applied at the office of the freight agent on each morning after the receipt of the cotton, until the Saturday before its destruction, for the clearance, and tendered to this freight agent the amount of freight due upon this consignment. It was known by the freight agent that appellant’s representative desired this clearance for the purpose of obtaining warehouse receipts from the compress company, and appellant says that, under the rule of the railway company, which had long been effective in Pine Bluff, the clearance was essential to obtain the warehouse receipts from the compress company. At any rate, because of a discrepancy in the .marking of one of the bales of this cotton, the railway company persisted in its refusal to issue the clearance, and as a result thereof no warehouse receipts were ever obtained therefor. It is true that the cotton had been stored where appellant desired it to be stored, and that samples thereof had been furnished appellant. But is fairly inferable from this testimony that this was tentatively done upon the assumption that appellant would, pursuant to its usual practice, obtain the necessary clearance from the railway company.
We think it is not of controlling importance in this case that the cotton was, in fact, stored where appellant would have stored it if no controversy had arisen over the clearance and no difficulty had been encountered in obtaining the warehouse receipt. We think the test .is whether the consignee could have removed the cotton had it desired to do so. In other words, was the clearance essential for the actual delivery of the cotton to appellant. Would the compress company have made such a delivery without the production of the clearance as a matter of right, and not as a mere matter of accommodation upon the assumption that the consignee was entirely solvent and responsible and would hold the compress company harmless from any damage resulting from the failure of the compress company to comply with the railway company’s requirement! And we think the record in this case presents the question of fact whether otherwise the compress company would have surrendered the cotton or issued warehouse receipts for it in the absence of the clearance, for, in answer to the question propounded by the court, “Would you have delivered that cotton to the Southern Grocery Company (appellant) without that clearance!” the witness Daily, who was manager of the compress company, answered “No, sir.”
Witnesses for appellant who are large handlers of cotton at Pine Bluff testified that the custom of the railway company to require the clearance from it was adopted by the railway company for its own protection and to insure the payment of its freight charges, and that so far as their experience went, warehouse receipts from the compress company could not be obtained without the exhibition to the compress company of the clearance. We think, therefore, that the jury might have found that, for its own purposes and protection, the railway had adopted a rule, the enforcement of which by its agent rendered the compress company the agent of the railway company until the rule or custom of the railway company had been complied with. It will be borne in mind that the railway company was not withholding its clearance for the purpose of collecting its freight charges, for a tender had been repeatedly made of these charges, but that the basis of its refusal was that the number on one of the bales of cotton did not correspond with the number on the bill of lading.
(3) At page 395, Section 8, Yol. 1 (2nd Ed.) of Moore on Carriers, it is said: “Where goods, after arrival at their destination, have been applied for or demanded, but are refused or detained by the carrier, except where the goods are properly held for freight charges due, the carrier’s liability as an insurer of the goods may be extended beyond what would ordinarily be a reasonable time and be continued until a reasonable time after the goods have been offered for delivery to the consignee. The carrier’s liability as a common carrier continues with out regard to the time the goods may have actually been ready for delivery, where the consignee is prevented, without fault on his own part, from removing and caring for his goods by reason of the failure of the carrier to have the goods ready for delivery, or so placed that they can be unloaded with reasonable convenience; or because of being wrongly informed by the carrier or its agent, through mistake, on calling for goods,, that they have not arrived, although they have arrived and are stored in the depot or warehouse; or by any similar conduct or wrongful act on the part of the carrier. In some jurisdictions the carrier is held not to continue liable as an insurer by reason of such failure in the goods being delivered through misinformation or mistake on the part of the carrier, but it is held liable as a warehouseman on the ground that its negligence in failing to deliver the goods, or causing them to be detained, is the proximate cause of loss. But where by the terms”of the contract of shipment the liability is that of a warehouseman, negligence must be shown to render the carrier liable. And where the consignee has had sufficient time for the removal of the goods after the discovery and correction of a mistake as to their arrival, and notice thereof, the carrier is not liable for loss on the ground of conversion.”
The case of Arkansas Midland Rd. Co. v. Moody, 90 Ark. 70, presented a case, the facts of which are similar to the facts of this case, as appellant here asserts them to be. There it was shown that cotton had been delivered at the compress where Pendergrass, the plaintiff, stored his cotton for his account. In a suit for the damages sustained by this cotton, it was claimed by the railway company that it had discharged its liability by delivering the cotton to the compress company. The court there said:
“If the compress company was the agent of Pendergrass, the consignee, then, when the cotton was delivered to it in ‘good order’, the duty of appellant was terminated, and it was no longer liable to appellee. If, on the other hand, the appellant has failed to show that the compress company was the agent of Pendergrass, then it has not discharged its duty under the contract, and is liable for the damages resultant. The only question then is, does the uncontroverted evidence show that the compress company was the agent of Pendergrass'?”
In the case of Arkadelphia Milling Co. v. Smoker Merchandise Co., 100 Ark. 37, it was said: “The liability of the common carrier ceases with delivery of the goods at the point of destination according to the directions of the shipper, or according to the usage and custom of the trade at such place of destination. This delivery may be actual, or it may be constructive; and in either case the liability of the carrier terminates with such delivery. An actual delivery of goods is made when the possession is turned over to the consignee or his duly authorized agent and a reasonable time has been given him in which to remove the goods. "When such" delivery is thus made, the carrier is fully discharged from further liability. Southern Exp. Co. v. Everett, 37 Ga. 688; Brunswick & W. Ry. Co. v. Rothchild, 119 Ga. 604. To constitute constructive delivery, the carrier must give notice to the •consignee or his duly authorized agent, if that is at all practicable, of the arrival of the goods, and must also give a reasonable opportunity and time thereafter for the consignee or his agent to remove same. When that is done, the liability of the carrier is terminated, whatever its liability may otherwise be. ’ ’
See also, Ark. Mid. Rd. Co. v. Premier Cotton Mills, 109 Ark. 218. A number of cases on this subject are cited in the note to the case of Hicks v. Wabash Railway Co., 8 L. R. A. (N. S.) 235.
Appellee insists with equal earnestness that it can not be held liable here, both because it had fully complied with its contract for the carriage of the goods, and because any control it may have retained over the cotton was for the purpose only of enforcing its claim for the freight due on the cotton. In support of this view, counsel cites and relies upon the case of Arthur v. St. Paul & Duluth R. R. Co., 38 Minn. 95, 35 N. W. 718. It was there held that the carrier was absolved from liability as such upon delivering goods to the warehouseman, notwithstanding the direction of the carrier to the warehoueman not to issue warehouse receipts until paid freight bills were presented. But in that case it was said: “The custody of the property had completely passed from the carrier into that of the public warehouseman. All control over or right to it on the part of defendant had ceased except the right to resort to it to enforce collection of its freight charges in case plaintiffs, after demand, should refuse to pay them. Defendant’s directions to the warehouseman that no warehouse receipts should be issued until the paid freight bills were presented imposed no condition upon their issue which is not imposed by clear implication by the statute itself, which provides for the issue of such receipts only upon application of the consignee, accompanied by proof that all transportation or other charges which may be a lien upon the grain, including charges for inspection and weighing, have been paid.” Under the law of that State, warehouses are public warehouses, and the carrier discharged his contract of carriage when he delivered the commodity carried into the possession -of one of them, and the conditions which the carrier there imposed were imposed by the law of that State, and did not affect the question of agency. The warehouseman received the goods under the law of that State for the consignee, and the carrier’s direction imposed no condition not provided for by the statute, and the parties could not have contracted against the provisions of the law, while here the relation of the parties was fixed by their own acts.
Appellee insists that the contract between the railway company and the compress company, whereby that company agreed to assume responsibility and liability for loss or damage to cotton delivered to the compress company by the railway company, makes complete the delivery and absolves the railway company from liability here. But we do not agree with counsel in this contention. We express no opinion as to the effect of the contract between the railway company and the compress company affecting liability for the loss of this cotton as between themselves, for we have no such question before us; but their agreement can not affect the rights of one not aware of nor a party to it.
We think no distinction can be made between the two shipments of cotton. If the compress company was the agent of appellant, then the delivery was complete in both eases, and there would be no liability in either case. .If, however, the compress company was not the agent of appellant, and if the surrender of the bill of lading to appellee was essential to obtain the clearance upon which a warehouse receipt would be issued, then the right of recovery would be the same as to both shipments, for while there might have been no trouble in obtaining the clearance for the last shipment upon application therefor, still no opportunity had been afforded appellant so to apply.- We conclude, therefore, that the court should not have directed a verdict in this case, but should have submitted the cause to the jury under instructions conforming to the views here expressed, and the judgment will therefore be reversed, and the cause remanded for a new trial. | [
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WAYMOND M. BROWN, Judge.
_JjA Scott County jury found Gary Mason guilty of rape, sexual indecency with a child, and possessing matter depicting sexually explicit conduct involving a child. He was ultimately sentenced to thirty-one years in the Arkansas Department of Correction. Mason presents four points on appeal. First, he contends that the trial court should have suppressed photographs found at his residence, asserting that they were the product of an illegal search. Second, he argues that the trial court should have severed the rape charge from the other two charges. Third, he contends that the trial court abused its discretion in admitting seven photographs of nude children other than that of the prosecutrix. Finally, he asserts that he was entitled to an instruction on sexual assault in the second degree. We affirm in all | ^respects.
Factual and Procedural History
On August 1, 2008, Lieutenant Keith Vanravensway of the Scott County Sheriffs Department was called to investigate allegations that Mason has molested a number of neighborhood children. He took statements from five children. With this information, Vanravensway drafted an affidavit for a search warrant. In the affidavit, he alleged that “there is now being concealed certain property, namely, numerous pornographic photographs of at least 5 children under the age of 12 yrs. and pornographic images of children being kept or stored on a computer” at Mason’s residence. In support of this allegation, he stated that he had responded to a report of sexual abuse “[w]ithin the past 8 hours,” and he outlined the statements he received from the children:
During interviews, victim ... T.E., who is age 12 yrs. stated that Mr. Mason has performed sexual acts on her and other children, and stated that Mr. Mason has taken numerous nude photographs of her. T.E. also stated that Mr. Mason kept a stack of photographs approximately 2 inches high in three possible places in his residence, and that he has shown her the pictures in the past. T.E. stated that the photographs are usually held in a location in Gary Mason’s closet, in a computer desk, or possibly in a safe at the residence. T.E. stated that Gary Mason has numerous pornographic magazines in his residence and allows all small children at his residence to view the magazines when they want to.
Victim D.S., who is a 9 yr. old female stated that Gary Mason has performed sexual acts on her, and that on one occasion, while spending the night at his residence, she awoke to find that Gary Mason was photographing her with her clothes off. D.S. stated that Gary Mason keeps several photographs of minor children in his residence, |sand that the photographs are being kept in Mr. Mason’s closet, a computer desk in the residence, or in a small safe on the desk. Victim B.S., who is a 8 yr. old female stated that Gary Mason had performed sexual acts on her, but did not know about photographs at the residence.
Victim P.S., who is 7 yr. old female stated that Gary Mason has performed sexual acts on her, and that he has taken approximately 10 to 20 pictures of her without her clothing. P.S. stated that Gary Mason has shown her several photographs of other identified victims. P.S. stated that Gary Mason has the photographs hidden in his closet, in a computer desk, in a safe on the desk, and, also, has photographs stored on his computer (hard-drive) in his residence. Victim T.D., who is a 9 yr. old male stated that Gary Mason has performed sexual acts on him, and that Gary Mason has instructed him on performing sexual acts on other victims, while Gary Mason photographed them. Victim T.D. named off several other victims that have not yet been interviewed. T.D. stated that he has seen several pictures of other victims and stated that the pictures are usually kept in Ms. Mason’s closet, computer desk or safe.
The search warrant was issued, and Van-ravensway found photographs of nude children in Mason’s bedroom. By information filed April 4, 2008, Mason was charged with rape, sexual indecency with a child, and possessing matter depicting sexually explicit conduct involving a child. Prior to trial, Mason filed motions to sever the rape charge from the other charges and to suppress the evidence found in his bedroom. Both motions were denied.
The case proceeded to trial on January 29, 2009. The State called four children who gave statements to Vanravensway. The children often went to Mason’s home to play and spend the night. T.E. told the court that Mason would have them play strip poker and cheerlead naked. She also indicated that he put his finger and his tongue inside her “private |4area” on at least ten occasions. At trial, she identified five pictures of herself. The State also presented the testimony of three other victims. T.D. said that Mason touched him in his private area, took photographs of the children without their clothes, and asked him to touch a naked girl. P.S. testified that four of the pictures were of herself and T.D. and stated that Mason touched her. Finally, D.S. testified that she watched pornographic videos at Mason’s home. She also stated that Mason touched her, and she identified two photographs as images of herself. Also admitted into evidence was a letter from Mason to a Monica Dickens, wherein he admitted making “mistakes” and asked her to convince the children to change their story.
Prior to the closing arguments, Mason asked the court to instruct the jury on sexual assault in the second degree, contending that the crime was a lesser-included offense of rape. The court refused to give the instruction. The trial proceeded, and the jury found Mason guilty of the aforementioned charges. The jury sentenced Mason to twenty-five years’ imprisonment for the rape, six years’ for sexual indecency with a child, and ten years’ for possessing matter depicting sexually explicit conduct involving a child. The court ordered the twenty-five-year and six-year terms of imprisonment to be served consecutively, but concurrently with the ten-year term, resulting in a thirty-one-year sentence.
Motion to Suppress
First, Mason challenges the denial of his motion to suppress. He argues the affidavit in support of the warrant lacked an adequate reference to the time during which criminal |5activity was observed at his residence. He contends that, based solely on the four corners of the affidavit, the reviewing magistrate could not draw an inference as to when the criminal activity occurred or whether the photographs could still be in the residence.
In reviewing the denial of a motion to suppress, this court makes an independent determination based on the totality of the circumstances, reviews findings of historical facts for clear error, and determines whether those facts give rise to reasonable suspicion or probable cause that a crime has been committed, while giving due weight to inferences drawn by the trial court. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). We do not reverse the trial court’s decision on a motion to suppress unless that decision was clearly erroneous. Lawson v. State, 89 Ark.App. 77, 200 S.W.3d 459 (2004).
A time reference must be included in an affidavit supporting the issuance of a search warrant. Herrington v. State, 287 Ark. 228, 697 S.W.2d 899 (1985). The review of the probable cause for the issuance of the warrant is confined to the information contained in the affidavit, as that was the only information before the municipal judge when he issued the warrant. Id. In George v. State, 358 Ark. 269, 189 S.W.3d 28 (2004), the affidavit contained a time reference similar to the one in this case. There, the officer reported that on March 22, 2001, a fourteen-year-old witness observed nude photographs of other girls she knew to be aged fourteen and fifteen. After interviewing the witness and her friend, the officer prepared the affidavit, reciting the date March 22, 2001. The supreme court held that the affidavit wasj^valid.
This case is akin to George. The affidavit indicates that the interviews happened within eight hours of the affidavit being prepared, and the victims told Van-ravensway that the photographs were currently being stored in either Mason’s closet, computer desk, or safe. Because the children indicated where Mason usually kept the pictures and used present-tense verbs, the affidavit indicates that the criminal activity was occurring at the time the affidavit was signed. The time reference in this case was sufficient to establish probable cause. Therefore, the trial court did not err in denying the motion to suppress, and we affirm on this point.
Motion to Sever
Second, Mason argues that the trial court erred in denying his motion to sever the rape charge from the other two charges. He contends that, given the inflammatory nature of the photographs entered into evidence as proof of the other charges, the jury could not fairly determine his guilt or innocence on the rape charge.
Under Arkansas Rule of Criminal Procedure 22.2(b)(i), a trial court should grant a severance of offenses before trial if it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense. Further, under Rule 22.2(b)(ii), severance should be granted during trial if deemed necessary to promote a fair determination of the defendant’s guilt or innocence of each offense. The decision on whether to grant severance is within the discretion of the trial court. Dillard v. State, 333 Ark. 418, 971 S.W.2d 764 (1998); Heritage v. State, 326 Ark. 839, 936 S.W.2d 499 (1996).
Mason relies on Sutton v. State, 311 Ark. 435, 844 S.W.2d 350 (1993), in support of his argument for reversal. There, the defendant was charged with felon in possession of a firearm and first-degree murder. He asked the trial court to sever the charges, but the court refused. The supreme court held that the refusal to sever the charges was reversible error, given the State’s weak evidence on the murder charge, the fact that the criminal record had no relevance on the murder charge, and the undue prejudice created by the previous record.
Sutton is distinguishable from this case for multiple reasons. First, the charges in that case (murder and felon in possession of a firearm) are very different from the charges here, which involve the sexual abuse and exploitation of children. Second, contrary to Mason’s assertion, the State had a strong case. The victim, along with several others, testified to Mason’s actions. The record contains nothing suggesting that T.E. was not raped or that she was raped by someone else. And Mason wrote a letter confessing to making “mistakes” and encouraging the children to change their story.
Finally, evidence of the other charges was admissible to prove Mason’s scheme. The evidence shows that Mason would invite the children to his residence and that he would take pictures and touch the children while they were there. Cf. Parish v. State, 357 Ark. 260, 163 S.W.3d 843 (2004) (holding that the trial court did not abuse its discretion in refusing to sever two rape charges involving two victims who were raped, one by digital penetration and one by forcible compulsion, when evidence of one rape would have been admissible in the | stria! of the other rape). Because evidence of the other crimes was admissible, the jury could have heard the evidence even if the charges were severed, thereby negating any benefit that could have been obtained from severing the charges.
The trial court did not abuse its discretion in refusing to sever the rape charge from the other charges. Accordingly, we affirm on this point.
Admissibility of Other Photographs
Third, Mason argues that the trial court abused its discretion by allowing the jury to see photographs of victims other than T.E. He presents two arguments on this point: (1) that the photographs were not admissible under the “pedophile exception” and (2) that the probative value of the photographs was substantially outweighed by the danger of unfair prejudice.
As with any piece of evidence, the admissibility of the photographs is reviewed under the abuse-of-discretion standard. See Smart v. State, 352 Ark. 522, 104 S.W.3d 386 (2003). When photographs are helpful to explain testimony, they are ordinarily admissible. Id. Further, the mere fact that a photograph is inflammatory or is cumulative is not, standing alone, sufficient reason to exclude it. Id. Even the most gruesome photographs may be admissible if they assist the trier of fact by shedding light on some issue, proving a necessary element of the case, enabling a witness to testify more effectively, corroborating testimony, or enabling jurors to better understand the testimony. Id.
|9We address the “pedophile exception” first. The “pedophile exception” to Arkansas Rule of Evidence 404(b) allows for the admissibility of evidence of the defendant’s similar acts with the same or other children when it is helpful in showing a proclivity for a specific act with a person or class of persons with whom the defendant has an intimate relationship. Allen v. State, 374 Ark. 309, 287 S.W.3d 579 (2008). Mason concedes that the testimony of the other victims was admissible under the exception, but he argues that the admission of the photographs went beyond the purposes of the exception. Mason fails to provide any authority to support this argument, and we are unaware of any authority limiting the pedophile exception to trial testimony. Further, the State is entitled to prove its case as conclusively as it can, subject to Arkansas Rule of Evidence 403. See Saul v. State, 365 Ark. 77, 225 S.W.3d 373 (2006).
We now consider Mason’s assertion that the trial court failed to consider whether there was a danger of unfair prejudice created by the admission of the other photographs. Under Arkansas Rule of Evidence 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. The supreme court had to determine whether that was the case in Williams v. State, 374 Ark. 282, 287 S.W.3d 559 (2008), where the issue was the admissibility of a DVD consisting of clips of the defendant engaging in sexual acts with five children. Like the victims in this case, the victims there were available to testify about the acts. The supreme court held that the trial court acted 1 mwithin its discretion in admitting the videos. Granted, the defendant in Williams was charged with multiple counts of rape and child pornography, while Mason was charged with only one of each, but this does not change our analysis. The individual pictures dispelled any notion that Mason photographed innocent activity. Moreover, we recognize that a photograph is not inadmissible merely because it is cumulative and that a defendant cannot thwart the State’s efforts to put on its proof simply by conceding the facts portrayed in the picture. See Williams, supra; Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986).
The court did not abuse its discretion in admitting all twelve photographs into evidence. We affirm on this point.
Instruction on Second-Degree Sexual Assault
Finally, Mason contends that he was entitled to an instruction on sexual assault in the second degree. He relies on T.E.’s testimony that he touched her private area and chest both through and under the clothes, and he argues that this meets the definition of sexual contact, an element of sexual assault in the second degree. It is reversible error to refuse to give an instruction on a lesser-included offense when the instruction is supported by even the slightest evidence. Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001). However, our supreme court recently held that sexual assault in the second degree is not a lesser-included offense of rape by engaging in sexual intercourse or deviate sexual activity "with a person less than | nfourteen years of age. See Joyner v. State, 2009 Ark. 168, 303 S.W.3d 54. Because sexual assault in the second degree is not a lesser-included offense of rape, Mason was not entitled to the instruction.
Affirmed.
PITTMAN and KINARD, JJ., agree. | [
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Mr. Justice Compton
delivered the opinion of the Court.
This was an action of debt, at the suit of the defendant in error — who was plaintiff below — on a writing obligatory which was as follows, to-wit:
“ $1,894 47-100. One day after date we, or either of us, promise to pay to Nicholas T. Perkins, or order, eighteen hundred and ninety-four 47-100 dollars; it being a balance due for the nett proceeds of seventy-seven bales of cotton which Williams & Parker sold for him in New Orleans, on the 25th day of May last, with interest from that time. Witness our hands and seals, this 2d day of July, 1846.
WILLIAMS & PARKER.
O. B. PARKER, [seal.]
WM. T. WILLIAMS, [seal.]
GIDEON J. WILLIAMS, [seal.]”
Gideon J. Williams pleaded separately to the action; 1st. That the writing obligatory declared on was signed and sealed by him without any consideration. 2d. Payment. Similar pleas were'filed by William T. Williams, who also pleaded separately.
• On the several pleas thus interposed, issues of fact were, regularly made up, except on the first plea of Gideon J. Williams, as to which a demurrer was overruled, and no further step taken in regard to it.
The cause was submitted to a jury, who returned a verdict for the plaintiff, and judgment was rendered accordingly.
The evidence shows that the writing obligatory was signed by Williams & Parker and O. B. Parker, as principal obligors, and Gideon J. Williams and William T. Williams, as sureties. When the instrument was signed by the principal obligors, it was understood between them and Perkins, the payee, that the sureties were to sign it also — they being then absent. Perkins took the instrument and afterwards procured the signatures of the sureties. There is no controversy as to the consideration which passed from the payee to the principal obligors. But it is insisted, that, at the time the sureties signed the writing obligatory, the consideration upon which it was founded, was wholly past or executed, and was, therefore, as to them, insufficient.
Under our statute this defence may be made, though the instrument be under seal. Gould's Dig., chap. 133, sec. 75.
The general rule is, that a past or executed consideration is not sufficient to sustain a promise founded upon it, unless the consideration, though past, was done or performed at the request of the party promising. Without such previous request a subsequent promise has no legal validity; because the consideration being entirely completed and exhausted, it cannot be said that it would not have been made or given, but for a promise which is subsequent and independent. But where the consideration and the promise founded upon it, are simultaneous, and the whole agreement is completed at once; or where the consideration is to do a thing in the future, the promise rests on a sufficient foundation, and is binding on the party who makes it. To illustrate: If one lends money to another) and, at a subsequent time, a third party, who did not request the loan, and is not benefited by it, promises to see that it is paid, such promise is void, because no consideration passes from the promisee to the promisor. But if the promisor requests the loan, or if his promise is made previous to the loan, or at the same time, then it will be supposed that the loan is made because of the promise, which is a sufficient consideration to bind the promisor.
The consideration for the promise of a surety may be tha^ upon which the liability of the principal debtor is founded' The rule seems to be this: If the debtor obligation of the principal debtor is already incurred previous to the undertaking of the surety, then there must be a new and distinct consideration to sustain the promise of the surety. But if the obligation of the principal debtor be founded upon a good consideration and, at the time it is incurred, or before that time, the promise of the surety is made, and enters into the inducement for giving the credit, then the consideration for which the principal debt is contracted is regarded as a valid consideration, also, for the undertaking of the surety. Par. on Contracts 391, 392, 496, 497; Burge on Suretyship 13, 14, 36; Jackson’s adm’r vs. Jackson et al., 7 Ala., New Series, 794; Baily vs. Croft, 4 Taunton R. 611.
It results, from an applicntion of these principles to the evidence adduced, that the proposition of the plaintiffs in error is not maintainable. Although the payee took the writing obligatory at the time it was executed by the principal obligors, and held it for some length of time — how long does not appear— before the signatures of the sureties were procured, still, it does not follow, that it was first made and signed by the principal obligors and accepted by the payee as a complete contract, and afterwards, at another time,, the contract of the sureties was made as a distinct and independent transaction; because, at the time it was signed by the principal obligors it was expressly understood between them and the payee that the sureties would also sign it.
That the payee did not accept the writing obligatory as a complete contract until the signatures of the sureties were obtained, is an irresistible conclusion from the evidence. Although the signatures of the principal obligors were procured at one time, and those of the sureties afterwards, nevertheless, in contemplation of law, their promises were cotemporaneous, and formed a part of one and the same general transaction; and the same consideration which supports the promise of the one, also supports that of the other. Hence, the sureties were clearly liable upon the instrument sued on.
The court erred, however, in rendering final judgment without disposing of the first plea of Gideon J. Williams, on which, after the demurrer to it was overruled, it seems there was no issue made up. The court should have required an issue, or have disposed of the pleading as to that plea by rendering judgment against the party in default by nil dicit according to the established practice in such cases. Mandel vs. Peet, Simms & Co., 18 Ark. 218.
For this error, the judgment must be reversed, and the canse remanded, to be proceeded in according to law.
Absent, Mr. Justice Rector. | [
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Mr. Justice Compton
delivered the opinion of the court.
At the October term, 1857, of the Izard Circuit Court, Cantrell was indicted for gaming. A plea in abatement was filed, to which the State demurred. The court overruled the demurrer, and the State saying nothing further, the indictment was quashed, and Cantrell discharged.
It appears from the plea in abatement, that the County Court, at July term, 1857, ordered that sixteen persons, naming them, should be summoned as grand jurors to serve at October term, 1857, of the Circuit Court, and that among the number was one Samuel Evans, whom the sheriff did not summon — but that the sheriff without the order of the County Court, or of th.e Circuit Court, summoned one Samuel Jones, who acted as one of the grand jury, by whom the indictment was found, etc.
It is made the duty of the County Court, at its first term after the adjournment of the Circuit Court, to make out, and cause to be delivered to the sheriffj a list of sixteen persons qualified to serve as grand jurors, and the sheriff is required, within twenty days thereafter, to summon them to appear at the next term of the Circuit Court of the county. If the term of the County Court at which grand jurors are to be selected, is not held, the sheriff is required, wdthin twenty days thereafter, to select and summon the requisite number himself. And “ if the sixteen persons summoned to serve as grand jurors shall not attend on the first day of the Circuit Court, such court shall order the sheriff, forthwith, to summon a sufficient number of persons qualified to serve as grand jurors to supply the deficiency.” Gould’s Dig. chap. 98, sec. 2, 3, 4.
These are the provisions of .the act of Assembly bearing upon the question raised by the plea, and they make it plain that the sheriff had no authority to summon Jones as a grand juror.
Power is given the sheriff to summon grand jurors, without the previous action of the court, in but one instance; and that is, when the term of the County Court, at which the jurors should be selected, is not holdgn. In this case sixteen persons had been regularly selected by the County Court to serve as grand jurors.
From some cause, which does not appear, the sheriff omitted to summon one of them, and without the order of the Circuit Court, summoned Jones to make up the deficiency. This was a violation of the statute. The act of the sheriff involved the selection as well as the summoning of the juror, and being without authority, was not performed under the sanction of his official oath, which, where the act is done by authority, it must be supposed, has a salutary influence in stimulating him to make a proper selection.
The design of the statute,, in prescribing the mode .in which grand jurors shall be selected, was to protect the citizen from unfounded prosecution, and to deprive the sheriff, if inclined, of the opportunity of acting corruptly. Any essential departure from its provisions, therefore, the law does not wink at it, however slight.
Finding no error in the record, the judgment of the Circuit Curt must be affirmed with costs. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
The material facts in this case are as follows:
On the 28th June, 1848, the Trustees of the Real Estate Bank commenced an action in the Hempstead Circuit Court, by filing a declaration and issuing a writ, against Joseph Stuart, upon a stock note executed by him to the Trustees, 1st January, 1844, for $4,111 00, etc.
The writ was returned, without service, by order of George Hill, one of the Trustees.
At the May term, 1849, the death of Hill was suggested, the cause directed to proceed in the name of his survivors, an alias writ ordered, and the case continued. The writ was issued, and returned without service by direction of James H. Walker, one of the Trustees.
At the May term, 1851, the attorney of the Trustees suggested the death of the defendant (Joseph Stuart), and it was ordered that the suit stand continued for revivor, and that a scire facias be issued whenever administration was had upon his estate.
Letters of administration were granted, by the Probate Court of Hempstead county, to Mildred Stuart and Robert C. Stuart, 14th June, 1851. On the 12th August, 1851, a scire facias was issued for the purpose of reviving the suit against them, returnable to the November term following, which was 4(luly served upon both of them, 29th of August, 1851.
At the November term, 1851, the cause was regularly revived, and judgment rendered against them, as administratrix and administrator of Joseph Stuart, deceased, by default, for $4,508 09, damages, being for balance claimed to be due upon the note sued on, the plaintiffs producing the note in Court, the record states, and admitting that there was paid thereon, 1st November, 1848, $481 23, and all interest up to that date.
On the 15th of August, 1853, a scire facias was issued for the' purpose of reviving the judgment, which was duly executed upon the defendants, as such administratrix and administrator, 17th September, 1S53, and, at the November term following, the judgment was regularly revived against them by default.
It appears that on the' 1st of Nov’r, 1848, after the suit was commenced against Joseph Stuart, he paid to Hill, one of the Trustees, a State bond, amounting to $1,420, and delivered to him a new note for $3,629 07, payable to the Trustees by equal annual installments, the whole to be paid by the 25th October, 1856, in renewal of the note in suit.
It seems that this note came to the possession of Mr. Newton, the Secretary of the Trustees, and was also in the hands of Mr. Pike, their attorney, before the original judgment was taken against the administrators of Joseph Stuart on the note in suit, but that if Mr. Pike had been informed that it was given in renewal of the note sued on, he did not remember it at the time the judgment was taken. He so states.
In November, 1854, an agreement was made between the attorney of the Trustees and Robert C. Stuart, (to W'hich it was understood that Mildred Stuart assented), by the terms of which the renewal note of the 1st November, 1848, was to be allowed against the estate of Joseph Stuart, and the attorney of the Trustees was to enter satisfaction of the judgment of revivor above referred to, except as to costs. And accordingly Robert C. Stuart, in pursuance of the agreement, endorsed an allowance upon the note, to which he signed his own name, and the name of Mildred Stuart, as administrator and administratrix, etc.; and the attorney of the Trustees made an entry in the margin of the record .of the judgment, that it was “ satisfied in full, except costs, on the 2d day of November, 1854, by allowance of note given in renewal of the debt sued on.”
At the ensuing term of the Probate Court of Hempstead county, the note was presented for allowance and classification, in pursuance of the agreement, and Mildred Stuart objected to its being allowed, etc., on the grounds that her name had been signed to the allowance' endorsed on the note, without her consent, and that the note had not been presented for allowance within the time prescribed by law; and the Court, upon her objections, rejected the note, and refused to allow and class it as a demand against the estate.
"Whereupon, the Receiver of the assets of the Bank (the Trustees having been removed) filed a bill against the administrator and administratrix, praying that the entry of satisfaction of the judgment be vacated, and the judgment left in full force, etc.
Oh the hearing, the Court decreed as prayed by the bill, but directed, the master to ascertain and state an account of any payments that had been made upon the debt by Joseph Stuart in his life time, or his administrators subsequently, and that they be credited upon the judgment, etc.
The administrators appealed from the decree,
The appellants having failed to perform the agreement upon which, and upon no other consideration, the entry of satisfaction was made, it was but just and equitable that the entry should be vacated, and the representative of the Bank restored to his legal rights, by placing the judgment in statu quo.
But as the appellee sought the aid of the Court of chancery to place the judgment in statu quo, by vacating the entry, it was proper that the court should grant him the relief which he prayed, under the peculiar circumstances of the case, upon condition that he would allow the appellants the benefit of any payment which had been made upon the debt, before or after judgment, and not credited, on the principle that he who seeks equity must do equity. And this the court did, in effect, if not in form.
It is insisted by the appellants that the payment of the State bond, and the execution and delivery of the new note by their intestate, one of the Trustees, extinguished the original note, and that the judgment obtained upon it afterwards, was null and void.
If the premises be conceded — if it be further conceded that the bond and new note were accepted by the Trustees as a payment and satisfaction of the original note, which is not shown — still the conclusion that the judgment was null and. void, does not follow. The court had jurisdiction of the subject matter, and of the persons of the appellants, and if the note sued on had been paid, this was matter of defence, which might have been interposed to defeat the action, but the judgment having been rendered for want of defence, it was surely not void.
Nor does it appear that the judgment was obtained by fraud, as alleged by the appellants in their answer.
It is not shown that the attorney for the Trustees practiced any imposition or deception upon the Court, or in any manner prevented appellants from defending the suit, in order to obtain the judgment. He testifies that the note executed by Joseph Stuart, 1st November, 1848, had.been in his hands, but if he knew that it was given in renewal of the note in suit, he had entirely forgotten it at the time he took the judgment.
It is probable, also, that the credit, which was allowed at the time the original judgment was taken, was for the amount of the State bond, which was paid to Hill by Stewart. The allowance of the credits conduces to show that there was no design to defraud the appellants in taking the judgment.
It is finally insisted for the appellants, that the Court below should not have vacated the entry of satisfaction, because upon a bill filed by them for the purpose, the Court would be bound, upon the facts disclosed in this case, to enjoin the collection of the judgment, etc.
The grounds upon which they would seek an injunction, are, that the judgment was obtained upon the original note after a part of it had been paid with a State bond, and a renewal note executed and delivered to the Trustees of the bank for the remainder, which had not been paid, and the right to enforce its payment lost by lapse of time, and the claim disallowed by one of the appellants, and rejected by the Probate Court. Thus they would ask the aid of a Court of Chancery to enable them to avoid, altogether, the payment of a debt which is not denied to have been a just one. And what excuse would they give to. the Chancellor for permitting the judgment to be rendered, and subsequently revived against them, without defence, after full notice, and ample time afforded them to ascertain the rights of their intestate, and prepare for defence, etc.? The same excuse, it may be supposed, that they have given in their answer to the bill in this case: — that they had no knowledge of the execution of the renewal note by their intestate until after the revival of the judgment. But notwithstanding' over two years elapsed from the time they were served with process, in the original suit, to the time of the revival of the judgment, they failed to show that they used any diligence to ascertain whether there were any grounds of defence, by applying to the Trustees, the secretary, or the attorney of the bank, for information in relation to the condition of the debt, or that they attempted to obtain information from any source in relation to the claim, or to prepare any defence to the action. It appears that Mildred Stuart made enquiry of the attorney of the Trustees, in relation to the debt, after the revival of the judgment, and the whole matter was explained to her, as we may suppose it would have been, at any previous time, had the enquiry been made.
Upon the facts disclosed in the case, therefore, we are by no means clear that the judgment would be enjoined. See Bently exr. vs. Dillard, 1 Eng. 79.
The decree of the Court below must be affirmed | [
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Mr. Chief Justice English
delivered the opinion of the court!
Mary McGarrah filed a bill for dower in lands owned by her deceased husband during his life time, against a number of persons alleged to claim the legal title, and to be in possession of the lands, and also against Benjamin J. Jacoway, who, it was alleged, had, by fraudulent means, obtained a deed from complainant transferring to him her dower interest in the lands.
The bill prays that the deed from complainant to Jacoway be cancelled, and that she be assigned dower in the lands, etc.
Some of the defendants alleged to claim the legal title to the lands, etc., answered the bill, and a decree pro confesso was taken against others. ,
Jacoway filed an answer to the bill, denying that he had obtained the deed from complainant, transferring to him her dower interest in the lands, by fraudulent means as alleged, but averring that he had purchased her interest and obtained the transfer fairly, etc. He also made his answer a cross-bill against his co-defeudants, setting up his purchase of complainant’s right to dower in the lands, interrogating them as to the value of the rents and profits, and praying the court to decree to him, and not to complainant, her dower interest in the land, and cause it to be laid off to him, with an account of rents and profits, etc.
A subpoena was issued and served upon the co-defendants, who were made parties to the cross-bill; and they appeared and interposed a demurrer thereto, for want of equity, assigning as special cause of demurrer that a dower interest in land could not be aliened before assignment.
Jacoway then moved for leave to amend his cross bill by making the complainant in the original bill a defendant thereto, etc.
Whilst this motion was pending, and before the court took any action thereon, the original complainant asked leave to dismiss her bill, which was granted by the court, and her bill dismissed, against the objection of Jacoway, who excepted and appealed.
In Carnall ad. vs. Wilson, (ante 62.) this court held that the right of dower, until it is assigned to the widow, is a mere chose in action; and though the widow may relinquish the right to the heirs at law, or to one holding the legal title to the lands under the husband, etc., and such relinquishment will bar her right to recover dower, yet she cannot alien or transfer her claim to dower so as to vest in any other person the right of action therefor.
There being no equity on the face of the cross-bill, the appellant was not prejudiced by the leavé granted to the appellee to dismiss the original bill, and the decree is affirmed. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
This was a proceeding by scire facias, etc., to establish and enforce a mechanic’s lien, under the statute, upon a house and lot in the town of Magnolia.
In the account for $603 83f, which was filed in the office of the clerk of the Circuit Court of Columbia county, on the 26th of September, 1856, and in the scire facias, which was issued on the 29th of the same month, the persons who claim the lien, etc., and who are the plaintiffs in the proceeding, are described as Richard M. Branton and Samuel J. Branton, partners in house building, in the firm name of R. M. Branton & Co.; and the persons who are alleged to have contracted with them for the labor, and who are made defendants, are described as James A. Hicks and Robert E. Arrington, merchants and partners in trade, under the firm name and style of Hicks &c Arrington, ostensible owners of the lot and building erected thereon, etc.
The defendants pleaded to the scire facias:
1. That they did not owe said plaintiffs the said sum, etc., in manner and form, etc. ^
2. Payment.
3. In substance; that they contracted with Richard M. Bran-ton and Samuel J. Branton, as individuals, together with John Branton, Abraham G. Bird and Claiborn S. Banen, for doing the work and labor in the scire facias mentioned; and that it was done by said Richard M. Branton, Samuel J. Branton and John Branton, the said Bird and Banen, for some reason to the defendants unknown, not assisting in doing said work and .labor; and that defendants did not contract with said Richard M. Branton and Samuel J. Branton, partners in house building, under the firm name of R. M. Branton & Co., as alleged in said scire facias, for the doing of said work and labor, and had no knowledge that they were partners, etc.; and that defendants were liable to said Richard M. Branton, Samuel' J. Branton and John Branton, as individuals, for the doing of said work and labor, etc.; and that the plaintiffs, as such partners, were not entitled to recover the sum demanded therefor in the scire facias, etc.
4. In substance, that by the terms of the contract, the price to be paid for the work, etc., was not due and payable until the 1st of January, 1857, and that, consequently, the scire facias was sued out prematurely.
5. Set-off.
The plaintiffs took issue to the 1st, 2d and 5th pleas, and filed a motion to strike out the 3d, and a demurrer to the 4th plea. The motion to strike out and the demurrer were both sustained, and defendants rested.
The issues to the other pleas were submitted to a jury, ver diet for plaintiff, motion for a new trial overruled, and appeal by the defendants from the final judgment.
1. In the motion to strike out the 3d plea, the objections taken to the plea are that it set up matter in abatement, was not sworn to, and was filed after a plea in bar.
The form of the plea is not in abatement, but in bar, and it was, perhaps, intended by the pleader to be a plea in bar.
In actions ex contractu, if it appear upon the face of the pleadings that there are other parties to the contract, who ought to be, but are not joined as plaintiffs, it is fatal on demuiTer, in arrest of judgment, or on error; and though the objection may not appear on the face of the pleadings, the defendant may avail himself of it by plea in abatement, or as a ground of non-suit on the trial under the general issue. 1 Chitty Pl. 13; Arch. Civ. Pl. 55; Armstrong vs. Robinson, 5 Gill & John. 413; Converse vs. Symms, 10 Mass. R. 378 and note. Mr. Comyn saj's, the non-joinder may be pleaded in abatement or in bar. 1 Com. Dig. Abatement E. 12, p. 54. But the non-joinder of a co-executor or administrator, can only be taken advantage of by plea in abatement. Arch. Civil Pl. 55; Newton, ex. vs. Cock, ex. 5 Eng. 170.
The court erred, perhaps, in striking out the plea, but the-appellants were not prejudiced by the error, because they had the full benefit of the objection upon the trial, under the issue to the first plea. The court instructed the jury, at their instance, that if John Branton was a member of the firm of R. M. Bran-ton & Co., and a party to the contract, he should have been joined as a plaintiff in the action. He was introduced as a witness, and testified that he was not a member of the firm, and that the appellees were the contractors, etc.'
2. If a suit be prematurely brought, that is, before the cause of action is due, the objection may be taken by demurrer, if it appear on the face of the declaration, (Zachery vs. Brown, et al. 17 Ark. 442), or advantage may be taken of it on the trial, under the general issue, (1 Chitty Pl. 553; Osborn vs. Moncure et al. 3 Wend. 170), or it may be pleaded in abatement, 1 Chitty Pl. 553; 1 Comyn's Dig. Abatement, G. 6, p. 98.
The mechanic may fix his lien before the debt is due, by filing his account in the clerk’s office, and causing an abstract thereof to be entered in the judgment docket, (Dig. chap, 112, sec. 2, 28), but the statute does not provide that the scire facias may be sued out to enforce the lien by judgment and execution, before the maturity of the debt.
The 4th plea set up matter in abatement, was not sworn to> and was filed after a plea in bar, and might have been stricken out on motion; but these, objections were not available on demurrer. Allis vs. Bender, 14 Ark. 627; 1 Eng, 198; Knott et al. vs. Clements, ad. 13 Ark. 335.
But the appellants were not prejudiced by the error of the court in sustaining the demurrer to the plea, because they had the benefit of the matter set up by the plea upon'the trial, under the general issue. The court instructed the jury, at their instance, that if they believed from the evidence that the money to, be paid for the work, etc., was not due and payable at the time of the institution of the action, etc., they should find for appellants. See Vaden et al. vs. Ellis, 18 Ark. 359; Anderson vs Dunn, 19 Ark. 655.
3. The appellants introduced testimony on-the trial, conducing to prove that before the contract for the carpenter work was made with appellees, the firm of Hicks & Arrington had been dissolved, and a new partnership formed, composed of Hicks, Arrington and one James Vaughan, under the firm name of Hicks, Arrington & Co., and that the contract was made on behalf of the new’- firm, by Hicks. And the appellants moved the court to instruct the jury, in substance, that if they believed from the evidence, that Vaughan, who was not sued, [was a member of the firm on whose behalf the contract was made, etc., they should find for appellants. Which the court refused.
With respect to the mode of taking advantage of the omission of a party who. ought to be made co-defendant, there is a material distinction between this case and that of co-plaintiff. We have seen that if a person who ought to join as plaintiff (in an action upon a contract) be omitted, and the objection appear upon the pleadings, the delendant may demur, move in arrest of judgment, or bring a writ of error, or, if the objection do not appear on the pleadings, the plaintiff, except in case of co-executors or administrators, may be non-suited on the trial, under the [general issue. But in the case of defendants, if a partner, or joint contractor, who ought to be joined, be omitted, the objection cannot be taken upon the trial, but must be taken by plea in abatement. 1 Chitty Plea. 46; Hamilton vs. Buxton, 1 Eng. 26; 2 Ark. 174.
The defendant is presumed to know who his partners are, if he has any, and he ought not to be permitted to lie by, and put the plaintiff to the delay and expense of a trial, and then set up a plea not founded in the merits of the cause, etc., but he should plead the non-joinder in abatement, and state who his partners are. Rice vs. Shute, 5 Burr. 2613; Ziele et al. vs. Campbell’s ex. 2 John. Cas. 383.
Such is the common law rule in relation to the non-joinder of defendants in actions ex contractu. Under our statute, the liabilities of partners upon the contracts of the firm is joint and several, and the plaintiff may sue one or more of them at his election. 7 Eng. 315; 1 ib. 24; 4 Ark. 164.
It is usual, in practice, to state in the declaration the names of all of the partners, and to designate such as are not sued. But if it turns out in proof, upon the trial, that the name of some member of the firm is omitted, as in this case, in the description of the persons alleged to compose the partnership, the variance is not material, if the parties sued are liable upon the contract. (19 Ark. 250.)
4. It is insisted for the appellants, that fhe court below should .have sustained the motion for a new trial, on the ground that the appellees failed to prove on the trial that they had caused an abstract of their account, etc., to be entered in the judgment docket, etc.
The mechanic, in order to fix his lien under the statute (Dig. ch. 112), must file in the clerk’s office an account of the work etc., done by him, with a description of the property to be charged with the lien, verified by affidavit, etc., sec. 2-3. And it is made the duty of the clerk to make an abstract therefrom in his judgment docket, containing the name of the person laying the lien, and of the person against whom it is taken, the amount of the debt, and a description of the property charged (sec. 4.) and it is expressly declared by section 26, that the lien shall date and take effect from the time the account is filed and the abstract entered in the judgment docket, and not from any earlier period, etc.
It is manifest from the language of the 4th and 26th sections, that the entering of the abstract in the judgment docket, as well as the filing of the account, etc., in the clerk’s office, within the time limited, is a condition precedent to the attaching of the lien. Section 4 is part of the act of 31st January, 1843, and section 26 is part of the act of 21 st December, 1846, which seems to have been designed to remove any doubt as to the time when the lien is to attach, and as to the acts to be done as conditions precedent to the attaching of the lien. The mechanic must not only file his account in the clerk’s office, but he must see that the clerk makes the abstract in the judgment docket, as required by the statute. The provision requiring the abstract to be made in the judgment docket, is not merely directory to the clerk, but is of the essence of what is to be done before the lien attaches. See M. O. & R. R. Co. vs. Gaster, 20 Ark. 458.
The language, used in the statute construed in Petray vs. Howell, ib. 615, is different from that which is employed in the statute now under consideration.
The pleas of the appellants, upon which issues were taken, were in form, nil debet, payment and set off. Neither of these pleas expressly tendered an issue as to whether the appellees had filed their account, in proper form, in the clerk’s office! within the time required by the statute, and caused an abstract to be made in the judgment docket; but the statute required the appellees to produce sufficient proof to sustain their lien, before verdict and judgment could be rendered in their favor, even if the appellants had not appeared at all, or appearing, failed to show sufficient cause why judgment and execution should not he had against the property charged with the lien, secs. 9, 10. We think, however, that the plea of nil debet should be treated as a general issue to the scire facias, and as putting the mechanic on proof of his lien, etc.
The bill of exceptions purports to contain all the evidence introduced upon the trial, and it does not appear to have been proven that the abstract of the account had been made in the judgment docket, as required by the statute.
The judgment must be reversed, and the cause remanded, with instructions to grant the appellants a new trial, etc. | [
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Mr. Justice Compton
delivered the opinion of the Court.
This was a scire facias issued from the Circuit Court of Monroe county, and directed to and served in the county of Prairie.
At the return term, Bridges not being served, discontinuance as to him; Darby and Johnson defaulted, and judgment against them.
The first objection taken to the proceedings in the court below is, that the scire facias was not sufficient in law to sustain the judgment by default.
After the decision of this court in Hicks vs. The State, 3 Ark. 313, and in Gray vs. The State, 5 Ark. 265, the Legislature, for greater convenience in practice, passed an act, approved 2d February 1843, which prescribes the form for a scire facias on recognizance of bail in criminal cases. Gould's Dig. ch. 52, sec. 63. In this case the form prescribed was not substantially followed. The scire facias recites that “ Clinton H. Bridges was bound with W. J. Darby, and William Johnson, as his securities, in a bond for the sum of two hundred and fifty dollars, conditioned for his appearance,” etc., to answer an'indictment for assault and battery, etc. Thus failing to show that the recognizance was entered into before the court in which the prosecution was had. or before any of the several officers authorized by law to take it; or that the recognizors were bound to the State for the sum mentioned in the obligation recited, as in order to show a right of action in the State, it should have done. The scire facias occupying the place of both writ and declaration, should have set forth all the facts necessary to show a right of action in the plaintiff. Failing in this, it does not sustain the judgment by default against the defendants.
It is further objected, that the issuance of the scire facias to Prairie county, and its service there upon the defendants, was erroneous.
It is provided by statute, that in all actions deemed local at common law, the original writ may be issued from the county, where the injury was committed, to any other county where the defendant may be found; but in declaring in any such action the plaintiff shall not set forth any matter which would be the subject of a transitory action.
In a proceeding by scire facias on a recognizance of bail, the venue is local at common law. Smith vs. Clarke, 1 Ark. 651. 1 Chit. Plead. 269. The scire facias is also regarded as an original writ, and as the institution of a new suit. Gray vs. The Slate, supra. We think, therefore, that such a proceeding is within the provision of the statute, and that the writ may well issue to any county in the State.
For the error, however, above indicated, the judgment must be reversed, | [
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Frank Holt, Justice.
By the terms of a Financing and Security Agreement, appellee agreed to advance funds to appellant for the floor-planning of new and used cars to be sold by appellant. About two years later, after appellant had encountered financial difficulties, appellee took possession of appellant’s automobile stock pursuant to their agreement and liquidated it. Appellee then filed suit for a deficiency judgment for the balance of the debt owed by appellant. From the chancellor’s decree in favor of appellee comes this appeal.
Appellant first “contends that the Agreement for disposal of collateral should have been held invalid .by the Trial Court and the Appellee required to give notice [ten days] as provided by Paragraph 13 of the Financing and Security Agreement.” Appellant signed the disposal of collateral agreement about nine days after repossession of the cars by appellee. This after default agreement waived all notice of the terms, times, and places of sale of the repossessed automobiles. Our Uniform Commercial Code clearly con templates that a debtor can, as here, waive notification of the sale of collateral following a default. Ark. Stat. Ann. § 85-1-102 (3) (Add. 1961); Ark. Stat. Ann. § 85-9-501 (1) (3) (Supp. 1975); and Ark. Stat. Ann. § 85-9-504 (3) (Supp. 1975). Such an agreement, reached after default, as here, can result in a quick and efficient disposal of collateral for the benefit of the parties.
Neither can we agree with appellant’s further argument that Teeter, owner of Teeter Motor Company, was coerced into signing the supplemental agreement, which it first refused to do. The asserted coercion of Teeter occurred when the appellee bank officials told him that it would be necessary to sign the agreement or the sheriff would be forced to serve the necessary papers on the Teeters. Teeter felt that litigation “would likely drive her [Mrs. Teeter] crazy and put her in a state of shock.” Therefore, the Teeters signed the agreement. Of course, the statement was merely an assertion of a fact; i.e., that legal proceedings would be initiated if Teeter refused to sign the agreement. Appellee was within its legal rights to inform Teeter of its possible course of action. Further, there was a nine day period between the repossession of the automobiles and the Teeters’ written agreement as to the method of the sale of the collateral. Teeter, a business man, had sufficient time to consult with an attorney as to whether he should or should not sign the agreement. We agree with the chancellor that Teeter’s testimony is not “anywhere near sufficient to show that he was coerced, forced, or fraud or misrepresentation practiced on him.”
Appellant argues that appellee failed to give notice before the repossession of the automobiles. Appellant does not point out any provision of the agreement between the parties which required notice of repossession nor does appellant cite any authority that notice of intention to repossess must be given* § 85-9-503 provides:
Unless otherwise agreed, a secured party has on default the right to take possession of the collateral. In taking possession, a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action.
Appellant had knowledge of its default through continued negotiations between Mr. Teeter and the appellee bank concerning Teeter’s financial difficulties. There is ample evidence that appellant was in default. In fact, Teeter, who owned the motor company, acknowledged default in the after default agreement.
Appellant also argues that Teeter protested the repossession by appellee and, therefore, the repossession was a trespass and a breach of the peace in violation of § 85-9-503. Therefore, the subsequent sale of the automobiles was invalid. We cannot agree. As discussed, appellant waived notice of the sale of the cars by the after default agreement for disposal of the collateral. Further, the financing agreement between the parties states:
The bank may, so far as borrower can give authorization therefore, enter upon any premises on which the collateral may be situated and remove the same therefrom.
This is authorized by § 85-9-503. The repossession took place when bank employees went to Teeter’s lot and informed him that they were taking possession of his stock. Teeter stated: “Well, I wish you wouldn’t but I’m not going to do anything to stop you.” When asked if the cars were repossessed peacefully, Teeter responded that he offered no resistance and “I stayed out of their way.” A bank employee testified that Teeter stated: “it was a burden lifted from my shoulders” when appellee took the automobiles. It appears that Teeter himself assisted in starting the cars when they were removed from his premises. There is no evidence of force or intimidation by the appellee. We agree with the chancellor that the repossession here, in conformity with both statutory authority and the contractual provision, did not constitute a breach of the peace.
Appellant next contends that the repossession of appellant’s stock was a violation of “federal [14th Amendment] and state [Ark. Const., Art. 2 § 21 (1874)] constitutional rights.” Teeter argues that § 85-9-503, which provides for repossession of collateral, is unconstitutional. Enactment of a “self-help” statute, which authorizes the actions taken by the secured party, as here, is not such significant state involvement as to constitute action taken under color of state law and creates no cause of action under Federal Civil Rights Acts. Nichols v. Tower Grove Bank, 497 F. 2d 404 (8th Cir. 1974); Nowlin v. Professional Auto Sales, Inc., 496 F. 2d 16 (8th Cir. 1974). Further, the procedure challenged here involved actions between individuals arising out of the express written agreement of these parties. See Adams v. Southern California First National Bank, 492 F. 2d 324 (9th Cir. 1973). In the case at bar, we hold the statute is clear and unambiguous and the rights guaranteed by the Federal 14th Amendment and Art. 2, § 21 of our State Constitution were not violated by the appellee’s repossession.
Appellant’s final point is that “the trial court erred in not holding that the repossession and sale of appellant’s vehicles by the appellee were in violation of the Uniform Commercial Code of Arkansas and that appellee should be barred from taking a deficiency judgment against the defendant.” Appellant argues that since the repossession and agreement for disposal of collateral were invalid, any deficiency judgment is barred. We cannot agree. As indicated, the appellant was in default, the appellee rightfully took possession of the collateral under their financing agreement and then sold the collateral pursuant to a valid after default agreement approved by the Teeter corporation and by the Teeters individually. Further, there was ample evidence of compliance with § 85-9-504 (3) which states “every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable.”
There was ample evidence that Teeter had knowledge of the location of the lot where the repossessed cars were being sold, contacted and sent some prospective buyers to the lot, was notified of the time and place of auctions, and attended same. The cars were offered first at retail sale and not sold until appellee was satisfied with the adequacy of the price. Only after efforts had been made to dispose of the collateral at retail were the automobiles sold at wholesale or at auction. None of the cars were sold until after the agreement for disposal of collateral was signed by the Teeters.
§ 85-9-504 (2) provides for a deficiency judgment:
If the security interest secures an indebtedness, the secured party must account to the debtor for any surplus, and, unless otherwise agreed, the debtor is liable for any deficiency. . . .
Appellant’s and appellee’s after default agreement for disposal of collateral expressly provided:
Nothing contained herein shall be construed to release Darrell M. Teeter or Huberta Teeter, or Teeter Motor Company, from their personal liability herein should sale of the collateral and reserve account be insufficient to extinguish the Floor Plan debt, and endorsed liability owed to Secured Party by Debtor.
The decree is affirmed.
We agree: Harris, C.J., and Byrd and Roy, JJ. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
The judgment in this case must be affirmed under the rule established in State Bank vs. Conway, 13 Ark. 344, and followed in a number of cases since.
The action was assumpsit by the appellees against the appellant for use and occupation, etc.; the case was submitted to the court, sitting as a jury, under the general issue, upon an agreed statement of facts, the court found for appellees, and the appellant, without moving for a new trial, or specially reserving any question of law, took a bill of exceptions setting out the esúdence and appealed.
The case stands here precisely as it would have done if the issue had been submitted to a jury without instructions given or refused by the court in relation to the law of the case, and there had been a verdict against the appellant, upon the evidence, and he had taken a bill of exceptions, setting out the facts proven on the trial, or agreed upon by the parties, and appealed without moving for a new trial. The fact that the court performed the office of a jury, by consent of parties, does not change the attitude of the case here.
If the appellant had moved for a new trial, and it had been refused him, this court would have determined, as a question of law, whether there Was a total want of evidence to sustain the verdict on any material matter in issue.
Or it the appellant had asked the court to declare one or more propositions to be the law of the case, as if the court were instructing a jury, and the court had refused, and the appellant had set out in his bill of exceptions the legal propositions, so submitted and refused, this Court would have deter mined whether the court erred in refusing to declare the law of the case to be expressed in such propositions.
Or if the court, of its own motion, had declared the particular principles of law which would govern its finding and judgment,. and the appellant had excepted, and set out the principles so declared to be the law of the case, this court would have reviewed the questions thus reserved upon the record.
But as the case is now presented to us, we are asked to determine whether the evidence sustains the finding of the court, sitting as a jury, when there was no motion for a new trial; and to adjudicate questions of law submitted in the briefs of the counsel, but not reserved by bill of exceptions at the trial; and upon which the court below may, or may not, have been asked to pronounce its judgment.
The fact that the evidence was agreed upon by the admissions of the parties, instead of being introduced through the medium of witnesses, does not affect the principles upon which the rule of practice settled in State Bank vs. Conway rests.
Surely, the rule of practice established in that case is simple, easily understood and followed, and, being settled, the court has no disposition to depart from it.
Affirmed. | [
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Mr. Chief Justice English
delivered the opinion of the court.
Micajah B. McCoy brought an action of covenant, in the Phillips Circuit Court, against Jesse A. Jackson, as administrator of Turner W. Goswick, upon a covenant of warranty of the soundness of a slave, contained in a bill of sale executed to McCoy by Goswick, in his life time.
The defendant interposed a special plea as follows: actio non, because he says that the said Turner W. Goswick departed this life on the 1st day of February, 1856, and said defendant was appointed administrator on his estate, on the 25th day of February, A. D. 1856; and that more than two years have elapsed since the grant of letters of administration, as aforesaid^ and the said plaintiff has never presented to the said defendant his claim authenticated by affidavit, as required by law, and this he is ready to verify, wherefore,” etc.
To this plea the plaintiff replied, in substance, that on the 18th September, 1855, in the lifetime of Goswick, he commenced a suit against him on the same cause of action, in the Phillips Circuit Court, which was pending against him at the time of his death, and by law survived against his administrator, etc. That after the death of Goswick, on the 4th of June, 1856, on the voluntary appearance of the defendant as his administrator, the suit was revived against him as such, by the consideration and order of said court, and that from the time of such revivor the said covenant and the breach thereof stood as a demand legally presented to and exhibited against the estate of said Goswick, etc. That such proceedings were afterwards had in the suit so revived against the said defendant, as such admin istrator, in the said Circuit Court, that on the 13th day of November, 1857, the said plaintiff, by the judgment of said court, suffered a non suit; and afterwards, within one year after such non suit, on the 28th of April, 1858, the plaintiff commenced the present suit against the defendant as such administrator, on the same cause of action, etc., etc.
To this replication the court sustained a demurrer, final judgment was rendered thereon in favor of defendant, and the plaintiff appealed.
“ All demands not exhibited to the executor or administrator, as required by this act, before the end of two years from the granting of letters shall be forever barred.” Gould's Dig. ch. 4, sec. 99.
The demand is saved from the bar if it be exhibited to the executor or administrator, as required by the act, within two years from the grant of letters, though suit upon the demand may not be commenced until after the expiration of two years from the grant of letters. 14 Ark. 412; 18 ib. 334.
“ All actions pending against any person at the time of his death, which, by law, survive against the executor or administrator, shall be considered demands legally exhibited against such estate, from the time such action shall be revived, and shall be classed accordingly.” lb. sec. 100.
The replication avers that a suit was pending against Gos- ■ wick at the time of his death, on the demand in controversy, which by law survived against his administrator, and that the action was revived against the appellee as his administrator after his death.
The demand was then legally exhibited against the administrator in one of the modes prescribed by law.
"When the appellant was non-suited in the action thus pending and revived, and desired to commence a new suit, was it necessary for him, before bringing suit, to exhibit the demand to the appellee again? — that is, to exhibit the demand to him in the other mode prescribed by the statute, by appending to the demand his affidavit, and presenting it to the appellee for allowance, furnishing him with a copy, etc? We think not. The claim having once been legally exhibited, it was not necessary to exhibit it again before bringing the second suit.
Suppose there had been no suit pending on the claim against Goswick, at the time of his death; and the appellant had verified the demand by affidavit, and presented it to appellee for allowance, as required by the statute, and he had rejected it, and appellant had then sued him upon the demand, suffered a non-suit, and. desired to renew the action, would it have been necessary for him before commencing the second suit, to have exhibited the claim anew to the appellee for allowance? We think not. When the demand is once legally exhibited, there can be no good reason why it should be exhibited a second time.
If a second exhibition would not be necessary in the case put, by the strongest analogy it was not requisite in the case before us.
The judgment must be reversed and the cause remanded for further proceedings. | [
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Mr. Justice Fairchild
delivered the opinion of the court.
In an action of ejectment, brought by the plaintiffs in error, against the defendant, Pleasants, with whom Alfred Wallace was made a defendant upon his motion, and upon whose death his personal representatives were substituted in his place, verdict and judgment were given that the plaintiffs should recover the north-east fractional quarter section 12; the south-east fractional quarter of same, and the north-west fractional quarter of section 13, township 1 south, range 11 west; but because they did not recover the west half of section 12, which was claimed by their suit, they have brought the case here by writ of error.
By the same evidence upon which the verdict was founded, tile plaintiffs showed title to the west half of section 12, but did not recover it, on account of a decree of the Circuit Court of Pulaski county, sitting in chancery, made the 18th of September, 1841, and upon an ex parte application of William McK. Ball, which decree was a confirmation of tax title to the land in question, previously acquired by Ball.
Upon the permission given to the defendants to read the decree in evidence, and upon the effect which the notice of Ball’s application and supporting affidavit can have upon the decree, must this case mainly turn.
Other objections are made to the deed of Lawson to Ball, and to the regularity of the sale, which the deed is intended to witness, but they are only to be considered when the decree shall have been found not to have confirmed the title, and not to have cured the irregularities and infirmities connected with the sale of the land, and the proceedings previous to the sale. No objection to the decree is apparent upon its face, but the original papers introduced by the plaintiffs to rebut the decree, taken in connection with the recital in the decree, do show that the proof of notice of the sale to Ball and of his intended application for its confirmation, is not that contemplated by the third section of chapter 160, under the head of Tax Title, in English's Digest. By that statute the affidavit of a publisher or proprietor of the newspaper containing the notice is taken as sufficient evidence of the publication.
The statute does not say that it shall be the only evidence of the publication, and if the decree did not exclude the conclusion, we might infer that other evidence than the affidavit attached to the notice read by the plaintiffs, was before the court upon the rendition of the decree.
But a fair construction of the decree brings up the direct question, whether a decree of confirmation of a tax title, made upon a notice proven solely by the affidavit of the editor of the newspaper in which it was published, is, for.that reason, void.
That such decree is erroneous and would be reversed upon appeal, may be safely presumed upon the authority of Brodie vs. Skelton, 6 Eng. 130; and Saffold vs. Saffold, 14 Ark. 400.
Not to so hold would be proceeding upon'a principle different from that which prevailed in those cases, and which is distinctly decided in Clark vs. Strong, 13 Ark. 492, to be that which should be adhered to in suits in chancery dependent upon constructive notice.
But it does not follow that the decree, though reversible upon appeal, and for error upon its face, must be held void, and consequently be disregarded when introduced collaterally as evidence in an action of ejectment.
The decree of the court was made upon a matter over which it had jurisdiction, as held in Evans vs. Perciful, 5 Ark. 43; and the conclusiveness of the decree does not depend jupón its being made against a person, or against property.
A decree pro confesso upon constructive notice that is defective, is as good as a like decree upon insufficient personal service, and such decree when made final cannot be collaterally questioned.
The proceeding for a confirmation of Ball’s tax title was not-solely against the defendants in this case, but against them and all who might claim the lands embraced in the notice; that is, against all the world: a notice was given which the court called a good notice, for being sufficiently proven, and this was one of the points before the court for its determination: all the world then was bound to question the notice by a direct proceeding, or to submit to the decree rendered.
The court rendering the decree under consideration, passed directly upon the evidence of the publication of the notice; that was one of its clearest prerogatives, and though it may be admitted that the court wrongfully decided, its decision was simply an interpretation of law that could have been corrected if made the subject of direct review in this court; it could not be annulled by the Circuit Court of Pulaski county, as would have been done if the objection of the plaintiffs to its introduction as evidence had been sustained on the trial of this action of ejectment.
There was then no error in allowing the decree to be read in evidence, nor in not allowing the rebutting evidence of the plaintiffs to destroy it.
The fifth and ninth instructions of the plaintiffs were rightly refused, and the first instruction of the defendants was correctly given to the jury, those of the plaintiffs denying the decree to be of any effect, for the defect in the proof of the notice, the other affirming its conclusiveness, irrespective of the defect.
There were no facts in the case, as shown by the bill of exceptions of the plaintiffs, upon which the seventh and eighth instructions could be founded. •
They were to the effect that if the décree was obtained by fraud, or should so appear to the jury, they should disregard it in making up their verdict.
Doubtless, whatever is fraudulently done, should, wherever done, be liable to be questioned for its fraud, but in the application of even a legal axiom, if such a thing can be, great caution is requisite less a misapplication of the principle work equal injury to its denial. And it would be an alarming doctrine to establish, that a jury, on the issue of not guilty in an action of ejectment, could find a decree to have been fraudulently obtained, from their own inspection of what is on its face, and in the proceedings of the case, though referred to “other circumstances” tobe taken in connection therewith, but with no instruction of what (the facts must be, that they may consider to be such “other circumstances.”
The allegation in Ball’s petition, that the notice was proven by the affidavit of the editor or publisher of the newspaper and when the affidavit is itself produced in. the case, and does not contain any statement known to Ball to be false, is nothing to establish fraud, or to afford reason for its inference.
And in the whole case in which the decree was rendered, as shown by the decree and deed introduced by the defendants, and by the original papers read by the plaintiffs, there was no peversion or concealment of such material fact, nor false statement unaccompanied by the means of its detection, as could induce the court to do otherwise than it did decree.
It is claimed that in the confirmation of tax titles by our statutorj decrees, a more stringent rule of construction must be applied to them than to other decrees; that, as being founded on a summary proceeding, everything both to show the jurisdiction, the manner of its exercise, and the evidence on which it was rendered, must be set forth in the decree. If the proceeding be summary simply because it is out of the ordinary course of trial, because not affording a trial by jury, or by the rules of the common law, which is the definition of a summary proceeding in Bouvier’s Law Dictionary, or because trial is had for the purpose of operating upon the property seized, it is not perceived why any rule of construction, or admissibility in evidence, should be applied to a decree of confirmation, than is applied to decrees rendered in our usual chancery practice upon constructive notice, or to judgments at law in attachment cases. The notice that is given is much more ample, before a decree confirming a tax title can be given, than what is sufficient to call for a decree fro confcsso in suits prosecuted by the general chancery practice.
A decree rendered upon notice by publication for six weeks successively, the last one six months before the term at which the decree is rendered, cannot be more summary, in the sense of being speedy, or without probable actual notice, than one given after two insertions in a newspaper with the intervention of only four weeks between the publication and the decree pro confesso.
Nor is the proceeding summary in the sense that a judgment, or rather an execution, upon our delivery bonds is summary, where from the actual or alleged signing of a name to a delivery bond, a party is subject to have his property seized in execution, without an opportunity of confessing or denying the act upon which his liability rests; nor is it summary in the sense of the Tennessee proceeding shown in Igiehart vs. Moore, 16 Ark. 246, where a security in an injunction bond, upon proof of payment of the amount enjoined, may have a decree against his principal for the amount paid, without notice of the decree, or of any of the previous steps by which it is supported.
We think that a confirmation decree is admissible in evidence, when and as any other decree given upon constructive notice, and that with due reference to the law by which it is regulated, no more strictness is required in its recitals, than is required in other decrees.
There being nothing further that need be noticed in this branch of the case, as arising upon the bill of exceptions of the plaintiffs, the judgment of the Circuit Court of Pulaski county, so far as relates to the west-half of section 12, township 1, south 11 west, must be affirmed. | [
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Mr. Justice Fairchild
delivered the opinion of the court.
Hubbard being the owner of the Burton place, in Spring Hill, received a letter from Gray, proposing to buy it for three hundred dollars.
Hubbard replied that he could have the property, that he had been waiting on another person, to whom he had offered it for four hundred dollars — other letters passed, and conversations were had between the parties upon the subject, but none in which any further agreement of the price to be paid was made; and in the meantime Gray had taken possession of the place.
When the agreement came to be perfected by deed and payment, Hubbard understood that he was to have four hundred dollars, and Gray that he was to give three hundred dollars for the property. The negotiation was broken oiT. Gray abandoned his possession of the property, and Hubbard brought his bill for a specific performance of Gray’s contract of purchase at four hundred dollars.
As we construe the evidence, Gray never promised to pay four hundred dollars for the property. He wrote to Hubbard offering three hundred for it, Hubbard wrote back that he could have it, and that could only mean, that he could have it for what he proposed to give; and if Hubbard had offered to let another man have it for four hundred dollars, that is no reason why Gray should give one hundred dollars more than he agreed to give.
The Circuit Court, sitting in chancery, properly dismissed the bill, and its decree is affirmed. | [
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Mr. Justice Fairchild
delivered the opinion of the Court.
Under an act of Congress, approved 24th May, 1828, John Ross, by virtue of having had a settlement in the country ceded by the United States to the Cherokees, and of having been obliged to remove therefrom, on account of the cession, was entitled to enter any two quarter sections of land, the sale of which was authorized by law, unless there might be an improvement of an actual settler .upon the lands; in which case, no entry of such lands could be made, without the written consent of the settler, before the lands should be offered for sale.
The entry was to be made without any price paid, the consideration for the lands being the abandonment of the settlement in the ceded country, made necessary by the treaty between the United States and the Cherokee Nation, ratified the 23d of May, 1828.
But with the character of these donation claims, and with the construction put upon them by this court, and with the questions growing out of their proof and assignment, the legal profession of this State must be familiar, from the cases in which such claims have been before the court. See Logan vs. Moulder, 1 Ark. 319; Gaster vs. Ashley, Ib 329; Nicks vs. Rector, 4 Ark. 279; Mays vs. Johnson, Ib. 613; Finley vs. Woodruff, 3 Eng. 339; Johnson vs. Mays, Ib. 386; Barnard vs. Ashley, 18 How. 48; Witherspoon vs. Duncan, 21 Ark.
The claim of Ross was proven and allowed by the land officers, as prescribed in the act of Congress, and was ready for location in his lifetime, but at his death it still remained in his possession unlocated, and no disposition was made of it in his last wall, unless, as contended by the appellants, it passed under the denomination of goods and chattels, to his widow, Rachel Ross. That description of property was given to her by will, to be used as might be necessary for the support of the family and education of the children, of whom there were eight, three older ones, however, being married daughters.
The bill charges, that shortly after the death of Ross, his donation claim was located upon the south-west quarter of section twenty-four, and the north-east fractional quarter of section twenty-three, in township nine, north of range thirty-two west, in Crawford county; that a patent was issued for said lands, which was in the possession of John Drennen, one of the defendants.
The bill is exhibited by David Walker, who claims the interest of Thurza Alexander, a daughter of John Ross, by its purchase from her and her husband, Samuel Alexander, by James Rowland and Eliza his wife, by William Black and Chenee his wife, by Robert Reeves and Mahaly his wife, the said Eliza, Chenee, and Mahaly being daughters of John Ross; by John Couch, the husband surviving Ann Couch, his. wife, another daughter of Ross, and by her seven children, and the husband of one of them; and by Benoni Ross, an infant son of John Ross, against Rachel Ross, the widow of John Ross, Miranda Couch, a daughter of the same and widow of George Couch, Peter Ross, a son of John Ross, John Drennen and others, who are represented as holding parts of the quarter sections of land above described, under Drennen.
And the object of the bill is to have the lands so located with the donation claim of John Ross, and that were patented thereon, decreed to be the lands of the heirs of John Ross, and of those who have succeeded to their rights, and to have them partitioned or sold, and the proceeds divided in accordance therewith.
Aside from the vai’ious defences interposed by Drennen, and those claiming under him, tending to defeat the suit entirely, and to claim the benefit of large expenses made by Drennen, to secure the location upon the located lands, and of improvements put upon the lands by Mussett, Henry and Scott, it appears that before the institution of the suit, he, Drennen, had acquired the right of Perry Ross, a son, and one of the eight heirs of John Ross and a defendant to the bill; and that while the suit was pending, he purchased two of the interests demanded in the bill, those of James Rowland, and of Eliza, his wife, and of William Black and Chenee, his wife.
The court below, therefore, in maintaining the claims set forth in the bill, awarded to Drennen’s representatives, he having died before final decree, three-eighths of the two quarter sections of land, but disallowed his claim to remuneration for expenses incurred in making the location, and the claims of Henry, and Scott and wife, for improvements, by either awarding compensation for them, or by directing Ihe partition to be so made as to set off the land and improvements to Drennen’s representatives, or to them and Henry and Scott and wife.
The court directed partition to be made as follows:
Three-eighths to Drennen’s heirs and widow.
One-eighth to the husband and children of Ann Couch, deceased.
One-eighth to Miranda Couch.
One-eighth to Robert Reeves and Mahaly his wife, in right of the wife.
One-eighth to Benoni Ross.
And one-eighth to David Walker, as succeeding to the right of Thurza Alexander, wife of Samuel Alexander, as by purchase from them; all subject to the dower right of Rachel Ross in the two quarter sections of land.
The defendants, Catharine Drennen, as administratrix of John Drennen, John Henry, and Charles G. Scott, appealed.
Besides the objections that are made to the decree, that affect the interests of all the heirs of John Ross, it is urged specially against Walker’s claim, that it is barred by the statute of limitations, and that it is speculative and champertous. This claim is the interest of Thurza Alexander, the oldest daughter of John Ross. She was the wife of Samuel Alexander at the death of Ross, as shown by the will of Ross, made 18th of May, 1830, in which she is described as Thurza Alexander, as admitted by the answer of John Drennen, as implied by the deposition of Peter Couch, and as found by the court below.
On the 10th of April, 1848, the date of the deed from Samuel Alexander and his wife to Walker, the same Thurza Alexander was living under the disability that had attached to her from the time of her marriage, before the will of her father was made. The statute of limitations then never began to run against her.
It began to run against Walker from the date of his conveyance from Alexander and wife, but from that time until the beginning of this suit, the 28th of November, 1850, it had not been running long enough to bar such demand as the deed to Walker authorized him to make.
The objections made to Walker’s purchase, because it has resulted in a suit promoted by him, because he was a lawyer, and his vendors were not in possession of what they sold, and Drennen was in adverse possession, hardly need to be answered as our statute allows a person to sell and convey his interest in real estate, though it be in the adverse possession of another. And if it were a material fact, which it is not, that Walker expected to gain the benefit of his purchase, only by the compulsion of legal process, there is no evidence of such expectation on the part of Walker. And we do not know of any law to prevent an attorney from buying such claim to real estate as he may choose to buy, where there is no question of professional relation or confidence between himself and the parties affected by the purchase, although, in a proper -case, we would not hesitate to characterize as unbecoming in a lawyer, to speculate upon the ignorance of others, or upon his own professional knowledge, so as to buy up stale or doubtful claims, or such as the parties selling might not know the value of, and for the purpose of enriching himself without regard to the rights, or the merits of the holders of the property.
In this case no suit was pending; whether any was in contemplation, we are not informed. The purchase, then, was not a champertous contract.
And Walker being a lawyer, and if aware of the facts of the case, as charged by Drennen’s answer, might have considered the rights of the heirs of John Ross and of Drennen to be as they were declared by the court below, and might have expected to obtain, without suit, such avails of his purchase as he might suppose wrnuld be commended to Drennen’s sense of jus tice, or as would accrue from his receiving and being governed by sound legal advise
Walker, then, stands upon equal footing with the other plaintiffs; and they all have a right to sue for the lands mentioned in the bill, and to receive their portion of them, if their rights thereto be good, unaffected by limitations or lapse of time.
The bill presents an apparently good case for the rights of the heirs, and assignees of the heirs of John Ross, to the lands in question: yet from its meagre statement of facts, that would seem subject to some sort of explanation, we naturally refer to the answers to ascertain why it was, that the patent issued upon the donation claim of John Ross, should be in the hands of John Drennen, and why the lands located and patented should be held and enjoyed by Drennen and his representatives. And upon this point, the joint answer of Rachel and Perry Ross, and the answer of John Drennen, and its accompanying documents, afford full information.
From these we learn that David Thompson, and the defendant, John Drennen, in 1835, in Crawford county, were engaged together in trade, as merchants, and that they extended their partnership business to the purchase of such donation claims as that of John Ross, of which many were in market, as averred by John Drennen; that the claims so bought were located by Thompson for the benefit of the firm, upon such valuable lands as he might select.
The answers of Mrs. Ross and Drennen agree in alleging that, on the 13th of April, 1835, at the house of Mrs. Ross, in Crawford county, Drennen consummated with Mrs. Ross a contract for the purchase of her husband’s donation claim, for three hundred dollars paid to her; and that Drennen then took a bond from her, as executrix of the will of John Ross, and as his heir, in w'hich she bound herself to make an absolute title to such lands as should be located with the claim, whenever a patent should be issued for the lands. She, also, at the same time, executed apower of attorney, authorizing Thompson, or his substitute, to locate the claim wherever he pleased.
Mrs, bioss was an illiterate woman, as she avers, and as is shown by the execution of the instruments by her mark. Drennen was well acquainted with her, with the fact of her husband having left eight children; the deed and letter of attorney were executed at the house of Mrs. Ross, and, apparently, without the advice of any disinterested person, and we cannot doubt that Drennen procured the instruments to be drawn up, and executed by Mrs. Ross, as executrix, and as heir of her husband, knowing that Mrs. Ross was not the heir of her husband, and that she was not the person to whom John Ross committed the administration of his estate, she having taken out letters of administration, annexed to the will, upon the refusal of the appointed executor to qualify and execute the trust.
Drennen also knew that Mrs. Ross could not confer any title to the lands to be covered by the donation claim, as, when he came to locate it upon the lands in controversy, he presented an application therefor, signed by himself with the names’ of the children and heirs of John Ross, and at the same time told Samuel Alexander, the husband of one of the heirs, and the person who was appointed executor in the will, and whom he looked upon as the adviser of the family, that he should have to derive his title to the lands he was then locating, from the children and heirs of John Ross.
This application wap made the 28th of September, 1837, but the entry was not perfected till 1838, and Drennen is chargeable with knowledge of the act of Congress, approved 20th of May, 1836, which provided that where patents for lands should be issued to a person who had died before, the title to the lands should be vested in the heirs, devisees or assignees of the deceased patentee, as if the patent had issued to him during his life. Land Laws, part 1, chap. 489, p. 540.
Drennen then obtained the donation claim, knowing that his payment for it to Mrs. Ross could not invest him with any title to the lands he might locate with the claim, and he therefore secured himself by the bond of Mrs. Ross, in the penalty of two thousand dollars, by which she could only be relieved from refunding the amount paid to her, with interest, by procuring, by favor or accident, that to be done, which she had no power t® accomplish.
A reference to the act of Congress, above cited, is a sufficient answer to the arguments, made here for the appellants, that Mrs. Ross had a right to sell the donation claim, as she did, to Thompson, or to Drennen.
And if any more pertinent or personal reason should be desired to overthrow any inference favorable upon this head to Drennen, the record amply affords it, in the agreed statement of facts, in showing that the-bond of Mrs. Ross was to be satisfied only by the execution of a deed to Drennen of the lands located by the heirs of John Ross.
But without reference to the law of the case, the disavowal by Drennen of his contract with Mrs. Ross, which was complete by his suit upon the bond, and by his recovery of the amount he had paid to her for the donation claim, with interest, and by his obtaining satisfaction in full of the judgment, all of which stand admitted on the record, and with like effect as if properly set out in the pleadings, estops him and his representatives from claiming any benefit on the alleged purchase of the donation claim from Mrs. Ross, or from his payment to her of three hundred dollars.
The purchase he has denied to be effectual in law; the money paid he has acknowledged to have reclaimed, with interest.
Then, in the location of the donation claim, and in holding the lands obtained by it, Drennen must be held to have acted as an agent for the heirs of John Ross; and, except as to his own interest in the lands, was accountable to the heirs -whose interest had not been transferred, and to Walker, the assignee of one of them, to make title to them of their respective portions, or as holding the title in trust for them.
S> As to the three-eighths awarded to the representatives of Drennen, although two of the shares were acquired from the plaintiffs, and during the pendency of the suit, as there is no appeal by any of the plaintiffs, we shall not disturb the decree of the court below in this respect, and shall hold that Drennen was tenant in common, and to the extent of three-eighths, with the others that were held by the court below to be entitled to the lands.
And this interest of Drennen’s must also be held free from any dower claim of Mrs. Ross. For such claim must be determined according to the law in force at the time of her husband’s death. And her husband, when he died, had no such seizin or possession of the lands in controversy, by virtue of a deed, patent, entry, warrant, or survey, or otherwise, as to entitle her to dower. Steele Sf Me Campbell Is Dig. 210. And the act of Congress before cited, so far as it may affect this question, vests the title carried by the patent issued after the death of the patentee, in the heirs alone.
With this modification of the decree, we are content that it should stand as declaratory of the interests of the respective persons entitled to the lands located by Drennen with the donation claim of John Ross.
Yet this affirmance is but an abstract declaration of the law, as being coincident with its administration by the court below, until the more important questions growing out of Drennen’s expenditures in procuring the location upon the lands in controversy, and out of the improvements of Mussett and Scott and of Henry, are resolved and the interests of the parties, as thereby affected, are determined.
The cross bill of Mrs. Ross being quashed, upon demurrer, and no complaint thereof being made, it forms no part of the record.
And the view which has been taken of Drennen’s conduct, in suing Mrs. Ross on her bond to make title to the lands patented upon the donation claim, and in recovering from her the amount of the purchase money paid for it, with damages, makes it unnecessary to notice other points raised by counsel for the appellants, and particularly those touching the want of acknowledgment of the two Couch women to the deed of 23d July, 1842, and of Tebbetts’ testimony showing their separate acknowledgment before him as a justice of the peace, and of his omission to make the indorsement thereof upon the deed— touching the alleged minority of Benoni Ross and Mahaly Ross, now Mahaly Reeves, and touching the kind of interest, or estate, that the donation claim represented when bought by Drennen of Mrs. Ross.
Drennen, in his answer, correctly stated the law, that the donation claim of Ross could not have been located on the lands that were selected, without the consent of such persons as were settled on the lands. And he averred that Tyree Mus-sett had a right of pre-emption to the south-west quarter of section twenty-four, and that David McClelland also lived on the same quarter section, and that Joseph W. Spivey was a settler, and had an improvement upon the north-east quarter of section twenty-three, which would have soon ripened into a pre-emption right, had he continued his residence thereupon; and that, to secure the location upon the two quarter sections named, it was necessary for him to procure the consent of Mussett, McClelland and Spivey; that, to obtain the consent of Mussett, he agreed to convey to him the east half of the southwest quarter of section twenty-four, which included his improvements, which he avers that he did, and proved it by Mussett, though the deed is not brought upon the record of the case. That he made an agreement with McClelland and Spivey for their consent to the location, and obtained their verbal consent thereto, which was retracted by them upbn a misunderstanding of the terms of the agreement, which was not in writing, but that, upon the first of January, 1858, he obtained their consent to the locations, and their withdrawal of their protests against the same, which was in writing, and is exhibited with his answer; for which last consent of McClelland and Spivey he paid the latter six hundred dollars in cash, and agreed to convey to McClelland ten acres of the south-west quarter of section twenty-four, including his improvements; which agreement was perfected on the 25th of June, 1840, by a conveyance of the ten acres to McClelland, John C. Picket, and John Gregg.
The answer of Drennen also states that Mussett afterwards desired to sell his eighty acres, the east half of section twenty-four, and upon the 30th of September, 1843, conveyed to'Drennen the same, for the consideration of three thousand dollars paid to Mussett by Drennen.
Drennen therefore claims that if partition of the two quarter sections was to be made, the court below ought to have allowed him, againt the other claimants, to the extent of their interests, for the three thousand dollars paid to Mussett, for the ten acres that was the subject of compromise between him and McClelland to obtain the consent of the latter to the location, for the six hundred dollars paid to Spivey, and for the three hundred dollars paid by him to Mrs. Ross, as the price of the donation claim.
And Henry, another defendant, who holds under Drennen in severalty about two acres of the south-west quarter of section twenty-four, claims to be reimbursed for his improvements to an amount equal to their cost, about seven thousand dollars, or to their cash value, when they were the subject of testimony, which was about five thousand dollars; while Charles G. Scott & wife, who hold twenty acres of the eighty that were deeded to Mussett and by him reconveyed to Drennen, under a deed of gift from Dennen to his daughter, Mrs. Scott, wish to have Mussett’s improvements worth three thousand dollars, and the improvements that they have added thereto, to the value of nineteen hundred dollars, allowed to them, should these premises be included in the partition sought for by the appellees.
And Drennen also claims that if the sale by Mrs. Ross of the donation claim was not good to conclude the heirs of John Ross, it was effectual to pass the dower interest of Mrs. Ross. Or, as an alternative mode of defence, Drennen and the defendants interested in the improvements, ask that, upon partition, Drennen’s share should be so laid off as to include the improve- merits of Henry, and Scott and wife, and without their being brought into the account of the value of the patented lands.
The claim that Mrs. Ross passed her dower interest, if nothing else, by her sale to Drennen, was disposed of, when we decided in fnvor of Drennen, that his portion of the lands are to be held free from any dower incumbrance of Mrs. Ross.
Yet were it not so, this claim and another ope pressed in Drennen’s answer, that of having refunded to him the three hundred dollars paid to Mrs. Ross for the donation claim, could not be allowed, because Drennen, by his proceeding upon the bond of Mrs. Ross, had precluded himself from having any benefit of the purchase, or of any thing afterwards done towards its confirmation.
Drennen bought the donation claim of Mrs. Ross, he located it upon an application signed with the names of the children and heirs of John Ross, upon which a patent could only issue, as it did, to the heirs of Ross. When the patent issued, the estate in the lands vested in the heirs, the same as if the lands had been located by and. patented to John Ross in his life time, and had upon his death descended to his heirs. If Drennen had obtained a valid deed from the heirs, the lands would have been his, but not succeeding in this, he chose to consider his purchase from Mrs. Ross invalid, and indemnified himself for the money paid to her for the donation claim, by a recourse to the bond, which he exacted from her, to give him a good title to the lands to be located.
By that act, whatever might have been his intention before, he acknowledged himself to be the holder of the located lands, for the benefit of the heirs of John Ross; and he was purely their agent, till for an additional consideration and by a new contract with Perry Ross, he became a tenant in common with the other heirs, entitled to an undivided eighth part of the lands.
But if subject to the responsibilities of an agent, he must also have the rights of one.
By this suit the plaintiffs are ratifying the location of Drennen their agent: they are claiming the benefit of it by wishing to have it partitioned among themselves and others; and they ought to take the location as Drennen made it, with the burdens that he had to carry, with the expenses that he necessarily incurred in securing the location, and whether Drennen had the authority to bind the Ross heirs by incurring for them such expenses as he did incur, or whether the location might not have been made with less expense, are not questions now to be decided. The plaintiffs ask for the benefit of the location, and if they have it, they ought to take it as it was made; not as it might have been, or ought to have been made.
“ When an agent, wdthout competent authority, makes a contract, a subsequent ratification by the principal relates back to the time when the agent acted. The ratification is equivalent to an original authority; it is considered in law as furnishing proof of an authority in the agent at the time he assumed to have it;” per Marcy, Judge, in Maclin vs. Frith, 6 Wend. 112.
“ If you adopt De Beaume as your agent in your own behalf, you must adopt him throughout and take his agency cum onere”— Lord Ellenborough, in Howell vs. Pack, 7 East. 164.
But it is of course necessary for Drennen to have made proof of his expenditures, to be allowed them, and the examination of the evidence to support the compromises made with McClelland and Spivey, and the allegation of three thousand dollars paid to Mussett, may be our next step in the case.
Drennen alleges that Spivey was a settler upon the northeast quarter of section twenty-three, that he could procure his consent to the location only by paying him six hundred dollars, w'hich he accordingly did.
Spivey proves the payment of the money to him as alleged by Drennen, but he does not prove that he was a settler upon the quarter section described. The description of his location does not support the allegation. He deposes as follows: “ I held as 1 supposed, a pre-emption right in 1838, to what I then considered, and now consider the north-east quarter of section twenty-three, town nine north, range thirty-two west.”
Now, what Spivey considered to be the north-east quarter of section twenty-three, may be so, or may not be so, but the fact alleged is clearly not proven by him, unless the grounds of his consideration were shown to be good by his acquaintance with the land. And where the matter to be proven is the identity of a piece of land, and the means of establishing it depend upon the notorious marks and lines of the public surveys, the conjecture of no person ought to be taken as evidence of the fact. And Tyree Mussett, the only other witness, who testifies to Spivey’s locality, says that he lived on the west half of the south-west quarter of section twenty-four.
It then is not proven, that it was necessary to obtain the consent of Spivey to, locate the north-east quarter of section twenty-three, or what is more material, the allegation in the answer, that he had a settlement on the quarter section, is not sustained.
And there are, difficulties in upholding the averments as to the eighty acres, and the ten acres in the south-west quarter of section twenty-four, alleged to have been conveyed to obtain the consent' of Mussett and McClelland to the location! For the only proof of the allegation that ten acres were conveyed to McClelland, Pickett and Gregg, as a compromise with McClelland, is to be found in Mussett’s deposition, in which he says that Drennen, to satisfy the claim of McClelland, gave to him a deed of ten acres of land.
This does not show the land to be of the south-west quarter of section twenty-four, and is variant from the answer and exhibit in the want of mention of two of the grantees of the deed.
And Mussett’s testimony as to his own interest, is entirely different from the statement of it in the answer, so far as relates to its transfer from himself to Drennen, for the answer only claims three thousand dollars to have been paid to Mus-sett for the eighty acres that Drennen is said to have deeded to him, to obtain his consent to the location, while Mussett’s deposition, as positively as testimony can, shows six thousand dollars to have been paid to him for the eighty acres — three thousand for the improvements and buildings, and an acre of land, and three thousand dollars more for his claim to the residue of the eighty acres.
Probably the amount paid by Drennen to Mussett in 1843, would not be important as that was not the price of Mussett’s consent to the location. It was for eighty acres of land, the •east half of the south-west quarter of section twenty-four, that Mussett, the first of January, 1838, gave his second written consent to Drennen’s location of that quarter section, and whether that was then worth three or six thousand dollars, or some other sum, nothing in the case gives us any information. Yet, if the claim for three thousand dollars was made upon the supposition that the purchase of Mussett’s eighty acres in 1843, was the measure of its value in 1838, the case proven.is better than the one alleged. Though it may be inferred that the claim rests upon the ground, that the whole south-west quarter of section twenty-four is not liable to partition, but upon allowance of what Dren,nen paid for it as a purchase, as if the payment had been made to secure its location.
Notwithstanding these difficulties, if the case had to be decided upon these incidents to the location, we might be able to render a decree satisfactory to ns, or the case could be reman-, ded for further proof.
But connected with this question of expenses, is the condition of that part of the south-west quarter of section twenty-four, as affected by the improvements of Henry, and Scott and wife, and the two may well be considered together in determining how the partition should be made between the parties entitled to the land. t
These improvements were shown by the testimony to be worth, at the time the depositions were given, eight or ten thousand dollars. And for the purposes of this suit they will be held to have been made by Drennen, having in fact been made by persons holding under him.
Drennen, from 22d August, 1842, was h tenant in common with the heirs of John Ross, except Perry Ross, and at the time of the decree of the Circuit Court, held jointly with the plaintiff Walker, and the four heirs of Ross, who had not transferred their interest.
Then, improvements having been made of the value indicated, at the time of the decree, by Drennen, they were properly made by Drennen, although without the assent of his co-tenants, and without any promise by them to contribute to their payment. And although they do not constitute a lien upon the estate, yet the court below, in decreeing a partition, should have taken them into consideration by granting compensation for them, or by awarding to Drennen that part of the southwest quarter of section twenty-four, on which the improvements were. 1 Story Eq. see. 655, 656, b.; Green vs. Putnam, 1 Barb. Sup. C. R. 507; Borah vs. Archer, 7 Dana 177; Respass vs. Breckinridge, 2 A. K. M. 587.
Ordinarily, correlative to the question of improvements is that of rents and profits, though in this case, for the rents and profits resulting from the improvements of Drennen, the other parties in interest might have no claim. Nelson vs. Clay,7 J. J. M. 140; St Felix vs. Rankin, 3 Edw. R. 324.
A tenant in common having a right to improve the land, without the consent and against the will of his co-tenant, but having no lien upon it for his improvements, can only be indemnified therefor by partition in equity so as to have the improvements allowed to him, or to have compensation for them if thrown into the common mass.
Such is his attitude as a plaintiff, and as a defendant it cannot be worse, unless it can he shown to be equitable, that his co-tenants shall be profited by his expenditures.
Notwithstanding the unfavorable attitude which Drennen occupied in this case, by virtue of his dealings with Mrs. Ross, in the purchase of the donation claim, and with the heirs, in attempting to procure its confirmation, and in claiming the three hundred dollars once received back by him, he is entitled to his equitable rights, when called upon to make partition of the lands among the heirs of John Ross. And according to the well settled rules of equity, on partition he was entitled to have the benefit of his improvements in compensation, or in having the improved premises assigned to him.
Proceeding to modify the decree of the court below, let it be entered as the decree of this court, that the two quarter sections of land in controversy are to be allowed to the several parties as declared by the Circuit Court of Crawford county sitting in Chancery, saving that the three-eighths part of John Drennen’s heirs and representatives are to be free from any claim of dower of Rachel Ross, and that they are to receive, as of their portion, the east ha,lf of the south west quarter of' section twenty-four of township nine north of range thirty-two west, and if the value of that, and the two acres on which is the residence of Henry, exclusive of the improvements, be more than their portion allotted to them, that they make the excess good by payment thereof into court, for the benefit of the partiés in interest; and if they shall still be entitled to more, that they receive it in money from the proceeds' of the sale of the residue of the lands, if there shall be one, or by contributions from the other parties in interest — and that the north-east quarter of section twenty-three and the remaining part of the south-west quarter of section twenty-four, townsnip 9 north, range 32 west, be assigned to the parties representing the remaining five-eighths parts of the interest in the lands, as provided for in the decree of the Circuit Court of Crawford county sitting in Chancery, whose decree herein rendered, as modified is so far reversed, and is otherwise affirmed.
This mode of disposing of the questions at issue between the parties, we think to be eminently equitable, and conformable to the authorities. 1- Story's Eq. sec. 657; Green vs. Putman, 1 Barb. S. C. R. 509; Haywood vs. Johnson, 4 ib. 229; Hart vs. Hawkins, 3 Bibb 508; Sneed vs. Atherton, 6 Dana 281.
And this decree is to be remanded to the court below, that it may be carried into effect, in the assignment, as directed, to Drennen’s heirs and representatives, and in the division, or sale for division of the proceeds of the residue of the lands to those entitled thereto, as declared by the decree appealed from.
The costs in this court are to equally divided between the appellant and the appellees. | [
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Mr. Justice Fairchild
delivered the opinion of the court.
In April, 1853, Cornish, the plaintiff below, and appellant here, became administrator of the goods, etc., of John H. Hines, and as such had possession of a slave called Catren, or Catherine. This slave was replevied by George W. Simms, who, with Gideon Keessee as his security, executed a sufficient replevin bond. Rhoda Hines, the widow of John H. Hines, also sued Cornish in an action of trover for the value of the slave, claiming it as her separate property.
Upon the execution of the writ of replevin, Simms took the negro out of the State. Mrs. Hines then filed her bill on the chancery side of the Union Circuit Court, to have the proceedings in trover and replevin stayed, and the whole controversy as to the right to the negro determined in chancery, on the ground that the claim of Simms was fraudulent, that by taking the negro out of the jurisdiction of the court, he had avoided the effect of any judgment against him, except so far as the replevin bond, with its security, would fix his responsibility; that Cornish had no right to the girl as assets of his administration, but that the trover suit would be unfruitful to her, as a judgment against Cornish would be useless from his insolvency. Therefore she preferred her bill, to settle the right to the negro» and upon its being determined for her, to be subrogated in the place of Cornish to the benefit which he could have derived from the replevin bond. Cornish and Simms were made defendants to this bill, but Keesee was not.
A_degEg.ej»?;o confesso was taken against Simms, his claim to the negro was declared to be fraudulent and void, and the replevin bond was held to be subjected to the claim of Mrs. Hines, to indemnify her for the value of the slave and her hire.
Cornish answered the bill, denying Mrs. Hines’ right to the negro, and claiming it as assets of the estate of John H. Hines for the benefit of its creditors, and made his answer a cross-bill against Mrs. Hines and Simms.
The matters in issue between Mrs. Hines and Cornish were compromised, and a consent decree was entered, by which Cornish, subject to certain incumbrances, was to hold the slave Catren, or Catherine, as assets of the estate of John H. Hines. And between them, as also against Simms, his replevin suit was perpetually enjoined, and the replevin bond declared to be forfeited, and was ordered to be put in suit against Keesee for the benefit of the administration of John H. Hines, subject to the equities of the decree.
As part of the compromise, Mrs. Hines was to dismiss her action of trover against Cornish.
The replevin bond having been assigned to Cornish, he sued Keesee on it, but failed to recover, as there had been no judgment of return of the property in the replevin suit itself, which position was also maintained by this Court, on appeal by Cornish. See Cornish vs. Keesee, 17 Ark. 391.
Such, among others, are allegations in the bill filed by Cornish in this suit against Simms, Mrs. Hines and Keesee, the object of which is to obtain a modification, or rather, an enlargement of the decree rendered in the suit prosecuted by Mrs. Hines against Cornish and Keesee. A remedy is sought under that branch of equitable jurisdiction which grants relief upon bills of review, which is the style of the bill in question.
It was met by a demurrer from Keesee, which was sustained by the Union circuit court sitting in chancery, and Cornish, by appeal, prays this court to relieve him, as he insists the court below should have done.
Cornish complains in the bill in this case, that the decree sought to be reviewed, should be reversed for its errors in enjoining the replevin suit of Simms, while it was in a condition that no judgment of return of the property could be rendered; that it should have required Simms to submit to such judgment, and that an assessment of the value of the negro, and of her hire, should have been decided to be had in the suit at law, on which judgment could have been entered, in default of the execution of the judgment of return, and that the decree should be conclusive evidence to defeat the claim of Simms.
Serious questions might have arisen as to the liability^ of Keesee, upon a bond which should have been forfeited in the way that the bill of review assigns the decree should have declared the forfeiture, and as much may be inferred from the closing paragraph of the opinion of this court in Cornish vs. Keesee; but without consideration of such matters, the decree dismissing the bill of review must be affirmed by the application of the commonest rules of chancery practice to the facts of the case.
A bill of review, the object of which is to procure an examination and reversal of a former decree that has been enrolled, must be brought upon error of law appearing on the record, or upon discovery of new matter too late to be used in the former suit. Mitf. Ch. Pl., by Jeremy, 101; Lube Eq. Pl. 177.
It does not lie to correct a decision erroneous in its application of proof, or from a misconception of the facts of the case; but to correct a manifest error, into which a court has inadvertently fallen. And the review must be sought in favor of a party who was aggrieved by the former decree, and against a party in whose favor the decree was rendered. Lube Eq. Pl. 178, 179; Whiting vs. Bank U. S., 13 Pet. 14.
In the American practice, a decree is enrolled after the term is passed at which it is rendered, and such a review as seeks the reversal of a former decree for error upon the face of the record, may be filed without leave of the court, but it would be otherwise, where the review was sought upon newly discovered evidence.
In the present case, Cornish was not aggrieved by the decree made, which he now wishes to have reviewed. As against Simms, he took a decree pro confesso, and might^have made it as ample as he was advised his rights required, either upon his cross bill or upon a properly framed pleading: and as between him and Mrs. Hines, the decree, which was doubtless intended to affect Keesee, by making the replevin bond available, was made by consent. The court did not pass upon the matter involved, but merely allowed their compromise to be entered of record to bind themselves, but surely with no design to bind anybody else, and without the effect of conferring new rights upon Cornish, or inflicting burdens upon Keesee, who was not a party to the suitl Clearly, a bill of review will not lie to correct such a decree. Hargraves vs. Lewis, 7 Geo. R. 119; Harrison vs. Rumsey, 2 Ves. 488; Webb vs. Webb, 3 Swanst. 658.
And were it otherwise, if Cornish did not rightly apprehend the influence of his decree, that affords no reason for any reversal, correction or modification of it, by a court, upon a bill of review. Bingham vs. Dawson, Jacob R. 243; Lansing vs. Albany Ins. Co., Hop. R. 105.
And that Keesee was not a party to the suit, in which his interests were to be affected, as they would be, by enlarging the decree against Simms and Mrs. Hines, is not an error that can be corrected in this proceeding. Young vs. Keighly, 16 Ves. 350; Whiling vs. Bank U. S., 13 Pet. 14.
As the decree sought to be reviewed was not made against Cornish, as he cannot be aggrieved by a consent decree, or decree pro confesso, or cannot have the benefit of an after understanding of the force of such sort of decrees, the decree appealed from is affirmed. | [
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Mr. Justice Fairchild
delivered the opinion of the court.
Previous to the 6th of May, 1852, Mitchell Sparks, Felix G, Ake and Zachariah Ilerrib}', as commissioners of Sebastian county, had located the seat of justice of that county at Fort Smith; and also seem to have determined upon putting up a court house on a certain part of block thirty-two, of the new addition to Fort Smith, as surveyed by Langtree, which land was then owned by the plaintiff.
To further this object, and with the expectation that Fort Smith would be the permanent county seat, and the ground so selected the permanent site of the court-house, the plaintiff and his wile, by a deed, absolute on its lace, made a full conveyance of the land mentioned in the bill, to Sparks, Alce and Ilemby, as commissioners, to hold the same to Sebastian county in fee simple forever.
The consideration expressed in the deed is the “ sum of one dollar, as well as for divers other good and valuable considerations, to me in hand paid by Mitchell Sparks, Felix G. Ake and Zachariah Hemby, as commissioners.”
. The deed bore no date, but was made upon the 6th of May,-1852, was acknowledged by Rogers and wife upon that day, and was filed fot record on the 10th of May, 1852.
But because no date was expressed in the body of the deed, the county court was dissatisfied with it; and on the 2d of May, 1854, Rogers and wife made another deed,recitingthe former one and confirming it, which did not, as did the first deed, contain, the statutory words of “ grant, bargain and sell,” but contained covenants of non-incumbrance made and suffered by Rogers, and of general and special warranty against the claim of all persons whatever.
• Notwithstanding the recitals of the first deed, its only consideration was the erection of a court-house upon the ground conveyed, and there was also an agreement between Rogers and the commissioners, that if, by the refusal of the county court, or otherwise, a court-house should not be built upon the ground, or if it should be used for any other purpose than for a site for a court-house, and other necessary public buildings for the seat oi justice tor the- county, the ground was-to be reconveyed to Rogers.
After the first deed was made, and before the execution of the second deed, the commissioners, with the consent of the county court, had let out a contract for building a court-house on the ground conveyed, and the court-house was in the course of erection when the second deed was made. This deed made at the instance of, and for the satisfaction of the county court, absolute on its face like the other, but intended by Rogers to be conditioned like the other, although there was no condition agreed to by the county court, nor were they informed of the agreement of reconveyance made between Rogers and the commissioners, from anything that appears upon the bill.
The second deed "was accepted by the county court, was acknowledged before its presiding judge the day of its execution and was the same day filed for record.
Soon alter this, the work upon the court-house stopped, the contract for its building rescinded, and in 1855 new commissioners were elected, and re-located the county seat eighteen miles from Fort Smith.
, Such are the main allegations of the bill, which was taken as confessed.
But upon final hearing the county contested the plaintiff’s right to a cancellation of the deeds, and to a reinvestment of ’ the tille to the ground conveyed, which was the object of the . bill, claiming the same as her own absolute property, conveyed to her, free from, condition, by the general law, and necessarily so received by her commissioners, under the law in sec. 12, ch. 44, Gould's Dg.
. The court below held the defence to be good, and dismissed the bill. Rogers appealed.
No authority has been cited, on the part of the appellant, to show that a deed, absolute upon its face, can be avoided by a subsequent condition resting upon a parol agreement.
All the citations made for the appellant that affirm the effect of conditions, relate to conditions written in the grqnts.
And with our notions of the worthlessness of parol defeazances to the conveyance of interests expressed in the deed to be absolute, without authority inducing to the contrary, we should, upon general principles, affirm the decree in this case. But the affirmance of this decree need not rest on general principles.
By the 10th section of the act establishing the county of Sebastian, Acts of 8th session, p. 83, it was enacted that the commissioners of Sebastian county should be subject to the restrictions then resting by law upon county commissioners, one of which restrictions is not to receive title deeds that con rey lands to ihe county in fee simple with reservation or condition, whether the same accrued from donation or otherwise. Gould's Dig., src. 12, ch. 44.
The commissioners, then, had no power to receive any donation of land from Rogers with a reservation or limitation expressed in the deed; and, if so, they certainly had no right to attach a condition to Rogers’ absolute deed by parol agreement.
This Rogers knew, or was obliged to know, it being the public law. The State vs. Allis, 18 Ark. 276. He also knew that the county could not be bound to continue the county-seat permanent!}' at Fort Smith, or the court-house upon the ground conveyed, as the County Court had full jurisdiction and power to remove the county-seat upon legal cause. Blackburn Ex parte 5 Ark. 22.
No such contract of reconveyance to Rogers, as alleged in the bill, could have been lawfully made. Elwell vs. Tucker, 1 Blackf. 286.
And without the restrictive provision of the Statute, the location of the county-seat could not be made to depend upon a contract with Rogers. The authority of the commissioners was to locate the county-seat with reference to the interests of the county alone, and not to make contracts fettering the free and legal action of the County Court, or sacrificing the property of the county. Armstrong vs. The Board of Commissioners, 4 Blackf. 214.
The following extracts from an Opinion of the Supreme Court of Illinois, upon a case such as this would have been but for the restriction upon the commissioners contained in our law, are applicable, and meet with our approval:
“ Nor was there any covenant or agreement that the money should be repaid; or that the land should revert, which had been donated to the county by the proprietors of Postville, under the several acts of the Legislature, to induce the location of the county-scat at that place. When the money was paid and the land conveyed, the donors knew that the county-scat might, when the good of ihe community should require it, be changed; and it must be presumed that they acted in view of such a contingency. Had tht-y intended to guard against the consequences of such a removal, they should have made an express agreement or reservation to that effect in the deed. So far from that, they made an absolute conveyance, without any reservation whatever. Even had an express agreement been made, at the time of the conveyance, that the land should revert in the case of the removal of the county-seat, it could not be proved by parol, but should have been expressed on the face of the deed, or at least in a separate writing.” Adams vs. The Comity of Logan, 11 Ill. R. 339.
Upon general principles, and upon law specially applicable to this case, the decree is affirmed. | [
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Mr. Justice Compton
delivered the opinion of the Court.
The Memphis and St. Francis Plank Road Company declared against the appellees in an action on the case for disturbance of their franchises.
The appellees pleaded, 1st. Not guilty; and 2d. Nul tiel corporation. On issue joined, a trial was had, and the verdict and judgment were for the appellees.
To maintain the action, the appellant, after reading in evidence the act of incorporation, approved January 10th, 1851, andan act amendatory thereof, approved January 4th, 1853, and proving by parol testimony — which was not objected to— the organization of the company, offered to prove the appointment of an agent, by the board of directors, to solicit the passage, by the Legislature, of the act of January 4th, 1853, also, the filing in the office of the Secretary of State, the declaratory statement of said agent, accepting in behalf of the company, said act as an amendment to their charter, and also the subsequent proceedings of the board of directors, ratifying and adopting all that their agent had done in the premises; but the court excluded the evidence and the appellant excepted.
The appellant then offered to prove the appointment of certain commissioners, pursuant to the provisions of the amended charter, whose duty it was to view said road and make report in respect thereof, as also the report of the commissioners in that behalf; but the court refused to permit the evidence to be read to the jury, and the appellant excepted.
The appellant then offered to prove the construction of the road, the erection' of toll gates thereon, the collection of toll, and other acts of user under the amended charter, the value of the road, the amount of toll received annually, and, also, acts of interference with the road by the appellees — all which the court excluded, and the appellant excepted.
For the appellees it is insisted in argument here — 1st. That-all the evidence offered and rejected, was inadmissible, because the statute creating the corporation in this case, required certain acts to be done before the corporation could be considered in esse, and no evidence being introduced or offered to prove that those acts had been performed, that therefore the corporation had no existence. 2d. That so much of the evidence as relates to the acts of the company, alleged to have been done under the amendment to the charter, was inadmissible, because the amendment was not accepted by the company.
1. It has been decided by this court in Hammett vs. Little Rock & Napoleon R. R. Co., 20 Ark. 204; that where, the statute creating a corporation prescribes something to be done after the passage as a condition precedent to the legal existence of the corporation, the thing thus required must be performed, otherwise the corporation has no existence; and of this character is the act incorporating the appellant.
It required that books of subscription should be opened at different places; and that when the sum of $50,000 should be. subscribed, the central board of commissioners were required to. call a meeting of the stockholders, who should elect, from among their number, nine directors, who', when so elected, should choose a president from among themselves, etc.; and the 9th section provided, that when so organized, the com pany should be capable of suing and being sued, and of doing all and every thing, which it would be lawful for any corporation or body politic to do, etc. Pamphlet Acts, 1850, p. 287. The organization of the company was proven by the deposition of the witness, Kay, who stated that he was present when the directors and officers, required by the charter, were elected, and that the company then proceeded to construct the road. This was at least prima facie sufficient to show that the previous requisitions of the statute had been complied with, and that the corporation then had an existence. Wood vs. Jefferson co. Bank, 9 Wend. 194; Dulce vs. Cahawba Navigation Co., 10 Ala. 82.
- 2. By the 7th section of the amendatory act, it was provided, that before the act should take effect, the president of the company should file in the office of the Secretary of State, a declaration in writing, acquiescing in the act, and recognizing a liability on the part of the company, faithfully to comply with all its provisions, and also, with those of the act to which it was a supplement. Pomp. Acts, 1853, page 65. We have seen that it was offered to be shown in evidence, that the written declaration here provided for, was made and filed by an agent of the company, whose acts in that behalf were afterwards ratified. This was a substantial compliance with the statute, and the law, in such cases, requires nothing more than a substantial compliance. The intention of the Legislature was that the company should accept the amendment to the charter, in such manner as that the evidence of acceptance might be safely kept and easily obtained, if needed. The acceptance was the essence of the thing required to be done, and the mode of acceptance was merely director}'. As to questions which relate to the power of dealing in a corporate capacity, with third persons, corporations must be limited by their respective charters; but as to those relating to the mere manner of getting into oporation — -of becoming prepared to act — a liberal construction is to be adop ted. Judah vs. The American Life Stock Insurance Co., 4 Ind. 333; Gross vs. Pinckneyville Mill Co., 17 Illi. 56.
The result is, that the court erred in excluding the evidence offered by the appellant. The judgment must, therefore, be reversed and the cause remanded for further proceedings. | [
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Mr. Chief Justice English
delivered the opinion of the court.
On a bill for the specific performance of a verbal contract for the sale of real estate, Jones obtained a decree against McNeill, in the Clark Circuit Court, and the latter appealed to this court.
It must be borne in mind that, by the statute of frauds, verbal contracts for the sale of real estate are void; and that courts of equity, have established the rule of enforcing the specific performance of such contracts in cases, only, wdiere it would be a fraud upon the purchaser to permit the vendor to avail himself of the benefit of the statute. In other words, that the courts of chancery interpose in certain cases in order to keep a statute, which was designed to prevent frauds and perjuries in the sale of lands, etc., from being made the instrument of fraud —As where the purchaser has been let into possession of the land in pursuance of a parol contract of sale, and made improvements, it would be a fraud in the vendor to take advantage of the statute, treat the purchaser as a trespasser, and avail himself of the benefits of his labor, or money expended in the improvement of the property; and a court of equity will interpose to prevent such fraud, etc. Delivery of possession, or the vendee’s entry with the vendor’s consent, and the making of valuable improvements, are such part performance of the contract of sale as will entitle the vendee to a specific execution of the contract. In like manner, payment of the purchase money, and being let into possession are sufficient. And though in some of the adjudications on the subject, the making of improvements, and in others, the payment of the purchase money, is connected with the entry into possession, yet neither of these circumstances is necessary, and possession, though it is strengthened by payment or improvements, is, alone, sufficient to constitute part performance. The reason is, as above indicated, that if the contract were avoided, the purchaser would become liable as a trespasser for taking possession of the land.
The possession, to amount to part performance, must be connected with the contract of sale, and must be in consequence, and in pursuance of it, and intended to be in execution of it.
If the purchaser’s possession has no relation to the agreement, but is on a distinct title, it will not be part performance; indeed, if it can be fairly and reasonably accounted for, without supposing that there was an agreement to sell, such mere possession will not be a sufficient performance.
The possession must clearly appear to have been taken by the known permission of the vendor; and if it be against or without his permission, it will not be availing; but an entry and continuance in possession with the knowledge and acquiescence of the vendor, would reasonably be evidence of his consent. 2 Story Eq. sec. 761-2-3; 1 Vol. Lead. Ca. Eg., Hare & Wallace 568, and cases cited; Gregory vs. Mighell, 18 Ves. 328.
In the case before us, the parties differ, in the bill and answer, as to the terms of the contract.
The appellee alleges in the bill, that in the spring of 1851, appellant was in possession of an improvement situated on two fractional quarter sections of land containing about thirty-nine acres, which he had entered at the land office, etc. That at the time referred to, appellant and appellee had a conversation about the sale of the land, but differed as to the terms. That appellant offered to take a second-hand spinning machine of good quality, and four cows and calves to be delivered in the following autumn, for the land. That the conversation had reference to a particular machine which appellant had not seen, but which appellee represented to be a good one, somewhat soiled by use, but promised to have it-varnised, etc. That they separated without a trade, but in a few days appellee determined to accept the proposition, and prepared two obligations, one for a spinning machine in accordance with the terms of the agreement, and the other for the cows and calves, and sent them to appellant, with instructions to the agent to deliver them to him, provided he was still willing to sell the property on the terms above stated; and that he received the instruments of the agent, said all was right and retained them. That immediately thereafter, appellee took a good second-hand spinning machine, such as was stipulated for, had it varnished, and tendered it to appellant, at the house of one Tennison, but that he refused to receive it, for the alleged reason that it had not a cast band-wheel, etc.; and it remained at Tennison’s where it was tendered.
That before the time stipulated for the delivering of the cows and calves, at the request of appellant, it was agreed that hogs should be given, at the customary price, in lieu thereof; but before the first of January, 1851, it was further agreed that appellant should be paid $40, in pork, which was the customary price of four cows and calves, and that appellee had pork, and sent him word several times to come and get it, which he neglected to do. That appellee afterwards sent appellant word that he could be paid in cows and calves or hogs, just as he pleased, to which appellee received no response. That he afterwards tendered appellant $40, in cash, in lieu of the cows and calves or pork, and he refused to receive the same, stating that he would take the $40, as offered, provided there was some arrangement to pay the balance otherwise than in the spinning machine.
The appellant, in his answer, admits that he and appellee had a conversation, at the time stated, about the sale of the land, but denies that his proposition to sell was on the terms alleged in the bill; on the contrary he avers that he proposed that if the appellee would pay him four cows and calves worth $40, and one cow brute worth $5, he would take a good spinning machine in payment of the balance for the land, on condition that he could sell the machine for $80 cash, but not otherwise. No particular machine was mentioned. That they separated without trading, and they never did conclude any trade about the land. He denies that appellee ever sent him any obligation in relation to the land, except one for three cows and calves and one cow brute, which was notin accordance with his agreement, and which he refused to receive as such, and told the agent who delivered it, that he would return it, etc. That he had not received an j thing inpayment of the land. He admits that appellee tendered him a ^spinning machine, but he avers that he refused to receive it because it was not such a machine as he had proposed to accept; that he told appellee that he would have nothing to do with it, because on enquiry he found that it could not be sold for $80; and that it was not worth more than $15. He admits that he told appellee that he would take pork in lieu of the cows and calves if appellee would pay him $80 in cash instead of the machine; but he failed to comply; and did not pay, deliver or tender in payment for the land the cows and calves, such machine as was stipulated for, or cash, and consequently the trade was never completed, and appellant gave him no title, or bond for title to the land, &c.
There was no witness to the conversation which occurred between the parties in relation to the sale of the land in the spring of 1851. Much of the depositions read upon the hearing relate to the character and value of the spinning machine which appellee offered to deliver to appellant — whether it was such a machine as he proposed to take or not, it was very clear from the evidence that he was not pleased with it, and refused to accept it; and it is by no means clearly proven what the terms of the parol contract between the parties were, or that they ever came to any agreement about the sale.
Appellee alleges in the bill that he took possession of the property, and has had possession ever since, and made improve-. ments thereon worth at least $400. That though appellant had knowledge of his possession and of the improvements that he had made, he had not offered to rescind the contract or given him notice that he claimed the land.
The bill does not allege the time when appellee took possession of the land, nor that the possession was taken under and in pursuance of the contract of sale, or with the consent or permission of the appellant, or lhat he acquiesced in the possession of appellee.
The bill was filed 28th July, 1854.
The answer admits that appellee cultivated part of the land in the year 1852, but appellant avers that he knew nothing of the improvements. That the truth was, that appellant cut the timber and cane from some ten or fifteen acres of the land himself, and that he was informed and believed that appellee had made but little other improvement, excepting the fencing of said land.
The answer was filed the 5th September, 1854, and appellant alleges that he told appellee some two years before then, that as he had failed to comply with any part of the contract it was forfeited, and that he could not have the land, etc.
It does not appear that either of the parties ever resided on the land. It was proven that appellee cultivated a part of the land from the spring of the year 1853, to the filing of the bill; but there is no evidence that he went into possession, or cultivated the land, with the consent of appellant. On the contrary, it is in proof that they conversed about the trade as late as the summer of 1852, and still disagreed about'the spinning machinej and that appellant continued to pay taxes on the land, and cut timber from it while appellee was cultivating 'a portion of it.
It is by no means clearly made out that there was such part performance of the verbal contract of sale (if the parties ever agreed in any) as to take it out of the statute of frauds, and entitle the appellee to specific performance. On the c'ontray, the case affords an apt illustration of the disputes and mischief growing out of parol contracts for the sale of lands, which the statute was designed to prevent.
The decree must be reversed and the cause remanded, with instructions to the court below to dismiss the bill for want of equity. | [
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Mr. Chief Justice English
delivered the opinion of the court.
Assumpsit by Rogers against Thomas Watkins and wife, Mary J. Watkins, formerly Mary J. Walker.
The declaration alleged, in substance, that Mrs. Watkins, when a.feme sole, on the 12th of December, 1856, in consideration that Rogers would execute and deliver to her a good and sufficient deed of conveyance to a tract of land known as the N. E. ¿ of sec. 8, in T. 6 N. R. 9 W., undertook and promised to pay Rogers the sum of $358 19, it being the amount of claims held by Rogers against Alexander S. Walker, deceased, former husband of Mrs. Watkins, when she should be thereunto requested. That Rogers did, on the 12th December, 1856, execute and deliver to her a good and valid deed of conveyance to the land aforesaid, according to the terms of their said agreement.
Breach, that Mrs. Watkins, while a feme sole, and she and her husband since their marriage, though often requested, disregarding her said promise and undertaking, had failed to pay to Rogers said sum of money, etc.
The defendants pleaded non assumpsit, and the issue was submitted to the court sitting as a jury.
The plaintiff read in evidence, against the objection of the defendants, from the record book of the recorder of White county, a registered copy of a quit claim deed, from plaintiff to Mrs. Watkins, for the land described in the declaration, dated 12th December, 1856, and filed for registration on the same day.
Bond, witness for plaintiff, testified that plaintiff bought some land at tax sale. That Mrs. Watkins (then Walker,) had sold lands to Stamps, which, she afterwards learned, included a tract of land bought by plaintiff at tax sale. She wanted to get it from plaintiff. Plaintiff told witness if she would pay him what he had given for the land, and interest, and what Alexander Walker (her deceased former husband) owed him, he would convey to her the land. She told witness she would do so. Witness did not know how much Alexander Walker owed plaintiff; nor what particular land it was, but understood it to be part of the land sold to Stamps.
Ricks, witness for plaintiff, testified that plaintiff placed claims, which were against Alexander Walker, in the hands of Cypert and Hicks, for collection against defendants. The claims were evidenced by accounts and notes payable to various persons. Witness had the claims before him when he drew the declaration in this suit, and thought the aggregate amount was that specified in the declaration. Did not know how long plaintiff had had them when they were given to Cypert & Hicks to sue on. Witness had made diligent search, and could not find them.
Cypert testified that the claims were in possession of himself and Hicks, for collection, but he did not know what had become of them.
Plaintiff then read in evidence a tax deed for the land described in the declaration, executed to him by the collector of White county, dated 26th March, 1857, reciting a sale of the land to the plaintiff, 12th March, 1855, for taxes, etc., charged thereon for the years 1836 to 1854, amounting to $80 08.
Cypert, recalled by plaintiff, further testified, that the claims of plaintiff against Alexander Walker, were handed to him for collection, and consisted of several small notes, which were pasted to an account current, between plaintiff and Walker, which consisted of the items of the several notes, with the interest due on such notes, and the credits thereon, amounting in the aggregate to the sum named in the declaration, and that the claims were lost or mislaid.
Upon the above evidence, the court rendered judgment in favor of plaintiff for $358 19 damages.
The defendants moved for a new trial, on the grounds:
1. That the court erred in permitting plaintiff to read in evidence the quit claim deed, purporting to be from him to Mrs. Watkins, (Walker.)
2. There was no evidence to sustain the contract or agreement, alleged in the declaration.
3. There was no evidence of the allegation of performance by plaintiff of his part of the contract or agreement.
4. The finding of the court was contrary to law and evidence.
The court overruled the motion, and the defendants excepted and appealed.
The plaintiff, having declared for the breach of a special contract, it was incumbent on him to prove substantially the material allegations of the declaration. 1 Arch. N. P. 130-1; 1 Greenleaf Ev. sec. 51; State Bank vs. Peel et al. 6 Eng. 753.
The declaration alleges that the plaintiff agreed to execute and deliver to Mrs. Watkins a good and sufficient deed of' conveyance to the land, etc. This allegation was not sustained by proof that he executed to her a mere quit claim deed, without any covenants of warranty whatever; which was the character of the deed introduced in evidence. Witter vs. Biscoe et al. 13 Ark. 426; Rawle on Cov. 564, etc. There was no proof that she accepted, or agreed to accept the quit claim deed.
The declaration alleges, that in consideration that the plaintiff would convey to Mrs. Watkins, the tract of land, she promised to pay him $358 19, this being the amount of claims which he held against her deceased husband. Bond was the only witness who testified in relation to the contract between the parties. He stated that plaintiff told him that if Mrs. Watkins would pay him what he had given for the land at tax sale, and what her deceased husband owed him, he would convey the land to her; and she told witness that she would do so. Witness did not know how- much her deceased husband owed plaintiff.
There was no satisfactory proof that she knew the amount of the claims, or that the claims placed in the hands of Cypert & Hicks, for collection, were the same that she agreed to pay; or that Bond was authorized to make the contract for plaintiff.
There being a failure of evidence to support several of the material allegations of the declaration, the plaintiff was not entitled to a verdict, and the court should have sustained the motion for a new trial.
The judgment must be reversed. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
George W. Comstock, surviving partner of the firm of Com-stock & Brother, brought an action of debt, in the Union Circuit Court, against Robert F. Richardson, and Jeremiah S. Avera, late partners, under the firm name of R. F. Richardson & Co., on a promissory note executed by them, 15th April, 1853, as follows:
“ On or before the 15th day of February next, we promise to pay Comstock & Brother, or order, one hundred and eighty dollars, for value received, ten per cent, interest from date.
R. F. RICHARDSON & CO.”
The defendants pleaded.
1st. Nil debet.
2d. That the note sued on was executed by them without any consideration whatever.
3. Actio non, because they say that at the time of the making of the said note in the declaration mentioned, at etc., the said plaintiff by his late style of Comstock & Brother, druggists, etc., promised the said defendants to deliver to them, at to-wit: Ihe county aforesaid, a large lot of goods and drugs of great value, to-wit: of the value of one hundred and eighty dollars; .and in consideration thereof, the said note in said declaration mentioned was given, and for no other consideration whatever, and the said defendants aver that the said Comstock & Brother, or either of them, have never delivered the said goods or drugs, or any part thereof, and the consideration of said promissory note, in said declaration mentioned, has wholly failed; and this the said defendants are ready to verify. Wherefore they pray judgment.”
The 2d and 3d pleas were verified by affidavit.
Issues to the pleas were made up and submitted to a jury, upon the following evidence:
The plaintiff, after reading the note sued on to the jury, introduced in evidence the following instrument:
“ Know all men by these presents that whereas, Messrs. Com-stock & Brother, of New York, did, on the order of R. C. Van-hook, ship drugs from said city to him at Eldorado, Union county, Arkansas, to the amount of $200 64, including $4 89 insurance; and agreeing to allow twenty dollars for advertising in some newspaper — said drugs were consigned to the care of Messrs. Williams, Phillips & Co., commission merchants, New Orleans, where the said Vanhook ordered them to be stopped, as he was not pleased with them — and whereas, a misunderstanding grew up about said drugs, and to avoid a law suit in said case, the said Vanhook made the followingproposition, viz:
'I am willing to take the goods and try to sell them, provided I can have the privilege of exchanging any of them that may prove unsaleable, before paying for them, and without any costs to myself, giving my note due at twelve months from the accepting this proposition for amount of bill ($200,) as such was my agreement with Mr. Judson.’
And the said Comstock & Brother having accepted said proposition: Now, therefore, the said matter is hereb3r compromised on the following terms, viz: The said R. C. Vanhook takes said drugs or goods, as per bill, which are now in New Orleans, with the privilege of returning and exchanging for others, any unsaleable ones, at the expense of the said Com-stock & Brother, and the said R. C. Vanhook gives his note, due twelve months from this date, in order that the said Vanhook may have time to try and sell said goods. The said Vanhook to publish the card, or notice of the said Comstock & Brother, for which a deduction of twenty dollars is to be made from the two hundred dollars, leaving one hundred and eighty, the amount of the note. The note is to be credited with the expense of getting said drugs from New York, and the expense of any exchange which may be made of unsaleable drugs for saleable ones.”
COMSTOCK & BROTHER, per J. PI. Carletón.
R. C. VANHOOK.”
This agreement, it appears, was entered into between the parties on the 15th February, 1853.
The defendants became the successors of Vanhook in business, and on the 15th of April, 1853, executed to Comstock & Brother the note sued on, at which time they, by their agent, Carleton, who had charge of the claim, made the following endorsement upon the above agreement:
“ R. F. Richardson & Co. are to have the benefit of this contract, which R. C. Vanhook & Co. were to have. Richardson & Co. having taken taken the contract in the place of Vanhook & Co.
COMSTOCK & BROTHER, per J. H. Carleton.”
Vanhook was introduced as a witness by defendants, and testified that he had never received said goods, or any part thereof, nor any information of or concerning them; nor had the defendants, his successors in business, received said drugs, or heard of them, since the making of said compromise. ■
John A. Avera, also, testified that he had been the clerk and book keeper of Vanhook, and of the defendants after they became his successors in business, and that said'drugs were not received, or heard of to his knowledge, after the compromise, etc.
The court excluded the correspondence which took place between Comstock & Bro., and Vanhook, prior to the time they entered into the above compromise agreement; also all evidence of contemporaneous verbal agreements, understandings, etc., etc., between the parties, which were not embraced in the written contract.
On the motion of the plaintiff, and against the objection of the defendants, the Court instructed the jury as follows:
“ That if they believed from the evidence, and admissions of the plaintiff, that the note was given in compromise of a doubtful claim, it is some consideration in law, and"they will find for the plaintiff.”
The defendants moved the Court to charge the jury as follows:
“ 1. If the jury believe from the evidence, that the note sued on was given for goods or drugs to be- by the plaintiff shipped and delivered to defendants; and that said plaintiff had failed to comply with his contract, without any fault of defendants, the jury may find for defendants.
“ 2. If the jury believe from the evidence, that the consideration of the note sued on has failed, by the neglect of the plaintiff’ to comply with his undertaking, they must find for defendants.
“ 3. That under the issues in this case, the plaintiff is bound to prove a consideration for the note sued on.
The Court refused the 1st and 2d of these instructions, and gave the 3d.
Just before the jury retired from the box, the bill of exceptions states, the Court instructed them that if they found for the plaintiff, they must find for the whole of the amount of the note sued on, with interest.
The jury found a verdict in favor of the plaintiff for the amount of debt and interest due upon the note, the defendants moved for a new trial, which the Court refused, and they excepted and appealed.
1. There was no error in the instruction given by the Court below to the jury, on the motion of the appellee. A compromise of a doubtful or disputed claim is a sufficient, consideration for a note given for a sum agreed to be paid by the terms of the compromise. Chilly on Contractsl 42-3.
2. The 1st and 2d instructions moved by the appellants, and refused by the Court, were in harmony -with the plea of failure of consideration,'which alleges that the note was given in consideration of a promise of Comstock & Bro., to deliver a lot of drugs to appellants, which they failed to do, etc., but the instructions were not warranted by the proof in the cause.
The proof was, as contained in the written agreement between Comstock & Bro., and Vanhook, that upon the order of Yanhook, Comstock & Bro. had shipped to him a bill of drags through a commission house of New Orleans, where Yanhook had ordered them to be stopped, not being pleased with them. After some correspondence and controversy between the parties, they entered into a written compromise, by which Yanhook agreed to take the drugs, on condition that Comstock & Bro. would furnish other articles in exchange for such as might prove unsaleable, and gave his note for the amount of the bill, less the cost of advertising, etc. The appellants succeeded him in business, and by some arrangement between the parties, assumed the debt to Comstock & Bro., and gave the note sued on therefor, with a contemporaneous written agreement, that they should have the benefit of the stipulations contained in the written compromise agreement between Comstock & Bro., and Yanhook',
In this agreement there was no stipulation, on the part of Comstock & Bro., that they would deliver the drugs. They agreed merely to furnish other articles in exchange for such of the drags embraced in the bill, which they had shipped upon the order of Yanhook, as might prove unsaleable, etc. It was the duty of Yanhook, both before and after the compromise, to look after the goods shipped upon his order.
3. Nor was there any error in the charge of the Court to the jury, that if they found in favor of appellee, they must find for the whole of the amount of the note. Upon the pleadings and proof in the cause, if the appellants were liable upon the note at all, they were liable for its full amount.
4. The terms of the contract of compromise between Com-stock & Bro., and Yanhook, having been reduced to writing, the prior correspondence between them, and their contemporaneous verbal agreements, etc., were not admissible to contradict, vary, or materially affect, by way of explanation, the terms of the written contract.
5. The Court charged the jury, on the motion of appellants! that under the issues in the cause, “ the plaintiff was bound to prove a consideration for the note.” This was an error in favor of the appellants.
The pleas were Nil debet, no consideration, andfailure of consideration. Under the issue to the first plea the onus probandi was upon the plaintiff, and it was sufficient for him to read the note declared on in evidence, there being no affidavit to the plea.
Under the issues to Jhe 2d and 3d pleas, the burthen of proof was upon the defendants, the note upon its face furnishing prima facie evidence of a consideration, as held by a series of adjudications of this Court. Gage vs. Milton, 1 Ark. 228; Rankin vs. Badgett, 5 Ark. 346; Greer as ad. et al. vs. George adx. 3 Eng. 133; Cheney use, etc., vs. Higginbotham, 5 ib. 273; Dickson vs. Burks, 6 ib. 307.
The remark of the judge who delivered the opinion in Brown vs. Wright, 17 Ark. 28, that if the defendant had pleaded no consideration generally, the burthen of proof would have been upon the plaintiff, was an inadvertent error. The remark being upon a point which had not been the subject of discussion in consultation, escaped the attention of the Court, which did net intend to overrule its former adjudications on the point.
The judgment of the Court below is affirmed.
Absent, Mr. Justice Rector! | [
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Mr. Justice Fairchild
delivered the opinion of the court.
To an action of debt by Montross, as surviving partner of Montross & Stillwell, Hezekiah appeared and craved oyer, which was granted by exhibiting and filing the two notes sued on. He then pleaded nil debet, to which issue was taken, and the case submitted to the court sitting as a jury. The finding of the court and judgment were for the-plaintiff, and Hezekiah has brought error.
In the order recording the trial and judgment, it is stated that the defendant objected to the notes being read in evidence, and the objections are fully set out in the order, but their statement is surplusage.
• The record should not have been encumbered with foreign matter, but if the defendant objected to testimony, and wdshed to preserve his objections, he could only do so by bill of exceptions.
But the objections were not well made, because, after the notes had been brought on to the record by oyer, they formed a part of the declaration, and there was then no ground for the objection that the defendant was not the H. E. Hezekiah who. signed the notes, or that the omission of the word “ I ” before “'promise,” in the second note could be of any effect.
. And if without oyer, on trial, such objections were made and preserved by bill of exceptions, they would be disregarded as frivolous.
Judgment affirmed. | [
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Conley Byrd, Justice.
Following the reversal of appellant Robert Courtney’s conviction in Courtney v. State, 252 Ark. 620, 480 S.W. 2d 351 (1972), appellant was again put to trial in Poinsett County. At that trial appellant represented himself with the assistance of Attorney John R. Henry whom the court appointed to help in an advisory capacity. When the jury was unable to agree, the court declared a mistrial. Thereafter, a motion for change of venue was made and granted. When the matter came up for trial in the Osceola District of Mississippi County, a hegotiated plea of 25 years suspended sentence was accepted by appellant on May 8, 1973. After appellant was arrested on some charges in Crittenden County, the State moved to revoke the suspended Mississippi County sentence. Appellant was represented at the revocation by Mr. Dana Davis of the law firm of Skillman, Durrett and Davis of West Memphis, Arkansas. The trial court on March 28, 1974, granted the State’s motion to revoke and sentenced appellant to 15 years in the Department of Correction. On April 29, 1974, appellant filed a pro se “Notice of Appeal and Motion for Appointment of Counsel.” On May 9, 1974, the trial court wrote to appellant the following:
“Robert Courtney 62558
Box 500
Grady, Arkansas 71644
Dear Robert Courtney:
I am mailing your Notice of Appeal to the Circuit Court Clerk at Osceola, Arkansas, for filing.
It will be necessary for you to direct all of your future correspondence in regard to this matter to your attprney, Mr. Dana R. Davis, Skillman, Durrett and Davis, Lawyers, West Memphis, Arkansas, and I am sure he will do whatever is necessary from that point on.
Yours very truly,
Todd Harrison”
On August 6, 1974, Mr. Dana R. Davis of the law firm of Skillman, Durrett and Davis wrote to appellant:
“Dear Mr. Courtney:
I have not been appointed by any State or Federal Court to represent you in your pending appeal and I will not voluntarily represent you further.
Your entire file is enclosed for your inspection or that of any Attorney you might have in the future.
Please do not contact me again.
Yours very truly,
Dana R. Davis”
On August 29, 1974, our Criminal Justice Coordinator wrote to appellant the following:
“Dear Mr. Courtney:
This will acknowledge receipt of your letter dated August 9, 1974, and received by this office on August 15, 1974, in which you inquire as to whether a Notice of Appeal has been received by this Court.
You are advised that we have been notified that your Notice of Appeal has been filed with the Mississippi County Circuit Court but we have no record of any transcript having been filed with this court for purposes of appeal. Of course, the appellate process does take some time to complete. In view of Mr. Davis’ letter of August 6, 1974, I would advise that you contact the circuit court authorities for a clarification of whom has been appointed to represent you on appeal.
Trusting this information is of value, I am
Very truly yours,
Steven N. Carlson
Criminal Justice Coordinator”
On October 28, 1975, appellant filed a pro se petition for post-conviction relief which was heard by the trial court on February 6 and February 11, 1976. Appellant represented himself at the hearings held on those dates. The record of those hearings shows that the trial court had at some time appointed Dana R. Davis of the law firm of Skillman, Durrett and Davis to represent appellant on his appeal from the March 28, 1974, revocation but the record does not show why the appeal has not been perfected in this court.
The record of the post-conviction hearing also shows that appellant is 41 or 42 years of age and has spent 20 of those years in the State’s penal institutions for crimes committed. After the conclusion of the testimony the trial court asked appellant “What action are you asking the court to take here today?” The record then shows the following:
“DEFENDANT: I would ask the Court to set aside the conviction or either reduce the sentence to the lowest term of grand larceny, and to completely, how do you say it? Set aside the habitual offender on the grounds that I’ve been placed twice in jeopardy on these charges that’s been set aside. They used six convictions, and the only — Four of these convictions were set aside, according to testimony, this lawyer, Mr. Henry, was set aside by the Circuit Court, and the State Court elected not to retry me on that, so therefore I would be innocent of the charges. They could not be used as habitual criminal, and I would ask the Court to set aside the conviction, and would be no reason for a new trial.
Like the Court said: I would have to stay in jail probably, unless a reasonable bond, or maybe I could be released on my own reconnaissance, and I could get the proper treatment and go through another trial.
THE COURT: All right. I’ll tell you what I am going to do: I am going to deny your petition for relief under Criminal Procedure Rule Number 1.1 am going to grant your motion for credit for your time in jail and in the penitentiary awaiting trial, and you will be given credit for 19 months jail time on that.”
For reversal of the trial court’s decree in the post-conviction hearing the appellant contends:
“Appellant was denied his right to appeal from the revocation hearing due to his indigency, and through no fault of his own, but due to some misunderstanding between appellant’s retained trial counsel and the circuit judge, which denied him appellate counsel and thus violated his constitutional right of due process of law. ”
Since the record does not show the status of appellant’s appeal from the revocation of his suspended sentence nor why it has not been perfected in this court, we need not speculate as to what relief could have been granted him here had he requested such relief in the trial court. The Criminal Justice Coordinator recognized in August of 1974, that some communication gap existed in connection with the appeal and suggested to appellant that he contact the trial court for a clarification as to who had been appointed to represent him. The record does not show that appellant accepted this advice. In the absence of a showing that the failure to perfect the appeal was the fault of either the trial court or the conduct of his court appointed attorney, we cannot say that the trial court erred in refusing to set aside his conviction or to reduce it to the lowest term for grand larceny.
Affirmed.
We agree: Harris, C.J., and Holt and Roy, JJ. | [
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Elsijane T. Roy, Justice.
Appellant Henry Zgleszewski and co-appellee Carol Zgleszewski married in 1971. Coappellee Peter Horne was formerly married to Carol Zgleszewski, the marriage having been terminated by divorce in Pennsylvania in 1970.-- At -that time she was awarded custody of the two children born during her marriage to Horne. Appellant filed a petition for adoption in July, 1975, requesting that he be allowed to adopt the issue of co appellee’s earlier marriage.
In the petition appellant alleged that under Ark. Stat. Ann. § 56-106 (Repl. 1971) appellee Horne should be found to have abandoned his children. Appellee Carol Zgleszewski consented to her present husband’s adoption of the children, but appellee Horne refused to give consent. Horne is presently imprisoned in the Pennsylvania State Prison as he was at the time of the filing of the adoption petition. The probate court held that Horne had not abandoned the children and consequently denied the adoption.
For reversal appellant contends that the decision of the trial court is against the preponderance of the evidence and that he is entitled to an order granting the adoption on grounds of abandonment. Appellant testified the children call him father and they engage in a number of recreational activities together. He further testified he wanted to adopt the children; he thought it was in their best interest for him to adopt them; he has a savings account; he has sufficient money to take care of them and meet their obligations and their expenses; he has done this since 1971 and can and will continue; he has ample life insurance; he and his wife have a child of their own; and he carries health and accident insurance on all three children where he works.
It is noted that the children had been living with appellant and had been supported by him for five years when he filed the petition for adoption. The children, he testified, go to church and both make straight A’s in school, and there have never been any disciplinary problems at home.
Ark. Stat. Ann. § 56-106 (Repl. 1971) provides for the non-consensual adoption of a child under certain specified circumstances. Section 56-106 (a) and (b) (I) upon which appellant relies reads:
Consent of parents or guardian. — (a) The adoption of a child shall not be permitted without the written consent verified by affidavit, of its parents or parent, if living, except as follows:
(b) The consent of a parent or parents may be dispensed with if the court, upon competent evidence, makes one of the following findings:
(I) The parent has abandoned the child for more than six [6] months next preceding the filing of the petition.
In any proceeding in which the custody of a child is involved the paramount consideration is the best interest of the child. Richards v. Nesbitt, 237 Ark. 888, 377 S.W. 2d 40 (1964); Cotten v. Hamblin, 234 Ark. 109, 350 S.W. 2d 612 (1961).
Carol Zgleszewski and Peter Horne were married in 1964. In 1967 Horne was imprisoned after having been found guilty on three charges of rape, and he admitted he would not be eligible for parole until January, 1978. His former wife testified she visited him regularly with the children until 1968 or 1969, but was forced to discontinue the visits after he became increasingly accusatory and abusive toward her. Mrs. Zgleszewski further stated that after appellant’s confinement because of the necessity of caring for the children she was unable to work and had to go on welfare. Her testimony reflected that although her former husband held various jobs in prison, he did not send any money to her or the children nor did he communicate with the children by cards, letters, telephone calls or in any way.
After her divorce from Horne in 1970, Mrs. Zgleszewski moved to another town some four or five miles distant from where she and her former husband had lived. She maintained a cordial relationship with Horne’s family, and the wedding reception for her marriage to appellant was held at the home of Horne’s brother. The only time Horne saw his children subsequent to 1969 was for about five minutes at his father’s funeral in December, 1973. In July, 1975, the Zgleszewskis moved to Arkansas and prior to this move notified Horne’s family, but did not notify Horne directly of the move.
In Horne’s interrogatories he stated he had communicated with his children until 1970, but not thereafter because he did not know their whereabouts. This reason lacks substantive basis since from 1970 until July, 1975, Mrs. Zgleszewski and her husband (appellant) lived only a short distance from her former home with appellee Horne. They had a friendly relationship with her former husband’s parents as well as his brother’s family, and the Horne family was in frequent contact with Peter Horne. It is not unreasonable to suppose that normal parental love would impel Horne to ask them about the whereabouts of his children.
Appellee Horne admitted having saved some $1400 but did not use any of this in trying to contact or help his children. Nor did he indicate any intention to do so even though at the time of the trial he knew where they were living.
Our cases require that in order to show abandonment the evidence must indicate the parent deserted, forsook entirely, “or relinquished all connection with, or concern in,” the child. Walthall v. Hime, 236 Ark. 689, 368 S.W. 2d 77 (1963). We are aware that imprisonment imposes an unusual impediment to a normal parental relationship. However, even when parenthood is disadvantaged by this unfortunate factor, one could still solicit visits from his children and contact them with cards, letters and small gifts if he did not have the means of support.
In re Adoption of McCray, Pa., 331 A. 2d 652 (1975), in which abandonment was the main issue the court, in granting the adoption, stated:
. . . [W]e have held that the parent has an affirmative duty to love, protect and support his child and to make an effort to maintain communication and association with that child. * * *
. . . [A] parent’s absence and/or failure to support due to incarceration is not conclusive on the issue of abandonment. Nevertheless, we are not willing to completely toll a parent’s responsibilities during his or her incarceration. Rather, we must inquire whether the parent has utilized those resources at his or her command while in prison in continuing a close relationship with the child.
The cumulative evidence here indicates appellee’s interest in the welfare of his children from 1967 to the date of trial had been minimal. Appellee’s willful criminal acts and the course of conduct followed thereafter indicate a conscious disregard of the children and an indifference to their welfare tantamount to voluntary abandonment. Accordingly we find the decree of the chancellor is against the preponderance of the evidence.
Reversed and remanded for action not inconsistent with this opinion.
We agree. Harris, C.J., and Byrd and Holt, JJ. | [
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John A. Fogleman, Justice.
The Arkansas State Game and Fish Commission acquired some 34,000 acres of land in Arkansas and Jefferson Counties, beginning in 1948. It is known and designated as the Bayou Meto Wildlife Management Area. At the time of acquisition nearly all of the merchantable timber had been recently removed, but since that time no timber has been cut from these lands. In 1973, the Commission decided to initiate a program of “harvesting” of timber on these lands. Pursuant to the plan evolved, the Commission entered into a contract on October 18, 1973, with Alvin Yarbrough, for the cutting and removal of certain timber from a 640 acre tract constituting a part of an area of 2,080 acres designated as Compartment 2B, one of numerous such compartments in the overall plan of the Commission. On July 17, 1974, suit was filed by appellees (citizens, taxpayers and hunters) as a class action, to enjoin the Commission, its members and director and the timber contractor from cutting and removing timber under the contract. Appellees alleged that, if the contract was performed, the area involved would be destroyed as a wildlife and waterfowl habitat, and contended that the proposed action by the Commission was ultra vires, arbitrary, capricious, unreasonable and unlawful. A decree was entered on April 1, 1975, enjoining appellants from carrying out the particular timber cutting operation. This appeal comes from that decree, which was based upon the chancery court’s holding that the contract was ultra vires and that the Commission had acted arbitrarily, capriciously, unreasonably and unlawfully in entering into it, and that the making of this particular contract was an abuse of discretion. We disagree and reverse.
The parties are not in agreement about the scope ofjudicial review of actions of the Arkansas State Game and Fish Commission, which is not only an administrative agency with constitutional status but the repository of certain powers of government enumerated in Amendment 35 to the Arkansas Constitution by which it was created. As we view the matter, we need not resolve all the differences between the parties as to the powers of the Commission or the scope of judicial review. If the act was ultra vires, there is no question about the power of equity courts to restrain it. Arkansas State Game & Fish Comm’n v. Eubank, 256 Ark. 930, 512 S.W. 2d 540; Shellnut v. Arkansas State Game & Fish Comm’n, 222 Ark. 25, 258 S.W. 2d 570. If the Commission’s action is not ultra vires and was not arbitrary or capricious, unreasonable or wantonly injurious, in bad faith, or an abuse of its discretion, then the injunction must be dissolved. Arkansas State Game & Fish Comm’n v. Eubank, supra; Farris v. Arkansas State Game & Fish Comm’n, 228 Ark. 776, 310 S.W. 2d 231; Shellnut v. Arkansas State Game & Fish Comm’n, supra. The matter of unreasonableness is not directed at the question of the wisdom of the action, which we take to be outside the scope of judicial review. The Game and Fish Commission’s actions are certainly not to be judged solely on the basis of their wisdom or the lack of it any more than the actions of a city council or another administrative agency. See Patterson v. U.S., 178 F. Supp. 771 (D.C. Ark. 1959); Haynie v. City of Little Rock, 243 Ark. 86, 418 S.W. 2d 633; Am. Jur. 2d 558, Administrative Bodies and Procedure, § 207. To do so would be to impermissibly substitute the judgment of the courts for that of the agency. Hall v. Bledsoe, 126 Ark. 125, 189 S.W. 1041. See also, City of Batesville v. Grace, 259 Ark. 493, 534 S.W. 2d 224.
It was alleged and shown that this contract was the first entered into in the implementation of a plan to cut some of the merchantable timber on practically all of the Bayou Meto Wildlife Area. The contract provided for the sale of mixed hardwoods marked by Commission agents and employees with blue and yellow paint. It authorized the erection of mills, camps, roads and other improvements necessary in the logging and manufacturing of the timber sold in locations approved in advance by representatives of the Commission and required removal of the contractor’s structures, tools and equipment prior to the expiration of the contract. There were restrictions on the manner of utilization of the trees cut, the height of stumps and a provision for triple damages for unnecessary damage to unmarked trees, witness trees, monument and timber reproduction, to be determined by the Commission’s local officer in charge, who could also require cutting of unmarked trees unavoidably damaged and the payment of current market value therefor.
The chancellor not only found that the Commission’s actions were ultra vires and capricious and arbitrary but that they were violative of the limitations on its powers set forth in Farris and contrary to the interest of the public. These general conclusions are apparently based upon the specific fact finding of the chancellor, which was as follows:
Without detailing the evidence, it is clearly apparent that the intensity of the timber cut proposed would effectively destroy the particular 640-acre tract as a refuge for ducks. At the present time, ducks come into this area to feed on acorns, and other food. To destroy the trees to the extent set forth in the proposed cut would drastically reduce the number of ducks using the area. The evidence reflects that ducks often roost at night in open water; but during the day they fly to wooded areas, such as this 640-acre tract. They feed there, and return to their roosting area at night. It is also to be noted that this tract would be used by ducks as a refuge even more extensively if the Commission could devise a means for flooding the tract for more of the Winter period when ducks are in this area. But the evidence also clearly reflects that the present situation as to water is far better from the standpoint of ducks than would be the case if the proposed timber cut is made.
It goes almost without saying that if the proposed cut is made, it will be many years before the tract is restored to its present state with respect to “cover.” That is the principal reason why the danger is so important for this Court to realize. Unlike the situation in Eubank, supra, the ill effects will last far longer than a few days. In fact, the damage done might well be permanent, insofar as the duck population in the Bayou Meto Refuge is concerned.
Although we have emphasized the importance of providing a refuge for ducks in Bayou Meto, this wildlife management area is inhabited by other wildlife, and several witnesses testified on this point. The evidence reflects that the proposed cut would damage the refuge from the standpoint of this other wildlife.
On trial de novo, we find that the preponderance of the evidence shows that the contract was not ultra vires and that the Commission’s action was not arbitrary or capricious, or an abuse of its discretion.
In considering the question of the powers of the Commission, we must first view Constitutional Amendment 35, which, of course, is an act of the ultimate sovereign, the people of Arkansas, and is subject only to constitutional, not legislative or judicial, limitations. See Smith v. McNair, 231 Ark. 49, 328 S.W. 2d 262; Arkanaas State Game & Fish Comm’n v. Edgmon, 218 Ark. 207, 235 S.W. 2d 554; Farris v. Arkansas State Game & Fish Comm’n, 228 Ark. 776, 310 S.W. 2d 231; Shellnut v. Arkansas State Game & Fish Comm’n, supra. Pertinent provisions are:
The control, management, restoration, conservation and regulation of birds, fish, game and wildlife resources of the State, including hatcheries, sanctuaries, refuges, reservations and all property now owned, or used for said purposes and the acquisition and establishment of same, the administration of the laws now and/or hereafter pertaining thereto, shall be vested in a Commission to be known as the Arkansas State Game and Fish Commission, to consist of eight members. ***
Commissioners shall have knowledge of and interest in wildlife conservation. ***
*****
The fees, monies, or funds arising from all sources by the operation and transaction of the said Commission and from the application and administration of the laws and regulations pertaining to birds, game, fish and wildlife resources of the State and the sale or property used for said purposes shall be expended by the Commission for the control, management, restoration, conservation and regulation of the birds, fish, and wildlife resources of the State, ***
*****
Said Commission shall have the power to acquire by purchase, gifts, eminent domain, or otherwise, all property necessary, useful or convenient for the use of the Commission in the exercise of any of its duties, ***
Judicial interpretation of these powers has been rather limited, but this court has, on occasion, been called upon to review various actions and has commented upon the extent of, and limits on, the constitutional grant. We have held that the Commission has a very broad discretion in determining how wildlife shall be conserved. W. R. Wrape Stave Co. v. Arkansas State Game & Fish Comm’n, 215 Ark. 229, 219 S.W. 2d 948; Hampton v. Arkansas State Game & Fish Comm’n, 218 Ark. 757, 238 S.W. 2d 950. In Wrape, we said that the Amendment is complete within itself and that it was intended by the Amendment to either provide or leave to the Commission, methods for attaining the ends enumerated. See also, State v. Casey, 225 Ark. 149, 279 S.W. 2d 819. We have said that the powers of the Commission are broad. Arkansas State Game & Fish Comm’n v. Hornaday, 219 Ark. 184, 242 S.W. 2d 342; State v. Casey, supra.
Even though the issues were not related to the particular subject before us, the language of this court in treating rules and regulations adopted by the Commission are equally applicable to any other discretionary power vested in the Commission by the amendment. In Casey, we said:
*** Under these provisions of the amendment we hold that the Commission has been given full and complete administrative power and authority to promulgate rules and regulations necessary for the conservation and preservation of all wildlife including not only the power to establish a bag limit, set seasons in which to hunt and fish and the penalty for violations but also the power to levy a license fee on all hunting dogs, just so long as such license fees are not unreasonable or arbitrary and are for regulatory purposes — as appears here — and not for revenue. ***
In Farris, we said:
*** A majority of this court has determined that the Game and Fish Commission as opposed to the Legislature, is vested with the power to make such rules and regulations as is deemed necessary to protect and conserve the wildlife resources of the state. In the exercise of its police power the Commission has determined that it should prohibit the sale of game fish from private impoundments of water. The Commission has a wide discretion within which it may determine what the public interest demands, and what measures are necessary to secure and promote such requirements. The only limitation upon this power to formulate these rules and regulations, which tend to promote the protection and conservation of the wild life resources of the state, and which tend to promote the health, peace, morals, education, good order and welfare of the public is that the rules and regulations must reasonably tend to correct some evil, and promote some interest of the commonwealth, not violative of any direct or positive mandate of the constitution. **•" The Commission, as trustee for the people of this state, has the responsibility and is charged with the duty to take whatever steps it deems necessary to promote the interest of the Game and Fish Conservation Program of this state; subject only to constitutional provisions against discrimination, and to any valid exercise of authority under the provisions of the Federal Constitution. ***
It is also important that we have in view the purposes of the Commission in acquiring and maintaining the area involved. The records of the Commission during the acquisition period revealed that the original approach was made by the initiation of an investigation of possible acquisition of a wildlife management area in the vicinity of Stuttgart, followed by authorization of the activation of a plan for establishing a wildlife management area on Bayou Meto embracing about 7,000 acres of the land.now owned. The minutes of the Commission recorded the approval of the Bayou Meto Land Acquisition as a Federal Aid Wildlife Restoration project by the United States Fish & Wildlife Service. They also recited that waterfowl, deer, squirrel, furbearing animals and turkey population were to be there protected and managed to provide maximum restoration and utilization and that other use to be made of the land was timber management. There was testimony that Regional Federal Aid documents disclosed that the land was acquired as a wildlife management area, not as a public duck shooting area, in spite of the fact that a former secretary of the Commission had described it as a public shooting ground for ducks when he testified in Hampton v. Arkansas State Game & Fish Comm’n, supra.
Testimony of James Talley, Forester for the Game and Fish Commission, indicated that the contract on the 640 acres was only the first step in a cutting cycle designed for both timber and game management on the entire tract. At a rate of 640 to 1,200 acres per year, according to a letter from Talley introduced in evidence, several years would elapse before all the timberlands were reached.
W. D. Gaines, Biologist for the Arkansas State Game & Fish Commission, compiled a habitat analysis for the Commission on Compartment 2B, which was outlined in the Commission’s wildlife forestry management plan for the Bayou Meto Wildlife Management Area. He had written a rough draft of the analysis in the summer and fall of 1973, but did not have it in the form exhibited in evidence prior to the execution of the timber contract. Gaines had a college degree in biology and additional hours of credit in forestry. He had previously been employed by U.S. Gypsum Company, a private timber company, for whom he formulated wildlife management plans for some 100,000 acres in Arkansas, Louisiana, Tennessee and Mississippi along the Mississippi River. He had been employed by the Commission for approximately five years, of which he had spent at least three and one-half years in carrying out direct management on 80,-000 acres of Commission land as District Wildlife Biologist.
In making his analysis, Gaines made field inspections of the area, both before and after the marking of trees to be cut on the 640-acre tract. He found little of the compartment in an artificial green tree reservoir, and only a small portion of the 640 acres flooded or used by migratory waterfowl. This area could not be counted on as a duck reservoir but it could be developed into a green tree reservoir if it were encompassed by a levee and deep wells and pumps were installed. In considering multi-species management, he found Compartment 2B capable of supporting 50 to 60 per cent of the wildlife it had a potential for supporting. In his analysis he attributed this to general stagnation and unproductivity of the overstory mast producing timber species which should afford, in a cyclic manner, hardwood mast in sufficient quantities to act as a supplemental food supply during late fall and winter and to the absence of sufficient ground growing food and cover. He explained the desired procedure as follows:
The best overall feasible management technique that could and should be employed in this forest is a general thinning of the growing stock to provide a release to over-burdened trees providing additional sunlight to the crowns, to provide small openings or holes in the forest creating the growth of grass, weeds, and reproduction of the forest species that will aid both in a renewable vigorous and sustained long range equilibrium of the forest as a whole and provide in the brush areas needed food and cover for most forest game animals.
Gaines found a population of one white-tailed deer for each 40 to 50 acres in the tract. He described this as extremely low for a bottomland hardwood area. This he attributed to the lack of available browse and cover because of the overstory canopy and general deterioration of the forest. Hindering factors which caused a low fall turkey population were lack of nesting cover, bugging grounds, escape cover from predators, spring and summer plants producing berries, fruit and seeds, and winter grasses and buds necessary to supplement overstory mast production. He found the compartment unsuitable for migratory or wintering waterfowl without development for flooding. He stated that a hardwood forest managed for waterfowl should provide a vigorous, healthy stand of older classes of trees, well spaced to promote the maximum amount of mast production, and interspersed with small openings containing grass, weeds, and other plants to provide food for ducks when the overstory trees did not produce. The best overall management for squirrels, according to his analysis, was to create a forest condition that has a large percentage of healthy, well-spaced trees 30 to 100 years old. From a long range point of view, scientific forest game management plans through removal or thinning of standing trees to prevent stagnation and deterioration of a mature forest would be advantageous for squirrels in spite of a short term adverse effect on the population. Gaines’ analysis as to rabbits was that population increased quickly in newly thinned areas that provided cover as well as food from plants that grow in newly created openings. Gaines reported that forest removal as a wildlife management technique is widely accepted by professional wildlife managers throughout the nation as the only practical means for large scale wildlife management, in spite of Severe attack from a portion of the public not directly involved in wildlife management, whose viewpoint he described as naive. Gaines said that fencing a temporary forest and keeping out fires would doom it to extinction. He stated his opinion that there was a necessity for diversification in publicly owned wildlife areas to fulfill the needs of the present and future population of Arkansas on a multi-species basis, i.e., deer, squirrels, turkeys, ducks. According to Gaines, different forest management practices would be utilized in other compartments, because of differing situations.
The testimony of Gaines had very strong support from that of Dr. Leslie L. Glasgow, a consultant employed by appellants after this suit was filed and described by appellees as possessed not only of an impressive academic record but of some experience in managing wildlife habitats, at least on an advisory basis. Dr. Gla: gow, a teacher of forestry and wildlife at Louisiana State University holds a bachelor’s degree in forestry, a master’s degree in wildlife conservation, a doctor’s degree in wildlife management and enough hours for a master’s degree in zoology. He had been Director of the Louisiana Wildlife and Fisheries Commission, an Assistant Secretary of the United States Department of the Interior, administering the National Parks Bureau, the United States Fish & Wildlife Service, the Bureau of Marine Resources and the Bureau of Commercial Fisheries, Waterfowl Biologist for both Louisiana and Indiana, and a wildlife consultant since 1952, mostly in the development of wildlife management plans for private individuals, state and federal governments, generally in wet lands. Dr. Glasgow is also a duck hunter and has written on related subjects for publication. He had visited the area three times between 1956 and the time he testified. He spent three and one-half hours on the ground inspecting Compartment 2B after viewing it from the air, just a month before he testified. He observed the markings on the trees made for carrying out the contract involved. He found little lesser vegetation on the forest floor.
Dr. Glasgow said that an unmanaged wilderness would not produce a sustained habitat for an optimum wildlife population that is adapted to the area, but would develop into a few old trees that dominate the site, so that the number of suitable areas for wildlife, with the exception of squirrels, decreases, as will the wildlife. He said that it was difficult to manage wildlife, but that wildlife responds to management of the habitat, and that the most practical and commonly used method is to manipulate the timber stand by use of a selective removal of trees or groups of trees, as in the Commission’s plan, to provide diversity in the stand, to permit development of other food producers such as annual weeds and other ground vegetation, to stimulate reproduction of desirable species of trees, rather than undesirable hardwoods which are shade tolerant, and to stimulate food production on remaining trees by their increased exposure to sunlight. He found that Compartment 2 B, in its existing condition, was not a good habitat for either waterfowl or other wildlife, because the vigorous trees that were dominant had been previously removed, leaving only cull species which were undesirable from a wildlife standpoint. From his examination of the Commission’s plan, he found it to be a step in the right direction toward development of an adequately diversified wildlife habitat and felt that the luxury of managing an area for a single purpose rather than for multiple species of game could no longer be afforded. Dr. Glasgow testified that the selective removal plan would improve the waterfowl habitat without question and would not destroy waterfowl coming into Arkansas and staying in the Bayou Meto Management Area.
James Talley, the Game & Fish Commission Forester, had been previously employed by the Arkansas Forestry Commission as Fire Control Assistant and Associate Forester. In the latter position he had formulated all the programs of the Arkansas Forestry Commission. He was instrumental in marking the compartmental selection for forest management of the Bayou Meto Wildlife Management Area. He said that both single tree and group selection methods had been used in Compartment 2 B, the former to remove broken, overmature, diseased and undesirable trees and the latter to let sunlight hit the forest floor for the benefit of the young tree generation in order to produce more desirable trees as well as mushrooms, berries, seeds, browse, insects and grubs for wildlife food. The area was marked under his supervision and direction.
Carl Hunter, a farm manager possessed of a degree in agriculture, with a major in biology had served as a wildlife biologist for appellants for 13 or 14 years ending in 1957. He observed that a large mature open forest which produces heavy mast crops most years produces large concentrations of waterfowl. He had gone over the area in question and estimated that 50 per cent of the timber would be cut. This he said would deteriorate the wildlife habitat, would only benefit deer, would be detrimental to some degree to other types of wildlife and would afford hardships to duck hunters through ruts left by machinery and by reason of treetops and underbrush resulting from the cutting. Potential hardships on hunters were emphasized by other witnesses.
Wayne Hampton, who served on the Game and Fish Commission from August 1960, until April 1962, visited the area and found that, on a half-acre sample there were 17 trees, 10 of which, all acorn bearing, were marked for cutting. He thought the Commission plan would destroy the Bayou Meto Area as a duck habitat. A county surveyor testified that the proposed timber cut was heavy and erratic. A sawmill operator testified that cutting operations would result in damaging 20 per cent of the remaining trees.
A number of witnesses, whose only qualification was that they were duck hunters, were permitted, in spite of appellants’ objections, to give opinion evidence, because, according to the chancellor, all duck hunters consider themselves experts. We can accord little weight to this testimony. There were those who had cut timber, or had seen timber removed, from lands and found that a habitat for ducks had been destroyed to the detriment of duck hunting. Some had found that deer hunting had not been affected and that in certain areas squirrel, coon, and turkey could be hunted. Some of these joined in the opinion that, if the program were carried on, the area would be destroyed as a duck habitat. Most of the testimony on behalf of appellees was directed toward the effect of the plan on duck hunting in the wildlife area and in the general vicinity. Many were concerned with the number of mast producing and den trees marked for cutting. In determining the questions presented here, we must remember that the Commission’s duties and its right to determine how they are to be performed, i.e., how wildlife is to be conserved, are not to be measured by mere doubt-creating suggestions. W. R. Wrape Stave Co. v. Arkansas State Game & Fish Comm’n, supra.
The strongest evidence favoring appellees was a publication entitled “Disappearing Wetlands in Eastern Arkansas” written by Trusten Holder, who had retired in 1969 after 29 years’ service with the Game & Fish Commission and who is considered an authority on the subject on which he wrote. Gaines disagreed with some of Holder’s statements. Holder was not available for cross-examination. His publication contains the following statement:
Contrary to popular opinion an area does not have to be managed. In fact, most of the real benefits to wildlife and to the general public can be received just by buying a wooded tract and keeping it from being cleared.
Dr. Glasgow specifically expressed his disagreement with this statement in spite of his great respect for the author. This witness stated that selective cutting and followup of wildlife stand improvement was an accepted and approved practice in many areas of the United States.
When we view the whole record, it seems clear to us that the action of the Game & Fish Commission was not ultra vires or unlawful. It was simply an exercise of discretion of that body in the “control, management, restoration, conservation . . . of . . . game and wildlife resources of the State, . . . sanctuaries, refuges, reservations ... ” It is also clear to us that the Commission has not acted arbitrarily and capriciously. To act arbitrarily means to act in a manner decisive but unreasoned, or arising from an unrestrained exercise of the will, caprice of personal preference, based on random or convenient selection or choice rather than on reason or nature and to act capriciously means to act without being guided by steady judgment or purpose. City of Little Rock v. Parker, 241 Ark. 381, 407 S.W. 2d 921; City of North Little Rock v. Harble, 239 Ark. 1007, 395 S.W. 2d 751. However unwise or inexpedient the Commission’s decision may be or however wrong it may turn out to be, there is no evidence that it was unreasoned or without steady judgment or purpose. There may well be a difference of opinion about the propriety of the particular procedure adopted to accomplish the basic purposes of Amendment 35, but it certainly cannot be said that there is not respectable authority supportive of the approach being taken. In considering the matter we must remember that the Commission is composed of members having knowledge of and interest in wildlife conservation.
Nor can we say that the Commission abused its discre tion. Here again, we must defer to the knowledge and interest of the Commission and would have to say that there was no reasonable basis for their decision before we could say that there was an abuse. This we cannot do. It is urged that the Bayour Meto Wildlife Management Area was acquired and dedicated primarily, if not solely, for a duck refuge. There is clear evidence that, even at the beginning of the property acquisition, other purposes were contemplated, in spite of the testimony of the then executive secretary of the Commission, in Hampton v. Arkansas State Game & Fish Comm’n, supra, that the primary purpose for the acquisition was for duck Hunting and shooting. Even if that were the case, there is nothing whatever to limit the discretion of the Commission to change the primary use of all or any part of the sanctuary or refuge or to devote the property to other uses, so long as they are within the scope of the purposes enumerated in Amendment 35. Decisions in this regard are policy matters vested entirely in the Commission, so long as it acts within limitations which have been imposed on the exercise of its powers. Evidence of abuse of this discretion should be so clear as to be virtually beyond argument before the courts should declare it so. The constitutional amendment left to the Commission the adoption of methods to reach the desired ends. In this respect we must also say that the Commission is substituted for the General Assembly in determining what is in the public interest in the matter of wildlife conservation. Farris v. Arkansas State Game & Fish Comm’n, supra. At least when the matter is debatable, it would be beyond our powers to substitute our judgment for theirs. See City of Little Rock v. McKenzie, 239 Ark. 9, 386 S.W. 2d 697.
The decree is reversed, the injunction dissolved and the case dismissed.
The Chief Justice and Justices Holt and Roy dissent. | [
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Elsijane T. Roy, Justice.
In October, 1975, appellant was stopped by an Arkansas State Trooper on Interstate 30 for traveling 73 miles an hour in a 55 mile per hour zone. It was stipulated that the posted speed at the site was 75 miles per hour prior to the reduction to the 55 mile per hour limit. Appellant admits he was driving in excess of the posted limit. He was fined $5 and costs for the violation, and he lodges this appeal raising numerous constitutional issues.
Appellant first avers that the “Congressional speed limit” is not a regulation of interstate commerce and that, in setting the speed limit in Arkansas, Congress acted beyond the scope of its powers under the Commerce Clause of the United States Constitution.
We do not agree with appellant. Congress established the acceptable speed limits to be used on all public highways, but the States had the right to accept or reject the recommended speed limit subject to certain penalties. The Arkansas Highway Commission pursuant to statutory procedures established the Arkansas 55 mile per hour limit. See Ark. Stat. Ann. § 75-601 et seq. (Supp. 1975). These limits are based upon engineering and traffic investigations of the Commission. See § 75-601, supra. The Commission adopted the suggested national standard in conformity with its own investigations and thus it, and not the Congress, established the State limit. Appellant’s position here, therefore, is without merit.
Appellant’s next contention is that the “Congressional speed limit” violates the constitutional guarantee to Arkanaas of a republican form of government. The thrust of this allegation seems to be that the speed limit has not been established by the State and the people have been deprived of some right. This argument is without merit since the people by legislative process have created the Highway Commission and have vested it with the authority to establish and to post speed limits in Arkansas.
Appellant also argues the speed limit is violative of the Fifth and Fourteenth Amendments to the United States Constitution because the action of Congress, as endorsed and adopted by this State, reducing the national speed limit denies him both due process and equal protection of the law.
In Yarbrough v. Ark. State Highway Commission, 260 Ark. 161, 539 S.W. 2d 419 (1976), this Court had before it a constitutional attack upon the Federal Highway Beautification Act and the Arkansas enabling legislation adopting the guidelines prescribed by the Federal Act regulating the display of signs along certain highways. The legislation was held valid and constitutional issues similar to the ones raised herein were discussed at length.
In National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465, 49 L. Ed. 2d 245 (1976), the Court said:
It is established beyond peradventure that the Commerce Clause of Art. 1 of the Constitution is a grant of plenary authority to Congress. That authority is, in the words of Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat (22 US) 1, 6 L Ed 23 (1824), “ . . . the power to regulate; that is to prescribe the rule by which commerce is to be governed.” Id., at 196, 6 L Ed 23.
* * *
“[e]ven activity that is purely intrastate in character may be regulated by Congress, where the activity, combined with like conduct by others similarly situated, affects commerce among the States or with foreign nations.” Fry v. United States, 421 US 542, 547, 44 L Ed 2d 363, 95 S Ct 1792 (1975).
Accordingly, we find this contention without merit.
Appellant further urges that he has been penalized because no special classification based on fuel economy has been made. Since fuel economy vehicles can be driven at more than 55 miles per hour while using less gasoline than other less economical conveyances use when driving at the prescribed limit, appellant insists a classification based on fuel economy should have been made.
Appellant’s “classification” is incidental to a broad standard covering all vehicle operators, and the classification is in no way arbitrary or invidious. Furthermore the obvious impossibility of establishing a variable speed limit correlative to mileage per gallon per vehicle is immediately apparent. A constant limit can provide the only manageable regulation of vehicular speed.
As to appellant’s contention of denial of due process, over 40 years ago in Nebbia v. New York, 291 U.S. 502, 54 S. Ct. 505, 78 L. Ed. 940 (1934) the Court stated:
The Fifth Amendment, in the Field of federal activity, and the Fourteenth, as respects state action, do not prohibit governmental regulation for the public welfare. * * * And the guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained. * * *
See also Gruenwald v. Gardner, 390 F. 2d 591 (2d Cir. 1968), cert. denied 393 U.S. 982, 89 S. Ct. 456, 21 L. Ed. 2d 445 (1968). Appellant has made no showing that the regulation as it applies to him is arbitrary, unreasonable or capricious. So this contention is without merit.
Other arguments urge that Congress has illegally forced the State into a position of compliance with a federal mandate. In City of Burbank, et al. v. Lockheed Air Terminal, Inc., et al., 411 U.S. 624, 93 S. Ct. 1854, 36 L. Ed. 2d 547 (1973), quoting from the early case of Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 13 L. Ed. 996 (1851), the Court said:
* * * Whatever subjects of this power [to regulate commerce] are in their nature national, or admit only of one uniform system, or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress. * * *
Interstate highways are established for the benefit of all, and insofar as the Congressional determination that the speed limit of 55 is the standard for maintenance of that general welfare, the power is not exercised either arbitrarily or discriminatorily, but with reason and judgment. A declared national objective of curtailing needless energy consumption affects the national economy and is a legitimate purpose.
Appellant also argues that Congress has unlawfully assumed the policing of highways which is a State power. The answer to this contention is that Congress has not infringed upon the State’s right to police the highways and to enforce the speed limit.
We also have considered all other points raised by appellant and find them to be without merit.
Affirmed.
We agree. Harris, C.J., and Byrd and Holt, JJ. | [
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John A. Fogleman, Justice.
Appellant was found guilty of perjury in the first degree alleged to have been committed during his testimony in a hearing to set bail in the Municipal Court of Walnut Ridge on March 24, 1975. He lists three points for reversal. We find no reversible error on any point and affirm.
Appellant argues that the alleged false statements on which the charge was based were neither material nor relevant, either to the charge of non-support, on which he was brought into the municipal court, or to the amount of appearance bond on the charge. He says that the alleged false statements were: (1) Appellant had not had anything to drink in the past three weeks; (2) he did not make any threats toward his former wife during a telephone conversation; (3) he did not make any threats toward his children during a telephone conversation; (4) he did not make any threats concerning his former wife’s house during a telephone conversation. We disagree. To say the very least, his drinking habits and the question of threats of violence were relevant and material to the hearing held by the municipal court on the fixing of a bond for appellant’s appearance on the nonsupport charge when he moved for a continuance on his first appearance before the municipal judge.
The amount of bail is a matter that lies peculiarly within the sound judicial discretion of the court fixing it. Connley v. U.S., 41 F. 2d 49 (9 Cir., 1930); U.S. v. Mule, 40 F. 2d 503 (2 Cir., 1930); People v. McDonnell, 296 N.Y. 109, 71 N.E. 2d 423 (1947); Green v. Petit, 222 Ind. 467, 54 N.E. 2d 281 (1944); People v. Searles, 229 App. Div. 603, 243 N.Y.S. 15 (1930). It should be fixed according to the circumstances surrounding the case and the accused with the rights of the accused and the public good kept in mind. U.S. v. Mulcahy, 155 F. 2d 1002 (2 Cir., 1946); In re Scott, 38 Neb. 502, 56 N.W. 1009 (1893); Gregory v. State, 94 Ind. 384, 48 Am. Rep. 162 (1883); People v. Searles, supra; Braden v. Lady, 276 S.W. 2d 664 (Ky., 1955); Green v. Petit, supra. The circumstances of the accused’s apprehension may be considered. State v. Mastrian, 266 Minn. 58, 122 N.W. 2d 621 (1963), cert. den. 375 U.S. 942, 84 S. Ct. 349, 11 L. Ed. 2d 274. It is proper to consider the character and reputation and the criminal activities and tendencies of the person charged as factors bearing upon the security required to insure his appearance. People v. Snow, 340 Ill. 464, 173 N.E. 8, 72 ALR 798 (1930). It is also appropriate to consider recent actions and threats of the accused because they bear upon his good faith in appearing. U.S. v. Mulcahy, supra; Ex parte Thomas, 91 Tex. Cr. App. 49, 237 S.W. 302 (1922); Kendrick v. State, 180 Ark. 1160, 24 S.W. 2d 859.
Thus, we find no merit in this point.
The next point for reversal is very difficult to treat, because it is a conglomeration of assorted assertions of error, without considering whether objections were made on the questions now argued or whether they were otherwise raised in the trial court. The point is thus entitled:
THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTING ATTORNEY TO ASK APPELLANT AND OTHERS IRRELEVANT AND IMMATERIAL QUESTIONS SIMPLY TO INFLAME THE JURY.
Although there may be adequate grounds for sustaining the trial court on some of the alleged errors and the reason for the absence of objection may be obvious, we will not discuss any of the questions to which exception is now taken unless an obj .ction was made in the trial court. To do so would require a much more extensive treatment of the record than that given in appellant’s brief and a greater elaboration on the merits of these questions than the entire argument of appellant upon the point. We would add that we find no question among those listed on this point which is so inflammatory that proper corrective action could not have been taken if an objection had been made. We will also forego discussion of any of these questions where an objection was sustained or a question withdrawn and further corrective action, such as an admonition to the jury or the declaration of a mistrial, was not asked, because none of these were of such an inflammatory nature as would have justified any conclusion that the verdict was the result of passion and prejudice or the fundamental fairness of the trial substantially impaired. Furthermore, we will not discuss any asserted error where both the argument and the record consist of transcript references only. This will not permit proper appellate consideration. To adequately treat such questions would place insurmountable burdens upon judicial resources.
Appellant does argue that the court erred in overruling his attorney’s objection to a question asked by the prosecuting attorney on cross-examination of Hon. Leonard Lingo, Judge of the Municipal Court of Walnut Ridge, a witness called by appellant. The prosecuting attorney asked, “He [appellant] also denied before you that he wilfully failed to support the children, didn’t he?” If there was any error in allowing this cross-examination, it was harmless, because it was already rather obvious from the undisputed evidence that there had been a trial on the charge and testimony heard, which was certainly indicative that appellant had pleaded not guilty. The municipal judge had testified on direct examination that the case involving the charge on which appellant was arrested had come up on March 24, 1975, and had been continued to March 31, at the request of appellant. Prior to this inquiry, appellant’s ex-wife and the mother of his child, Donna Wolverton, who had made the charge of non-support against appellant, had testified on cross-examination. Appellant’s attorney had asked her if she had not testified at appellant’s trial in municipal court and had asked her a question about her testimony at that trial.
The prosecuting attorney also asked appellant on cross-examination whether he had done what Judge Lingo had ordered him to do. Appellant answered that he had paid child support until he was locked up on the preceding Wednesday. Over appellant’s objection, the prosecuting attorney asked whether, during the intervening 29 weeks, appellant had paid only $525, as reflected by the records, or the $675 he should have paid, and whether he would say the records “lie.” Appellant answered that the records were wrong and that he had the receipts at home. Wilful nonsupport of children is a criminal offense. Ark. Stat. Ann. § 41-204 (Repl. 1964). Violation of a proper court order for periodical payments would require the imposition of punishment on the violator. Ark. Stat. Ann. §§ 41-210, 211, 212 (Repl. 1964). Cross-examination about such an offense is permissible. Moore v. State, 256 Ark. 385, 507 S.W. 2d 711; Rickett v. Hayes, 251 Ark. 395, 473 S.W. 2d 446. Appellant’s answer was a denial and the matter was not pursued. Therefore, it would be difficult to say there was prejudice to appellant, or an abuse of the trial court’s discretion in allowing this question. Alexander v. State, 257 Ark. 343, 516 S.W. 2d 368. Appellant put his character in issue, so cross-examination with reference to alleged non-support was appropriate. Lewis v. State, 258 Ark. 242, 523 S.W. 2d 923.
Mike Hill, who had been acquainted with appellant for six or seven months, was called as a character witness. On cross-examination the prosecuting attorney asked the witness whether, in deciding that appellant was such a truthful and fine fellow, he had heard that Allen was living in a trailer with a lady to whom he was not married. This cross-examination about particular conduct of appellant was permissible in order to test the value of the knowledge of the witness. Amos v. State, 209 Ark. 55, 189 S.W. 2d 611. The inquiry was obviously made in good faith, because appellant testified that he had been living with a woman for a longer period of time than Hill had known him.
A third point is:
THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTING ATTORNEY TO CROSS-EXAMINE HIS OWN WITNESS UNDER THE COURT’S RULING OF REDIRECT EXAMINATION.
On cross-examination of Donna Wolverton, appellant’s counsel questioned her about the time of the filing of nonsupport charges and the issuance of a warrant for the arrest of appellant, about the length of time that elapsed between the time she had last been in contact with appellant prior to a telephone conversation two nights before appellant was arrested, and about the date of her separation from appellant and the filing of a divorce suit by her. She was somewhat confused about the calendar year in which certain of these events happened, but related them to each other. On redirect examination, the prosecuting attorney read the affidavit for a warrant of arrest, showed it to her and asked her whether her signature was affixed. This affidavit showed the date of its execution. Appellant argues that since the prosecuting attorney had asked the witness on direct examination whether she knew when the charges of non-support were filed, this amounted to cross-examination of the state’s own witness. This was not the objection made, but there was no abuse of the trial court’s discretion in allowing this examination in light of the answers given by the witness on cross-examination.
The basic function of redirect examination is to enable the witness to explain and clarify any relevant matters in his testimony which have been weakened, confused or obscured by cross-examination and to rebut the discrediting effect of any damaging statements or admissions so elicited. Grievance Committee v. Dacey, 154 Conn. 129, 222 A. 2d 339, 22 ALR 3d 1092 (1966), apl. dism. 386 U.S. 683, 87 S. Ct. 1325, 18 L. Ed. 2d 404 (1967); Couch v. St. L. Public Service Co., 173 S.W. 2d 617 (Mo. App. 1943). See also, People v. Tucker, 142 Cal. App. 2d 549, 298 P. 2d 558 (1956); State v. Stevens, 69 Wash. 2d 906, 421 P. 2d 360 (1966); Nail v. State, 231 Ark. 70, 328 S.W. 2d 836; Clift v. State, 155 Ark. 37, 243 S.W. 955. The rehabilitation of a witness before the trier of fact is an important and proper purpose. State v. Stevens, supra. See also, Hoy v. Kansas Turnpike Authority, 184 Kan. 70, 334 P. 2d 315 (1959); State v. DeZeler, 230 Minn. 39, 41 N.W. 2d 313, 15 ALR 2d 1137 (1950). The scope and extent of redirect examination lies within the sound judicial discretion of the trial judge. Couch v. St. L. Public Service Co., supra. See also, Nail v. State, supra. In this matter the court’s discretion is very liberal. Grievance Committee v. Dacey, supra. A witness should be allowed full opportunity to explain matters brought out on cross-examination or to rebut any discrediting effect they may have had or to correct any wrong impression that may have been created. Johnson v. Minihan, 355 Mo. 1208, 200 S.W. 2d 334 (1947). Courts go very far in permitting redirect examination for these purposes, even though the admission of evidence thus brought out may not have been proper on direct examination. Johnson v. Minihan, supra. See also, Clift v. State, supra. It is not an improper exercise of that discretion to permit the examiner to refresh the memory of the witness by a statement he had signed. State v. Stevens, supra.
We cannot say that the trial judge abused his discretion in this instance.
The judgment is affirmed.
We agree: Harris, C.J., and George Rose Smith and Jones, JJ.
Under Rule 8.5 (viii) of the Arkansas Rules of Criminal Procedure, effective 1 January 1976, the evidence of these threats would clearly have been pertinent, material and relevant to the pretrial release inquiry. | [
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Conley Byrd, Justice.
Appellant Ray Best and appellee Judy Williams were divorced November 11, 1972. In that decree appellee was awarded for life a one-third interest in 210 acres of land owned by appellant. Following her remarriage and the relinquishment of custody of the two children to appellant, appellee brought an action to partition the 210 acres. The trial court entered an order appointing commissioners to divide the lands in kind. For reversal appellant raises the issues hereinafter discussed.
We find no merit in appellant’s contention that this partition action is prevented by the homestead laws, Ark. Const., art. 9, § 3. As pointed out in Keesee v. Bushart, 203 Ark. 668, 158 S.W. 2d 915 (1942), one may not claim the homestead exemption as to a claimant against whom he does not have an exclusive possessory right — i.e. a homestead exemption cannot be claimed in a partition suit against a co-tenant.
Appellant also complains that the trial court erred in consolidating the partition suit with the original divorce action. Since the divorce depree would not be conclusive of the right of appellee to a partition, we can find no prejudicial error that could result from the consolidation.
Appellant complains that the trial court erred in awarding the appellee in the original divorce action a one-third interest for life in the whole 210 acres instead of designating the specific property to which she was entitled. Not having appealed from that decision within the time permitted by law, the appellant is not now in a position to complain.
Affirmed. | [
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J. Fred Jones, Justice.
This is an appeal by Midwest Mutual Insurance Company from an adverse summary judgment in a suit it filed against the appellees Arkansas National Company, Inc. and Robert E. Lyddon for $6,850, plus interest and costs.
We can do no better in stating the background facts than to reiterate the statement made by the appellant in its brief. The appellee, Arkansas National Company, was an independent insurance agency in Hot Springs, Arkansas, and the appellee Robert E. Lyddon was one of its agents. The agency acquired an assigned risk liability insurance policy for Red Fop Cab Company of Hot Springs through Farm Bureau Mutual Insurance Company covering certain taxicabs owned by Red Top. On August 7, 1970, pursuant to the request of Red Top, Arkansas National caused a certain taxicab to be deleted from the coverage while undergoing repairs and another taxicab substituted in its place. There was a standing agreement between Arkansas National and Red Top that substitution of taxicabs under the coverage would be effective as of the day the request was made. On August 11, 1970, after the original taxicab had been repaired, Red Top requested Arkansas National’s agent, Lyddon, to delete the replace ment vehicle and reinstate the original taxicab under the coverage; Lyddon, however, neglected to cause the original taxicab to be reinstated and, on August 20, 1970, it was involved in a collision in Hot Springs with a motorcycle driven by Robert A. Bratton and owned by Archie Lee Lowe.
On May 24, 1971, Bratton and Lowe instituted suit against Red Top for personal injuries and property damage. Red Top made demand on Farm Bureau to provide it with a defense and pay any judgment that might be entered and Farm Bureau declined. Before the case reached trial, Bratton and Lowe took a voluntary nonsuit. Bratton then made claim against the appellant Midwest under the uninsured motorist provisions of a policy of insurance the appellant had issued covering the motorcycle. The appellant settled Bratton’s claim by the payment of $5,250. Bratton and Lowe again instituted suit against Red Top for personal injuries and property damage, and the appellant claimed subrogation to the extent of $5,250 it paid in settlement to Bratton. Red Top filed a third party complaint against Arkansas National seekJ ing judgment over against it; Arkansas National filed a motion to strike the third party complaint and the motion was granted by the trial court on April 17, 1973. The third party complaint alleged that “third party defendant negligently failed to obtain the insurance as per its agreement, and its negligence has forced defendant to defend this action which should have been done by its insurance carrier”; and, Red Top prayed “judgment over against third party defendant for any judgment obtained by plaintiff plus its costs and attorney’s fees in defending this action.”
In granting the motion to dismiss, the trial court said:
Your motion is granted. To start with:
Number 1. The contract specifically between Farm Bureau and Red Top Cab precludes such a Third Party Complaint until judgment is recovered.
Number 2. Arkansas National Company is not the general agent of Farm Bureau, but the agent of the insured.
The case proceeded to trial on August 8, 1973, resulting in a verdict in favor of Bratton and Lowe against Red Top for $6,850, and judgment for that amount together with interest and costs was entered on September 11, 1973. Thereafter, for valuable consideration, Red Top duly assigned to the appellant its “chose in action” against appellees for failure to reinstate insurance coverage on the taxicab involved in the collision and, on March 29, 1974, Midwest filed suit against the appellees Arkansas National and its agent Lyddon for $6,850. The appellees answered alleging, as affirmative defenses, that the suit was barred by limitations and that the assignment was not valid. Motions for summary judgments were subsequently filed by both sides. The parties stipulated that appellee Lyddon was negligent, that his negligence resulted in the judgment against Red Top, and that the sole question to be determined by the trial court was the validity of the affirmative defenses as a matter of law. The trial court held that Red Top’s assigned cause of action accrued on August 11,1970, when Arkansas National negligently failed to reinstate the insurance coverage and the three year statute of limitations as set out in Ark. Stat. Ann. § 37-206 (Repl. 1962), started running on that date. The trial court granted appellees’ motion for summary judgment from which comes this appeal.
On appeal to this court the appellant has designated the following point on which it relies for reversal:
The court erred in not granting appellant’s motion for summary judgment and in granting summary judgment for appellees, because appellant is entitled to judgment as a matter of law.
The parties to this appeal have stipulated that this is a cause of action for negligence, consequently the three year statute of limitations provided in § 37-206 is applicable. It would further appear, from the arguments presented, that the parties are in basic agreement that appellant, as assignee, had no greater rights, and was subject to the same defenses, an would have applied to Red Top. Davis v. So. Farm Bur. Cas. Ins. Co., 231 Ark. 211, 330 S.W. 2d 276 (1960). Consequently, the question as to limitations on this appeal boils down to when Red Top’s cause of action against its insurance agent, Midwest, accrued. The appellees contend it accrued on August 11, 1970, as found by the trial court, and the appellant contends that it accrued not earlier than May 24, 1971, when suit was filed against Red Top and it first learned that it had no insurance coverage through Farm Bureau’s refusal to defend. It was at this point Red Top was required to assume the cost of its own defense because of the appellee’s negligence in failing to obtain insurance coverage. So we are forced to the conclusion that the appellant is right in its contentions on this point.
The appellees, and apparently the trial court, relied heavily on our decisions in Field v. Gazette Pub. Co., 187 Ark. 253, 59 S.W. 2d 19 (1933), and Faulkner v. Huie, 205 Ark. 332, 168 S.W. 2d 839 (1943). Both of these cases involved personal injury with delayed results — lead poisoning requiring multiple surgical procedures before final diagnosis in the Field case, and loss of hearing six years after an automobile collision in the Huie case. We consider the case at bar more in point with the cases found not in point in the Huie case than with the Field and Huie cases. In Huie we said:
The appellant cites several cases which, he contends, show that the doctrine followed in the Field case does not apply here. These cases are not in point.
In C., R. I. & P. Ry. Co. v. Humphreys, 107 Ark. 330, 155 S.W. 127, L. R. A. 1916E, 962, the railway company had constructed a culvert on its right-of-way. Damages to the adjoining property resulted. This court held that the statute of limitations would not begin to run at the time of the construction if it were known at that time merely that damage could not be reasonably known and estimated at that time. The construction of the culvert was lawful unless it had a damaging effect and the passage of time alone would reveal whether it would have a damaging effect — whether any wrongful act had been committed at all. Here the wrongful act was complete at the moment the car was turned over.
The same principle is involved in the case of Brown v. Arkansas Central Power Company, 174 Ark. 177, 294 S.W. 709. The action there complained of was the construe tion of a power plant which was lawfully constructed upon the defendant’s lands, but which, it was claimed, through its operation, constituted a nuisance. This court held that it could not say as a matter of law that the plant was of such a nature that it could be known at the beginning that damage must necessarily result and that the nature and extent of such damage could have been reasonably ascertained and estimated at the time of construction. If not, the statute of limitations would not begin to run .at the time of the construction.
In Schenebeck v. Sterling Drug, Inc., 423 F. 2d 919 (8th Cir. 1970), a case in which the defendant argued that the statute of limitations ran from the day of the wrongful act, the United States Court of Appeals for the Eighth Circuit said:
While it is true that the Arkansas Supreme Court has referred to the statute of limitations governing negligence actions as commencing “from the time when the injury was first inflicted * * Field v. Gazette Publishing Co., 187 Ark. 253, 59 S.W. 2d 19, 20 (1933), and that court has specifically held that a plaintiff who discovered more than three years after an automobile accident that his loss of hearing was traceable to the accident could not recover since the “. . . wrongful act was complete at the moment the car was turned over,” Faulkner v. Huie, 205 Ark. 332, 168 S.W. 2d 839 (1943), nevertheless, an analysis of the Arkansas cases, we believe, demonstrates that appellant reads them too narrowly. As we construe the Arkansas cases, in the instances where there has been delay between the negligent act and the damage, the occurrence of harm marks the beginning of the period. Thus, in Field v. Gazette Publishing Co., supra, also dealing with a slow-developing disease, the court approved an instruction authorizing the jury to determine whether the statute of limitations had run by determining whether the plaintiff “. . . contracted the malady of which he complains . . .” prior to a specified crucial date. This same test was again mentioned as a dictum in Barksdale v. Silica Products Co., 200 Ark. 32, 137 S.W. 2d 901 (1940). Even though defendant has completed a negligent surgical operation, Arkansas has held that the statute need not commence running with the negligent act if discovery of the damage has been delayed. See Burton v. Tribble, 189 Ark. 58, 70 S.W. 2d 503 (1934) (patient’s malpractice action against surgeon commenced more than three years following surgical procedure to recover for damage attributable to a foreign object left in the body, held not barred). In an action for damage to land subsiding because of loss of subjacent support caused by defendant’s earlier negligent act, Arkansas Court has held the cause accrues from the time the damage to the surface becomes apparent rather than when the defendant removed the underground support. Western Coal & Mining Co. v. Randolph, 191 Ark. 1115, 89 S.W. 2d 741 (1936). A traditional element of a cause of action in a negligence action requires the invasion of another’s interest. See Restatement (Second) of Torts, § 281 (1965); Prosser, The Law of Torts, 146-148 (3d ed. 1964). Ordinarily, the plaintiff must suffer some actual loss or damage in order to bring an action. Slight damage initiates the accrual of the cause of action. See Faulkner v. Huie, 205 Ark. 332, 168 S.W. 2d 839 (1943); Prosser, supra, at 146-148.
It is entirely possible that Red Top may have had a cause of action against Arkansas National for breach of contract accruing on August 11, 1970, when Arkansas National failed to reinstate the insurance coverage. That apparently was the trial court’s view when on April 17, 1973, Red Top attempted to join Arkansas National as a third party defendant in the tort action brought by Bratton and Lowe against Red Top. The parties stipulated that the action resulting in the judgment, from whence comes this appeal, was an action sounding in tort and not in contract. We conclude that Red Top had no tort action against Midwest until a tort against Red Top was committed by Arkansas National and that Arkansas National’s negligence in its failure to convert the insurance coverage did not become tortious as to Red Top and for which a cause of action would lie, until at least some element of damage accrued to Red Top because of the negligence of Arkansas National. According to the record before us, Red Top’s cause became actionable against Arkan sas National on or after May 24, 1971, when Red Top was forced to bear its own expense in defending litigation because of Arkansas National’s negligence in failing to transfer the insurance coverage.
Both parties to this litigation filed motions for summary judgment. We conclude that the statute of limitations had not run against Red Top in favor of Arkansas National when suit was filed by Midwest on March 29, 1974, but the appellant’s secondary argument concerning the validity of the assignment from Red Top to Midwest is another matter. As already indicated, we are of the opinion Red Top could have asserted a cause of action for breach of contract against Arkansas National on August 11, 1970, when the breach occurred by failure to reinstate the insurance but Red Top could not interplead such breach of contract action into the personal injury and property damage tort action filed by Bratton and Lowe against Red Top as the trial court correctly pointed out.
In other words, it would appear that Red Top had an election of two separate remedies or causes of action against its insurance agent. Arkansas National, in thL case. It could have sued for damages for breach of contract when the breach occurred as above set out, or it could sue for damages in tort when the tort occurred and became actionable as above set out. The same three year statute of limitations applied in either the breach of contract or the tort action. It would appear that in order to avoid the statutory bar to an action in contract, the appellant was careful to lay the suit it did file in tort rather than in contract. It is clear that had the suit been for breach of contract it would have been barred by the statute. Since the suit was in tort it was within the statute but we conclude it was not assignable.
It must be remembered that the assignor Red Top did not assign a judgment for $6,850 to the appellant Midwest in this case. Red Top did not own the judgment; Red Top owed the judgment for $6,850 to Bratton and Lowe who were complete strangers to the transactions between Red Top and its insurance agency Arkansas National. Bratton’s and Lowe’s claims against Red Top were liquidated by judgments for $6,850 but the subject of the assignment of this case was Red Top’s separate tort damage claim against its insurance agent. The pertinent part of the written assignment appears as follows:
On September 11, 1973, judgment was rendered against Red Top in favor of Robert A. Bratton and Archie Lee Lowe in the total sum of $6,850.00 together with interest thereon from that date until paid at the rate of six percent (6%) per annum and costs. The chose in action herein assigned is that cause of action which Red Top had against the producing agent, Arkansas National for negligently failing to provide coverage as promised resulting in the judgment debt against Red Top.
We hereby authorize Midwest Mutual Insurance Company, in its own name and at its own cost, to make any demands, institute any and all legal proceedings and exercise all powers and rights which would be ours to enforce this claim and to receive any or all of same to its own use and hereby relinquish forever all our claims thereto or rights therein.
We agree with the trial court’s observation that Red Top’s assigned claim and rights of recovery against Arkansas National were not necessarily limited to the judgment for $6,-850 obtained by Bratton and Lowe against Red Top.
As between the parties to the litigation in this case, Red 'Lop’s actionable claim against Midwest amounted to an unliquidated tort claim and it was not assignable. See So. Farm Bur. Cas. Ins. Co. v. Wright Oil Co., Inc., 248 Ark. 803, 454 S.W. 2d 69; Lowrey v. Lowrey, 260 Ark. 128, 538 S.W. 2d 36 (1976). See also Nat’l Fire Ins. Co. v. Pettit-Galloway Co., 157 Ark. 333, 248 S.W. 262.
The judgment is affirmed.
Fogleman, J., dissents.
The statute has since been changed in medical malpractice cases. | [
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J. Fred Jones, Justice.
Charles C. Harris and Lonny McGuire were jointly charged, tried and convicted at a jury trial with the possesscon of marijuana with intent to deliver and were sentenced to ten years in the penitentiary. This is an appeal by Harris in which he has designated two points he relies on for reversal as follows:
I
The lower court erred in refusing to grant appellant’s motion for a severance because:
A. Voir dire by separate counsel for Appellant’s co-defendant and the remarks of the Trial Court deprived Appellant of his option as to whether or not his failure to take the stand would be brought to the attention of the jury.
B. Testimony by a State’s witness as to statements made by the co-defendant tended to incriminate Appellant in violation of his rights under the Sixth Amendment to the Constitution of the United States.
II
The lower court erred in refusing to grant a mistrial because of the state’s comment in closing argument on the failure of appellant to take the witness stand.
The facts appear as follows: James R. Adkins, special agent for the Federal Drug Enforcement Administration, while working, under cover, made arrangements with Harris and McGuire for the purchase of 100 pounds or marijuana for $10,000. Delivery was made on the highway outside the corporate limits of Fayetteville resulting in the arrests and subsequent convictions of Harris and McGuire.
Harris and McGuire were represented at the trial by separate attorneys. The appellant Harris’s attorney filed a motion for severance on the ground that he anticipated the state’s witnesses would quote statements made to them by McGuire which would tend to incriminate Harris; and that to deny the motion for severance would deny Harris the protection afforded him under the Sixth Amendment to the Constitution, the right to be confronted by witnesses, and the right to cross-examination. The motion was denied by the trial court.
The errors assigned under point I-A pertain to the voir dire examination of three prospective jurors, Van Duesen, Miller and Shepherd by McGuire’s attorney, Mr. Carlisle. The entire record on this point appears as follows:
MR. CARLISLE: Q. I will not belabor this, but there is one matter I would like to inquire about. Mr. Putman has, in general terms, described that when a defendant walks into this courtroom he is, first of all, presumed to be innocent, and until such time as the State proves beyond a reasonable doubt all of the elements of the offense with which he has been charged he is presumed innocent. As you know, I represent Lonny McGuire. In your deliberations would any of you give any weight to the fact that a defendant did not take the witness stand in his own behalf as any circumstance against him? The laws of the State of Arkansas say that a defendant is not required to take the witness stand; that the burden is upon the State of Arkansas to prove him guilty beyond a reasonable doubt. Now, some people have a little bit of difficulty in understanding that the fact that a defendant does not speak in his own behalf should not be held against him, and, in fact, go the other way and say to themselves, “Well, he didn’t get on the witness stand and deny it, so that is some inference of guilt.” That last statement is incorrect under the law and I want to see how you all feel about it. Do you follow my thought?
MRS. VAN DUESEN: Yes.
MRS. MILLER: (She nods her head affirmatively.)
MR. SHEPHERD: (He nods his head affirmatively.)
Q, How about you, Mr. Shepherd? Would you hold it against the defendants in this case if one or both of them did not take the witness stand? Would that infer to you in any way their guilt?
MR. SHEPHERD: No.
Q. How about you, Mrs. Van Duesen?
MRS. VAN DUESEN: No, I don’t think so.
Q. Mrs. Miller?
MRS. MILLER: No.
Q. And the testimony offered by the State of Arkansas in this case will primarily come from three (3) Federal Agents who will identify themselves as law enforcement officers of the United States Government, in the Federal Bureau of Narcotics. Do either of you have any tendencies to believe a witness merely because he happens to be a policeman?
MR. SHEPHERD: No.
MRS. VAN DUESEN: Not necessarily.
MRS. MILLER: (She shakes her head negatively.)
Q. It is sometimes felt that just because a man works in a law enforcement capacity or is a policeman, whatever you want to call it — of course these men are non-uniformed and proof will show they were undercover agents, commonly referred to as “nares,” but they are policemen and some people think that policemen should always be believed, regardless of the circumstances.
MR. GIBSON: Your Honor, I am going to interpose an objection. This is argument.
THE COURT: I believe that it is argument. Rephrase your question.
MR. CARLISLE: I haven’t asked the question, Your Honor.
THE COURT: I know, but I think you should limit it to a direct question.
MR. CARLISLE: Q. The mere fact that these three (3) gentlemen are law enforcement officers, would that give you any reason to give their testimony more weight than vou would any other witness?
MR. SHEPHERD: (He shakes his head negatively.)
THE COURT: Let me ask it this way. I am going to tell you that any witness on the stand should be treated the same, as far as evaluation of his testimony, regardless of his sex, color, age or religion.
MRS. VAN DUESEN: Yes, we understand.
THE COURT: You shouldn’t believe him or disbelieve him because he is a police officer, or if he is the defendant and takes the stand. You shouldn’t arbitrarily believe him or disbelieve him. In other words, the same set of criteria is applied to any witness regardless of occupation, sex, creed or color.
MR. CARLISLE: Q. My question is —
THE COURT: Can you follow that?
All three answer: Yes.
MR. CARLISLE: Q. Can you follow the Court’s instruction?
All three answer: Yes.
THE COURT: Are they acceptable?
MR. GIBSON: Yes.
THE COURT: Are they acceptable, Mr. Putman?
MR. CARLISLE: Your Honor, I will excuse Mr. Shepherd.
THE COURT: Mr. Putman, are they acceptable to you?
MR. PUTMAN: Yes, Your Honor, the other jurors are acceptable.
THE COURT: All right. Call one more name.
(The Court proceeds to interrogate the next three (3) jurors. Mr. Putman approaches the bench.)
THE COURT: Do you have an objection?
MR. PUTMAN: No, Your Honor, I have no objection. I simply have another matter that I want to take up with the Court at this juncture.
(Out of hearing of jurors:)
Comes now the defendant, Charles Harris, and renews his motion for a severance earlier made before this Court, which was of course taken down by the court reporter, for the reason that in his voir dire interrogation of the jurors, Mr. Carlisle has referred to the conse quences and possible reactions of the jurors in the event that the defendant or a defendant did not take the stand. We have the option, of course — Mr. Harris is entitled to the opition of mentioning or not mentioning this to the jury, just as is given to him the option of having the Court mention or not mention the fact that he did or did not take the stand. This deprives us of this option because it has already been brought to the jurors’ attention. Their attention has already been drawn to the fact that the defendants or a defendant may not testify. We feel this deprives Mr. Harris of his option to leave this totally unmentioned throughout the trial, and consequently calls for severance.
THE COURT: Overruled.
MR. PUTMAN: Note our exceptions.
THE COURT: Please stand Mrs. Canup, Mrs. Collins and Mr. Fennell. (Emphasis supplied.)
As to the first part of the appellant’s assignment under point I-A, no objection was made to the voir dire at the time it was made and the appellant accepted the jurors without challenge. The appellant has demonstrated no adverse or antagonistic interest between himself and his codefendant that would have demanded a severance. See Lewis and Wren v. State, 220 Ark. 914, 251 S.W. 2d 490. We conclude that under the state of the record before us, the trial court did not abuse its discretion in refusing to grant the appellant’s motion for a severance because of the questions propounded by McGuire’s attorney on voir dire. To hold otherwise would make it possible to force a severance in every case, as a matter of trial strategy, where codefendants are represented by separate attorneys.
The second portion of appellant’s point I-A pertaining to the remarks of the trial court related back to the voir dire of the three prospective jurors. The record is not clear as to whether the entire jury panel was in the courtroom when these jurors were being questioned on voir dire. It would appear, however, that the entire panel was in the jury room and were being called three at a time for voir dire. In any event, it appears to us that when the trial court held attorney Carlisle’s interrogation as argumentative and directed him to rephrase his inquiry by asking a direct question, the trial court was eminently correct. We are of the opinion, however, that after attorney Carlisle did rephrase his inquiry as above set out, the question, as rephrased, should have been sufficient. After the prospective jurors to whom the question was propounded had indicated a negative answer, the trial court inquired in a different manner as above set out.
It might appear at first glance that the phrase “or if he is the defendant and takes the stand,” would not be a prejudicial comment on the appellant’s failure to testify in the context of all that was said; but, this statement could have planted in the minds of the jury that the testimony of federal narcotic agents was exactly of the quality and verity as that of the accused; and, that although they should not arbitrarily believe or disbelieve either witness because he is a defendant or a police officer, if the police officer testified and the defendant did not, they would be left with no discretion in not believing the police officer and that to do so would not be arbitrary.
This phrase “or if he is the defendant and takes the stand” might be considered nonprejudicial when considered in the context it was given if it were standing alone but such was not the case. During the testimony of the appellant’s mother who testified at some length as to appellant’s family background; as to his work with underprivileged children; as to adjustment problems he encountered following the death of his father, and as to her own efforts to assist this 25 year old appellant in solving his problems by sending him to visit a friend in Brazil; the record then appears as follows:
Q. Living with you in Houston, did he have an opportunity to see some of the Mexican-American children who were poor and had to live under deprived and—?
MR. GIBSON: Your Honor, I am going to have to object. He’s leading the witness. It’s second-hand knowledge—.
THE COURT: I think what he saw is for him to say, rather than what she knows about what he did.
MR. PUTMAN: I’m going to take exception to the Court’s remarks. (Emphasis supplied.)
The trial court apparently felt that the attorney was going rather far afield in questioning appellant’s mother about the opportunity the appellant had to see poor and deprived Mexican-American children while living with her in Houston and certainly we are of the opinion the trial court had no intention to suggest to the jury that the appellant should testify. But when the two statements, “if he is the defendant and takes the stand,” and, “what he saw is for him to say,” are considered together, we cannot say they were not prejudicial to the appellant. We must remember that this was the trial court speaking for the benefit of the jury.
The state’s .witnesses had very definitely connected the appellant with the wholesale delivery of contraband but it is entirely possible that the jury may have considered the evidence, pertaining to the poor and deprived Mexican-American children the appellant may have seen in Houston, very material in assessing the penalty in this case. The court’s two statements could have left the impression with the jury that even though the appellant was not required to testify in his defense, and even though that fact should not be held against him; if the appellant did desire to take the witness stand and testify his testimony, under the law as stated by the court, would be just as valid and carry as much weight as the testimony of anyone who testified against him and that it was incumbent upon him to testify rather than depend upon someone else’s knowledge and testimony as to what he did. We conclude that the judgment must be reversed and the cause remanded for a new trial.
We deem it unnecessary to discuss appellant’s point I-B because it is not likely to arise again on retrial and we find no merit to the appellant’s point II. That portion of the closing argument of the prosecuting attorney, as set out in the appellant’s argument under his point II, appears as follows:
Possession? You heard the three agents get on this stand and say that the hundred pounds of substance was taken from these two defendants out there on Cato Springs Road on April 29th, 1974. There has been absolutely no testimony to contradict that. I don’t think that is even an issue at this point. They possessed it; a hundred pounds — Approximately one hundred pounds—.
The appellant argues that that portion of the prosecuting attorney’s argument, as above italicized, constituted prejudicial comment upon appellant’s failure to testify, but we disagree with the appellant. See: Edens v. State, 235 Ark. 996, 363 S.W. 2d 923; Moore v. State, 244 Ark. 1197, 429 S.W. 2d 122 and compare with Curtis v. State, 89 Ark. 394, 117 S.W. 521.
The judgment is reversed and the cause remanded for a new trial.
Harris, C.J., and Fogleman, J., dissent. | [
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J. Fred Jones, Justice.
This is an appeal by two corporations from a chancery court decree denying their petition for a restraining order against the appellee county officials to prevent the assessment and collection of ad valorem taxes on two tracts of land owned by the city of Pocahontas and leased to the appellants through the Municipal Airport Commission.
The Airport Commission leased one of the tracts here involved to William and Harold Baltz who constructed buildings thereon and then assigned all their interest to the appellant B.D.T., Inc. who was apparently a private manufacturing company. The other tract was leased to the appellant S.E., Inc. who erected buildings thereon and subleased to the Black River Seed Company, Inc. Both leases provided that industrial buildings would be erected on the land, and both leases contained clauses providing as follows:
The Lessees shall pay all taxes and special assessments, betterments, general or specific, whether levied or to be levied in the future and any other governmental charges and impositions whatsoever, whether forseen or unforseen.
* * *
The parties hereto covenant and agree that the lands above demised shall be used solely for industrial purposes and for no other reason.
Randolph County, through the appellee-officials, levied an ad valorem tax against the properties for the year 1974 in the amount of $2,248.99 resulting in the petition and decree as already stated. On appeal to this court the appellants have designated one point they rely on for reversal as follows:
The Assessment ofian ad valorem real property [tax] on real estate leased from a municipality for a public purpose constitutes an illegal exaction in violation of Article 16, Section 13 of the Constitution of the State of Arkansas.
Section 13 of Article 16 reads as follows:
Any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.
The right of the appellants to institute suit to protect against enforcement of any illegal exaction is not questioned in this case. The real question involved is whether the property was exempt from taxation under Article 16, Section 5, of the Constitution which provides such exemption for “public property used exclusively for public purposes.”
The appellants rely heavily on our decision in Wayland v. Snapp, 232 Ark. 57, 334 S.W. 2d 633, but we are of the opinion that our decision in School District of Fort Smith v. Howe, 62 Ark. 481, 37 S.W. 717, is more in point with the issues presented in the case at bar. The primary question in Snapp was the validity of a municipal ordinance authorizing a bond issue under Act No. 9 of 1960 for the purchase of land and erection of facilities to be leased to Seiberling Rubber Company, Inc. The secondary ad valorem tax issue in Snapp only arose out of an alleged promise of ad valorem tax exemption. Our statement of the law in disposing of that issue in Snapp can be of no assistance to the appellants in the case at bar, for in Snapp we said:
In his Complaint appellant alleges that: “The City of Batesville has represented to Seiberling that the land and manufacturing facilities to be leased to Seiberling by the City will be exempt from ad valorem taxes” in violation of Article 16, Sections 5 and 6 of the Arkansas Constitution. * * * As we understand the above provisions of the Constitution, for property to be exempted from taxation two elements must be present: (a) the subject property must be “public property,” that is, it must be owned (in this instance) by the City of Batesville; (b) it must be used exclusively for public purposes. In our opinion both of these elements, are present in the case under consideration as we shall attempt to show.
(a) It must be admitted here that the grounds, the building and facilities will be owned by the City of Batesville and will, therefore, be public property.
(b) Likewise, we think it is clear that the property will be used exclusively for a public purpose. If it is, it will be exempt from taxation under the Constitution and if it is not it must be taxed.
The dissenting opinion in Snapp, supra, did not differ with the majority opinion as to the law on the question of tax exemption. In the dissenting opinion is found the following pertinent language:
The constitution exempts “public property used exclusively for public purposes.” Const., Art. 16 § 5. Obviously the framers did not mean to exempt all public property, for in that event there would have been no need to insert the phrase, “used exclusively for public purposes.” The inclusion of that phrase demonstrates conclusively that the exemption does not embrace all publicly owned property; it must also be used exclusively for a public purpose.
After citing and discussing School District of Fort Smith v. Howe, supra, the dissent in Snapp then continues as follows:
We have many other cases to the same effect, holding that the tax exemption must be strictly construed and that property falls within one of the exemptions only if it is actually used for the exempt purpose. Brodie v. Fitzgerald, 57 Ark. 445, 22 S.W. 29; Pulaski County v. First Baptist Church, 86 Ark. 205, 110 S.W. 1034; Burbridge v. Smyrna Baptist College, 212 Ark. 924, 209 S.W. 2d 685; Hilger v. Harding College, 231 Ark. 686, 331 S.W. 2d 851.
The majority and dissenting opinions in Snapp agreed as to the law pertinent to tax exemption under Article 16, Section 5 of the Constitution, they only disagreed on this point as to the application of the law to the facts in Snapp.
We are unable to say the chancellor’s finding that the property here involved was not “used exclusively for public purposes” was against the preponderance of the evidence.
The decree is affirmed.
Byrd and Holt, JJ., concur. | [
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John A. Fogleman, Justice.
Appellant was the widow of Welby Earl Woods who was also survived by appellees Jerry A. Woods, Welby Larry Woods, Terry Wade Woods and Lois F. Hutchinson, children of a previous marriage. He left a testamentary document which was admitted to probate as his last will and testament. This will was executed April 2, 1968, prior to appellant’s marriage to the testator. His four children were the only devisees and legatees. After her husband died, appellant executed an agreement which provided, in substance, that she relinquished her right of dower and homestead, acknowledged that she was not entitled to any interest in the farming operation conducted by appellee Jerry Woods, and received certain real property and an equal share with each of appellees in other property of her deceased husband. This appeal was taken from a decree of the chancery court refusing to cancel and void her agreement in a suit brought by her seeking that relief. We find no reversible error and affirm.
Appellant first contends that the chancery court was without jurisdiction in the matter, because the probate court was vested with exclusive jurisdiction by virtue of Ark. Stat. Ann. § 62-3201 et seq (Supp. 1975). Appellant says that under the terms of this section she was a “beneficiary” because she was entitled to take an interest in her husband’s real and personal property by intestate succession. She further contends that the agreement into which she entered was a “disclaimer” as defined by the statute, i.e., a written instrument which unequivocally declines, refuses, releases or renounces an interest which would otherwise be received by her (as a beneficiary) signed, witnessed and acknowledged by her in the manner required by the statute.
The agreement involved was a written instrument signed by the parties in which it was agreed that it was the intention of all parties that the wishes of Welby Earl Woods be carried out; that appellant have the use of the home of decedent and his real property as long as she lived in the home; that Jerry A. Woods should pay to her one-fourth of the real property rent as long as appellant lived on the property and remained unmarried; that appellant should release and relinquish all right of dower and homestead or statutory allowance in the property of her husband and would not contest his will; and that the residue of his estate, after payment of his debts and expenses, should be equally divided among the parties to the agreement (i.e., appellant and appellees). The agreement contained a statement that the decedent had no interest in the farming operations of Jerry A. Woods and that decedent had relinquished any interest he may have had in farming machinery, equipment and the farming operation on January 1, 1968.
The sections of the act (Act 457 of 1973) relied upon by appellant are Ark. Stat. Ann. §§ 62-3201, 3203 (Supp. 1975) which read:
62-3201. Disclaimer of property and property interests - Definitions. As used in this Act [§§ 62-3201 - 63-3212], these terms shall have the following meanings ascribed to them:
(a) Beneficiary. The term “beneficiary” shall mean and include any person entitled (but for a disclaimer) to take an interest by intestate succession; by devise; by legacy or bequest; by succession to a disclaimed interest by Will, intestate succession, or through the exercise or nonexercise of the testamentary power of appointment, by virtue of a renunciation and election to take against a Will; as beneficiary of a testamentary trust; pursuant to the exercise or non-exercise of a testamentary power of appointment; as donee of a power of appointment created by a testamentary instrument; or in any other manner under a testamentary interest.
(b) interest. The term “interest” shall mean and include the whole of any property, real or personal, legal or equitable, or any fractional part thereof, share or particular portion or specific assets thereof, or any estate in any such property or power to appoint, consume, apply or expend property, or any other right, power, privilege, or immunity relating thereto.
(c) Disclaimer. The term “disclaimer” shall mean a written instrument which unequivocally declines, refuses, releases or renounces an interest which would otherwise be received by a beneficiary, and which defines the nature and extent of the interest disclaimed, and which must be signed, witnessed and acknowledged by the beneficiary in the manner hereinafter provided.
62-3203. Filing and notice. - (a) A disclaimer shall become effective when filed in the Probate Court for the county in which the estate of the person by whom the interest was created, or from whom it would have been received, is, or has been administered, or, if not Probate administration has been commenced, then in the Probate Court of the county in which the decedent was a resident at the date of his death.
(b) A copy of the disclaimer shall be delivered or mailed to the representative, trustee, or other person having legal title to, or possession of, the property in which the interest disclaimed exists, and no such representative, trustee or person shall be liable for any distribution or other disposition otherwise proper and which was made without actual notice of the disclaimer.
Appellant argues that the provision that a disclaimer shall become effective when filed in the probate court vests that court with exclusive jurisdiction in regard to matters concerning the validity of a disclaimer under the act. But we find nothing in the act, or in the words appellant relies upon which suggests to us that the General Assembly intended to vest in the probate court any jurisdiction, either exclusive or concurrent, to cancel an instrument. On the other hand, cancellation of instruments for fraud or undue influence in their procurement (as alleged here) has always been a matter for the exercise of chancery jurisdiction, perhaps exclusively. Furthermore, appellant herself invoked the jurisdiction of the chancery court, seeking relief which that court had the power to grant, so she is in no position to complain.
Appellant next contends that the chancery court erred in not invalidating the agreement for the reason that it was not filed with the probate court in the time and manner prescribed by Ark. Stat. Ann. §§ 62-3202, 3203 (Supp. 1975) and was not filed before a written waiver of the right to disclaim and a conveyance of property was entered into by appellant. Section 62-3202 requires that a disclaimer be filed after the creation of the interest disclaimed but within nine months after the date of death of the person from whom it would have been received. As will appear above, the disclaimer becomes effective upon its filing in the proper court. It is not shown that the instrument executed by appellant was filed in the probate court within nine months of her husband’s death. Appellant says that it is ineffective for that reason. Although the agreement may contain a disclaimer and might fall into that category for the basic purposes of the statute in question, it is more extensive, because there is an agreement among the widow and heirs of the decedent governing the distribution of his estate and eliminating a potential contest of the will. It seems clear to us that our statute governing disclaimers was never intended to supersede the common law family settlement agreement. To accomplish that purpose, the intention to do so must have been manifestly clear from the words of the act itself. It was not.
A disclaimer may be accomplished by means other than that prescribed by the act in question, because it clearly provides that it does not abridge the right of any person, apart from its terms, under any existing or future statute or rule of law, to disclaim any interest, or to assign, convey, replace, renounce or otherwise dispose of any interest. Furthermore, the language of § 62-3202 (a), which states that a beneficiary may disclaim an interest in the manner provided in the act, does not indicate that a disclaimer may be accomplished only in the manner provided in the act. There was clearly no legislative intention to make this method of disclaimer exclusive. We simply cannot find any intention to render ineffective a family settlement agreement which is not in compliance with the act in question.
Appellant also argues that her agreement was invalidated by her filing a written waiver of her right to disclaim and by her entering into a contract for the sale of an undivided one-hundreth interest in a 40-acre tract of land and in all personal property that she had a claim or title to, or right in, under the homestead statute, statute for widow’s allowance, or statute allowing a taking against the will. No consideration was paid, but the purchaser agreed to pay the value arrived at by an independent appraiser. She relies on Ark. Stat. Ann. § 62-3206 which provides that a contract to convey real property or contract to assign or transfer personal property or a written waiver of the beneficiary’s right to disclaim before the expiration of the period in which a beneficiary may lawfully disclaim shall bar the right to disclaim with respect to that property or interest. Of course, we find nothing to indicate that the statutory provisions relating to contracts are designed to protect anyone other than the purchaser, who is not a party to this action. The provision does nothing more than bar the withdrawal of a waiver. The statute does not, as appellant seems to indicate, relate to the filing of a disclaimer. It does operate to bar disclaimer following a waiver executed before the expiration of the period in which a beneficiary may lawfully disclaim. Regardless of the effect of the act, the subsequent acts of appellant could not invalidate a properly executed family settlement agreement.
Appellant somehow concludes that her agreement with appellees on the day after the decedent’s funeral to equally divide SI 4,000, which was buried in ajar, among the five is invalid because of a conflict with the statute. She argues that the $14,000 should become a part of her husband’s estate because the division was a transfer prior to the expiration of the period during which a beneficiary may disclaim. We are unable to follow this reasoning, because it appears to us that the agreement would be protected against a disclaimer by appellant. Whatever the effect may be, we find the act to be without effect on the transactions between appellant and appellees.
Appellant finally argues that appellees used undue influence to induce her to enter into the agreement and breached a confidential and fiduciary relationship with her, knowing full well that she was unaware and uninformed of her legal rights and the extent of her husband’s estate. The chancellor held that the preponderance of the evidence favored the finding that there was no fraud or imposition or overreaching by misplaced confidence practiced upon appellant either in the verbal agreement between the parties on June 14, when it was partially consummated, or on June 19, when it was reduced to writing. We are unable to say that the findings of the chancellor were clearly against the preponderance of the evidence, in spite of the fact that appellees elected to avail themselves of the services of the scrivener of the agreement as a trial advocate rather than as a witness, although it seems that he might have shed considerable light on the transaction. The chancellor did modify the agreement to enable appellant to receive her share of the profits from her husband’s lands, without living on it and without remaining unmarried, on the ground of mutual mistake in including these requirements in the agreement.
The relationship between appellant and her stepchildren was something less than cordial. It was highly unlikely that they could unduly influence her actions or that she suddenly had a confidence in them which had not previously existed. Her own daughter stated that she did not have a good relationship with them. This daughter came and stayed with her mother at least part of every day and sometimes at night after her stepfather’s death, and was present when her mother left home to go sign the agreement. She said that her mother was very nervous at the time and had not slept for several weeks. When this daughter suggested to appellant that someone accompany her when she went to sign the agreement, the mother declined, saying that they had agreed and that she would rather not have the witness or any of her brothers interfere.
Appellant’s husband died on June 12, 1974. Appellant testified that he was buried on a Friday and that appellee Terry Wade Woods and his wife stayed with her right after her husband’s death until the Saturday after the funeral. On Friday morning (June 14), prior to the funeral, but after the parties had paid the bill, she and appellees dug up $14,000 which had been buried near the corner of a shop building. This was split five ways so that appellant and each of the appellees received an equal share. She testified that when she signed the agreement she was unable to read, was upset, and was ignorant of the meaning of the terms “dower,” “homestead” and “statutory allowance” contained in the agreement. She says, without explanation, that she thought she had to do what appellees told her to do and that they told her not to bring anyone with her when the agreement was signed at the office of the lawyer who drew it. Prior to the trip to the lawyer’s office, she said there had been a conversation at her home among all the parties to the agreement, during which there was a division of money and a payment by one of the sons of $100 to each of the others, including her, for a Honda and another took her husband’s guns. She said appellees agreed that she should have “a lifetime dowry,” which is what she said her husband had said that she should have and that he had advised her to get a lawyer if appellees didn’t give it to her. She said she thought they were trying to be nice to her.
Appellant testified that after the agreement was signed she began having problems with the son who was farming the Woods land, and decided to contest the agreement when these problems arose; but that these problems were not the reason she made the decision. She said that she had been to a few lawyers during her lifetime, and that she had, on one occasion had one personal injury suit and another of some type. She disliked lawsuits. She talked to no lawyer prior to or at the time of the signing of the agreement other than the one who drew it. She had been aware of the existence of her husband’s will since 1968, and recalled her husband reading some of it to her subsequent to 1968.
Appellee Jerry Woods was appointed administrator. He testified that he saw appellant every day for several days after his father’s death and that she appeared to be normal and did not appear to be upset at any time. He said that after the funeral the whole family went “home” and discussed settlement of his father’s estate for more than two hours and arrived at the terms of the agreement. A part of the agreement was that appellees’ present attorney would prepare the document. This was signed at the attorney’s office on June 19, 1974. Jerry Woods said that all the family was present and that they related the terms of the agreement to the lawyer, who caused it to be typed by his secretary and gave each one a copy. He stated that each of them read it and that the attorney either read or stated appellant’s rights fb her. According to him, he did not know what her rights were until the parties were in the lawyer’s office. He recalled appellant’s saying that she knew that she was entitled to “possibly a third or a half,” at least, he said, more than she would get under the agreement.
Appellee Larry Woods testified that he suggested the lawyer’s name and, when he asked her if it would be satisfactory for him to prepare the agreement, she answered in the affirmative and said that this lawyer had helped her in a lawsuit. It was his recollection that appellant said that she could have gotten one-third of everything when she expressed her satisfaction just outside the lawyer’s office as she was leaving it. He also believed that the lawyer told her what her rights would be. He was sure that the words “dower,” “homestead,” and “statutory allowances” were mentioned. He corroborated Jerry’s testimony about the agreement at the informal family gathering before the written agreement was prepared.
Terry Woods testified that the family meeting to work things out was suggested by appellant. He thought that the lawyer told appellant that she was entitled to one-third. He said that, as she was coming out of the lawyer’s office, she expressed her satisfaction with the agreement and that he heard of no problems until three or four months later.
All the appellees who testified said that appellant did not appear to be upset at the time of the discussion when the terms of the agreement were arrived at or at the lawyer’s office when it was formalized and signed. It should also be noted that appellees contended that the buried money had been given to them by their father and that appellant was entitled to no part of it. Although we think their proof of gift failed, it is clear that their position could easily have caused litigation.
We deem no further recitation of testimony to be necessary. Comparison of the facts with those in other cases would be of little value. So much depended upon the credibility of the witnesses that we must defer to the judgment of the chancellor on that score. When we do, we cannot say that his findings were clearly against the preponderance of the evidence, which we would have to do to reverse the decree.
Appellant also argues that the chancellor erred in excluding the inventory filed by Jerry Woods, as administrator. The Chancellor refused to admit it, finding that it was not in conflict with the testimony of the witness. We find no reversible error on this point.
The decree is affirmed.
We agree. Harris, C.J., and George Rose Smith and Jones, JJ.
In this respect this case differs from Hilburn v. First State Bank, 259 Ark. 569, 535 S.W. 2d 810, in that the court in which appellant here sought relief was not without power to grant the relief sought. | [
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George Rose Smith, Justice.
A Fort Smith ordinance, adopted in 1972, requires that initiative petitions be filed with the city clerk “at least 90 days before the regular municipal election” at which the proposed measure is to be voted upon. The appellants tendered such a petition to the appellee, as city clerk, some 64 days before the next election (to be held in November). Upon the appellee’s refusal to accept the petition the appellants brought this suit for a judgment declaring the tender to have been timely. This appeal is from a decree upholding the city clerk’s refusal to accept the petition.
The Constitution provides that the time for filing a municipal initiative petition “shall not be fixed at less than sixty days nor more than ninety days” before the election. Ark. Const., 1874, Amendment 7. The appellants argue that the Fort Smith ordinance is contrary to the Constitution, because, they say, the municipal requirement that the petition be filed “at least 90 days” before the election fixed the filing date one day earlier than the constitutional mandate that it be not “more than ninety days” before the election.
The trial court’s decision is right. What the Constitution contemplates is that the city fix the last permissible date for the filing of the petition. That is the only date that is involved, because the proponents of the measure are at liberty to file their petition before that date. Fine v. City of Van Buren, 237 Ark. 29, 371 S.W. 2d 132 (1963). Unquestionably the city of Fort Smith could have required that the petition be filed “at least 60 days” before the election, because that language is an accurate paraphrase of the constitutional reference to not less than 60 days. That being so, the city must be entitled to move the date forward to any point up to and including “at least 90 days” before the election, as in the ordinance actually in force. Otherwise the 30-day leeway allowed by the Constitution would be reduced to only 29 days. Hence the ordinance is valid.
Affirmed. | [
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JIM GUNTER, Justice.
| t This is a second appeal which arises from an order of the Pope County Circuit Court denying an adoption petition filed by Appellant Callie Michelle Cox to adopt her biological child, M.K.C. We affirm.
In the first appeal, Appellant asserted that the circuit court erred in denying her petition for adoption by ruling that Arkansas Code Annotated section 9-9-204(3) (Repl.2002) does not permit an unmarried natural mother to adopt her own child. On June 5, 2008, we reversed the order of the circuit court and remanded the case for a consideration of the adoption petition on the merits. See In re Adoption of M.K.C., 373 Ark. 603, 285 S.W.3d 605 (2008) (M.K.C. I). Citing the reasoning set forth in King v. Ochoa, 373 Ark. 600, 285 S.W.Sd 602 (2008), handed down the same day, we held that the circuit court erred in its interpretation of § 9-9-204 and that the statute does permit an unmarried parent to adopt his or her biological child. On remand, the circuit court denied the adoption as not |2in the best interest of the child. Appellant now brings this appeal.
On appeal, Appellant asserts that the decision of the circuit court that the adoption of M.K.C. was not in the best interest of the child was clearly against the preponderance of the evidence, and the court’s denial of Appellant’s petition for adoption was clearly erroneous. Specifically, Appellant contends that (1) the circuit court erred in its application of Ark.Code Ann. § 9 — 9—215(a)(1) and (a)(2); (2) Appellant met all requirements of the Arkansas adoption statutes; and (3) the trial court erred in its dismissal of Appellant’s testimony as to abuse by the biological father.
Before an adoption petition can be granted, the circuit court must find from clear and convincing evidence that the adoption is in the best interest of the child. In re Adoption of AM.C.; Dixon v. Dixon, 286 Ark. 128, 689 S.W.2d 556 (1985). We will not reverse a circuit court’s decision regarding the best interest of a child to be adopted unless it is clearly against the preponderance of the evidence, giving due regard to the opportunity and superior position of the circuit court to judge the credibility of the witness. In re Adoption of A.M.C., 368 Ark. 369, 246 S.W.3d 426 (2007); In re Adoption of Lybrand, 329 Ark. 163, 946 S.W.2d 946 (1997).
Arkansas Code Annotated § 9-9-215 (Repl.2002) states, in pertinent part:
(a) A final decree of adoption and an interlocutory decree of adoption which has beeome final, whether issued by a court of this state or of any other place, have the following effect as to matters within the jurisdiction or before a court of this state:
la(l) Except with respect to a spouse of the petitioner and relatives of the spouse, to relieve the biological parents of the adopted individual of all parental rights and responsibilities, and to terminate all legal relationships between the adopted individual and his or her biological relatives, including his or her biological parents, so that the adopted individual thereafter is a stranger to his or her former relatives for all purposes. This includes inheritance and the interpretation or construction of documents, statutes, and instruments, whether executed before or after the adoption is decreed, which do not expressly include the individual by name or by some designation not based on a parent and child or blood relationship....
(2) To create the relationship of parent and child between petitioner and the adopted individual, as if the adopted individual were a legitimate blood descendant of the petitioner, for all purposes including inheritance and applicability of statutes, documents, and instruments, whether executed before or after the adoption is decreed, which do not expressly exclude an adopted individual from their operation or effect.
The circuit court found that, under § 9-9-215(a)(1) the effect of the adoption would impact the child’s relationship with the biological father because the relationship would involve the child’s right to support and inheritance.
In determining the best interest of the child, the court weighed the benefit of the child that would result from a separation from a biological father with which the child currently has no relationship against the detriment to the child that would result from the loss of support, right to seek support, and the right of inheritance. The court stated that the loss of a relationship that does not exist between the father and child “cannot be given much weight” as it “would require speculation.” The court went on to say that, as to the severance of the child’s right to receive financial support and inheritance, “the Court is without evidence as to the father’s financial circumstances or that of his family.” “To Uprovide any substantial weight in this regard would require speculation on the part of the Court.”
In applying § 9-9-215(a)(2), the circuit court found that Appellant is the natural mother and “the relationship contemplated under this subsection already exists.” The court then weighed the effect of § 9-9-215(a)(1) against the benefit to the child resulting from the creation of the relationship contemplated in § 9-9-215(a)(2). The court found that, because “the child currently enjoys all aspects of the relationship contemplated in that section,” the child does not gain anything from an adoption decree under § 9-9-215(a)(2). The court afforded “little, if any, weight” to the creation of such a relationship in its analysis.
The circuit court concluded that, when applying the statutory effect of the adoption to the circumstances at issue here, the adoption was not in the best interest of the child. On appeal, Appellant contends that the circuit court’s decision on remand does not adhere to this court’s mandate in the first appeal. We disagree. Our opinion in M.K.C. I simply reiterated that the plain language of section 9-9-204 allowed a natural parent to adopt his or her own child. Here, we conclude that it is appropriate for the circuit court in a best-interest-of-the-child analysis to consider the relative benefits or detriments of a child, including those set out by the General Assembly.
In addition to the statutory considerations addressed above, the circuit court had before it certain testimony. Appellant testified that she was unmarried and that the child has no legal father. No man has ever lived with her and/or the child and no man has ever ^provided for the child. No one has ever identified himself in a sworn document as the father or has ever registered with the putative father registry claiming to be the father. Appellant testified that she and the father were in a relationship for about three months. According to Appellant, he started using drugs and alcohol and would rape her every night. She also testified that he would hit her and his children. He would drink to the point that he would become abusive and then drink to the point that he would pass out. She testified that his children would splash in the bathtub and he would hit them with a leather belt while they were naked because he thought it was annoying. Appellant stated that she would fear for the welfare of her child if she had any contact with the father. Appellant’s mother, Kay Cox, has guardianship of the child because Appellant was having medical problems and was unable to care for the child. Appellant has always retained physical custody of the child. Kay Cox filed a consent on June 80th to the adoption proceeding. Appellant testified that she has the facilities and resources suitable to continue to provide for the care and nurture of the child. She stated that she wanted the court to terminate the prospective rights of any person who would claim to be M.KC.’s father.
Appellant’s mother testified that she had no reason to believe that Appellant was untruthful about the father’s drinking, his drug use, his criminal history, or the kind of physical abuse that he perpetrated on his own children. She also stated that she had heard Appellant’s allegations against the father from the time that Appellant told her that she was pregnant. However, she “was not around for much of the things [Appellant] talked about.”
lfiThe circuit court found that Appellant’s testimony regarding the rape and abuse to her and the abuse by the father of his children was not credible. Specifically, the court noted that when it came time to allege the multiple rapes by the child’s father, Appellant was “unable to do so with any degree of veracity.” The court also found that her lack of credibility continued through the allegations of drug use, alcohol use, and physical abuse of his two small children. “This lack of credibility combined with the complete absence of any supporting testimony, documentation, or other evidence as to the acts alleged, results in the allegations being afforded no weight in the Court’s determination of the best interest of the child.”
In order to grant the adoption petition, the circuit court must find that there is clear and convincing evidence that the adoption is in the best interest of the child. See In re Adoption of A.M.C, supra. We note that although the child’s father lived with Appellant for three months, he is not named. No paternity has been established. We also note the absence of corroborating testimony or evidence as to Appellant’s allegations regarding the father’s use of alcohol and drugs or the father’s abuse of his children, other than what Appellant told her mother. The circuit court is in a far superior position to observe the parties before it and to judge the credibility of the witnesses. See Posey v. Ark. Dep’t of Health & Human Servs., 370 Ark. 500, 262 S.W.3d 159 (2007). We give great weight to a trial judge’s personal observations when the welfare of young children is involved. In re Adoption of A.M.C., supra. It was Appellant’s burden to present credible evidence to convince the circuit judge |7that adoption was in the best interest of the child. Considering the circuit court’s determination that the effect of the adoption statute was speculative and that Appellant’s allegations against the father could be afforded no weight, she failed to meet this burden. Based on our standard of review that we will not reverse a circuit court’s decision regarding the best interest of a child to be adopted unless it is clearly against the preponderance of the evidence, we hold that the circuit court did not err in denying the adoption petition. Accordingly, we affirm.
Affirmed.
CORBIN, J., dissents. | [
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Carleton Harris, Chief Justice.
This litigation relates to the nature of a homestead exemption claimed by W. F. Stevens relative to land located within the limits of the incorporated town of Little Flock. Stevens contended, and the trial court held, that the land qualified for a rural homestead exemption under Article 9, Section 4, of the State Constitution. Appellant, Farmers Cooperative Association, Inc., asserts that said land qualifies only for an urban homestead exemption under Article 9, Section 5 of the Constitution. Appellant recovered a judgment against appellee in the amount of $10,-800.85 plus interest and, in the face of an execution, appellee contended that his 20 acres of real property were entirely exempt from execution because of being a rural homestead. Appellant asserted that Stevens was only entitled to the urban homestead exemption, constituting no more than one acre. From the judgment entered by the trial court comes this appeal.
The proof establishes that the 20-acre tract claimed to be exempt is used as defendant’s home and exclusively for agricultural purposes. Stevens is engaged in the business of selling eggs, boarding horses, and hiring himself out to other farmers to operate tractors and other farm work. Little Flock, though incorporated, contains no schools, no service stations, no industry, no motels, and the town property is zoned as agricultural. The record does not reflect that any municipal services are afforded except water, which is provided by a rural cooperative. The property was in an unincorporated area when acquired by appellee, and actually it appears that the incorporation was effected to prevent the cities of Rogers and Bentonville from annexing it.
It is apparent from our cases, though facts are different in all, that in doubtful cases, the use made of the property is very much pertinent to the question of whether a homestead is urban or rural; actually it would appear that each case stands on its own, facts. In Spaulding v. Haley, 101 Ark. 296, 142 S.W. 172, the court said:
The testimony in the case establishes the fact that Kingsville was a small village, probably within the meaning of the constitutional provision with reference to homesteads. But it also shows that the whole of the property which the court allotted to the widow as a homestead was farm property, and that it jutted into the outskirts of the village. Some of the witnesses testify that it was not a town or village but merely an aggregation of houses occupied by a few families as a part of their several farms under circumstances like unto the facts with reference to the property of Spaulding. The chancellor found that this property was used entirely for agricultural purposes, and that it therefore constituted a rural, and not an urban, homestead. We can not say that this finding is against the preponderance of the testimony.
In Orr v. Doughty, 51 Ark. 527, 11 S.W. 875, we said:
The tract had never been surveyed into blocks and lots or dedicated to village uses. It has been and is now used for agricultural purposes in connection with defendant’s contiguous farm, and is therefore a country homestead within the meaning of the constitution, notwithstanding the land upon which the defendant’s residence is situated juts into the village.
In Stuckey v. Horn, 132 Ark. 357, 200 S.W. 1025, the testimony reflected that the land in question was situated adjacent to a village (never incorporated) once known as Perrysmith, but later known as Bauxite. It was the site of a school with an enrollment of about 600 pupils, and there were two churches, a bank, a drugstore, two mercantile houses, a barbershop, a butcher shop, and a number of residences. About 3,000 people lived on various parts of the lands in the community and principal employment was labor performed for the Bauxite Company. The court said:
“The case of Spaulding v. Haley, 101 Ark. 296, presented a very similar question under the facts of that case, and in the syllabus there it is said:
‘Where land jutted into the outskirts of a village, but was used entirely for agricultural purposes, although part of it had been divided into lots by a prior owner, without making a plat or subdivision of it, a finding of the chancellor that it constituted a rural, and not an urban, homestead, will not be set aside.’
The land in this litigation had not even been divided into lots. Under this test, we think the land a rural homestead, and not an urban one, and the widow and minor children are not, therefore, limited to a claim of one acre, but may claim the entire eighty-acre tract as a homestead.”
It is thus evident that in determining whether a homestead should be classed as urban or rural, the court has carefully observed the use being made of the property and has considered such use of great weight in deciding the issue. Appellant points out that Little Flock was an incorporated town and it is argued that this is a significant fact. It is true that in the only case before this court that involved property within an incorporated town, First National Bank of Owatonna v. Wilson, (1896) 62 Ark. 140, 34 S.W. 544, we held the property to be an urban homestead, but facts which we deem very pertinent to making a determination (whether the property is urban or rural) are not shown. The town was Brinkley, which had been incorporated before Wilson had even purchased his property. The opinion is short and does not reflect what municipal services were provided. In fact, the case was submitted upon an agreed statement of facts which apparently only stipulated that Wilson’s homestead was in the town of Brinkley. The opinion also states, “We do not hold that the fact that one dwells within the limits of a municipal corporation will in all cases prevent him from holding as exempt a homestead of more than one acre.”
We do not consider the fact that Little Flock was incorporated to be controlling in this litigation. In the first place, the Constitution itself never used the word “incorporated,” but only uses the words “any city, town of village,” such con stitutional language apparently being used in the popular sense. In Southeast Ark. Levee Dist. v. Turner, 184 Ark. 1147, 45 S.W. 2d 512, this court had occasion to discuss the meaning of the word “town.” While the case did not involve the Homestead Exemption Act, it is informative on the question of how the word “town” has been construed. There, appellees were landowners in the Southeast Arkansas Levee District, just outside the incorporated limits of McGehee, and they instituted suit to enjoin the collection of an alleged excessive assessment against their property, asserting that they were not within the incorporated limits of McGehee. This court pointed out that the legislation involved did not make any distinction between incorporated and unincorporated towns and cited two previous cases clearly indicating that where the only word used is “town” it is to be taken in the popular sense. In holding that the appellees were subject to the tax, though not actually residents of McGehee, the court pointed out that these citizens had all conveniences which proximity to the city afforded. See also King v. Sweatt, 115 F. Supp. 215 (W. D. Ark. 1953) where Judge John E. Miller pointed out that there was no precise legal definition of the words “city, town or village,” in our Arkansas constitutional provisions relating to homestead and, that it must be presumed that such words were used in their popular sense. In the case before us, since the constitutional provision does not use the words “incorporated town,” we attach no significance to the fact that Little Flock is incorporated.
Summarizing, the subject property in the present litigation was used exclusively for agricultural purposes. Little Flock, with the exception of two churches, does not possess the characteristics of a town as it is generally considered, i.e., no schools, service stations, industry, motels nor, as far as the record goes, services normally furnished by a town.
For the reasons herein set out, we are unable to say that there was no substantial evidence to support the findings of the circuit court.
Affirmed.
There are two churches in Little Flock.
The court also commented that whether property occupied by the owner and claimed as a homestead is a rural or urban homestead is to be determined on the facts of each case, and further commented, citing Gainus v. Cannon, 42 Ark. 503 (1884) that homestead laws are to be liberally construed. | [
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Elsijane T. Roy, Justice.
Appellant Roger Clark was convicted on two counts of selling a controlled substance. The jury fixed his punishment at ten years in the State penitentiary and a fine of $5,000 on each count. It is from this conviction and sentence that appellant appeals.
On appeal, appellant first contends the court abused its discretion in denying his motion for a continuance. At arraignment on September 15, 1975, the case was set for trial on December 8, 1975. On October 17, 1975, appellant requested a continuance, stating:
* * ■* Said defendant has submitted himself to the Human Services Center of Russellville, Arkansas, for a program of psychological counseling and treatment pursuant to an order of this Court dated October 8, 1975; and that defendant and his attorney desire a period of time beyond the present trial date to utilize this counseling program in preparation of defendant’s case for trial.
Trial was then set for January 12, 1976. On December 30, 1975, counsel requested another continuance, citing his trial schedule as the basis for his motion. This motion was denied by letter from the court dated January 5, 1976, and received by counsel for appellant on January 7, 1976.
It is well settled that the granting or denying of a continuance is within the sound discretion of the trial court and that, on appeal, this Court will not disturb that decision unless abuse of discretion is shown. See Cox v. State, 257 Ark. 35, 513 S.W. 2d 798 (1974), and cases cited therein. Appellant here was represented by the same attorney at all stages of the proceedings, and four months was certainly adequate time to prepare this case for trial. Therefore we find no abuse of the trial court’s discretion in denying appellant’s motion for a continuance.
The second contention raised is that the court deprived appellant of due process of law by failing to immediately suspend all proceedings in the prosecution when appellant filed notice of his intent to rely upon the defense of mental disease or defect; and further failed to direct appellant to undergo examination and observation by a court-appointed psychiatrist or psychiatric hospital, as required by the new Criminal Code.
On January 8, 1976, only four days before trial, appellant filed a motion for application of the provisions of the new Criminal Code in his trial and a notice of intent to raise mental disease or defect as a defense pursuant to Ark. Stat. Ann. § 41-102 (4) (Crim. Code 1975). Although counsel for appellant had received a psychological evaluation of appellant from the Human Services Center of Russellville, Arkansas, in December of 1975 appellant did not comply with § 41-102(4), which provides that:
(4) A defendant in a criminal prosecution for an offense committed prior to the effective date of this Code may elect to have the construction and application of any defense to such prosecution governed by the provisions of this Code. Such election shall be made by motion to the court which is to conduct the trial. The motion shall be timely filed but not later than ten (10) days before the date set for the trial of the case, except that the court for a good cause shown may entertain such motion at a later time. (Italics supplied.)
Counsel for appellant knew as early as December that the above-mentioned psychological evaluation indicated that appellant suffered from schizophrenia, but he failed to so “notify the prosecutor and the court at the earliest practicable time.” Ark. Stat. Ann. § 41-604(1) (Crim. Code 1975).
Since timely request was not made as required by statute and no good cause was shown as to why the motion should be entertained at a later time the court was not required to proceed under the provision of the new Criminal Code. Consequently appellant’s case was controlled by the provisions of Ark. Stat. Ann. § 43-1301 et seq. (Supp. 1975). We find that the court has complied with the requirements of § 43-1301 in that appellant had been psychologically evaluated. The psychologist, Alan Tuft, who made the evaluation testified in appellant’s behalf at his trial. Furthermore, a written report from a qualified psychiatrist, Dr. W. R. Oglesby, was introduced without objection. Said report was made at the request of Mr. Tuft and considered in Tuft’s evaluation of appellant. The report in part read as follows:
It is my impression that this young man has average or above average intelligence. He knows right from wrong and is able to refrain from that which is wrong if he chooses to do so. I have found no past or present evidence of any psychosis or impairment of judgment which would affect his behavior. Therefore, it is my opinion that he is responsible for his behavior and should be held accountable for it. The best treatment in this situation would be for him to have to answer any consequences of his behavior. I do not feel that he would respond to any type of psychotherapy or medication.
It was certainly within discretion of the court to determine whether appellant was entitled to any further examination, and we find no abuse of discretion on this issue.
It is not necessary to discuss appellant’s last contention concerning denial of certain rights under the new Criminal Code (Ark. Stat. Ann. § 41-612) since, as heretofore pointed out in this opinion, he was not entitled to proceed under the new code because the request was not timely filed.
Finding no reversible error, the judgment of conviction is affirmed.
We agree. Harris, C.J., and Byrd and Holt, JJ.
The informations charge the offenses were committed on July 3, 1975, and the new Criminal Code became effective January 1, 1976. | [
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Conley Byrd, Justice.
Because appellant Ronald Mason, incompetent, had a guardian of his estate appointed prior to the date of his injuries, allegedly caused by appellee Jim M. Sorrell on January 10, 1972, the trial court by summary judgment held that his action for personal injuries filed by his guardian, The Arkansas Bank & Trust Company, on April 7, 1975, was barred by the three-year statute of limitations, Ark. Stat. Ann. § 37-206 (Repl. 1962). To sustain the action of the court, appellee contends that appellant is not entitled to the savings clause in Ark. Stat. Ann. § 37-226 (Repl. 1962), which provides:
“If any person entitled to bring any action, under any law of this state, be, at the time of the accrual of the cause of action, under twenty-one [21] years of age, or insane or imprisoned beyond the limits of the state, such person shall be at liberty to bring such action within three [3] years next after full age, or such disability may be removed.”
To avoid the effect of the savings clause, appellee relies upon such cases as Johnson v. Pilot Life Insurance Co., 217 N.C. 139, 7 S.E. 2d 475 (1940) and Dignan v. Nelson, 26 Utah 186, 72 P. 936 (1903) and contends as follows:
“Appellee respectfully submits that a review of the case law applicable to the running of the statute of limitations in cases involving incompetents will readily reveal that the Trial Court’s decision was eminently correct. it seems clear that the cases hold that where a cause of action accrues prior to appointment of a guardian the mere fact that a guardian is subsequently appointed will not toll the running of the statute. On the other hand, the cases just as uniformly hold that where there is a guardian already appointed at the time the cause of action accrues and where the guardian has the authority to prosecute the action, the statute begins to run both as to the guardian and the incompetent at the time the cause of action so accrues.”
The general rule with respect to savings clauses in favor of infants and incompetents is set forth in 54 C.J.S. Limitations of Actions § 235 (1948), as follows:
“As a general rule ünder the various statutes limitations do not run against infants during their minority. The exemptions ordinarily granted to infants, however, do not rest on any fundamental doctrine of the law, but on the legislative will expressed in the statutes; infants may be put on the same footing as adults in this respect, and unless excepted they so stand. In many jurisdictions, by express statutory enactment, or by judicial construction, where the statute excepts persons laboring under disabilities from its operation, even if not mentioning infants specifically, infants are within the saving clause of the statute, if it is purely a statute of limitation, affecting the remedy and not the right, and the statute does not run against them during such disability, even where such infant has a guardian or trustee who might maintain the action in the infant’s name, provided the title or right of action is in the infant. Where the title or right of action vests in a personal representative, guardian, or trustee, who is under no legal disability, it has been held that the statute of limitations begins to run notwithstanding the minority of the beneficiary, and, as discussed supra § 19, where the former is barred by the statute the latter is likewise barred, although there are also authorities holding that a minor may sue within the statutory period after attaining his majority, even where the representative or turstee is barred by the statute. Likewise, where a minor is seeking to toll the statute of limitations, his interest must be such as will enable him to maintain an action in his own name, and, where a suit is a purely derivative one, infancy of plaintiff does not except him from the bar of the statute of limitations.”
The majority rule as above stated is recognized m Johnson v. Pilot Life Insurance Co., supra, but it is there stated that “a different rule obtains in North Carolina” apparently because of the statutory duties and obligations owed by the guardian to the ward.
The result reached in Dignan v. Nelson, supra, arises because of the provisions of the Utah statute which gives possession of lands of an intestate to the personal representative. The court there held that since the statute started running against the administrator it continued to run against the infant.
We can find nothing in our guardian and ward statute that would require us to follow the minority view expressed in the cases cited by appellee when construing the savings clause set forth in Ark. Stat. Ann. § 37-226, supra. Of course, the rule with respect to infants under Ark. Stat. Ann. § 37-226 is equally applicable to incompetents.
It follows that the judgment must be reversed and remanded. | [
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J. Fred Jones, Justice.
Andie O. Patty was convicted at a jury trial for manufacturing marijuana, a controlled substance, in violation of Ark. Stat. Ann. § 82-2617 (Supp. 1975) and was sentenced to seven years in the penitentiary.
As a result of a search conducted by law enforcement officers, about 60 young marijuana plants were found growing under apparent cultivation on the appellant’s premises, with one large plant growing in her backyard. Some marijuana seed and cigarette butts containing marijuana were found in her house. The plants were confiscated and the appellant readily admitted to the police officers that the plants belonged to her; that she plantéd the seed and was producing the marijuana for her own use. The appellant Patty testified at her trial that she made a tea from marijuana seed and extracted juice from the marijuana plants and drank the tea and juice as a cure and to prevent the recurrence of cancer, and that this treatment had been very effective for that purpose. She said she intended to harvest the young marijuana plants within about a week after she was arrested and the plants were confiscated. She said she intended to extract the juice from the plants by running them through a juicer, and intended to drink the juice for the cure and prevention of cancer which she thought was recurring in her body. The appellant was originally charged with the possession of marijuana for the purpose of delivery or sale and with manufacturing marijuana. She was acquitted on the charge of possession with intent to sell but was convicted, as already stated, on the charge of manufacturing.
On appeal to this court the appellant has designated eight points on which she relies for reversal but we shall not discuss them separately because most of them were based on the contention that by statutory exemption marijuana may be legally grown by an individual for his own use. This contention was advanced and rejected on the second appeal in the case of Bedell v. State, 260 Ark. 401, — S.W. 2d — (1976), which opinion was handed down on the same day the case at bar was orally argued. In Bedell we said:
The appellant is mistaken in his argument that the manufacture of a controlled substance for one’s own use is not an offense. The personal-use exemption applies only to the preparation or compounding of such a substance. Ark. Stat. Ann. § 82-2601 (m) (Supp. 1975). Manufacture, however, includes production, which in turn includes planting, cultivating, and growing the substance. § 82-2601 (u). There is abundant proof that Bedell was growing marijuana on his farm. In fact, he so admitted on the witness stand.
Ark. Stat. Ann. § 82-2601 (m) (Supp. 1975), above referred to, reads as follows:
“Manufacture” means the production, preparation, propagation, compounding, conversion or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container, except that this term does not include the preparation or compounding of a controlled substance by an individual for his own use or the preparation, compounding, packaging, or labeling of a controlled substance.
The appellant also argues that there are two sections of the statute providing different penalties for the manufacture of marijuana and that the trial court erred in not reducing the charge against the appellant to the lesser penalty set out in Ark. Stat. Ann. § 82-2618 (Supp. 1975) which reads as follows:
DISTRIBUTION—Criminal penalties.
(a) It is unlawful for any person:
(1) who is subject to this Act [§§ 82-2601 — 82-2638] to distribute or dispense a controlled substance in violation of Section 2 [§ 82-2616] of Article III;
(2) to manufacture a controlled substance not otherwise authorized by the laws of this State, or to distribute or dispense a controlled substance not authorized by the laws of this State;
(3) to refuse or fail to make, keep or furnish any record, notification, order form, statement, invoice or information required under this Act;
(4) to refuse an entry into any premises for any inspection authorized by this Act; or
(5) knowingly to keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place, which is resorted to by persons using controlled substances in violation of this Act for the purpose of using these substances, or which is used for keeping or selling them in violation of this Act.
(b) Any person who violates this Section is guilty of a crime and upon conviction may be imprisoned for not more than one [1] year, fined not more than $25,000 or both.
It will be noted that this provision was contained in the original Controlled Substances Act, Act 590 of 1971. The 1971 Act was amended by Act 186 of 1973 whereby marijuana was removed from Schedule I of the original Act and was placed in separate Schedule VI along with tetrahydrocannabinol, and the penalty for manufacturing marijuana is provided for in § 82-2617 which reads in part as follows:
(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 SI5,000, or both.
There has been considerable confusion growing out of the amendments to the Controlled Substances Act pertaining to marijuana. See White v. State, 260 Ark. 361, 538 S.W. 2d 550 (1976), and Bedell v. State, 257 Ark. 895, 521 S.W. 2d 200. “Manufacture” includes “production” and “propagation” (§ 82-2601 [m]) and “production” includes the manufacture, planting, cultivation, growing or harvesting of a controlled substance (§ 82-2601 [u]).
The appellant admitted that she planted, cultivated and grew marijuana and intended to harvest it. She contended, however, that she could not be guilty of manufacturing marijuana because the term “manufacture” did not include the preparation for her own use and she intended to extract the juice from the plants for her own use. The fallacy of this contention lies in the fact that the appellant was not charged, tried or convicted for the “conversion or processing of a controlled substance” or with manufacturing a controlled substance “by extraction from substances of natural origin.” She was charged, tried and convicted for manufacturing the marijuana by planting, cultivating and growing it, which apparently is the only way it can be manufactured or produced, and the personal reasons one has for such production are of little consequence.
The appellant argues that a witness, Lelland Walker, invoked his Fifth Amendment rights against self-incrimination when called to testify and the prosecuting attorney argued to the jury that Walker was afraid of self-incrimination because he had purchased marijuana from the appellant. The prosecutor’s argument and any objections thereto are not abstracted, and the appellant’s cbntention she was entitled to a mistrial is without merit. Furthermore, the appellant was acquitted of possession with intent to sell or deliver.
The appellant contends, however, that she learned after the jury returned its verdict that one Curtis Willingham had heard an adverse witness, Mr. Turner, tell Walker that he could invoke his Fifth Amendment rights and did not have to testify. It appears that Willingham was called as a witness by the appellant in support of her motion for a new trial, but the trial court sustained the state’s objection to Willingham’s testimony offered out of the presence of Turner and Walker as hearsay. Apparently the state did not participate in any alleged discussion between Turner and Walker and no proffer as such was made of what Willingham would have testified.
Furthermore, as already stated, the appellant was acquitted of possession of marijuana with intent to deliver or sell and was only convicted of manufacturing by growing it, which she readily admitted.
The judgment is affirmed. | [
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Elsijane T. Roy, Justice.
On January 4, 1972, Dollie Vivian CarlLee entered into a lease agreement with appellant Marie Dupree for a term of five years. The lease term was to run from January 2, 1972, until December 31, 1976. Appellant took possession of the leased premises pursuant to the lease and performed her obligations under the lease until she was evicted from the premises.
At the time the lease was executed, Mrs. CarlLee had only a life estate in the leased property, the remainder in terest having been conveyed to Gene Wirt by warranty deed recorded on February 10, 1966. However, the lease made no mention of the fact that Mrs. CarlLee’s interest was only that of a life tenant.
On August 27, 1974, approximately sixteen months before the lease term expired, the lessor, Mrs. CarlLee, died. Wirt thereafter canceled appellant’s lease agreement effective January 1, 1975. This suit followed against Mrs. CarlLee’s estate in order to obtain compensation for breach of the lessor’s covenant of quiet enjoyment. The case was submitted to the court upon stipulation of facts. Both parties moved for a summary judgment, and appellee’s motion was granted. This appeal followed.
Appellant argues that she was entitled as a matter of law to a cause of action against the estate of appellee-lessor for breach of the lessee’s covenant of quiet enjoyment. The trial court relied on Edwards v. Griffin, 228 Ark. 844, 310 S.W. 2d 798 (1958), as dispositive of the issue because Edwards held that upon the death of a tenant for life all interest of his lessee ceases. However, the Edwards case deals only with the rights of the evicted lessee and the remainderman of the life tenant. It establishes that the lessee cannot compel the remainder-man to carry out the terms of the lease and that the remainderman can evict the lessee. It does not involve an action by the lessee against the estate of the lessor after eviction.
In Re O’Donnell, 240 N.Y. 99, 147 N.E. 541 (1925) is a case in which an action was brought by a lessee against the estate of the lessor-life tenant for a breach of the covenant of quiet enjoyment. The court held the action was proper and the lessee was entitled to recover damages for the breach from the estate of the deceased lessor. In Re O’Donnell is not necessarily contra to Edwards, supra, since Edwards treats only the rights between the lessee and the remainderman; any other comments beyond that point are dicta and not controlling on the issue here.
6 A.L.R. 1506, a pertinent annotation, states:
A lease made by a tenant for life terminates “eo instante” on his death, and if there is a covenant, express or implied, for quiet enjoyment, the estate of the lessor is liable for a breach thereof. Duker v. Kaelin (1906) 28 Ky. L. Rep. 900, 90 S.W. 959; Hamilton v. Wright (1895) 28 Mo. 199; Snedecker v. Thompson (1899) 26 Misc. 160, 56 N.Y. Supp. 775; McIntyre v. Clark (1894) 6 Misc. 377, 26 N.Y. Supp. 744.
Another annotation to the same effect is found in 171 A.L.R. 489.
See also § 27 of 41 A.L.R. 2d 1448, which in part states:
* * * The following cases appear to approve, either expressly or impliedly, the rule that an eviction of the lessee by the holder of a paramount title, or by the lessee yielding to such a title, constitutes a breach of the covenant for quiet enjoyment. (Italics supplied). (Citing cases).
In Re Hunt’s Estate, 120 Misc. 174, 197 N.Y.S. 633 (1923), the court stated:
* * * If Hunt, or his attorney, had said nothing to the lessee regarding the character of his ownership, and the eviction had taken place upon his death prior to the termination of the term of the lease, compensatory damages would arise, because the withholding of the knowledge of the life tenancy of the lessor was such lack of good faith in law as to approximate fraud on the part of the lessor, and the execution of the lease by the lessor without disclosing the quality of his estate would be held to have misled the lessee.
In Petroleum Collections Incorporated v. Swords, 48 Cal. App. 3d 841, App. 122 Cal. Rptr. 114 (1975), it was held that in the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment. There was no language to the contrary in the case at bar. The agreement described the property and stated it was leased to lessee:
II.
To have and to hold the said premises unto the LESSEE for the term of five (5) years, from the 2nd day of January, 1972, until and including the 31st day of December, 1976.
After establishing the terms of payment the lease continued:
VII.
LESSOR covenants with LESSEE that LESSEE shall and may peaceably and quietly enjoy, have and hold the leased premises during the term aforesaid.
Appellee contends that appellant has no cause of action because the warranty deed executed by Mrs. CarlLee had been recorded in 1966 prior to leasing the property in 1972 and appellant had constructive notice that Mrs. CarlLee’s estate was limited. We do not agree. Mrs. CarlLee knew her interest was limited because of the previously executed deed, but she made no mention of it in the lease contract. Under these circumstances we find appellant has a cause of action against Mrs. CarlLee’s estate for breach of the covenant of quiet enjoyment. The court should have denied appellee’s motion for summary judgment.
Reversed and remanded.
We agree. Harris, C.J., and Byrd and Holt, JJ.
This case is cited with approval in Dave Herstein Co. v. Columbia Pictures Corp., 4 N.Y. 2d 117, 172 N.Y.S. 2d 808, 149 N.E. 2d 328 (1958). | [
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John A. Fogleman, Justice.
Appellant was found guilty of possession of a controlled substance (marijuana) with intent to deliver. For reversal he challenges the validity of a search of an automobile which was being driven by him. About 100 kilograms of marijuana were found in its trunk. The trial judge, holding that the search was valid as a “consent search,” denied motions to suppress this evidence and to quash the information, both of which were based upon the asserted invalidity of the search. We affirm without reaching the question of the validity of the consent, because we find that the search without a warrant and not incident to arrest was not unreasonable under the circumstances.
At approximately 7:55 p.m. on April 28, 1975, appellant was driving east on Interstate Highway 40 near Lonoke, when he was stopped by Arkansas State Police Trooper Imboden, who was observing traffic along the highway. Imboden testified substantially as follows:
I was sitting approximately two miles west of Lonoke, eastbound, when I noticed a Ford Fairlane, occupied by two persons who appeared to be very young, pass at an extremely slow rate of speed. The occupants were sitting very low in the seat and appeared to be in the 14 year age group. The vehicle was travelling at 37 miles per hour as shown by my “radar” but slowed to at least 30 miles per hour when it passed me. The flow of traffic, which was moderate, was proceeding at 55 to 60 miles per hour, at the least. It seemed to me that the vehicle, which bore California license plates, was blocking traffic and creating a hazard. The car was “sitting down in the back and reared up in the front.” It is a part of my duties to see that traffic is flowing smoothly. I pulled out and “pulled them over.” I stopped the car for several reasons. The first was because of speed. I stop every car driving at 37 miles per hour in moderate or heavier traffic. I stop vehicles driven by persons sitting low in the seat because I suspect they might be too young to drive. I stop vehicles driving at 37 miles per hour because I suspect drunkenness. I wanted to find out why a person driving all the way from California was going so slow. When I started after them, I suspected it was a stolen car. I got out of the vehicle and directed the driver to come to me at the back of his car. I asked for his driver’s license. It was a Texas license. He appeared to be intoxicated, and I suspected alcohol, but I couldn’t smell anything. He wasn’t coherent and just didn’t act right to me. I asked for proof of ownership of the automobile and he produced a registration in someone else’s name. Perez, the driver, said the car belonged to a relative or friend. I went to the right front of the car to talk to the passenger, who turned out to be a girl. I asked her who she was and where she was going. She would not respond or look at me at first, but finally after I asked several times, she said that she was going to Tennessee or somewhere, she did not know for sure, and said she was just riding with Perez. When I was at the right front of the car, I noticed a spare tire, a suitcase or two, and some clothes in the back seat. I had been informed through intelligence meetings of the Arkansas State Police that Mexican-Americans that had equipment of this nature in the back seat were possibly carrying illegal contraband or mari juana. I was told through written information and also through contact with CID officers to be on the lookout for Mexican-Americans in a variety of cars from Texas and California carrying spare tires and clothes in the front, with the car sitting down. Except for the information from the State Police, all I had was a hunch or belief about this particular individual. I asked Mr. Perez what he had in the trunk, because it looked suspicious and I wanted to see what his reaction would be. He said he had some clothes. I asked if he minded if I saw what was in the trunk and he did not say anything. I said, “You don’t have to, but I would like to see what is in the trunk.” Without any further response he went and put the keys in the trunk and opened it. It was difficult for Perez to understand what I was saying but I felt that this was due to his intoxication and not to a language problem.
Perez denied that he was intoxicated. He testified he had smoked a marijuana cigarette about three hours earlier and had taken “speed” about eight hours earlier. He stated that he opened the trunk of his vehicle because of the officer’s menacing appearance, demeanor and gestures. He denied that Irnboden told him he had a right not to open the trunk. He said that the trooper told him that he had been stopped because the car had “highjacker” shock absorbers. Perez stated that he was driving at a speed of 48 to 50 miles per hour. The testimony of the passenger tended to corroborate that of Perez as to the officer’s actions and statements and as to the speed of the vehicle.
It is the duty of the State Police to patrol the highways and to enforce the laws of the state relating to motor vehicles and the use of the highways. Ark. Stat. Ann. § 42-407 (Repl. 1964). Therefore, the original intrusion upon Perez’ freedom of movement was justified as a proper investigatory stop, either to determine the reason for the subject vehicle’s slow speed, which violated Ark. Stat. Ann. § 75-604 (Supp. 1975) or to determine if the driver was of legal age to operate a vehicle. Ark. Stat. Ann. § 75-309 (Supp. 1975). See Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972). In either event, it was proper for the officer to demand that Perez exhibit his driver’s license. Ark. Stat. Ann. § 75-323 (Repl. 1957).
When Officer Imboden actually confronted him the defendant manifested symptoms of intoxication and displayed a driver’s license from one state and a registration certificate from another, issued to an entirely different person. In addition, the clues to which Imboden had been alerted by the CID and the State Police were manifested in “plain view.” Assuming the officer had no more than a suspicion before he stopped Perez, either Perez’ apparent intoxication coupled with evidence that the vehicle may have been stolen or the “plain view” evidence that the vehicle contained contraband justified a thorough search.
It is well established that warrantless searches of automobiles that are constantly movable may be reasonable when, under the same circumstances, a search of a home, store or other fixed piece of property would not be. Cooper v. California, 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967); Brinegar v. U.S., 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949). An important consideration in contrasting automobile searches with other types is that the extent of police-citizen contact involving automobiles will, of necessity, be substantially greater than such contacts in a home or office; therefore the citizen’s expectation of privacy in his auto is not the same as in his home. Also, “community caretaking functions” will more likely bring police officers in plain view of evidence of crimes or contraband in a car than in a home or office. Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973).
Whenever a police officer has reasonable cause to believe that contraband is being unlawfully transported in a vehicle then the vehicle may be the object of a warrantless search. Gordon v. State, 259 Ark. 134, 529 S.W. 2d 330; Carroll v. U.S., 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 ALR 790 (1925). Determination of the soundness of his concluding that probable cause for the search existed is made in the light of the particular situation, with account taken of all the circumstances. Gordon v. State, supra; Brinegar v. U.S., 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949). See also, Adams v. Williams, supra; Sibron v. New Tork, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968). Even though a stop for a traffic violation may not justify a vehicle search, circumstances surrounding the stopping together with facts becoming apparent to the officer after the stop has been made may afford probable cause to believe that the vehicle contains contraband. Gordon v. State, supra. In such cases, given exigent circumstances, the right to search and the validity of the consequent seizure depend on the reasonableness of the cause the seizing officer has for believing that the contents of the automobile offend against the law. Cox v. State, 254 Ark. 1, 491 S.W. 2d 802, cert. den. 414 U.S. 923, 94 S. Ct. 230, 38 L. Ed. 2d 157; Moore v. State, 244 Ark. 1197, 429 S.W. 2d 122, cert. den. 393 U.S. 1063, 89 S. Ct. 714, 21 L. Ed. 2d 705.
Given probable cause, the search here was valid if it was not reasonably practical to obtain a search warrant. Tygart v. State, 248 Ark. 125, 451 S.W. 2d 225, cert. den. 400 U.S. 807, 91 S. Ct. 50, 27 L. Ed. 2d 36. See also, Scott v. State, 249 Ark. 967, 463 S.W. 2d 404; Maltos-Roque v. U.S., 381 F. 2d 130 (5 Cir., 1967). Cf. Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971).
As pointed out in Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970), the circumstances furnishing probable cause to search a particular automobile for particular articles are most often unforeseeable, so that, if an effective search is to be made, it must often be made immediately and without a warrant or the car must be seized and held without a warrant for whatever period is necessary to obtain a warrant. Accordingly, the court held in Chambers that, for constitutional purposes, given probable cause to search, either course is reasonable under the Fourth Amendment. Since Imboden was alone and the parties were obviously nonresidents of the state, it would have been foolish for him to have left the vehicle in quest of a search warrant at that hour of the night. The impracticality of obtaining a search warrant in this case is obvious. The chances of successfully executing a search warrant after the passage of time required to obtain one were speculative to say the least. Cf. Husty v. U.S., 282 U.S. 694, 51 S. Ct. 240, 75 L. Ed. 629 (1931). It is recognized that normal police procedures in a metropolitan area may be neither normal nor possible on a rural-area roadside. Cady v. Dombrowski, supra.
The critical inquiry then is whether there was probable cause for Officer Imboden to believe that the contents of the automobile offended against the law, i.e., were contraband. The question of reasonableness or unreasonableness is one of realistic and not theoretical approach. Schwimmer v. U.S., 232 F. 2d 855 (8 Cir., 1956), cert. den. 352 U.S. 833, 77 S. Ct. 48, 1 L. Ed. 2d 52. The rule of probable cause is a practical, nontechnical conception. Brinegar v. U.S., supra; Adams v. Williams, supra. Probable cause is to be evaluated from the viewpoint of a prudent and cautious police officer at the time he acts, and not from the vantage point of a library. The question is a pragmatic one to be decided in the light of a particular case and the answers are not to be found by the application of a mathematical formula. Constitutional standards permit common sense and honest judgments by police officers in their probable cause determinations. Sanders v. State, 259 Ark. 329, 532 S.W. 2d 752. See also, Brinegar v. U.S., supra. Judicial review should take into account the fact that a police officer has to act upon the spur of the moment and that he is not a constitutional lawyer, nor is he afforded the luxury of hindsight usually possessed by reviewers of his action. State v. Contursi, 44 N.J. 422, 209 A. 2d 829 (1965); State v. Johnson, 230 A. 2d 831 (R.I., 1967). In appraising the evidence, regard must be given to the nature of the believed crime, and the recognized methods or devices of its commission and the common and specialized experience and work-a-day knowledge of policemen taken into account. State v. Contursi, supra; State v. Miller, 47 N.J. 273, 220 A. 2d 409 (1966). The question is whether the facts available to the officer at the moment of the search would warrant a man of reasonable caution to believe that the action taken was appropriate, Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); People v. Tassone, 41 Ill. 2d 7, 241 N.E. 2d 419 (1968), cert. den. 394 U.S. 965, 89 S. Ct. 1318, 22 L. Ed. 2d 567; or whether the search is one which fair-minded persons, knowing the facts, and giving due consideration to the rights and interests of the public, as well as to those of the suspect, would judge to be an unreasonable or oppressive intrusion. State v. Criscola, 21 Utah 2d 272, 444 P. 2d 517 (1968).
As we see it, the same standards govern probable cause whether the question is validity of a search and seizure or validity of an arrest. In the context of warrantless arrest, we have said that probable cause is a reasonable ground for suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe the accused had committed a crime. Johnson v. State, 249 Ark. 208, 458 S.W. 2d 409; Sanders v. State, supra. We have also said that probable cause exists when the facts and circumstances within the officer’s knowledge and of which he has trustworthy information are sufficient to warrant a man of reasonable caution in the belief that an offense is being committed. Jackson v. State, 241 Ark. 850, 410 S.W. 2d 766. See also, Adams v. Williams, supra.
A reasonable suspicion of an officer that the driver of a motor vehicle is intoxicated has been held sufficient justification, not only for stopping the vehicle, but for searching for intoxicants or drugs when driving a motor vehicle while under the influence of intoxicants or drugs is a violation of such statutes as Ark. Stat. Ann. §§ 75-1027 (Repl. 1957), 75-1029 (Supp. 1975) and 75-1026.1 et seq (Supp. 1975). State v. Gustafson, 258 S. 2d 1 (Fla., 1972). We have held that a person’s conduct while under the observation of a police officer is a proper factor to be considered in evaluating probable cause. Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458. See also, Terry v. Ohio, supra; Peters v. New York, sub. nom. Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968). The fact that the rear of the automobile appeared to be low was a significant fact when considered with other information tending to cause the officer to believe that there was contraband in the automobile. See Burke v. State, 235 Ark. 882, 362 S.W. 2d 695, cert. den. 373 U.S. 922, 83 S. Ct. 1523, 10 L. Ed. 2d 421. See also, People v. Bringardner, 233 Mich. 449, 206 N.W. 988 (1926); Nichols v. U.S., 176 F. 2d 431 (8 Cir., 1949).
In considering the evidence available to Officer Imboden, it was proper for the officer to take into consideration conditions identifiable as the basis for a suspicion that the contents of the vehicle offended against the law in the collective experience of law enforcement officers who have dealt with detection of illegal transportation of a controlled substance. Cf. Terry v. Ohio, supra. The mere fact that Imboden’s information about this experience was hearsay is not destructive of probable cause based in part thereon. See Jackson v. State, supra; Jones v. State, supra. Probable cause is evaluated by the courts from collective information of police and not merely on the personal knowledge of the officer making the decision. Johnson v. State, supra; Jones v. State, supra. When the conduct of Perez and the absence of an odor of alcohol were considered in the light of the other information possessed by the officer, what otherwise was only a reasonable suspicion was supported by circumstances sufficiently strong to warrant a reasonably cautious, discreet and prudent police officer in the exercise of common sense to arrive at the honest judgment that the vehicle contained contraband. Nothing more is required. Husty v. U.S., supra; Sanders v. State, supra.
The officer would have been derelict in his duty had he not searched the automobile. Cf. Russell v. State, 240 Ark. 97, 398 S.W. 2d 213; Terry v. Ohio, supra. It has been said, in a case involving the search under the rear seat cushion of an automobile for intoxicating liquors, that the search was the duty of the searching officer, who had approached an empty vehicle parked in a dark alley and, upon throwing the beam of his flashlight into the vehicle, had discovered several empty tin cans of one gallon capacity and a back seat cushion so disarranged as to make it appear that something was concealed under it. Smith v. State, 155 Tenn. 40, 290 S.W. 4 (1927). The Tennessee court aptly pointed out that the policeman is a watchman to seek for probable offenders and offenses against the law, and that the security of citizens is dependent upon the faithful performance of his duties. While that case involved duties of an officer in a metropolitan area, it is recognized that in non-metropolitan areas enforcement of traffic laws and supervision of vehicular traffic may be a large part of the officer’s duties. Cady v. Dombrowski, supra.
The exigencies of the situation made a search of the automobile proper, with or without the consent of the person who was in control of the vehicle. See Husty v. U.S., supra. Nor was the scope improper. See People v. Jackson, 241 Cal. App. 2d 189, 50 Cal. Rptr. 437 (1966); People v. Superior Ct., 44 Cal. App. 3rd 207, 118 Cal. Rptr. 586 (1974). Even if appellant consented to the search, he merely consented to what might have been done without his permission. Cf. Patrick v. State, 245 Ark. 923, 436 S.W. 2d 275.
Since we find the warrantless search to be reasonable, the judgment is affirmed.
We agree: Harris, C.J., and George Rose Smith and Jones, JJ. | [
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Frank Holt, Justice.
Appellant was convicted by a jury of the sale of marijuana in violation of Ark. Stat. Ann. § 82-2617 (Supp. 1975). This was the third trial of a marijuana sale by the same jury panel within three days. Each case involved different defendants. However, the same prosecuting witness, Richard Lott, an undercover officer, was the principal state witness in each case. Immediately before appellant’s trial, he moved for a continuance on the grounds that some of the jurors, because of the guilty verdicts in the two previous trials, had prejudged the credibility of the prosecuting witness. The motion was denied. Appellant then challenged for cause those persons who had served on the two preceding cases. These challenges were denied by the court whereupon appellant exhausted his peremptory challenges. Appellant contends on appeal that the trial court erred in its refusal to grant him a continuance and in not granting his challenges for cause.
The thrust of appellant’s argument is that since several jurors in his case had previously sat on juries which convicted defendants based on the testimony of Lott, the state’s main witness in all three cases, he was denied his constitutional rights of an impartial jury and due process of law because appellant’s jury had prejudged Lott’s credibility. Defendants in the two previous cases were assessed $2,000 fines and five year prison sentences. Here, the jury assessed appellant’s punishment at seven years’ imprisonment and a $1,000 fine.
Appellant first invokes Ark. Stat. Ann. § 43-1920 (Repl. 1964), which provides that a challenge for implied bias is proper when it is shown that a prospective juror has “served on a trial jury, which has tried another person for the offense charged in the indictment.” We have held adversely to appellant’s argument that this statute is applicable in the case at bar. Hall v. State, 125 Ark. 263, 188 S.W. 801 (1916); and Sorrentino v. State, 214 Ark. 115, 214 S.W. 2d 517 (1948). See also 47 Am. Jur. 2d Jury § 309. In Hall we held:
The mere fact that the jurors had served in another case in which the defendant and others had been indicted would not disqualify them as jurors in the present case; and in order to sustain the exception, it devolved upon the defendant to show affirmatively that the jurors had served in another case which disqualified them from serving in the present case. **** The presumption is, until the contrary appears, that they were not disqualified by prejudice or otherwise.
In Sorrentino we said:
The juror was not incompetent merely because he had served at the trial of some other defendant charged with an offense of the same character as that charged against appellant.
However, appellant vigorously argues the better view is that a defendant is denied an impartial jury whenever a jury, which convicts him, is selected from the same jury panel which has decided cases involving the same government witness or witnesses in a similar, although separate, transaction. As persuasive authority, appellant relies upon Priestly v. State, 19 Ariz. 371, 171 P. 137 (1918); State v. Hammon, 84 Kan. 137, 113 P. 418 (1911); Temple v. State, 15 Okl. Cr. 176, 175 P. 733 (1918); Scrivener v. State, 63 Okl. Cr. 418, 75 P. 2d 1154 (1938). See also 3 A.L.R. 1201 and 160 A.L.R. 732 and the dissenting view at p. 619 in Casias v. United States, 315 F. 2d 614 (10th Cir. 1963), cert. denied 374 U.S. 845.
However, our U.S. 8th Circuit Court of Appeals has addressed itself to this subject. In U.S. v. Williams, 484 F. 2d 176 (1973), it was held that the two defendants there were not denied an impartial jury merely because it was the seventh consecutive jury that had been selected from the same jury panel involving the same government witnesses. There, as here, the court conducted an extensive voir dire of the jury and no juror indicated that he could not serve as an unbiased and impartial juror. Further, here appellant’s counsel addressed the jury on the subject of impartiality after ex hausting his challenges and no juror indicated actual or implied bias. In Williams the court said:
At the most the challenge must rest entirely on a per se theory of implied bias. This Court rejected a like argument in Johnson v. United States, 484 F. 2d 309 (8th Cir. 1973), and prior federal cases are uniformly to the same effect. **** As this Court stated in Johnson, supra, we do not endorse the procedure followed here as being preferred or the most desirable. Still we cannot say that its use is reversible error in the absence of some showing of actual prejudice.
Here, as indicated, according to the record, neither the voir dire by the court nor the defense counsel’s query to the jury established any bias or prejudice on the part of any member of the jury. Furthermore, it is well established that our constitutional guarantee of an impartial jury is a judicial question which is addressed to the sound discretion of the trial court. Lane v. State, 168 Ark. 528, 270 S.W. 974 (1925); and Montaque v. State, 219 Ark. 385, 242 S.W. 2d 697 (1951). Also the refusal of a motion for a continuance is within the sound discretion of the trial court. Perez v. State, 236 Ark. 921, 370 S.W. 2d 613 (1963). In the case at bar appellant has not demonstrated a manifest abuse of the discretionary authority which is accorded the trial court. However, as aptly said in Williams, supra, “[A]s this Court stated in Johnson, supra, we do not endorse the procedure followed here as being preferred or the most desirable.” Consequently, we do not foreclose the possibility that an abuse of discretion could be shown in other cases.
Neither can we agree with appellant that the credibility of the government witness is a question of fact within the meaning of Ark. Stat. Ann. § 39-105 (Supp. 1975), which disqualifies a petit juror who has served in a previous case “involving any of the same questions of fact.” Here it was for the jury at each trial to determine Lott’s credibility in the separate transactions which involved different defendants. Therefore, his credibility was not the “same” question of fact in each case.
Affirmed.
Byrd, J., dissents. | [
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Mr. Justice Compton
delivered the opinion of the Court.
This was an indictment for Sabbath breaking. The appellant pleaded in abatement, substantially as was pleaded in the case of Wilburn vs The State, decided at the present term; and upon the plea, an issue of fáet was made up and submitted, for trial, to the court sitting a jury.
The court found the issue for the State, and rendered judgment against the appellant for fine and costs. This was error. The issue should have been tried by jury, as falling within the rule laid down by this court in Wilson vs. The State 16 Ark. 601; Bond vs. The State 17 Ark. 290. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
This was an action on the official bond of a constable. A demurrer was sustained to the declaration, and the plaintiff brought error.
The suit was brought in the name of the State, for the use of Birnie & Meyer against Holleman, the principal in the bond, and Main one of his securities.
The declaration, after setting out the bond, assigned breaches substantially as follows:
That Birnie & Meyer, on the 11th of October, 1852, sued out, from the office of Samuel Edmondson, esq., a justice of the peace within and for the township of Upper, in the county of Sebastian, a writ of attachment against the goods, etc., of one George Holen, directed to the constable of said township, commanding him to attach the said Holen by all and singular his goods and chatties, etc., etc., etc., or so much thereof as would be sufficient to secure the sum of $75, the debt sworn to, with interest, and costs of suit; which writ of attachment was, on the 11th day of October, 1852, delivered to said Holleman, while in full force, to be executed; and was by him, on the day and year aforesaid, levied on divers goods and chatties of said Helen, of the value of $75, which said goods and chatties were then and there taken into the possession of him the said Hollé-. man, then and there being constable of said township. That afterwards, and while Holleman was constable as aforesaid, on the 17th of Nov., 1852, by the consideration and judgment of said justice, the said plaintiffs recovered against said Holen, the defendant in attachment, $75 debt, $10 damages, and $4 81 costs of suit; — and that, on the 20th day of September, 1853, they sued out of the office of said justice a writ of execution on said judgment, which was directed to the constable of said township, and, on the same day, came to the hands of said Holleman, constable of said township, as aforesaid, to be by him executed; by which said execution he was commanded that of the goods and effects of said Holen, attached under said writ of attachment, to-wit: one looking glass, etc., etc., [Here the goods attached are described!], to levy the said sum of $75 debt, $10 damages, $4 31 costs, etc., of the said property and effects of the said Holen, according to law, so that he pay the same over to the said plaintiffs, and have their receipt therefor, or the said moneys, before the said justice on the return day of said writ; and he was further commanded that he^make due return of said writ within thirty days from the date thereof to the said justice — ■“ And the plaintiff avers that the said Holleman did not execute all process to him directed and delivered, and in every respect discharge all the duties of his office of constable of Upper township according to law, but so to do wholly failed. That he wilfully and negligently refused and neglected to levy the said execution on the goods so levied on as aforesaid by said attachment, and wilfully neglected to advertise the same for sale, and wasted and destroyed said goods, so attached, as aforesaid, to satisfy the moneys which by the said execution he was commanded to make, or any other sufficient property to satisfy said debt, although he had the said property, in said execution mentioned, in his possession, and might and could have levied on sufficient property to satisfy the moneys which by said execution he was commanded to make, he wholly failed to do so, whereby the plaintiffs’ debt was wholly lost to them.
“ And, for a further breach of said writing obligatory, the said plaintiff says that the said Holleman, constable as aforesaid, did not, within thirty days of the issuance of the said execution, return said execution to said justice, as he was thereby commanded, but, to return said execution, hath hitherto wholly neglected and refused.
“ And the said plaintiff avers that the said defendants, or either of them, hath not paid the one thousand dollars in said writing obligatory specified, or any part thereof; and by means of the premises an action hath accrued to the said plaintiff to have and demand of the said defendants the sum of $178 82 that being double the amount of said plaintiff’s debt, damages and costs in said execution specified; yet the plaintiff in fact says the defendants, or either of them, hath not paid the said sum of money or any part thereof, but to pay the same hath hitherto wholly failed and refused, and still fail and refuse so to do,” etc.
The causes of demurrer assigned are as follows:
1. “Thereis no sufficient breach, or breaches, of the condition of the bond alleged in the declaration.
2. “ It is not alleged in the declaration that the defendant Holleman did not, as such constable, by virtue of said execution, have the amount of the judgment recited therein, nor the receipt of the plaintiffs in said judgment, before the said justice, at the return day of the said writ.
3. “There is no allegation that, by reason of any breaches of the condition of the bond sued on, an action hath accrued to the plaintiff to have and recover the penalty of the bond, or that said bond.is thereby forfeited.
4. “ It is not alleged that the penalty of the bond has not been paid by defendants, nor the other parties to the bond not sued; and the declaration is otherwise, informal, uncertain and wholly insufficient in law,” etc.
It would seem that the plaintiff meant to assign two special breaches of the bond:
1. That the officer did not levy on and sell the property taken in attachment and remaining in his possession when the execution came to his hands.
2. That he failed to return the execution.
For the first breach of official duty he, and his sureties, were liable for the amount of m.one}r specified in the writ. Gould's Dig., sec. 74. But the right of action did not accrue until the officer was guilty of the further failure to have the money, for which he had thus made himself liable, on the return day of the execution, and to pay it over according to the command of the writ. lb. sec. 75. And his failure so to do should have been alleged in the breach. State use, etc., vs. Engles, 5 Ark. 26. For want of this averment, the breach was bad.
For the second breach of official duty, the failure to return the execution, the officer, and his sureties, were liable to an action on the bond for the amount of the execution, with interest thereon at the rate of one hundred per cent, per annum, etc. Could’s Dig., ch. 99, secs. 171, 174, 177.
But the breach alleging the failure of the officer to return the execution is insufficient, because it does not contain the requisite averments to constitute, of itself, a sufficient breach, and it cannot be aided by the facts alleged in the preceding breach. State use, etc. vs. Hammett et al., 2 Eng. 492; Lyon vs. Evans et al., 1 Ark. 349; Phillips vs. Governor, 2 Ib. 382.
Both of the breaches specially assigned being defective, as above stated, the demurrer was properly sustained, and the judgment must be affirmed. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
In July, 1855, the keel boat Fashion, belonging to Daugherty, was ascending the White river, from Jacksonport to Buffalo City, with a cargo of salt; and on reaching Batesville it was found that the river was too low for the boat to get up higher without putting' off part of her load. — accordingly, an officer of the boat, on the 7th of July, made a contract with the firm of Burr & Co., (composed of Burr and Archer,) who were merch ants at Batesville, and kept a wharehouse on the bank of the river, to receive on storage about 460 sacks of salt. The salt was put out of the boat, on the sand bar, about three hundred yards from the warehouse, and on the same day, the most of it was removed to, and deposited in a shed attached to the warehouse; but a portion of it remaining on the sand bar during the following night, it was damaged, and part of it destroyed by an unexpected rise of the river.
On the 24th of the same month, Daugherty commenced an action of replevin against Burr & Co. for the salt. Such of it as had not been wasted by the river was replevied by the sheriff, and delivered to him; and afterwards, upon a trial of the cause, he recovered judgment against them for $72 50 damages, and for costs. A new trial was refused them, and they excepted and appealed.
1. The first ground of the motion for a new trial is, that the court erred in permitting the appellee to recall the witness John Ledger after he had been examined in chief, cross examined, and after several other witnesses had been examined.
On his first examination, Ledger testified in relation to an alleged tender made by appellee to appellants of the amount of the charges due them for storage, &c. The court permitted him to be recalled on a statement of the counsel of appellee that his memory had been refreshed by hearing the deposition of Alexander read, who also deposed in relation to the tender; and upon the further statement of the counsel that he wished to prove by Ledger that the salt replevied was the same salt that was stored at the warehouse of appellants, etc.
On his second examination, the witness stated nothing in relation to the tender that he had not testified on his first examination; and he stated nothing in relation to the identity of the salt that was not proven by other witnesses.
The application for permission to recall the witness was addressed to the sound legal discretion of the presiding judge, and there being no showing that such discretion was abused to the prejudice of appellants, it is not the subject of review by this court. The People vs. Mather, 4 Wend. R. 231; Freleigh vs. The State, 8 Mo. 612; Brown vs. Burrus, Ib. 30.
2. The next ground of the motion for a new trial is, that the instructions given to the jury at the request of the appellee, as well as those given on its own motion, were erroneous.
The instructions given at the instance of the appellee, are as follows:
1st. “ If the jury believe from the evidence, that plaintiff stored with the defendants the property in the declaration mentioned, or any part thereof; and that the plaintiffs were entitled to the possession of the same at the commencement of this suit, and had paid or tendered to the defendants the amount due them for storage of the property in the declaration mentioned, before the institution of the suit; and demanded the delivery of the property to plaintiff from the defendants, and defendants refused to deliver the same, they must find for the plaintiff.
2d. “ To constitute a tender in law, it is not necessary to count out the money to defendants. The production of the money due from plaintiff to defendants for storage of the goods in question, and an offer by the plaintiffs to pay the same to defendants, is sufficient.
3d. “ If the jury believe fi’om the evidence, that plaintiff stated, in the presence or hearing of Burr & Co., or any member of the firm of Burr & Co., that he had tendered to them, or him, the money due for storage of the goods in question, before this suit was instituted, and they, or he, having heard the statement, and not making denial of its truth; this is a strong circumstance showing that tender had been made by plaintiff to the defendants in apt time.
At the request of the appellants, the court instructed the jury as follows:
1st. If the jury find from the evidence, that the defendants kept a warehouse, and received any portion of the salt in the declaration mentioned, from the plaintiff, to be stored by them until called for by the plaintiff, that the defendants were only bound as warehousemen to make use of ordinary diligence about the preservation of such salt; and if they find from the evidence that the defendants did make use of ordinary diligence in the preservation of said.salt, and the salt was damaged by an unexpected rise in the river, that the defendants are not liable for the damage caused by such unexpected' rise in the river.
2d. If the jury find from the evidence, that the plaintiff deposited with the defendants, as warehousemen, the salt mentioned in the declaration, or any part thereof, to be stored by the defendants, and that the defendants were to have a certain amount for the storage thereof; that, in law, the plaintiff cannot maintain this action unless the jury further find from the evidence, that before the commencement of this suit, the said plaintiff, or some person for him, tendered to the defendants the amount of money due them for the storage of such salt, (or that the defendants waived such tender,) and demanded of the defendants the said salt, and a refusal of the defendants to let the plaintiff have the salt.
The following are the instructions given by the court on its own motion.
“1st. The first enquiry for the jury is, whose salt is it.
2d. The value of the separate sacks of salt.
3d. The damage.
4th. A tender, in order to be good in law, must be actually produced. The law attaches great importance to the production of the money, as the sight of it might tempt the creditor to yield and accept it. It must be in sight and capable of immediate delivery; but it will be sufficient to show that if the creditor was willing to receive it, it was ready to be paid. To support a tender of money, it is .necessary to show that the precise sum due, or more, was actually produced in current money, and such as is made a legal tender, and actually offered to the creditor. But if the creditor say, you need not show your money, I will not accept it, or anything to supersede the production of the money,.in such case it is not necessary actutually to produce or exhibit the money.”
It is objected to the first instruction given for the appellee, that it is not broad enough — that the court told the jury that appellee was entitled to recover if he had paid or téndered to appellants the amount due them for the storage of the salt, etc., when they had a lien also for money advanced by them for hauling the salt from the river to the warehouse, which the appellee was bound to have paid, or tendered to them before suit.
There appears to have been no controversy at the trial, about the right of the appellants to be paid the expenses incurred by them, for hauling the salt from the river to the warehouse, as well as for keeping it there. The contract between the parties, as proven by appellee’s own witness, was, that the salt was to be stored at the rate oí seven cents per sack for the first month, and three cents a sack for each additional month it might remain in the warehouse; and that Appellants were to be paid the necessary expense for hauling from the river, etc.
It is manifest, therefore, that the court did not mean, by the language employed in the instruction in question, to make a distinction between the expense of hauling the salt from the river, and the charge for storage proper, or to exclude the former, and that the jury could not have so understood the court, but that both were included. It will be observed that in the second instruction moved for the appellant, t,he same language is employed — the amount due them for the storage of the salt — as in the first instruction given for the appellee.
Looking at all of the instructions given by the court in relation to the subject of tender together, and it is not perceived that they are subject to any substantial objection. That given by the court, of its own motion, which is most complained of, appears to have been copied almost literally from several sections of Mr. Greenleaf’s article on Tender, in his work on Evidence, 2 vol., p. 582. The evidence conducing to establish the tender is by no means of a very satisfactory character, but the instructions cannot be said to be abstract — they were based upon some evidence, and the jury were the judges of its weight.
The 1st, 2d and 3d instructions given by the court, on its own motion, if they may be termed instructions, declare no legal proposition at all, but were merely designed to call the attention of the jury to the subject, or points in the cause, to which they were to direct their attention in making up their verdict, and could, in no way, have been prejudicial to the appellants.
3. It was assigned as further grounds of the motion for a new trial, that the damages assessed by the jury were excessive, not supported by any evidence, and that the verdict was informal, etc.
The verdict of the jury was as follows:
“We, the jury, find the property in the declaration mentioned to be in the plaintiff; we also find the separate value of each sack of salt in the declaration mentioned, to be $2 50; we also find the damages sustained by the plaintiff, by reason of the detention to be $72 50.”
The court rendered judgment in favor of the appellee, for the amount of damage assessed by the jury, and for costs.
It was proven on the trial that the salt was deposited in the shed attached to the warehouse, on the 7th of July, 1855, the suit was commenced on the 24th of the same month, and the salt replevied and delivered to the appellee on the next day. At what time the salt vims demanded by the appellee of the appellants, does not certainly appear, but it is to be inferred from the evidence, that the demand was made but a few days before the suit was commenced. It was not proven that appellee suffered any special damage by the detention of the salt after demand, and the jury must have embraced in the amount of damage assessed by them, the value of the salt that was destroyed whilst it was on the sand bar, by the rising of the river.
The principal point of controversy upon the trial, judging from the evidence, seems to have been, whether the appellants were responsible for the damages done to the salt by the sud den and unexpected rising of the river, before all of the salt was removed from the sand bar to the warehouse.
Adams, the clerk of the keel-boat, who made the contract with the appellants for the storing of the salt, testifies, positively, that they were to receive it at the river, and another witness testifies, that Shaw, their clerk, did receive it there; but Shaw testifies, with equal positiveness, that appellants were to receive the salt at their warehouse, and were not to be responsible for it until it was delivered there, and that he did not receive it at the river.
It may be assumed, however, for the purposes of this case, that the jury were warranted in finding that appellants agreed to receive the salt on the sand bar, it being their province to judge of the weight of the evidence.
The evidence also conduces to prove that 460 sacks of salt were put out of the keel-boat on the sand bar.. That the boat’s hands commenced putting out the salt about 11 o’clock, a. m., of the 7th of July, and that by the time they had put off ab rat 50 sacks, a wagon belonging to Burr, and several others, commenced hauling the salt up the bank of the river to the warehouse, and continued to haul until night, but did not get all of the salt up. That the river was very low, the weather dry, the sky clear, and no appearance of rain, or probability of a rise in the river — that during the night an unexpected rise came from above, swelling the river several feet at the sand bar, where the salt was lying. On the next morning about daylight, an officer of the keel-boat awoke the clerk of appellants, and informed him that the river had risen, and that the salt was being destroyed, and the clerk immediately went down, employed hands, and removed so much of the salt as had not fallen into the river, or been wasted by the water.
Assuming that the appellants agreed to receive the salt on the sand bar, they were bound, as warehousemen, to exercise ordinary diligence in its removal to the place of -storage, and its preservation from waste. Story on Bail. 465. If for want of common and reasonable diligence in the removal of the salt from the sand bar, a part of it was destroyed, they are doubtless responsible to the appellee therefor in the proper form of action.
But assuming that the jury found from the evidence in this case, and that they were warranted in finding, that a portion of the salt was lost for want of proper diligence on the part of appellants in its removal from the sand bar, the question recurs, was it in accordance with law for them to include the value of the salt so destroyed in their assessment of damages for the detention of the salt in this form of action, as they must have done? The proof shows that nine of the sacks of salt deposited on the sand bar went into the river and weie lost, and that the water was over some 10 or 15 other sacks, and wasted most of the salt from them. The sheriff returned upon the writ that he replevied from appellants and delivered to appellee, “421 sacks of salt, and thirty pieces of sacks of salt.” it was proven that no damage was done to the salt after it was removed to the warehouse, but that it was kept there safe and dry until replevied. In other words, to state the matter briefly, a portion of the sacks of salt sued for were not in existence when the suit was commenced, but their value was included in the amount of damages assessed by the jury.
The action is replevin in the detinet for 462 sacks of salt alleged to have been placed in the hands of appellants as bailees, and unlawfully detained after demand, etc.
This form of action is statutory. It lies in cases of bailment, or in any case where the plaintiff is entitled to the immediate possession of personal property, and it is wrongfully detained by the defendant. The action is for the property in specie, and damages for its detention. If the goods sued for have been replevied under the writ and delivered to the plaintiff, and he recover in the action, the judgment is, that he retain the goods, and recover of the defendant the damages assessed by the jury for their unlawful detention. If he goods have not been replevied and delivered to the plaintiff, the judgment is that they be replevied and delivered to him without delay, or, in default thereof, that he recover from the defendant the value of the goods as ascertained by the jury, as well as the damages assessed for their detention. Goulds Dig., chap. 145, secs. 1, 37-8-9.
In this case, if the whole of the salt had been in existence when the suit was commenced, and but part of the sacks had been replevied and delivered to the plaintiff, he would have been entitled to judgment that he retain the sacks replevied, and that the remaining sacks be replevied and delivered to him, or, in default thereof, that he recover of the defendants the value thereof, as assessed by the jury, together with such damages as the jury might have assessed for the detention of the whole of the salt from the time of the demand — the defendants being bailees. But, as above shown, a portion of the salt had been destroyed before the suit was commenced.
If the whole of the salt had been swept from the sand bar, by the rise of the river, and none of it had been in existence at the time the action was commenced, could replevin in the dctinet have been maintained therefor against the appellants? We think not, and the objection applies to so much of the salt as had been destroyed in this case before suit.
Replevin in the detinet, tinder the statute, and detinue are similar actions in all respects, except that in the former action the plaintiff may obtain possession of the property by means of the original writ, by executing the bond required by the statute; and, in the latter action, the possession abides the determination of the suit.
In Caldwell vs. Fenwick, 2 Dana 333, the action was detinue for two slaves, and it was proven on the trial that one of them was dead before the institution of the suit. The question was, could the suit be maintained for the slave that was dead, and the court said: “ It seems to us that it cannot. The frame of the action and the principles of pleading prohibit it. Detinue is a mode of action given for the recovery of a specific thing, and damages for its detention. Though judgment is, also, rendered in favor of the plaintiff for the alternate value, provided the thing cannot be had; yet the recovery of the thing itself is the main object and inducement to the allowance of the action. The thing sued for has to be so specifically described , in the writ, declaration, judgment, and execution, that it may be distinguished from other things of the same species. The action is not adapted to the recovery alone of the value of a thing detained; nor can it be maintained therefor. The alternate judgment for the value, is but a mere incident to the judgment for the thing; nor can it be rightfully rendered, except where there is a judgment for the thing, from which it can result as an incident or consequence. It would seem, therefore, to be an indispensable requisite that there should be a thing sued for. A demand for a dead slave does not fulfill this requirement. It is not a thing of estimation or value, such as the law requires to constitute the basis of an action.”
“ Upon the principle of obviating inconvenience (continues the Court) the action is allowed where the defendant has parted with the possession before suit brought. But where the, thing is still in existence, it is a something to be sued for, and,' per possibility, the defendant may obtain it, and surrender it in discharge of the judgment (1 Dana 18). Where the thing hast-’ been utterly destroyed before suit brought — where it no lcfngf’r exists, the plaintiff’s claim is reduced to a mere demand foy reparation in damages, to be pursued by other and more apprq-(' priate remedies. Where the slave died after the suit was commenced, it was held that the action was maintainable. 4 Bibb 270.”
In Lindsey vs. Parry, 1 Ala. 204, the Court said: “No cáse has been referred to establishing the principle that an action of detinue will lie after the destruction or death of the chattel sued for; nor have our researches enabled us to discover any; on principle, we think huch an action cannot be maintained. The action is brought for the recovery of the specific article or its alternative value. We do not subscribe to the position that it is at the election of the party to deliver the article after the judgment, or not, at his pleasure, where it is in his power to deliver it But the writ is framed, and its precise object is, to recover the article in specie, and when this is impossible at the, time of the action brought, so that the object of the writ cannot be accomplished, the action will not lie.”
See also Cutter vs. Wittenhall, 3 Hill 577, where the Court said: “ In order to maintain replevin, the plaintiff must show a right to have delivery of the property at the time of the issuing of the writ. The proceeding is partly in rem, and unlike trespass or trover, which seeks damages only.” Also Boyan vs. Stoutenburgh, 7 Ohio 471.
If by culpable negligence of the appellants, a portion of the salt placed in their care as bailees was destroyed before the commencement of this suit, the remedy of the appellee for the value of that portion of the salt, is by an appropriate action on the contract of bailment.
The verdict of the jury for $72 50, being without any evidence to sustain it, the judgment must, for this error, and for it only, be reversed, and the cause remanded, with instructions to the court below to grant the appellants a new trial.
Mr. Justice Fairchild did not sit in this case. | [
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Mr. Justice Fairchild
delivered the opinion of the Court.
Among the pleas interposed by Sebastian in defence of this suit, which is an action brought against him as surety for James E. Jackson, a former guardian of the plaintiff below, and appellee, were three that were quashed on demurrer; and the object of this appeal is, to have the judgment that was rendered against Sebastian by the Phillips Circuit court reversed, for its alleged erroneous action upon these pleas.
The pleas in question were the 6th, 7th and 8th of those tiled by Sebastian.
The 6th plea, in substance is: that before the execution of the bond declared on, James B. Jackson had been duly appointed guardian of the appellee, by the Probate Court of Phillips county, and had given a bond for the performance of his duties, to which William Weatherly and Henry M. Grant were securities, which Iv nd was approved by the Probate Court; and that while Weatherly and Grant were Jackson’s securities, and before ¡Sebastian was, the money, the non payment of which is the cause of action set forth in the declaration, came to the hands of Jackson, and was by him then wasted.
The effect of the plea is to throw the responsibility of the guardian’s waste upon his securities at the time of the waste, at least not to charge Sebastian with a loss that did not happen dur'hrg-his suretyship.
We think the plea is a good answer to the declaration.
In the absence of any statute extending the liability of sureties in a bond, it ought to begin only with their undertaking, as such must be supposed to have been their intention; or if the bond itself had provided for a liability to begin from the appointment of the principal as guardian, or at any point previous to its date, the plea might not have been ¿rood.
But the declaration only shows a bond conditioned for the future faithful performance of Jackson’s guardianship, and plainly does not. extend to indemnify, the plaintiff below' for his previous default.
Such is the principle of the case of the State iise of Dennard vs. Roberts, ante., where it was held, upon a question of liability between ihe sureties on a deceased sheriff’s bond and the administrator, that the liability became perfect when the breach of duty was committed.
And the jilea in this case going further than to show the retention of the money mentioned in the declaration, by averring its actual appropriation, by w'aste of Jackson, before the ■execution of the bond sued on, brings itself within the case cited.
The demurrer to this plea should not have been sustained.
As the case is to be reversed for the error just indicated, and 'as the demurrer to the pleas reach back to the declaration, we suggest the following matters, as arising upon the declaration:
That this action seems to have been brought by the mindr, when there is a guardian successor to Jackson.
The cause of action declared on, the one that is the subject of the sixth plea, and the one upon which the verdict and judgment seem to have been founded, is, that at the first annual settlement of the guardian Jackson, he showed himself indebted -to the plaintiff below in the sum of six hundred and nine 37-100 dollars, which has never been paid. Jackson while guardian, and the declaration shows he was so till his death, was the one to retain this money subject to proper expenditures for his ward, and the mere non-payment of it does not fix any liability upon him, or upon his sureties.
And further, the settlement merely shows an unsettled 'guardianship, a trust account, and a court of law is not the proper jurisdiction to ascertain the final balance of such unsettled account, although when once settled, the jurisdiction for its recovery may be clear.
The 7th plea alleged the former bond of Jackson as did the sixth plea, and that the bond in suit was given without any order of the Probate Court on account of the former bond being insufficient.
This plea presented no defence to the action, and the demurrer to it was properly sustained. It is not for one who has voluntarily signed a guardian’s bond thathas been accepted by the court, to object that the court did hot order it to be made.
Having executed the bond an obligor is estopped from denying its effect.
This, though perhaps not within the letter, is within the principle of Sullivan vs. Pierce, 5 Eng. 503; and Outlaw vs. Yell, 3 Eng. 353.
The eighth plea contains the allegations of the sixth plea, and avers further, that upon presentation of the bond sued on to the probate court of Phillips county, an order was made by the court, accepting such bond in the place of the former bond of Weatherly and Grant, and that Weatherly and Grant should be discharged from all liability, upon.the bond whereby Sebastian was injured.
This plea is also bad. No such order of the probate court could discharge Weatherly and Grant from any liability incurred by them as Jackson’s securities. It could not affect the pleader in any way, and was no defence to his own liability. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
On the 19th of December,1857, Micajah B. McCoy presented to the Circuit Court of Jackson county a petition for certiorari, in substance as follows:
“ Your petitioner states that he finds upon the records of the County Court for said county what purports to be a settlement made by that Court with your petitioner, as late internal improvement commissioner for said county, bearing date January 26th, 1857, and also an order, bearing date January 27th, 1857, directing his successor to call on him for money, etc.; a duly authenticated copy of both of which orders is herewith exhibited,” etc.
“ That said so called settlement was made by said County Court ex parte, and without the' participation of your petitioner. That no settlement could be legally made so as to bind petitioner, as he was advised, unless made upon a copy of his books of accounts as such comtaissioner furnished to said County Court to be audited and adjusted; and said settlement so called was not made upon any such copy furnished from petitioner’s books, or from his said book as required by law.
“ That said settlement, so called, as it appears of record, is grossly unjust, and on its face is illegal, and unauthorized by law, charging your petitioner, among other things, with large amounts of interest wholly unauthorized by law.”
Prayer for a certiorari, etc., and that the settlement and order be quashed, etc.
The transcript of the record of the County Court, exhibited with the petition is as follows:
STATE OF ARKANSAS,)
County of Jackson. $
In the Jackson County Court, January term thereof, January 2Qth, 1857.
On this day came Micajah B. McCoy, late internal improvement commissioner for Jackson county, and filed his account current as such commissioner as follows, to-wit:
M. B. McCOY, Internal Improvement Commissioner,
In account current with Jackson County for Internal Improvement Funds:
Jan’y 26, 1857 — To balance due on last settlement,
July 14th, 1855..............$ 4,593 17
To interest at 10 per cent, on same, up to 26th January, 1857...... 716 96
Oct’r 2, 1854 — -To amount received on Auditor’s warrant No. 321............ 671 59
Mar. 26, 1855 — To interest at 10 per cent, up to January 26th, 1857.......... 136 74
To amount received on Auditor’s warrant No. 444............ 198 38
To interest on same at 10 percent. up to 26th January, 1857..... 34 69
To amount of Auditor’s warrant-• 430 00
To 12 months interest'on same at
10 per cent................. 43 00
$ 6,834 53
CREDITS.
1856.
Dec’r 1 — By am’t paid Raney, as per order of commissioners of Litchfield’
Bridge.................. -..‘$1,000 00
By interest on same, 26th Jan’y, 1857 ...........•'.......... 15 70
By Noah Smith, per order commis’r of bridge across Cache-• 100 00
By interest on same .up to 26th January, 1857--•-•.....-..... • 1 70
By commissions on $1,117 40, at 2 per cent.................’• 22 34
By expenses two trips to Little Rock, to collect money on warrants 321 and 444........... 37'00 1,176 79
$5,647 79
Jan’y 26th, 1857 — To balance due Jackson^county as internal improvement fund by M. B. McCoy, late internal improvement commissioner, five thousand six hundred and forty-seven dollars and seventy-nine cents.
“ Afterwards, to-wit: On the 27th day of January, A. D. 1857, the following proceedings were had, to-wit:
“ Ordered by the Court, that Henry H. Miller, internal improvement commissioner, call on Micajah B. McCoy, late internal improvement commissioner, to pay over to him all moneys in his hands belonging to the internal improvement fund of Jackson county, together with all the books, papers, etc., belonging to said office, and, on the failure or refusal of said Micajah B. McCoy, late internal improvement commissioner, to pay over said money, and deliver to said Henry H. Miller, the present internal improvement commissioner, in and for the county of Jackson, and State of Arkansas, said Miller is hereby authorized and directed by the court to employ such counsel, as he may think best, and institute suit immediately against said M. B. McCoy, for the funds in his hands, together with all the books, -papers, etc., that properly belong to the said office of internal improvement commissioner.”
Then follows the certificate of the clerk of the County Court authenticating the above as a correct transcript from the record, etc.
The Circuit Court refused to issue the certiorari, and McCoy appealed to this Court.
The statute requires the commissioner to keep, in a well bound book, an account of all moneys, etc., received and paid out by him, etc., a true copy of which it is made his duty to present to the County Court, at its first regular term after the expiration of twelve months from his election, and annually thereafter, so long as he remains in office; and such account is to be audited, and, if found correct, approved by the court, and filed in the office of the clerk thereof. Gould’s Dig., chap. 101, sec. 48, Art. 111.
The final account of the appellant seems to have been made out and filed for settlement pursuant to the statute. It was presented to the County Court by the appellant, and appears to have been approved by the court, and spread upon its record, just as he made it out and filed it, without any change whatever. On the next day an order was made directing his successor to call on him for all moneys, books, etc., etc., in his hands belonging to the office. See sec. 33, Ib.
The objection in the petition that the settlement was made ex parte and without the participation of the appellant, is surely without force, when it appears, from the transcript of the record exhibited with the petition, that he made out and filed his account for settlement himself, and that no change was made in the account by the Court. That the balance against him was stated on the record, just as he had footed it up in the account.
Nor is there any thing in the objection that he is charged with interest at an illegal rate. The statute makes it the duty of the commissioner to loan out any money in his hands not required to be expended by the County Court, upon interest at ten per cent, per annum, and he is subject to a heavy penalty for failing so to do, etc. lb. secs. 50,51.
In the account, the appellant has charged himself with interest at the rate of ten per cent, upon several sums of money, for stated periods, and it must be presumed that the charge is correct, and in accordance with the statute. If he made a mistake in charging himself with this interest, he cannot correct it by certiorari, because, upon certiorari, the settlement must be quashed or affirmed on inspection, of the transcript of the record returned with the writ, and matters dehors the record are not to be considered.
It appearing from the transcript of the record presented with the petition, that the writ of certiorari would have been of no benefit to the appellant, the judgment of the Court below refusing the writ must be affirmed. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
Peay, as Receiver in Chancery of the assets of the Real Estate Bank, brought an action of debt, in the Pulaski Circuit Court, against Ramsey, on a bond for $200, which constituted a part of the assets of the bank.
The defendant pleaded a tender before suit, in “ bonds of the “ State of Arkansas, issued by said State to and for the benefit “ and in behalf of the Bank of the State,” etc.
The plaintiff demurred to the plea, the Court overruled the demurrer, and the plaintiff declining to plead over, final judgment was rendered for the defendant, and the plaintiff appealed.
If it was the intention of the legislature, as it perhaps was, by the act of 12th January, 1853. (Pamphlet Acts of 1862, p. 196), to compel the Receiver of the Real Estate Bank to receive the bonds of the State issued to the Bank of the State in payment of debts due to the Real Estate Bank, the act is in conflict with that provision of the Constitution of the United States which declares that no State shall make any thing but gold and silver coin a tender in payment of debts.
The Bank of the State being exclusively a State institution, debts due to it are in effect due to the State, and she may provide for their payment in her own bonds, as she has done, or in any thing else that she is willing to accept in lieu of money. See Fagan, etc. vs. Stillwell, 19 Ark. 285.
But the debts due the Real Estate Bank do not belong to the State. They are held by the Receiver in trust for the benefit of the creditors of the bank, under the deed of assignment, and the individuals who compose the stockholders of the bank, etc.
The Real Estate Bank was in no way bound for the payment of the bonds issued by the State for the benefit of the Bank of the State, and if the legislature could compel the Receiver of the Real Estate Bank to take these bonds in payment of debts due to it, they could also make the paper of any bank, or the bonds of any other corporation or State, however depreciated, a legal tender in payment of such debts. (See Paup et al. vs. Drew, 10 How. 219; 2 Story on Con. sec. 1372.
The judgment of the Court below is reversed, and the cause remanded, etc.
Absent, Mr. Justice Rector. | [
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Mr. Justice Compton
delivered the opinion of the court.
Bach, the plaintiff in the court below, and appellant here, sued Cook in an action on the case for malicious prosecution.
The declaration is in the usual form, and alleges that the defendant falsely, maliciously, and without probable cause of action, caused to be issued, by a justice of the peace, a writ of attachment against the plaintiff as executor de son tort of John Bach, deceased, by which certain goods and chattels of the plaintiff were attached and taken out of his possession to secure a debt of seventy dollars, whereby the plaintiff was damaged, etc.
The case being tried before a jury on the plea of not guilty, the verdict and judgment were for the defendant; and the plaintiff, without moving for a new trial, appealed.
At the trial, the appellant excepted to several instructions given by the court, at the request of the appellee, one of which only is assailed in argument as being erroneous, and is in substance as follows: That if the jury find from the evidence that the suit referred to in the declaration, was brought against the plaintiff as executor de son tort, and that the process by which his goods and chattels were attached, issued against him in that character — that then, the process was void in law, and for any injury done under it, the plaintiff’s remedy was an action of trespass, and not case. This instruction, it is insisted for the appellee, presents no question for the consideration of this court, for the reason that none of the evidence adduced on the trial, was set out in the bill of exceptions, or otherwise made of record, so as to show that the instruction was not abstract.
Where an instruction is given, which purports to be predicated upon the evidence, and upon the hypothesis that certain facts shall have been proven to the satisfaction of the jury — as the instruction in this case does — the appellate court will presume in favor of the court below, that such evidence, though it do not appear of record, had been adduced; Duggins vs. Watson et al. 15 Ark. 118.
Presuming then, that there was competent evidence upon which to base the instruction, and that it was not abstract, it only remains to determine its correctness in point of law.
Although it is held in Barasien vs. Odum, 17 Ark. 122, that under our peculiar system of administration laws, no one can make himself, of his own wrong, the executor of another, and that a suit against a party in that character, instituted by a creditor of the deceased, cannot be maintained, and although the proceedings had against the appellant fall within the rule laid down in that case; still, the justice of the peace having jurisdiction, as he did, of the subject matter in controversy, the proceedings were not void, but were erroneous and voidable merely.
Hence an action on the case was the proper, and indeed, the only remedy for the injury done the appellant. Shaver vs. White & Dougherty, 6 Munford, 110; Dixon vs. Watkins, et al. 4 Eng. 139.
There are cases in which it has been held that an action on the case for a malicious prosecution before a court not having jurisdiction, may be maintained, if, as is said in Morris vs. Scott, 21 Wend. 282, “ The malice and falsehood be put forward as the gravamen, and the arrest or other act of trespass be claimed as the consequence.” Stone vs. Stevens, 12 Conn. 218; Humphrey vs. Case, 8 Conn. 104. Any expression of opinion, however, as to the principle asserted in these cases, would be unnecessary, as we have seen there was no want of jurisdiction in the case.
The judgment must be reversed, and the cause remanded for further proceedings. | [
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Mr. Justice Compton
delivered the opinion of the Court.
The defendant, Henry Roberts — together with two others— was indicted in the Yell Circuit Court for a riot. After pleading to the indictment, he was tried separately, and convicted. A motion in arrest of judgment was overruled by the court, and the case was brought here on appeal.
Our statute provides that “if three or more persons.assemble together, with the intent, or being assembled, shall agree mutually to assist each other to do an unlawful act, with force or violence, against the. person or property of another, or against the peace, or to the terror of the people, and shall accomplish the purpose intended, or do any unlawful act in furtherance of such purpose, in a violent or turbulent manner: every person, so offending, or who shall aid or assist in doing any unlawful act, shall be adjudged guilty of a misdemeanor, and shall be punished,” etc. Gould's Dig. chap. 51, Art. 3, see. 1.
The indictment charges that Henry Roberts, William Roberts and Thomas Roberts, with force and arms, unlawfully, riotously and routously did assemble and gather together to disturb the peace of the State, and being so assembled and gathered together, in and upon one Robert Bend, unlawfully, riotously and routously did make an assault, and him, the said Robert Bend, unlawfully, riotously and routously, did beat, etc., to the great disturbance' and terror of the citizens of the State, and contrary to the form of the statute, etc.
The grounds of the motion in arrest, are the following:
1st. The indictment does not charge that the defendants assembled together with the intent to assist each other to do an unlawful act, with force or violence, against the person or property of another, or against the peace, or to the terror of the people; or that, being assembled, they had mutually agreed to assist each other to do so.
2d: It does not charge that the assault and battery on Robert Bend, was the unlawful act for -which they had assembled, or was committed in furtherance of the unlawful act for which they had originally assembled.
3d. It does not charge that the purpose intended was accomplished in a turbulent or violent manner.
The indictment is in strict conformity with the precedent for riot at common law, as given by Mr. Archbold in his work on Crim. Frac. & Plead., vol. 3, p. 588, in which the act charged to have been done by the rioters was an assault and battery. And the learned author adds, at the conclusion of the precedent, that if the act, so riotously effected, be prohibited by statute, it may be prudent to conclude contra formara statuti. See Wharton’s Prec. 854, and authorities cited.
The indictment, in the case before the court, being framed under our statute, it becomes necessary, in deciding upon the objections taken, to ascertain the common law definition of riot, in order that it may appear whether the statute has intro duced any ingredient which enters into the essential description of the offence charged, and which was unknown to the common law; for, if it has not, and the indictment would be good at common law, then it is also good upon the statute. 18 Ohio 489.
Riot is defined to be a tumultuous disturbance of the peace by three or more persons assembling together of their own authority, with an intent mutually to assist one another against any one who shall oppose them in the execution of some enterprise of a private nature, and afterward actually executing the same in a violent and turbulent manner, to the terror of the people, whether the act itself was lawful or unlawful. Whar. Crim. Law 722; 1 Hawk. P. C. chap. 65, sec. 1; State vs. Conolly, 3 Rich. 337.
Thus it is seen that the statute, as far as it goes, is in affirmance of the common law merely. It makes no new rule, and embraces within its purview, the case we are considering. So that the offence charged in the indictment as. defined and prohibited by the statute, is essentially the same as that defined and prohibited by the common law; and if the indictment would be good at common law, it must necessarily be so upon the statute.
Finding no error in the record the judgment must be affirmed with costs. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
On the 9th of March, 1857, the collector of Conway county offered for sale for taxes a tract of land, taxed in the name of one Tarkington, which was not sold for want of a bidder, and forfeited to the State.
On the 25th oí November, 1857, Merrick applied to the Auditor to purchase the land, under the act of January 1st, 1855, (Gould’s Dig., ch. 148, secs. 172, 173), tendering the amount of taxes, penally and costs due thereon, and producing to the Auditor the affidavits of settlement and residence, etc., prescribed by the act; but the Auditor refused to receive the money and execute to the applicant a deed to the land, on the ground that the two years allowed by the statute to the former owner to redeem the land had not expired.
Merrick then applied to the Circuit Court of Pulaski county for a mandamus against the Auditor to compel him to accept the money, and execute the deed, stating the facts above set forth.
The Auditor demurred to the petition, the court overruled the demurrer, awarded the mandamus, and the Auditor appealed.
By see. 138, Gould’s Dig. ch. 148, the former owner of any tract of land forfeited for non payment of taxes, is allowed to redeem the land at any time before the expiration of two years from the date of the forfeiture, by paying the amount of taxes, etc., charged thereon.
Section 155 requires the Auditor to offer at public sale, on the first Monday in February, in each year, all lands, etc., which have been forfeited to the State for the term of two years, and have not been redeemed, etc.
These sections of the statute were in force when the act of 1st January, 1855, was passed. It provides:
That “ actual settlers upon lands which have been, or may be hereafter forfeited to the State for non-payment of taxes, shall be entitled to purchase the same at private sale, and upon payment of the amount of taxes, penalty and costs due thereon to the Auditor, it shall be the duty of the Auditor to execute and deliver to the purchaser a deed of conveyance for the same as required by sec. 163” (where forfeited lands are sold by the Auditor at public sale). Dig., chap. 148, sec. 172.
Section 173 prescribes the affidavits of settlement, etc., to be filed by the applicant to purchase at private sale.
The act of 1st January, 1855, does not expressly, nor do we think by implication, or conflict, repeal the previous law allowing the former owner of land forfeited to the State, the privilege of redeeming it any time before the expiration of two years from the date of the forfeiture. It only changes the previous law so far as to authorise the Auditor to sell forfeited lands, after the period allowed for redemption has expired, to the actual settlers thereon at private sale, instead of offering all such lands at public sale, as required by the previous law.
The judgment of the court below must be reversed, and the cause remanded, with instructions to the court to sustain the demurrer of the Auditor to the petition of Merrick. | [
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Mr. Justice Compton
delivered the opinion of the Court.
A demand in favor of Peay, as Receiver of the assets of the Real Estate Bank, whs allowed and classed by the Probate Court against the estate of Mauldin.
The administrator made affidavit in the usual form and prayed an appeal to the Circuit Court, but it does not appear from the record that the appeal was granted. The Circuit Court dismissed the appeal and rendered judgment against the administrator for costs;
It was decided in Berry vs. Singer, 4 Eng. 128, that where, on appeal from the Circuit Court to this Court, the record shows that the party appealing complied with all the pre-requisites required by statute to entitle him to an appeal, but fails to show that the appeal was granted, this Court will dismiss for want of jurisdiction. No good reason has been, or can be given, why the same rule should not apply to appeals from the Probate Court to the Circuit Court, the statutes regulating each being similar in their provisions, so far as regards the point in controversy. Gould’s Dig. p. 137, 867. See, also, Moss vs. Ashbrooks, 15 Ark. 169.
The Court having no jurisdiction, erred, however, in rendering judgment against the administrator for costs. Morris wife vs. Walker, 3 Eng. 569; Heflin vs. Owen, ib. 265; and for this error the judgment must be reversed and the cause remanded.
Absent, Mr. Justice Rector! | [
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Mr. Chief Justice English
delivered the opinion of the court.
The judgment in this case must be affirmed under the rule of practice settled in State Bank vs. Conway, 13 Ark. 344.
The issues were submitted to the court, sitting as a jury, and finding for defendant. The plaintiff excepted to the finding, and without moving for a new trial, but merely taking a bill of exceptions setting out the evidence, appealed. No question of law is legitimately presented for the decision of this court, See also Gardner vs. Miller, et al., (present term.) | [
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Mr. Justice Fairchild
delivered the opinion of the Court.
This case is in all respects like Sebastian vs. John Bryan, and the judgment of the Circuit Court of Phillips county must be reversed. | [
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Frank Holt, Justice.
This appeal results from a jury verdict awarding S3,500 damages to appellee in a suit arising out of an automobile accident. Appellants contend that the court erred in giving the following instruction to which the appellants specifically objected that there was no substantial evidence from which the jury could find that the condition of the pickup truck driven by appellant Thomas was the proximate cause of the accident:
There was in force in the State of Arkansas at the time of the occurrence, a statute which provided: AMI—908 No person shall drive and no owner shall cause or knowingly permit to be driven or moved on any highway a vehicle which is in such an unsafe condition as to endanger any person.
A violation of this statute, although not necessarily negligence, is evidence of negligence to be considered by you along with all of the other facts and circumstances in the case.
The accident occurred after appellant Thomas, who was driving a pickup truck belonging to his employer, appellant Gulpha Constructors, Inc., passed appellee’s tractor-trailer rig. Upon successfully overtaking appellee, Thomas moved back into the right lane, whereupon he heard a “rattling and clanging” noise coming from the truck. Thomas began slowing down, gave a left hand signal and came to a stop in the road to avoid oncoming traffic preparatory to pulling off on a side road to his left in order to determine the source of the noise. The pickup truck had a history of mechanical trouble with the transmission and universal joint and repair efforts had not corrected the condition. He was instructed to stop the truck and check it whenever anything “acted up.” There was also evidence of a “possibility of the vehicle just stopping or locking up.” When the appellee observed that the truck had stopped in front of him, he was unable to stop and had to leave the road where he lost control of his tractor-trailer. The trailer broke loose and overturned injuring the appellee. Immediately following the accident, Thomas “pulled off over to the [right] side of the road” and “went back there to see if [appellee Kellett] was hurt.” Afterwards, Thomas drove the pickup approximately fifty miles before it became necessary to repair the universal joint.
Appellants argue that the mechanical condition of the truck at the time of the accident was not the proximate cause of the accident. The appellee responds that in “considering whether the defective mechanical condition of the pickup truck was the proximate cause of this accident,” appellant Thomas the driver of the pickup truck, “had no reason to stop and make a left hand turn, after passing [Kellett’s] large tractor trailer rig, except for the emergency situation created by the mechanical difficulties” of the pickup truck. Appellee’s reliance upon Bryant v. Thomas, 230 Ark. 999, 328 S.W. 2d 83 (1959), is misplaced. There the engine malfunction of Bryant’s vehicle was the cause of it coming to a “standstill” in the highway. Here, appellant Thomas’ vehicle was not forced to come to a stop on the highway due to a mechanical difficulty. The driver himself stopped the vehicle because he heard a noise in it. As indicated, following the accident, he drove it off to the right side of the road and thereafter approximately fifty miles before it became necessary to make repairs.
When we view the evidence most favorable to the appellee, we hold that the mechanical condition of the vehicle was not a proximate cause of the accident. See West v. Wall, 191 Ark. 856, 88 S.W. 2d 63 (1935); Ben M. Hogan & Co. v. Krug, 234 Ark. 280, 351 S.W. 2d 451 (1961); and Lytal v. Crank, 240 Ark. 433, 399 S.W. 2d 670 (1966). Here, the question of proximate cause involved only the degree of care being used by appellant Thomas and appellee Keilett in the operation of their respective vehicles. Consequently, as asserted by appellants, it was error to give the instruction.
Reversed and remanded.
We agree: Harris, C.J., and Byrd and Roy, JJ. | [
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Carleton Harris, Chief Justice.
Appellants, Winston Holloway, Ray Lee Welch and Gary Don Campbell, were charged by information with robbery of the Leather Bottle Restaurant in Little Rock on June 1, 1975, and with the use of a firearm in committing the offense. The three men were further charged with the rape of two female employees of the restaurant. Following a jury trial, all three men were convicted, with punishment for each set at 21 years imprisonment for the robbery, and life imprisonment for rape. From the judgment so entered, Holloway, Welch, and Campbell appeal, arguing several points for reversal.
For convenience, we first discuss the last point which is simply that the court erred in not giving instructions for directed verdicts of acquittal. While appellants concede that any possible error was cured by the giving of the state’s instruction defining an accessory, we proceed to a discussion of the contention as a matter of providing background for other points asserted.
Other than the identity of the perpetrators, the facts about the robbery-rapes are not disputed. After the closing of the Leather Bottle on June 1, around 1:30 - 1:45 A.M., five employees had remained in the restaurant, and were preparing to leave. The employees were Donald Henry, Michael Garrett, David Carroll, and two women. All five were in the restaurant office in the lower part of the building.
As one of the women (hereafter called “first woman”) began to leave, she heard someone running down the stairs toward the office. When she looked, she saw a man — whom she subsequently identified as appellant Holloway — coming down the stairs, brandishing a .45 caliber automatic pistol. She also saw two other men at the top of the stairs. Holloway forced her back into the office at gunpoint, where he herded her and the four other employees against the wall, threatening to kill them if they moved or opened their eyes. At this point one of the employees, Donald Henry, saw appellant Welch, also in the office, rifling the other woman’s (hereafter called “second woman”) purse.
While one of the other men remained in the office with the employees, Holloway grabbed the second woman by the arm and took her outside, to the stairs, where he forced her to disrobe, and then raped her. She was thereafter raped a second time by another man, but was unable to identify the assailant. Holloway subsequently returned to the office and asked which employee could open the safe. David Carroll, manager of the restaurant, said that he could, and Holloway directed him to do so. While this was occurring, another of the three men came into the office and forced the first woman out to the stairs, where he took all the money from her purse, and then raped her at gunpoint.
Subsequently, after getting all the available cash from the safe, the three men again made all the employees face the office wall, eyes closed, while they “shot out” the telephones with gunshots. The employees were then grouped into the restaurant’s walk-in freezer, which was then locked. After about an hour — around 3:30 A.M. — one of the employees, Michael Garrett, escaped from the freezer by a small service opening, and released the others. The police were called, and the women taken to a doctor.
Because the robbers kept them facing the wall, and instructed them to keep their eyes closed, none of the employees were able to identify all three men. The first woman and Donald Henry identified Holloway and Welch. Michael Garrett could identify only Holloway. The second woman and David Carroll identified Holloway and Campbell.
In addition to the testimony of the five employees, the state also presented evidence of a statement given by appellant Campbell to two police officers, Paul Plummer and Jerry Best. The officers testified that on July 4, 1975, they received information that appellant Campbell was being held in the city detention center, under the alias Robert Hill. They removed Campbell from detention, showed him a warrant charging him with robbery, and began taking him to an interrogation room. At this point both officers testified Campbell spontaneously said, “I haven’t raped anyone. I will tell you about the robbery.” The officers said that they cautioned Campbell to stay silent, because he had not been warned of his rights, but that he immediately volunteered the same statement again.
Thereafter Campbell was warned of his constitutional rights, and both officers stated that he signed a “rights waiver,” which was admitted into evidence. Plummer and Best testified that Campbell then told them that he, Welch and Holloway had robbed the establishment. The officers said that Campbell admitted complicity in the robbery, but denied raping anyone, stating that he had held a rifle and had stood at the top of the stairs. In the oral statement Campbell said that the men had stolen about $2,000.00, and that his share of the money was approximately $700.00. It is apparent that, aside from the concession, the court did not err in refusing to instruct directed verdicts of acquittal.
Appellants contend that the trial court “erred in refusing to grant a mistrial when the defendants were brought in court before the jury in their jail uniforms in violation of their rights under the Sixth and Fourteenth Amendments to the Constitution.” Before the trial began, counsel for appellants moved for a mistrial, alleging that appellants were “paraded through the courtroom in their jail uniforms where all of the prospective jurors were seated.” The record does not reflect whether any of the prospective jurors ever saw appellants prior to the trial. Nor does the record reflect the exact attire of the men except that they were dressed in matching blue trousers and blue shirts.
Appellants’ argument has no merit, for several reasons. First, appellants rejected, twice, the trial court’s offer to allow them to change clothes. The trial court gave the appellants this opportunity before the trial began and before the actual selection of the jury. Therefore, appellants may be deemed to have waived the point. Finally, in the recent case of Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976), the U.S. Supreme Court held that a defendant’s constitutional rights were violated only when he was compelled to wear identifiable prison clothing at his trial. The court stressed that such attire must be “distinctive” and “identifiable.”
It is asserted that the court erred in refusing to grant appellants’ motion for a severance and in not appointing separate counsel. Prior to the trial, all three appellants moved for severance, and for appointment of separate counsel. As grounds for severance, each asserted that witnesses might be called by one of the defendants to testify against the other defendants, that a joint trial would deprive each appellant of his right to call the co-defendants as witnesses, and that a joint trial would prevent counsel from commenting on the failure of any co-defendant to testify, if such occurred. The motion for separate counsel alleged only that the appellants had stated to counsel that “there is a possibility of conflict of interest in each of their cases.” The motions were denied.
Appellants’ counsel renewed the motion for separate counsel at the trial, stating that “one or two of the defendants may testify and, if they 'do, then I will not be able to cross-examine them because I have received confidential information from them.” The trial court denied the motion.
First, let us review the contention that a severance should have been granted. Let it be pointed out that appellants demonstrate no prejudice from the joint trial. As previously noted, three grounds were alleged in the motion for severance. None of these grounds materialized during the trial. Moreover, the trial court properly limited the use of Campbell’s statement against the co-defendants by deleting all references by name to the other two defendants, and substituting the words, “two other people” and “two other fellows.” This procedure fully complied with this court’s requirements. Gammel and Spann v. State, 259 Ark. 96, 531 S.W. 2d 474 (1976); Stewart and McGhee v. State, 257 Ark. 753, 519 S.W. 2d 733, cert. denied, 423 U.S. 859. In fact, it was counsel for appellants who stated before the jury that the confession implicated the two co-defendants.
As this court has held numerous times, “[t]he granting of a severance is within the sound discretion of the trial court.” Keese and Pilgreen v. State, 223 Ark. 261, 265 S.W. 2d 542; Vault v. Adkisson, 254 Ark. 75, 491 S.W. 2d 609. We find no abuse of discretion in the instant case.
Next, let us review the point that separate counsel should have been appointed. The applicable law was discussed in Trotter and Harris v. State, 237 Ark. 820, 377 S.W. 2d 14, cert. denied, 379 U.S. 890. In a lengthy discussion the court reviewed the relevant precedents, and held that no conflict of interest had arisen because counsel represented the two co-defendants. The court stated:
“Both men were charged with the same offense, which grew out of the same occurrence. The only evidence, which in any manner could be said to indicate a conflict of interest, was the statement of Harris made to the sheriff that, though he drove the car, he did not actually rape the prosecuting witness. This might indicate that he was only an accessory, but the distinction between principals and accessories was abolished in this state in 1936. See Ark. Stat. Ann. § 41-118 (1947). Accordingly, even under this statement, if Harris were guilty, he was guilty as a principal.”
The court also noted that the trial court had correctly limited the use of the statement, and that both Harris and Trotter received the same sentence, indicating that neither had been prejudiced as against the other by the statement.
Thus, the instant case presents facts identical in important respects to Trotter. Appellants “were charged with the same offense, which grew out of the same occurrence.” Although Campbell’s statement did deny any involvement in the rapes, as did the statement in Trotter, this denial had no effect on his guilt as a principal. The trial court likewise limited the use of the statement against the co-defendants, and all appellants did, in fact, receive the same sentence. Under the Trotter standard, therefore, no conflict of interest has been shown.
This conclusion is in accordance with the overwhelming majority of courts that have ruled upon the issue — i.e., the record must show some material basis for an alleged conflict of interest, before reversible error occurs in single representation of co-defendants. In a particularly definitive case, United States v. Williams, 429 F. 2d 158, cert. denied, 400 U.S. 947, the Eighth Circuit stated:
“It has been firmly established that joint representation of codefendants is not per se violative of the Sixth Amendment. [Citations omitted.] Expressed another way, no reversible error is committed by the district court in assigning a single attorney to represent two or more codefendants in a pending criminal action, absent evidence of an actual conflict of interest or evidence pointing to a substantial possibility of a conflict of interest between the codefendants. [Citations omitted.] Where courts have found such evidence on the appellate record, they have not hesitated to direct a reversal for a new trial. [Citations omitted.]
“. . . [Tjhere is nothing pointing to an actual or substantial possibility of a conflict of interest between appellant and his codefendant, Brinkley. We need go no further. A reversal here would be tantamount to a holding that joint representation is illegal per se , a result not mandated by the Sixth Amendment, Glassen [v. United States, 315 U. S. 60], or its progeny.”
Similarly, in United States v. Gallagher, 437 F. 2d 1191, the Seventh Circuit, confronted with the same argument, found no conflict of interest, and stated:
“The existence of a conflict of interest, to warrant |reversal], must be founded on something more than mere speculation or surmise. We perceive nothing in this record which demonstrates the existence of any real conflict of interest between the defendants.”
Research discloses at least thirty-two jurisdictions that adhere to this standard, requiring some factual demonstration of a conflict of interest.
By contrast, a small minority of jurisdictions (five) appear to have adopted a much more liberal standard first applied by the District of Columbia Court of Appeals in United States v. Lollar, 376 F. 2d 243. Under the Lollar rule, the trial court bears the burden of investigating any potential conflict of interest, and of determining the need for separate counsel, whenever any “informed speculation” of conflict exists. Although this rule was first announced almost a decade ago, very few jurisdictions have found it persuasive. For example, in United States ex rel. Robinson v. Housewright, 525 F. 2d 988 (Nov. 26, 1975), the Seventh Circuit expressly rejected the Lollar standard for appointment of separate counsel. That court stated that “the primary responsibility for the ascertainment and avoidance of conflict situations must lie with the members of the bar,’’and that “it is incumbent upon the defendants to demonstrate, with a reasonable degree of specificity, that a conflict of interests actually existed at trial.” Likewise, in State v. Jeffrey, 515 P. 2d 364, the Montana Supreme Court refused to adopt the Lollar rule, adhering instead to the majority requirement “that there be a showing of a conflict of interest to the prejudice of the accused, and that this conflict must be more than a mere conjecture as to what might have been shown.”
Although this court referred to the “informed speculation” rule when reversing a conviction in Shelton v. State, 254 Ark. 815, 496 S.W. 2d 419, it cannot be presumed that Shelton overruled Trotter and Harris v. State, supra. In fact, the Shelton opinion does not discuss, or even mention Trotter. In Shelton, there were no co-defendants. A witness, Joe Hilderbrand, had been a defendant but the case against him had been dismissed. It was contemplated that the state might call Hilderbrand as a witness and counsel for Shelton stated that he had represented Hilderbrand, had received confidential information from him, and would not feel free in cross-examining Hilderbrand if he were called to testify. A principal difference in that case and the one at bar is that Shelton never did take the stand and testify.
A recent case, United States v. Jeffers, 520 F. 2d 1256 (7th Cir.), cert. denied, 96 S. Ct. 805 (Jan. 13, 1976), discusses the proper procedure to be followed when an alleged conflict of interest may arise because counsel possesses confidential information. The opinion was written by Justice (then Judge) John Paul Stevens. In Jeffers, counsel for multiple defendants asserted that he was unable to fully cross-examine a prosecution witness whom his law firm had previously represented. Counsel alleged that because of this prior representation, he was in possession of confidential information that created a conflict of interest, limiting his effectiveness in representing the Jeffers defendants. He requested that the trial court permit him to withdraw from the case because of the presumed conflict. The trial court held, however, that no actual showing of a conflict had been made, and that therefore counsel would not be permitted to withdraw.
On appeal of the ensuing convictions, the Seventh Circuit \n Jeffers approved the trial court’s ruling. Judge Stevens first noted that counsel “made no effort to disclose the privileged information to the court in camera to enable the court to evaluate its relevance.” Reviewing the scope of the attorney-client relationship, the court further stated that “|t|he risk that an item of confidentiál information might be misused does not create a conflict of interest which disqualifies an attorney from conducting any cross-examination at all.” The court concluded:
“Thus, if defense counsel was concerned that he might be using confidential information improperly, he could have outlined the nature of the information to the judge and, if necessary, made an in camera disclosure to him. On the basis of such a disclosure it might have become apparent that the privilege was either inapplicable or had been waived by the witness. Or, it might have been clear that the information was not usable for other evidentiary reasons.”
In the instant case, no disclosure of the nature of the information acquired was outlined to the judge. After all, without any reflection on present counsel, a very honorable man and competent lawyer, requiring the granting of a motion to appoint separate counsel purely on the basis of a motion stating that confidential information had been received from the defendants, might well eventuate in an imposition on the court and could result in the mandatory appointment of additional counsel in every case where multiple defendants were involved; the contingencies set forth in Jeffers might well dispose of the issue.
Summarizing, a review of the record establishes that no prejudice resulted, in fact, to appellants. As the state correct ly points out, all three appellants voluntarily took the stand, against the advice of counsel, and denied any involvement in the crime. Most important, however, none of the appellants attempted to incriminate any of the others. Campbell completely denied making the statement to the officers, and denied even knowing Holloway at all. Holloway and Welch both stated that they knew nothing about the case. Thus, the actual testimony adduced at trial by appellants presented no conflict of interest whatsoever. Accordingly, the record presents no basis from which this court can find that separate counsel should have been appointed. This conclusion agrees with the holdings of other courts in similar fact situations. People v. Spencer, 206 N.W. 2d 733 (Mich. App.); Davis v. State, 201 S.E. 2d 345 (Ga. App.).
Appellants assert that the trial court erred by admitting into evidence the “rights waiver” allegedly signed by Campbell, and the oral statement allegedly made by him to police. Campbell denied signing the form and making the statement, contending that he was under the influence of alcohol and narcotics at the time.
In reviewing a trial court’s ruling on the admissibility of a statement, this court makes an independent determination based on the totality of the evidence, but reverses the trial court only when its ruling is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515. The ruling of the trial court in the instant case clearly is not against the preponderance of the evidence. Both officers who were present during Campbell’s interrogation testified that he was not visibly under the influence of drugs or alcohol, that he could walk and talk normally, and appeared sober. Both officers said that they could smell alcohol on Campbell, and gave him a “breathalyzer” test, but that Campbell’s mental faculties were not apparently impaired. The conflicting testimony posed an issue of credibility for the trial court, and from the appellate record it cannot be said that error was committed in admitting the rights form and oral statement.
Appellants argue that the trial court erred by refusing to allow their counsel to ask one of the officers who had interrogated Campbell about the statutory presumption on blood alcohol content. The officer testified that a “breathalyzer” test given to Campbell “showed that he registered point 16 percent blood alcohol.” Appellants’ counsel then asked, “And what is the percentage reading for a drunk?” The trial court at that point sustained the state’s objection to the question.
The prima facie presumption of intoxication set forth in Ark. Stat. Ann. § 75-1031.1 (Repl. 1957) applies solely to individuals who are charged with the offense of driving a vehicle while intoxicated. As the state points out, the statute is relevant solely to the issue of an individual’s ability to drive safely — his reactions, coordination, and capacity to operate an automobile. Appellants cite no authority that a statute with such a limited purpose should be applied to the vastly different issue of a defendant’s mental ability to comprehend his constitutional rights and to give a statement. To the contrary, see Wilson v. Coston, 239 Ark. 515, 390 S.W. 2d 445; Hoffman v. State, 70 N.W. 2d 314 (Neb.); People v. Leis, 213 N.Y.S. 2d 138; State v. Aarhus, 128 N.W. 2d 881 (S.D.) The argument, we think, is untenable.
Finally, it is asserted that “The court erred in permitting officers to testify that they took a picture of defendant, Campbell, and a warrant for his arrest when they went to the jail to talk to a man by the name of Robert Hill.” During the examination of Jerry Best, one of the officers who had questioned Campbell, Best testified that he and Plummer had taken “a picture of Campbell and a warrant that we had for him” when they went to retrieve him from the detention center. Appellants’ counsel objected and requested a mistrial, which the trial court denied. Appellants contend that the refusal of a mistrial was error, because the officer’s testimony allegedly created “an impression to the jury that it was a mug shot of the defendant and could lead them to believe that he had a long record.”
It must be noted th< the officer used the word, “picture,” and made no reference to a “mug shot.” The word used by the officer seems in no way prejudicial to appellants; further, no request was made for an admonition to the jury. The applicable standard is stated in Gammel and Spann v. State, 259 Ark. 96, 531 S.W. 2d 474:
“Declaring a mistrial is an extreme remedy which should be granted only where there has been an error so prejudicial that justice could not be served by continuation of the trial. [Citation omitted.] It should not be granted when any possible prejudice could be removed by an admonition to the jury. [Citation omitted.] It certainly was not called for in this case. Appellants did not seek an admonition to the jury to disregard the questions or any of their implications.”
Still further, Plummer had already earlier testified to the same facts without objection, and any possible error would be rendered harmless.
All objections made during the trial by appellants have been examined and found to contain no merit. Finding no reversible error on the whole case, the judgment is affirmed.
It is so ordered.
George Rose Smith, Fogleman and Byrd, JJ., dissent.
In American-Canadian Oil and Drilling Corp. v. Aldridge and Stroud, 237 Ark. 407, 373 S.W. 2d 148, this court expressly held that a mere possibility of conflicting interest does not disqualify an attorney per se. The court stated:
“A mere possibility that different interests represented by an attorney might develop a conflict is not sufficient to disqualify him.”
The court held that the interests must be actually adverse.
Officer Plummer had received information that a man who had given his name as Robert Hill was being held in the detention center, but that “Hill” was actually Gary Don Campbell. Campbell had been previously convicted of an offense and the officers took his picture to the detention center as a matter of being positive that “Hill” and Campbell were one and the same. | [
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Conley Byrd, Justice.
The issue in this appeal is whether the trial court erred in awarding appellee Lucy Lowrey, as part of her property rights under Ark. Stat. Ann. § 34-1214 (Repl. 1962), a one-third interest in a pending Jones Act claim of appellant Pete Lowrey, Jr. The trial court, upon the award of divorce to appellee, awarded “as her statutory interest, one-third of all proceeds derived either by judgment or settlement from the suit of Pete Lowrey, Jr. v. Canal Barge Lines Inc. ” and directed appellant to execute an assignment.
We reverse the action of the trial court for the reasons set forth in Southern Farm Bureau Casualty Insurance Company v. Wright Oil Company, Inc., 248 Ark. 803, 454 S.W. 2d 69 (1970) and Fenney v. Fenney, 259 Ark. 858, 537 S.W. 2d 367 (1976). See also In re Schmelzer, 350 F. Supp. 429 (S.D. Ohio 1972). Under those authorities an unliquidated personal injury claim does not constitute personal property for purposes of assignment or by operation of law in matters of bankruptcy. Consequently, we conclude that such a personal injury claim does not constitute personal property within the meaning of Ark. Stat. Ann. § 34-1214.
Appellee’s suggestion that the assignability of the unli quidated personal injury claim was raised for the first time on appeal is not supported by the record.
Reversed and remanded for entry of a judgment not inconsistent herewith. | [
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PER CURIAM
'Fhe court’s caseload has more than doubled in the past fifteen years and continues to increase from year to year. As a measure necessary to keep the docket current the court has unanimously decided that, at least until the procedure proves to be unsatisfactory or there is some other change in circumstances, the court will exercise its constitutional, statutory and inherent authority to sit in divisions. There will be two divisions, each consisting of the Chief Justice and three associate justices, with the makeup of the divisions rotating from time to time. Whenever a division is not unanimous the case will be referred to the full court. The court will also sit in banc from the outset in cases presenting a substantial question arising under the Arkansas Constitution, in criminal cases in which capital punishment has been imposed, in cases of original jurisdiction under Rule 17, and in other cases designated by the Court. All opinions in all cases will be circulated to all seven judges and considered in conference before their release. As in the past, no decision will be reached without the concurrence of at least four members of the court. No other change in the court’s procedure or rules is expected to be necessary. | [
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Darrell Hickman, Justice.
William R. Grooms was charged with burglary and grand larceny in Johnson County on December 23, 1974. The bench warrant was issued that date and served on Grooms in Tulsa, Oklahoma on April 23, 1975. He was released on bail May the first. In July, 1975 he was released to the State of Florida to serve the remainder of a prison sentence. On January the 14th, 1976, shortly before he was to be released from the Florida prison, a detainer was placed on him by the State of Arkansas. He immediately filed a pro se motion to dismiss stating there was no preliminary hearing and that he was denied a speedy trial. On March 11, 1976, his counsel filed a motion to dismiss for denial of a speedy trial. Grooms did not at any time file a request for speedy trial. The court overruled these motions, proceeded to trial and Grooms was found guilty of burglary and grand larceny.
The court’s order overruling the motions is the subject of this appeal.
The first allegation of error is that Grooms was denied a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution. The law regarding a speedy trial is set forth in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). The four factors in the Wingo case to be considered in determining whether or not an individual receives a speedy trial are “length of delay, the reason for the delay, the defendant’s assertion of his right and prejudice to the defendant.”
In the recent case of Curan v. State, 260 Ark. 461, 541 S.W. 2d 923 (1976), this court examined in depth the right of a defendant to a speedy trial and the principles set forth in the Curan.case will be applied to this case. There is no evidence that Grooms ever requested a speedy trial or filed a motion of any kind until after a detainer was placed on him in January of 1976.
Furthermore, the Interstate Agreement on Detainers, Ark. Stat. Ann. § 43-3201 (Supp. 1975), to which Florida is a party, requires that a defendant take certain steps to obtain his release or trial. There is no evidence in the record that Grooms prior to January, 1976 ever took any steps to obtain a trial or have the charges dismissed. There is no evidence that he was prejudiced by the delay in any way.
The other error cited-is that Arkansas law requires an accused to be tried within three terms of court. According to Rules of Crim. Proc., Rule 28 (1976), a defendant shall be brought to trial before the end of three full terms of court from the time he is charged, excluding certain periods of delay, as set forth in Rule 28. Rule 28.3 (e) provides that “the period of delay resulting from the absence or unavailability of the defendant” shall be excluded in computing time. In this case, if Grooms was absent or unavailable before his arrest in April, his trial would have been within three terms of court. If the time begins to run from the date charges were filed in December, 1974, he would not have been tried within three full terms of court and, therefore, the charges should have been dismissed.
The sheriff testified that he did not know the whereabouts of Grooms and requested a fugitive warrant from the FBI. The warrant was served in Tulsa, Oklahoma. 'The appellant in his testimony did not really controvert the fact that his whereabouts or availability was unknown to the authorities. Therefore, it is clear that the time in this case runs from the time Grooms was arrested in April.
Affirmed.
We agree. Harris, C.J., and Fooi.kman and Roy, JJ. | [
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Conley Byrd, Justice.
The City of North Little Rock, by Ordinance #4453, sought to annex seven separate tracts of lands lying in Pulaski County which it denominated Tracts A, B, C, D, E, F and G. The Election Commission submitted the matter to a vote at the 1974 General Election on the sole issue of “For Annexation” or “Against Annexation” so that it was a take all or leave all proposition. Appellants contested the annexation with respect to Tracts A, B, C and F. After a stipulation was entered into admitting that all of the remonstrants either reside in or are property owners in Tracts A, B and C and that Tracts A, B and C did include farmlands, appellants moved for a summary judgment. The trial court granted a summary judgment voiding the annexation as to Tracts A, B and C but entered a summary judgment in favor of the City on Tract F on the theory that appellants had no standing to complain about the annexation of Tract F. Appellants appeal as to Tract F contending that if part of the annexation is ruled invalid the balance cannot stand the attack because the courts have no power to reduce the area to that which might qualify for annexation. The City has cross-appealed contending that Acts 309 and 904 of 1975 are procedural in nature and should be applied to the pending litigation.
The contention on the cross-appeal arises because Acts of Arkansas 1971, No. 298 prohibited the annexation by a city of land used only for the purpose of agriculture or horticulture. See Saunders v. City of Little Rock, 257 Ark. 195, 515 S.W. 2d 633 (1974). Following the Saunders opinion and the annexation attempt here, but before this litigation was tried to the lower court, Acts 309 and 904 of 1975 became effective. Those acts provide that “. . . contiguous lands shall not be annexed when they either: (1) have a fair market value at the time of the adoption of the ordinance of lands used only for agriculture or horticulture purposes and the highest and best use of said lands is for agricultural or horticultural purposes; ...” In contending that the 1975 Acts should be given a retroactive effect, the City argues that “. . . Acts 309 and 904 of 1975 are procedural in nature and not substantive; i.e., that they change the manner in which vested interests are to be protected but that they do not violate these interests per se.” The premise of the City’s argument is erroneous. Under the system of government established for cities the annexation of continguous lands is a privilege extended to the cities and controlled by the General Assembly. An enlargement of the privilege is a substantive matter not affecting one’s procedural rights before a judicial tribunal. It follows that we find no merit to the cross-appeal.
The trial court in entering judgment in favor of the City as to Tract “F” (on the theory that appellants had no standing to contest the annexation) apparently was misled by some language of this Court in City of Crossett v. Anthony, 250 Ark. 660, 466 S.W. 2d 481 (1971). However in that case the City of Crossett submitted separately to the voters in both the city and the proposed annexed areas the question of “For” or “Against” annexation. In the case before us the voters of both the City and the several proposed annexed areas were not given that opportunity as required by Ark. Stat. Ann. § 19-307 (Supp. 1975). Under the system here used the votes for one of the proposed areas or the votes in one of the proposed areas may have prevented a fair presentation of the contention of persons in another proposed area who may have had a more appealing cause for not being annexed. The rule that this Court has followed in such situations in the past is set forth in City of Little Rock v. Findley, 224 Ark. 305, 272 S.W. 2d 823 (1954), in this language: “Moreover, a petition like this one is properly rejected if only a part of the contemplated addition fails to meet the requirements for inclusion within the municipality; the impropriety need not extend to the whole of the territory sought. Vestal v. Little Rock, 54 Ark. 321, 15 S.W. 891, 16 S.W. 291, 11 LRA 778.” It therefore follows that we must agree with appellant that the trial court erred in entering judgment in favor of the City as to Tract “F”.
This disposition makes it unnecessary to reach other contentions raised by the parties.
Reversed and remanded.
We agree: Harris, C.J., and George Rose Smith and Holt, JJ. | [
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ElsijaneT. Roy, Justice.
Mayme (May) Bakos Gaffney, a resident of Garland County, died testate on July 16, 1972. Her will, dated January 31, 1972, and an instrument purporting to be a holographic codicil were duly admitted to probate, and William Howard Kryder and Raymon Ledwidge, the designated co-executors, qualified and were duly appointed.
The will provided for numerous charitable dispositions and the establishment of a fund, known as the Bakos Fund, for the benefit of certain children in the Hot Springs Children’s Home. Appellants, the sole heirs at law of decedent, filed a petition for construction of the will alleging for various reasons the Bakos Fund and bequests were illegal and that consequently a large part of the estate must pass by intestacy to them. The probate court held the bequests involved were, valid and that the fund established by decedent constituted a charitable trust for the benefit of the intended recipients.
As to the bequests appellants contend there is no language in the will signifying that the testatrix intended that any portion of her estate should be paid to the named organizations. This contention is answered by a mere reading of pertinent parts of the will.
I. I hereby constitute Rev. Wm. Kyrder and Raymon Ledwidge to be co-executors of this my Last Will and Testament directing my said co-executors to pay all my just debts and funeral expenses, and the legacies hereinafter given, out of my estate [italics supplied].
II. Hot Springs Children’s Home:-5%
III. Good Shepherd’s Children’s Home, Hot Springs, Arkansas :-5%
IV. Hillcrest Children’s Home, Hot Springs, Arkansas:-5%
V. Little Rock Crippled Children’s Home, Little Rock, Arkansas :-5%
VI. Shriners Crippled Children’s Home:-5%
VII. Salvation Army, Hot Springs:-2%
VIII. Abilities Unlimited:-2%
IX. Heart Fund:-2%
X. Cancer Fund:-2%
XI. United Fund:-2%
As is evident the testatrix in Article I of the will directed that the “legacies hereinafter given” be paid out of the estate and then indicated the percentage each named organization was to receive.
The instruction to an executor to pay a legacy is indicative of a donative intent; the exact words “give and bequeath” are not necessary. See Hamel v. Springle, Adm’r, 237 Ark. 356, 372 S.W. 2d 822 (1963).
Furthermore, in construing a will we are mindful that:
. . . [A] will should be given that construction which accomplishes the purposes and objectives of the testator and, further, that consideration must be given to every part of the will in ascertaining the testator’s intentions. Walt v. Bevis, 242 Ark. 644, 414 S.W. 2d 863 (1967).
Carroll v. Robinson, Executor, 248 Ark. 904, 454 S.W. 2d 329 (1970). Thus there is no merit to this contention.
Appellants next contend the lower court erred in holding that the will created a valid charitable trust. Pertinent provisions of the will read as follows:
XII. I hereby establish a fund to be called “The Bakos Fund.” The co-executors of this Will are to pay each child, who departs from the Hot Springs Children’s Home, $100.00 upon such, departure when the child reaches the age of eighteen (18). This age of eighteen is to be flexible depending upon the recommendation of the manager of the children’s home and the agreement of my co-executors. The departing child must be of good character. If the departing child, in his struggle to improve himself and to find a proper place for himself in society, is in need of an additional $100.00, then the co-executors shall pay the $100.00 to the said child if, in their judgment, it would be a prudent step to take.
XIII. The last hereinabovementioned procedures shall be continued until all of the funds of my estate have been depleted or until the estate must be closed in accordance with the laws of Arkansas regarding the number of years that an estate is permitted to be kept open [italics supplied]. If it does become necessary to close the estate, while there are still funds therein, Rev. Wm. Kyrder and Raymon Ledwidge shall become co-trustees of my savings account at First Federal Savings and the disbursements to the children departing the Hot Springs Children’s Home shall be continued until the Bakos Fund, in the form of a savings account at First Federal Savings is depleted. * * *
Appellants argue as to these foregoing provisions that the class of recipients created is so indeterminable that none of the class members can be ascertained with the legal certainty necessary to create a valid trust. We cannot agree. The fact that the class is indefinite in the sense that it lacks specifically designated beneficiaries does not invalidate a charitable trust. As long ago as McDonald v. Shaw, 81 Ark. 235, 98 S.W. 952 (1906), this Court in speaking of charitable trusts, quoting from the case of Russell v. Allen, 107 U.S. 163, 2 S. Ct. 327, 27 L. Ed. 397 (1882), said:
. . . “They may, and indeed, must, be for the benefit of an indefinite number of persons; for, if all the beneficiaries are designated, the trust lacks the essential elements of indefiniteness, which is one characteristic of a legal charity.”
Continuing the Court quoted 2 Perry on Trusts, § 732, as follows:
“. . . Uncertainty as to the individual beneficiaries is characteristic of a charitable use.”
See also Restatement (Second) of Trusts, § 364 (1959) and 15 Am. Jur. 2d Charities, § 93 (1964). Here no uncertainty inheres in the class designated by the Fund. The discretion left to the appellees, co-trustees of the Fund, is confined to selecting qualified recipients from within a class certain, and we conclude that the class defined by the Fund does not fail for lack of specificity.
Appellants also contend, under this same argument, that the Fund lacks a charitable purpose, that there is no guarantee the children in the Home are all impoverished, and that it contravenes the rule against perpetuities. The record reflects most of the children are from homes that are impoverished and all are there because of unfortunate circumstances. Furthermore, as heretofore indicated, disbursements are left in part to the discretion of the co-trustees.
Restatement (Second) of Trusts, § 374 (1959), provides:
A trust for the promotion of purposes which are of a character sufficiently beneficial to the community to justify permitting property to be devoted forever to their accomplishment is charitable.
Continuing in this section we find:
A trust to assist young men or women to establish themselves in life is charitable; ....
Relief of poverty is also a charitable purpose. See McDonald v. Shaw, supra. The Bakos Fund was established to pay $100 and possibly another $100 to the departing 18 year old resident as he left the home and to aid “... in his struggle to improve himself and find a proper place for himself in society, . . . . ” This purpose is unquestionably beneficial to the community since society has a valid interest in the productive integration of its citizenry.
As to the rule against perpetuities, in Garrett v. Mendenhall, Executor, 209 Ark. 898, 192 S.W. 2d 972 (1946), the Court held that a devise to the trustees of a certain church is a devise creating a trust for charitable use for the benefit of an indefinite number of persons and does not fall within the rule against perpetuities. See also Bisco v. Thweatt, 74 Ark. 545, 86 S.W. 432 (1905).
The decedent’s will instructed appellees that the payments therefrom were to be distributed “until the funds of my estate have been depleted or until the estate must be clos ed in accordance with the laws of Arkansas regarding the number of years an estate may remain open. ” Appellants insist that since there is no law in Arkansas specifying the number of years an estate may remain open, a condition precedent to the trust is not met. Ark. Stat. Ann. § 62-2802 (Repl. 1971) requires the personal representative to close the estate as promptly as practicable. Thus the provision of the will is in complete harmony with the statute. Restatement (Second) of Trusts, § 365 (1959) states:
A charitable trust is not invalid although by the terms of the trust it is to continue for an indefinite or an unlimited period.
Accordingly, we find the trial court was correct in holding that the will creates a valid trust.
The court then found the trust was funded by the residuary estate of the testatrix after deduction of debts, expenses and the charitable bequests totaling 35% of the estate. Appellants argue this conclusion is erroneous and that the residuary estate must pass to them as heirs since no funding was provided by the will for the Bakos Fund.
In Rufty v. Brantly, 204 Ark. 32, 161 S.W. 2d 11 (1942), we noted a strong presumption against partial intestacy unless the language of the instrument compels a different result. See also Bradshaw v. Pennington, Administrator, 225 Ark. 410, 283 S.W. 2d 351 (1955).
Appellants contend that if the alleged charitable trust is found valid the funding must be restricted to the savings account in the First Federal Savings. We view the reference to a savings account at First Federal Savings as not being so restrictive. The intention of the testatrix is evidenced by the statement in Article XIII that the trust shall “continue until all of the funds of my estate have been depleted. ” Also, the testatrix directed that if funds remained in the estate when it was closed, the Bakos Fund was to be continued “in the form of a savings account” with appellees to be co-trustees to handle disbursements therefrom. Thus it is evident the intention of the testatrix was that the First Federal Savings account was to serve as a depository for the residue of the estate pending distribution to the youth at the Children’s Home.
As further indication of the testatrix’s intent that residuary sums go to the Bakos Fund and not to any of her heirs we note the following provisions of the will:
XVIII. I bequeath to my brother John and his daughter, Ellen Poat, share and share alike, as joint tenants with right of survivorship and not as tenants in common, all of my share in my sister’s home provided the home has not been sold and the proceeds divided prior to my demise [italics supplied].
XIX. I bequeath to each of my relatives, with my thanks, the sum of five and no/100 ($5.00) Dollars, when as and if they make claims [italics supplied].
XX. My sincerest thanks and God’s blessings to you two gentlemen whom I have named as my co-executors of this Will and my co-trustees of my savings account at First Federal Savings which, after my death, and after the closing of my estate, is to be used for the benefit of the children departing from the Hot Springs Children’s Home [italics supplied]. You both have made my rough road here a little smoother and a little brighter and I know you both will try to make the road brighter for the aforementioned children who may be in need of a friend, as I was.
These provisions clearly reflect that the testatrix, contrary to appellants’ assertions, did not intend that any part of her estate should pass intestate, but meant for all funds except the specific legacies to become a part of the charitable trust, as determined by the trial court.
Affirmed.
We agree. Fogleman, Byrd and Holt, JJ.
The codicil is not at issue herein. | [
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John A. Fogleman, Justice.
Appellant was charged and found guilty of the murder of Donnie Edward Douglas on December 21, 1974, while engaged in the perpetration of the crime of rape of Sherry Douglas in violation of Ark. Stat. Ann. § 41-4702 (A) (Supp. 1973). He was sentenced to life imprisonment without parole. He seeks reversal of the judgment of conviction on 15 grounds. We find no basis for reversal of this judgment on any of them or on any objection made during the course of the trial. We shall review the points for reversal argued by appellant in the order raised by him and state the facts disclosed by the evidence only to the extent necessary for proper treatment of them.
I
THE COURT ERRED IN REFUSING TO SET BAIL.
Appellant moved that the court set bail pending trial. He admits in argument here that it would have been difficult for him to have made bail in any amount and that his motion was actually an attack upon the constitutionality of our capital felony murder statute’s provision for the death penal ty. He argues that the death penalty is cruel and unusual punishment contrary to Art. 2 § 9 of the Arkansas Constitution and Amendment Eight to the United States Constitution. We have held the death penalty provision of the act constitutional on similar attacks. Collins v. State, 259 Ark. 8, 531 S.W. 2d 13; Neal v. State, 259 Ark. 27, 531 S.W. 2d 17. See also, Graham v. State, 253 Ark. 462, 486 S.W. 2d 678. Appellant somehow reads the diverse opinions of individual justices of the United States Supreme Court to collectively mandate abolition of the death penalty, at least as embodied in the Arkansas statutes. We do not so read these opinions. See Collins v. State, supra. It seems to us that this is foreclosed by the decisions of the United States Supreme Court in Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2971, 49 L. Ed. 2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 944 (1976). See Criminal Law Reporter, Vol. 19, No. 13. Be that as it may, any challenge by appellant to the death penalty is moot, because he was sentenced to life imprisonment without parole. Harris v. State, 259 Ark. 187, 532 S.W. 2d 423.
II
THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S MOTION 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.
Ill
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.
IV
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.
This case was set for trial in March, 1975, but continued until April 28, 1975, in order to permit appellant’s attorney to prepare for trial. On April 24, 1975, appellant moved in limine that prospective jurors who are opposed to, and who would under no circumstances vote for, the death penalty not be excused for cause in that portion of the trial at which the defendant’s guilt or innocence was to be determined on the ground that a jury composed of only persons who would consider the death penalty would be more likely to convict him than would a jury composed of a cross-section which included persons who would refuse to consider the death penalty and that trial before a jury composed of persons who would be willing to impose the death penalty would deny him a fair trial and otherwise violate rights guaranteed him by the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and the due process clause of Art. 2 § 8 of the Arkansas Constitution. By oral amendment, appellant also invoked the constitutional guaranties of right to trial by an impartial jury in the Sixth Amendment to the United States Constitution and Art. 2, § 10 of the state constitution. Motion was denied. In passing, it appears to us that failure to excuse jurors who would be unwilling to consider the death penalty under any circumstances could, in effect, nullify our death penalty statute, because it requires that the same jury which determines guilt also determine the sentence to be imposed in the sentencing stage of a bifurcated trial. See Ark. Stat. Ann. § 41-4710 (Supp. 1973). Be that as it may, we find no error in the circuit judge’s action on this motion. Basically, the constitutional law on the subject of excusal of jurors for cause because of their unwillingness to consider the death penalty under any circumstances is stated in Withers poon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968) and Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968), decided the same day. The very argument advanced by appellant was rejected in Witherspoon, in the light of information then available to the court. In Bumper, the court also rejected the argument that a jury so selected deprived a defendant of his Sixth Amendment right to trial by an impartial jury. We find no violation of constitutional rights in denial of this motion.
In effect, appellant recognizes the impact of the holding in Witherspoon on his contention, but says that he was prepared to make the showing which was lacking in Witherspoon. On April 24, 1975, at 12:43 p.m., appellant filed his motion for a continuance from April 28 to May 5 to enable him to obtain the attendance of Dr. Daniel Taub, a psychologist of Springfield, Missouri, who he alleged was employed at the Medical Center for Federal Prisoners there. On the same date, appellant filed a motion asking that the court order the Treasurer of Sebastian County to pay the $500 witness fee of Dr. Taub, along with his travel expenses, alleging that this doctor had indicated in a telephone, conversation with appellant’s attorney that, in the doctor’s professional opinion, a jury composed entirely of persons who would be willing to impose the death penalty would be more likely to convict a defendant than would a jury which included some who would not consider the death penalty. It was further alleged that appellant’s attorney had attempted, without success, to obtain the testimony of expert witnesses locally and had been informed that no local experts had any experience in the area.
Appellant also moved on April 25, 1975 that the case be continued to May 5, 1975, in order that he might obtain the attendance of Dr. Faye Goldberg, a psychologist, employed by the University of Chicago in Chicago, Illinois, who had indicated in a telephone conversation with appellant’s attorney that she held the same professional opinion as that attributed to Dr. Taub and that her opinion would be supported by testimony in accordance with an article written by the witness, a copy of which was attached to the motion. The article was entitled, “Toward Expansion of Witherspoon, Capital Scruples, Jury Bias, and Use of Psychological Data to Raise Presumptions in the Law” and reprinted from the Har vard Civil Liberties Law Review, Vol. V, No. 1, January, 1970, pp. 53-69.
All the motions regarding these points for reversal were heard by the circuit court on April 28.
The granting or denial of a motion for continuance to obtain the attendance of an absent witness lies within the sound judicial discretion of the trial judge, and his action will not be reversed on appeal in the absence of such a clear abuse of that discretion as to amount to a denial of justice. Figeroa v. State, 244 Ark. 457, 425 S.W. 2d 516; Thacker v. State, 253 Ark. 864, 489 S.W. 2d 500; Freeman v. State, 258 Ark. 496, 527 S.W. 2d 623. The denial of a motion which is not in substantial compliance with statutory requirements is not an abuse of discretion.
One of the critical factors in the consideration of such a motion is the diligence of the party seeking the continuance in obtaining the testimony or the attendance of the witness. Ark. Stat. Ann. §§ 27-1403 (Repl. 1964), 43-1706 (Repl. 1964); Thacker v. State, supra. In denying the motion, the circuit judge pointed out that appellant’s attorneys, the Public Defenders, were appointed on January 2, 1975, that the case was continued for one month to permit them to prepare for the trial, that he had specifically inquired of the Public Defender’s office five or six days before the trial date about any possible motions for continuance and was not informed of any, and that the inquiry was made partially because the judge had been advised that the prosecuting witness was coming from California for the trial and some 20 or 25 witnesses, many of whom did not reside in Arkansas, had been subpoenaed for the April 28 date. Even though appellant’s attorney advised the court that he had exhausted all possibilities of locating witnesses in Arkansas who were qualified to testify on the subject and did not learn of the identity or availability of the witnesses sought until after the. court’s inquiry, we cannot say that the court’s implicit finding that there was a lack of due diligence in obtaining the attendance of either witness to support appellant’s motion in limine was erroneous.
In order to obtain a continuance because of the absence of a witness, it is necessary that the movant support his motion by affidavit stating what facts affiant believes the witness will prove and not merely the effect of such facts in evidence. In the case of an expert witness, this would at least require that the basis of his opinion be stated. The requirement was not even substantially complied with in the case of Dr. Taub. Assuming however, for the purpose of his motion that attaching the article written in 1970 by Dr. Goldberg was a sufficient statement of facts to which the witness would testify, it is not verified by anyone’s affidavit, as required by statute. Nor does anyone, by affidavit, express the belief that the facts stated are true. Furthermore, the materiality of the factual background for the testimony of the expert witness does not appear on the face of the motion, because her opinion seems to be based on 1966 data. The failure to file the required affidavit is another significant factor in appellate review of the trial court’s action in denying a motion for continuance. Thacker v. State, supra; Brown v. State, 252 Ark. 846, 481 S.W. 2d 366.
If all the other requirements for a continuance had been met, the testimony of Dr. Goldberg could not well be the basis for appellant’s position. Appellant argues that the United States Supreme Court, in Witherspoon, invited the same kind of evidence Dr. Goldberg could have furnished. Appellant points out that in rejecting the precise argument he advances, the United States Supreme Court said that the data adduced by the petitioner there was too tentative and fragmentary to establish the premise and that the court could not conclude on the basis of the record before it, or as a matter of judicial notice, that exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or innocence and substantially increases the risk of conviction. It seems evident to us from footnotes in both the Witherspoon and Bumper opinions that the very article which appellant relies upon as indicative of Dr. Goldberg’s probable testimony was among the fragmentary scientific data rejected by the Witherspoon court as insufficient.
Appellant has failed to show that there was an abuse of the trial court’s discretion in denying his motion for continuance to permit him to make a showing of at least questionable relevance on the matter of jury selection. We perceive no significant difference, insofar as the trial court’s discretion is concerned, between this case and Blanton v. State, 249 Ark. 181, 458 S.W. 2d 373, cert. den. 401 U.S. 1003 (1970), where we held that there was no abuse of discretion in the denial of a motion for continuance to permit a defendant to investigate the nature and makeup of a jury panel to determine its economic class composition.
V
THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTION TO ASK A PROSPECTIVE JUROR IF HE WOULD IMPOSE THE DEATH SENTENCE.
We find no error. Appellant argues that the asking of the following question of a prospective juror by the prosecuting attorney was error: “I believe your answer was that you would consider the death penalty, but then when it came right down to it if the circumstances justified it, would you impose it?” Appellant objected on the basis that the proper test was whether the juror would consider the death penalty. Appellant argues that the question was improper because it asked the juror to state whether he would vote for the death penalty in a specified hypothetical situation. We could well agree with appellant if the question had included a statement of a certain hypothetical situation or set of facts and tended to commit the juror to vote for the death penalty if that factual showing were made. This was not the case here. As a matter of fact, the prosecuting attorney, in pursuing the line of questioning, stated that no one knew what the evidence would be without hearing it, and that it was difficult for one to say what he might do. The juror’s eventual affirmative answer was that he would go along with the death penalty if the circumstances justified it. We think the argument here is a semantical one which merits no consideration.
VI
THE TRIAL COURT ERRED IN REFUSING TO STRIKE FOR CAUSE A PROSPECTIVE JUROR WHO STATED THAT, GIVEN A CHOICE OF VOTING CONVICTION OF CAPITAL FELONY MURDER OR ACQUITTAL, HE COULD NOT VOTE FOR ACQUITTAL, IF THE EVIDENCE PROVED MURDER BUT DID NOT PROVE CAPITAL FELONY.
We do not read the record on this point as appellant does. The prospective juror had never served as a juror before. It is clear to us that he did not fully understand questions by appellant’s attorneys about the requirement that the state prove both murder and its commission in the perpetration of rape and felt that proof of murder alone would be sufficient for a conviction and for application of the capital felony murder statute. On the basis of these answers, appellant challenged the juror for cause. The prosecuting attorney then took up voir dire examination. Here again, the juror was not able to distinguish between murder and capital felony murder in his answers. He did state, however, that he would follow the court’s instructions. In response to further questioning by appellant’s attorneys, the juror answered that he could not vote to acquit the defendant if the state failed to prove perpetration of a rape beyond a reasonable doubt but proved beyond a reasonable doubt that he committed murder. Appellant again challenged the juror for cause. The trial judge then explained that there were different degrees of murder, that only capital felony murder could carry a death penalty, and that the court might or might not give instructions on first degree murder along with a capital felony murder instruction. The judge then asked if the case were submitted only on the capital felony murder charge and the state failed to prove the rape beyond a reasonable doubt, whether the juror would still vote to find the defendant guilty of capital felony murder. The juror responded, “Not necessarily, no.” The court then asked whether the juror could listen to the evidence and return his verdict on that evidence and the instructions given, even if the juror did not agree with the instructions, and received an affirmative answer. Thereafter, the court denied the challenge.
VII
THE COURT ERRED IN REFUSING TO STRIKE FOR CAUSE A PROSPECTIVE JUROR WHO STATED HE HAD AN OPINION WHICH IT WOULD TAKE PROOF TO REMOVE.
Here again, we evaluate the record differently. The juror did equivocally say that he had an opinion based upon newspaper and television accounts of the crime. When asked if he had an opinion, he answered, “Well, yes and no. It just — I’d have to hear the evidence, you know, of the case. I don’t have a set opinion on it, really, either way.” Upon pursuit of the point by appellant’s attorney, the juror stated that he would “follow what the witnesses and the court decide” and that it would not require any proof other than what he heard in court to remove “what [I] now understand about the case,” but that it would take some proof in court. Upon challenge for cause, the circuit court interrogated the prospective juror thus:
THE COURT: Did I understand you to say — If I misquote you, please tell me — that you would follow the law and the evidence and the instructions?
A. Yes.
******
THE COURT: Would you take into consideration anything else?
A. No, sir.
THE COURT: Would you take into consideration your opinion, regardless of how lightly held or strongly held it is at this time?
A. (Nods head no).
We find no abuse of the trial court’s discretion in denying the challenge for cause.
VIII
THE COURT ERRED IN OVERRULING DEFENDANT’S OBJECTION AND ALLOWING A WITNESS TO TESTIFY TO TELEPHONE CONVERSATIONS WHICH OCCURRED OUTSIDE THE PRESENCE OF THE DEFENDANT.
The witness was Modine Sosebee, a friend and neighbor of Donnie Douglas and Sherry Douglas, the victim of the murder and the alleged victim of the rape respectively. The friendship was close. The two couples went to the same church, as did Mr. and Mrs. Edward Douglas, Donnie’s father and mother, and the parties visited occasionally on the telephone. The Douglases owned a hog and had planned to butcher it at the Sosebee residence, one-half mile across the field from the Donnie Douglas house, on Saturday, December 21, with the help of the Sosebees. Mrs. Sosebee testified that she received a telephone call about 6:00 a.m. on that day, from Sherry, who said that they would be unable to butcher the hog because Donnie had gone to Alabama with Roger Pierce (Donnie’s stepbrother) to pick up Angie’s (Roger’s sister’s) car. Mrs. Sosebee said that on the next day, Sunday, Bertha Douglas, Donnie’s stepmother, called on the telephone. An objection to this witness’ relating the statements of Bertha (Mrs. Edward) Douglas was sustained. The objection was on the grounds of hearsay and the right to confrontation. The objection on the right to confrontation was overruled, since it was disclosed by the state’s attorney that Bertha Douglas would be a witness. The state’s attorney also stated that the telephone conversation was not offered to show the truth of the statements but to show that the conversation took place. The court then overruled the objection. The witness then said that Mrs. Douglas asked if the kids (Donnie and Sherry) were there, and said there had been a death in the family and that members of the family had been trying to reach Donnie and Sherry the day before without success. Mrs. Sosebee said that she then reported the substance of her conversation with Sherry on Saturday morning, and that Mrs. Douglas replied that Donnie and Roger did not go to Alabama and then said, “Something has happened. We’re going to go look for those kids. Roger got back yesterday morning and Donnie wasn’t with him.” The court then admonished the jury that this conversation was not offered for the purpose of showing its truth but merely to show that it had taken place.
Appellant only argues the hearsay objection here. In considering this objection, it is necessary that we consider some of the background that had already been developed. Sherry Douglas had testified about the plans to butcher the hog and that Donnie’s parents knew of the plans. She had also testified that Donnie and Roger had planned to go to Alabama to pick up an automobile, but that Pierce had actually left without Donnie on Friday. She said that appellant had killed her husband and raped her during the night, and directed her to call Mrs. Sosebee and tell her that Donnie had changed his mind about killing the hog on Saturday but she had told appellant that she should say that Donnie had gone to Alabama with Roger and would kill the hog when he got back. The reason she made this suggestion was because she knew Donnie had seen Mrs. Sosebee on Friday evening and thought he might have told her that Roger had gone to Alabama without him and that Mrs. Sosebee might know that something was wrong and knew that Mrs. Douglas would know and that someone would come over to see what was wrong.
Mrs. Bertha Douglas later testified that on Saturday she had received a telephone call concerning the whereabouts of Donnie and Sherry Douglas and had called Mrs. Sosebee, who told her of the telephone call from Sherry. Mrs. Douglas said that, since she knew that Roger had gone to Alabama alone and had returned with the car on Sunday morning, her husband then went to Donnie’s home, but he soon returned, and, as soon as she could get someone to babysit with a granddaughter, both of them went to the residence of Donnie and Sherry. It was then about 5:00 p.m. She said Donnie’s car was gone but that a Chevrolet car was sitting there. After attending to hogs, chickens, ducks and dogs on the place, Mr. Douglas went to the front door, and later both went to the back door, where they found a hole chopped in the door that had not been there when Mr. Douglas came over in the morning. She would not permit her husband to break in. According to her, they then went to church and delivered some Christmas gifts, but she continued to worry about Donnie and Sherry and called a deputy sheriff, who with another officer went to the Donnie Douglas house along with the elder Douglases. There they found Donnie’s car parked at the house, his body on the floor, and appellant asleep on a bed to which Sherry, who was nude, was tied.
Since Mrs. Douglas did testify, the right of confrontation was preserved. No objection was made to the testimony of Mrs. Douglas when she related the telephone conversation with Mrs. Sosebee. In view of this failure to object, the admonition given by the trial court, the relevancy of the telephone conversation to the actions of the elder Douglases leading to the discovery of their son’s body and the insignificant bearing the statements of Mrs. Douglas had on the issues in the case, the error, if any, in admitting this evidence was harmless.
IX
THE COURT ERRED IN OVERRULING DEFENDANT’S OBJECTION AND ALLOWING THE PROSECUTOR TO ASK LEADING QUESTIONS ON DIRECT EXAMINATION.
These objections were directed at the examination of Richard Lanier, a service station operator who had seen appellant and Sherry Douglas at his station on Saturday, December 21, on two occasions. We have reviewed the record as abstracted and are unable to say that the trial judge abused his discretion.
X
THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S MOTION FOR MISTRIAL AFTER THE STEPMOTHER OF THE DECEASED BROKE DOWN ON THE WITNESS STAND AND ASKED WHY ANYONE WOULD WANT TO KILL THE DECEASED.
XV
THE COURT ERRED IN REFUSING TO DECLARE A MISTRIAL WHEN THE WIFE OF THE DECEASED, AND ALLEGED VICTIM OF RAPE, RAN FROM THE COURTROOM CRYING DURING THE PROSECUTOR’S SUMMATION.
These points relate to emotional reactions of a witness on the one hand and a victim on the other. At the conclusion of her direct examination, Mrs. Douglas identified appellant as the person brought out of her stepson’s house when she and her husband went there with the officers by pointing him out. Immediately the prosecuting attorney asked that the record show that she had identified appellant and Mrs. Douglas, crying, exclaimed:
Oh, my God! Why, Lord, why Donnie, why Donnie, why? Why would anybody want to kill him (crying).
Appellant’s prompt motion for a mistrial was denied but his subsequent alternative motion for an admonition to the jury was granted by the following statement:
Any remarks that the witness made voluntarily that were not in response to questions are not considered evidence and will be disregarded by the jury.
The record is not so clear as to the actions of Sherry Douglas. Appellant’s attorney stated, in moving for a mistrial before making his closing argument, that Sherry Douglas, who had been sitting near the jury box, had run from the courtroom crying during the prosecuting attorney’s opening argument and that he could hear her sobbing, crying and talking outside the courtroom after her exit and was sure that the jury had. The prosecuting attorney was sworn and testified that he was within three or four feet of the jury when the incident was supposed to have occurred and that he did not hear Sherry Douglas crying or saying anything, although he was aware that someone had left the courtroom. Appellant testified that he saw Sherry Douglas get up and leave the court; oom crying and heard her crying until someone closed the door behind her. Thereafter, he said, he heard her sobbing. This motion was overruled. The trial judge was not asked to admonish the jury.
Emotional outbursts by the relatives of murder victims and by victims of crimes are not unusual and are difficult to control. In these instances there were no accusatory remarks or remarks directed at the accused. The trial judge must have been aware of all that took place in his presence and was in a better position to evaluate the impact of these occurrences than anyone else. He had a wide latitude of discretion in the control of the trial. Utilization c/ the extreme and drastic remedy of declaration of a mistrial should be a last resort. We find no abuse of discretion in the denial of motions for a mistrial.
XI
THE COURT ERRED IN REFUSING TO DIRECT A VERDICT OF ACQUITTAL AS TO CAPITAL FELONY MURDER.
Appellant here contends that the evidence is insufficient to present a jury question as to his guilt of capital felony murder saying that, even when viewed in the light most favorable to the state, it did not show that the killing was committed by a person (appellant) engaged in the perpetration of rape. He tacitly concedes that the evidence on behalf of the state, if believed, is sufficient to show tfiat he killed Donnie Douglas and that he raped Sherry Douglas, even though he steadfastly denies having done either b it he argues that the evidence does not show that the kii’ing was done in order to accomplish the rape.
Of course, the necessary evidence may be circumstantial. The circumstances shown were sufficient basis for a reasonable mind to conclude, without resort to speculation or conjecture, that the killing was done while appellant was engaged in the perpetration of the crime of rape. A review of the evidence in the light most favorable to the state shows could come and drink a beer. They took Venable to his mother and stepfather about a city block away from the Douglas residence. He was a frequent visitor to the Douglas home after he had come to trade cars with Donnie and had met Sherry some two or three weeks prior to the slaying of Donnie. Lanny Venable, the Sosebees and the elder Douglases knew of the plan to butcher the Douglas hog at the Sosebee residence on Saturday, December 21. All of them knew about the plans of Donnie Douglas and Roger Pierce to go after an automobile in Alabama. On Friday night Lanny Venable went with Donnie and Sherry Douglas to the Grand Avenue Lounge where Donnie played in a band. While there, Venable sat at the table with Sherry. He drank 10 or 12 cans of beer and she drank Sprite. The lounge closed at about 12:30 a.m. on Saturday and the three went to one or more places in search of drugs, without success. Sherry Douglas said that her husband was trying to get them for Venable. She testified that, on the way home, Venable asked if he might not come to the Douglas house and drink a beer. She said she told him she was tired and wanted to go to bed and that Donnie had said that he was tired, too, but that Venable could come and drink a beer. They took Venable to his mother’s house so he could let her know where he was going. The Douglases left Venable there and went to their own house. Sherry said that she went to bed immediately. Venable testified that he got his rifle while at home, then got in his car and proceeded to the Douglas house. His excuse for getting the rifle was that there had been a problem about wolves or wild dogs. After Venable arrived, Donnie Douglas was playing tapes on his stereo tape player. The door between the bedroom and the living room was open. Sherry Douglas said that she could hear the two talking about a pizza Venable had brought but heard no argument between them. She heard Donnie talking about butchering the hog and then heard him walk across the room toward the stereo and change tapes. According to her, as soon as she heard the tape plugged up, she heard a shot and a thump, turned over and found Venable standing by her bed pointing a gun at her. She had glanced at the clock and noted that it was 2:10 a.m. She said that Venable told her that if she didn’t do just as he said, he would kill her, too, and that prison had made him like he was. He added that if she were not pregnant, he would kill her right then, too. She said that when she tried to get off the bed and go to her husband, he shoved her back on the bed, hung a blanket over the door, made her lie down and started talking to her. She testified that when she asked him why he killed her husband, Venable said he had to in order to get him out of the way, that he had to talk to her, he was sorry, it was something he had to do and shortly thereafter he made her remove her clothing, engage in oral sex with him and then raped her. She said that Venable’s rifle was right beside the bed and that she was afraid to resist him. After the intercourse, she said he tied her hands and feet to the bed with a cord he cut from the television set in the house and went to sleep for about 10 minutes. She said that later in the morning she called Modine Sosebee at Venable’s direction while he was holding a gun on her. She explained that she worded the conversation about killing the hog as she did because she thought Mrs. Sosebee would know something was wrong and would investigate. She said that Venable raped her again during the morning and then took her to his mother’s house while no one was at home, made her cook breakfast for him, raped her again and then took her into Oklahoma, returning to the Douglas home on Sunday at about 1:00 p.m. when he poked the hole in the door, but locked it from the outside with a padlock. She stated that he again forced her to have intercourse with him but suggested that they leave and come back after dark, so it would not be so risky for him to leave. According to her, he said he would tie her to the bed, so that it would take several hours for her to get loose and enable him to escape before she called the police. She said they did return, he raped her again, tied her up and went soundly to sleep, not having slept but 10 minutes since he killed her husband. She said that while she was tied to the bed, she had seen car lights outside, then saw a car back out. It was after the car had left that Venable fell asleep. Shortly thereafter Donnie’s parents and the officers carne and rescued her.
Venable testified that Sherry killed Donnie when he plugged in the tape, using Venable’s rifle. He admits the frequent acts of i itercourse, except for the oral sex, but said that there was no force or compulsion involved. He explained that he tied Sherry to the bed as part of a prearranged plan for him to get away and for her to say that someone had broken into the house, shot her husband and raped her.
All the circumstances certainly afforded a reasonable basis for finding that Venable killed Donnie Douglas to enable him to perpetrate the crime of rape on Douglas’s wife. It would be difficult to assign any other motive for the killing, if Venable was the killer.
XII
THE COURT ERRED IN REFUSING TO SUBMIT NO HIGHER AN OFFENSE THAN SECOND DEGREE MURDER TO THE JURY.
Appellant moved for a directed verdict as to first degree murder and moved that no issue be submitted on any greater offense than second degree murder. There was no prejudicial error as there was sufficient evidence to support the conviction of capital felony murder.
XIII
THE COURT ERRED IN ALLOWING THE STATE TOXICOLOGIST WHO STATED THAT HE WAS NOT A PHARMACOLOGIST OR AN EXPERT TO TESTIFY TO INFORMATION HE HAD AS TO HOW LONG CERTAIN DRUGS WILL REMAIN IN THE BLOODSTREAM.
The State Toxicologist was subpoenaed and presented as a witness by appellant. The witness testified that he had analyzed samples of blood taken from the body of Donnie Douglas. He found methamphetamines, Qualude, also known as Methoqualone, phenobarbitol and a blood alcohol content of 0.07 percent by “weight volume” of alcohol. He did not do a quantitative analysis to determine the amount of drugs present. On cross-examination, he said that since he was not a pharmacologist he could not say now long the drugs could have been in the bloodstream when the test was made, except in relation to information he had gained in order that he might carry on his job as an analyst. When asked what that information was, appellant’s attorney’s objection was overruled on the basis that the question was proper cross-examination. The witness then stated that, in cases in which he had performed analyses, there were those in which, to the best of his knowledge, the phenobarbitol had been taken as long as 20 days before the tests were made.
The relevance of the witness’ testimony is not readily apparent. Someone shot and killed Donnie Douglas as he changed a tape on his stereo tape player. No one suggests that he had done anything at the time to provoke or invite an assault or that his death was caused by anything other than the gunshot wound. If the testimony related to mitigating circumstances, it is sufficient to say that the jury imposed the lesser punishment for capital felony murder. Assuming, however, that the evidence was admissible as a part of the res gestae, in view of the fact that the questions were propounded on cross-examination, and, in view of the discretion invested in the trial judge to control cross-examination and to determine the qualification of a witness to give opinion evidence, we find no abuse of discretion.
XIV
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.
Appellant argues that the court should have instructed the jury that they must find the elements of first degree murder, or at least all the elements of second degree murder before they could find appellant guilty of capital felony murder. Of course, in our view of the evidence, it sustains a conviction of capital felony murder, but appellant’s complaint here goes to the matter of instructions to the jury. Appellant relies upon commentary on the equivalent section of the new Arkansas Criminal Code, Ark. Stat. Ann. § 41 - 1501, effective January 1, 1976. Since this provision was not in effect at the time of the offense charged or the time of trial, we forego any abstract discussion of its construction. It is sufficient for the purposes of this case to say that we view the capital felony murder statute in existence at the time of this offense in the same light that we have heretofore viewed the felony murder statute. In that light, proof of a homicide in the commission of rape relieves the state of the burden of proving premeditation, deliberation or the specific intent to take human life. See Bosnick v. State, 248 Ark. 846, 454 S.W. 2d 311; Murray v. State, 249 Ark. 887, 462 S.W. 2d 438; Walker v. State, 239 Ark. 172, 388 S.W. 2d 13.
We have, as in other cases involving the death penalty, reviewed the record for other objections made during the course of the trial and find none worthy of consideration.
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Frank Holt, Justice.
This is a workmen’s compensation case. In October, 1973, Eddie Lee Jackson, Oscar Logan and Elbert Davis were passengers in a pickup truck owned and driven by their employer Rogers Blankenship. Rogers had picked the three men up at their homes and they were on their way to a pulpwood cutting work site when the pickup truck collided with a school bus causing the immediate death of all four men. Rogers had purchased his father’s pulpwood business and was supplying pulpwood to Georgia-Pacific through the account of appellant Stephens and Stephens. It is undisputed that at the time of the accident appellant Stephens had workmen’s compensation insurance with appellant Rockwood. Numerous claims by the alleged dependents of the decedents were filed with the Arkansas Workmen’s Compensation Commission against appellants. At the request of Rockwood, W.R. Blankenship, father of deceased Rogers Blankenship, and his workmen’s compensation insurance carrier, Hartford Insurance Company, were made parties respondent to the claims.
The Commission found that the appellant Rockwood was estopped to deny that it extended workmen’s compensation coverage to Rogers Blankenship; Rogers Blankenship was an uninsured subcontractor of Stephens; and all the decedents were statutory employees of Stephens. The Commission also found that Rochelle Blankenship is the widow of Rogers Blankenship and Christie Joy Blankenship is his daughter, who are entitled to benefits; Emma Logan and Christie Lee Davis are not widows within the meaning and definition of the Workmen’s Compensation Act and, therefore, are not entitled to benefits; Elbert Davis is survived by his acknowledged, illegitimate daughter, Linda Carol Davis, who is entitled to benefits; and Henry Lee Dunn, Jr., is not the child of Elbert Davis. The Commission further found that none of the claims were barred by the coming and going rule and Hartford Insurance Company had no policy in effect with W.R. Blankenship that extended coverage to the families of any of the decedents.
The circuit court affirmed the Commission’s findings except it reversed the Commission’s findings that Emma Logan is not the widow of Oscar Logan and Christie Lee Davis is not the widow of Elbert Davis. From this order comes this appeal. Henry Lee Dunn, Jr., cross-appeals from the court’s order affirming the Commission’s finding that he is not the dependent child of Elbert Davis.
We first consider appellants’ contention that there is no substantial evidence to support the Commission’s finding that appellees’ decedents were not employees of W.R. Blankenship. We do not agree. Appellants recognize that the finding of the Workmen’s Compensation Commission will be affirmed if there is substantial evidence to support it. We further observe that in determining if there is substantial evidence to support the factfinder, we need only ascertain that evidence, although contradicted, which is most favorable to the appellee. Thrifty Rent-A-Car v. Jeffrey, 257 Ark. 904, 520 S.W. 2d 304 (1975). In the present case there is testimony by Rogers Blankenship’s father and his wife that Rogers had bought the pulpwood operation from his father in February, 1973, under a rental purchase agreement. By the terms of the agreement, he was paying his father $200 a week on the equipment until a total of $30,000 was paid. Rogers applied for and got a Federal Employer’s Identification Number in July, 1973, and began making his own payroll. He hired, fired and supervised the employees in his pulpwood operation. He had employed all three of the individuals who were killed in the truck with him. Edgar Stephens, sole owner of appellant Stephens & Stephens, testified that Rogers Blankenship was one of his pulpwood subcontractors. Stephens stated he knew that Rogers had bought or was buying this equipment from his father because Rogers’ mother had so told him (Stephens) about a month before the accident. There is ample substantial evidence that Rogers Blankenship was not his father’s employee and at the time of the fatal accident was the employer of the three men who were killed in the truck with him.
Appellants assert that the Commission’s finding that they are estopped to deny coverage is not supported by substantial evidence. Appellants argue it is not relevant that Rockwood had consistently paid claims on subcontractors knowing they were subcontractors. We cannot agree.
We deem it necessary to discuss some background facts concerning the pulpwood industry in Ashley County. For at least the last ten years, Georgia-Pacific has purchased pulpwood from only two sources in Ashley County, appellant Stephens and another individual, Marcel Baker. Each was assigned a zone of operation in the county and sometimes a quota. Their subcontractors (such as Blankenship) would cut and deliver pulpwood directly to the Georgia-Pacific mill; however, payment was made either to appellant Stephens or Baker, as the case may be. When Georgia-Pacific paid either appellant Stephens or Baker, it withheld premiums for workmen’s compensation insurance from the remuneration due the dealers based on the cords of wood delivered by the subcontractors. Georgia-Pacific would then pay these premiums directly to the Guy Nolley Agency, agent for appellant Rockwood. The dealer would then deduct the premium when he paid the subcontractor. It was estimated that the annual premium for workmen’s compensation coverage for forty-two contractors-producers was $215,000.
W. R. Blankenship, Rogers’ father, testified that in 1970 he made a verbal contract with appellant Stephens to cut and haul pulpwood to Georgia-Pacific through the Stephens’ account. At the time of the initial agreement, Stephens advised him that he would pay him once a week for the wood produced and that workmen’s compensation insurance would be deducted from the pay he received. Stephens told him that anyone who worked in connection with the cutting, hauling or loading of the pulpwood was covered under his (Stephens ’) policy of workmen’s compensation insurance. When Blankenship sold the equipment to his son Rogers, he told his son that workmen’s compensation insurance premiums were being withheld and Rogers and his men would be covered under Stephens’ workmen’s compensation policy. Stephens corroborated this understanding by testifying that he told his subcontractors he considered all of them and their employees as his employees for purposes of workmen’s compensation coverage. He never made any distinction between the subcontractors and their employees when he reported any injuries to appellant Rockwood. Stephens himself had had no employees since 1964. In other words he carried workmen’s compensation with appellant Rockwood for the benefit of his subcontractors and their employees. He considered Rogers Blankenship one of his subcontractors. Rogers’ wife testified that when one of Rogers’ men was injured, he would be referred to Edgar Stephens who handled the claim for them.
Harry Whatley, the adjuster for Rockwood in southern Arkansas, testified that he did all of the adjusting for Rockwood on the policies of insurance written for Stephens during the past ten to fifteen years. He knew as early as 1968 that Stephens was producing pulpwood exclusively through subcontractors. He said, as far as he was concerned, it didn’t make one bit of difference whether the man that got hurt was a subcontractor or a producer or whether he was an employee of a subcontractor, as long as he was hurt while he was working and producing wood for Stephens. When various claim forms were sent to Whatley’s office, he would correct them if necessary to show the name of Stephens & Stephens as the employer and listed the subcontractor as foreman.
Dale Schrock, claims supervisor for Rockwood, testified that Rockwood paid claims whether they were subcontractors or employees of subcontractors. As an examiner or claims supervisor, he didn’t make any distinction in their status in determining whether or not the claimant was covered. Rockwood had not denied a single claim filed by Stephens until this accident resulting in these death claims. It is undisputed that appellant Rockwood issued workmen’s compensation policies to Stephens during the past ten years, accepted premiums thereon, and has consistently paid numerous claims on Stephens’ subcontractors and their employees during this time without making any distinction between them. Some of these claims involved three of the four employees who were killed. There is evidence that the subcontractors and their employees were led to believe they had workmen’s compensation coverage by what they were told, by the premiums deducted and paid.
The evidence is amply substantial to support the;Commission’s finding that appellants were estopped to deny coverage. See Phoenix of Hartford v. Coney, 249 Ark. 447, 459 S.W. 2d 558 (1970); Hale v. Mansfield Lbr. Co., 237 Ark. 854, 376 S.W. 2d 670 (1964); and Stillman v. Jim Walter Corp. 236 Ark. 808, 368 S.W. 2d 270 (1963). Consequently, here, we find no merit in appellants’ assertion that the Commission’s finding that appellees’ decedents were statutory employees of Stephens & Stephens is erroneous and unsupported by substantial evidence.
Neither can we agree with appellants’ contention that the evidence is insubstantial to support the Commission’s finding that the claims are not barred under the going and coming rule. Appellants argue that there is no evidence at all to prove Rogers Blankenship’s death arose out of and in the course of his employment. Appellant argues further that the only possible way the claimant could escape the operation of the going and coming rule would be to invoke the dual purpose doctrine; it has not been proven that a business purpose would have been made had not the personal purpose, that is going to work, been accomplished. Also the record is totally bereft of any proof that Rogers Blankenship was transporting anything to the woods relating to the cutting operation other than giving his “own’’ employees a ride.
The testimony is undisputed that it was Rogers Blankenship’s regular and customary practice to pick up part of his crew each morning and transport them to the work site and home again. On the morning of the accident, Rogers had filled his truck’s gas tank, picked up his men and was taking them out to the job site. He paid another employee an extra hourly wage to transport the rest of his crew to the job site and return them home. Each day Rogers carried ice for the water kegs, as well as extra gas and oil necessary for the equipment, which he transported to the job site. W. R. Blankenship testified that it was absolutely necessary for someone to buy the gas and oil, pick up the ice, water and other supplies which were needed for the day’s operation. If Rogers did not do it, someone else would have to. The evidence is amply substantial to support the Commission’s finding that the claims were not barred under the going and coming rule. See Larson, Workmen’s Compensation, § 18.10 et. seq. (1972); Blankinship Logging Co. v. Brown, 212 Ark. 871, 208 S.W. 2d 778 (1948); and Hunter v. Summerville, 205 Ark. 463, 169 S.W. 2d 579 (1943).
Appellants assert, however, there is substantial evidence in support of the Commission’s finding that appellee Christie Lee Davis, was not entitled to widow’s benefits and, therefore, the trial court erred in reversing the Commission. We must agree. The Workmen’s Compensation Act, Ark. Stat. Ann. § 81-1302 (1) (Repl. 1960), defines a widow as follows:
‘Widow’ shall include only the decedent’s legal wife, living with or dependent for support upon him at the time of his death.
Appellants argue that in order to qualify for widow’s benefits two separate elements must be proved: (1) that the claimant was the decedent’s legal wife and (2) that she was either living with or dependent for support upon him at the time of his death. Appellant asserts that claimant, Christie Lee Davis, does not meet the statutory requirements that she was either living with or dependent upon the decedent at the time of his death and, therefore, has only met one of the criteria to be a widow entitled to benefits. Appellee Davis responds that Arkansas is one of those states which conclusively presume dependency based on the mere existence of the legal relationship, citing Chicago Mill & Lumber Co. v. Smith, 228 Ark. 876, 310 S.W. 2d 803 (1958). We must agree with appellants’ position since we hold, as did the Commission, that Chicago Mill is not controlling in the case at bar. There we observed “here, the husband and father was completely void of any sense of his family obligation. ” In the case at bar there is no evidence that Elbert Davis was insensitive to his family obligations. Christie testified that she had “completely separated” from Elbert in 1967 or 1968 and had not lived with him since that time. Since then she admits having two illegitimate children who were fathered by her “boyfriend,” Henry Lee Dunn. She is gainfully employed and Henry contributes to her support. According to her she refused Elbert’s support. She admitted that “[H]e has offered me money at times, but I would not accept it from him.” Clearly, the facts of this case are distinguishable from Chicago Mill. There is ample substantial evidence to support the Commission’s finding that Christie Lee Davis is not the widow of Elbert Davis within the meaning and definition of the Workmen’s Compensation Act and, therefore, is not entitled to benefits.
Henry Lee Dunn, Jr., contends on cross-appeal that there is no substantial evidence to support the Commission’s finding that he is not the son of Elbert Davis. Cross-appellant asserts that the presumption of legitimacy is so strong that it can only be overcome by “the clearest evidence” of either impotency or non-access. Morrison, Admx. v. Nicks, 211 Ark. 261, 200 S.W. 2d 100 (1947). Appellants recognize the strong presumption of legitimacy of a child during wedlock. However, they argue that the presumption has been overcome and, therefore, the finding by the Commission that Henry Lee Dunn, Jr., is not the son of Elbert Davis is supported by substantial evidence. We must agree with the appellants.
Christie Lee Davis, cross-appellant’s mother, and Elbert Davis, decedent, were married in 1959. They had no children when they separated approximately nine years later. Elbert was killed in 1973 or about four years following their separation. Christie Lee testified that she had access to or sexual relations with Elbert, the decedent, up until she left him in November, 1968, which was about seven and one-half months before Henry, Jr., was born in July, 1969. However, this contradicts her earlier signed statement in which she said she separated from Elbert in late 1967 or early 1968. According to her testimony at the hearing, there is a “possible chance” that Elbert is the father. About a month following the last asserted separation, she admittedly began having sexual relations with Henry Lee Dunn. She admitted in her signed statement that Elbert Davis was not the father of her son, Henry Lee Dunn, Jr. She testified that she had told the individual who took her statement that Henry Lee Dunn is the boy’s father and she had told Elbert the boy was not his. Henry Lee Dunn, himself, signed a statement at the hospital when the child was born acknowledging the child was his. She also admitted that she told the nurse attending her at the hospital that Henry Lee Dunn was the father of the child. The birth certificate, signed by her doctor, reflects the child’s name as Henry Lee Dunn. She, further, admitted that Henry Lee, the father, was living with her when the child was born and subsequently she had two other children by him. She agrees they are Henry Lee’s children and she claims no benefits for them. Henry Lee supports all three of the children.
When we review that evidence which is most favorable to the appellee, as we must do on appeal, we hold the Commission’s finding, that Henry Lee Dunn, Jr., is not the son of the decedent Elbert Davis, is supported by the clearest evidence of a substantial nature. Cf. Richardson v. Richardson, 252 Ark. 244, 478 S.W. 2d 423 (1972).
Appellants also contend that the Commission’s finding that Emma Logan was not entitled to widow’s benefits is supported by substantial evidence and, therefore, the court erred in overruling the Commission. The Commission found that they could assume that Emma Logan was the legal wife of decedent but that she was not living with nor dependent upon the decedent at the time of his death. As indicated, the Workmen’s Compensation Act, Ark. Stat. Ann. § 31-1302 (1) (Repl. 1960), defines widow as:
‘Widow’ shall include only the decedent’s legal wife, living with or dependent for support upon him at the time of his death.
In the present case appellee Emma testified that she married Oscar in 1947. Two years later they separated and remained separated for about twenty-five years. During this interval she was married to two other men. She had two children by one of these marriages. She never divorced Oscar nor had she ever received any papers stating that he had sued her for divorce. During the last three years preceding Oscar’s accidental death, she lived “off and on” with him on weekends at his residence or he would visit with her at her home in a nearby town. He contributed some to her support and without her knowledge he had included her in his 1970 and 1972 income tax returns.
The Commission found that Chicago Mill & Lumber Co. v. Smith, supra, is not applicable and we agree. As indicated, in Chicago Mill we observed the husband was insensitive to his marital obligations. Certainly, we do not believe that the legislature intended that a widow can claim benefits as a dependent when, as here, she abandons a marriage for twenty-five years during which time she marries two other men and has children by one of those marriages. This is true even though she testified that during the past three years she lived intermittently on weekends at his or her residence and he contributed some to her support. Suffice it to say that there is substantial evidence to uphold the Commission’s finding that she was not the widow of Oscar Logan within the meaning and definition of he Workmen’s Compensation Act.
Affirmed in part and reversed in part on direct appeal.
Affirmed on cross-appeal.
Smith and Jones, JJ., concur.
Fogleman, J., dissents.
J. Fred Jones, Justice.
I agree with the majority opinion in this case but for additional reasons than those expressed by the majority. I consider dependency more important than genealogy when considering the claims of children in compensation death cases.
It is my view that in compensation death cases, no one except dependents of a deceased employee is entitled to compensation benefits under the Act. Ark. Stat. Ann. § 81-1315 (Repl. 1960). Subsection (c) of § 81-1315 reads as follows:
Subject to the limitations as set out in section 10 [§ 81-1310] of this act, compensation for the death of an employee shall be paid to those persons who are wholly dependent upon him in the following percentage of the average weekly wage of the employee, and in the following order of preference.
First. To the widow if there is no child, thirty-five (35) per centum, and such compensation shall be paid until her death or remarriage.
To the widower if there is no child, thirty-five (35) per centum, and such compensation shall be paid during the continuance of his incapacity or until remarriage.
Second. To the widow or widower if there is a child, the compensation payable under the First above, and fifteen (15) per centum on account of each child.
Third. To one child, if there is no widow or widower, fifty (50) per centum. If more than one child, and there is no widow or widower, fifteen (15) per centum for each child, and in addition thereto, thirty-five (35) per centum to the children as a class, to be divided equally among them.
Fourth. To the parents, twenty-five (25) per centum each.
Fifth. To brothers, sisters, grandchildren and grandparents, fifteen (15) per centum each.
Section 81-1315 (i) provides for partial dependents as follows:
(1) If the employee leave dependents who are only partially dependent upon his earnings for support at the time of injury, the compensation payable for such partial dependency shall be in the proportion that the partial dependency bears to total dependency.
(2) In any claim for partial dependency where the average weekly contributions for support were not such as to entitle all dependents to compensation in the aggregate sum of seven dollars [$7.00] per week, such dependents shall receive compensation for a period not to exceed 450 weeks, in an amount not to exceed the amount of average weekly contributions of the deceased employee for the support of such dependents.
Of course, a widow legally married to, and living with, the decedent at the time of his death is made wholly dependent under § 81-1315 (c) as a matter of law by definition under § 81-1302 (4) (1) but not so with the children.
It is my view that a child must be wholly or partially dependent under § 81-1315 (c) or (i), supra, and, if it is dependent upon the deceased, it makes no difference under § 81-1302 (j) whether it is a natural child, a posthumous child, a preinjury adopted child, a step-child, an acknowledged illegitimate child of the decedent or spouse of the decedent, or a foster child. Conversely, if an employee decedent under the Act should leave surviving him a child or children in each of the above categories, none of them would be entitled to compensation benefits under the Act unless wholly or partially dependent upon the decedent at the time of his injury (§ 81-1315 [h]). Proof of dependency and the burden of proof are entirely different matters.
I am not unmindful of the language employed concerning the dependent children in Chicago Mill & Lbr. Co. v. Smith, 228 Ark. 876, 310 S.W. 2d 803, and the child in Holland Const. Co. v. Sullivan, 220 Ark. 895, 251 S.W. 2d 120. Certainly I would agree that a child may be wholly dependent upon its parent for support whether it is actually receiving support or not, as was the situation in Chicago Mill, supra, as I interpret our decision in that case. It is my view that actual contribution of support money is, at the most, only some evidence of dependency. I would indulge a rebuttable presumption of total dependency of a natural child of a deceased employee when the child is under 18 years of age, but that is as far as I could go under the law, as I interpret it.
I have no quarrel with the Holland decision under the law as it was when that case was decided. The 1939 Compensation Act, Act 319 of 1939, applied to Holland, and in the 1939 Act § 15 (c) simply provided as follows:
(c) Subject to the limits prescribed in Section 15 (b) the following percentage of the average weekly wages of the deceased employee shall be paid as compensation for death to the persons entitled thereto under this Act, and the following order of preference:
(1) To the widow if there is no child, thirty-five (35) per centum, and such compensation shall be paid until her death or re-marriage;
(2) To the widower if there is no child, thirty-five (35) per centum, and such compensation shall be paid during the continuance of dependency or until re-marriage;
(3) To the widow or widower if there is a child, the compensation payable under paragraph (1) or (2) as the case may be, and, in addition thereto, ten (10) per centum on account of each such child; in case of the death or re-marriage of such widow or widower, fifteen (15) per centum for each child;
(4) To the children, if there is no'widow or widower, fifteen (15) per centum for each chilcl, and in addition thereto, thirty-five (35) per centum to be equally divided between said children, and if there be only one child, he or she shall receive the entire fifteen (15) per centum, plus the additional thirty-five (35) per centum.
(5) To the parents, twenty-five (25) per centum to each, and such compensation shall be paid during the continuance of dependency;
(6) To brothers, sisters and grandchildren, fifteen (15) per centum for each brother, sister, or grandchild.
In § 2 (j) of the 1939 Act “child” was defined as follows:
“Child” includes a posthumous child, a child legally adopted prior to the injury of the employee, and a stepchild or acknowledged illegitimate child dependent upon the deceased, but shall not include married children unless wholly dependent upon deceased. “Grandchild” means a child as above defined of a child as above defined. “Brother” and “Sister” includes stepbrothers and step-sisters, half brothers and half sisters, and brothers and sisters by adoption, but shall not in- elude married brothers nor married sisters unless wholly dependent upon the deceased. “Child,” “grandchild,” “brother,” and “sister” shall include only persons who at the time of the death of the deceased are under the age of eighteen (18) years.
These sections of the 1939 Act were all changed by the adoption of Initiated Measure No. 4 in 1948, Ark. Stat. Ann. §§ 81-1301 — 81-1349. Section 81-1315 (c) now appears as above set out and “child” is defined in § 81-1302 (j) as follows:
(j) “Child” means a natural child, a posthumous child, a child legally adopted prior to injury of the employee, a step-child, an acknowledged illegitimate child of the deceased or spouse of the deceased, and a foster child. “Child” shall not include married children, unless wholly dependent upon the deceased.
Thus, married children were excluded from the definition of “child” under the 1948 Act but were placed back within the statutory definition of “child” if still totally dependent upon the decedent after marriage. The same applies to children above 18 years of age under (j) (3) if they are mentally or physically incapacitated.
Partial dependency as provided in § 81-1315 (i) (1) and (2) was not mentioned in the 1939 Act, and partial dependency is not involved in this case, but certainly there is no evidence in the record that Henry Lee Dunn, Jr. was dependent to any extent on the decedent at the time of his injury which resulted in death. I do not say that the absence of affirmative evidence of dependency standing alone should defeat Henry Lee’s claim; I do say, however, that, in my opinion, the affirmative evidence that Henry Lee, Jr. was not dependent upon the decedent, with no evidence to the contrary, was alone sufficient to defeat his claim. Consequently, it is my view that whether Henry Lee, Jr. was illegitimate as a matter of proof or legitimate as a matter of unrebutted presumption, it makes no difference in this case. Regardless of who his father was, he was not a dependent of the decedent under the evidence in the record as I read it and he was not entitled to compensation as a dependent child under the com pensation law as I interpret it.
I cannot escape the feeling that there must have been some reason for, and purpose in, adding the total and partial dependency provisions in the 1948 Act when it did not exist in the 1939 Act; and, if the Chicago Mill and Holland decisions are interpreted to only require proof of age of the children and their relationship to the decedent to the exclusion of proffered evidence of nondependency, I would overrule those decisions to that extent. It must be remembered that parents may be dependents of employed children and entitled to compensation benefits under the Act as well as the other way around. If a 17 year old child is a dependent within the meaning of the Act simply by virtue of the relationship to its father, what about a father’s claim for death benefits when wholly or partially dependent on the 17 year old child?
George Rose Smith, J., joins in this concurrence.
The Commission’s award to the dependents of Eddie Lee Jackson is not a part of this appeal. | [
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George Rose Smith, Justice.
The appellant, tried without a jury, was found guilty of carrying a pistol illegally and was sentenced to a fine of $100 and to 30 days in jail. He argues three points for reversal.
First, the appellant questions the validity of the arrest that led to the discovery of the weapon. Two State police officers were aware, through the law enforcement agencies’ computer system, that the Pulaski County sheriff’s office had a warrant from South Carolina charging Woodall with assault and battery with intent to kill. That offense is a felony, although the warrant did not so indicate. South Carolina Code, § 16-93.1 (Cum. Supp. 1975). In connection with a narcotics investigation the officers were following a truck occupied by two men. When that vehicle stopped for a traffic light in Little Rock, one of the officers recognized Woodall. Officer Brookman alighted, went to the truck, identified himself as an officer, and placed Woodall under arrest. The officer saw a box of ammunition in Woodall’s lap. When Woodall reached for a pistol in a holster under his armpit, the officer disarmed him. This prosecution resulted from that encounter.
The arrest was lawful. A police officer’s knowledge of the existence of an out-of-state warrant can furnish probable cause for an arrest, even though the officer does not have the warrant with him. Whiteley v. Warden, 401 U.S. 560 (1971); Stallings v. Splain, 253 U.S. 339 (1920); Berigan v. State, 2 Md. App. 666, 236 A. 2d 743 (1968). Moreover, probable cause is to be evaluated on the basis of the collective information of the police. Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458 (1969). Hence the trial judge was justified by the evidence in finding that the arrest was valid. It may also be noted that the principles just mentioned have been embodied in Rule 4.1 (d) of our new Rules of Criminal Procedure (1976), though they were not yet in force when this arrest occurred and of course could not have retrospectively validated the arrest had it been unlawful when made.
Secondly, we hold that the gun was properly admitted in evidence. Officer Brookman testified that the gun was in his custody until it was introduced in evidence at a preliminary hearing, after which it was in the court’s custody. Officer Brookman said that he could identify the weapon just by looking at it. If there was a slight defect in the chain of custody, that was merely a circumstance to be considered by the trial judge. Bedell v. State, 260 Ark. 401, 541 S.W. 2d 297 (1976). Furthermore, the officer could have testified about Woodall’s possession of the gun even if it had not been in the courtroom. Scott v. State, 251 Ark. 918, 475 S.W. 2d 699 (1972).
Thirdly, it is argued that Woodall was entitled to carry the gun, because he was on a journey. Ark. Stat. Ann. § 41-4501 (Repl. 1964). Whether a person was on a journey may be a question of fact. Collins v. State, 183 Ark. 425, 36 S.W. 2d 75 (1931). That is the situation here. Woodall testified that when he was arrested he was going from North Little Rock to his parents’ house in Little Rock, hardly such a perilous journey as to necessitate his being armed with a pistol.
Affirmed.
We agree. Harris, C.J., and Fogleman and Jones, JJ. | [
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Smith, J.
Appellant was convicted under an indictment charging that he “did unlawfully sell and offer for sale certain nursery stock called apple trees, which were •then and there infected with a disease called crown gall, and he, the said T. L. Jacobs, then and there well knowing that said apple trees aforesaid were so infected with s-aid disease called crown gall * *
It is first insisted, for the reversal of the judgment, that the testimony did not show knowledge that the trees sold were infected with crown gall. In response to this insistence it may be first said that the instructions to the jury required a finding of knowledge and told the jury to acquit unless this finding was made, and the verdict is not without testimony legally sufficient to support it under this requirement. But it may be further said — and we put the decision of the point under consideration on that-ground — that the State was not required to show criminal intent.
■ The General Assembly of 1917 passed an act entitled “An act to prevent the introduction into and the dissemination within the State of insect pests and diseases injurious to plants and plant products of this State, to create a State Plant Board, and to prescribe its powers and duties.” Act 417, vol. 2, Acts 1917, p. 1904.
This act requires the board there created to make rules and regulations found necessary to promote the purposes of the act, and provides for the imposition of a fine not exceeding $100 against any one violating such rules and regulations. One of the rules so promulgated provides that certain “insect pests and plant diseases and nursery stock infested or infected therewith are declared to be public nuisances of such nature that their dissemination should be prevented,” and the infection of crown gall is among those thus included, and the sale or shipment of such infected nursery stock is prohibited.
This rule has the force and effect of a statute and should be construed as if it were one. - Howard v. State, 154 Ark. 430.
In the case of Wells Fargo & Co. Express v. State, 79 Ark. 349, a conviction was had against a common carrier exporting a shipment of game beyond the State. The express company defended upon the ground that it had no knowledge that the package tendered for shipment contained game; but the court held this was no defense, and, in doing so, quoted from tíie Supreme Court of Michigan as follows: “Judge Cooley, while Chief Justice of Michigan, and speaking for the court said: ‘Many statutes which are in the nature of police regulations,' as this is, impose criminal penalties irrespective of any intent to violate them; the purpose being to require. a degree of diligence for the protection of the public which will render violation - impossible.’ People v. Roby, 52 Mich. 579, s. c. 50 Am. Rep. 270.” See also McClure v. State, 37 Ark. 426; Brittin v. State, 10 Ark. 299; Redmond v. State, 36 Ark. 58; Annotation to case of People v. Johnson, 4 A. L. R. 1535, 288 Ill. 442, 123 N. E. 543.
It is further insisted that- the undisputed evidence shows that the sale occurred in Benton-County, whereas the indictment alleges the sale occurred in Washington County, The evidence on the question of venue is as follows. Appellant is a nurseryman, and Ms place of business is at Rogers, in Benton County, and be advertised Ms business in newspapers circulating in that and the adjoining counties. F. F. Copeland is a resident of Cane Hill, in Washington County, and on March 9, 1921, he wrote appellant the following letter:
“Cane Hill, Arkansas, March 9, 1921.
“Gentlemen: Find inclosed money order for $51.20 for which ship, by prepaid express, to Lincoln, Arkansas, the following: (Then follows list of trees desired). Notify me at Cane Hill, Arkansas, R. F. D. 1.
“Respectfully yours,
“F. F. Copeland.”
Pursuant to this letter, appellant shipped the trees ordered to Copeland at Lincoln, and while the trees were in the express office at Lincoln they were inspected by the chief inspector of the State Plant Board and found to be infected with crown gall. Copeland was notified of that fact by the inspector, and thereupon wrote the following letter:
“Cane Hill, Arkansas, March 17, 1921.
“Benton County Nursery Co.,
“Rogers, Ark.
“Gentlemen: I was informed this morning that the trees you shipped me was at Lincoln and had been inspected there by George G. Becker, State inspection agent, and pronounced from 35 to 40 per cent, diseased, and not fit for use, so will leave them there subject to your orders, as I can’t use the diseased stock, but will say further if you can supply, stock free from disease, good healthy stuff that will stand inspection, and-send them at once, I will still take the trees as ordered, otherwise return my money. I am advised by Mr. Becker to make this move, he also advised me to notify Mm as to results; he cut off some 15 or 20 roots from stock shipped and carried some off with him, and said whole thing was in bad condition so my notice said.
“Hoping to hear from you at once, I remain,
“Yours truly,
“F. F. Copeland, Cane Hill, Ark.”
Pursuant to this letter, appellant shipped the trees there referred to from Rogers, in Benton County, to Copeland at Lincoln, in Washington County; and while the second shipment was never officially inspected, there was testimony from which the. jury might have found that trees embraced in this second shipment were also infected. Copeland accepted this second shipment, took the trees from the express office to his home and planted them.
It is conceded by the Attorney General that if the sale was completed in Benton County, the judgment must be reversed; but it is insisted that the letter set out above made the sale a conditional one, which was not completed until the arrival of the trees at Lincoln and their inspection and acceptance at that place. Is this true?
It will be borne in mind that the particular regulation of the State Plant Board which appellant is charged with having violated is that of selling trees infected with crown gall. The conviction cannot be sustained unless the sale was shown to have been made in Washington County, where the venue was laid. .
We have a number of cases which consider the question when a sale is complete, but the ones most analogous to the case under consideration ,,are those involving the venue of sales of intoxicating liquor. The case of Harper v. State, 91 Ark. 422, is much in point. There Harper was indicted in the Fort Smith District of Sebastian County for selling liquor to a minor. The sale was made under these circumstances. One Russell, a resident of Warner, Oklahoma, wrote Harper a letter inclosing three dollars for a gallon of whiskey. Harper was convicted of selling liquor to a minor, and on his appeal contended that he did not know that Russell was a minor, and that the sale did not take place in Fort Smith, but in Warner, Oklahoma, where the whiskey was delivered. Answering the contentions of the appellant the court said: “The sale occurred at the place where the contract and delivery were actually made. The contract of sale, like all other contracts, consists of an agreement between the parties and in addition thereto a delivery of the chattel. In this case the minor sent a letter to the defendants making an offer to bny the liquor, and this letter was received by the defendants at Fort Smith, and at that place the offer was accepted by them. When they accepted the offer, the contract was entered into, and the place of the agreement was therefore at Fort Smith. The defendants thereupon at Fort Smith appropriated and segregated from their stock the gallon of whiskey, and delivered same to a common carrier at Fort Smith, duly addressed to the minor, and went further and obtained a bill of lading for the whiskey from the carrier for .the minor, in which the minor was named as the consignee. Now, it is uniformly held that the delivery of goods to a common carrier, when made in pursuance of an order to. ship, is in effect a delivery to the consignee; and more especially is this true when the title to the shipment, as evidenced by the bill of lading, is-made in the name of the consignee. State v. Carl & Tobey, 43 Ark. 353; Burton v. Baird, 44 Ark. 556; Berger v. State, 50 Ark. 20; Gottlieb v. Rinaldo, 78 Ark. 123; Templeton v. Equitable Mfg. Co., 79 Ark. 456; 1 Mechem on Sales, secs. 736, 739; Tiedeman on Sales, see. 95.” See also Josey v. State, 88 Ark. 269; Glass v. State, 68 Ark. 266; Hunter v. State, 55 Ark. 357; Herron v. State, 51 Ark. 133.
We have cases holding that the title does not pass where goods have been delivered to a common carrier pursuant to an order to ship, but under an agreement'between the parties that the title thereto shall not pass until certain conditions have been performed. For instance, in the case of Gibson v. Inman Packet Co., 111 Ark. 521, the court, after announcing the general principle that delivery of goods to a common carrier, when made in pursuance of an order to ship, is, in effect, a delivery to the consignee, stated that it was not one of unvarying application, as the rule had its origin in the theory that the parties, by such delivery, intended to pass the title to the property, but where a contrary intention was shown the rule does not apply.
It is not contended that anything occurred between appellant and Copeland to defeat the application of the rule except the letter set out above; but it is contended that the letter itself shows that the sale was conditional, and that it was a condition precedent that the trees should be free from crown gall, and the sale did not, therefore, become complete until after the arrival of the shipment at Lincoln and an opportunity had been afforded to inspect the trees.
We do not so interpret the letter. It does reserve the right to return an infected shipment. But this was a right which existed without being reserved, and was one which the consignee exercised in regard to the first shipment without having reserved it in his order. The consignee could not be required to' keep infected stock, but there is nothing in the letter which purports to change the place of delivery. That occurred in Benton County, where the order was accepted ’and filled and the goods delivered to the carrier properly consigned; and the circumstance that a right of rescission was reserved did not alter the fact that the delivery was made in Benton County. This right of rescission was not exercised and the second shipment was not inspected but was accepted by the consignee. The law of this subject is stated in sec. 304 of the article on Sales in 24 R. C. L. as follows: “The question as to when the title passes in case of a delivery to a carrier for transportation to the buyer primarily depends on whether such delivery is a full compliance with the duty of the .seller with respect to delivery, and the intention of-the parties as to whether the title shall pass at the time of such delivery or not. It is the general rule, where the place of delivery is the point of shipment, that a delivery of the goods to a carrier, consigned to the buyer, whether the carrier is one designated by the buyer or left by him to selection by the seller, will pass the title to the buyer, if there is nothing else to show a contrary intention. * * * * Likewise the fact that the buyer has the right to inspect the goods on arrival at a certain point and reject them for non conformity to the contract of sale will not itself prevent the passing of the title on delivery to the carrier; it is otherwise, however, where the goods are shipped without any contract binding the consignee to accept the goods, but merely giving him the option to do so or not as he may elect. ’ ’
The letter set out did not ask a mere option to buy or a privilege to do so after inspection; .it was an order for goods to be filled by delivery for shipment to a common carrier by prepaid express. The purchase price was paid in advance and preceded the shipment, and the contract became a closed and completed transaction so far as the appellant was concerned when he delivered the trees ordered by Copeland to the carrier, subject only to the right of rescission by Copeland, which was never exercised.
We conclude, therefore, that the sale was made in Benton County, and the judgment ’ of conviction must therefore be reversed. It is so ordered. | [
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Wood, J.
Appellant was convicted on an indictment whicii in good form charged him with the crime of being an accessory before the fact to the robbery of one John Fain, by one Vol Simpson. In apt words the indictment charged that Simpson robbed Fain of $25 in gold, silver and paper money, and that the appellant “did unlawfully and feloniously advise and encourage the said Vol Simpson to commit said robbery in the manner and form as aforesaid,” etc.
Marion Martin testified substantially as follows: He was on the appellant’s place on the day of the alleged robbery in company with the appellant, Ed Posey, and Robert Magsby'. They were about 150 yards from where John Fain was robbed. Witness thought he knew who robbed Fain. On Sunday before the robbery, which occurred on Tuesday, he had discussed the matter with the appellant. Appellant said to witness, “If you and Yol want to do the hold-up, I will get the whiskey and gun for him.” Appellant said he would get Fain drunk and Simpson could hold him up. Previous to that Simpson and witness had been making whiskey. On the Saturday before the robbery Fain passed witness’ house going to appellant’s. Appellant wanted Fain, and witness had told Fain to go over there. Appellant and witness had been talking about Fain and about getting him there to appellant’s place and robbing him. They had been informed that Fain had some money sewed up in the pockets of his overalls. The understanding was that Vol should do the robbery. Witness delivered to Simpson a gun — a .38 special pistol, with which to hold up Fain. When witness got over to appellant’s on the morning of the robbery, appellant said he would not have anything to do with it. He quit. Witness just hung around until Fain got ready to go, when witness and Fain started down the road. Witness knew in reason what was going to happen, and did not go down with Fain to where the hold-up took place. Witness heard the shot, and Fain came back up’ the road and said he was shot. He was bleeding at the chin, went up the road and passed all of them in a long trot. Simpson told witness how he"accomplished the robbery. After the robbery appellant said to witness, “We were all right. We would all stand pat and not tell anything.” Witness told appellant who shot Fain. “We knew who shot him. We talked about it.” Witness was arrested on the 13th and brought to jail. Witness did not at first tell the truth about the matter, but later witness said, “I went back and come clean with it. ’ ’ Witness had entered his plea of guilty to robbery at that term of the court— had talked with the appellant since he had been in jail, and appellant told witness to stand pat.
On cross-examination the witness stated that when he got to appellant’s something like an hour before Fain was robbed, appellant told witness that he (appellant) “had quit and wasn’t going to have anything more to do with it.” After this, witness went down and saw Simpson and told him what appellant had said a little while before the robbery took place.
Simpson testified that he robbed Fain, using the gun furnished him by Martin. He entered into detail, explaining how he accomplished the robbery, and was permitted, over the objection of the appellant, to identify and introduce the mask used by Simpson, the garments worn by Fain, and other utensils and things connected with the robbery. Witness stated that the robbery occurred on the top of a hill out from where the appellant was plowing. Witness first expected to rob- Fain in the new-ground under the hill. He had received information from Martin that Fain was in the new ground. Witness lost a pocket knife at the place of the robbery, and got another one.
W. C. Faulkner, deputy sheriff, testified that Fain was shot about 210 steps from where appellant, Posey, Magsby and Martin claimed they were standing. The land where appellant was plowing was in 10 steps of the place where Fain was shot. Witness saw appellant the morning after the robbery. Witness got to the ground where the robbery occurred before daylight. When witness got near appellant’s house, he heard something like chains rattling. It was not daylight, but day was breaking. Witness said, “Who is that?” and the appellant answered, “John Miller.” Then the appellant came on down where the witness was and witness asked him, “What are you doing here before daylight?” and the appellant said, “I owe a lot of debts, and I am behind with my plowing, and I have got to get down to the field and plow.” Witness said, “I will go down to the field with you, but you must not make any tracks on the land in plowing.” When witness reached the place where the robbery occurred he found the knife, two or three envelopes, and a torn-out pocket, which seemed to be the pocket of an old overall. Witness was handed two knives, the one witness had found on the spot and the otherwhich he had got from Simpson, and witness stated that they were both just alike — -almost.
The sheriff testified, and over the- objection of appellant was permitted to identify the clothes that were worn by Fain at the time of the robbery and to exhibit the same to the jury. Witness stated that he went to the scene of the robbery and had a conversation with the, appellant about the matter. Appellant denied everything. Appellant went with witness to the place where the robbery occurred. Witness found where appellant had been plowing the land out just opposite where Fain was shot. Appellant’s tracks making the plowing showed that he was walking right -out to the place and back. Appellant admitted that they were his tracks. The tracks were not over ten steps outside of the place where the robbery -occurred. The appellant walked right out to the place where he admitted the robbery occurred and said he went over there to call Fain to dinner. That was the only excuse he gave witness for being over there. Appellant admitted that Fain had been working for him. When Fain was brought into witness’ office on the day of the robbery, he was very bloody, shot in the chin, his jaw broken open, and he was still bleeding freely.
Appellant testified in his own behalf that he knew nothing about the robbery; that such a thing had never entered his mind. He denied that Martin or Simpson had ever said anything to him about it. Witness stated that there was not a word of truth in Martin’s testimony. Fain was not in appellant’s employ. He had been, but quit that day, saying that he wanted to go somewhere and get him a job. The shooting occurred about 2 o’clock p. m. At that time appellant was standing at the outer end of the field. Appellant had taken a pair of horses to the field with, him and his little crippled son. Appellant, Marion Martin, Posey, Magshy and the boy were over there close together at the time. After the gun fired appellant saw John Pain running up the road where appelland was standing. He said he was shot, and appellant tried to get him to stop and tell all about it, but he would not. Appellant and Robert Magsby ran after him something like a quarter of a mile on foot. Appellant then went back, took his horse out of the plow, and on horseback overtook Pain in about two miles. He took Pain to meet the doctor, to whom he had telephoned to come and get the man. Appellant stated that the place where the robbery occurred was pointed out to him after the shooting; that it was about 250 or 300 yards from where appellant was plowing. No one had worked in the clearing since John Pain; that if any one brought whiskey to his house or to the place where he was working that morning he did not know of it; that a jar containing Whiskey was broken there where appellant was plowing, but that he did not know about it. He found it out the next day. The jar containing' whiskey was broken within eight or ten steps from where appellant was plowing. Appellant testified that he had been in jail in connection with the robbery, and that during the time he was in jail he never discussed it with the sheriff or with any one else.
Appellant on cross-examination stated that Pain came to his home on Saturday before the robbery, hunting a, job. Appellant gave him a job working in the new ground. He began working for the appellant on Monday at noon and quit at noon on the following day — the day the robbery occurred.
The court gave the following instructions:
“No. 2. If you find from the testimony in this case, beyond a reasonable doubt, that Yol Simpson, at the time and place mentioned in the indictment, or within three years before the filing thereof, robbed John Fain in the manner and form thereof, and the defendant, John Miller, not being present, advised or encouraged the said Yol Simpson to commit said crime, you will convict the defendant of accessory before the fact.”
“No. 4. "While it is necessary that the witnesses, Martin and Simpson, be corroborated by some other testimony, the amount of such corroborative testimony is a. matter solely for the jury. It is sufficient if there is any, circumstantial or otherwise, provided you believe the defendant guilty beyond a reasonable doubt.”
The appellant interposed a general objection to the ruling of the court in the giving of these instructions.
1. The appellant contends that there was no testimony to sustain the verdict because the verdict was based upon the testimony of the witness Martin, who was an accomplice, and' his testimony was not sufficiently corroborated. Appellant therefore insists that the giving of instruction 2, as above set forth, was abstract, for the reason that there was no legally sufficient testimony upon Which to base it.
Marion Martin testified that he and the ‘appellant on Sunday before the robbery on Tuesday had discussed a proposed robbery of Fain and had devised the plan, which was to the effect that Martin was to get the whiskey and gun to be used by Simpson; that he would get Fain over to appellant’s place; that appellant would make Fain drunk and Simpson would hold him up. These were the respective parts to be played by the conspirators. This testimony of Martin is sufficiently corroborated by the facts, established by other testimony, that Fain went to work for the appellant the next day after this alleged conversation occurred, and the fact that a jar which had contained whiskey was found broken near the place where the appellant was working on the day of the robbery and in close proximity to the place where the robbery occurred; the fact also that the robbery occurred in broad daylight on appellant’s place and within such a short distance of where the appellant, Martin, Posey, Magsby and appellant’s crippled son were standing at the time the robbery took place; the fact that appellant’s tracks were discovered leading toward and away from the place where the robbery occurred; that appellant, when asked about the tracks, explained that he made them when 'he went to call Fain to dinner; the fact that Fain had not been previously working anywhere near to where the tracks led; the fact that, on the morning after the robbery, appellant, before daylight, admitted that he was going down to the field to the place where the robbery occurred, and the reason he gave was that he was behind with his plowing and had to go down at that hour to plow; the fact, admitted by the appellant himself, that he employed Fain to work for him; that Fain came to the house of appellant on Sunday night before the robbery and he employed him; that Fain worked from Monday noon until Tuesday at noon; that Posey, Martin and Magsby were present with appellant at the time the robbery occurred — all these facts and circumstances tended to corroborate the testimony of the accomplice Martin and tended to connect the appellant with the commission of the crime. At least they were sufficient to warrant the court in submitting the issue to the jury as to whether or not the testimony of the accomplice Martin was sufficently corroborated and to warrant the court in giving its instruction No. 2 in which the court submitted the issue as to whether or not the appellant, not ‘being present, advised and encouraged the commission of the crime.
2. Instruction No. 4, given by the court, did not accurately state the law concerning the corroboration required of an accomplice as prescribed by our statute (sec. 3181, C. & M.) because the instruction omitted to tell the jury that the corroborating evidence was not sufficient unless it tended to connect the accused with the commission of the crime, and was not sufficient if it merely showed that the offense was committed, and the circumstances thereof. To be sure, the appellant was entitled to an instruction substantially in the language of the statute, but he did not ask the court to give such an instruction and cannot complain because such an instruction was not given. The instruction given does not invade the province of the jury and was not calculated to confuse and mislead the jury. The instruction does inform the jury that there must be testimony corroborating the testimony of the accomplice, and that such testimony must be sufficient to convince the jury beyond a reasonable doubt of the guilt of the accused.
This court, in Kennedy v. State, 115 Ark. 180, ruled that an instruction, which is substantially the same as the above, was not erroneous and' prejudicial to the appellant in that case. What was there said is applicable here and need not be repeated.
Finding no reversible error, the judgment must be affirmed. | [
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■Smith., J.
This cause grew out of a divorce proceeding, in which the petitioner Dukes was granted a divorce from his wife, Willie Dukes, and by consent of parties the wife was awarded as alimony an estate for life in a certain lot in the city of Dermott and an allowance of $2,000, of which $200 was payable in cash and the balance payable at the rate of $35 per month. The petitioner made one payment and defaulted, and, when cited for contempt in failing and refusing to pay the alimony monthly as required by the decree of the court, filed a response in which he set up the following facts:
íhat, after obtaining his divorce, he discovered the fact to be that Willie Dukes had a living husband, and she did not obtain a divorce from this first husband until .after petitioner had obtained his divorce from her. That she then admitted this imposition had been practiced .upon him, although, before their marriage, she had stated that her first husband was dead, and that it was then agreed that the decree for alimony should be canceled, and a power of attorney was prepared, executed and acknowledged, directing the clerk of the chancerv court to enter cancellation and satisfaction of that portion of the decree.
In the trial of the cause in the court below a judgment was rendered in which the following finding of fact was made: “In a certain cause heretofore adjudicated by this court, wherein the said Theodore B. Dukes was plain tiff, and Willie M. Dukes was defendant, the said contemner, Theodore B. Dukes, did forge the name of the said Willie M. Dukes to a certain power of attorney, and did forge the notarial jurat, signature and seal of one Geo. V. Jones, a. notary public, to the said spurious power of attorney, which spurious power of attorney said Theodore B. Dukes did utter and cause to be recorded in the records of Chicot County, Arkansas,' and thereafter caused the clerk of this court, under mistaken authority thereunder, to falsely and fraudulently satisfy a judgment and decree rendered and entered by this court as aforesaid. That said contemner, Theodore B. Dukes, did wilfully and contumaciously refuse to obey the orders of said court wherein he was bound and directed by said court to pay certain specific sums of ononéy to the said Willie M.- Dukes, and that said conduct was and is a contempt of said court. That said Theodore B. Dukes did wilfully and contumaciously refuse to obey the orders of said court in that he did alienate a certain house and lot adjudged in said decree to the said Willie M. Dukes for life, as shown by the solemn judgment and decree of said court. ’ ’
The court, upon this finding of fact, imposed a fine of $500 and a sentence in the county jail for a period of six months; and the petitioner seeks by certiorari to have that order and judgment quashed.
Petitioner testified in his own behalf in support of the allegations of his response to'the citation; and he also offered certain testimony in corroboration of his own. He admitted his present ability to comply with the original decree awarding alimony to his wife.
We think the testimony fully supports the finding of the court below. Mrs. Dukes testified that petitioner knew of her prior marriage, and represented to her that he would obtain a divorce for her and that he had, in in fact, done so, and that she relied uuon petitioner’s assurance that her divorce had been obtained in contracting her marriage with-petitioner. Certain correspond ence between her and petitioner appears to corroborate her in this statement. She denied that she had signed the power of attorney. The notary public whose name was 'signed to the certificate of acknowledgment and whose notarial seal was attached thereto testified .that he and petitioner occupied the same office, but he denied that he had taken the acknowledgment or attached his seal thereto.
Petitioner obtained his divorce upon the ground of cruel and abusive treatment on the part of his wife, and the decree for alimony was rendered by consent. •
Petitioner’s prayer that the order adjudging him to be in contempt be quashed must be denied. The original divorce decree was not void; and the award of alimony was rendered by consent of parties, which was an order properly made. Pryor v. Pryor, 88 Ark. 302.
Here the petitioner has not only sought to evade the order of the court (Bryan v. State, 99 Ark. 163), but has . flaunted it by contumaciously and feloniously causing the order to be canceled and satisfied. Full authority exists for the punishment of such conduct. Meeks v. State, 80 Ark. 579; Dodson v. Butler, 101 Ark. 416; Pitcock v. State, 91 Ark. 527; Carl Lee v. State, 102 Ark. 122; Ford v. State, 69 Ark. 550; In re Barstow, 54 Ark. 551.
The writ of certiorari is quashed, and the decree appealed from is affirmed. | [
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Humphreys, J.
Appellant instituted suit by attachment in the circuit court of Mississippi County, Osceola District, against appellee, William Fambro, to recover on two rent notes executed by him to her for the use of her farm during the years 1920 and 1921. One note was for $1,040, evidencing the balance due on rent for 1920, and the other for $2,360, evidencing the rent due for 1921. The latter note was signed by'W. A. Cissna. By agreement the cause was transferred to the chancery court. In that court William Fambro admitted the execution of the notes, pursuant to a rental contract, but claimed that, by mutual agreement and for a good consideration, the rent evidenced by the $2,360 note was reduced to $1,200, and that he was entitled-, by way of recoupment, to the sum of $500 on account of. repairs which it was the duty of appellant to make.
When the case was called for trial, March 11, 1922, William Fambro moved for a continuance of the cause for several days, to enable him to get a statement from W. A. Cissna’s books, which were on Dean’s Island, about 35 miles from Osceola, for labor and material furnished to make necessary repairs on the farm. His motion for continuance was supported by his affidavit to the effect that, when W. A. Cissna gave his deposition on the 3rd day of March, 1922, he agreed to forward the statement to the stenographer to be attached to his deposition, but had failed to do so; that W. A. Cissna advised him over the telephone that he had mailed the statement to affiant’s attorney, but that same had not arrived at Osceola in time for the trial. Over the objection and exception of said appellee, the court overruled the motion for a continuance.
The cause was submitted to the court upon the issues joined and the testimony of the several witnesses, which resulted in a finding in favor of appellee, William Fambro, upon the reduction of the 1921 rent to $1,200, and in favor of appellant upon the $500 counterclaim, except as to $35 allowed appellee for repairs. A decree was rendered in accordance with the findings against appellee, William Fambro, and W. A. Cissna, his surety, on the retaining bond, from which all parties appealed as to the findings and decree adverse to each.
The rental contract, omitting caption and signatures, is as follows:
“August 5, 1919.
“This article of agreement by and between Mrs. Susie McCadden of Pecan Point, Ark., and William Fambro, Dean’s Island, Ark., witnesseth that:
“Susie McCadden has this day leased to William Fambro her farm of one hundred acres, with the use of all houses, barns, etc., therein, located near Pecan Point, Ark., for three years from January 1, 1920, to January 1,1923, for $2,360 per year, as evidenced by three promissory notes due and payable as follows: December 1, 1920, $2,360, December 1, 1921, $2360; December 1, 1922, $2,360. Said notes are payable at First National Bank, Memphis, Tennessee.
“Said Fambro is to have full control and use of the entire tract of land, including wood for private use, etc.
“It is further agreed that at the expiration of this lease, if the said William Fambro desires, he is to have the option of renewing lease for period of two years from January 1, 1923. The price per year for the additional time to be the market price of the country for such lands, to be agreed to between the foregoing contracting parties.
“The said Susie McCadden is to keep up all the houses in good order and make all repairs required for the comfort of tenants.”
William Fambro paid all the rent in advance for the year 1920, except $1,040, for which amount he executed his note. He cultivated his farm and turned his cotton over to W. A. Cissna, a wealthy man who had supplied him during the year, and who was on his rent note' for 1921. He was under the impression that Mr. Cissna had paid the rent note for $1,040 until this suit was brought. Cotton greatly declined in price, however, and after paying for supplies there was nothing left to apply on the rent note. Mr. Cissna refused to supply Fambro during the year 1921, unless he- could get a material reduction on the rent. Fambro made several efforts to get appellant to reduce the rent for 1921, and, according to the testimony introduced by him, succeeded in getting her to say she would do as well by him as other landowners in the community where the farm was located. Mr. Cissna was not willing to make advances on the strength of this statement, so a meeting was arranged between the parties at the store of Perel & Lowenstein in Memphis for the purpose of making more definite arrangements with reference to a reduction of the rent.
The theory of-Fambro is that appellant agreed unconditionally at that meeting to reduce the rent for 1921 from $2,360 to $1,200, in order to induce Mr. Cissna to supply him and thereby get her farm cultivated, and to get him (Fambro) to advance money to make'repairs.
The theory of Susie McCadden is that she agreed to reduce the rent to $1,200 in case he did not raise more than twenty bales of cotton, on account of boll weevil.
Fambro, Mr. Cissna, Bob Gray, Susie McCadden, ' and Joseph Perel were present at the meeting in the store-, all or a part of the time.
Fambro testified that Susie McCadden unconditionally agreed to reduce the, rent to $1,200 in order to get him to advance money to make repairs, and to get Mr. Cissna to make advances to enable him to cultivate the land; that Perel, who was Susie’s agent, handed him the following statement written on the back of a card, in evidence of the agreement:
“Due Perel & Lowenstein about.......................................$ 450
“On $2,340 note ........................................................................... 1,200
“1920 note ............................................................................................. 1,040
“Less expenditures balance;”
that he gave the card to Mr. Cissna, who thereafter furnished him supplies and money and material to make repairs; that Wells and Chambers did most o-f the work in making the repairs; that their labor amounted to about $35; that he expended about $500 on repairs; that Mr. Cissna advanced it to him and kept a record of the items and amounts; that Mr. Cissna prepared a paper on August 4,1921, for the owners of land at Pecan Point to sign, showing thad the rental value of lands in that community decreased about one-half in 1920, due to the low price of cotton; that he (Fambro) obtained the signature of a number of landowners to it for the purpose of getting appellant to reduce the rent; that she had said she would reduce it to what other landowners were charging, and Mr. Cissna thought that such a paper would induce her to sign an agreement to reduce the rent; that Mr. Cissna said the card he had was not signed by her.
W. A. Cissna testified that the rental value of lands greatly decreased when the price of cotton went down in 1920; that he furnished Fambro in 1920 and was on his note of 1921; that he was unwilling to make advances to him in 1921 unless he could get a material reduction of the rent; that he sent Fambro to see appellant a number of times to get the rent reduced; that he met with them at Perel & Lowenstein’s store, in April or May, for that purpose; that she agreed to take what other landowners were getting, and thinks she agreed to fake $1,200; that a card was given him which showed that Fambro owed Perel $450 for an automobile, $1,200 rent on the $2,360 note, and $1,040 for the 1920 rent; that he wrote the paper for property owners to sign, stating what rents they were getting for lands, in order to get her to reduce the rent; that he was not satisfied with the card Fambro had given him, because she had not signed it and had not returned the old contract; that he had advanced about $500 to pay for improvements and had kept a record of it; that he would furnish the .stenographer with a copy of the items and amounts to be attached as a part of his deposition. This was not done. Bob Gray, who went with Fambro for the purpose of witnessing the contract, stated that Susie agreed to accept $200 a year on the old rent if Fambro did not make more than forty hales of cotton; that Fambro offered to pay $1,200 rent for 1921, but witnesses did not hear her agree to accept it or to make any reduction of the rent; that he heard nothing said about boll weevil.
Mose Price testified that he went with Fambro to see Susie McCadden early in the spring; that they went to her home; that Fambro told her the farm would not likely be cultivated unless she reduced the rent; that he said nothing about the boll weevil; that she said she would be up there in a few days and would do as well by him as other landlords were doing.
Several other witnesses testified that the boll weevil had not made an appearance at Pecan Point.
Joseph Perel and Susie McCadden testified that Fambro claimed that he would not make more than twenty bales of cotton on account of the boll weevil, and proposed to pay $1,200 for the rent of 1921; that appellant agreed to reduce the rent to that amount if he did not make more than twenty bales; that Perel wrote a card with the understanding that if he raised more than twenty bales he was to pay the rent note in full; that she agreed for him to make some minor repairs and to receive a credit for them on the 1920 rent note. They denied that appellant unconditionally agreed to reduce the rent, or to accept what other landlords were getting, in order to get her land cultivated or money advanced to make repairs. Susie testified that she was willing to credit the rent note with the cost of necessary improvements made by Fambro if he made proof of them; but said she herself made about all the improvements that were necessary. She gave the items and amounts of repairs made by her. Her husband corroborated her statement in regard to repairs made by her. He went in person and made repairs to the amount of about $75. W. S. Stephenson testified that in March, 1921, he heard Perel ask Fambro why he did not pay Susie her rent; that Fambro said he was willing to do so if she would reduce the rent to $1,200; that Perel then asked him if lie would pay lier $1,500, and lie said lie could not pay that amount; that the last talk he had with Fambro he informed him that they had never been able to come to an agreement.
It developed in the evidence that Fambro raised anywhere from 75 to 90 bales of cotton on the farm in 1921.
Appellant contends that the court erred in reducing the rent for 1921 to $1,200; and appellee, Fambro, contends that the only error committed by the court was in forcing him to trial without giving him an opportunity to include in the record the statement of the sums he expended for repairs upon the farm.
After a careful reading of the evidence, we are convinced that the court erred in finding that appellant unconditionally agreed to reduce the 1921 rent to $1,200. The rental contract and note made pursuant thereto were in writing. The burden was upon Fambro to establish an unconditional agreement to reduce the rent. Appellee attempted to do this by the testimony of Mr. Cissna and himself. The testimony of Bob Gray does not corroborate them, and the testimony of W. S. Stephenson is rather against them. The conduct of Cissna in writing the paper for the landowners to sign, and of Fambro in circulating it, as late as August, is in conflict with their statement to the effect that appellant unconditionally agreed to reduce the 1921 rent in April or May of the same year. There is another very strong circumstance against them.. Appellant’s rent note was well secured, and there was no question about its collection. There is no evidence in the record to show that her land would have lain idle during the year, except a suggestion to that effect made by Fambro. The testimony of Fambro and Mr. Cissna was disputed by that of appellant and Mr. Perel. We do not think the appellee, Fambro, successfully met the burden upon him. The finding of the court on this point was contrary to the weight of the evidence.
We do not think the court abused its discretion in not granting Fambro a continuance of several days to get the statement from Mr. Cissna’s books relative to advances for repairs. Mr. Cissna’s deposition was taken eight days before the case was called for trial, and had Fambro been diligent he could have ascertained whether the statement had been sent to the stenographer and attached to the deposition before the ease was called.
For the error indicated, the judgment will be reversed and judgment rendered here for the full amount of the rent notes with interest, less the amount of $35 and interest allowed by the trial court to Fambro for repairs. | [
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Hart, J.
(after stating the facts). It appears from the record that the prosecuting attorney in his closing argument to the jury used the following language:
“Of course, you understand, Loyd Autrey will not go to the penitentiary. If you convict him you will have to, in your verdict, fix his punishment in the penitentiary, but under the law it becomes the duty of the court to send him to the State Reform School or Boys’ Industrial School, and I think it is a most fortunate thing for Loyd that he might have a few months in the reform school. If you send him for seven years, the very minute those in charge find he is not going to commit these charges again he will be sent back to his home. ’ ’
The attorney for the defendant objected to the argument, but the court overruled his objections. Counsel for the defendant then saved his exceptions to the ruling of the court. Thus it appears from the record that the court sanctioned, as a declaration of law, the remarks of the prosecuting attorney, and the ruling was tantamount to an instruction to that effect by the court.
The remarks of the prosecuting attorney were in conflict with the provisions of the statute on the subject, and it was prejudicial error to tell the jury that it would be the duty of the court to send the defendant to the reform school if he was convicted. Bird v. State, 154 Ark. 297, and cases cited.
Another assignment of error is that the court erred in instructing the jury that, in case of conviction, the punishment should be fixed at a term of not less than two or more than seven years in the State Penitentiary.
Tn giving this instruction the court evidently had in mind that the defendant was being prosecuted under sec. 2571 of Crawford & Moses’ Digest. This section deals with the rescue of a felon by force or menaces of bodily harm, or by other unlawful means.
A reference to the statement of facts shows that the defendant could not be convicted under this section of the statute. Under the facts as detailed by the State he could only be convicted for a violation of sec. 2578 of Crawford & Moses’ Digest. This section defines the offense of carrying into jail any instrument or other thing useful to aid a felon in his escape, with the intent to facilitate the escape of such felon. This error is conceded by the Attorney General, but he argues that it can be cured by the reduction of the punishment in accordance with the provisions of sec. 2578. We need not decide this, however, because the judgment must be reversed for the error in telling the jury that it would be the duty of the court to send the defendant to the reform school in case of his conviction.
It follows that the judgment will be reversed and the cause remanded for a new trial. | [
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Hart' J.
John B. Droning and Joe Droning prosecute this appeal to reverse a judgment of conviction against them for the crime of stealing thirty chickens of the aggregate value of $30. >
The first assignment of error is that the circuit court erred in refusing to sustain the motion of the defendants to set aside and quash the indictment. As grounds for their motion, the defendants introduced evidence tending to prove that the prosecuting attorney and other officers of the court had entered into collusion to have the names of certain alternates on the list of grand jurors not called and to substitute other persons in their stead.
On the other hand, the State introduced evidence tending to show that the names of the two alternate grand jurors in question were called by the clerk, and that, upon their failure to answer to their names, two other qualified persons were selected as grand jurors in their stead.
The circuit court made a specific finding of fact that the alternate list of grand jurors, which included the names of Luther Magee and Jesse Glasgow, was called, and that, upon the failure of these two persons to answer to their names, or to come into the jury box, the court ordered two other grand jurors to be summoned by the sheriff from the bystanders to take their places; that the sheriff thereupon summoned two other persons who were qualified to act as grand jurors, and they were duly sworn and impaneled as grand jurors in the place of said Luther Magee and Jesse Glasgow.
The question presented by the motion to quash the indictment was one of fact to be determined by the circuit court, and the finding made by the court was supported by the evidence introduced by the State. Therefore, under the settled rules of this court, if will not be disturbed upon appeal. Jordan v. Muse, 88 Ark. 587; Burton v. Creel, 122 Ark. 347; and Thomas v. Thomas, 150 Ark. 43.
It is next earnestly insisted that the evidence is not legally sufficient to support the verdict. The defendants denied their guilt and introduced evidence to corroborate their own testimony.
On the part of the State it was shown that thirty Chickens, of the value of $1 each, were stolen from the chicken-house of J. S. Hopper, in the Eastern District of ' Olay Gounty, Ark., on the 14th day of March, 1922. Hopper had about one hundred chickens of all descriptions, and his chicken-house was- situated about sixty yards from his dwelling-house. On the next morning after the chickens were stolen, Hopper found that some one had taken a plank off of the back of his chicken-house and that about thirty hens were gone. They were of the value of $1 each. Hopper saw signs of some one having been there. ,One of the persons wore gum boots and the other shoes. It had rained on the preceding night and it was easy to follow the tracks on the muddy ground. After following the tracks a short distance, they came to where two horses had been hitched to a sapling, and it was easy to follow their tracks on account of the front foot of one of them being of a very peculiar shape. The tracks were followed to the home of Lige Raymer, who had married the mother of the defendants. Joe Groning lived with them at the time. John'B. Groning lived at Poplar Bluff, Mo., but was there on a visit at the time. When the searching party got to Raymer’s, they found two horses which had been hitched to a wagon, and their tracks appeared to be about the same size as those followed to the house. The horse tracks which were followed by the searching party were the only ones that had been made in the road leading to Raymer’s house since the rain on the preceding night. One of the horses hitched to Raymer’s wagon made-a track exactly like the peculiar track which the searching party had followed from near Hopper’s house to Raymer’s house. On that morning one of the defendants had on gum boots and the other shoes. The tracks which they made corresponded with the tracks leading from Hopper’s chicken-house to where the horses appealed to have been hitched to a sapling. Hopper did not see any of his chickens at Raymer ’s house, but Mrs. Hopper identified two or three chickens at Raymer’s as being part of those which had been stolen from their chicken-house on the night in question.
Was this evidence sufficient to warrant the verdict?
The undisputed evidence shows that thirty hens, of the value of $1 each, were stolen from the chicken-house of the Hoppers on the night of the 14th of March, 1922. The jury might have found from the evidence that these chickens belonged to J. S. Hopper, and that they were taken by the defendants. There had been a rain on the night the chickens were stolen and the ground was muddy. Tracks were found leading from the chicken-house to where two horses were tied near by to a sapling. One of the tracks was made by gum boots and one by shoes. On the next morning it was found out that one of the defendants had on gum boots and the other one had on shoes. Their tracks corresponded with the tracks leading from the chicken-house to where the horses were tied. The horses were followed by their tracks to the ’home of the stepfather of the defendants. One of these horses had a peculiar foot, which made a track like the track of one of the Raymer horses. The defendants were staying at Raymer’s house at the time, and some of the chickens which had been stolen were found there. These circumstances pointed to the guilt of the defendants, and were sufficient to support the finding of the jury that the defendants were the guilty persons.
The next assignment of error is that there is a variance between the allegation of ownership of the stolen property in the indictment and the evidence in the case. This court has uniformly held that in an indictment for larceny the allegations of ownership are material and' must be proved as alleged. Mooney v. State, 137 Ark. 410. The indictment alleged the chickens to be the property of J. S. Hopper. It is true that Mrs. Hopper stated that the chickens belonged .to her husband and herself jointly, but her evidence on this point is not undisputed. It is also true that her husband at one point stated that the chickens belonged to the family, but he also stated in the same connection that he was the head of the family. In other portions of his testimony he spoke of the chickens as his own and as having been taken from his chicken- house. Therefore, we hold that this assignment of error is not well taken.
The third assignment of error is that the court erred in permitting the prosecuting attorney to ask John B. G-rohing as to whether or not he had been charged with selling whiskey in Poplar Bluff, Mo., and as to whether or not he had been in jail there.
There was no error in permitting the question to be asked the defendant. In Shinn v. State, 150 Ark. 215, it was held that the accused in a criminal case may, for the purpose of testing his credibility, 'be questioned on cross-examination as to his having been a gambler and as to other offenses and immoralities. The court specifically told the jury that the evidence should not be considered by it in arriving at a conclusion as to the guilt or innocence of the defendant. The jury was also expressly told that it affected only the credibility of the witness.
Therefore the judgment will be affirmed. | [
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McCulloch, O. J.
Appellant is charged with the statutory offense of transporting intoxicating liquor, and was brought to trial in the municipal court of the city of Pine Bluff on information filed by the prosecuting attorney of the circuit.
Before the trial of the cause in the municipal court, appellant filed his duly verified and supported petition for change of venue on account of alleged prejudice on the part of the municipal judge, but that court overruled ■the petition and compelled appellant to proceed with the trial, which resulted in his conviction. He prosecuted an appeal to the circuit court, and there filed a plea to the jurisdiction of the court on the ground that jurisdiction was lost upon the filing of the petition for change of venue. The plea was based upon a provision of the amended statute under which the municipal court was created, and which reads as follows:
“Provided, the defendant, in criminal cases pending for trial or examination before the municipal court as herein provided, shall have a right to change the venue in any case as is now provided by law in justice of the pease courts; and provided, further, that the circuit court shall not have jurisdiction to try any defendant convicted of a misdemeanor in said court where a change of venue has been denied by the judge of the municipal court; and provided, further, that the justice of the peace to whom such case is transferred shall proceed to try said case as is now provided by the laws of the State of Arkansas in justice courts, and shall be entitled to like fees as are now allowed by the law for justice of the peace under the general laws of the State of Arkansas.” Acts 1917, vol. 1, p. 1125; Acts 1921, p. 433.
The circuit court overruled the plea and proceeded with the trial of appellant on the merits of the charge, which resulted in his conviction, and an appeal has been duly prosecuted to this court.
It was the obvious design of the framers, of the statute to give the right of change of venue in criminal cases from the municipal court to a justice of the peace, and to effectually enforce that right by terminating the jurisdiction of the municipal court in misdemeanor cases upon the filing of a petition for change of venue in accordance with law. The statute provides that “the circuit court shall not have jurisdiction to try any defendant convicted of a misdemeanor in said court where a change of venue has been denied by the judge of the the municipal court,” and this provision is founded upon the theory that, the municipal court being deprived of jurisdiction, the circuit court could acquire none on appeal.
It is in conformity with the rule of law that a court in the exercise of appellate jurisdiction acquires only such jurisdiction as was possessed by the court from which the appeal was prosecuted. Little Rock, M. R. & T. Ry. Co., 44 Ark. 100.
It is contended by the Attorney General that the statute is unconstitutional and void because it is an attempt to deprive the circuit court of its rightful jurisdiction in criminal cases, but we fail to see wherein the statute deprives the circuit court of any of its original or appellate jurisdiction conferred by the Constitution. The statute has no reference to the exercise of original jurisdiction by the circuit court, but applies only to the exercise of its appellate jurisdiction, and, as we have already seen, the. exercise of that jurisdiction depends upon the rightful jurisdiction of the court from which the appeal is prosecuted.
The statute does not cut off the appellate or supervisory jurisdiction of the circuit court, even in a casé where a petition for change of venue has been filed in the municipal court, bnt only deprives the circuit court of the right to try the case upon its merits. This leaves the superintending control and appellate jurisdiction of the circuit court in full play, for, notwithstanding the loss of jurisdiction by the municipal court, the circuit court has the power to supervise and review a void judgment rendered by that court.
Appellant prosecuted an appeal from the void judgment of the municipal court, and he had a right to do so, for there is nothing in the statute which attempts to cut off the remedy by appeal from a void judgment.
It is also contended by the Attorney General that appellant has pursued the wrong remedy in appealing to the circuit court from the judgment of the municipal court, instead of resorting to a remedy by writ of certiorari. It is true that a judgment void on its face may be attacked by certiorari in the court exercising* superintending control, but that remedy is not exclusive. It is only 'cumulative of the right of appeal which is conferred by the Constitution.
Under the statute in question the filing* of the petition for a change of venue in proper form transferred the jurisdiction from the municipal court to a justice of the peace, to whom the court should have transferred the papers in the case, and the circuit court should have quashed the judgment of the municipal court and remanded the cause to that court with directions to transfer It to a justice of the peace, in accordance with the prayer of the petition for change of venue.
The judgment of the circuit court is therefore reversed, and the cause is remanded, with directions to enter the judgment indicated above. | [
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Hart, J.
Pearl Mitchell' prosecutes this appeal to reverse a judgment of -conviction against her for a violation of the provisions of § 2703 of Crawford & Moses’ Digest, known as the “pandering statute.”
The first assignment of error is that the court erred in not -sustaining -a -demurrer -to- the indictment. The charging part of the indictment is -as follows: “The said Pearl Mitchell, in the said county of Benton, and State of Arkansas, on the 4th day of May, 1922, feloniously did inveigle, entice, encourage, and procure one Bertha Potts, a female person, to leave the State of Arkansas and go into the -State of Missouri for the purpose of prostitution, against the peace and dignity of the State of Arkansas.”
We have uniformly held that an indictment under a statute ought to -charge with -certainty that the defendant committed the acts under the -circumstances and with the intent mentioned in the statute.
In construing that clause -of the statute under which the indictment was found in Holland v. State, 111 Ark. 214, the court said: “Under a proper interpretation of the statute, the clause -making it an offense to ‘inveigle, entice, persuade, encourage or procure any female person to come into this State or to leave this State,’ for the purpose of prostitution, or for the purpose of sexual intercourse, where the marriage relation does not subsist, is limited by the preceding phrase, ‘any person who by promises, threats, violence, by any- device or scheme, by fraud or artifice, or by duress of person or goods, or by use of any position of confidence or authority, or having legal charge.’ ”
In that case the indictment used the qualifying words, “by promises, threats” etc, before the words, “inveigle, entice,” etc. Hence the indictment was held to be valid.
The indictment in the instqnt case has omitted the qualifying words, and for that reason is fatally defective, as will be seen from the quotation above. If the words,' “inveigle, entice,” etc., are limited or qualified by the preceding phrase, “any person who by promises, threats,” etc., it is evident that these latter words are descriptive of the offense and must be set out in the charging part of the indictment, although the particular words constituting the promises, threats, etc., need not be set out.
By leaving out the qualifying words in the indictment, an essential element of the crime as defined by the statute was omitted, according to the holding in the case cited above, and it follows that the indictment is not valid. Hence the 'circuit court should have sustained the demurrer to it.
It is next insisted that the court erred in telling the jury “that all females over eighteen years convicted of felonies shall be sent to the State Farm for Women, and all courts and juries are prohibited under this section from fixing any punishment,” etc. The section referred to is 9316 of Crawford & Moses’ Digest, which provides that:
“Women over eighteen years of age belonging to any of the following classes may be committed by any court of criminal jurisdiction to said institution: first, persons convicted of or who plead guilty to the commission of felonies,” etc.
In construing a similar provision of the statute with regard to committing to the reform school boys convicted of felonies, the court held that it was erroneous to tell the jury that the defendant would be sent to the reform school and not to the penitentiary. The reason given was that a statement to that effect by the court might have influenced the jury in returning a verdict of guilty. Pittman v. State, 84 Ark. 292, and Bird v. State, 154 Ark. 297. The Attorney General has confessed error with respect to the giving of this instruction, and it is well taken.
Finally, it is insisted that the evidence is not sufficient to support the verdict. In view of another trial we will not set out and discuss the evidence in detail, but deem it sufficient to say that the evidence for the State is sufficient to support a verdict of guilty. It is true that the prosecuting witness was an unwilling one, but her testimony, taken in connection with a letter written by the defendant while in jail to one of her friends, which is in the nature of a confession, was sufficient to warrant the verdict.
For the errors indicated, the judgment will he reversed and the cause remanded for a new trial. | [
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Humphreys, J.
The petitioner, Walter Spight,. was adjudged guilty of contempt of court, for evading the service of a subpoena issued by the grand jury of Garland County on the seventeenth day of May, 1922. His punishment was fixed at a fine of $100 and imprisonment for thirty days. The record of the proceedings in the 'Garland Circuit Court has been brought before us for review on writ of certiorari.
The petitioner insists that the judgment should be quashed, because the information filed by the grand jury was not verified. The information is as follows:
“State of Arkansas v. Walter Spight.
“The grand jury reports that on the 17th day of May, 1922, it issued a subpoena for one Walter Spight to appear forthwith before the grand jury; that after said subpoena was issued the said witness in some way learned that the subpoena was in the hands of the sheriff, and he, the said Walter Spight, wilfully and contemptuously evaded the service of said subpoena; that the conduct of the said Walter Spighl in evading service of this subpoena constituted a contempt of the authority of the grand jury and of the court, and the grand jury respectfully requests that the said Walter Spight be punished for contempt. Charles Goslee, foreman.”
Under the rule announced in Bryan v. State, 99 Ark. 163, the evasion of the service of a subpoena, issued by an arm of the court, is tantamount to a disobedience of the court’s process. A charge of contempt, of this character, may be initiated by the court without the aid of an affidavit of a third party. Carl Lee v. State, 102 Ark. 122.
The petitioner next insists that the judgment should be quashed because the fine imposed was in excess of the maximum amount fixed by section 1485 of Crawford & Moses’ Digest. The Legislature cannot abridge the power of courts to punish as for contempt in disobedience of their process. The Constitution specially reserved this inherent power in the courts, when delegating authority to the Legislature to regulate punishments for con-tempts. Art. 7, sec. 26, Constitution 1874.
The petitioner next contends that the judgment should be quashed because no disobedience of process could occur until the process was served upon him. The process was placed in the hands of -the sheriff between 9 and 10 o ’clock a. m. May 17, 1922, and was not served until 5 o’clock p. m. Petitioner complied with the process after service. There was testimony tending to show that he evaded the service of process in the interim. This court ruled in the case of Bryan v. State, supra, that .(quoting syllabus 2) “resistance of process, or evasion or circumvention of an officer in the service of process, when it amounts to contempt of court, is disobedience of process within art. 7, sec. 26 of the Constitution.”
Lastly, the petitioner contends that the judgment should be quashed because the evidence is insufficient to support the finding of the court that he wilfully and contemptuously disobeyed the process of court. While there is testimony in the record tending to show that petitioner did not secrete himself to avoid the service of the subpoena, there is also substantial testimony tending to show that he did secrete himself for that purpose. Petitioner knew the grand jury would meet on the 17th and expected to be subpoenaed to appear before it. He was seen in the city that morning. After the issuance of the subpoena, he disappeared and could not be found, although diligent and persistent search was made for him. After the search proved futile, the judge of the court notified his attorney and one of his bondsmen about 5 o’clock p. m. that unless he appeared forthwith a forfeiture would be taken on his bond in another case. In ten or fifteen minutes thereafter he appeared and submitted to service of the process. There wrns also evidence tending to show that shortly after the noon hour petitioner was notified over the ’phone by a friend that the sheriff had a subpoena for him.
"We think there is substantial evidence in the record tending to show that petitioner was in hiding during the day to avoid service of the subpoena.
No error appearing, the judgment is affirmed. ' | [
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Humphreys, J.
This is an appeal from a decree of the chancery court of Benton County involving the validity of loans made to A. L. Tribble by the First National Bank on Jan. 18, 26, and Feb. 2, 1921, in the respective sums of $2,000, $1,000, and $5,000, and by the American National Bank on Jan. 28 and Feb. 1, 1921, in the respective sums of $750 and $503; and of the purchase of a large bill of goods from H. D. Poindexter & Sons’ Merchandise Co. Jan. 26th of the same year. The First National Bank filed suit on Feb. 5, 1921, against A. L. Tribble, doing business under the firm name of Rogers Mercantile Co., and A. L. Tribble and G. Flanigan, doing business under the firm name of Tribble & Flanigan, alleging that it was a large creditor of the firms; that said •firms and the members thereof were insolvent, and that, through the gross mismanagement and waste of A. L. Tribble, the assets of the respective firms were being 'rapidly dissipated. The prayer of the bill was for the appointment of a receiver to take charge of the assets of the firms and apply the proceeds thereof to the payment of its claim. Prior to the application for a receiver, E. A. McGinty had instituted and levied a specific attachment upon the stock of goods sold by him to A. L. Tribble for the balance of the purchase money due thereon. Other creditors, including the State of Arkansas for the use of Benton County to collect taxes on the MoGinty stock, intervened, and a receiver was appointed, who took charge of the assets belonging to both firms, including the McGinty stock. The receiver, by order of the court, sold the several stocks of goods separately. The stock of goods purchased by Tribble from É. A. MoGinty, and operated in the name of Rogers Mercantile Co., brought $3,765.13; the new stock purchased for the latter firm brought $8,216.12, and the Tribble & Flanigan stock brought $2,909.49.
A guardian was appointed by the probate court for A. L. Tribble, who intervened and attacked the validity of the claims of the creditors, on the ground that his ward was insane at the time he borrowed the money and purchased the goods.
The cause was submitted to the court upon the pleadings and testimony, which resulted in the following findings : That A. L. Tribble was competent to transact business on Oct. 18, 1921, when he borrowed $1,800 from the First National Bank, which went into the business of Tribble & Flanigan; but that he became insane soon thereafter, and was insane when he borrowed the other moneys from said banks and purchased the McGinty stock and other goods; that the moneys borrowed from both banks, including an overdraft of $444.54 in the First National Bank, were used in the purchase of the McGinty stock and other goods for the firms owned and operated by A. L. Tribble; that A. L. Tribble invested $4,064.90 in cash out of his separate estate in the Rogers Mercantile Co.; and that, on account of the disability of A. L. Tribble, appellants were not entitled to recover out of Tribble’s separate estate, on their claims growing out of contracts entered into with him after October, 1921; but were entitled to participate pro rata, according to the several amounts of their claims, out of the proceeds of the sale of the goods of the Rogers Mercantile Company, after paying McGinty’s claim, the taxes on the McGinty stock, and A. L. Tribble’s individual investment of $4,064.90 in the company; that the First National Bank was entitled to recover $1,800, which it loaned Tribble on the 18th day of October, 1921, and which was included in the renewal note of $2,000 in January, 1922, out of the proceeds of the sale of the Tribble & Flanigan stock. A decree was rendered in accordance with the aforesaid findings.
Appellant’s first contention for reversal is, that the court erred in finding that appellant was insane at the time he purchased the goods and borrowed all the moneys except the amount of $1,800. The record reveals that as early as March, 1921, Tribble was under treatment of Dr. Kitchens, a physician of DeQueen, for mental trouble; that he was taken to Dr. J. L. Green of Hot Springs, a specialist, who discovered that he was suffering from a depressed phase of manic-depressive insanity, which disease, according to the testimony of the expert, in both its first and second stages, incapacitated him for intelligently transacting business. He returned to his home, but was taken a second time to Dr. Green for treatment. Dr. Green was out of Hot Springs, so he was treated by one of Dr. Green’s assistants. During the month of February, 1921, just after the receiver was appointed, he was again taken to Dr. Green for examination, who advised that he be taken to the insane asylum for treatment. The expert described the second stage of Tribble’s disease as the period of exaltation, saying that the evidence of it was over-activity of mind, the disease leading him to do unreasonable things, such as acquiring unreasonable obligations. Tribble was a candidate for sheriff of Sevier County in the summer of 1920, and was defeated by a small vote. After his defeat he moved to Rogers, hoping that the climate would improve his mental condition. He purchased a small grocery business and conducted it under the name of Tribble & Flanigan. Flanigan only had a working interest in the firm. On the 18th of October, 1920, Tribble borrowed $1,800 from the First National Bank, wfhich was put in the business. On January 18,1921, he borrowed $2,000 from the First National Bank out of which he paid the $1,800 note he had given in October. He then decided to add a small stock of dry goods to his grocery stock, and, after informing W. R. Daly, his family, and the bank of his intention, he went to Kansas City to purchase the dry goods. On January 20, 1921 a collection of $4,064.90 was made for him by the First National Bank on a note against Texas parties, and was that day placed to his credit in the bank. He was in Kansas City at the time, where he had gone to buy goods. While there he purchased goods to the amount of about $10,000 and gave a check for. $3,500 in part payment thereof, on his account in the First National Bank. At the time of the purchase he had no place to put the goods or money to pay for the rest of them. He came home, and on January 26th borrowed an additional $1,000 from the First National Bank, and on January 28th he borrowed $1,303.69 from the American National Bank. He then purchased the McGinty stock of groceries, which invoiced over $6,000, and contracted for the building in which the McGinty stock was located for $10,000. On February 1st he borrowed $5,000 from the First National Bank, $4,000 of which amount was used in part payment of the McGinty stock. Early in February he tried to borrow $5,000 more from the American National Bank to pay on the Kefauver brick building, for which he had contracted, but it declined to make the loan. He made extensive improvements on the brick building he purchased before making arrangements to pay for it. He occupied the home of his sister-in-law, and, without her consent, built a large basement under it for the purpose of putting in a heating plant, and contracted for other substantial improvements on it. He was residing next door to Dr. W. A. Moore, who testified that Tribble spent much time with him in the evenings; that in December Tribble abruptly informed him that he was going to build a concrete road across his (the doctor’s) back yard over to his outbuildings so he could wash his car; that Tribble was nervous and abnormal in conversation; that he planned to build a $100,000 hotel, and talked about it a great deal, when he had no capital with which to build it; that he became convinced in December, from his conversation, that he was mentally wrong, and gave it as his opinion that during the months of December, 1920, and January, 1921, he was mentally deranged and unable to exercise a reasonable judgment in business affairs. On February 3rd Tribble called on the First National Bank and tried to borrow eight or ten thousand dollars more, and when refused became boisterous and showed evidence of insanity. After consultation, the president and cashier of the bank notified his brother and requested him to come to Rogers. When he came and investigated his 'brother’s condition, it was agreed that the bank should make application for a receiver to take charge of the assets of both firms, to prevent waste and protect the creditors. During the negotiation of the loans and the various purchases of the goods Tribble appeared to be normal. No evidences of insanity were observed by the officials of the banks or the parties from whom he purchased goods. The banks loaned him money on the strength of very flattering reports and recommenda tions received from bank officials at Lockesburg and DeQueen. The loans and sales of goods were made to Mm believing, in good faith, that he was sane. Immediately after his condition was discovered he ivas taken to Little. Rock, and before he was committed to the asylum for treatment he called on the Doyle-Kidd Dry Goods Company, made a financial statement showing that he had a capital of $150,000, bought $5,000 worth of goods in the piece department, a large quantity of overalls and work shirts in the furnishing department, and several thousand dollars’ worth in the silk department. He handed the company a cheek for $500 and ordered the goods shipped C. O. D. They took his. check, at his wife’s suggestion, for the purpose of humoring him.
Learned counsel for appellants argue that all the business transactions of appellant, from the time he located in Rogers until he attempted to borrow an additional eight or ten thousand dollars from the First National Bank, were normal in character and judiciously made, evidencing within themselves that Tribble fully comprehended the nature and consequences of his acts. We cannot concur in this conclusion. It does appear that he conducted the first business in which he engaged in a conservative and careful'manner for a few months, but all of a sudden, and contrary to the plans divulged to the bank and his family, he borrowed and bought far beyond Ms ability to pay. Through the sudden adoption of an unsound business policy, to buy large bills of goods without money to pay for them or a place to put them, and m an attempt to obtain both, he successfully wrecked, within a few days, the business he owned and the one he purchased from McGinty. His reckless conduct indicated very clearly that he was in the second stage of mental derangement described by. Dr. Green, which impelled him to acquire unreasonable obligations. Again, it is argued that the opinions of the physicians as to the insanity of Tribble were not based upon a- case hypothetically stated, and for that reason are incompetent and worth less. As we understand the record, the opinions of the three experts who testified were based upon personal association with, or examinations and observations of, Tribble. Two of them treated him for insanity. It is also argued that the lay witnesses, who testified to his insanity did not testify to the facts and circumstances upon which they based their opinion. Morgan Price, one of the lay witnesses whose acquaintance with him was intimate, testified that he based his opinion upon the fact that he was nervous, unusually short and abrupt in conversation, and talkative about big deals. Sam Tribble, another lay witness, a brother of A. L. Tribble, testified that during the winter of 1918 and 1919 his brother had an attack of the “flu,” which affected his mind; that he placed him under the treatment of a specialist in March, 1920; that after his return from Hot Springs in July of the same year his mental condition grew worse; that in October he located in Rogers, hoping that the climate there would benefit him; that he visited him at Rogers four times between November 1, 1920, and February 1, 1921, and discovered that he was nervous all the time and talked at random; that he conceived the notion of building a big hotel in Rogers, and in January, 1921, he began to buy goods in a reckless manner. These excerpts, taken from the testimony of the two lay witnesses best qualified by intimate association to testify, disclosed that théy detailed substantial facts and circumstances upon which to base their opinions.
Appellants’ next contention for reversal is, that the finding of the court to the effect that Tribble had $4,064.90 of his own personal money in the Rogers Mercantile Company, was clearly against the preponderance of evidence. We think otherwise. On January 20, 1921, the First National Bank collected that particular amount for him and placed it to his credit. Two days before that he had borrowed $2,000 from the bank with which to pay the $1,800 note he had given it on October 18,1920. On the same day the collection was placed to his credit, to-wit, January 20, 1921, the bank wired H. T. Poindexter &'Sons’ Mdse. Co. that his check was good for $3,500. The check was given for that amount in part payment of a large bill of goods that day purchased by him from said company. As soon as he returned he had to borrow from the bank again, and overohecked his account in paying for the goods more than $400. We think the irresistible inference is that his individual money, to the amount of $4,064.90, was used to pay for goods which were purchased for the Rogers Mercantile Company. The finding is supported by a preponderance of evidence.
Appellants’ next contention for reversal is, that notwithstanding the insanity of Tribble at the time he borrowed the money and purchased the goods, the court erred in refusing to charge his personal estate with the payment thereof. In support of this contention appellant cites cases holding that the estate of an insane person is liable for debts created by him upon contracts partially or wholly executed, if he received the benefit thereof, and was fairly dealt with by the creditor, without notice of his infirmity, and before an adjudication of insanity. This court, however, is committed to the doctrine that all contracts with insane persons aré void ah initio and may be canceled without a restoration of thé consideration if it has been wasted or dissipated. Henry v. Fine, 23 Ark. 417; Seawel v. Dirst, 70 Ark. 166; Reaves v. Davidson, 129 Ark. 88; Hudson v. Union & Merc. Trust Co., 148 Ark. 249. It appears from the record, however, in the instant case, that the court in the distribution of the assets of the Rogers Mercantile Company allowed Tribble full value of the goods he purchased and commingled with the general stock. Had the goods had been intact and separable, it would have been proper to return them to his guardian. But' they were intermingled and not separable. The stock as a whole was greatly^ depreciated in value and sold at a loss. It was impossible to apportion the waste or depreciation of any particular goods. Under these circumstances it was inequitable to require the creditors to bear the depreciation of or loss on Tribble’s individual goods. It was proper to allow Ms claim, but no preference in the apportionment should have been accorded to him. He should have shared pro rata in the distribution with other creditors, thereby requiring Mm to stand the loss or depreciation in value on his goods..
Appellants’ last insistence for reversal is, that the court erroneously allowed the State’s claim for taxes against the McGinty stock. The State had the first and paramount lien on the stock for taxes. Sec. 10023, Crawford & Moses’ Digest. The payment should have been made out of amount ordered paid to McGinty, as it was his duty to pay the taxes on the stock he sold to Tribble, but.no objection was made or appeal taken from the priority declared in his favor.
The decree is affirmed in all particulars except the preference given A. L. Tribble in-apportioning the proceeds derived from the sale of the assets of the Rogers Mercantile Company. In that particular it is reversed, and remanded for pro rata distribution with the other creditors. | [
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Humphreys, J.
Appellants, freeholders and taxpayers in Road District No. 16, in Woodruff County, created by act 183 of the Acts of the General Assembly of 1920, filed suit in the circuit court of said county, northern district, to change the route of the road specified in the act, so that it will run from the intersection of Main and Third Streets, in the town of Augusta, in an easterly direction, along the present rock public highway, to the southwest corner of section 28, township 8 north, range 3 west; thence north along the section line to the northwest corner of section 4, township 8 north, range 3 west; thence east along the section line to the northwest corner of section 1, township 8 north, range 3 west, to the Jackson County line. It was alleged in the complaint that section 3 of the act creating the district provided that, if it became necessary to lay out a new route, the same should be laid out'by the county court of the Northern District of Woodruff County; and that it was impractical to construct or maintain a road along the route designated in the act becáuse one and one-half miles of the distance was subject to overflow from White River and would be submerged for a large part of the time; that the cost of construction and maintenance of the road on the original route would be prohibitive, confiscatory, and of no benefit to the pro.perty in the district.
Appellees protested against the proposed change in route, which was heard and decided adversely to their contention by the county court. An appeal from that judgment was taken to the circuit court. The affidavit for appeal was made by the attorney for the district, without assigning any reason why it was made by him instead of by the party aggrieved.
When the case was lodged in the circuit court; appellants moved to dismiss the appeal and appellees filed a demurrer and motion to dismiss the petition for a change of route. The motion to dismiss the appeal was overruled; the motion to dismiss the petition was sustained, and a final judgment was rendered, setting aside the judgment of the county court changing the route, from which is this appeal.
Appellants’.first insistence for reversal is that the court erred in overruling their motion to dismiss the appeal. They contend that sections 1219 and 2287 of Crawford & Moses’ Digest govern appeals from the county court and, when-read together, require an attorney mak ing an affidavit for appeal to state that the aggrieved party., whom he represents, is absent from the county, or is mentally incapable of taking an oath, or is physically unable to attend before the court or officer for the purpose of making the affidavit. Section 1219 has no relation to appeals from county courts. Section 2287 governs and allows the attorney or agent of an aggrieved party to make affidavit for appeal in behalf of his client, without assigning any reasons for doing so. This construction was given a similar statute in the case of Perrin v. Liner, 129 Ark. 242.
Appellants’ second and last insistence for reversal is that the court erred in sustaining the demurrer and motion to dismiss the petition to change the route of the road. They contend their petition set out the necessity for a change ixi the route, and that, under section 3 of the act creating the district, the county court was authorized to determine the necessity for and to order the change. The section referred to does say that, if it becomes necessary to lay out and designate a new route, same shall be laid oxxt by the county court. Construing this section without reference to section 6 of the act, it might well be said that the intent of the Legislature was for the county court to make an independent investigation upon which to base an order changing the route, or to make the investigation for the necessity of the change at the request of any property owner in the district, When section 3, however, is read in connection with section 6 of the act, it is apparent that the Legislature intended for the county court to act, in making any change in the route, upon the report and request of the commissioners. Section 6, in part, is as follows: “If said commissioners deem it to the best interests of the district to vary the line of the road as hereinbefore laid out, they may report that fact to the county court of the northern district of Woodruff County, and in that event, if the county court approves of the report, it may make an.order changing the route of the road, and if necessary it shall, in that event, lay out the new road in the manner provided in act No. 422 of the Acts of the -General Assembly of the State of Arkansas for the year 1911.” We think, in order to arrive at the true intent of the Legislature, the two sections should be construed, one in the light of the other. When thus interpreted, the sections provide an exclusive method of procedure for changing the original route of the road, that is to say, for the county court to change the route upon the petition and request of the commissioners, if the necessity for the change existed. Authority was not conferred by the act upon the property owners or thé taxpayers in the district to initiate such a proceeding.
The motion to dismiss the petition was properly sustained, and the judgment is therefore affirmed. | [
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MoCulloóh, C, J.
Appellee instituted this action in the chancery court of Arkansas County to foreclose a mortgage, dated December 29, 1916, executed to it by H. M. Evans, trustee, on certain lands in that county, to secure the payment of a note in the sum of $22,000, with interest notes payable semi-annually. Certain -other parties, in addition to Evans, were joined as defendants upon the allegation that they claimed interests in the mortgaged property, among others the appellant Hume, who had obtained a judgment in an Indiana court against the Liberal Life Assurance Company, of Anderson, Indiana, for the sum of $821, and had, prior to the institution of appellee’s foreclosure suit, commenced an action upon the Indiana judgment in the circuit court of Arkansas County and caused an order of general attachment to be issued against the property of said Liberal Life As surance Company. All of the defendants in the action were nonresidents of this State and were brought in by publication of a warning order. An attorney ad litem was appointed for the nonresident defendants, in accordance with the statutes, but none of the defendants appeared prior to the rendition of the decree.
The mortgage and note and interest coupons were introduced in evidence, and the court rendered a decree in favor of appellee, foreclosing the mortgage and finding the debt to be $24,954.56, and directing court’s commissioner to sell the mortgaged property. The property was sold by the commissioner, and brought at the sale the aggregate sum of $10,125, appellee being the purchaser of one of the tracts for the sum of $4,000, and the remainder of the land being sold to C. E. Shearman, who was not a party to the action. The sales by the commissioner were duly reported by the commissioner and confirmed by the court, and deeds were executed pursuant to the terms of the sale, under orders of the court.
Within two years after the rendition of' the decree,' appellant Hume appeared and filed his application under the statute (Crawford & Moses’ Digest, § 6266) to have the cause retried as to him, and upon giving bond for costs, as required by the statute, the court ordered a retjfial of the cause as to the rights of appellant. Appellant then filed an answer presenting the following defenses: first, that there had never been an indebtedness to appellee by the mortgagor in the sum claimed; second, that the indebtedness secured by the mortgage had been fully paid; third, that the mortgage debt was not due at the time of the commencement of the action; and fourth, that the mortgage was invalid because the mortgagor conveyed only as trustee and without authority from the cestui que trust.
On the final hearing the court decided the issues against appellant and rendered a decree reaffirming the terms of the original decree and denying appellant’s right to assert a lien against the appellee. The cause was heard upon the pleadings and exhibits, including the mortgage and notes, and upon the deposition of one Eudd, the treasurer of appellee corporation, who exhibited with his deposition a certain contract between appellee and Evans, the mortgagor.
Appellee is an Indiana corporation, engaged in the life insurance business at the city of Indianapolis, and the Liberal Life Assurance Company of Indiana is likewise a corporation engaged in the insurance business at Anderson, Indiana, and the latter entered into a contract with the former for reinsurance of the latter’s business, but the récord does not embrace that contract. It appears, however, from the testimony of witness Eudd, that this was a speculative contract, as it was uncertain whether it would finally result in profit or in loss to the Liberal Life Assurance Company. This depended upon whether the reinsurance resulted in profit or in loss.
Business relations had also existed between the Lib.eral Life Assurance Company and the Pittsburg Bank for Savings, of Pittsburg, Pennsylvania, and the Liberal Life Assurance Company had become largely indebted to said banking institution, and had assigned to the bank its reinsurance contract with appellee as collateral security for a debt of $27,318.74. The Liberal Life Assurance Company had also assigned, as collateral, to said bank two notes executed by Sidney G-. Brain and Francis E. Brain for $10,000, which were secured by a mortgage on land.
On the date of the execution of the mortgage in controversy by Evans as trustee to appellee, these two parties, appellee, and Evans acting as such trustee, entered into a written contract setting forth in extenso the contract between the Liberal 'Life Assurance Company and the Pittsburg Bank for Savings, which recited that the company was indebted to the bank “in the sum of $27,318.74, evidenced by a note and secured by collateral-in the form of reinsurance contract entered into between the two said named life insurance companies and two certain mortgage indebtednesses executed by Sidney G-. Brain and Francis E. Brain, each for $10,000, as well as a lot of other mortgage indebtedness, some of which have been foreclosed upon by the receiver for the said bank.”
The contract between the parties then contains the following clause relative to the purchase by appellee of the debt and collateral securities from the Pittsburg bank:
“Now, it is mutually agreed by the parties hereto that the said first party has taken an assignment of said reinsurance contract and has purchased said two Brain mortgage indebtednesses from Gr. H. Getty, as receiver of said Pittsburg Bank for Savings, at and for the price of $27,318.74, the same to be divided as follows:
“For said two Brain mortgages indebtednesses...........................................................................$15,318.74
“Advance on reinsurance contract......... 12,000.00
“And said two Brain mortgage indebtednesses and said reinsurance contract shall be the absolute property of the said first party hereto, subject to the terms and conditions hereinafter stipulated.”
There are numerous other recitals in this contract, which are unnecessary to set forth, but there are certain other clauses which throw light upon the character and extent of the indebtedness secured by the mortgage in controversy.
The contract provided that appellee should keep an account of the proceeds derived under the reinsurance contract and charge the Liberal Assurance) Company with any deficit, and credit it with any profits derived therefrom.
The contract contains the following stipulations concerning the execution of the mortgage in controversy :
“The second party has this day executed his note for $22,000, payable to the first party hereto, secured by a mortgage on certain real estate in Arkansas County, in the State of Arkansas, owned by him as trustee, and acquired by said conveyance from said receiver, which said note and mortgage are made a part hereof as fully and completely as though set out herein in full.”
The following stipulations in the contract are also deemed to be material to the present controversy:
“It is understood and agreed that, should there be any deficit in any of the assets turned over by said Liberal Life Assurance Company of Indiana for reserve, as aforesaid, to the said first party, the same shall be a charge against the second party hereto, and he agrees to repay the same, with interest thereon at the rate of six per cent, per annum, to the first party, and it shall be a part of said mortgage indebtedness this day executed. Likewise, should there be in the future coming to the second party hereto on said reinsurance contract any amount less than $12,000, such sum, together with interest thereon, shall be a charge against the second party hereto, and he agrees to repay the same, but, should there be an excess of $12,000 on said reinsurance contract, the same shall be credited to the second party’s indebtedness this day created. * * * *
“It is agreed that whenever said contract between said Pittsburg Bank for Savings and said Liberal Life Assurance Company of Indiana shall have been fully carried out and any and all sums to be paid by the second party to the first party, as herein stated, shall have been paid-, and first party shall have received from said two Brain mortgage indebtednesses, said reinsurance contract and the mortgage indebtedness this day created, the sum of $27,318.74, together with interest thereon at the rate of six per cent, from this day, and shall have been allowed to retain the $5,000 discounts made on said two Brain mortgages, and shall have been repaid any and all sums for making up the deficits as herein mentioned, then the first party hereto agrees to cancel said mortgage indebtedness this day created.”
The contention of counsel for appellant is that, under the terms of the contract, only the sum of $12,000 can be treated as an advance by appellee so as to bring it within the mortgage indebtedness, and that the remaining sum of $15,318.74 was merely used in the purchase of the Brain notes.
It will be observed that in a clause of the contract which we have just quoted it is expressly stated that not only the Brain mortgage indebtedness, but also the reinsurance contract, should become the absolute property of appellee, but the other stipulations in the contract show clearly that not only the Brain mortgage but the reinsurance contract were to be held merely as collateral security for the amount paid by appellee to the bank. The contract expressly provides, notwithstanding the fact that it reads that the reinsurance contract is to be the absolute property of appellee, that the latter should keep an account of the profits and losses under the reinsurance contract, and account to the trustee of the assurance company for any profits and charge him with any deficit which might arise.
The last clause copied shows very clearly, too, that the whole sum of $27,318.74 paid to the Pittsburg Bank for Savings was to be treated as an advance to the Liberal Life Assurance Company, and that not only the Brain mortgages but likewise the reinsurance contract was to be held as collateral security. This clause of the contract provides that when the appellee “shall have •received from said two Brain mortgage indebtednesses, said reinsurance contract and mortgage indebtedness this day created, the sum of $27,318.74, together with interest thereon at' the rate of six per cent, from this day, and shall have been allowed to retain the $5,000 discount made on said two Brain mortgages, and shall have been repaid any and all sums for making up the deficits as herein mentioned, then the first party hereto agrees to cancel said mortgage indebtedness this day created” —meaning, of course, the mortgage in controversy.
When these transactions are read together, it is clear that the parties intended that appellee was to hold the Brain notes and the reinsurance contract as collateral security, and that the mortgage and notes in controversy were also executed on the lands in Arkansas as further security for any indebtedness which existed or might arise under that contract.
The next contention is that the mortgage debt has been paid, but this contention is based upon the theory that the debt only amounted to $12,000, and, as we have already seen, this is not correct.
Appellee made out its cáse by the exhibition of the mortgage and notes in controversy, and the burden of proof was on appellant to make good his plea of payment. The universal rule on this subject is that the burden of proof rests upon the party who pleads payment of a debt. Authorities on this subject are so numerous and unanimous that it is unnecessary to cite them. Wé fail to discover any reason for not applying that rule to the facts of the present case. It is neither alleged nor proved in the case that there was any fraud or collusion between the parties to the mortgage, nor does it appear that the facts in regard to the transactions between the parties are peculiarly within knowledge of appellee so as to place upon it the burden of making disclosures. Mr. Rudd, the treasurer of appellee corporation, was examined as a witness by appellant, and disclosed all the facts in relation to these transactions, and produced all the papers asked for. All the facts upon which appellant bases his claim of payment of the mortgage debt rest upon Rudd’s testimony, and it is not contended that there was anything undisclosed about the transactions between the parties. The contention as to the payment of the debt is based upon the receipt by apnellee of the notes of three persons, Shutt, Tindall and Kinney, aggregating $15,800. The facts in regard to this transaction are fully disclosed by Rudd in his testimony, and are undisputed.
It appears that the Pittsburg bank had a prior lien on some of the lands embraced in the mortgage to appellee, and appellee’s mortgage was therefore subordinate to those liens. After the execution of the mortgage to appellee these lands were sold by the receiver, with appellee’s consent, to Shutt, Tindall and Kinney, respectively, for the sums of $4,000, $4,800, and $7,000. The bank’s claim and lien on these lands was only held as collateral security, and the receiver took notes from these purchasers and assigned, them to appellee. Rudd testified that he received payments on these notes, aggregating $6,120.98, and that under the contract four-elevenths of that sum, amounting to $2,225.80, was paid to the Port Dearborn National Bank of Chicago, on the debt of the Liberal Life Assurance Company to that concern, leaving a net amount of $3,895.18, in cash, to be applied by appellee. Rudd was not asked to state in detail the purpose of the transfer of these notes to appellee, and merely stated the fact that the transfers were made. Appellant, who was examining the witness, rested upon the only statements made by Rudd, without attempting to show whether or not the notes were accepted as payments on the mortgage debt. It has been held in many decisions of this court that the execution or transfer of a note is not a payment of the debt unless it is • agreed that the note is taken in payment. Blunt v. Williams, 27 Ark. 374; Henry v. Conley, 48 Ark. 267; Triplett v. Mansur-Tibbetts Imp. Co., 68 Ark. 230; Estes v. Lamb & Co., 149 Ark. 369.
The court has also held that the assignment by a debtor to his creditor of a note of a third person is presumed to have been done as security and not as payment. Malpas v. Lowenstine, 46 Ark. 552.
Even if the acceptance of the notes as payment pro tanto were shown, it was not sufficient to discharge the full amount of the mortgage indebtedness to appellee, but, as we have already seen, there is no proof to show that the notes were so accepted, and the presumption must be indulged that they were taken only as Security. This is in conformity with the contract between the parties, which shows that everything received by appellee from the Liberal Life Assurance Company was to be taken as collateral, the proceeds of which were to be finally accounted for.
The testimony of Rudd shows that at the time of the last accounting there was a considerable deficit under the reinsurance contract, and, if that is true, the Liberal Life Assurance Company is still_indebted to appellee in a greater portion of the original amount paid by it to the Pittsburg Bank, at least there is sufficient testimony to sustain the finding of the chancellor that the full amount of the mortgage debt is unpaid, or that it was unpaid at the time of the decree in this case.
The purchase price of the lands at the sale was only sufficient to pay something less than one-half of the mortgage indebtedness. There was therefore no error committed by the chancellor in refusing to hold that the debt had been paid, in accordance with appellant’s contention.
It is next insisted that the original action was prematurely instituted, and it is argued that this should defeat recovery by appellee in this case.
It is true that the principal of the mortgage debt was not due at the time of the institution of this suit, but it became due long before appellant contested appellee’s right to foreclose. The foreclosure might well be sustained upon the failure of the mortgagor to pay the taxes on the land; There is a clause in the mortgage requiring the mortgagor to keep the taxes paid on the land, and a further stipulation to the effect that if the mortgagor “shall fail to comply with the terms set up in this deed,or shall fail to pay the note, together with the coupon notes which this deed is given to secure, according to the tenor thereof, the said party of the second part may declare all moneys owing to it and secured by this deed immediately due, and proceed to collect the same.”
The record recites that the cause was heard, among other things, on the certificate of the amount of taxes, but this certificate is not in the record, and we must indulge the presumption that there was sufficient to prove a substantial failure to comply with the terms of the mortgage in regard to keeping the taxes paid.
There are still other reasons why appellant’s contention cannot be sustained as to the immaturity of the right of action at the time it was commenced. Appellant was not a party to the mortgage, but is merely a junior lienor, and has the right only to contest the foreclosure to the extent of his lien. At the time he appeared to assert his lien as against the right to foreclose, the mortgage debt was due, and the mortgagor had made no objection to the foreclosure. Appellant, therefore, occupied the position of a junior lienor, with the prior lien of appellee fully matured at that time, and he could not then complain of the premature institution of the action. We can conceive of no principle of equity upon which a foreclosure decree should be set aside at the request of a junior lienor after the prior lien has matured, merely because it was immature at the time the action was originally instituted.
Finally, it is contended that the decree should be reversed because Evans, as trustee, had no authority from the Liberal Life Assurance Company to make the conveyance.
It is not shown by this record where the legal title to these lands was vested at the time of the execution of the mortgage, but it must be assumed from the record in this case that the-legal title was in Evans. Appellant’s attachment lien was a general one against the property of the Liberal Life Assurance Company, and there was no proof introduced to show a trust in its favor. The mere fact that the lands were held under a deed of conveyance to Evans under the designation “H. M. Evans, trustee,” was not, of itself, sufficient to create a trust. Pharr v. Fink, 151 Ark. 305. Assuming, however, that there was. a trust in favor of the Liberal Life Assurance Company, there had been no objections made by the cestui que trust, and the lack of power was not pleaded in the action by that defendant. Appellant, as a junior lienor, is in no attitude to raise that question where it has not been raised in the action by the only defendant who could have raised it, viz., the beneficiary in the trust.
Our conclusion .is therefore that there is no error in the proceedings, and the decree is affirmed.
Hart and Humphreys, JJ., dissent. | [
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Humphreys, J.
Appellant instituted suit in replevin against appellee in the court of A. Kaufman, a justice of the peace in Heber Township, Cleburne County, to recover the possession of 1,430 pounds of seed cotton, alleging that he owned same. The cotton was seized under a writ, and later sold for $120. The pleadings were lost, and the cause was continued from time to time. Finally an agreement was reached as to the contents of the lost papers, and the Qap§e_ w§,s tried upQrL Hie agreement &nd, evidence, which resulted in a dismissal of the replevin and a judgment in favor of appellee for $60, one-half the value of the cotton, and damages to the amount of $40. From the judgment an appeal was prosecuted to the circuit court. The agreement, in lieu of the lost papers, presented the sole issue of the title to the cotton. No issue was presented by the agreement for damages on account of the detention of the cotton. The agreement, did not contain a counterclaim of appellee for damages.
Upon trial de novo in the circuit court, testimony was adduced tending to establish three issues, and was in conflict on each issue. The first issue was whether a demand for the cotton was made by appellee before suit. The next was whether appellant, the landlord, became the owner of the cotton by virtue of abandonment of the cotton crop by appellee, who was a share-cropper. The last was whether appellant breached the rental contract by failing to repair the fences so as to prevent the cattle from injuring the cotton crop.
The court instructed the jury to find the issues in the replevin suit against appellant because he made no demand for the possession of the cotton before instituting suit. This constituted reversible error, because the undisputed evidence shows that appellee denied and contested the right of appellant to recover the cotton. Unless a demand would have availed, it was not necessary to make it before the institution of the suit. Triplett v. Rugby Distilling Co., 66 Ark. 220.
During the trial of the replevin suit in the circuit court appellee was permitted, over the objection and exception of appellant, to introduce testimony in support of the counterclaim for damages, on the ground that appellant had breached the rental contract, in failing to make repairs on the fences so as to prevent cattle from injuring the crop. No claim of damages was made by appellant for detention of the cotton. The agreement substituted for the lost papers presented the sole question of title to the seed cotton. The counterclaim was foreign to, the issue of title and could not be set up in a replevin suit where no damages were claimed by the plaintiff in the action. The court therefore erroneously submitted the issue on the counterclaim to the jury for determination.
The undisputed facts in the instant case show that appellee was a share-cropper. This court is committed to the doctrine that a landlord and share-cropper stand in relationship of employer and employee. Rand v. Walton, 130 Ark. 431, and cases cited therein to this point. It is provided by sec. 6886, Crawford & Moses’ Digest, that, “if any laborer shall, without good cause, abandon his employer before the expiration of his contract, he shall be liable to such employer to the full amount of any account that he may owe him and shall forfeit to his employer all wages or share of crop due him, or which might become due him from his employer. ’ ’ Testimony was introduced tending to show that appellant abandoned the cotton crop. The evidence was in conflict upon this point. The court should have submitted the question of abandonment to the jury for determination. The refusal to do so constituted reversible error.
On account of errors indicated, the judgment is reversed and the cause remanded for new trial. | [
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Humphreys, J.
Appellees instituted suit in the circuit court of Bradley County against appellant to recover $10,000 on two promissory notes in the sum of $5,000 each, executed by appellant to them in part payment for timber on a certain 520-acre tract of land in said county, and caused an attachment to be issued and levied upon a lot of staves belonging to appellant.
Appellant filed an answer seeking to cancel the notes upon the ground that he was induced to execute them through fraud and misrepresentation of appellees as to the character and location of the timber sold him. The right to attach 'the staves was controverted, and damages sought on account of the levy of the writ. Upon motion the cause was transferred to the chancery court of said county, where it was heard upon the pleadings, documentary evidence, and testimony of witnesses taken ore tenus at the bar of the court which resulted in a decree denying judgment on the notes because the suit was prematurely brought; denying the cancellation thereof as being fraudulently procured; dissolving the attachment and refusing damages on account of the levy thereof.
From that part of the decree refusing to cancel the notes and award appellant damages an appeal has been prosecuted to this court.
Appellees have moved to affirm the decree because the oral and documentary testimony taken in open court was not preserved and incorporated in the record in the manner provided by law. The decree recites that the testimony of certain witnesses, naming them, was “taken ore tenus at the bar of the court, taken in shorthand and ordered transcribed and filed as depositions in the ease.” What purports to be the testimony of these witnesses is incorporated in the transcript, but they were not filed with the clerk during the term of the court the decree was rendered. It does not appear that the documentary evidence or testimony of said witnesses was brought into the record by a bill of exceptions, nor written out and embraced in the decree. It was furnished to the' clerk by a stenographer after the adjournment of court, as shown by a response to a writ of certiorari, and incorporated in the transcript by the clerk. It does not appear, however, that the court made any order before the evidence was taken for the court stenographer, or one specially appointed by him for the purpose, to take the testimony in shorthand, transcribe, and file it during the term at which the case was tried. The testimony was not brought into the record in the manner required by law (see McGraw v. Berry, 152 Ark. 452), and no error appearing on the face of the record, there is nothing before us upon which to predicate a reversal of the decree.
Decree affirmed. | [
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ON MOTION TO DISMISS APPEAL.
Hart, j.
The two cases embraced in this appeal were consolidated for the purpose of trial in the court below and were heard together. From, a decree dis missing their complaint for want of equity, appellants have prosecuted an appeal to this court.
Appellees moved to dismiss the appeal on the ground that it was not brought within the time prescribed by the statute.
The Legislature of 1919 passed a special act' to organize Road Improvement District No. 7 of Little River County. See Road Acts of Arkansas 1919, vol. 1, p. 1205.
Appellants are owners of real property within the proposed district and were the plaintiffs in the court below. Appellees are the commissioners of the district, the assessors of the district, the engineers of the district, and the contractors who were awarded the contract to construct the proposed road.
The complaint in each case is similar, and is very lengthy. For the purpose of this motion, it is not necessary to set out the complaints in detail, but their substance and the object of them may be briefly stated.
The complaints allege that the act creating the proposed road district is unconstitutional and that it violates the due process clause of the State and Federal Constitutions; that it is violative of the State Constitution in other respects; that the commissioners are attempting to build a number of subordinate roads, when by the terms of the act they only have the power to build the two principal roads named therein; that the assessment of benefits amounts to a confiscation of the real property of the taxpayers, and was made upon an arbitrary and discriminatory basis; that the commissioners of the district have made certain illegal and extravagant expenditures, which are specifically set forth, and which the act does not authorize them to make; that the contract for the engineering work was let at an exorbitant and extravagant price; and that the contract to construct the road was also let at an exorbitant and extravagant price. The plaintiffs also allege other matters involving the validity of the district which we do not deem necessary to set out.
The chancery court dismissed every paragraph of the complaints of the consolidated cases fob want of equity.
Sec. 22 of the act reads as follows: “All cases involving the validity of this district, or the assessment of benefits, and all suits to foreclose the lien of taxes shall be deemed matters of public interest, and shall be advanced and disposed of at the earliest possible moment, and all appeals therefrom must be taken and perfected in thirty days.” See Road Acts of 1919, vol. 1, p. 1205.
The appeal was not perfected within thirty days, and appellees have moved to dismiss it on that account.
A majority of the court is of the opinion that so much of the appeal as involves the validity of the district, or the assessment of benefits, should be dismissed because the appeal was not taken and perfected within the thirty days required by the act creating the district. In this respect they think the case is ruled by Ferrell v. Massie, 150 Ark. 156, and Road Imp. Dists. 1, 2 and 3 v. Crary, 151 Ark. 484, and other cases of like character.
Judge Wood and I think that the appeal was taken in time as to all the paragraphs of the complaints involving the constitutionality of the act. The reason is that if the act should be held unconstitutional in any respect, &ec. 22, providing the time limit for appeals, would fall with the rest of the act. This holding of the majority eliminates from the appeal all the paragraphs of the complaints except those relating to the waste committed and suffered by the commissioners, by the engineers and by the contractors of the district.
It has been suggested that the appeal as to these matters should also be dismissed, and reliance is placed upon the principles announced in Ferrell v. Massie, 150 Ark. 156, to sustain this view.
A majority of the court is of the opinion that that-case does not control here. There the suit was brought by the commissioners against the property owners to enforce the payment of assessments against their property. The taxpayers sought.to defeat the enforcement of the assessments by a crossbill in which they attacked the validity of the district and the assessment of benefits. In that case the appeal was not taken within the thirty days prescribed by the statute, and for that reason the appeal was dismissed. The court said that the purpose of the statute was to éxpedite suits to enforce the collection of assessments, and that the character of the suit could not be changed by new matter pleaded by'way of cross-complaint. It will be noted that in that case the taxpayers were the defendants and sought to defeat the enforcement of the assessment against their property by pleading certain matters involving the validity of the district. As above stated, the majority of the court think that that case rules here with regard to all matters in the complaint involving the validity of the district, or the assessment of benefits; ■ but the. paragraphs of the complaint which seek to recover against the commissioners, the engineers and contractors for waste, constitute separate and distinct matters which are not in any wise related to the matters involving the validity of the districts or the assessment of benefits. Therefore they do not come within the terms of the statute limiting the right of appeal to thirty days, and the action in this respect is governed by the general statute of six months.
In this respect the case is more like C. R. I. & P. Ry. Co. v. Langley, 78 Ark. 207. In that case it was held that one against whom a judgment has been obtained has the right to pay, or to offer to pay, so much thereof as he concedes to be just, and to appeal from the residue of the judgment. In that case the plaintiff sued for wages due him and the statutory penalty for nonpayment thereof. The court said that the penalty for nonpayment of wages was a separate cause of action, and that, under the reformed procedure, the defendant had a right to appeal from that part of the judgment without' sub jecting itself to further cost in litigating the amount of wages which it conceded to be justly due plaintiff.
As we have just seen, the suit for waste against the commissioners, the engineers, and the contractors is a separate and distinct cause of action and has no relation or interconnection with the other paragraphs of the complaint. Equity cases are triable de novo in this court, and there seems to be no good reason why a party in chancery may not appeal from a distinct and specified portion of the decree. The result of the appeal in a distinct branch of the case, if determined in favor of appellants, would be to modify the decree by correcting the part complained of, and this result could be obtained in this case as well as if the appeal had been perfected from the entire decree. As justice to both parties may be thus done on the appeal against the commissioners, the engineers, and contractors for waste, a majority of the court think that it should not be dismissed.
Suppose, for instance, that the plaintiffs in the court below should have been advised that subsequent to the filing of their complaint and the decision of the chancery court, all matters relating to the constitutionality of the act or its validity or as 'to the validity of the assessments had been settled by other cases determined by this court, then it would have been a vain and idle thing for them to have prosecuted an appeal to this court from a decision involving precisely the same questions. But they should not be cut out from appealing from so much of the decree as they believed to be wrong and which was entirely separate from the other issues decided adversely to them. “
Again, suppose the issues relating to waste had been decided by the court below against the defendants, could it be said that their right to appeal was restricted to the thirty days prescribed .by the statute because the plaintiffs had embraced in their bill matters coming under this section of the statute? We think not.
The allegations of the complaint against the commissioners, the engineers, and the contractors do not fall within the provisions of section 22 of the act creating the district, and, being severable therefrom, the appellants’ right of appeal is not governed by it bnt is governed by the general statute regulating appeals in chancery cases, which is six months.
Therefore, the motion to dismiss the appeal will be granted as to all matters, except those relating to waste by the commissioners, the engineers, the contractors and others, and as to these matters the motion will be denied. | [
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Hart, J.
(after stating the facts). The chancellor found that Hess purchased the materials for the construction of his house from appellees and agreed to pay for the same. This finding is in accord with the testimony of Aaderson, the manager of appellees. The materials were charged on the books to Hess by Wallace. The bookkeeper of appellees testified that Hess admitted to him that he owed the account and would pay the same as soon as he collected some money due him on the purchase price of some property he was selling.
Hess denied having agreed to pay for the materials, and is corroborated by Wallace. The original contract was made over the telephone. The testimony of Anderson and Hess as to what the contract was is in direct and irreconcilable conflict. Each one is corroborated by facts and circumstances introduced in evidence.
The finding of the chancellor in favor of appellees is not against the clear preponderance of the evidence, and for that reason, under the settled rules of this court, it will not be disturbed on appeal!
It is next insisted that the decree should be reversed because appellees did not give ten days ’ notice before the ■filing of their lien, as required by sec. 6917 of Crawford & Moses’ Digest. The material was furnished under a direct contract with the owner, who was liable as on an original undertaking, and the notice required by the statute was not necessary. ,
Sec. 6935 of the Digest provides that all persons furnishing things or doing work provided for by this act shall be considered subcontractors, except such as have contracts therefor directly with the owner, proprietor, or his agent, or trustee. So it has been held that if a person enters into a contract with the owner of the land to furnish material by which the owner becomes liable therefor, such person furnishing the material is not a subcontractor and is entitled to recover judgment therefor against the owner of the land, and also to a lien on the building constructed thereon. Leifer Manufacturing Co. v. Gross, 93 Ark. 277.
It is also contended that the judgment should be reversed because Wallace, the contractor, was not made a party to the suit, and reliance is placed upon Simpson v. J. W. Black Lbr. Co., 114 Ark. 464, and Cruce v. Mitchell, 122 Ark. 141. In each of these cases the goods were sold to the contractor, and suit was brought against the owner without making such contractor a party.
In the present case the materials were sold directly to the owner, and he was liable to the person furnishing the materials upon an original undertaking. It W-as his debt, and no useful purpose could bave been served by making the 'contractor a party. Then, too, the record shows that the contractor had become a nonresident of the State, and service could not be had upon him, although he was named as a party defendant in the complaint.
It follows that the decree must be affirmed. | [
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Smith, J.
The indictment under which appellant was tried contained two counts. He was convicted' under the first count, which charged that he had kept in his possession a certain stillworm and still without-registering the same with the proper United States officer.
Error is assigned in the refusal of the court to grant a continuance. In support of that motion appellant offered evidence tending to show the diligence he had employed to secure the attendance of certain absent witnesses. The evidence on this subject is to the following effect. Appellant had been bound over by a justice of the peace to await the action of the grand jury. He was indicted on March 9th, and his case set for trial on the following Wednesday, which was March 15th. He caused subpoenas for his witnesses to be issued on Monday, March 13th, and the sheriff reported that certain of them could not be found. Appellant made the showing that these witnesses could have been found had the officer pursued his search for them more diligently. The court found, however, that appellant had not used proper diligence in having subpoenas issued, and overruled the motion. '
Appellant did not ask a postponement for a few days' that the witnesses might be served. The prayer of his motion was that the cause be continued for the term, and the judge, in overruling the motion, announced his conclusion to be that appellant had not used proper diligence to get ready for trial at that term. These matters rest largely in the discretion of the trial court, and as no abuse of discretion was shown we cannot reverse the judgment for the failure to grant a continuance. Barling v. State, 143 Ark. 164.
The State proved that the still was found in appellant’s possession, but no evidence was offered that he had not registered it with the proper United States officer, and the court refused an instruction requested by appellant that the burden of showing this fact was on the State. No error was committed in refusing this instruction, as it was held in the case of Moore v. State, 154 Ark. 13, that this was a negative averment, particularly within the appellant’s knbwledge, and should have been disproved by the appellant himself. See also Ring v. State, 154 Ark. 250.
Both counts of the indictment were drawn under section 2 of act 324 of the General Acts of 1921 (General Acts 1921, p. 372). This act consists of seven sections, the first four of which denounce various acts as being unlawful, and by section 6 thereof it is provided that “any person who shall violate sections 1, 2, 3 and 4 of this act shall be guilty of a felony, and upon conviction shall be punished by imprisonment in the penitentiary for not less than one and not more than five years.”
Appellant requested the court to direct a verdict of not guilty “because the penalty section of the act under which the indictment is brought only provides for a penitentiary sentence in case of an accused violating sections 1, 2, 3 and 4 of the statute, and that the State has not shown, nor charged, that defendant violated all four of them, that only two of them are charged to have been violated.” In other words, the insistence is that, because the connective conjunction “and,” rather than the disjunctive conjunction “or,” appears in section 6, a conviction can be had in the event only that a violation of all four sections is shown.
We think section 6 should not be so construed, and that its proper construction, to give effect to the manifest intent of the Legislature, requires the word “and” in section 6 to be read as “or.”
Each of the first four sections of this act defines certain actions which are denounced as unlawful, and it is quite obvious that the Legislature intended to make all the actions defined in each of said sections, respectively, unlawful. Each section of the act is complete in itself, and while it would not be impossible for a person to violate all the provisions of sections 1, 2, 3 and 4, it would be a strained construction of the act to say that a completed crime was not committed until all four sections had been violated.
It is a settled rule of construction that a statute must be read as a whole to ascertain its meaning, and to give effect to the meaning of a statute thus ascertained courts are quite frequently required to eliminate or to substitute words for those employed by the Legislature. In the discharge of this duty this court held, in the case of Williams v. State, 99 Ark. 149 (quoting a syllabus), that “to carry out the general purpose and intent of a statute, either civil or criminal, the words ‘and’ and ‘or’ are convertible.” See also McDaniel v. Ainsworth, 137 Ark 280.
No error appearing, the judgment is affirmed. | [
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Smith, J.
This appeal is from the decree of the chancery court of Independence County sustaining a demurrer to a complaint containing the following allegations. Plaintiff is a nephew of E. JULadd, who died intestate, about the year 1905, in Independence County. W. M. Wade was appointed administrator of the estate, and made final settlement thereof on May 4, 1908, which was approved and confirmed on November 4, 1908. The complaint was filed September 10, 1920, and plaintiff alleged he had only learned his uncle was dead a few months prior to that date, and that he did not know anything of the administration of the estate and has re eeived no part of the portion due him as an heir-at-law. That the next of kin of the intestate were his brothers and sisters and the children of deceased brothers and sisters, and that he was the only child of his mother, who was one of the sisters, and that his mother died •several .years 'before the death of the intestate, and that ¡plaintiff’s share was a one-ninth interest. It was further-alleged that “defendants Wade and Wheeler bought up the shares of all the heirs except himself and two others, and, although they knew, or could have known with reasonable investigation, that plaintiff was not dead, and although in the final settlement filed by the defendant Wade as administrator he expressly recoghized the right of plaintiff to a one-ninth interest in said estate, as well as Joe Ladd, whose whereabouts were then unknown, yet subsequently he and the defendant Wheeler secured an order of the probate court of Independence County authorizing him, as administrator, to pay out the amount of said estate belonging to the plaintiff and Joe Ladd to the other heirs-at-law, on the representation made to the court that the plaintiff and Joe Ladd had been absent from the State of Arkansas for five years without their whereabouts being known.” A copy of the order of the probate court was made an exhibit to the complaint. It was further alleged in the complaint that Wade paid to himself 6/42 and to the defendant Wheeler 33/42 of the estate and 3/42 to the other heirs, and that, pursuant to the order of the probate court, I. N. and J. F. Barrett, who were also made defendants, had executed a bond to the administrator for the said Wheeler, guaranteeing the return of the money paid him if the plaintiff or Joe Ladd should turn out to be alive and claim their interests.
It was also alleged in the complaint that the order of the probate court was void, as the court had no jurisdiction to make the order, and that the action of the defendants Wade and Wheeler in securing said order was a fraud on the rights of the plaintiff, and that as soon as plaintiff learned of the death of his uncle and the ad ministration of Ms estate he returned to Independence County and made demand for his portion of the estate, which was refused.
The complaint alleged that “during the time of the administration of his estate he lived in the State of Oklahoma, near the Arkansas line, and that his whereabouts could have been easily determined by the defendants Wade and Wheeler, had they made any effort to do so.” Plaintiff alleged the value of his share to have been $400, and he prayed judgment therefor, with interest at six per cent, from November 4, 1908.
The order of the probate court, which was made an exhibit to the complaint, recites that the final settlement of the administrator which had been presented for approval showed the sum of $2,151.77 in his hands for division, but that the addresses of Joe Ladd and George Hill were unknown. Exceptions to this settlement were filed by Wheeler and Wade, upon the ground that neither Ladd nor Hill were entitled to participate in the disbursement of the funds of said estate, for the reason that both had absented themselves beyond the limits of the State for a period of more than five years and nothing had been heard from either within five years, and both were therefore presumed to be dead, under the statutes of the State. The order of the probate court recites that witnesses were examined and sworn on the hearing’ of the exceptions to the administrator’s settlement, and, “being fully advised in the premises, and it appearing to the court that the said Joe .Ladd and George Hill had absented themselves from the limits of the State of Arkansas for a period of more than twenty years, the court is of opinion that said exceptions to the final settlement and account current of the administrator should be sustained. ’ ’
The probate court ordered and adjudged that Ladd and Hill were precluded and estopped from participating in the division and disbursement of the funds of the estate,, and that they “were not to have any portion of said funds deposited with the clerk of this court for their use and benefit or subject to their order,” and the administrator was directed to amend his final settlement by dividing the funds of said estate into seven equal parts, instead of nine, as he had done, and, as thus amended, the report was ordered to lie over until the following term of the court, when it was approved.
Appellant insists that the order of the probate court which, as has been said, was made an exhibit to his complaint, was void for the reason that it does not conform to §§ 225-228, C. & M. Digest; and that he is not guilty of laches because he brought his suit within three months after being apprised of his rights; and that he is not barred by the statute of limitations because of the provisions of § 38, C. & M. Digest.
It is conceded that the order of the probate court did not conform to the requirements of §§ 225-228, C. & M. Digest, and was therefore void, but it does not follow that the cause of action is not barred by laches and limitation. We think it is barred by 'both laches and limitation.
The complaint contains no allegations sufficient to support the charge that the order of the probate court was obtained through fraud practiced upon the court in its procurement. The order itself recites the facts upon which the court made its finding; and, while the facts recited did not authorize the order made, there was no fraud practiced upon the court. The court was in full possession of the facts; indeed, the truth of the recitals contained in the order of the probate court is not questioned 'by the allegations of the complaint.
We have therefore an erroneous order of the probate court. The division of the estafe into seven shares instead of nine, was a conversion of plaintiff’s interest in the estate, and his cause of action for the wrongful conversion was full and complete as soon as the distribution in accordance with that order was made. Plaintiff thereafter waited something more than twelve years before bringing this suit, and although he was, during all this time, a resident of the State of Oklahoma, the miming of the statute of limitations was not arrested on that account. Secs. 6962 and 6960, C. & M. Digest. That plaintiff’s cause of action was barred by limitation, see Hanf v. Whittington, 42 Ark 491; McGaughey v. Brown, 46 Ark. 25; Hankins v. Layne, 48 Ark. 544; Rock Island Plow Co. v. Masterson, 96 Ark. 446.
We think the cause of action was also barred by laches. Plaintiff says he did not know of his rights until three months before the institution of this suit. But his ignorance was due to his own negligence and indifference to his family. His mother died before his uncle from whom he seeks to inherit. He was his mother’s only child, and knew he would inherit any interest which she herself would have taken.
What was said by the Supreme Court of the United States in case of Broderick’s Will, 21 Wall. 503, is applicable here. The facts there were that United States Senator Broderick of California died in 1859 and left a very valuable estate. A will purporting to have been executed by him was probated, and his estate was distributed pursuant to its terms. Ten years later a bill was filed by his heirs alleging that will was a forgery, but the court held the heirs were barred by laches. The heirs sought to excuse their delay in instituting the suit by showing that they were residents of an isolated community in Wales, and had lost track of their relative, who had come to America and amassed a fortune, and that they had brought suit as soon as they were advised of the accrual of their cause of action. Mr. Justice Bradley, for the court, said: “They do not pretend that the facts of the fraud were shrouded in concealment, but their plea is that they lived in a remote and secluded region, far from meaps of information, and never heard of Broderick’s death, or of the sale of his property, or of any events connected with the settlement of his estate, until many years after these events had transpired. Parties cannot thus, by their seclusion from the means of information, claim exemption from the laws that control human affairs, and set up a right to open up all the transactions of the past. The world must move on, and those who claim an interest in persons or things must be charged with knowledge of their status and condition, and of the vicissitudes to which they are subject. This is the foundation of all judicial proceedings in rem.”
Here it was not the deceased who went away to parts unknown, but the heir himself, and although he was in an adjoining State, with many means of communication with his family open to him, he did not communicate with any of them. He had been absent and unheard-of for twenty years when the probate court made its order, and it was twelve years thereafter before he brought this suit. His claim has become stale, and equity will not aid in its enforcement. Williams v. Bennett, 75 Ark. 312; Rhodes v. Cissel, 82 Ark. 367; Ater v. Smith, 19 Ann. Cas. 105; Auten v. St. L. I. M. & S. R. Co., 110 Ark. 24; Board of Levee Inspectors Chicot County v. Southwestern Land & Timber Co., 112 Ark. 467; Rudland v. Mastic, 77 Fed. 688; sec. 244, article Equity, 21 C. J., p. 247; sec. 153, article Equity, 10 R. C. L., p. 406.
There is nothing in § 38, 'C. & M. Digest, which militates against what we have said. This section and what is now § 4111, C. & M. Digest, together, comprise chap. 46 of the Revised Statutes, the title of which chapter is “Death Presumed.” Sec. 1 of this chaptel, which is § 4111, C. & M. Digest provides that a presumption of death shall arise against any person absenting himself beyond the limits of the State for five years successively, unless proof is made that he is alive within that time. Sec. 2 of that chapter, which is § 38, C. & M. Digest, reads as follows:
“An estate recovered in any ease in which the death of the person having the right thereto shall have been presumed, shall be restored to such person on making his personal appearance, or on making satisfactory proof of his being in full life, and he may recover the rents and profits of the estate during the time he may have been deprived thereof, with interest.”
It will be observed that the complaint does not allege that the defendants, or any of them, have possession of nny specific property; in fact, the action is not brought to recover specific property but a sum of money, and for this reason we think § 38, set' out above, does hot arrest the running of the statute of limitations against this cause of action or prevent the interposition of the plea of laches.
This § 38 appears to comprehend real estate, rather than property generally, as the word “estate,” and not the word “property,” is employed. The provision that “rents and profits of the estate” may be recovered lends strength to this view. But, whether the statute should be thus limited or not, we think it clear that it relates to the recovery of specific property which the occupant in possession recovered in a case in which the death of the person entitled thereto was presumed, under section 4111, C. & M. Digest, and was not intended to prevent the running of the statute of limitations or the plea of laches against actions for the recovery of money in cases where such defenses would be otherwise available. Beam v. Copeland, 54 Ark. 70.
It appears, from the face of the complaint itself, that the cause of action sued on is barred both by laches and limitation, and the demurrer was properly sustained. Cunningham v. Dellmon, 151 Ark. 409.
Decree affirmed. | [
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Wood, J.
Street Improvement District No. 303 of Little Eock was created by the city council on January 24, 1921, under the authority of §§ 5647, 5649 and 5652 of Crawford & Moses’ Digest. The preliminary petition for the improvement, after describing the prop erty to be embraced in tbe district, prayed tbe city council to “take steps for the local improvement by repaving with an asphaltic surface and otherwise improving Main Street from the south curb of Markham Street to the south curb on Eighth Street, and to that end to at once lay off as an improvement district, to be known as Street Improvement District No. 303, the aforesaid property in said city of Little Rock.”
The ordinance creating the district provided as follows : “Sec. 1. That Street Improvement District No. 303 of .the city of Little Rock be and the same is hereby created and established for the purpose of repaving with an asphaltic surface and otherwise improving Main Street from the south curb on.Markham Street to the south curb on Eighth Street; to provide for drainage where necessary, and for the purpose of doing any and all other work necessary and incidental to the said paving and draining, in accordance with an act of the General Assembly of the State of Arkansas, entitled, ‘An act to regulate the manner of assessing real property for local improvements in cities of the first class,’ approved March 22,1881, and amendments thereto.” (Here follows a description of the boundaries of the district, embracing all of the real estate as described in- the preliminary petition).
This action was instituted by the appellant. He set up in his complaint that the appellees were the duly elected and qualified board of improvement for district No. 303, supra; that he was the’ owner of real property, and a taxpayer in the district. After setting out the provisions of the preliminary petition and the ordinance as above set forth, he alleged “that the board of commissioners contemplated a contract not only for the repaving of Main Street with an asphaltic surface, but also for the removal of the present wood blocks, brick and sand cushion and cleaning the foundation, putting in a special binder course and requiring the contractor to maintain the improvemeht for a period of five years; also the installation of certain catch-basins, pipes, curb renewals and radius corners, and putting in steel headers between the street railway tracks and that portion of the street to be paved by the district. That the repaving of the street with an asphaltic surface will cost the district approximately $35,000, but if the board is allowed and permitted to construct the additional improvements above specified, this will cost approximately $10,000 more, which will be an extra burden upon the taxpayers within the district, and which they did not contemplate nor authorize in their preliminary or first petition to the-city council.” The appellant alleged that the ordinance establishing the district as aforesaid was void; that the preliminary petition was too vague and indefinite to meet the requirements of the law. He prayed that the appellees be perpetually enjoined from issuing bonds and proceeding with the work of the improvement, and that the district be declared invalid, 'and the assessments levied against the property owners be declared null and void.
The appellees, in their answer, admitted that they contemplated making the improvements as set up in the complaint, and admitted that it would cost the sums therein'specified. The answer alleged that the additional improvements contemplated, and specified in the complaint, were to cost the sum of $10,000, and were necessary and incidental to the repaving in order to construct the pavement - in such workmanlike manner that no repairs would be necessary for five years, the contractor being required to maintain it for that period of time. The answer details the particulars, alleging that it was necessary to put in catch basins in order to protect the asphaltic pavement, and that it was also necessary to remove some old and worn pipes and replace them with hew ones; that, in order to lay the new pavement, the curbing will have to be removed and a new curb and new corners built; that the installation of steel headers between the pavement to be laid by the district and the pavement which the street railway company is to lay at the same time is necessary to protect the pavement of the district against damage by the street railway company whenever its pavement should be removed or opened. The appellees concluded their answer by embodying in it a general demurrer to the appellant’s complaint.
The cause was heard upon the complaint, the answer and the demurrers, and certified copies of the preliminary petition and the ordinance above mentioned. The court entered a decree sustaining the demurrer to the complaint and overruling the demurrer to the answer, and dismissing the complaint for want of equity. The appellant stood on his demurrer and appeals.
1. It is first contended by the appellant that the language of the preliminary petition, to-wit: “By repaving with an asphaltic surface and otherwise improving Main Street from the south curb on Markham Street to the south curb on Eighth Street” is too vague to advise the property owners of the character of the improvement to be undertaken.
We have held in many cases that the preliminary petition is jurisdictional and must meet the requirements of the statute. In Cox v. Road Imp. Dist. No. 8 of Lonoke Comity, 118 Ark. 119, where the oases are collated, we said: “There must be no uncertainty about the improvement proposed. The details and plans of the improvement may be worked out by the board of improvement after the establishment of the district petitioned for, but the discretion of the board is limited <to carrying out the purpose of the petition. It is not contemplated that, upon and after the establishment of the district, there shall be any doubt about the improvement to be constructed. ’ ’ By the language of the. petition the property owners were certainly advised that the local improvement contemplated was the repaving of Main Street in the city of Little Rock, from and to the points (jqsignated, with an asphaltic surface. This language 1% certainly definite enough to describe the character of the improvement to be undertaken.
But appellant contends that the clause “and otherwise improving” makes the antecedent language uncertain and makes it doubtful as to the kind of improvement contemplated. But, taking the sentence as a whole, we are convinced that it is not susceptible of such interpretation. The meaning and effect of the conjunction “and” was to indicate that the board of improvement could add to and- join with the repaving of Main Street such other and further work as was necessary and incident thereto and included in the repaving of Main Street with an asphaltic surface. In other words, the main purpose of the petition was the repaving of Main Street. The words “and otherwise improving” were manifestly added in order to give the board of improvement the power to do whatever was necessary to effectuate the main purpose. Certainly these words cannot be interpreted to clothe the board “with a roving commission controlled only by their own discretion to make any kind of improvement they desired.” The only improvement they could make, as we view the petition, was the repaving of Main Street with an asphaltic surface and the doing of such other work in connection therewith as was incident thereto and essential to making the repavement of Main Street a successful -and complete improvement, such as was contemplated by the petition.
While, to give the council jurisdiction, it is necessary that the preliminary petition describe with certainty the improvement proposed, yet this may be done in general terms, leaving the details and plans of the improvement to be worked out by the board after the district is established. Cox v. Road Imp. Dist., supra. See, also, Board of Improvement v. Brun, 105 Ark. 65; McDonnell v. Imp. Dist., 97 Ark. 339. We conclude that the preliminary petition was sufficient.
2. ' The ordinance, after establishing the district and reciting the improvement to be made precisely as set forth in the preliminary petition, adds this clause: “To provide for drainage where necessary, and for the purpose of doing any and all other work necessary and incidental to the said paving and draining.” It follows from what we have already said that the ordinance establishing the district is not void because it authorizes the drainage wheré necessary, and other work necessary and incidental to the paving. Interpreting the ordinance in connection with the petition, it is manifest that it only contemplates the doing of such drainage and other work as may be necessary to effectuate the main purpose of the ordinance establishing the district, which, as we have said, is to repave Main Street with an asphaltic surface. Construing the ordinance as a whole and giving the words their plain and natural meaning, we conclude that no work is authorized to be done under the ordinance other than that which is necessary and incident to the repaving of Main Street and to make such repavement adequate and durable.
The allegations of the answer, which are admitted by the demurrer, show that the drainage and other work therein specified were necessary and incident to the work of repaving the street. It is alleged that such drainage, and other work specified, would only cost approximately $10,000. The allegations of the answer as to the additional improvements necessary and incident to the work of repaving Main Street, and as to the cost thereof, show that this additional work was not a separate and independent undertaking. It was a part of, and embraced within, the petition for an ordinance creating the district for the repaving of Main Street.
The case of Nelson v. Nelson, 146 Ark. 362, upon which appellant relies, is wholly unlike this case, because in that case the use of the disjunctive “or” in the ordinance establishing the district left it entirely optional with the commissioners as to whether they would do draining or grading, or curbing or guttering, or simply paving. “In other words, whether it contemplated only one of the methods mentioned, or one or more, or all of them combined, or by some other method not mentioned, if the commissioners deemed such method to the best interest of the district.”
In the present case the conjunction “and” makes it certain that the board of improvement was to repave Main Street and do such drainage and other work as was incident and necessary to the repaving, which additional work is specifically described in the answer and alleged to be necessary and incident to the proper paving of the street as contemplated. Here the allegations of the answer, admitted to be true, make the affirmative showing that it was not practicable to do' the work of repaving Main Street in the manner contemplated by the ordinance without also at the same time doing the drainage and other work specified in the answer. Meyer v. Board of Imp. of Paving Dist. No. 3, 148 Ark. 623-634; Board of Imp. v. Brun, supra.
The decree is in all things correct, and it is therefore affirmed. | [
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Smith, J.
On February 22,1921, the Cramer Cotton Company recovered a judgment in a suit upon a promissory note for $2,740 in the Woodruff Circuit Court against E.'B. Matkin, who prayed an appeal to the Supreme Court, and executed a supersedeas bond with E. S. and C. L. Cook as sureties. The appeal was never perfected, and on February 10,1922, the plaintiff, Cramer Cotton Company, caused notice to be served on the sureties that application would be made on February 21, 1922, to the circuit court for a summary judgment against them as sureties on the supersedeas bond. Pursuant to this notice, the application for summary judgment was made in the form of a motion, and the circuit court made the order. prayed and rendered judgment against the sureties for the amount of the original judgment with the accrued interest, and this appeal is from that judgment.
It appears that plaintiff below, appellee here, proceeded under sections 6250 and 6251, Ó. & M. Digest, in recovering the judgment appealed from. We find nothing in either of those sections to authorize this proceeding. Indeed, we know of no statute which affords authorization for this proceeding.
Proceedings for summary judgment are in derogation of the common law, and such judgments can be rendered in those cases only in which express authority therefor is found in the statute, and, as we have said, we know of no statute authorizing the judgment rendered herein. Prairie Creek C. M. Co. v. Kittrell, 107 Ark. 361; Milor v. Farrelly, 25 Ark. 353.
Had the plaintiffs herein perfected the appeal to this court in the time and manner provided by law, judgment could have been rendered here on the supersedeas bond for failure to prosecute the appeal; but this was never done. Plaintiff’s only remedy, therefore, is the ordinary suit at law on the bond.
The judgment of the court below will be reversed, and the cause dismissed. | [
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Smith, J.
Appellants, plaintiffs below, instituted, this suit against appellees, defendants below, a copartnership, and alleged the following facts as constituting their cause of action: On July 15, 1915, plaintiffs executed a mortgage to J. Bibbs Jacobs, conveying a certain lot in the city of Fordyce to secure the payment of $2,042.64, as evidenced by seven promissory notes, each for the sum recited in the mortgage. Said notes and the mortgage securing the same were, in due course, transferred, for a valuable consideration, to defendants on the 10th day of September, 1917, by a trustee in bankruptcy of the United States District Court at Nashville, Tennessee. That said defendants became the purchasers, owners and holders of said notes and mortgage. That on the 25th day of July, 1918, plaintiffs paid to the defendants the balance due on said notes, with all accrued interest, and the defendants received satisfaction in full of said mortgage and said obligation. That after the payment and satisfaction of said notes plaintiffs demanded that said mortgage be satisfied on the record where it was recorded, but defendants, after receiving said satisfaction of said mortgage indebtedness, did not, within sixty days after being requested, acknowledge satisfaction as aforesaid, as provided in section 7395, C. & M. Digest. That repeated demands and requests have been made by the plaintiffs for the satisfaction of said mortgage as requested, but without avail, and said mortgage now remains on the mortgage records of Dallas County unsatisfied, to plaintiffs’ damage,'wherefore they pray judgment.
A demurrer to this complaint was filed, and sustained, and this appeal is from tha,t judgment.
It is insisted that the demurrer was properly sustained because it does not appear how the interest of Jacobs was acquired by the bankrupt. But that contention may be disposed of by saying that the sufficiency of the complaint is being tested on demurrer, in which case all inferences deducible from the allegations of tbe complaint by fair intendment are to be drawn in testing its sufficiency; and tbe complaint here alleges defendants became tbe purchasers, owners and holders of said notes and mortgage, and it will therefore be presumed that defendants acquired the notes and mortgage by appropriate assignments.
It is also insisted that the demurrer was properly sustained for the reason that there is no allegation that defendants are the owners of record of the mortgage and notes, and that the complaint, by its terms, negatives the fact that appellees are assignees within the meaning of the statute relating to the satisfaction of mortgages.
The statute on this subject reads as follows: “If any mortgagee, his executor, administrator or assignee, shall receive full satisfaction for the amount due on any mortgage, he shall, at the request of the person making satisfaction, acknowledge satisfaction thereof on the margin of the record in which such mortgage is recorded.” Sec. 7395, C. & M. Digest.
"We construed this statute in the recent case of Johns v. Rollison, 152 Ark. 52, where it was said: “It will be observed, in reading sections 7395 and 7396 of Crawford & Moses’ Digest, that the duty is imposed upon any mortgagee, his executor, administrator or assignee, who shall receive full satisfaction for the amount due on any mortgage, to satisfy same of record if requested to do so by the person making satisfaction. In other words, our statute penalizes the ones receiving satisfaction for not satisfying the record upon the request of those making satisfaction. The statute, of course, means interested parties, not volunteers. The interpretation placed by us upon this- statute is the result of a strict construction when the natural meaning is given to each word and paragraph contained in the statute.”
This construction of the statute imposes upon any mortgagee, his executor, administrator, or assignee, who receives the satisfaction, the duty of satisfying the record when requested so to do by the person making satisfaction.
It is true, as insisted by defendants, that the complaint does not allege that defendants are the owners of record of the mortgage and notes. But this is no defense. In acquiring the debt and the security therefor, defendants assumed the duty of also acquiring the means of satisfying the lien of the mortgage. If the allegations of the complaint are true — and they must he so considered on demurrer — defendants are the only persons who have the right to satisfy the mortgage, and in acquiring the debt which it secures they took it with the duty imposed of releasing and satisfying the lien when the debt was paid.
We think defendants are assignees within the meaning of the statute. The. word assignee as here used means any person who, by appropriate transfer pr assignment, has acquired the title to the mortgage and the debt it secures.. As an incident to the acquisition of the right to demand and enforce payment of the debt secured, the law imposes the duty to satisfy the mortgage when the debt it secures is paid. Daniels v. Densmore, 48 N. W. 906; 2nd Jones on Mortgages (7th Ed.) sec. 990.
Defendants insist that the complaint is defective because, under its allegations, they do not have the authority which act 374 of the Acts of 1917 (Acts 1917, vol. 2, p. 1805) requires before one is authorized to enter satisfaction of the lien of a mortgage, in that their ownership of the mortgage is not a matter of record. But it follows, from what we have said, that this, if true, is no defense. If defendants have not placed themselves in position to comply with this act, it is their duty to do so, and, upon receiving payment of the debt secured by the mortgage, to satisfy it.
When considered on demurrer the complaint states a cause of action, and the judgment of the court dismissing it must therefore he reversed, and it-is so ordered. | [
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Hart, J.
(after stating the facts). The decision of the circuit court proceeded upon the theory that, under the facts alleged in the complaint, a tenancy from year to year was created, and the plaintiffs were not entitled to recover because they had not given the notice to quit required under such a tenancy.
To reverse the judgment, counsel for the plaintiffs have cited cases which hold that under a state of facts similar to those alleged in the complaint a tenancy from year to year is not created. We do not deem it necessary to discuss or to review these cases, because this court has held to the contrary. We have held to the common-law rule that a tenant under a lease for a term of years, by holding over after the end of the term without any new agreement, and paying rent according to the terms of the lease, which has been accepted by the landlord, becomes a tenant from year to year, and that this tenancy cannot be terminated by either party except upon notice of six months. Belding v. Texas Produce Co., 61 Ark. 377; Lamew v. Townsend, 147 Ark. 282, and Peel v. Lane, 148 Ark. 79.
According to the allegations of the complaint, the lease was for a period of three years, with a stipulated rental payable monthly in advance. The lease terminated on the 25th day of January, 1920. After that time the tenant continued to hold the premises and pay rent under the terms of the prior lease until December 14,1921. The landlord accepted the rent. Hence by election of the parties a tenancy from year to year was created. The act of the tenant in holding over and of the landlord in accepting rent under the terms of the prior lease created the relation of tenancy from year to year, and it was not within the power of either to throw off that relation, however onerous it might be, without giving the notice of six months required by the common law.
Of course this implication of law might have been rebutted by proof, but such a course was not adopted in the present case. Indeed, the demurrer admitted the allegations of the complaint to be true; and by declining to plead further, the plaintiffs elected to try the issues on the allegations of the complaint.
Therefore the judgment will be affirmed. | [
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Humphreys, J.
Appellant was indicted, tried, and convicted in the Pope Circuit Court, for the crime of selling and being interested in the sale of intoxicating liquor. The indictment was returned at the November, 1921, term of court. At the succeeding April, 1922, term of court, appellant filed a demurrer to the indictment on the ground that the record failed to show it was filed in the manner prescribed by law, that is, in open court and in the presence of the grand jury of said county. The demurrer was filed on the tenth day of said month and on the same day was overruled by the court, over the objection and ex ception of appellant. On the succeeding day appellant was tried, convicted, and adjudged to serve a term of one year in the State Penitentiary, from which judgment is this appeal.
The only assignment of error, based upon the record in ¡the case is that the indictment failed to show that it was filed in open court, in the presence of the grand jury, during the session of said court. The defect complained of could not be reached by demurrer. The proper remedy was by a motion to set aside or quash the indictment. State v. Brandon, 28 Ark. 411; Robinson v. State, 33 Ark. 182; Price v. State, 71 Ark. 180.
No error appearing in the record, the judgment is affirmed. | [
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Hart, J.
(after stating the facts). The undisputed evidence in the record shows that J. G. Galloway executed a valid mortgage on a Buick automobile to the H. A. White Auto Co. of Memphis, Tenn., to secure the balance of the purchase price thereof in the sum of $1,300, and that that sum was due and unpaid at the time the White Auto Co. was allowed to intervene in the present action.
There was also evidence to sustain the finding of the circuit court that Galloway had removed the mortgaged automobile from the State of Tennessee to the State of Arkansas, without the consent of the mortgagee. Under this state of the record the circuit court was right in holding that the mortgage lien of the White Auto Co. was superior to the attachment liens of the plaintiffs.
In F. E. Creelman Lbr. Co. v. Lesh, 73 Ark. 16, it is said that the authorities generally hold that a chattel mortgage given and duly recorded in one State will, by comity, be enforced in another State to which the mortgaged chattel lias been subsequently removed, even as against an innocent purchaser for value, where the mortgagee did not consent to its removal. This rule was reaffirmed in Vehicle Supply Co. v. McInturff, 120 Ark. 487.
In Snider v. Yates, 112 Tenn. 309, 64 L. R. A. 353, the Supreme Court of Tennessee held that a chattel mortgage given in another State on the property there situated, and recorded according to its laws, would not be enforced in Tennessee, as against an innocent purchaser for value, where the property was removed to Tennessee without the consent of the mortgagee and not recorded in Tennessee. But subsequently, in Newsum v. Hoffman, 137 S. W. 490, the Supreme Court of Tennessee receded from the views just expressed, and held that whether or not such mortgage would be enforced in Tennessee depended on whether it was removed there without the consent of the mortgagee.
The change in the holding was made to conform to what the court announced to be the weight -of authority on the question, and it will be noted that the holding in the latter case is in conformity with our own decisions on the question.
It is also insisted that the court should have sustained the motion of the plaintiffs, filed in the circuit court, to dismiss the intervention of the White Auto Co. for want of jurisdiction. This motion is based on the ground that the interplea of the White Auto Co. was not verified, as required by Crawford & Moses’ Digest, sec. 544.
The record shows that the White Auto Co. was allowed to intervene orally in the justice court, and that by consent of the parties, the plaintiffs and the White Auto Co. proceeded to try the issue of law and fact between them. This amounted to a waiver of a written interpl'ea or a verification of it under the statute. The court had jurisdiction of the parties and of the subject-matter of the lawsuit. -Their consent to try the case and their appearance in court for that purpose dispensed with the requirement of the statute both in regard to a written interplea and the verification of it. See Hill v. Imboden, 146 Ark. 99, and Burke v. Sharp, 88 Ark. 433.
It follows that the judgment must be affirmed. | [
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MiNOR W. Millwee, Associate Justice.
This is a suit by eleven of the seventeen cousins and collateral heirs of Miss Jessie McCray, deceased, to set aside two deeds which she executed to appellees, G-arrett Jones and Evelyn Jones, his wife, on the grounds of mental ineompetency and lack of consideration. The first deed to 100 acres of Arkansas River bottom land was executed on May 5, 1953, and the second deed to a small store building in Dardanelle, Arkansas, was executed February 25, 1954. A rather belated amendment to the complaint also charged that Miss McCray was induced to execute the deeds through the fraud, trickery and undue influence of appellees and others who were not made parties to the suit. Appellees answered with a general denial and, in addition, pleaded estoppel and res judi-cata by reason of appellants’ election to maintain and settle a separate suit against persons other than appel-lees for misappropriation of the $15,000 purchase price of the 100-acre tract.
Appellee, Garrett Jones, died testate prior to the trial and the cause was revived in the name of his widow as executrix. After an extensive hearing covering 700 pages of testimony and exhibits the chancellor on exchange found the issues in favor of appellees; that Miss McCray possessed the requisite mental capacity to execute the two deeds in question; and that each of said instruments was supported by valuable and adequate consideration. The principal issue here is whether these findings are against a preponderance of the evidence.
Miss Jessie McCray was 86 years of age at the time of her death on August 17, 1954. She was reared at Dardanelle, Arkansas, where she spent most of a very active and useful life as a registered nurse but also traveled extensively in this and other countries with wealthy patients. She was a tall, stately and attractive woman with strong feelings and pronounced likes and dislikes. Her family consisted of her father, mother and two brothers who predeceased her. She was the sole surviving heir of her brother, A. S. McCray who died in June, 1952. Prior to his death Miss McCray owned her home and other real property besides the two parcels of land involved herein which she inherited from him. She had previously owned the 100-acre tract as a gift from her mother but had deeded it to A. S. McCray in 1947. Miss McCray and Attorney Herbert C. Scott were appointed co-administrators of the A. S. McCray estate. Upon conclusion of the administration the remainder of the estate was delivered to her in February, 1953. She had offered the 100 acres for sale to various persons receiving offers ranging from $7,500 to $11,000 prior to May 5, 1953, when she concluded the sale to appellees and executed the first deed for a consideration of $15,000 which was demanded and paid in cash. Then she sold and conveyed the store building to appellees for $500.
The testimony as to Miss McCray’s mental capacity to execute the deeds in question is in sharp dispute. "We first consider briefly the medical evidence. Drs. Brooks Teeter, "W. P. Scarlett and Elizabeth Fletcher testified on behalf of the appellants. Dr. Teeter first saw and treated Miss McCray on May 29,1954, when she was admitted to a hospital at Russellville at her own request. During the first three days of her hospitalization and at intervals thereafter until her death her mind was clear but at other times she was noisy, belligerent and mentally confused. She then had arthritis and arteriosclerosis and he noticed nothing to indicate that she was mentally incompetent when she entered the hospital and he could not say what her mental condition was when she executed the two deeds.
Dr. Scarlett was reared in Russellville and his wife grew up in Dardanelle and is a half sister to one of the heirs. They were friends of the McCray family and would visit Miss McCray and others in Dardanelle and Russellville two or three times a year. Dr. Scarlett noticed a marked mental change in Miss McCray beginning about 1946 when she would ramble in her conversation and make what he regarded as irrational statements about her foreign trips and some candlesticks she had brought hack from England. Particularly after 1952 he noticed that her clothes were dirty and that she had become a disorderly housekeeper. He thought she wanted to give everything she owned away and said she did give all her valuable antiques away but would not give any of them to Mrs. Scarlett. There was other evidence that she sold the antiques. He believed she was definitely off mentally when she told them she was giving some of her money to Mayo Clinic and Tulane University. He diagnosed her condition as senile dementia and stated she was mentally unfit to handle her brother’s estate in 1952, and told one of the heirs about a year later, “they were silly not to put her down in Little Rock where she belonged.”
Dr. Fletcher is a psychiatrist and saw Miss McCray only once in the hospital 10 days prior to her death. Miss McCray was then under narcotics, about to die and incapable of revealing any case history. After talking with Dr. Scatlett, Mrs. Bessie Hunt and others, and after listening to appellants’ witnesses testify, Dr. Fletcher concluded that Miss McCray’s personality changed and she became “paranoid” and “psychotic” about 1945. As to her mental competency on May 5, 1953 and February 25, 1954, Dr. Fletcher gave a “yes and no” answer stating that Miss McCray perhaps then knew the extent, nature and value of her property but the fact that she might then have been acting under the influence of some unidentified person still rendered her incompetent. While she felt that Miss McCray doubtless had arteriosclerosis at the time she executed the deeds she could not say that she was then suffering from it in such a degree as to render her incompetent. She also stated that Miss McCray’s mental condition could vary from week to week. If she had heard appellees’ witnesses testify that might have altered her opinion as to Miss McCray’s mental competency at the time she executed the deeds.
Dr. Frank Cavias, called by appellees, was Miss McCray’s personal physician and treated her on occasions from November 28, 1945 until she went to the hospital in Russellville in May, 1954. While Dr. Cavias was a general practitioner and reluctant to testify concerning Miss McCray’s mental competency, he never detected any signs of paranomia or any evidence of any other mental disability in Miss McCray prior to May, 1954, when she told him she was not in position to remain at her home and asked that she be taken to a hospital. The fact that she was rational enough to appreciate her condition and realize that she needed additional treatment was some indication to the doctor of her sound intellect. He was a witness to her will in August, 1952, and in all his associations with her he never observed any symptoms indicating mental incompetency.
It would serve no useful purpose and unduly extend this opinion to attempt to detail the testimony of the 40 lay witnesses. Some of the appellants and several neighbors of Miss McCray thought she was incompetent because in the last few years of her life her memory was bad, she was not as friendly, orderly and neat as formerly, used beer and gin whereas she had formerly been a prohibitionist, or seemed to prefer the association and confidence of a few friends who were unrelated to her to the exclusion of a few of the appellants and others with whom she had formerly been more closely associated. There was evidence that she was curious about those who visited her neighbors, would admit visitors only through the rear of her home and enforced a time limit on the visits of a minister. One of the appellants and another neighbor, who had formerly been close associates stated she ordered them ont of her home bnt the former conceded that her consin knew the value and extent of her property during 1953 and part of 1954.
Appellees produced several business and professional people including a merchant, a druggist, a lawyer, a real estate agent and bank officials who testified concerning their dealings with Miss McCráy and to other facts indicating that she had sufficient mental capacity to execute the deeds in question. In the numerous transactions she had with them before and after execution of the deeds they considered her to be thoroughly competent. The notary and others present at the time of the execution of the two deeds observed no indication of mental incompetence on her part.
Appellants failed to establish their contention either that the consideration for the two deeds was inadequate or that Miss McCray actually did not receive it. The evidence is overwhelming to the effect that $15,000 was more than a fair price for the 100-acre tract and those present when the deed was executed stated that it was paid to Miss McCray in cash just as she had demanded. While more than $500 might have been obtained for the store building, it was in a bad state of repair, renting for only $15.00 per month, and the price paid cannot be said to be shockingly inadequate.
Since the sanity and mental capacity of Miss McCray to make the deeds in question is presumed, the burden rested on the appellants to show her mental incapacity to execute them by a preponderance of the evidence. Gibson v. Gibson, 156 Ark. 528, 246 S. W. 845. As this court said in Pledger v. Birkhead, 156 Ark. 443, 246 S. W. 510: “The familiar principles of law applicable to cases of this kind have often been announced by this court. If the maker of a deed, will, or other instrument has sufficient mental capacity to retain in his memory, without prompting, the extent and condition of his property, and to comprehend how he is disposing of it, and to whom, and upon what considera tion, then he possesses sufficient mental capacity to execute such instrument. Sufficient mental ability to exercise a reasonable judgment concerning these matters in protecting his own interest in dealing with another is all the law requires. If a person has such mental capacity, then, in the absence of fraud, duress, or undue influence, mental weakness, whether produced by old age or through physical infirmities, will not invalidate an instrument executed by him. McCulloch v. Campbell, 49 Ark. 367; Seawell v. Durst, 70 Ark. 166; Taylor v. McClintock, 87 Ark. 243-247; McIlroy v. Tucker, 115 Ark. 430.”
Justice Hast, speaking for the court, in Bilyeu v. Wood, 169 Ark. 1181, 278 S. W. 48, stated the rule this way: “To invalidate a deed on the ground of the grant- or’s mental incapacity, the proof must show that the grantor was incapacitated from intelligently comprehending and acting upon the affair out of which the transaction grew, and that he did not intelligently understand and comprehend the nature and consequences of his act. In other words, the mental capacity at the time of signing a deed sufficient to comprehend the nature of the transaction is the standard fixed by the law for determining the mental competency of the person signing the deed.” See also, Atwood v. Ballard, 172 Ark. 176, 287 S. W. 1001; Sharp v. Oates, 178 Ark. 983, 13 S. W. 2d 15; Culling v. Webb, 208 Ark. 631, 187 S. W. 2d 173; Petree v. Petree, 211 Ark. 654, 201 S. W. 2d 1009.
While we must view this highly conflicting and sharply disputed evidence from the printed page, the chancellor had the advantage of observing most of the witnesses as they testified. After carefully considering all the testimony of these witnesses and the probable bias or prejudice that might exist on account of the relationship or interest of some of them, along with all other matters brought into this record, we cannot say the chancellor decided the issues against the preponderance of the evidence. This conclusion renders it unnecessary to determine whether appellants were estopped to maintain the instant suit by reason of having previ ously elected to maintain and make a substantial settle-1 ment of a separate suit against others for the $15,000 purchase price of the 100-acre tract. We have also carefully considered appellants’ objections to the admission of certain evidence and find no error in that respect. The decree is accordingly affirmed. | [
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Sam Robinson, Associate Justice.
This suit was filed by appellants against appellees to foreclose a real estate mortgage. Appellees did not file an answer. A default judgment was rendered and the court ordered the property sold to satisfy the- judgment.' After the expiration of the term of court at which the judgment was rendered and the sale ordered, appellees filed a petition asking that the sale be postponed. The court granted the petition, and the mortgagees have appealed, contending that the effect of the court’s action in staying the sale is to set aside the judgment rendered at the previous term of court; that the petition to stay the sale asserts no valid grounds for setting aside the decree of foreclosure and that the court is therefore without jurisdiction to make an order which in effect nullifies the foreclosure decree.
The petition to stay the sale was filed on May 6, 1957, and alleges that the decree was entered on April 4th and that the sale under the decree was set for May 8th. The petitioners further allege that they are unable to pay all of the past due installments on their note secured by the mortgage, but that they can pay $100 per month until such time as the past due installments have been paid in full.
On May 7th the court issued an order staying the sale until June 26th. On May -9th appellants filed a petition asking that the court set aside its order staying the sale. On May 31st there was a hearing on the matter of postponing the sale, and -the court ordered that appellees pay into the registry of the court all -past due monthly payments which became delinquent prior to the rendition of the decree and that in the event the mortgagors failed to make such payment into the registry of the court, the sale should he held on June 26th. On-June 25th the court made an order, reciting that the appel-lees had paid into the registry of the court all the ar-rearages on the notes secured by the mortgage, plus interest and costs, totalling $381.96, and the court ordered that the sale he postponed until the further orders of the court.
Undoubtedly it was not the intention of the court to require the mortgagors to pay into the registry of the court all of the arrearages and then permit the property to be sold to satisfy the judgment. In the decree the court had given effect to the acceleration clause in the mortgage, and to permit the mortgagors to make the monthly payments and thereby stay the sale indefinitely would amount to a modification of the judgment of foreclosure, and the court does not have jurisdiction to do this after the term has expired.
This does not mean that the court does not have jurisdiction to stay a sale when such action does not amount to the setting aside of the decree; Here no evidence was introduced to show the inexpediency of holding the sale as directed in the decree of foreclosure.
Appellees concede that they have no meritorious defense ; they simply want an opportunity to catch up on the delinquent monthly payments and then make further payments in accordance with the terms of the note and mortgage. Though it is understandable that appellees would like to reinstate their contract in a satisfactory manner, it cannot be done by ignoring the law that a court cannot set aside or amend a judgment after the term has expired except on grounds which are not as serted in the case at bar. In Stewart-Morris Implement Co. v. Koenig, 226 Ark. 1001, 1004, 295 S. W. 2d 352, 353, the court quoted as follows from Raymond v. Young, 211 Ark. 577, 581, 201 S. W. 2d 583, 585: “ £The court lost control over the decree of July 23, 1946 with the ending of the April, 1946, term of court, and was without authority to vacate that decree at a subsequent term except in the manner, and upon the grounds, specified in Section 8246 and 8248, Pope’s Digest (Ark. Stats. § 29-506 and § 29-508), or by bill of review under the chancery practice. Many other cases could be cited to the same effect’.”
Reversed, with directions to proceed in a manner not inconsistent with this opinion.
George Rose Smith, J., not participating. | [
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En. F. McFaddiN, Associate Justice.
This appeal is a continuation of the litigation between the Lee-Phillips Drainage District and the Beaver'Bayou Drainage District, and is the third appearance of these Districts in the present controversy.
In Beaver Bayou Drainage District v. Lee-Phillips Drainage District, 221 Ark. 550, 254 S. W. 2d 465, we held that there would have to be a plenary suit between the two Districts to determine the proportion of the amounts to be paid by each District for the cleaning out of Lick Creek. The plenary suit was filed; a decree was rendered ; and we found it necessary to reverse the decree in Lee-Phillips Drainage District v. Beaver Bayou Drain age District, 226 Ark. 105, 289 S. W. 2d 192. All the background information of the litigation is contained in the opinion written by Chief Justice Lee Seamstek.
When the case went back to the Chancery Court on remand the Commissioners of the two Districts (Lee-Phillips and Beaver Bayou) had a private meeting to try to settle the differences in the absence of their attorneys. An agreement (copied in extenso in the decree of June 18, 1957) was drawn by one of the Commissioners and signed by all of the Commissioners of both Districts; and they hoped that their litigation had ended. But when the attorneys studied the agreement, they found certain liabilities and rights thought to be undefined. Thereupon, the Chancery Court was again asked to pass on the rights and liabilities of the two Districts; and the following decree was entered:
“On this 18th day of June, 1957, this cause coming on to be heard on the Mandate of the Supreme Court of Arkansas, heretofore filed on the 8th day of May, 1956, plaintiffs appearing by their Attorneys, Burke, Moore and Burke and C. B. Roscopf, and the defendants appearing by their Attorneys, Daggett & Daggett, and this cause is submitted to the Court upon the Mandate, the Contract entered into by and between the Commissioners of the two Districts, dated December 18, 1956, and the testimony taken in open court of Lonn Mann, J. W. Yancey and E. G. Miles for and in behalf of the defendants, and the testimony taken in open court of George Brandon and Sam Scott for and in behalf of the plaintiffs, and the Court being well and sufficiently advised as to all matters of law and fact arising herein, does hereby Decree:
“1. That the injunction heretofore issued by this Court by Decree entered on the 27th day of September, 1955, he and the same is hereby dissolved.
“2. That since the issuance of the Mandate by the Supreme Court of the State of Arkansas, the Commissioners of the two Districts, in order to solve their problems and to avoid further litigation, did on the 18th day of December, 1956, enter into a written Contract, which is in the words and figures as follows, to-wit:
“ ‘AGREEMENT
“ ‘We, the members of the Beaver Bayou Drainage District and the Lee-Phillips Drainage District Board of Directors have arrived at the following agreement to be reduced to proper form by the Attorneys of the respective Districts.
“ ‘The Beaver Bayou Drainage District agrees to pay to the Lee-Phillips Drainage District, the taxes on the taxable acreage (approximately 3,200 to 3,500 acres) which drains in to the Lick Creek canals. Such taxes shall be paid by the Treasurer of the Beaver Bayou Drainage District on the taxable acreage drained in the Lick Creek Canal between the first day of October and the first day of November of each year. The amount of this tax to be the same per acre as that levied on lands in the Lee-Phillips Drainage District.
“ ‘It is expressly agreed and understood that the grubbing or ditching done, be started at the mouth of Lick Creek. This Agreement is entered into not only for the present clean-out or ditching, but is to continue in effect in the future for maintenance purposes or any improvements. As the taxes are increased or decreased in the Lee-Phillips Drainage District, they will be likewise increased or decreased in the Beaver Bayou Drainage District.
“ ‘We, the Directors of the Beaver Bayou Drainage District agree to obtain the right-of-way perinits for the grubbing or ditching of that part of Lick Creek which is situated in the Beaver Bayou Drainage District, and the Directors of the Lee-Phillips Drainage District are to obtain their own right-of-way permits for lands in their own District.
“ ‘In its inception, the idea is to grub the entire canal from the mouth to the upper end, to see if this will grant the necessary drainage. Should this be inadequate, it is understood and agreed that further improvements will be done immediately to alleviate this condition.
“ ‘Dated at Helena, Arkansas, on this the 18th day of December, 1956.
“‘APPROVED:
LEE-PHILLIPS DRAINAG-E DISTRICT
By: /s/ E. G. Miles
By: /s/ Lon Mann
By: /s/ Jas. W. Yancey
APPROVED:
BEAVER BAYOU DRAINAGE DISTRICT
By: /s/ George Brandon
By: /s/ Sam Scott
By: /s/ E. V. Wolfe
By: /s/ H. G. Stephens, Jr.
By: /s/ J. C. Campbell, Jr.’
“3. That the Contract entered into by the Commissioners of the respective Districts supersedes and supplants the Mandate heretofore issued by the Supreme Court of Arkansas.
“4. That the Contract entered into by the Commissioners of the respective Districts, above referred to, shall run for an indefinite period of time and not for the three years hereinafter referred to.
“5. The work to be done under the agreement and this Decree shall be done or contracted for by the Com missioners of the Lee-Phillips Drainage District. The main purpose of the agreement is to make it, possible to grab out (which means to clean ont) the ditches of both Districts, beginning at the month of Big Creek and con-tinning to the npper end of the Lee-Phillips District. If snch action grants the necessary drainage, then the Lee-Phillips District shall take steps to maintain and preserve snch condition, bnt if the results prove to be inadequate, further improvements will be done immediately to provide necessary drainage.
“6. There are 3,500 acres, of taxable land situated in the Beaver Bayou Drainage District that drain into that portion of Lick Creek canal situated within the Beaver Bayou Drainage District into which the, Lee-Phillips Drainage District canal empties. The Lee-Phillips Drainage District has collected an assessment of 3 per cent on the benefits of its District, for the. year 1956, and has levied a like assessment for the years 1957 and 1958. The Beaver Bayou Drainage District is hereby directed to pay to the Commissioners of Lee-Phillips Drainage District, in consideration of their undertaking and performing the work described in paragraph 5 hereof, thirty cents (30c) per acre for the 3,500 acres drained by its Lick Creek ditch for each of the years 1956, 1957 and 1958, and for such other period of time as may be neces- • sary to provide adequate drainage; provided, however, should the Lee-Phillips Drainage District assessment be raised or lowered from 3 per cent, then the Beaver Bayou Drainage District payment shall be increased or decreased accordingly at the rate of 10c. per acre for each 1 per cent increase or decrease In the levy of the Lee-Phillips District. Should the Lee-Phillips District levy no assessment, then no payment shall be due from the Beaver Bayou District for that respective year. The payments to be made by Beaver Bayou Drainage District to the Lee-Phillips Drainage District shall be paid annually on or before November 1st of each year, with the 1956 payment of $1,050.00 to be paid immediately upon the execution of a contract by the Lee-Phillips Drainage District.
“7. The cost of all present and fntnre improvements to afford necessary drainage shall be borne by the respective Districts on the basis above set ont.
“8. That the necessary rights-of-way are to be acquired at the expense of the respective Districts.
“9. That this Decree shall be binding upon the present Commissioners of the respective Districts and their successors.
“/s/ FORD SMITH, CHANCELLOR.”
The Commissioners of the Lee-Phillips Drainage District (appellants here) gave notice of appeal which says: “Notice is hereby given that . . . defendants above named hereby appeal to the Supreme Court of Arkansas from that portion of the decree . . . that requires defendants to pay for future improvements on the same basis as for the initial clearing-out project.”
At the outset we emphasize that the appellants appealed from only that portion of the decree “. . . that requires defendants to pay for future improvements on the same basis as for the initial clearing-out project.” Section 3 of Act 555 of 1953 is taken from Federal Rule 73(b), and concerns the notice of appeal. Our Statute says: “The notice of appeal shall specify the parties taking the appeal, and shall designate the judgment, decree, or part thereof appealed from . . .” (Italics our own.) In this case, the only portion of the decree from which the appellants appealed is the seventh paragraph of the decree which requires the defendants to pay all future improvements on the same basis as for the initial clearing-out project. "We consider only that one point because the notice of appeal was limited to that one point.
Coming then to the one issue: it will he observed that paragraph numbered 7 of the Chancery decree here involved said: “The cost of all present and future improvements to afford necessary drainage shall be borne by the respective Districts on the basis above set out.” "Was that provision within the agreement made by the parties ? The agreement recites: ‘ ‘ This agreement is entered into not only for the present clean-out or ditching, but is to continue in effect in the future for maintenance purposes or any improvements. As the taxes are increased or decreased in the Lee-Phillips Drainage District, they will be likewise increased or decreased in the Beaver Bayou Drainage District.” This quoted language from the agreement between the two Districts, clearly supports the paragraph No. 7 in the decree made by the Chancery Court, which paragraph reads: “The cost of all present and future improvements to afford necessary drainage shall be borne by the respective Districts on the basis above set out.”
Finding no error, the decree is affirmed.
The opinion concluded with the following paragraphs: “We find that the trial court erred in its method of arriving at the respective cost to the parties on an acreage basis. The result under this method would require the appellant district to pay 93% of the cost of cleaning out the five and three-fourths miles of Lick Creek located in the appel-lee drainage district. The appellee district should be responsible for the costs of providing drainage for the natural flow of water through the Lick Creek Canal and the appellant district should be responsible for the costs that would be necessary for providing additional drainage for the extra flow of water through the canal that would be caused by the proposed improvement of its drainage district. The trial court will permit the parties to take additional evidence so that the cost to the parties may be pro-rated in accordance with the provisions set out in this opinion.”
Two cases involving appeal on a particular point are: Carter v. Powell, 104 Fed. 2d 428; and Chlupsa, v. Posvic, 113 Fed. 2d 375.
Should we consider any of the other points argued in the briefs, then the appellants would be extremely hard pressed to overcome ap-pellees’ motion to dismiss the appeal. The motion is based on a showing that the appellants have accepted some of the benefits of the decree. In their response to the motion to dismiss, the appellants pointed out that the only portion of the decree from which they were appealing was the point that required the defendants to pay for future improvements on the same basis as the initial clearing-out project. | [
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