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MiNok W. Millwee, Associate Justice.
Appellants filed this suit on February 4, 1957, to abate a private nuisance allegedly resulting from the operation of a battery of four charcoal kilns by appellees near the town of Cotter, Arkansas. On February 5, 1957, appellees filed a motion for continuance of a hearing on appellants’ motion for a temporary restraining order which had been originally set for February 7, 1957, and said hearing was continued by agreement of the parties until February 13, 1957. Following such hearing a temporary order was entered restraining the operation of three of the kilns but permitting the operation of one of them pending a further hearing on the merits set for March 6, 1957.
At the conclusion of the final hearing the chancellor filed an opinion as a basis for a decree enjoining appellees from operating any of the kilns during the period from December 15 to March 15, and further restraining them from operating more than two of said kilns at any one time during the other nine months of the year. The court retained jurisdiction for the purpose of modification or vacation of the decree upon proper showing of a change in circumstances warranting such action.
In the written opinion the chancellor found as follows: “That the defendants, T. J. McCabe and Charles Kelley, erected four charcoal kilns upon a tract of land near the town of Cotter, in Baxter County, Arkansas, and near United States Highway 62, and that they started producing charcoal from said kilns about the first of January, 1957; that in the process of converting the green hardwood into charcoal there was involved a burning of the green wood under controlled conditions as to draft and other factors, and this process resulted in a large amount of smoke and volatile vapors being discharged from the kilns into the air; that the petitioners live in the vicinity near said charcoal kilns, and the smoke and volatile vapors discharged from said kilns frequently enveloped the atmosphere about the homes of the various petitioners and caused serious and substantial discomfort and annoyance to the petitioners; that after the preliminary order was entered closing all but one of the charcoal kilns, some discomfort and annoyance from smoke and vapors emanating from the one kiln was experienced by the petitioners, but the degree of annoyance and discomfort was not as great as had been previously experienced.
“The Court finds that the smoke and vapor from the kilns tends to settle and remain near the surface of the ground during cloudy, damp and overcast weather conditions and that when the weather is fair and the air is light, there is a tendency for the smoke and vapors to dissipate with little or no discomfort to the people living in the vicinity of the kilns. The Court takes judicial notice of the fact that the period of year beginning with December 15, and ending March 15 is ordinarily attended with considerable cloudy and overcast weather and that the air during such period is quite often heavy and damp.
“The Court finds that these charcoal kilns cannot satisfactorily be operated under present known or proposed operating conditions without resulting in actual and substantial physical discomfort and annoyance to the petitioners during the period from December 15, to March 15, both dates inclusive. The Court believes and finds, however, that during the remainder of the year the kilns can be operated without substantial physical discomfort or annoyance to the petitioners, provided that not more than two of the kilns are permitted to be burning at any one time. The Court finds that the operation of the kilns from December 15 to March 15, inclusive, constitutes a private puisance in violation of the rights of the petitioners, and therefore, same should be restrained and abated during said period of time; and that the operation of the kilns during the remainder of the year shall be a private nuisance to the petitioners, unless such operation is restricted so that only two of the kilns shall be permitted to burn at any one time.”
For reversal of the decree based on said findings appellants first contend the court erred in denying their motion for default judgment because of appellees failure to answer within the time required by Sec. 2 of Act 49 of 1955 (Ark. Stats. Sec. 27-1135). It is true that in Walden v. Metzler, 227 Ark. 782, 301 S. W. 2d 432, we held the act mandatory in its requirement that the “defense” to a complaint be filed within 20 days after service of summons. But we have refused to construe the word “defense” as being limited to an answer going to the merits. Thus in West v. Page, 228 Ark. 13, 305 S. W. 2d 336, we held that a motion to transfer to law constituted a defense to a complaint within the meaning of the statute. In the instant case appellees filed a motion for continuance the day following service of summons when the parties agreed in writing to a continuance until February 13, 1957, when the cause proceeded to a hearing on appellants’ application for a temporary order without protest. There was also testimony to the effect that appellees actually filed their “response” to the petition of appellants on February 13, 1957, but the clerk neglected to make proper notation of such filing. Under these circumstances we cannot say the chancellor erred in refusing to render default judgment against ap-pellees on March 6, 1957.
Appellants also argue the chancellor erred in failing to declare the operation of all four kilns at any time a nuisance which should be abated. This presents a difficult factual issue. Anything that materially and substantially lessens or destroys the use and enjoyment of one’s homestead constitutes a nuisance. Junction City Lumber Co. v. Sharp, 92 Ark. 538, 123 S. W. 370. In numerous cases of this kind we have approved the following statement from the early case of Ross v. Butler, 19 N. J. Eq. 294: “The law takes care that a lawful and useful business shall not be put a stop to on account of every trifling or imaginary annoyance, such as may offend the taste or disturb the nerves of a fastidious or overrefined person. But, on the other hand, it does not allow any one, whatever his circumstances or conditions may be, to be driven from his home, or to be compelled to live in it in positive discomfort, although caused by a lawful and useful business carried on in his vicinity.” See also, Durfey v. Thalheimer, 85 Ark. 544, 109 S. W. 519; Terrell v. Wright, 87 Ark. 213, 112 S. W. 211; Thiel v. Cernin, 224 Ark. 854, 276 S. W. 2d 677. The usual rule applied in cases like this is that if the plant involved is not a nuisance per se, then the injunction should not restrain the entire operation of the plant, but only that part of the operation that created the nuisance. Ozark Bi-Products, Inc. v. Bohannon, 224 Ark. 17, 271 S. W. 2d 354.
Where the thing complained of is not a nuisance per se, the burden is upon the complaining party to show that it is a nuisance in fact by clear and satisfactory evidence. Lonoke v. Chicago R. I. and P. Ry. Co., 92 Ark. 546, 123 S. W. 395. The testimony of the numerous Avitnesses who testified on this question in the case at bar is highly conflicting and pretty evenly balanced. The eleven appellants live within distances ranging from 306 to 1106 feet of the kilns in question. Some of the appellants and others in their behalf testified that the smoke and vapor from the kilns had an unpleasant and offensive odor, burned or irritated the nose or throat, interfered with sleep and Avas annoying. Other residents and employees in the area and others Avho resided much closer to other plants identically operated testified just to the contrary and stated that the smoke and vapors were non-irritating, inoffensive, harmless and the odors in fact pleasant. Under this highly conflicting evidence we cannot say the chancellor’s findings are against the preponderance of the evidence. Appellants are of course free at any time to move for modification of the injunction upon proper showing.
Nor do we agree with appellants’ further contention that the court erred in admitting testimony regarding the effects of similar, if not identical, operations of other charcoal kilns in North Arkansas and South Mis souri. The kilns involved here had only been in operation about a month when this suit was filed and we are unwilling to say that evidence of the experience of others in similar operations in nearby communities is without probative value. See Falcon Zinc Company v. Flippin, 171 Ark. 1151, 287 S. W. 394, where similar proof was held competent on the question whether it was possible to operate a smelter without certain alleged injuries to plaintiff’s farm.
The decree is affirmed. | [
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George Rose Smith, J.
TMs is a suit by tbe appellant upon a $2,000 fire insurance policy covering two dwelling bouses and certain furniture. Tbe policy was issued for a term of three years, beginning May 30, 1953, and expiring May 30, 1956. Tbe property was destroyed by fire on June 6, 1956 — seven days after tbe expiration of tbe contract. At tbe close of tbe plaintiff’s proof tbe trial court directed a verdict for tbe insurance company and for its agent, James Cole, wbo was joined as a defendant in the case.
It is tbe plaintiff’s contention that her proof presented an issue of fact as to whether tbe policy was still in effect on tbe day of tbe fire. Tbe complaint alleges, and the plaintiff testified, that in selling tbe policy tbe insurer’s agent, Cole, informed her that she would have a thirty-day period of grace in which to pay tbe premiums. Upon this testimony it is argued that tbe jury might have found that tbe policy was in force when tbe fire took place.
There are two answers to this argument. First, tbe written contract does not provide tbe asserted grace period, and tbe burden was on tbe plaintiff to show that the insurer’s soliciting agent was authorized to change tbe terms of tbe agreement. American Ins. Co. v. Hornbarger, 85 Ark. 337, 108 S. W. 213; Sadler v. Fireman’s Fund Ins. Co., 185 Ark. 480, 47 S. W. 2d 1086. That burden of proof was not met. Second, by tbe terms of tbe policy a premium of $50 was payable annually on May 30 for a term of three years beginning in 1953. Even if there had been a grace period it could have up-plied only to the premiums that were due in 1953, 1954, and 1955. Since no premium was due when the contract expired on May 30, 1956, the existence of a grace period on that date is immaterial.
One of the plaintiff’s witnesses testified that he once had a policy with the defendant company and that he was permitted to pay his premiums as much as two weeks after their due date. This witness was unable to say whether the extension of time was granted by Cole or by the company, nor was any effort made to show that the witness’s policy was similar to the one sued upon. It is clear that this testimony did not make a ease for the jury. That the insurance company accepted the belated payment of premiums actually due, under another policy, has no tendency to show that the contract in issue was still in force when by its terms it had already expired and when by its terms no further premiums were even due.
After the fire the company, upon being notified by its local agent of the loss, wrote to the plaintiff and disclaimed liability on the ground that the policy had lapsed. In this letter the insurer’s assistant manager made this statement: “I am sure you will agree as a general rule your insurance representative is on the lookout for your well being, since James [Cole] stated he made one or two calls to your place to collect the premium right after the policy lapsed.” It is earnestly insisted that the insurer’s attempt to collect a premium after the lapse of the policy would have justified the jury in finding that the contract was still in effect when the loss occurred.
This contention cannot be sustained. There is authority for the view that an insurer, by demanding payment of an overdue premium, waives the right to declare a forfeiture on the ground that the premium in question was not paid when due. Other decisions take the position that the insurer’s conduct does not constitute a waiver. In discussing the eases on both sides of this question Professor Williston has expressed his preference for the latter view. Williston on Contracts, § 761. We need not explore this controversy, for the case at bar does not involve the essential element of a forfeiture. Here the appellee issued a policy insuring the property for a term of three years, on condition that the appellant pay the premium in advance for each year. Had the appellant failed to pay one of the premiums during the life of the contract, and had the insurer nevertheless demanded payment, it would have been necessary for us to say whether the company’s attempt to collect the premium amounted to a waiver of its right to declare the policy canceled for the remainder of its term. But that is not the case before us. Here the appellant paid each premium as it was due and was protected by the policy until it expired by its own terms on May 30, 1956. After that date there was no contractual relationship between the parties, and the insurer obviously could not waive its right to declare a forfeiture, for there was nothing left to be forfeited.
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Ed. F. McFaddik, Associate Justice.
The appellant filed this action against the City of North Little Rock (hereinafter called “City”) and the North Little Rock Boys’ Club (hereinafter called “Boys’ Club”), seeking to recover damages for injuries sustained by Floyd Cabbiness in tbe swimming pool owned by tbe City and operated by tbe Boys’ Club. Wben tbe Trial Court sustained tbe defendants’ demurrers to tbe complaint, tbe plaintiff elected to stand on tbe complaint and final judgment of dismissal was entered. Tbis appeal ensued. Tbe question presented is whether, under tbe alleged facts, either of tbe defendants is liable for tbe injuries sustained by Floyd Cabbiness in tbe said swimming pool.
Tbe complaint and exhibits contain tbe following allegations: (a) that at all times involved, tbe City was a city of tbe first class; and tbe Boys’ Club was a benevolent corporation; (b) that in 1938 the City constructed on its property a building in which was a swimming pool, with diving boards, dressing rooms, etc.; (c) that by written instrument in 1938 tbe City leased tbe said building, swimming pool, dressing rooms, etc. to tbe Boys’ Club; and the relationship between tbe City and tbe Boys’ Club was and is that of Lessor and Lessee; (d) that ever since 1938 tbe Boys’ Club, with knowledge of tbe City, has opened tbe swimming pool to tbe general public on general admission charges; (e) that on June 21, 1954, Floyd Cabbiness, a member of tbe general public and not a member of tbe Boys’ Club, paid 25e admission for tbe privilege of swimming in tbe pool and became a paid patron; and (f) that Floyd Cabbiness received serious and permanent injuries wben, in diving, bis bead struck the bottom of tbe swimming pool .
As the basis of liability of the defendants the complaint contained the following paragraph:
“The defendant City leased the pool and diving board to the Defendant Clnb when it knew, or in the exercise of ordinary care should have known, that the constructing of such a high diving spring-board over such a shallow pool of water was imminently and inherently dangerous, and made the use of said diving board unsafe and dangerous to the people lawfully using the same, wrongfully exposed such users to injury, and the same was at all times a nuisance; that there were no markers in, on, or around the pool showing the shallowness of the water; there were no notices or warnings restricting the use of the diving board, and no warning or notice was posted to indicate the shallowness of the water beneath the diving board; that the Defendant City constructed the swimming pool and diving board, had actual notice and knowledge of the use of the premises by the Defendant Club; it had knowledge of the imminently and inherently dangerous condition then existing at the time of the execution of the lease agreement, the conditions then existing constituting a nuisance, and the Defendant City did nothing thereafter to remove or correct the nuisance it had constructed, and by its lease authorized the Defendant Club to maintain; the Defendant City knew, or in the exercise of ordinary care should have known, that the high diving spring-board over the shallow water was imminently and inherently dangerous, and that the lawful use of same by patrons wrongfully exposed such patrons to injury, and the same was at all times a nuisance. That the injuries to the plaintiff were proximately caused by the creation and maintenance of said nuisance by the Defendant City as Lessor and the Defendant Club as Lessee.”
As heretofore mentioned, the lease between the City and the Boys’ Club was made a part of the complaint. Germane portions of the lease are: that the City leased the premises to the Boys’ Club, agreed to furnish free all necessary electric current, and agreed to maintain fire, hail, and tornado insurance on the building; and that the Boys’ Club agreed to use said building and premises “for legitimate and proper boys’ club purposes, it being understood and agreed tbat the said Boys’ Club shall during the term hereof, have the right to make and collect charges for use of the swimming pool, PROVIDED that any and all sums derived from said charges shall be used for boys’ club purposes.” The lease demonstrates that the City received nothing from the use of the property, and that the City was merely attempting to make the property available to the general public.
I. The Allegations As To Nuisance. We have heretofore copied the germane portions of the complaint as to liability. Appellant lays great stress on the allegations in the complaint to the effect that the City had constructed and leased to the Boys’ Club a nuisance, and that the Boys’ Club had maintained such nuisance. Appellant claims that maintaining a nuisance is entirely different from an act of negligence. Of course, there is a distinction between nuisance and negligence. See 65 C. J. S. 316; 66 C. J. S. 736; and 66 C. J. S. 751. But when we view the situation realistically in the ease at bar, there are really questions of (a) whether the City was negligent in constructing the pool, and (b) whether the Boys’ Club was negligent in failing to provide warnings as to the depth of the pool'. Absent, as here, any eminent domain question of damage to property by the construction of a nuisance, the proper procedure for an aggrieved person is to sue to abate the nuisance, rather than to sue the municipality in tort. In Jones v. Sewer Dist. No. 3 of Rogers, 119 Ark. 166, 177 S. W. 888, we said: “As we have already seen, this Court has uniformly held that neither municipal corporations nor local improvement districts, nor their officers, may be sued at law for tort; but it does not follow that in a proper case they may not be enjoined from creating a nuisance or be required to abate one already created by them .”
In Holt v. Texarkana, 168 Ark. 847, 271 S. W. 690, there was an effort to hold the City of Texarkana liable for failure to keep a viaduct in repair. The Court made reference to our general municipal corporation statute, which is now § 19-3801 Ark. Stats.: ‘ ‘ The City Council shall have the care, supervision and control of all the public highways, bridges, streets, alleys, public squares and commons, within the City; and shall cause the same to be kept open and in repair and free from nuisance.” (Italics our own.) This Court held that under such statute, the City of Texarkana was not liable in tort for failure to keep the viaduct in repair. It is also well to note that in the same case, the Court cited the case of Fordyce v. Women’s Christian National Library Assn., 79 Ark. 550, 96 S. W. 155, which was a case involving a benevolent corporation such as the Boys’ Club in the case at bar.
So we conclude that the basic question in the case at bar is whether either the City, as a municipal corporation, or the Boys’ Club, as a charitable corporation, is exempt from tort liability; and on that basis we proceed to further consideration.
II. The Case Against The City. Both sides argue the case at bar as though § 19-3601 et seq. Ark. Stats, contained the applicable law. The said sections are from Act No. 291 of 1941 and amendatory acts, and the lease contract here involved was executed in 1938; but the enactment of the 1941 and subsequent legislation constitutes sovereign recognition of the right of municipal corporations to have parks and swimming pools.
Really, the basic question is whether the City, in constructing and maintaining the swimming pool, was acting in a governmental capacity or in a proprietary capacity. We have a number of cases in Arkansas on the distinction between governmental capacity and the proprietary capacity of municipalities. Some of these cases are: Town of Searcy v. Yarnell, 47 Ark. 269, 1 S. W. 319; Fussell-Graham-Alderson Co. v. Forrest City, 145 Ark. 375, 224 S. W. 745; City of Little Rock v. Holland, 184 Ark. 381, 42 S. W. 2d 383; Yoes v. City of Fort Smith, 207 Ark. 694, 182 S. W. 2d 683; Ark. Valley Compress & Warehouse Co. v. Morgan, 217 Ark. 161, 229 S. W. 2d 133; and Kirksey v. City of Fort Smith, 227 Ark. 630, 300 S. W. 2d 257.
The general rule in Arkansas is that when a City is acting in its governmental capacity, there is no liability in sneh a case as this one. According to the complaint and the exhibits in this case, the City of North Little Eock has never received any revenue from the bnilding, the swimming pool, diving board, etc. The City has owned the property, furnished the electric current, kept up the fire, hail, and tornado insurance; has allowed the Boys’ Club to receive all admission money charged, and has required the Boys’ Club to keep the property in a state of good preservation and repair. When the City received no revenue for its property and is letting it be used by the general public — and that is what the complaint in this case shows — then the City, in having a swimming pool, is acting in a governmental capacity.
In the case of Yoes v. City of Ft. Smith, 207 Ark. 694, 182 S. W. 2d 683, we discussed whether the City was acting in a proprietary or a governmental capacity in operating a swimming pool; and we said:
“In Hannon v. Waterbury, 106 Conn. 13, 136 Atl. 876, 57 A. L. R. 402, the Supreme Court of Errors of the State of Connecticut held that a municipality was acting in its governmental capacity in operating a swimming pool; and the court said: ‘Public parks, playgrounds, swimming pools, and public baths or bath houses, are all examples of municipal functions undertaken for the public benefit, and unless maintained for the corporate profit of the municipality, are within the rule of governmental immunity. Bolster v. Lawrence, 225 Mass. 387, L. R. A. 1917B, 1285, 114 N. E. 722. The charge of a small fee covering a part of the cost of the maintenance of the pool in paying a supervisor, instruc tors, janitors, and the like, while the municipality furnished the buildings, the swimming pool, the apparatus and equipment in connection therewith, the coal, electricity, water, chemicals, and other necessaries for the maintenance of the pool, did not except the maintenance of the pool from the rule of governmental immunity. The city was not deriving a profit from this small fee, the charge was a mere incident of the public service rendered in the performance of a governmental duty. ’ ’
In the more recent case of Kirksey v. City of Fort Smith, 227 Ark. 630, 300 S. W. 2d 257, we had before us a case as to the liability of the City for the operation and maintenance of the municipal airport; and held that the City was immune from tort liability because it was acting in a governmental capacity and not in a proprietary capacity .
There is no claim here that the City or the Boys’ Club had any insurance, under Act No. 46 of 1947; so our holding in Aetna Casualty & Surety Co. v. Brashears, 226 Ark. 1017, 297 S. W. 2d 662, has no application. Clearly the City of North Little Rock was acting in a governmental capacity in this case; and, as such, is not liable for the unfortunate injuries sustained by Floyd Cabbiness. Therefore, the Trial Court correctly sustained the demurrer of the City.
III. The Case Against The Boys’ Club. We come next to the question of whether the Trial Court was correct in sustaining the demurrer of the Boys’ Club; and that involves the immunity of a charitable corporation from tort liability. The complaint, together with the exhibit, alleges that the North Little Rock Boys’ Club was and is a benevolent corporation, organized and existing under tbe laws of tbe State of Arkansas.
In tbe oral argument, learned counsel for appellant conceded with becoming candor that tbe Boys’ Club was without surplus funds'; that our bolding in Crossett Health Center v. Croswell, 221 Ark. 874, 256 S. W. 2d 548, afforded appellant no relief; and that in order to bold tbe Boys ’ Club liable in this case it would be necessary to over-rule our holdings regarding the immunity of charitable corporations from tort liability , as reflected by tbe cases of Women’s Christian National Library Assn. v. Fordyce, 79 Ark. 532, 86 S. W. 417; and Fordyce v. Women’s Christian National Library Assn., 79 Ark. 550, 96 S. W. 155, 7 L. R. A. N. S. 485, and tbe many other cases citing and following the Fordyce cases. This we refuse to do.
Tbe Fordyce cases were decided in 1906 and tbe rule of immunity of a charitable corporation from tort liability, as there recognized, has become a rule of property in this State. It is for tbe Legislature, rather than the courts, to effectuate a change, if such is desired. No such legislation has been enacted applying to a corporation such as the Boys’ Club here . We, therefore, affirm the action of the Trial Court in sustaining the demurrer of the Boys’ Club.
Affirmed.
The plaintiff was Floyd Cabbiness, a minor, by his mother and next friend. The complaint alleged the seriousness and the permanent nature of the injuries sustained by Floyd Cabbiness, and prayed judgment against the defendants for $426,400.00.
A copy of the lease was made a part of the complaint.
The complaint alleged that Floyd Cabbiness “dived into the pool from the highest diving board so constructed by the city and maintained by the club for that purpose; his first dive was a ‘swan dive’ which is a shallow dive; he returned to the same diving board and made a ‘jack knife’ dive which is a deep dive, and while so doing, struck his head on the concrete bottom of the pool causing injuries. At the time plaintiff entered the pool there were many other swimmers and bathers in the pool and the water was so turbulent and agitated that the depth of the pool was not discernible.”
In 38 Am. Jur. “Municipal Corporations” 647, it is recognized that some jurisdictions apply the rule of governmental immunity in cases wherein the nuisance was created in connection with the performance of a governmental function. Cases on this point are collected in an annotation in 75 A.L.R. 1196 entitled, “Rule of municipal immunity from liability for acts in performance of governmental functions as applicable in case of personal injury or death as result of a nuisance.”
The U. S. District Court for the Western District of Arkansas, in the case of Handley v. City of Hope, 137 Fed. Supp. 442, had before it the question of the liability of a city for the drowning of a child in a municipal swimming pool. In a well considered opinion the Court quoted at length from Yoes v. City of Fort Smith, supra, and held that the city, was not liable. There is also an annotation in 51 A.L.R. 370 entitled, “Liability of municipality in respect of municipal bath houses, bathing beaches, and swimming pools”. A continuation of the same annotation is found in 57 A.L.R. 406.. Also in 29 A.L.R. 863 there is an annotation on “Liability of municipal corporations for injuries due to conditions in parks”.
On the immunity of charitable corporations from tort liability, we call attention to a few articles. See 6 Ark. Law Review 209; 14 A.L.R. 572; and 25 A.L.R. 2d 29.
In 1940 in the case of Ark. Valley Co-op. Rural Elec. Co. v. Elkins, 200 Ark. 883, 141 S. W. 2d 588, immunity was extended to a rural electric co-operative corporation; and the Legislature thereafter passed the Act that is now § 64-1525 Ark. Stats. By Act No. 46 of 1947, the Legislature allowed certain corporations to purchase insurance policies for the benefit of the public. See Aetna Ins. Co. v. Brashears, 226 Ark. 1017, 297 S. W. 2d 662. | [
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G-eoege Rose Smith, J.
House Bill No. 268 of the 1957 G-eneral Assembly, purporting to change the meth od of selecting jury commissioners in the eighteenth judicial circuit, was vetoed by the Governor two weeks after the legislature had adjourned. This suit was brought by the prosecuting attorney for a decree declaring the attempted veto to have been ineffective and for a writ of mandamus requiring the Secretary of State to enroll the measure as a valid act. It is the plaintiff’s theory that when the legislature adjourned the bill in question had already remained with the Governor for a sufficient time to become a law without his approval. The chancellor upheld the Governor’s veto and accordingly dismissed the complaint.
Article 6, § 15, of the Constitution reads in part: “If any bill shall not be returned by the Governor within five days, Sunday excepted, after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the General Assembly, by their adjournment, prevent its return, in which case it shall become a law, unless he shall file the same, with his objections, in the office of the Secretary of State and give notice thereof by public proclamation within twenty days after such adjournment.”
The decisive question is whether the specified period of five days elapsed between the presentation of this bill to the Governor and the subsequent adjournment of the General Assembly. The Governor’s receipt for the bill shows that it was received by him at 3:27 p.m. on Friday, March 8, which sufficiently establishes this fact. Whaley v. Independence County, 212 Ark. 320, 205 S. W. 2d 861. The legislature adjourned at noon on Thursday, March 14, without any action on the bill having been taken by the Governor.
On these facts the bill did not become a law by reason of the Governor’s failure to return it before the legislative adjournment. It is the settled rule in this state that in the computation of time the first day is to be excluded and the last day included. Peay v. Pulaski County, 103 Ark. 601, 148 S. W. 491; State v. Hunter, 134 Ark. 443, 204 S. W. 308. This method of caleu- lation is not restricted to the field of statutory construction; it has also been followed in the interpretation of the Constitution. Pafford v. Hall, 217 Ark. 734, 233 S. W. 2d 72. In the case at bar we must therefore disregard Friday, March 8, the day on which the Governor received the bill. He was accordingly entitled to act on the measure within the ensuing five days, Sunday excepted, which were Saturday, Monday, Tuesday, Wednesday, and Thursday. Since the legislature adjourned at noon on the fifth day the bill had not yet become a law, and the Governor’s veto power was therefore extended by the terms of the Constitution.
Affirmed. | [
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Ed. F. McFaddin, Associate Justice.
This is another case involving the claim of usury in a conditional sales contract. The Chancery Court found that the contract was usurious, and this appeal ensued.
On November 19, 1953 appellee Lackey purchased a new 1954 Chrysler automobile from Bragg Auto Company of West Memphis by trading in an old car and executing a conditional sales contract for the balance due, plus insurance and interest. Here is a tabulation of the transaction:
1. Cash price of new car.$3,536.25
2. Less Allowance for old car. 1,786.25
3. Balance due in cash. 1,750.00
4. Premium on Collision and Comprehensive Insurance . 229.00
1,979.00
5.“Finance Charge (including insurance not in Item 4)”. 364.88
Total due on contract.$2,343.88
The said amount of $2,343.88 was payable in twenty-three monthly payments of $60.00, and one final payment of $963.88. The conditional sales contract was on a form supplied by appellant, Universal C. I. T. Credit Corporation (hereinafter called “Universal”); and the finance charges and insurance charges were determined from information furnished by Universal. Bragg instantly transferred the conditional sales contract to Universal; so we treat Universal as having been the original lender.
It is clearly established that the $364.88 as the “finance charge,” in line numbered 5 in the tabulation above, is usurious on the $1,979.00 ; and it was likewise conceded by appellee that if $95.75 of the said $364.88 be taken as insurance premiums paid for customer life insurance and limited personal accident insurance, then the remaining $269.13 is not usurious.
1. The Customer Life and Limited Personal Accident Insurance. The first point in the case is, whether Lackey can be legally charged for $95.75 for premiums for the said customer life and limited personal accident insurance. Lackey admitted signing the contract; bnt he testified that he never agreed to take any such life and accident insurance and would not have taken it if he had been told about it. He testified that he never received the life and accident insurance policies; and contended that the $95.75 was a cloak for usury.
On the other hand, appellant established: (a) that Lackey signed an instrument requesting the customer life insurance and limited personal accident insurance; and (b) that Universal paid the premiums on these policies in the total amount of $95.75. The premium on the customer life insurance was $93.75 for the 24 months of the contract, and the premium on the limited personal accident insurance was $2.00 for the 24 months of the contract.
(a) The Request for Insurance. There was introduced in evidence the original conditional sales contract signed by Lackey, and in the face of that instrument there was a blocked off section headed in large capital letters: “Insurance Election.” It was separately signed by Lackey; and read: ‘ ‘ Customer elects to include the cost of customer life and limited personal accident insurance in the time balance. ’ ’ It was stated in bold capital letters that the insurance election was not applicable unless signed; and appellee Lackey signed this insurance election as the “person to be insured as above.” Lackey did not deny that he signed the insurance election in addition to signing the conditional sales contract; but he claims that he was in a hurry and did not read what he was signing. That was his fault. In Texas Co. v. Williams, 178 Ark. 1110, 13 S. W. 2d 309, we quoted from Upton v. Tribilcock, 91 U. S. 45, 23 Law. Ed. 203, as follows:
“ ‘It will not do for a man to enter into a contract and, when called upon to respond to its obligations, to say that he did not read it when he signed it, or did not know what it contained. If this were permitted, contracts would not be worth the paper on which they are written. But such is not the law. A contractor must stand by the words of his contract; and, if ho will not read what he signs, he alone is responsible for his omission.’ ” ¡
So, since Lackey did not deny signing the request for insurance and did not establish, that his signature was obtained by fraud, we take it as established that Lackey ordered the customer life and limited personal accident insurance.
(b) The Premiums on the Life ancl Accident Policies. It was established by overwhelming evidence that Universal paid $93.75 as the premium on the life policy, and $2.00 as the premium on the accident policy. Mr. Korn, the executive vice-president of the National Casualty Company, testified that his company had in effect an accident policy insuring Joe Lackey; that the policy was for two years; that the premium was $2.00; and that the Universal C. I. T. Credit Corporation paid the premium on the policy. Mr. Allen, the general manager of the sales department of the Old Republic Life Insurance Company of Chicago, Illinois, testified that his company had in effect a policy insuring the life of Joe Lackey from November 19,1953 to November 19,1955, in the sum of $2,343.88; that the premium on that policy was $93.75; and that Universal C. I. T. Credit Corporation paid the premium on said policy.
Lackey says that he never received the policies; but, even so, the companies testified that they issued them, that they were in effect for the time stated, and that appellant paid out $95.75 as premiums. Appellant’s officers testified — and there is no evidence to dispute it- — ■ that these life insurance and accident insurance policies were optional with a person buying a car, and in no sense compulsory.
II. The Result: No Usury Proved. In this case the appellant has established that it paid out the insurance premiums of $95.75; and it is not shown or intimated that Universal or Bragg received any “kick-back” or commission on the insurance premiums; so there was nothing to be added back from the insurance premiums of $95.75 to the interest charge. When the $95.75 is deducted from the $364.88, the balance is $269.13; and that balance is admitted by appellee to be less than ten per cent per annum.
In Briggs v. Steele, 91 Ark. 458, 121 S. W. 754, this Court, speaking through Mr. Justice Fratjenthal, said of usury:
‘ ‘ To constitute usury, there must either he an agreement between the parties by which the borrower promises to pay, and the lender knowingly receives, a higher rate of interest than the statute allows for the loan or forbearance of money; or such greater rate of interest must be knowingly and intentionally ‘reserved, taken or secured’ for such loan or forbearance. It is essential, in order to establish the plea of usury, that there was a loan or forbearance of money, and that for such forbearance there was an intent or agreement to take unlawful interest, and that such unlawful interest was actually taken or reserved.”
Tested by the above definition, and by our other cases, we conclude that, after deducting the insurance premium of $95.75, Universal did not receive a higher rate of interest than ten per cent per annum: so, there was no usury in this transaction.
III. The Burden of Proof. Even though we find no usury in this particular transaction, we think it well to mention the matter of burden of proof in cases like this one. In Commercial Credit Plan v. Chandler, 218 Ark. 966, 239 S. W. 2d 1009, we said:
“ . . . where one resists payment of a prima facie obligation on the ground that the contract is tainted with usury, such defense must be established by clear and convincing evidence. Baxter v. Jackson, 193 Ark. 996, 104 S. W. 2d 202.”
But in Jones v. Jones, 227 Ark. 836, 301 S. W. 2d 737 (opinion of May 13, 1957), we modified that rule — as to the burden of proof in cases like this one — to some extent by this language:
“When, as here, the lender writes the contract he has the opportunity to put down in black and white an intelligible description, and the exact amount, of every charge that is being added to the principal of the debt. Last week we pointed out that the practice of attaching meaningless labels to such charges weakens the lender’s position when usury is asserted. Whiddon v. Universal C. I. T. Credit Corp., 227 Ark. 824, 301 S. W. 2d 567. The same criticism can he fairly made of a contract that gives the borrower no information at all about the deferred charges being exacted by the lender. In either case the trier of the facts is justified in assuming, until he is convinced by proof to the contrary, that the difference between the principal of the loan and the face amount of the contract represents interest on the debt.”
In short, where there is included with the carrying charges or interest charges some hidden and unitemized item — like the life insurance and accident insurance premiums in this case — then the lender has the burden of explaining in detail such hidden item, or the result will be to take the hidden item as a part of the interest. In the case at bar, the lender (Universal) satisfactorily met this burden by explaining the hidden item, and it was not intimated that Universal or Bragg received any “kickback” or commission for the insurance premiums. So, there was nothing from these items to be added back to the interest charge.
It follows that the decree of the Chancery Court is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
Millwee and Robinson, JJ., dissent.
For some of our more recent cases on usury, in addition to those mentioned herein, see Blalock v. Blalock, 226 Ark. 75, 288 S. W. 2d 327; Whiddon v. Universal C. I. T. Credit Corp., 227 Ark. 824, 301 S. W. 2d 567 (opinion of May 6, 1957); and Griffin v. Murdock, 227 Ark. 1018, 303 S. W. 2d 242 (opinion of June 17, 1957). See also the two articles in 8 Ark. Law Review, being, “The Usury Law of Arkansas,” page 399; and “The Impact of Usury Laws,” page 420.
Appellee admitted that this insurance item was explained to him at the time of signing the contract and that he ordered this particular insurance and thoroughly understood it. The insurance he is here contesting is that included in item numbered 5 in this tabulation.
See Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S. W. 2d 973; and Griffin v. Murdock Acceptance Corp., 227 Ark. 1018, 303 S. W. 2d 242 (opinion of June 17, 1957).
It was testified that this would be interest at 12.185 per cent per annum.
It was testified that the rate of interest under such circumstances would be 8.79 per centner annum. . | [
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Carleton Harris^ Chief Justice.
This is a child custody ease. The child, Lee Irene Wilson, age six, is the daughter of David Lee Wilson,'Jr., and stepdaughter of Sara Marie Wilson, appellants herein. Wilson was divorced from his first wife, mother of the child, in August, 1952, and was given permanent custody of Lee at the time. In November of the same year, Wilson entered military service. While in service, his parents, David Lee Wilson and Bessie Wilson, appellees herein, kept Lee in their home. Wilson, Jr., married his present wife in March, 1955. In September, 1955, the younger Wilson and Sara Marie, his wife, established a home in Memphis, and took the child to such home. Upon being discharged from service, David Wilson, Jr., returned to Tulsa, Oklahoma, to reclaim his job with Douglas Aircraft Company. Appellants had the custody of the child from September, 1955, until May 30, 1957, when appellees brought her to their home in Crawford County for a visit. Appellants sought to take the child on May 31st, but were prohibited from doing so by the elder Wilsons. David, Jr., and Sara Marie filed their petition for writ of ha-beas corpus in the Crawford County Chancery Court, and the writ was issued on June 1, 1957. On June 3rd, the Cause was heard, at the conclusion of which, appellants’ petition was denied, and the court ordered: “* * * that the minor child, Lee Irene Wilson, be given into and remain in the custody of the defendant grandparents, David Lee Wilson, Sr., and Bessie Wilson, for a period of six months and until further orders of court * * * .” From such decree comes this appeal.
Child custody cases are always difficult to determine, and this one is no exception. First, let it be said that there is no proof in the record which reflects in any manner upon the morals or character of any of the litigants herein. The father has a good job, and is well able to take care of Lee, as are appellees. Both the father and appellees seem devoted- to the child. There is evidence, however, that the child has not been properly cared for. The grandmother’s testimony largely related to the physical condition and mental attitude of her granddaughter. Much of her evidence related to matters told her by the little girl, which, of course, was inadmissible. She stated, “The child was all on edge,” and testified that Lee “looked to me like something out of a refugee camp. ' Concentration camp, I’ll get it right. * * * She just looked starved. * * * ITer little ribs sticking out. * * * ” Pictures were exhibited showing the child as she was at the time of leaving the grandparents to go and live with her father and stepmother, and she appeared “plump” and healthy look ing. Mrs. Wilson, Sr., testified she had no intention of taking the baby away from the younger conple, bnt ‘ ‘ just want her eared for.” Her testimony was corroborated by the grandfather, who also stated that Lee had been taken to a baby specialist, and “the tests he made will be in the mail this morning,” and that they were to give her vitamins. Seven neighbors testified. Excerpts from snch testimony are as follows. A1 Meadows testified he did not recognize the child when he saw her . . . “She looked awfnl poor and skinny to me,” although she had been the picture of health when living with the elder Wilsons, approximately a year and a half earlier. Joel Mays, minister, testified that she had changed to an extent, during the year and a half, that he did not recognize her, though he had frequently seen her when she lived with the grandparents. Mrs. Lonnie Simmons: “Well, it seems to me that she looks awful bad.” Virginia Mae Meadows testified that she had known Lee since the latter was a tiny baby. ‘ ‘ She has lost an awfnl lot of weight. Q. Have you seen her body? A. Yes, sir, I did. Q. What condition is it in? A. Very poor, I think. Q. Are you able to count the little things ribs from the back? A: Yes, you are.” Mrs. Juanita Rush also testified she had known the little girl since babyhood and had had occasion to see and observe her frequently. “I didn’t know her when she came in the store Saturday afternoon.” Mrs. Fred Howard . . . known her since she was a baby. “I have seven children of my own, and when I saw Lee yesterday, it nearly broke my heart, because she didn’t look like the same little girl I used to know.” Raymond Johnston: “A year and a half ago, she was a live-wire. She was dancing around like a normal kid. I have got a lawn down there that’s about a four to one slope, and she’d run up and down it like a squirrel, but Sunday she was down there, and she couldn’t hardly get up and down. It was pitiful.”
Appellant, David "Wilson, Jr., stated that the understanding between him and his mother when he took the child was that he and his present wife “could have her as long as she was treated right,” and he testified that Marie treats Lee just like she does their other little girl, born of tbe second marriage, and “There couldn’t be a better wife and mother than she is.” He stated that Lee was not punished in a manner that “would do her any harm in any way.” The stepmother testified that she treated the child the same as her own, and that Lee had plenty to eat. She was critical of the meals given the child by the grandparents. “If she wanted sweets instead of a meal, she had it when she lived with them.” To a charge made by the grandmother, that she had placed the child on bread and water, she stated that it was only for one meal and because Lee was suffering with dysentery. When asked if she had deprived the child of dessert for a week, she replied: “If she sneaked any — she has done it on occasions. Eight after I punished her, she went without one day, without sneaking-some dessert. Find some and try to get into it, and I would say, ‘You don’t get any tomorrow either.’ ” During cross examination she was asked: “ Q. And she was a very plump child when she came to you? A. Yes, she was. Q. She is now very, very thin. Her ribs show. You can count each one of them separately. A. That is not due from not eating, sir. Q. I am not trying to diagnose it, but that is true? A. That’s true, yes.” She stated that Lee had “just recently gotten slim,” but had not been taken to a doctor since school started in September (eight or nine months earlier); at that time she ivas found to be in good physical condition.
The court found:
‘ ‘ In 1955, the little girl was healthy, plump, and full of energy. 18 months later, while David, Jr., and his family lived in Tulsa, Olda., the little girl is # * * so thin that her ribs can be counted from her back, gave the appearance of being starved, * * * . Nine witnesses testified as to this (for the respondents). * * * This little six year old girl is thin, nervous, frail, weak . . . being Avhipped, reared strictly (apparently Avith no affection from stepmother) by stepmother Avhile father is at work. * * * Under these circumstances, this court feels . . . after listening to seven disinterested witnesses . . . that the infant’s Aveifare demands that the grandmother keen the little girl here in Arkansas temporarily . . . for six months. At the end of six months we can have another hearing, and perhaps turn the child hack to the father # # #
Under the circumstances, we are unable to conclude that the action of the court, in taking the child from the father and stepmother for six months, was improper or erroneous. While we do not think it is within the province of this court, or any other court, to instruct parents how to rear their children . . . what they should eat . . . in what manner or how often they should he punished ... we are of the opinion that a court has the right, as well as the duty, to safeguard the health and welfare of a child, though it should he well established that the health or welfare of the minor is actually in jeopardy. Our thinking in this matter is influenced to a great extent by the fact that the order is only temporary. Let it also be remembered that this is not a case wherein total strangers invoke the aid of the court, but rather grandparents, who have had the actual physical custody of the minor for the greater part of her life. It might also be pointed out that this is not a controversy between grandparents and natural parents, for here involved is a stepmother. The chancellor saw and heard the witnesses, and all the parties to the litigation, and evidently saw the child, as the testimony reflects she was present. We know of no type of case wherein the personal observations of the court mean more than in a child custody case. The trial judge had an opportunity that we do not have, i. e., to observe these litigants and determine from their manner, as well as their testimony, their apparent interest and affection, or lack of affection for the child. Under our oft repeated rule that we will not disturb the findings of the chancellor unless they are clearly against the preponderance of the evidence, we affirm this temporary order.
Subsequent thereto, appellants filed á motion for a new trial, alleging that prior to the hearing, they did not know Lee had been examined by Dr. Shearer, a child specialist, on May 31st, and that ‘ ‘ * * * Dr. Shearer, if present and testifying, will testify that the defendants brought the minor child to his office on Friday, May 31, and advised him that the stepmother .of said child had been starving the said child and otherwise mistreating her and that the child had been known on occasions to eat food from garbage cans; that plaintiffs believe and therefore allege that Dr. Shearer will testify that he examined the minor child herein and that he found the child to be a normal child for her age, that he found no evidence to indicate that she was suffering from malnutrition, that he found nothing in his examination which would indicate that the said child had not been properly fed and cared for or that she had not received the proper diet * * * .” The court refused to allow the affidavit to be filed, or to enter an order either allowing or disallowing the motion for a new trial, taking the view that the court had lost jurisdiction as of the time of the filing of the notice of appeal. Appellants contend that the court should have permitted the affidavit to be filed, considered by the court in ruling on the motion for new trial, and after consideration, should have granted same. The consideration of this contention is presently immaterial, since the order of custody was only entered for a period of six months. In its opinion, the court stated that it would hold another hearing at the end of that time, and such period has already passed. So actually, the question as to whether the court’s order was proper is now moot, for under the order, another hearing will now be held. Undoubtedly, Dr. Shearer and any other witnesses with pertinent information will be given the opportunity to be heard.
Affirmed.
George Eose Smith, Ward and Eobinson, JJ., dissent.
Appellees also kept Lee from March, 1952, until David Wilson, Jr.’s divorce in August.
According to an accompanying affidavit by Dr. Shearer. | [
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Mm OR. W. Mill wee, Associate Justice.
Appellant, Claud Duty, owns a business building located on the Northwest corner of Block 8, Original Town of Rogers, Arkansas, in the center of the Rogers business district. Duty and his wife brought this suit to quiet title to the property which includes a plot 50 feet wide and 85 feet long on which the building is located and a strip about 15 feet wide and 50 feet long adjacent to the rear of the building on the South. Appellees, Mr. and Mrs. E. W. Vinson and Alice Laner, intervened claiming they and their predecessors in title and the general public had acquired an easement by prescription over the 15 ft. x 50 ft. strip by adverse use for more than 30 years. After an extensive hearing the chancellor held that appellants’ title to the disputed strip was subject to an easement by prescription in favor of appellees and the public as an alleyway. The principal issue is whether this finding is supported by a preponderance of the evidence.
Except for certain additions to the Vinson property, the location of the disputed strip of land in relation to other property in the area is reflected by the following rough sketch of said Block 8 introduced at the trial by agreement:
It is noted that Walnut Street runs along the north side of the block, First Street along the east side, Elm Street along the south side, Second Street along the west side; and there is an alley 20 feet wide running north and south through the center of the block. The strip in question is also designated “alley” on the sketch and extends from Second Street .east along the rear of the Duty and Laner Buildings to the west side of the rear of the Stroud Building where it comes to a dead end.
Lots 2, 3 and 6 located in the Northwest corner of the block were owned by Stroud & Ferrenberg about 1895 when they began constructing buildings crosswise on Lots 2 and 3 facing north on Walnut Street. The Stroud Building was first erected and occupies the entire east 60 feet of Lots 2 and 3. The Laner Building was next constructed on, the middle 30 feet of the two lots and originally extended from Walnut Street south about 50 feet but was later extended to within 8 or 10 feet of the south line of Lot 3. The Duty Building was next constructed about 1897 and covered all of the west 50 feet of Lots 2 and 3 except the disputed strip on the south. Duty purchased the property in September, 1949.
' Vinson acquired the west 80 feet of Lot 6 in 1933 and the first building was placed on the northwest corner of the lot adjacent to the disputed strip facing Second Street sometime between 1943 and 1947. It is a temporary prefabricated restaurant building about 20 feet long and 20 feet wide. It belongs to the lessee of the property with the right of removal and is known as the “Snack Shack.” In 1954 Vinson constructed the Brewer Building between the “Snack Shack” and the south line of Lot 6 completely enclosing the vacant area of Lot 6 fronting on Second Street.
It is undisputed that the strip of land in question was never platted or dedicated to the City of Rogers as an alley, or for public use, and the city has never so claimed it. Representatives of the city and the gas, telephone and electric companies testified the strip was shown as private property on their records and they disclaimed any right of easement over it. In the chain of title from the Government down to Duty no reference to an easement across the strip has ever been made nor do the deeds to Vinson and Laner contain any reference to an easement. Vinson has never mentioned an easement in his various leases of Lot 6.
Many witnesses testified about the use of the disputed strip and the adjacent area south of it for the past 30 or 40 years. A former owner and several lessees of tlie Duty Building testified that for several years prior to 1933 there was a small sheet iron building on Lot 6 which connected with a shed attached to the rear of the east half of the Duty Building, blocking any use of the disputed strip as a passageway. This was disputed by John Myler who assisted in the original construction of the buildings.
Vance Hill testified that he operated an automotive parts and supply store in the west half of the Duty Building from 1938 to 1947 during which time the disputed strip was used to change and repair tires and for other work in servicing the cars and trucks of his customers; and that it was not used as a driveway while he was there. Prior lessees of that part of the building stated they used the strip for similar purposes; and that before the erection of the “Snack Shack” all of Lot 6 except the space occupied by the small sheet iron building was vacant and unenclosed. Prior to 1946 the customers and tenants of the Duty and Laner Buildings used Lot 6 for their convenience in crossing from Second Street to the alley east of the Stroud Building, for parking wagons, cars and trucks and for transfer of merchandise to and from the stores. According to witnesses on both sides there was no systematic or exclusive use of any particular portion of either the disputed strip or Lot 6 during this period, but people entered upon the entire area at random. Similar use of the area south and east of the “Snack Shack” continued after it was placed on the Lot until 1954 when the Brewer Building was constructed.
Ivan Bose had operated a drug store in the west 25 feet of the Duty Building for about seven years prior to the trial. He stated he had an agreement with two successive operators and lessees of the “Snack Shack” permitting them to use the 15 foot strip for parking cars in the back of the restaurant in exchange of their agreement to allow him to park his car there; and that the agreement continued until about three months prior to the trial when T. A. Bichards, lessee of the “Snack Shack” for 5 years prior to the trial, notified him not to park there any more unless he paid a fee. The testimony of Richards tends to corroborate that of Rose as to the arrangement although he further stated the strip had also been used for the delivery of merchandise through two doors on the north side of the “Snack Shack” adjacent to the strip, and that it had been used generally as a passageway for many years without objection.
John Haw testified that he and two others operated a tire and battery shop in the east side of the Duty Building for about 10 years prior to 1931 and used a shed in the disputed strip behind the building for storage of old tires and the installation of new tires and other accessories. They buried an oil tank in the disputed strip which they used in their business and it is still there. He stated no use was made of the strip as a driveway or alley while they were there; that vehicles could not have been driven over the strip to the Laner Building; and that he never heard of any one claiming a right-of-way over it. Elvin Buell who had operated a paint store in this part of the building for about 5 years prior to the trial stated the strip had been used to haul trash from a bin behind the “Snack Shack” and the unloading of merchandise by trucks that back in from Second Street.
Tenants who operated clothing and dry goods stores in the Laner Building from 1929 to 1949 testified they occasionally used the narrow strip behind their place of business to dispose of trash; that all deliveries of merchandise were made through the front door of the store; and that they knew of no one using, or claiming the right to use, the area as an alley. Alice Laner’s son operated a shoe store in the building from 1949 until 1953. He stated he used the disputed strip for the delivery of merchandise, and that many years ago his father had a shed at the rear of the building in which he kept his horse and carriage. The tenant of a shoe shop located in the building at the time of the trial stated that trucks backed into the disputed strip to unload merchandise occasionally.
An agent of the Railway Express Company in Rogers since 1937 stated he always made deliveries of merchandise through the front doors of the Duty and Laner Buildings and never used the disputed strip for that purpose. Others testified that in making deliveries of wood and coal to the rear of the buildings prior to 1947 there was no well defined route or passageway used but they entered over all the vacant lots along Second Street. After 1947 the deliveries were made by backing trucks into the disputed strip.
Gas and electric meters are attached or adjacent to the rear of the Duty and Laner Buildings but, as previously indicated, the companies are not claiming an easement over the strip in question. Seven water meters formerly located at the rear of the buildings were moved to and installed in the sidewalk along Second Street by Duty in August, 1955. There is a utility pole at the southwest corner of the Stroud Building with electric and telephone lines running to the various buildings but only those running to the Duty Building cross the disputed strip. The only water or sewer lines crossing the strip are those serving the Duty Building but a gas service line traverses it from a meter back of the Duty Building to the “Snack Shack.” The manager of the gas company “assumed” they had a verbal agreement for the running of this line and the lines from the alley east of the Stroud Building across Lot 6 and to the meters behind the various buildings in the area.
Duty formerly maintained a trash bin in the strip over which the trash was removed. When Yinson constructed the Brewer Building in 1954 his tenants moved the bin to the rear of the “Snack Shack” and tenants of the Yinson, Laner and Duty properties have since been using it and the trash has been removed over the strip. Also in 1954 Yinson constructed an embankment behind the “Snack Shack” and Brewer Building to divert water into the disputed strip that formerly flowed south of the buildings because the lots slope from north to south. Downspouts from the Duty and Laner Buildings drain water into storm sewers in Second Street. A “corrugated” concrete sidewalk and approach to the strip was constructed about 1925 when Second Street was paved and “no parking” signs were maintained there. The walk was so constructed to afford traction for vehicles using the area, but it should be remembered that the strip was then being used for changing tires and the general servicing of the cars and trucks of the customers of the automotive supply stores operated in the Duty Building.
Witnesses for appellees testified generally that the disputed strip had been used as an alleyway or passageway for many years but most of them who had actually used this and the other vacant area of Lot 6 stated they used it occasionally for their convenience or as customers of tenants of the Vinson, Laner and Duty Buildings. Most of them also conceded that all this vacant area was used at random in crossing from Second Street to the north-south alley prior to 1946, and that this use continued in part thereafter until 1954.
While the owner of one lot may acquire an easement over the unenclosed land of another by open, continuous and adverse use thereof under a claim of right for a period of seven years, a mere user does not ripen into a prescriptive right unless the circumstances are such as to put the owner of the servient estate on notice that the way is being used adversely under a claim of right. Bond v. Stanton, 182 Ark. 289, 31 S. W. 2d 409; Barbee v. Carpenter, 223 Ark. 660, 267 S. W. 2d 768. The burden was upon appellees to show by a preponderance of the evidence that the use of their tenants and the public generally of the disputed strip was adverse to appellants and their predecessors in title and not under their permission. In support of their contention that this burden was met, appellees rely on Bond v. Stanton, supra; Kirby v. City of Harrison, 202 Ark. 1, 148 S. W. 2d 666; and Harrison v. Knott, 219 Ark. 565, 243 S. W. 2d 642. Particular reliance is also had on Robb & Rowley Theaters, Inc. v. Arnold, 200 Ark. 110, 138 S. W. 2d 773, which involved long and continuous usage by the public and adjacent owners of a paved alleyway in the business section of the City of Little Rock.
While former decisions are rarely controlling on the factual issue of whether a particular use is permissive or adverse, we think the decision here is controlled by the principles applied in LeCroy v. Sigman, 209 Ark. 469, 191 S. W. 2d 461; Brundidge v. O’Neal, 213 Ark. 213. 210 S. W. 2d 305; and Abbene v. Cohen, 228 Ark. 266, 306 S. W. 2d 857. In our opinion a preponderance of the evidence does not support the conclusion that appellees and the public generally acquired an easement by prescription over appellants’ lot by open, continuous and adverse use for the required period of seven years. On the contrary we think the greater weight of the testimony is to the effect that the use shown was fitful and permissive only.
The decree is accordingly reversed and the cause remanded with directions to dismiss the intervention and cross-complaint of appellees. Appellants will recover all appeal costs except the amount of $135.60 which will be reimbursed to appellees for their supplemental abstract of the record occasioned by appellants’ delay in filing a narrative statement of a part of the testimony and their failure to abstract the testimony of certain witnesses named in their designation of record. | [
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CarletoN Harris, Chief Justice.
Dr. E. A. Gibbons, a non-resident, owned certain lands in Independence County. He died intestate in 1918, and was survived by Ms widow, Mrs. Mina Gibbons, and three children, Mrs. Marie "Wanderscheid, Balph Z. Gibbons and Cecil C. Gibbons. Mrs. Mina Gibbons had only a life estate in the property.
Appellee, Clyde Griffin, leased these lands from Mrs. Gibbons, for the term of five years, the lease to expire December 31, 1955, and later obtained another lease from Mrs. Gibbons which was to commence upon the expiration of the first lease, and was to run another five years, expiring December 31, 1960. Mrs. Gibbons died October 12, 1955. On March 17, 1956, Edwards purchased the lands from the remaindermen, and being unable to obtain possession of the property from Griffin and his sub-tenant, Barney Young, instituted suit in the Chancery Court asldng that appellees be restrained and enjoined from interfering with his right to enter said lands. The case was transferred to Circuit Court, and after preliminary motions had been disposed of, proceeded to trial. The jury returned a verdict in favor of appellees for the possession of the property under the terms of the lease; judgment was accordingly entered, and from such judgment comes this appeal.
Appellant contends that, after the death of Mrs. Gibbons, the appellees became tenants by sufferance, or merely at will; contends that it was necessary that the lease, (executed in September, 1955, by Mrs. Gibbons) in order to remain in effect, be ratified in writing by the remaindermen, and that there was no written ratification of the lease by them; and finally, that appellees’ defense falls within the statute of frauds.
Appellant moved for an instructed verdict at the conclusion of his evidence, and at the conclusion of all the testimony, on the premise that the lease, being executed by a life tenant, became void and expired upon Mrs. Gibbons’ death, and that appellees were thereafter tenants by sufferance, or at will; that the heirs had not given any lease, and that the testimony showed no ratification by any of them as to the lease executed by Mrs. Gibbons. Both motions were overruled by the court.
As stated in the Iowa case of Sanders v. Sutlive Bros. & Co., 163 Iowa 172, 143 N. W. 492 :
“It is a general rule that upon the death, of a tenant for life, all interest of Ms lessee ceasés. * * * the lessee has no greater rights than his lessor, and the estate held by him is subject to be defeated by the death of a tenant for life. * * * Upon the termination of the lease * * * in the absence of facts showing to the contrary, the further occupancy of the lessees with the consent of the owners would be assumed to be as tenants at will. * * * The presumption thus ereated is not a conclusive one, but it is subject to be met and overcome by proof that the parties had, by their agreement or acts, determined upon or recognized a different tenancy.
“The lease under which appellants now claim the right of possession by its terms was to commence May 15, 1910. Before the arrival of that time, the lessor was dead. Her estate in the property having been limited to. her lifetime, no rights could be claimed by the-lessees under such second lease unless after the death of the lessor it was adopted by her heirs . * * *
‘ ‘ To ascertain the rights of the parties, we must therefore turn to the evidence, in its application to the question of adoption or acceptance of the contract of lease, and also as to the knowledge which the grantee in the deed had of the claim of Sutlive Bros.”
In the Sanders case, the court held the proof established that the lease bad been ratified by the remaindermen. Accordingly, whether appellees were merely tenants at will depends upon tlie proof in this case. We agree with appellant that upon the death of Mrs. Gibbons, it became necessary that the remaindermen ratify the lease before appellees could successfully claim any rights thereunder. We also agree that oral ratification would not be sufficient. As stated in Words and Phrases, Yol. 36, page 131:
“ ‘Ratification’ is equivalent to original authority, and, where a statute requires the original authority to be in writing, on principle, the ratification must also be.”
It was not necessary, however, that the ratification be endorsed on the lease itself, but any writing, denoting recognition and approval, would amount to ratification. Allegany Gas Co., to Use of East Penn Development Co. v. Kemp, 316 Pa. 97, 174 Atl. 289.
After a study of the evidence, we conclude there was sufficient evidence to submit to the jury the question of whether the lease had been ratified in writing. Appellant admitted that he received a letter from Cecil Gibbons, a son of Mrs. Mina Gibbons, on January 16, 1956, relative to a prior conference the two had had in regard to a sale of the land. The letter contains the following language:
“After our telephone conversation last Thursday, I again discussed selling our land in Independence County, Arkansas, to you with my brother and sister and our attorney, Mr. Prank Sehwirtz of Bellevue, Iowa.
As a result of this conference we agreed that we would sell the land to you for a cash payment of $30.00 an acre, subject to the existing lease now held by Mr. Clyde Griffin of Newark.
The selling price would therefore be $10,720.00 subject to the lease held by Mr. Griffin, which would be assigned to you. In order that you will be fully informed as to the text of the lease, I am enclosing a copy thereof.
I am sending copies of this letter to both Mr. Clyde Griffin and Mr. Barney Young so that each will be fully informed of our intentions. It is hoped that if yon are still interested in buying the land at the above figure, a satisfactory arrangement can be worked out between you and the lessee, in order that the transaction can be completed. * * *”
Edwards says this was only an offer of sale, which he rejected, pointing out that the selling price offered in the letter was $10,720, whereas the sale was actually consummated for an agreed sum of $10,150. Gibbons also wrote a letter on the same date to Griffin, enclosing a copy of the letter to Edwards, and stating:
“ * * * So if Mr. Edwards wants to buy and can work out the lease with you, we will let the land go.
In the event that Edwards does not want to buy, we will probably place the land in some dealer’s hands for sale, under the same conditions stated in Edwards’ letter. * * *”
The deposition of Gibbons, taken by interrogatories, (the witness being in Rock Island, Illinois) was read to the jury. Gibbons stated that he received a reply from Edwards to his letter of January 16th, in which Edwards offered $10,160 for the land (which offer was later accepted), and that relative to the lease, Edwards stated:
“The lease speaks for itself, and there is nothing that can be done about it unless there is a non-compliance of same. ”
When questioned by cross interrogatories as to whether the terms of the sale agreement were different from the original offer, Gibbons twice stated: “The selling price was different.” While it is true that Gibbons also testified; “I personally never signed any lease or ratified one in writing, and to the best of my knowledge, neither did my brother or sister,” a pertinent fact was tes tified to by tlie witness in answer to tbe very next question.
“CROSS INTERROGATORY NO. 11.
“When you and the other heirs of Dr. E. A. Gibbons conveyed the lands to Mr. J. G. Edwards, was it your intention and belief to convey same free of any lease on the lands, and did you believe at the time you executed the deed to Mr. Edwards that you were conveying same free of any lease on the lands ? Explain fully.
“Answer:
“As is ascertained by Cross Interrogatory No. 6, Mr. Edwards was furnished a copy of the lease during the initial negotiations, and the land was sold to him only after receipt from him, Mr. Edwards, of affidavit stating that he was fully aware of the existence of said lease, and that he assumed all the responsibility of the lease. Affidavit on file in Rock Island.”
Thus, we find the following evidence on behalf of ap-pellees: First, on January 16, 1956, Edwards was sent a copy of the lease by Gibbons, and notified that the sale of the property would be subject to the lease; second, Griffin was notified by letter of the same fact; third, according to Gibbons, Edwards had recognized that he would have to buy subject to the lease, and fourth, the only difference in the accepted agreement and original offer was a reduction in price. As stated, there was ample evidence to warrant submission of the issue of ratification to the jury.
Appellant contends that the court erred in giving its instruction V. Such instruction was as follows:
“You are instructed that under the law a lease by a life tenant which does not take effect until after her death, or which was not supposed to take effect until after her death, would expire with her death unless you find from a preponderance of the evidence that the lease was subsequently ratified by the owners of the land or someone acting as their agent.
‘ ‘ If you. find by a preponderance of the evidence that Mrs. Mina Gibbons executed a lease to the lands in question prior to the time of her death in October, 1955, for a period of five years beginning on January 1, 1956, with the defendant, Clyde Griffin, and you further find from a preponderance of the evidence that Cecil Gibbons, acting as the agent of the heirs of Mrs. Mina Gibbons and the heirs at law of Mina Gibbons and E. A. Gibbons, did, prior to the date of the sale of said lands, to-wit; the 23rd day of March, 1956, recognize and ratify said lease, and the plaintiff Edwards had knowledge of such ratification, you are instructed that ratification may be by writing or by some other act. or acts or word or deed signifying acceptance of the terms thereof, then your verdict would be for the defendants for the possession of the property in question under the terms of the lease.” The portion of the instruction complained of related to the court’s definition of ratification, vis., “you are instructed that ratification may be by writing or by some other act or acts or word or deed signifying acceptance of the terms thereof, then your verdict would be for the defendants for the possession of the property in question under the terms of the.lease.” Appellant particularly assails the use of “word”, and such argument is sound since the lease could not be orally ratified. No general objection was made, and the specific objections made did not go to that particular point. The record reflects that counsel for appellant stated:
“We certainly object to that instruction; they are dealing with a written lease; that is- all anybody ever furnished him; that is what the defendants have set out and what they stand on.”
Further objection was made by counsel as follows:
“I call attention to the court that there was no proof whatsoever to show that the alleged ratification by Mr. Cecil Gibbons to Clyde Griffin was ever communicated to J. G. Edwards, and that Mr. Edwards had made diligent inquiry as to the right or rights under which the defendants Clyde Griffin and Barney Young were in possession, and was advised that there was a lease executed by a life tenant who bad died, and that be bad discharged ail responsibility required of him by law as to taking possession by him.”
The first objection apparently is directed to the contention that at the death of Mrs. Gibbons, appellees’ rights expired, and they became tenants by sufferance; though it might also be construed that the objection went to the fact that the lease itself showed no ratification. As previously set out herein, objections on these grounds are of no validity since ratification in writing was sufficient, and the portion of the instruction dealing with written ratification was correct. The second objection to the instruction dealt with a contention that the alleged ratification of the lease was never communicated to appellant. Neither objection relates specifically to the court’s instructing the jury that the contract could be ratified orally.
Appellant argues that at any rate, there is nothing in the record showing a ratification of the lease by the other Gibbons heirs, and no evidence to establish Cecil Gibbons as their agent or to show that he had any authority to act for the other two. We find this contention to be without merit. In the first place, certainly Edwards must have recognized that Cecil Gibbons was acting for his co-owners, for all of his negotiations were entirely with Cecil. While Gibbons ’ discovery deposition was taken, no questions were asked by either side as to his authority to act. In his letter to Edwards of January 16th, Gibbons commented that “* * * I again discussed selling our land in Independence County, Arkansas, to you with my brother and sister * * *” However, the clearest evidence that Gibbons had authority to act for his brother and sister is the fact that they joined in the execution of the deed to Edwards, though all negotiations had been carried on entirely with Cecil Gibbons.
Finding no reversible error, the judgment of the Circuit Court is affirmed.
The facts are very similar to the instant litigation. Margaret Rigler, wife of Lorenz Rigler, deceased, held only a life estate in certain property. She entered into a contract of lease with Sutlive Brothers for a period of five years; before the expiration of this lease, another lease at the same rental was entered into between the parties, the term specified being from May 15, 1910, to May 15, 1920. Mrs. Rig-ler died intestate on March 6,1910, survived by two daughters. As in the instant case, her death occurred slightly more than two months before the expiration of the first lease. The remaindermen subsequently sold the property to one Sanders, and litigation resulted to determine whether the lease had been previously ratified by such remaindermen.
Emphasis supplied.
Emphasis supplied.
Edwards stated he did not remember making such a statement, and did not believe that he did.
The latter part of the answer was ruled out by the court as the opinion of the witness. | [
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Nabors Shaw, Special Associate Justice.
The question here presented is the power of appellee, Arkansas State Game and Fish Commission, to prohibit the sale of game fish raised by appellants in their vocation of fish farming in their privately owned reservoirs.
Appellants are two, of many persons, who have become engaged in the vocation of raising dish on their privately owned lands to be marketed for profit. In order to profitably raise so called, “rough fish,” it is a recognized practice in fish farming to raise game fish in reservoirs to feed upon and reduce the number of “rough fish” so that the remaining “rough fish” will mature faster from the available vegetable and plant life in the reservoirs. It is when these cultivated fish are ready to be harvested, that the real issue is presented. The appellants contend that they should be permitted to sell the game fish just as they are permitted to sell their other fish, not classified as game: fish, and for the Commission to prohibit their sale-of game fish raised in private waters, is an infringement upon their rights as the owners of property to' such an extent that it amounts to a taking of their private property without due process of law, or for public use; and without just compensation. The Commission contends to the contrary; that it has the power to make such regulations as it deems necessary for the conservation and protection of the wild life and game of the state; and that it is a valid exercise of the police power of the state to prohibit the sale of game fish in the; furtherance of the program of conservation.
Prior to July 1, 1945, the effective date of Amendment 35 to the Constitution of Arkansas, by which the’ Arkansas Game and Fish Commission was created, the sale of game fish was regulated by the Legislature. One- of the earlier attempts on the part of the Legislature to regulate the sale of game fish was Act No. 157 of the Acts of 1925, Pope’s Digest, Section 5935. Then Act No. 151 of the Acts of 1927, and which appears as Section 47-511 of the Arkansas Statutes was enacted. This Section provided: ‘ ‘ Sale of game fish prohibited— Regulations permitting sale of game fish raised in private waters — Penalty — It shall he unlawful to sell, offer for sale, or possess for sale in this State, any game fish commonly known as black, striped, or white bass, or rock, or war-mouth,, or calico bass, crappie, bream, perch, pike, or jack-salmon. Provided, the Arkansas Game and Fish Commission may, under such rules and regulations as are necessary, issue a permit, in. writing, authorizing the sale of game fish raised in a private hatchery or private water. The fee for such privilege shall be Five ($5) Dollars per year. A violation of any provisions of this Section or of any rule or regulation promulgated hereunto shall constitute a misdemeanor and persons convicted thereof shall be fined in any sum not less than Twenty-Five ($25) Dollars, nor more than Three Hundred ($300) Dollars, and shall forfeit any permit the terms of which are violated.”
Section 1 of Amendment No. 35 Provides: “The control, management, restoration, conservation and regulation of birds, fish, game ■ and wild life 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 8 members.” Section 8 of the amendment, further provides, “The Commission shall have the exclusive power and authority to issue licenses and permits, to regulate bag limits and the manner of taking game and fish and fur-bearing animals, and shall have the authority to divide the State into zones and regulate seasons and manner of taking game and fish and fur-bearing animals therein, and fix penalties for violations.” Section 8 further provides, “All laws now in effect shall continue in force until changed by the Commission. ’ ’
The Commission, pursuant to authority vested in it, under Amendment No. 35, adopted Article 124 of its General Rules and Regulations, which provides Sale of game fish prohibited — Penalty. It shall be unlawful to sell, offer for sale, or possess for sale in this state any game fish commonly known as black, striped or white bass, or rock-war-mouth, or calico, crappie, bream, perch, pike, or jack-salmon, except green sun fish, (commonly known as Ricefield Slicks), four (4) inches in length may be sold for fish bait only. A violation of any provisions of this Section shall constitute a misdemeanor and any person convicted thereof shall be fined in any sum not less than Twenty-Five ($25) Dollars.”
Subsequent to the promulgation of Article 124 of the General Rules and Regulations by the Commission, and subsequent to the commencement of .these two consolidated causes of actions, the Legislature enacted Act 65 of the Acts of 1957 entitled, “An Act to Define Domestic Fish and to Declare the Policy of the State in Regard Thereto.” Act-65 defined “Domestic” fish to mean fish that are spawned and raised in privately owned waters, declared such “domestic” fish to be private property of the owners of the privately owned waters, in which they are found, declares the sale of such “domestic” fish to be lawful; as of common right, not as a privilege, and then declared that the sale of “domestic” fish could not be prohibited or restricted, or licensed by the State or any of its agencies; except as was provided for in Section 3 of said Act, which Section 3 laid down a set of rules and regulations for the Game and Fish Commission to follow in permitting the sale of “domestic” fish. Section 4 of Act 65 provided that all laws and parts of laws, which are in conflict herewith are, to the extent of such conflict, hereby repealed.
Thus we have a direct conflict between Article 124 of the Commission’s Rules and Regulations, and Act 65 of the Acts of 1957. One of the principal questions presented for this court to decide is which branch of the State Government, the Legislature or the Game and Fish Commission has the power to legislate on the sale of game fish from privately owned waters!
A majority of this court has concluded that this power is now vested in the Commission as opposed to the Legislature with the Adoption of Amendment 35. The only power reserved to the Legislature is the power to appropriate moneys for the use of the Game and Fish Commission from the Game Protection Fund, and the power to increase the resident hunting and fishing license from $1.50 annually, to a greater amount. The Amendment expressly provided that all laws in effect as of July 1, 1945, would continue in force until changed by the Commission, the foremost purpose of Amendment 35, is to conserve the wild life of this state, and to place this duty with the Commission, thereby divesting the Legislature of this duty. The Amendment clearly divests the Legislature of all of its powers to conserve the wild life resources of this state, except those powers expressly reserved therein, being the power to make appropriations and to increase the annual resident hunting and fishing licenses. Amendment No. 35, by its provision, “All laws now in effect, shall continue in force until changed by the Commission,” strongly implied that the Commission, not the Legislature, is empowered to change, modify or promulgate new rules and regulations pertaining to the conservation of the wild life resources of the state. Where there is a divesting of legislative authority and an investing of constitutional authority, it is likely to give rise to many controversial matters. Although these powers may be well defined, still there is usually a gradual realization of these powers due to the few instances in which this Court is called upon to pass upon the questions of fact and to construe the applicable laws. It is noticed that only in a few instances has the Legislature, by the enactment of legislative acts other than appropriation measures, attempted to invade the powers of the Commission under Amendment No. 35; this, even though expressions direct from the Legis- ¡ature are bound to have considerable influence upon tbe Commission in tbe performance of its duty to conserve tbe wild life resources in tbis state.
Tbis court lias consistently upheld the powers of tbe Commission as opposed to tbe powers of tbe Legislature in tbe field of conservation of tbe wild life resources of tbis state. In the case of W. R. Wrape Stave Company v. Game and Fish Commission, 215 Ark. 233, 219 S. W. 2d 948, we held, “The Game and Fish Commission has been given very broad discretion in determining bow wildlife shall be preserved; that Amendment No. 35 is complete within itself, and that prior Legislative Acts, whether directive or restrictive in measure, have been superseded. It seems to have been tbe purpose of those who wrote tbe Amendment to cover tbe whole subject and to either provide or leave to tbe Commission methods for reaching these ends.” This Court has upheld the powers of the Commission to enact laws different from those provided by the legislature in other instances, such as the power to fix the amount of license fees on hunting hounds, State v. V. Casey, 225 Ark. 149, 279 S. W. 2d 319, also wherein the Commission refused to recognize the validity of a 1949 legislative act which provided for counties and state to pay an equal bounty for the killing of wolves. Arkansas State Game and Fish Commission v. Edgmon, 218 Ark. 207, 235 S. W. 2d 554. Obviously, the people, by enacting this amendment, intended that the Commission should have the power to control, manage, restore, conserve and regulate the fish, game and wild life resources of the state, with the exception of the power expressly reserved to the Legislature to make appropriations and to fix the amount of the annual resident hunting and fishing license. Even though a majority of this Court is of the considered opinion that it is highly advantageous to that commendable business of fish farming to raise game fish, along with other fish, which the fish farmers are permitted to raise and market for a profit, still the Commission, through its broad discretionary powers in conservation measures, has determined that to market these game fish would hamper if not make it impossible to enforce its rules and regulations so directly concerned with carrying out its duties in the- conservation of the wild life resources of the state. The Commission is a trustee for the people of this State, charged with the duty of conserving the wild life resources. Its powers are not unlimited, but until such time as it is more clearly shown that the Commission has abused its broad discretionary powers in matters of conservation, then it cannot be contended that the Commission has exceeded the limits of its powers.
It is settled law that fish and fishing rights in waters entirely within land of a single owner, without means to migrate belong to the owner of the land. ‘ ‘ The owner of the land has a right to take fish and wild game upon his own land, which inheres in him by reason of his ownership of the soil. It is a property right, as much as any other distinct right incident to his ownership of the soil. It- is not, however, an unqualified and absolute right, but is bounded by these limitations: That it must always yield to the state’s ownership and title, held for the purposes for regulation and preservation for the public use. These two ownerships are rights • — • that is to say, the general ownership for one purpose, and .the qualified or limited ownership of the individual, growing out of his ownership of the soil are entirely consistent with each other, and in.no wise conflict.” Arkansas State Game and Fish Commission v. Storthz, 181 Ark. 1089, 29 S. W. 2d 294; State v. Mallory, 73 Ark. 236, 83 S. W. 955. The owner is free to do whatever he desires to do with such game fish, just as long as he does not undertake to use them in such a manner as would conflict with the purposes of the general ownership of the state; which purposes are to regulate and preserve the wild life resources of the state for the people. Here the Commission has determined that for the owners of game fish raised in their privately owned waters to be permitted to sell them, would inevitably create an enforcement problem. The opinion of the learned trial judge in this respect is amply supported by the evidence.
It is contended by appellants that the Commission by its Regulation, Section F, has determined that, “It shall be unlawful for any person to abandon or to permit to go to waste the edible portion of any game or fish in this state at any season of the year;” That this is likewise a regulation promulgated by the Commission and in the same category as the regulation prohibiting the sale of game fish. As previously stated, the powers and authority of the Commission are not unlimited. The Commission must exercise its powers in a reasonable and just manner. It cannot arbitrarily make rules and regulations in complete disregard of the property rights of others without some real basis, which has a direct relationship with the purpose to conserve the wild life resources of this state. In view of the evidence in these causes, it is clear that the enforcement of Regulation F would work an extreme hardship on those engaged in the vocation of fish farming, subject them to unreasonable penalties, and would result in an artibrary taking of their property without due process of law; therefore, Regulation F in so far as it affects the fish farmers, is invalid. By so holding the Court does not mean or imply that the Commission’s Regulation F would be invalid as to the sports fishermen: To hold Regulation F valid as applicable to fish farmer would, with certainty, result in the taking of private property without just compensation, and without due process of law. Even though Constitutional Amendment No. 35 gives broad powers to the Commission; nevertheless, the Commission is subservient to, and bound by, Art. 2, Section 22 of the Constitution, which reads: “ * * * Private property shall not be taken, appropriated or damaged for public use, without just compensation therefore.” See Shellnut v. Arkansas State Game and Fish Commission, 222 Ark. 25, 258 S. W. 2d 570.
The action of the Commission in prohibiting the sale of game fish raised in private waters is a valid exercise of the police powers of this state. The control, management, restoration, conservation and regulation of birds, fish, game and wild life resources of the state is a proper function of the police power of the state. 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 wild life 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. Under the evidence adduced in these causes, the majority of this court cannot say that the Commission has abused its wide discretion. 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. The record and the excellent briefs show conclusively that the business of fish farming is of long standing and a very worthy vocation; that it is advantageous to fish farming and essential to the proper'cultivation of “domestic” fish to have in each impoundment of water, game fish. It is further noted that this state has made rapid progress in the business of fish farming and that thousands of acres of land are now put to this use. No doubt, the fish farmers knew of the rules of the Commission in prohibiting the sale of game fish from public as well as private waters of the state at the time that they were becoming engaged in this comparatively speaking new type of farming in this state. So, it cannot be said that the fish farmers have been misinformed or misled. The fish farmers may still utilize their game fish in any manner most advantageous to them; however, they cannot sell these game fish in violation of the rules and regulations of the Commission, which prohibit the sale of game fish.
It follows that the General Assembly exceeded its legislative powers in enacting Act No. 65 of the Acts of 1957, by attempting to exercise legislative powers pertaining to a subject matter, which was not expressively reserved in the Legislature by Amendment No. 35; therefore, a majority of this court holds that Act 65 of the Acts of 1957 is invalid. The contention of appellants that they have been deprived of their property without due process of law and without just compensation, in violation of the Constitution of this state and of the Federal Government, is without merit. The majority of this Court recognizes that appellants and the other fish farmers own the game fish raised in their private waters; that this is a property right as much as any other distinct right incident to their ownership of the soil. That it is not, however, an unqualified and absolute right, but is bounded by the limitation that it must always yield to the state’s ownership and title, held for the purposes of regulation and preservation for the public use. Since the appellants have only a qualified ownership in the game fish raised in their private waters, which is subject to the general ownership of this state for the purposes of regulating and protecting the wild life and game for the common good of all the people; then it can be reasoned that the appellants cannot be deprived of that which they have never owned.
Accordingly, these causes are affirmed with the modification that the Commission’s Regulation F is invalid, as applied to fish farmers. The issue in main, having been resolved in favor of appellees, the costs are taxed against appellants.
Harris, C. J., disqualified and not participating; McFaddiN and Ward, JJ., dissent. | [
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Walker, J.:
Bradford, Rainwater & Co. brought an action of debt against J. R. Toney upon a promissory note executed to plaintiffs by the defendant (and James M. Toney who was not sued) under the name of J. R. Toney & Co.
The defendant demurred to thé declaration and assigned as cause for demurrer that James M. Toney, who was jointly liable with the defendant, was not joined as a party to the suit.
The demurrer was sustained and judgment rendered against the plaintiffs for the costs.
The case is brought before us upon writ of error.
When two or more parties are jointly bound by contract, the action thereon may be brought against all, or any of them at the plaintiff’s option. Gantt’s Dig., sec. 4480.
The question raised by this demurrer has been so often decided in affirmance of the right of the payee in a note to sue one or more of the payors at his election, that it is a matter of surprise that the court below should have sustained the demurrer. Hambleton v. Burton, 6 Ark., 24; Walker v. Faulkner & Walker, 7 Ark., 542; Burgen v. Dwinal, 11 Ark., 314.
Let the judgment of the Circuit Court be reversed and set aside and the cause remanded for further proceedings. | [
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Harrison, J.:
Huffman and McLelland bet fifty dollars on a horse race, and put the money in the hands of McLain as stakeholder. The race was run, and Huffman claimed to be the winner, and demanded the money. McLelland was dissatisfied and notified McLain not to pay it over.
Huffman sued McLain before a justice of the peace for the $100 — amount of the bet — and recovered judgment. McLain appealed to the Circuit ■ Court. Upon trial in the Circuit Court the plaintiff again recovered judgment for $ 100, and the defendant then appealed to this court.
It was proven that when the plaintiff demanded the money the defendant offered to return him the fifty dollars he had put up, but he declined to receive that unless the other fifty were also given him, and evidence was given to prove that Huffman was the winner of the race, and that the same was a turf race.
In a proper case the court will judicially notice what is a turf race, but from the view we take in this it will not be necessary for us to decide whether the race in question was such or not.
An action might, by the eommoh law, be maintained for a wager which was not contrary to public policy, Unmoral, nor affected the interest, feelings or character of a third person. Chit, on Con., 438. But such actions were never favored by the courts, and regrets often expressed that they had ever been sanctioned. Ib., 440.
Story, in his work on contracts, says: u The courts have often reprehended these contracts, and seized upon every opportunity and every circumstance to invalidate them.” Story on Con., sec. 566. .
In Massachusetts, Maine, Vermont and Pennsylvania the courts without any statute declaring them void, refused to enforce them. Ball v. Gilbert, 12 Met., 397; Perkins v. Eaton, 3 Maine, 152; Lewis v. Littlefield, 15 ib., 233; Collamer v. Day, 2 Vermont, 144; Edgell v. McLaughlin, 6 Whar., 176.
And now in England, by an act of Parliament (8 and 9 Viet., c 109, sec. 18) all contracts or agreements by way of gaming or wagering, are made void.
In this State all such contracts are declared void by statute. Section 2987, Gantt’s Digest, says: “All judgments, conveyances, bonds, bills, notes, securities and contracts, where the consideration, or any part thereof, is money or property won at any game, or gambling device, or any bet or wager whatever, or for any money or property lent to be bet at any gaming or gambling device, or at any sport or pastime whatever, shall be void.”
In this suit the plaintiff seeks to recover the wager deposited by the loser with the stakeholder, upon the promise or agreement of the defendant to deliver the same to him if he should win. Now what is the consideration for the defendant’s promise ? Most clearly the bet between the plaintiff and McLelland, consummated upon the deposit of the stake in his hands. The' deposit and his agreement to deliver them to the one winning did not, of themselves, constitute the contract between him and the plaintiff, but the bet was a constituent and material part of the consideration for such agreement. But were it possible to distinguish the defendant’s agreement from the wager contract between the plaintiff and McLelland; yet growing out of and made in aid of such illegal contract, in contemplation of the act against gaming and betting, it was, according to a well established principle, void. Tatum v. Kelley, 25 Ark., 209 ; Pratt v. Adams, 7 Paige, 615; Lightfoot v. Tenant, 1 Bos. and Pull., 551'; Langton v. Hughes, Maude and Sel., 593.
But because money or property lost on a turf race is, by section 2786, excepted from the provisions of section 2984, by which an action is given to “ any person who shall lose any money or property at any game or gambling device, or any bet or wager whatever, to recover it back from the person winning the same, it is contended by appellee that a wager or bet on a turf race is not illegal. It does not follow as a necessary consequence, because the loser cannot sue to recover back the money or property which he has lost on such a race, the winner can maintain an action for the wager he has won.
The obvious design and purpose of the statute declaring all gaming and wagering contracts void, is the suppressing of the pernicious vice of gaining and betting, and as a remedial statute whose object is so consistent, not only with sound morality and the best interests of society, but in accord with the spirit of the age, it should be so construed as to reach the evil in all its forms. But such wagers are within the very language of the statute, as well as its most clear and evident meaning. The plaintiff was not, therefore, entitled to recover from the defendant the money put in his hands by McLelland.
That the plaintiff is entitled to receive back the money deposited by himself there can be no question, but having refused to accept it when tendered him by the defendant unless that deposited by McLelland, to which he had no right, was also paid over, the defendant was in no default, or liable to be sued therefor.' “No right of action accrues in any case against a bailee unless there has been some wrongful conversion, or some loss by gross negligence on his part, until after a demand made upon him, and a refusal by him to deliver the deposit.” Sto. on Bail., 107.
The court below should have given the defendant a new trial, •and its refusal to do so was an error for which its judgment must be reversed and the cause remanded to it, in order that a new trial may be had and the cause proceeded in according to law. | [
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ELANA CUNNINGHAM WILLS, Justice.
liAppellant Lorie Johnson appeals from the Johnson County Circuit Court’s order granting appellee Tomas Dawson’s motion for summary judgment, vacating the judgment of the district court, and dismissing Johnson’s case against Dawson with prejudice. This appeal requires the interpretation of the amendments to Arkansas District Court Rule 9 that became effective on January 1, 2009. Our jurisdiction is therefore proper pursuant to Ark. Sup.Ct. R. 1-2(b)(6).
Johnson filed two complaints against Dawson in Johnson County Small Claims Court on February 5, 2009. Dawson never filed an answer to either complaint, and the Small Claims Court entered default judgments against him in both cases on March 20, 2009, awarding Johnson $5000.00 in each case.
[>On April 17, 2009, Dawson filed an “appeal transcript” in both cases purporting to appeal the small claims court default judgments to circuit court. The circuit court set the cases for a bench trial on August 27, 2009. On July 6, 2009, Dawson filed a motion for summary judgment in which he asserted that Johnson had failed to reassert her claims in circuit court within thirty days, as required by Arkansas District Court Rule 9(c). Johnson filed a motion to dismiss Dawson’s appeal and response to his motion for summary judgment on July 14, 2009. In her motion, Johnson alleged that Dawson had failed to comply with District Court Rule 9(b), which requires a party taking an appeal from a district court to file a certified copy of the district court’s docket sheet. Instead of filing the docket sheet, Johnson argued, Dawson had filed an appeal transcript. Thus, she urged that Dawson had failed to comply with the mandatory requirements of Rule 9, and the circuit court lacked jurisdiction to hear his appeal.
In response to Johnson’s motion to dismiss the appeal, Dawson argued that his failure to file a certified docket sheet was not fatal. He noted that he contacted the Johnson County District Court Clerk, who averred in an affidavit attached to Dawson’s response that she was unaware that the court maintained any document called a “docket sheet” in its offices. Upon [arequest, however, the clerk searched for and discovered a docket sheet that was kept by that office. Further, Dawson argued that the appeal transcript he filed •with the circuit court contained all of the documents that had been filed in the district court, and there was nothing on the “docket sheet” that was not included in those documents.
The circuit court held a hearing on Dawson’s motion for summary judgment and Johnson’s motion to dismiss on August 27, 2009. The court first pointed out that, under Rule 9, Johnson was required to re-plead her case once an appeal was taken to circuit court. The court noted Johnson’s argument that, because Dawson had filed the transcript of the small claims court proceedings, the case had, in essence, been re-pled, but concluded that the copy of the complaint included in the transcript did not include the attachments that had been filed in the district court. Therefore, the court found that she had not complied with Rule 9(c). The court further rejected Johnson’s argument that Dawson’s failure to file the docket sheet deprived the court of jurisdiction, finding that the “appeal transcript that he filed with his notice of appeal is equivalent to the docket sheet.” Relying on the clerk’s affidavit, the court thus found that Dawson had “substantially complied” with Rule 9 and properly perfected his appeal, and Johnson failed to re-plead her case in circuit court; accordingly, the court dismissed Johnson’s complaint.
l(At the conclusion of the hearing, Dawson pointed out to the court that he had been sued for breach of contract and asked for attorney’s fees, but the court denied the request. The court then asked Dawson to prepare an order for the court’s signature. That order was entered on September 4, 2009, granting Dawson’s motion for summary judgment, vacating the judgment of the district court, and dismissing Johnson’s case against Dawson with prejudice.
Johnson filed a motion for reconsideration on September 17, 2009, urging that the court had erred in not requiring strict compliance with Rule 9. The court denied her motion in an order entered on October 1, 2009, and Johnson filed a timely notice of appeal on October 2, 2009. Dawson filed a notice of cross-appeal on October 13, 2009. On appeal, Johnson continues her argument that Dawson never properly perfected his appeal from district court to circuit court; Dawson argues on cross-appeal that the circuit court erred in denying his motion for attorney’s fees.
At issue in this case is the construction of the recently amended District Court Rule 9. We construe court rules using the same means and canons of construction used to interpret statutes. McNabb v. State, 367 Ark. 93, 97, 238 S.W.3d 119, 122 (2006); Velek v. State, 364 Ark. 531, 222 S.W.3d 182 (2006). The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common lan guage. McNabb, supra. When the language is plain and unambiguous, there is no need to resort to rules of statutory construction, and the analysis |fineed go no further. Id. When a statute is ambiguous, however, we must interpret it according to the legislative intent, and our review becomes an examination of the whole act. Id. (citing Office of Child Support Enforcement v. Morgan, 364 Ark. 358, 219 S.W.3d 175 (2005)). We reconcile provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. Id.
Further, we review issues of statutory construction de novo, as it is for this court to determine what a statute or rule means. McNabb, supra; Velek, supra. In this respect, we are not bound by the circuit court’s decision; however, in the absence of a showing that the circuit court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. McNabb, supra (citing Henyan v. Peek, 359 Ark. 486, 199 S.W.3d 51 (2004)).
As noted above, this case revolves around the construction of District Court Rule 9, which was amended effective January 1, 2009. Subsection (b) of the rule, which sets out the means by which an appeal is taken from district court, provides as follows:
A party may take an appeal from a district court by filing a certified copy of the district court’s docket sheet, which shows the awarding of judgment and all prior entries, with the clerk of the circuit court having jurisdiction over the matter. Neither a notice of appeal nor an order granting leave to appeal shall be required. The appealing party shall serve a copy of the certified docket sheet upon counsel for all | fiother parties, and any party proceeding pro se, by any form of mail that requires a signed receipt.
(Emphasis added.)
The amendment was intended to “eliminate several points of confusion and difficulty,” according to the Reporter’s Notes to the amendment. Under the previous version of subsection (b), a party was required to file a certified record of the proceedings had in the district court. See Ark. Dist. Ct. R. 9(b) (2008). The current version requires the appealing party to file with the circuit clerk a certified copy of the district court docket sheet. In addition to simplifying the process for appealing a case from district court, the Reporter’s Notes also comment that the rule was amended to conform to case law.
The case law in response to which the rule was amended was McNabb v. State, supra. In McNabb v. State, appellant Lexie McNabb pled no contest to second-degree terroristic threatening on February 24, 2005. Her sentence consisted of thirty days in jail and a fine. She sought to appeal this decision to circuit court, and she requested a copy of the transcript from the Faulkner County District Court Clerk. The transcript, as prepared by the clerk, consisted of a certified copy of the docket sheet listing the district court’s actions. McNabb filed this “record” with the Faulkner County Circuit Clerk’s office. In circuit court, the State sought remand to the district court on the grounds that the certified docket sheet was not the record of the proceeding. The circuit court agreed that and concluded that, because there was not a timely filed record of the proceedings or transcript, it did not have jurisdiction to hear the appeal. McNabb, 367 Ark. at 95-96, 238 S.W.3d at 121.
[On appeal, McNabb argued that the circuit court erred in concluding that the certified copy of the docket sheet was not a record of the proceedings within the meaning of Rule 9. Id. at 96, 238 S.W.3d at 121. This court noted that, while Rule 9 clearly required that an appeal from district to circuit court shall be taken by filing a record of the proceedings, the rule did not define what constituted a record of proceedings, nor had this court expressly defined that phrase. Id. at 98, 238 S.W.3d at 123. The court pointed out, however, that dicta from earlier cases had stated that the record for municipal courts could be the docket sheet. Id. (citing Frana v. State, 323 Ark. 1, 912 S.W.2d 930 (1996), and King v. State, 304 Ark. 592, 804 S.W.2d 360 (1991)). The court concluded that, in order to satisfy the rule’s “record of proceedings” requirement, “the record of proceedings must, at a minimum, be (1) certified by the clerk of the particular district court in which the case originated, and (2) reflect all the proceedings, including all filed documents and motions, before the district court.” Id. at 98-99, 238 S.W.3d at 123. Recognizing that the usual record in inferior courts was the docket sheet, the court noted that in McNabb’s case, the docket sheet included the violation with which she had been charged, the dates of the violation and arrest, McNabb’s plea, and the disposition of the case. Id. at 100, 238 S.W.3d at 124. Thus, under the prior version of Rule 9, this court held that the certified copy of the docket sheet would be considered a record of the proceedings sufficient to maintain an appeal from district court to circuit court. Id.
[As noted above, Rule 9 was amended after McNabb to require the filing of a certified copy of the docket sheet in order to perfect an appeal to circuit court. In the present case, Dawson argued below, and the circuit court agreed, that his filing of the appeal transcript satisfied the requirements of Rule 9. The circuit court found that, even though Dawson filed an “appeal transcript,” the transcript “shows the awarding of judgment and all prior entries. According to the [clerk’s] affidavit, everything that was done and had in this particular case is contained in the appeal transcript. It is certified by the District Court Clerk and is equivalent to a docket sheet.” The circuit court found this case to be the “reverse situation” of what happened in McNabb, stating that the record of proceedings that Dawson had filed supplied all of the information that would be on the docket sheet. Therefore, the court found that Dawson had properly perfected his appeal.
The circuit court erred in two respects. First, by saying that the appeal transcript was “equivalent to a docket sheet,” the court found that Dawson had substantially complied with Rule 9. This court, however, has been abundantly clear that compliance with Rule 9 must be strict; substantial compliance will not suffice. See Ingram v. City of Pine Bluff, 355 Ark. 129, 133 S.W.3d 382 (2003); Clark v. Pine Bluff Civil Serv. Comm’n, 353 Ark. 810, 120 S.W.3d 541 (2003); J & M Mobile Homes, Inc. v. Hampton, 347 Ark. 126, 60 S.W.3d 481 (2001); Baldwin v. State, 74 Ark.App. 69, 45 S.W.3d 412 (2001) (specifically rejecting a “substantial compliance” approach to Rule 9 appeals).
[Second, the circuit court erred in finding that Dawson complied with Rule 9. As noted above, where the language of a statute or rule is clear, we will construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. McNabb, swpra. Here, Rule 9 states that an appeal may be taken from district court to circuit court “by filing a certified copy of the district court’s docket sheet” with the circuit court. The language of the rule is clear. It does not state that a party may take an appeal by filing a certified copy of the docket sheet “or its equivalent,” which is what the circuit court permitted.
This court has consistently held that, in order for a circuit court to acquire jurisdiction, an appellant from district court must comply with Rule 9. McNabb, 367 Ark. at 96, 238 S.W.3d at 122; Velek v. State, 364 Ark. at 535, 222 S.W.3d at 185. In addition, this court and the court of appeals have been resolute in holding that the provisions of this rule are both mandatory and jurisdictional. Clark v. Pine Bluff Civil Serv. Comm’n, 353 Ark. 810, 120 S.W.3d 541; J & M Mobile Homes, Inc. v. Hampton, 347 Ark. 126, 60 S.W.3d 481. Where a party fails to perfect an appeal from an inferior tribunal to a circuit court in the time and manner provided by law, the circuit court never acquires jurisdiction of the appeal. Board of Zoning Adjustment v. Cheek, 328 Ark. 18, 942 S.W.2d 821 (1997). Therefore, by not filing a certified copy of the docket sheet from the district court proceedings, Dawson failed to perfect his appeal, and the circuit court erroneously concluded that it possessed jurisdiction to entertain the appeal.
ImMoreover, to the extent that Dawson and the circuit court relied on the affidavit from the district court clerk that she did not even know that there was such a thing as a docket sheet or that it was “supposed to be included in the appeal transcript,” this court has consistently noted that it is the duty of counsel, not the judge, clerk, or reporter, to perfect the appeal. Clark v. Pine Bluff Civil Serv. Comm’n, supra (emphasis added); Ottens v. State, supra; Hawkins v. City of Prairie Grove, 316 Ark. 150, 871 S.W.2d 357 (1994); Edwards v. City of Conway, 300 Ark. 135, 777 S.W.2d 583 (1989). Here, Dawson’s response to Johnson’s motion to dismiss his appeal asserts that he asked the district court clerk to look for the docket sheet (although he apparently only made this request after being prompted to do so by Johnson’s motion to dismiss). Moreover, although the district court clerk averred that “no one in [that] office was aware that the page called the docket sheet should have been included in the appeal” and asserted her belief that she had “substantially complied” with Rule 9, neither Dawson nor his attorney may rely on this statement to excuse compliance with the clear language of the rule. See Clark v. Pine Bluff Civil Serv. Comm’n, supra (it is counsel’s duty, not the clerk’s, to perfect the appeal). Accordingly, the circuit court erred in concluding that the appeal had been perfected and that it had jurisdiction.
Because the circuit court lacked jurisdiction, this court lacks jurisdiction as well. Clark v. Pine Bluff Civil Serv. Comm’n, 353 Ark. 810, 120 S.W.3d 541; Pierce Addition Homeowners Ass’n, Pic. v. City of Vilonia Planning Comm’n, 76 Ark.App. 393, 65 S.W.3d 485 (2002). Accordingly, because no jurisdiction existed in the circuit court, its order is of no effect, and | nthe district court judgments stand. In addition, because Dawson’s appeal from district court to circuit court was never properly perfected, the arguments concerning attorney’s fees raised in his cross-appeal are moot.
BROWN, J., concurs.
CORBIN, J., not participating.
. In her affidavit, District Court Clerk Marta Chavez stated that the complaint, the certificate of service, the order granting default judgment, and the appeal transcript were the only documents in the file maintained by her office. She also stated that “[s]eparate from this file we keep in a book a document that we have recently learned is called a 'docket sheet,' but we did not know that the document was supposed to be called that, and we did not know that the docket sheet was supposed to be included in the appeal transcript that went to the Circuit Court.” Chavez also said that, as of April 17, 2009, the date on which the appeal was taken, “no one in this office was aware that the page called the docket sheet should have been included in the appeal.”
. This case arose out of the small claims division of district court. Although the procedure for cases in small claims division are governed by Arkansas District Court Rule 10, that rule states that "[a]ppeals may be taken from the judgment rendered in the small claims division of district court in the same manner as other civil appeals are taken from district courts.” Ark. Dist. Ct. R. 10(e)(6). | [
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PER CURIAM.
|,In 2008, appellant John Cummings entered a plea of nolo contendere to a charge of murder in the first degree. A sentence of 336 months’ imprisonment without parole was imposed. Subsequently, petitioner timely filed in the trial court a verified pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2009). The court entered an order denying the relief sought. On March 11, 2010, this court granted appellant leave to proceed with a belated appeal of that order. Cummings v. State, 2010 Ark. 123, 2010 WL 844815 (per curiam).
Now before us is appellant’s request that this court direct the circuit clerk to transcribe the record of the hearing held on his Rule 37.1 petition and forward it to this court to be made a part of the record on appeal. We note that the court’s order made no reference to a shearing having been held on the petition. There is also nothing in the partial record lodged with the motion for belated appeal, which became the record for the appeal once the motion was granted, that references a hearing. Nevertheless, appellant contends that a hearing was held on February 10, 2009, wherein testimony was taken from “the State and the appellant” and that the testimony directly relates to the issues to be decided in this appeal.
As a transcript of any hearing held on the Rule 37.1 petition would be germane to this appeal, we will treat the request as a petition for writ of certiorari to bring up the record of the hearing, if one was indeed held. See Houston v. State, 2010 Ark. 120, 2010 WL 844816 (per curiam). The writ will issue, returnable in thirty days, for a record of any hearing held on appellant’s Rule 37.1 petition. If the circuit clerk of Pulaski County determines that no hearing was held, the clerk may submit an affidavit averring that there was no hearing. If a hearing record is received, it will be made a part of the record, and a new briefing schedule will be set for the appeal. If the clerk advises that there was no hearing, appellant’s brief will be due thirty days from the date that the clerk’s affidavit is received.
Request treated as petition for writ of certiorari and granted.
CORBIN, J., not participating. | [
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PAUL E. DANIELSON, Justice.
liAppellants Carol Walker, individually and on behalf of her minor children Rachel Walker, James Walker, and Heather Walker; Patrick O’Bryant and Tawnya O’Bryant, Rhusband and wife, individually and on behalf of their minor children Christopher O’Bryant and Sean O’Bryant; Jerry Ferguson, individually and on behalf of his minor children Kole Ferguson, Ker-ra Ferguson, and Kannon Ferguson; and Keli Waggoner, individually and on behalf of her minor children Jaycee Waggoner and Bradley Halsell (hereinafter collectively “the Parents”) appeal from the circuit court’s order affirming the decision of ap-pellee the Arkansas State Board of Education (Board), which granted appellee/in-tervenor the Two Rivers School District’s petition for approval to close the Fourche Valley K-12 school campus. Their sole point on appeal is that the circuit court erred in affirming the Board’s decision approving the closure of Fourche Valley Elementary and High School because the Board should be enjoined from acting on petitions for closure until the State fulfills its constitutional duty to define “excessive transportation time” and to adequately fund Arkansas school districts’ transportation needs. The Board cross-appeals, arguing that the circuit court erred by failing to dismiss the Parents’ petition for judicial review (1) because the Arkansas Administrative Procedure Act (APA) did not apply, and (2) for lack of standing. We affirm both on direct appeal and on cross-appeal.
The instant appeal stems from the Two Rivers School District’s Board of Directors’ 6-1 vote to close the Fourche Valley K-12 campus, as an isolated school. The closure was |3to become effective on June 30, 2009. In accord with Arkansas Code Annotated § 6-20-602 (Repl.2007), the District filed a petition for approval of closure with the Board. On April 13, 2009, the Board held a hearing on the petition and voted 5-2 to approve the District’s petition.
On May 12, 2009, the Parents filed a petition for judicial review pursuant to the APA, naming the Board and the District as defendants. In their petition, they claimed that they would be “dramatically and negatively impacted” by the District’s attempt to close the Fourche Valley campus. Specifically, they alleged that
[i]f this attempt [to close] is effectuated, some of these children, including those as young as kindergarten and pre-school age, will be force [sic] to ride buses for up to an additional 45 additional [sic] minutes per day for a total of up to four hours per day, and to leave the safety and oversight of their local community, friends, and family to attend classes in a foreign community.
They further averred that the Board could not evaluate the District’s best interest, when the District refused to disclose to the Board or others the fiscal information related to any alternatives to closure.
On May 28, 2009, the Parents filed their first amended petition for judicial review. In that petition, the Parents alleged that them children’s fundamental rights to an adequate educational opportunity would be denied if the Fourche Valley schools were closed in that closure would force them “to endure total transportation time of up to four hours a day with an undetermined negative impact on their academic achievement.” They maintained that the | ¿General Assembly had recognized that student transportation was a necessary component of an adequate education, and they asserted that the decision of the District and the Board to close was not supported by substantial evidence; was arbitrary, capricious, and an abuse of discretion; and was in violation of their fundamental rights.
On June 12, 2009, the Board moved to dismiss the Parents’ petition for judicial review. It alleged that the petition was barred because the APA did not apply to the Board’s consideration of the District’s petition, as there was no adjudication before the Board. Accordingly, the Board urged, the circuit court was without jurisdiction. The Board further asserted that the Parents lacked standing to seek review, as they failed to allege sufficient facts to show that they suffered an injury to their persons, business, or property as a result of the Board’s action. Finally, the Board asserted, the petition was barred by the doctrine of res judicata in that the constitutional claims raised by the Parents were fully litigated and resolved in the Lake View School District litigation. The same day, the Board filed the transcript of the April 13 hearing at which the vote was taken.
Also on that day, the District filed its motion to dismiss and, alternatively, motion to intervene. In it, the District averred that the Parents’ petition for judicial review was barred as to the District, because the District was not a state agency for purposes of the APA. For |sthat reason, it claimed the circuit court lacked jurisdiction to hear the petition as against it. It further asserted, like the Board, that the petition was barred because the APA did not apply to the Board’s consider ation of the District’s petition, due to the lack of an adjudication; thus, the circuit court lacked jurisdiction. Finally, it claimed that the Board had not issued a final order as required by the APA, the Parents lacked standing, and the Parents’ claims were barred by res judicata. In the alternative, the District asserted, should the circuit court not dismiss the petition as against the Board, the District should be permitted to intervene.
The circuit court held a hearing on the foregoing on June 26, 2009, and on July 8, 2009, the circuit court filed an order denying the Board’s motion to dismiss, granting the District’s motion to dismiss and motion to intervene, and dismissing the Ferguson family as plaintiffs. In addition, the circuit court remanded the matter to the Board to adopt findings of fact and conclusions of law. On July 13, 2009, the Board held another hearing on the matter and issued findings of fact and conclusions of law, which the Board then filed with the circuit court. On July 14, 2009, the District filed its supplemental motion to dismiss the remaining Parents for lack of standing, on the basis that their students had transferred to other districts.
The next day, the Parents filed their supplemental petition for judicial review, response to the District’s first supplemental motion to dismiss, and motion for reconsideration. They contended that it was irrelevant where their children were going to school, as they were injured and their constitutional rights violated by the closure of the Fourche Valley campus. They alleged that they had been forced to choose among unconstitutional alternatives and that | fitheir standing was not lost simply because they had taken steps to mitigate their constitutional injury. They further urged the circuit court to reconsider its dismissal of the Fergusons.
On July 16, 2009, the circuit court held a second hearing. At that hearing, the circuit court ruled that the Parents had standing, that there was substantial evidence for the closing, and that the Board’s decision was not arbitrary or capricious. It then memorialized those rulings in its order of August 10, 2009, wherein the circuit court made the following findings, in pertinent part:
7. This Court held a second hearing on July 16, 2009. After reviewing all arguments presented, this Court denies the Two Rivers School District’s second motion to dismiss and finds that the petitioners have standing to petition for judicial review. This Court grants the petitioners’ motion for reconsideration of its previous ruling regarding standing and reinstates the Fergusons as petitioners.
8. This Court further finds that there is substantial evidence to support the State Board of Education’s ruling to approve the closure of the Fourche Valley campus. The Board’s ruling is not arbitrary or capricious or in violation of constitutional or statutory provisions. The Board’s ruling and subsequent entry of Findings of Fact and Conclusions of Law were not made upon unlawful procedure.
THEREFORE, pursuant to Ark.Code Ann. § 25-15-212, the decision of the Arkansas State Board of Education approving the closure of the Fourche Valley K-12 campus as reflected in its “Findings of Fact, Conclusions of Law and Order” is affirmed.
The Parents now appeal and the Board cross-appeals. Because both points on cross-appeal raise the possibility of a dismissal, we address them first.
I. Applicability of the APA
For its first point on cross-appeal, the Board urges that the circuit court erred in failing to dismiss the Parents’ petition for judicial review. It claims that the APA does not apply to the Board’s approval of the District’s petition for closure, as that decision was not an 17adjudication, but “only á routine administrative ruling” pursuant to Ark.Code Ann. § 6-20-602. For that reason, it claims, the circuit court was without jurisdiction to consider the Parents’ petition. The Parents respond that the APA applies and that the circuit court did not abuse its discretion in denying the Board’s motion to dismiss.
Our standard of review for the denial of a motion to dismiss is whether the circuit court abused its discretion. See Arkansas Dep’t of Envt’l Quality v. Oil Producers of Arkansas, 2009 Ark. 297, 318 S.W.3d 570. The question of whether a petition for judicial review under the APA is based upon a final agency decision is a jurisdictional matter that a court can address at any time. See Munson v. Arkansas Dep’t of Corr. Sex Offender Screening & Risk Assessment, 369 Ark. 290, 253 S.W.3d 901 (2007).
Arkansas Code Annotated § 25-15-212(a) permits that, “[i]n cases of adjudication, any person, except an inmate under sentence to the custody of the Department of Correction, who considers himself or herself injured in his or her person, business, or property by final agency action shall be entitled to judicial review of the action under this subchapter.” Ark.Code Amn. § 25-15-212(a) (Repl.2002). The Board contends that its approval of the District’s petition for closure was not an adjudication subject to the APA; however, we disagree.
This court has previously observed, in the context of granting a writ of prohibition, that the Arkansas State Board of Education is an administrative agency, whose decisions are subject to appeal as governed by the APA. See Arkansas State Bd. of Educ. v. Purifoy, 292 Ark. 526, 731 S.W.2d 209 (1987) (per curiam). In Puri-foy, relied on by the Parents, this court held |sthat a chancery court did not have jurisdiction to hear an action filed by a school district against the Board because the Quality Education Act of 1983, then Ark. Stat. Ann. § 80^4606, provided that appeals from rulings by the State Board of Education may be made to a “court of competent jurisdiction.” Id. at 527, 731 S.W.2d at 209. This court then deemed a court of competent jurisdiction to be the circuit court. See id.
Section 80-4606 of the Arkansas Statutes Annotated is now codified as Ark. Code Ann. § 6-15-203, which pertains to the notification by the Department of Education to school districts failing to meet standards for accreditation for elementary and secondary schools. See Ark.Code Ann. § 6-15-203 history (Repl.2007). In that section, school districts are permitted the right to appeal to the State Board of Education the Department’s determination if the school district believes the Department has improperly determined that a school or district fails to meet the accreditation standards. See Ark.Code Ann. § 6-15 — 203(b)(1). But in addition, as part of the Omnibus Quality Education Act of 2003, the General Assembly amended the provision cited in our Purifoy decision to provide that an aggrieved school district may appeal the Board’s ruling “to Pulaski County Circuit Court pursuant to the Arkansas Administrative Procedure Act, § 25-15-201 et seq.” Ark.Code Ann. § 6-15 — 203(b)(5). Thus, the General Assembly has now specifically provided that such appeals may be had pursuant to the APA. While that may be, the Board’s decision in the instant case does not fall within section 6-15-203, thus, Purifoy is inapposite. Nonetheless, we hold that the APA is applicable to a decision by the Board regard ing a petition for closure pursuant to section 6-20-602.
(}As set forth above, the APA applies to “final agency action.” Ark.Code Ann. § 25-15-212(a). “Agency ’ is defined within the Act as “each board, commission, department, officer or other authority of the government of the State of Arkansas, whether or not within, or subject to review by, another agency, except the General Assembly, the courts, and Governor” and includes “the Division of Child Care and Early Childhood Education of the Department of Human Services and the Child Care Appeal Review Panel for purposes of administrative appeal.” Ark.Code Ann. § 25-15-202(2)(A)-(B) (Supp.2009). However, the General Assembly has made clear that “agency” does not include “the Arkansas Public Service Commission, the Arkansas Pollution Control and Ecology Commission, the Workers’ Compensation Commission, and the Department of Workforce Services, it being determined by the General Assembly that the existing laws governing those agencies provide adequate administrative procedures for those agencies.” Ark.Code Ann. § 25 — 15—202(2)(C). Pursuant to the plain language defining the term “agency,” it is clear to this court that the State Board of Education is an agency for purposes of the APA.
But still, the right to judicial review under the APA is limited to “cases of adjudication.” Ark.Code Ann. § 25-15-212(a). “Adjudication” is defined within the APA as the “agency process for the formulation of an order.” Ark.Code Ann. § 25-15-202(l)(A). “Order” is defined as “the final disposition of an agency in any matter other than rule making, including licensing and rate making, in which the agency is required by law to make its determination after notice and hearing.” Ark.Code Ann. § 25-15-202(5) (emphasis added). Where there has been no adjudication before the administrative agency, there has been no 110final agency action to be reviewed pursuant to section 25-15-212. See Arkansas Prof'l Bail Bondsman Licensing Bd. v. Frawley, 350 Ark. 444, 88 S.W.3d 418 (2002).
Claiming there was no adjudication, the Board argues that its decision to approve or disapprove of a district’s petition is an administrative decision, rather than a judicial one. In Sikes v. General Publishing Co., Inc., 264 Ark. 1, 568 S.W.2d 33 (1978), this court drew a distinction between the two, stating:
Administrative boards and commissions act at times administratively and at times judicially or quasi-judicially. But courts act judicially in reviewing administrative proceedings. The distinction is fundamental under the constitutional separation of powers.
The Administrative Procedure Act makes it clear that, under the act, the courts’ appellate review is confined to adjudications and does not extend to administrative rulings. An “adjudication” is simply a judicial determination. Webster’s New International Dictionary (2d ed., 1939).
It seems too clear for argument that the action taken by the Printing Board at its meeting on January 6 was not such an adjudication under the Administrative Procedure Act as to be subject to review in Ouachita County. The Board was not required by law to make its determination after notice and a hearing. The Board heard no testimony. It made no findings of fact or conclusions of law. No copy of any decision or order was served on the parties. No record of the proceedings was certified by the Board to the Ouachita Circuit Court, which heard the matter simply on a complaint filed by Hurley.
All that happened at the January 6 meeting was that the Board acted upon an administrative matter that was on its agenda. There was no adjudication within the purview of the Administrative Procedure Act. We do not imply that if Hurley’s property rights were adversely affected by the action taken at the meeting, it might not have had a remedy, as by seeking a writ of certiorari in Pulaski County, where state agencies are subject to suit. Ark. Stat. Ann. § 27-603 (Repl.1962). But the Ouachita Circuit Court had no jurisdiction in the matter and should have sustained the Board’s motion to dismiss the complaint. We therefore reverse the judgment of that court and dismiss the action.
264 Ark. at 5-7, 568 S.W.2d at 35-36 (emphasis in original). In Sikes, the State Printing | nBoard awarded several printing contracts to the Hurley Company; however, a few days after the execution of the contracts, the Board was informed that the company had failed to file performance bonds within the required time. See id. The Board reviewed the matter at a meeting and voted to rescind the contracts and award them to other bidders. See id. The Hurley Company then sued the Board under the APA. See id. That differs from the decision at issue in the instant case.
In this case, pursuant to the statute, the District was prevented from closing the Fourche Valley campus unless it adopted a motion to close the school either by a unanimous vote or a majority vote and with consideration and approval by a majority of the Board. See Ark.Code Ann. § 6 — 20—602(b)(1)—(2)(A). The statute further provided that the Board “shall only approve a motion to close isolated schools or parts thereof ... if the closure is in the best interest of the students in the school district as a whole.” Ark.Code Ann. § 6-20-602(2)(C)(ii). Thus, the Board is charged with making this determination and was given a standard for review for making such a determination. The statute further provides:
(B) Any school board of directors seeking the state board approval to close isolated schools or parts thereof under subdivision (b)(2)(A) of this section shall:
(i) No less than thirty (30) days prior to a regularly scheduled state board meeting, request a hearing on the matter before the state board and file a petition to have the motion reviewed and approved by the state board.
Ark.Code Ann. § 6 — 20—602(2)(B)(i) (emphasis added). Consequently, the determination is prompted by a school district’s petition, which must contain statutorily required information, |12and the Board is permitted to approve or disapprove of the petition based on the set forth standard. After considering the procedure established by the General Assembly in section 6-20-602, we conclude that the Board acts in a judicial or quasi-judicial capacity, rather than a day-to-day administrative capacity, when it reviews a petition for closure of an isolated school.
In addition, the record reveals that both notice and a hearing were part of the Board’s determination regarding the Fourehe Valley campus. As required by the statute, a school district must request, no less than thirty days prior to a regularly scheduled meeting of the Board, a hearing, and file a petition. The District did so, and the record reflects that on April 1, 2009, the Department of Education notified the District that a hearing on its petition would be held on April 13, 2009, at 9:00 a.m. That hearing was held; thus, both notice and a hearing were had. In addition, the Board is authorized by the statute to review and approve or disapprove of the petition, constituting a final disposition in any matter other than | isrule making in which the agency was required by law to make a determination. Accordingly, we hold that the Board’s determination on the petition was a final disposition and constituted an adjudication for purposes of the APA, rendering the APA applicable. For these reasons, we affirm the circuit court’s denial of the Board’s motion to dismiss on this basis.
II. Standing
For its final point on cross-appeal, the Board argues that the circuit court erred in failing to dismiss the Parents’ petition for judicial review due to their lack of standing. The Board asserts that the Parents did not show that they had suffered an injury as a result of the Board’s decision and, thus, they lacked standing. It avers that the Parents failed to allege a concrete, specific, real, and immediate injury required for standing under the APA. The Board maintains that the Parents cannot show that their constitutional rights have been violated by the closure because they have no constitutional right to attend the school or campus of their choice and that they cannot show that their transportation time is any more burdensome than that of any other students residing in rural Arkansas. For these reasons, the Board claims, the Parents lacked standing and their petition for judicial review should have been dismissed.
The Parents respond that all that was required of them to establish an injury under the APA was a showing that the agency’s act had a prejudicial impact on them. They maintain that their claim of constitutional injury was sufficient to confer standing, but, further, the disruption in their children’s education resulting from changing schools was also sufficient prejudicial impact. Accordingly, the Parents contend that the circuit court properly denied |14the Board’s motion to dismiss on this basis.
The question of standing is a matter of law for this court to decide, and this court reviews questions of law de novo. See Arkansas Beverage Retailers Ass’n, Inc. v. Moore, 369 Ark. 498, 256 S.W.3d 488 (2007). In Moore, this court held that, for purposes of the APA,
so long as an individual considers his or her legal rights violated or considers himself or herself harmed or damaged, has been adversely affected or aggrieved by the agency action, has a personal stake in the outcome of the controversy, and can demonstrate a concrete, specific, real, arid immediate injury by the agency’s final action, that individual is entitled to judicial review of that agency action.
Id. at 505-06, 256 S.W.3d at 494.
Here, the Parents alleged in their petitions for judicial review that their children had a fundamental right to an adequate educational opportunity, which would be denied if the Fourche Valley campus was closed, due to the increased transportation time they would suffer. They further claimed that the increased transportation time would have an undetermined negative impact on their academic achievements. In making these assertions, the Parents relied on this court’s decision in Lake View School District No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002). However, in Lake View, this court specifically found it “unnecessary to reach the issue of whether a fundamental right [to an adequate education was] also implied,” instead holding that the clear language of Ark. Const, art. 14 imposed upon the State an absolute constitutional duty to provide an adequate education to its children. 351 Ark. at 71, 91 S.W.3d at 495. Notwithstanding the fact that we have not previously recognized a fundamental right to an adequate education, the State has an absolute constitutional duty to provide them with one, and we hold that the Parents’ allegation that their children would | iS suffer a negative impact on their academic achievement due to the Board’s approval of the District’s petition for closure was sufficient injury to confer standing under the APA as outlined in Moore. Accordingly, the circuit court did not abuse its discretion in denying the Board’s motion to dismiss on the basis of standing. Having so decided, we turn to the Parents’ direct appeal.
III. Appeal of the Board’s Decision
For their sole point on appeal, the Parents argue that the Board’s approval of the District’s petition for closure was in violation of their children’s constitutional rights. They contend that transportation is a necessary component to the provision of an equal opportunity to an adequate education. The Parents aver that the Arkansas Constitution requires the State to define “excessive transportation” and to adequately fund the transportation needs of school districts. They claim that until the State so defines and funds, the Board should be enjoined from authorizing the District’s petition for closure.
The Board responds, asserting initially that the Parents’ argument is not preserved for appeal because they did not obtain a proper ruling on it before the circuit court. It urges that the circuit court did not issue a ruling as to whether excessive transportation time must be defined before approval of a petition for closure. The Board further states that the Parents have failed to demonstrate how their children will be denied an adequate education, as no constitutional provision requires the Board to define the term. It submits that whether the term is defined and whether appropriate funding for transportation is provided are well beyond the scope of the Board’s authority and beyond this court’s review under the APA; | ir,instead, it points out, a more appropriate venue to obtain such relief would be to file a declaratory-judgment action. With respect to the merits, the Board asserts that its decision was supported by substantial evidence and was in no way arbitrary or capricious.
The District responds, also arguing that the Parents failed to preserve their argument on appeal, as the circuit court did not specifically rule on the Parents’ constitutional argument. It maintains that the circuit court’s order should be affirmed because the Parents’ claims are barred by res judicata, in that they were fully litigated and resolved in Lake View, supra. Alternatively, the District claims, substantial evidence supported the circuit court’s affir-mance of the Board’s decision.
Our review of an appeal under the APA is directed, not toward the circuit court, but toward the decision of the agency, because administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies. See Ford Motor Co. v. Arkansas Motor Vehicle Comm’n, 357 Ark. 125, 161 S.W.3d 788 (2004). Our review of administrative decisions is limited in scope. See id. When reviewing such decisions, we uphold them if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. See id.
In determining whether a decision is supported by substantial evidence, we review the record to ascertain if the decision is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. See id. In doing so, we give the evidence its strongest probative force in favor of the administrative agency. See id. The question is not 117whether the testimony would have supported a contrary finding, but whether it supports the finding that was made. See id. As true for any other fact-finder, it is the prerogative of the agency to believe or disbelieve any witness and to decide what weight to accord the evidence. See id.
As an initial matter, our review of the record reveals that the Parents’ argument is preserved for appeal. In the hearing before the Board, the Parents’ legal counsel argued that
it’s the State’s duty to define “an adequate education.” As they said in the Lakeview case, an adequacy study is necessary and must be conducted forthwith. Excessive transportation time may deny the student a substantial equal [sic] opportunity to an adequate education. The State must define “excessive transportation time” to comply with the mandate of Lakeview, and this Board should not approve the closure of an isolated school until “excessive transportation time” has been defined and this district can prove that closure will not result in “excessive transportation time.”
Moreover, before the circuit court, the Parents clearly presented their constitutional claim, arguing that
We’re making a claim essentially based on Article XIV, Section 1, Article II, Sections 2, 3, and 8 of the Arkansas Constitution as interpreted by the Arkansas Supreme Court in the Lake View decisions.
The duty to determine adequacy is an affirmative duty. It requires action, and this means the State cannot stick its head in the sand after identifying a problem. It must assess and evaluate the problem and to take [sic] appropriate actions to ensure that no child in this State is denied his right to an adequate education.
In the context of the present case, the problem is the transportation of isolated school students. The State has recognized the problem. Recognized it in 2005 passing a statute requiring a study of the issue, but then it has failed to complete the study, and failed to take any action.
Our position is before you close an isolated school, you have to complete that study. You have to decide are isolated schools necessary to an adequate educational system in the State of Arkansas. And we submit that in order to make that determination, the State of Arkansas must determine whether an isolated school — well, in order to deter mine whether an isolated school is necessary to an adequate education 11ssystem, the State must do two things, which is define excessive transportation time.... And, then second, address the issue of transportation variability....
Until the General Assembly makes those determinations and answers those questions, any decision to close an isolated school is arbitrary, capricious, and a violation of the Arkansas Constitution.
And, finally, the circuit court, in its order, as set forth above, ruled that there was substantial evidence to support the Board’s ruling and that the ruling was “not arbitrary or capricious or in violation of constitutional or statutory provisions.” Because it is clear that the Parents raised their argument before the Board and circuit court and obtained a ruling, the Parents’ argument is preserved for this court’s review. We turn, then, to the merits of the Parents’ claim.
As set forth above, this court has previously held that the State has an absolute duty under our state constitution to provide an adequate education to each school child, as well as an equal education to each school child. See Lake View, 351 Ark. at 71, 78-79, 91 S.W.3d at 495, 500. Instead of challenging the evidence before the Board, the Parents urge that the State has the obligation to render a definition of excessive transportation time and to provide adequate funding, and until it does so, the Board should be enjoined from rendering any decision under section 6-20-602. However, their claim that the State is failing in its obligation does not warrant reversal of the Board’s decision in this appeal under the APA.
|iaThe State was not a defendant in this case, and it is the Board’s action that is the sole action subject to review under the APA. While the Board is an agency of the State, it is not the State itself, and because this is an appeal under the APA, whether or not the State itself is in violation of its constitutional duty to provide an adequate education is simply not before us. Under the APA, the Parents’ challenge is limited strictly to the final action of the agency, here, the Board’s approval of the District’s petition for closure. See Ark.Code Ann. § 25-15-212(a). Moreover, our review is strictly limited to determining whether the substantial rights of the Parents have been prejudiced because the Board’s decision was:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency’s statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.
Ark.Code Ann. § 25-15-212(h).
Here, the Parents have asked this court to enjoin the Board from acting on petitions for closure, claiming solely that any approval to close renders their children’s education constitutionally inadequate due to the State’s failures. But, as it currently stands, our educational system is constitutionally firm, see Lake View School District No. 25 v. Huckabee, 370 Ark. 139, 257 S.W.3d 879 (2007), and the Board’s decision itself was not in violation of any constitutional authority.
boThere is the point, too, that the Parents have failed to direct this court to any authority that the Board itself was required to define excessive transportation time. State agencies [jonly possess such powers as are conferred by statute or necessarily implied from a statute. See Brookshire v. Adcock, 2009 Ark. 207, 307 S.W.3d 22. Pursuant to section 6-20-602, the Board is limited to only two considerations when making a decision to approve or disapprove a petition for closure. Specifically, the statute authorizes the Board to make such a determination, see Ark. Code Ann. § 6-20-602(b)(2)(C)(i), and in doing so, the Board shall only approve the petition if: (1) the closure is in the best interest of students in the school district as a whole; and (2) the closure will not have any negative impact on desegregation efforts or will not violate any valid court order from a court of proper jurisdiction. See Ark.Code Ann. § 6-20-602(b)(2)(C)(ii) — (iii). Our review of the record reveals that the Board’s decision to approve the District’s petition for closure did not violate a constitutional provision and complied with the Board’s statutory authority. Because the Parents have not demonstrated that the Board’s action in approving the petition for closure prejudiced their substantial rights under one of the bases of section 25-15-212(h), we affirm.
Affirmed.
CORBIN, J., not participating.
. Arkansas Code Annotated § 6-20-602(a) (Repl.2007) provides that:
(a) “Isolated school” means a school within a school district that:
(1) Prior to administrative consolidation or annexation under this section, § 6 — 13— 1601 et seq., and § 6-13-1405(a)(5) qualified as an isolated school district under § 6-20-601; and
(2) Is subject to administrative consolidation or annexation under this section,
§ 6-13-1601 et seq., and § 6-13-1405(a)(5).
. Alternatively, the Parents invoked their statutory right to demand judicial review of the administrative decision and to obtain the fiscal data from the District cited by it in its petition to close, as well as the fiscal data from the District related to the alternative, partial closing of solely the 7th-12th grade programs.
. While not pertinent to this appeal, the Board also asserted a failure of service.
. Those requirements include:
(ii) The petition shall:
(a) Identify the specific isolated schools or part thereof that the local board of directors has moved to close;
(⅛) State all reasons that the isolated schools or part thereof should be closed;
(c)State how the closure will serve the best interests of the students in the district as a whole;
(d) State if the closure will have any negative impact on desegregation efforts or violate any valid court order from a court of proper jurisdiction; and
(e) Have attached a copy of the final motion approving the closure by the local board of directors.
Ark.Code Ann. § 6-20-602(2)(B)(ii).
. Contained within the record too were certain Board procedures for isolated-school closure that provided time for both the petitioning school district and any persons opposed to the closure to address the Board.
. The District argues that the Parents' claims are barred by the doctrine of res judicata because "the issues surrounding the definition and determination of adequacy were fully litigated” in the Lake View litigation. Were this court to so hold, it would preclude any future challenge ever made to the constitutionality of the state's educational system. There is simply no merit to this argument by the District.
. It is evident to this court that the General Assembly is aware of the issues involving public-school transportation, and we have every confidence that its resolution of any matters involving education, such as transportation concerns, will be direct and substantial.
. In their statement of the case, the Parents cite to Ark.Code Ann. § 6-19-123(a) (Repl. 2007), which provides:
(a) The Bureau of Legislative Research in conjunction with the Division of Public School Academic Facilities and Transportation shall conduct a study of the transportation of public school students by public school districts in the state with an emphasis on public school districts resulting from consolidation or annexation, isolated school districts, and public school districts with declining enrollment to assess whether the time and cost of public school district transportation for students enrolled in those public school districts can or should be minimized.
(b) The study shall include, without limitation, the following:
(1) How public school districts administer student transportation routes and number of school buses to accommodate student needs;
(2) How regional or local geography influences time and cost of school bus routes;
(3) How student characteristics and density or scarcity of student population impact the time and cost of student transportation; and
(4) A review of other states’ practices concerning student transportation.
(c) The bureau shall report its findings and recommendations to the House Interim Committee on Education and the Senate Interim Committee on Education before October 1, 2008.
(d) The report shall include, without limitation, the following:
(1) A description of the boundaries of all public school districts resulting from consolidation or annexation;
(2) A list of public school districts for which a boundary adjustment or other alternative would reduce the public school district's transportation time or cost;
(3) A detailed description of each alternative for reducing a public school district’s transportation time or cost, including without limitation for each alternative:
(A) The number of hours of transportation time saved per student presented by public school district and by statewide total; and
(B) The total cost saved under the alternative presented by public school district and by statewide total; and
(4) A description of the proposed implementation of any alternative, including without limitation:
(A) The cost of implementation; and
(B) For any boundary change considered in the alternative, the impact, if any, of the boundary change on an affected public school district’s compliance with the
State Board of Education’s standards for accreditation, academic achievement, and financial management.
Ark. Code Ann. § 6-19-123 (Repl.2007). However, the plain language of the statute requires this report to be prepared not by the Board of Education, but by the Bureau of Legislative Research, in conjunction with the Division of Public School Academic Facilities and Transportation. That Division operates under the direct supervision of the Commission for Arkansas Public School Academic Facilities and Transportation, which shall consist of the Director of the Department of Finance and Administration, the Commissioner of Education, and the President of the Arkansas Development Finance Authority. See Ark.Code Ann. § 6-21-112 & § 6-21-114 (Supp.2009). | [
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Mr. Chief Justice English
delivered the opinion of the Court.
This was an action of replevin, in the cepit and dctinct, brought by William T. Oswalt, executor of Levisa Dobbins, deceased, in the Phillips Circuit Court, against Wilson D. Dobbins and Archibald S. Dobbins, for the recovery of certain articles of household furniture, farming implements, cattle, horses, mules, a number of slaves, etc., etc.
The defendants pleaded ne ungues executor, non cepit, non detinet, and property in themselves, severally; issues to the pleas were submitted to a jury, verdict and judgment for the plaintiff, and appeal by the defendants on questions of law reserved during the trial.
On the trial, the appellee was permitted by the Court, against the objection of the appellants, to read in evidence the following ante nuptial contract, entered into by his testatrix and the appellant, Wilson D. Dobbins:
“Whereas, a marriage is intended shortly to be had and solemnized between Wilson D. Dobbins, of the county of Jackson, in the State of Arkansas, and Levisa Pillow, of the county of Phillips, and State aforesaid: and, whereas, the said parties are desirous to keep and retain to themselves certain rights and privileges, which they could not enjoy and possess without a reservation thereof, under and by virtue of a- contract for that purpose entered into and made in conformity to the statute, in such cases made and provided: Therefore these presents witnesseth that the said parties do agree to and with each other that notwithstanding their contemplated marriage shall hereafter take place and be solemnized, that the joint property of the two shall be used and controlled by them mutually, during the time they may continue to live and cohabit together as husband and wife; and it is furthermore agreed by and between them, that, in prospect of death, the said Levisa hereby reserves to herself the right, power and privilege of disposing of any or all of her property, which she may then own, by will, or devise, to such person or persons that she may choose, without the advice or consent of the said Wilson D.: and that, in case the marriage hereby contemplated to be entered into by and between the said parties, should be dissolved, otherwise than by death of the parties, that then, and in that case, the property of each shall be returned to the one who may have brought the same with marriage: and it is agreed, by and between the parties hereto, that the annual proceeds of the mutual property of the parties to this contract shall be applied, first, during their cohabitation, to their mutual support, and the rest and residue thereof shall and may be applied, during that time, to such objects and uses as the said Wilson D. may desire or wish.”
Which contract was signed and sealed by the parties 31st January, 1853, and attested by two witnesses. On the 3d of February of the same year, its execution was proven before the recorder of Phillips county, by one of the subscribing witnesses, and on the next day it was filed for registration, etc.
It was also proven, that at the time of the marriage, which occurred shortly after the contract, Mrs. Dobbins was possessed of the property in controversy, which remained upon the place where she resided, and to which Wilson D. Dobbins removed, until after her death.
The appellee was also permitted to read in evidence, against the objection of appellants, an authenticated copy of the will of Mrs. Dobbins, executed 23d March, 1855, and admitted to probate 20th October following, by which she devised all of her separate real and personal property to her grand children, appointing the appellee her executor, and referring to the marriage contract as empowering her to make a will, etc.
Before the death of Mrs. Dobbins, her husband, the appellant Wilson D. Dobbins, conveyed to his brother, the appellant Archibald S. Dobbins, most of the property in controversy, the latter purchasing with actual notice of the marriage contract, and that the property conveyed to him belonged to Mrs. Dobbins at the time of the marriage with his brother. The property, however remained in the possession of Wilson D. Dobbins until it was replevied in this suit. It was not proved upon the trial that he had any other right to it than that acquired by his marriage with Mrs. Dobbins.
The material questions of law reserved at the trial, arising upon the admission of evidence, and the instructions given and refused by the Court, to the jury, have relation to the validity of the marriage contract, and its efficacy to exclude the marital rights of the husband, and preserve to Mrs. Dobbins a separate right to the property owned by her at the time of the marriage, etc.
The same marriage contract was before this Court in Oswalt vs. Moore, 19 Ark. R. 260, where the Court said:
“To this ante-nuptial agreement, the husband himself was a party. When this is the case, the rigid and severe rules which require the express and emphatic negation of the marital rights ¿f the husband, in order to constitute a sole and separate estate in the wife, necessary when the husband is not a party to the instrument of settlement, are not applicable; but it will be sufficient ‘ whenever it appears, either from the nature of the transaction, as in the instance where the husband is a party to a settlement in contemplation of marriage, or from the whole context of the instrument limiting to the wife the property, that she was intended to have it to her. sole use, that intention will be carried into effect by a court of equity.’ ”
' -. Then, after commenting upon the provisions of the contract, the Court further said:
• “ Under such circumstances we cannot doubt but that it was the intention of the contracting parties, that Mrs. Dobbins should remain the sole and separate owner of the property carried by her into the marriage, subject to the mutual use provided for, and to the use of its annual proceeds, otherwise provided for; and consequently, that she could charge it in equity» ■during coverture, as her sole and separate property, precisely as she might have done at law had she been a feme sole, and ■by contract, created a joint or partnership property with Dobbins, in such as she and he might have owned under like circumstances.”
•-■ The -validity of the marriage contract was, also, in effect, recognized in Davis vs. Oswalt Ex., 18 Ark. 414.
. Thé contract was not only executed, proven and recorded ■in accordance with the statute in relation to marriage contracts, but, as above stated, the appellant, Archibald S. Dobbins, purchased the property belonging to the wife, of the husband, with ■actual notice of the contract. Gould’s Dig., ch. 110, sec. 1, 2, 5.
By virtue of the contract, Mrs. Dobbins was legally capable of making a will disposing of her separate property. Gould’s Dig., chap. 180, sec. 3.
Her executor was entitled to the possession of the property, ■:áñd if taken or detained from him by the appellants, he had the right to recover it by replevin. Cox et al. vs. Morrow, 13 Ark. 603.
On the trial, the Court, against the objection of the appellants, permitted the áppellee to prove that a portion of the property in controversy had been sold, after it had been replevied, under deeds of trust and decrees with which it was encumbered before the institution of the suit.
The object of this proof was to protect the appellee against a judgment for the return of the property sold under the prior liens, or its value, should he fail in the action.
At the instance of the appellee, and against the objection of the appellant, the Court also gave the jury several instructions upon this feature of the case.
But inasmuch as the appellee did not fail in the action, it becomes unnecessary to determine whether he would have been responsible for a return, or the value of that portion of the property of which he was so deprived after it was replevied, or not.
The bill of exceptions also shows that after the evidence had been closed on both sides, the counsel for the appellant moved to exclude from the jury the marriage contract, and the will of Mrs. Dobbins, and insisted that the Court should hear argument on the motion, which the Court declined to do.
It also appears from the bill of exceptions, that the counsel for the appellants moved the Court to give fifteen instructions to the jury, and insisted upon making an argument to the Court in support of the legal propositions embraced in them-,, which the Court declined to hear.
It appears from the transcript of the record, that the trial was commenced on the first, and continued until the 5th of June. It appears, also, that at the time the marriage contract and the will were offered in evidence, the counsel for appellants objected to their admission, and that the objection was overruled after argument of counsel, etc.
As above stated, the validity of the marriage contract, etc.,, was the principal legal question involved in the cause, and in the instructions moved by the parties. .
What portion of the five days occupied in the trial was consumed in the discussion of this question, and others incidental to, or growing out of it, does not appear from the record.
Whilst the right of argument is not to be denied to counsel, the regulation of the length of time to be occupied in discussion, and the determination of the legitimate questions for argument must necessarily be left to the sound legal discretion and discrimination of the presiding judge. Otherwise, the entire term of a Circuit Court, continuing in most of the counties for one week, might be taken up in the trial of one cause, to the exclusión of others, and the delay of justice.
Whether the discretion exercised by the presiding judge in the regulation of the argument is the subject of review by this Court, need not be determined, as there is no showing that it was-abused to the prejudice of the appellants in this case.
Finding no error in the record for which the judgment should be reversed, it must be affirmed.
Mr. Justice Rector, absent. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
On the 2d of May, 1853, Caleb Elliott filed a bill in the Circuit Court of Phillips county, against Thomas Pearce, Ephraim Putnam, and his wife Prudence, to quiet title, etc., to the southwest quarter of section 29, towmship one north, range four east, etc.
At the return term, (Nov. 1853,) a decree pro confesso, was taken against Putnam and wife; Pearce answered the bill, making his answer a cross-bill; Elliott filed a replication to the answer, and entered his appearance to tho cross-bill, under an agreement that he should not answer it until the next term.
At the May term, 1854, Elliott filed successively a plea in abatement, and a demurrer to the cross-bill, which were stricken out, his solicitor was refused further time to prepare and file an answer, and an order made that the cross-bill be taken as confessed.
The cause was finally heard upon the original bill, answer, replication, depositions, and the cross-bill as confessed; and the court dismissed the original bill, for want of equity, and decreed .the land in controversy to Pearce upon the cross-bill. Elliott appealed, afterwards died, and his administrator and heirs were substituted as appellants here.
Finding that the case may be finally disposed of upon the merits, it is deemed of no importance to decide the preliminary questions of pleading and practice, which arose in the progress of the cause in the court below, and which have been discussed by the counsel of the parties here.
In the original bill, the title of Elliott is made out as follows:
On the 18th of January, 1831, the land was patented to Prudence Putnam.
On the 14th of October, 1838, she and her husband sold and conveyed the land to Sylvester.
On the 13th October, 1851, Sylvester conveyed it to Elliott.
On the 27th of December, 1837, one McPherson, representing himself as having the right to sell the land, sold it to Elliott, gave him a bond for title, and delivered the possession of the land to him, etc.
On the 5th of November, 1838, the land was sold for taxes assessed upon it, in the name of Prudence Putnam, for the years 1834-5-8-7-8, inclusive, purchased by McPherson, who obtained the collector’s certificate of purchase, transferred it to Elliott, and on the 10th of October, 1844, the collector made him a tax deed for the land.
From the time Elliott purchased from McPherson, in December, 1837, until the filing of the bill, he was in the actual, continuous, adverse possession of the land, cultivating, improving and living upon it, claiming it as his own, etc., his title papers being upon the public records, etc.
On the 9th of March, 1852, Pearce having discovered that the deed from Putnam and wife to Sylvester, was defectively acknowledged, applied to them and purchased the land, in fraud of Elliott’s rights, for a nominal price, obtained their quitclaim deed therefor, and' had instituted an action against Elliott to recover possession of the land, etc.
The answer of Pearce impeaches the validity of the title papers of Elliott, asserts the superiority oí his own purchase from Putnam and wife; and, as a matter of pleading merely, and not for discovery, the answer is made a cross-bill for the purpose of obtaining a decree against Elliott, for possession of the land, etc., etc.
1. The certificate of acknowledgment appended to the deed from Putnam and wife to Sylvester, as it is copied in the transcript before us, is as follows:
“STATE OF NEW HAMPSHIRE, ) gg Sullivan--, )
Ephraim Putnam and--, personally appeared and acknowledged the foregoing instrument to be their voluntary act and deed, before me.
J. J. GILCHRIST,
Justice of the Peace."
The certificate bears no date. The deed is dated the 14th of October, 1836, and the subscribing witnesses attest the signatures of Putnam and wife, as of the same date. The deed, with the certificate attached, was filed for registration in the office of the Recorder of Phillips county, 8th July, 1837; and the certificate must, therefore, have been made at some time between the date of the deed and its registration.
It does not appear from the certificate that Mrs. Putnam acknowledged the execution of the deed at all. But if it be supposed that the omission of her name was a clerical misprision, still the certificate as to her amounts to nothing.
By the common law, a married woman could only convey her real estate by a fine or common recovery. She could not conveyby deed. McDaniel vs. Grace, et al., 15 Ark. 478.
We have been able to find no statute of this State or Territoiy, enacted prior to 8th July, 1837, prescribing the mode in which a married woman might convey her separate real estate. Under subsequent statutes, she may convey by deed, but the execution of the conveyance, to be valid, must be upon a private examination and acknowledgment. Ib.
The deed in question was, therefore, of no validity as to Mrs. Putnam.
The acknowledgment by Putnam, the husband, was also informal, there being, at that time, no statute authorizing a Justice of the Peace, of a sister State, to take and certify an acknowledgment of a deed by a non-resident, to land lying within this State. Steel & McC. Dig. p. 133.
But though the deed was recorded upon a defective acknowledgment, by the husband, and the registration thereof was illegal and ineffectual, yet by the act of the 5th of January, 1843, (Gould's Dig. chap. 37, see. 32, p. 269,) the informality in the acknowledgment was cured, the registration was legalized, and from the date of the curing act the deed could not “ be impeached for not being duhj recorded,” and had “ the same legal force and effect as if it had been duly recorded in the first instance,” except as to persons acquiring rights prior to the passage of the act. In other words, from the date of the act it is to be regarded as a duly recorded deed from Putnam to Sylvester. Noakes vs. Martin, 15 Ill. 118; Raverty et al. vs. Fidge et al. 3 McLean R. 231; Ib. 385; Rainey vs. Gordon, 6 Humph. 357; Jackson vs. Gilchrist, 15 John R. 109; Watson et al. vs. Mercer, 8 Peters R. 108; Smith Com. 546.
2. The deed from Sylvester to Elliott purports on its face to have been executed and acknowledged by Woodruff, as attorney in fact for Sylvester. The power under which Woodruff executed the deed, does not appear to have been recorded with it, nor was it exhibited with the bill, or produced at the hearing. The answrer putting in issue the execution of the deed, the power under which it was executed should have been produced, etc. So that it might be seen whether there was authority for the act done, and also, whether the act was performed in a proper manner. Tolman vs. Emerson, 4 Pick R. 162; Cow. & H. notes on Phillips Evidence, part 2, p. 812.
3. There is no showing that McPherson had any title to the land at the time he executed his bond for title to Elliott, of that he afterwards acquired any title other than that purchased by him at the sale of the land for taxes.
4. In the answer of Pearce, several objections are taken to the validity of the tax sale, and among them it is averred that an illegal a.nd excessive amount of back taxes, penalties, etc., were charged upon the land, etc. Treating these allegations as part of the cross-bill, which was taken as confessed, by the failure of Elliott to answer it, it may be assumed, for the purposes of this case, that the objections made to the regularity of the tax sale are true in fact, and'that the sale was illegal and invalid.
The act of 3d March, 1838, provides that, “ All actions against the purchaser, his heirs or assigns, for the recovery of lands sold by any collector of the revenue for the non-payment of taxes, and for lands sold at judicial sales, shall be brought within five years after the date of such sale, and not thereafter: saving to minors, and persons of unsound mind, the period of three years after such disability shall have been removed.” Eng. Dig., chap. 99, see. 6.
There is no exception in this statute in favor of married women. It began to run against Putnam and wife, under whom Pearce claims to hold the land, on the 5th of November? 1838, the date of the tax sale, and the five years elapsed on the 5th of November, 1843, and before the passage of the act of the 14th December, 1844, (Gould's Dig., chap. 106, sec. 16,) making a reservation in favor of married women. Pearce purchased the land of Putnam andwdfe (9th March, 1852,) after the pei’iod of limitation expired, and after their right of action wras barred, and of course he could not purchase of them a right which they had lost.
It is true that the tax sale was irregular, as conceded above, but it was sufficient, in connection with the actual possession of the land by Elliott during the entire period of limitation, to entitle him to have his possession protected, and his title quieted. Pillow vs. Roberts, 7 Eng. 829.
The decree of the Court below in favor of Pearce upon the cross-bill, was erroneous, for two reasons:
1st. Before he purchased the land of Putnam and wife, Putnam had conveyed all his interest therein to Sylvester, w'hich was the use of the land during coverture, etc., and Pearce purchased no title of Mrs. Putnam which he could assert for the purpose of obtaining possession of the land, until after the interest conveyed by the husband terminated. (Jackson vs. Sears, 10 Johns. R. 441; Reeve’s D. R. 27, 28.)
2d. Elliott made out a superior title by lapse of time, in connection with his possession and title papers.
It follows that the decree of the Court below must be reversed; and a decree entered here in favor of the appellants, quieting their title to the land in controversy, etc., in accordance with the prayer of the original bill.
Opinion of Rector, J.,
expressing his own views.
This was a bill, filed by Caleb Elliott, in the Phillips Circuit Court, May, 1852, against Ephraim and Prudence Putnam and Thomas Pearce.
The complainant sets up, as title to the south-west quarter of section 29, township one north, range four east, a bond, executed to him 27th December, 1837, by one Wm. M. McPherson — a sale of the land to McPherson for taxes, Nov. 1838, by the sheriff of Phillips county, a sale of the land by Ephraim and Prudence Putnam, in 1836, to Henry H. Sylvester, and purchase by him from Sylvester, in 1851. That he took possession in 1837, under McPherson, has had it ever since, and has made lasting and valuable improvements, and put some of the land in cultivation. He alleges that on the 9th of March, 1852, Ephraim and Prudence Putnam sold the land again to the defendant, Pearce, — that Pearce knew of his title from them, through Sylvester, and that Pearce’s purchase was fraudulent, etc. He prays special relief, that Pearce’s deed be canceled, and that he be injoined from setting up his title, etc.; that the defendant, Pearce, has already commenced suit in ejectment against him, etc., etc.
Pearce answered the bill — says: he has dismissed the suit in ejectment, admits the pretended transfers, and bond, to the complainant for the land — admits complainant’s possession— the sale of the land for taxes — his deed and purchase from the Tutnams. But he denies the validity of any of said evidences of title to Elliott — denies the validity of the tax sale by the sheriff of Phillips county — charges that the bond from McPherson to complainant was a device to defraud the proper owners — and that McPherson and complainant stood, to the rightful owners, the Putnams, in the light of tenants in possession, and were bound to pay the taxes on the land, and could not, for that reason, purchase it. He makes his answer a cross-bill, and avers his purchase from Ephraim and Prudence, made in 1852, to be the superior title in law and equity.
Publication was had against defendants Ephraim and Prudence, and at the November term, 1853, a decree pro confcsso entered as to them.
Complainant filed his general replication — waived service as to cross-bill, upon terms — to answer by the next term of the Court. And, at said succeeding term, May, 1854, the appellant, Elliott, filed a plea in abatement to the cross-bill, alleging the non-residence of Pearce, and that he, nor any one for him, had filed a bond for costs in the cross suit; which, upon motion, was stricken out, and appellant excepted.
The appellant then filed a demurrer to the cross-bill:
1st. For want of equity.
2d. Because appellee was not entitled to an answer to his cross-bill, until he should affix interrogatories, directing appellant to what part of his said answer, he designed as cross-matter.
Which was also stricken out by the Court, and appellant excepted.
Thomas B. Hanly, solicitor for Elliott, then presented his affidavit, and moved the Court for further time for appellant to file his answer to the cross-bill of appellee, and in which affidavit he stated, that sometime in the preceding month of January, by appointment, appellant, living some fifteen miles in the country, came into Helena, for the purpose of having his answer prepared, etc. That affiant then appointed the week interven ing between the Crittenden Circuit Court and the meeting of that Court, to prepare said answer — that appellant came in accordingly, etc. But that he, Hanly, was unexpected!]' engaged in the trial of the Martha Washington case, and could not attend to the matter. That it was then deferred until the Monday following. But that appellant did not reach town until Tuesday, and until after the calling of Court, and that then affiant was actively engaged in business in Court until Wednesday following, when appellant left town, saying he would return the Monday following. But that appellant had not returned — he presumed, was providentially prevented — had a meritorious defence — would be irretrievably injured if cross-bill was taken as confessed, and was willing to submit to any terms imposed by the Court.
But the Court overruled the motion, ordered the cross-bill to be taken as confessed — and appellant again excepted, etc.
The cause was then continued, without further action, until the next term of the Court, at which Hanly and Alexander, solicitors, presented a petition to the Court, supported by the affidavit of the appellant, corroborating the statement previously made by Hanly, for permission then to file an answer, accompanied by the answer itself. But the Court refused the application, and appellant excepted.
The cause then appears to have been continued from term to term without objection, until November term, 1856, when, upon the original bill, answer, cross-bill, exhibits and proof, the cause was heard, and the original bill of appellant was dismissed for want of equity — the title to the land, upon the cross-bill, decreed in Pearce, the appellee, and Elliott excepted, and appealed to this Court.
The facts appear to be, that Prudence Putnam, one of the defendants herein, a citizen of the State of New Plampshire, was the owner, in her own right, by patent from the United States, of date 8th January, 1831, of the land in controversy? being a military bounty, and containing 160 acres, situate in Phillips county, in this State.
That on the 14th day of October, 183G, she and her husband, Ephrairfi, in consideration of $100, executed a quit-claim deed to Henry H. Sylvester; which deed was witnessed as to both of the grantors, was acknowledged, as to Ephraim Putnam, by a magistrate of said State, but was not acknowledged, in any way, as to the said grantor, Prudence, and that, in 1837, said deed was recorded by the Recorder of Phillips county, etc. And, on the 10th of October, 1841, Sylvester, by his attorney, Woodruff, conveyed the said land to appellant, in consideration of $200, etc.
That, on the 27th day of December, 1837, Wm. McPherson, then resident of the county of Phillips, assuming to have the right to sell said land, executed a title bond, in the penal sum of $1,000, with covenants to convey said tract of land to appellant; and Elliott, appellant, paid him $300 down in full payment therefor. Possession was given appellant by McPherson, and he made lasting improvements, amounting to several thousand dollars.
Appellant’s possession has continued ever since, and adverse to all others.
On the 5th November, 1838, Miller Irvin, sheriff of Phillips county, having assessed and advertised the said tract, in the name of Prudence Putnam, sold the said land for the taxes assessed thereon by him, for the years 1834, ’5, ’6, ’7 and ’8, and amounting to $15 40, to the said Wm. McPherson, who assigned his certificate of purchase to appellant, and, on the 10th of October, 1844, executed a deed therefor to appellant.
On the ninth day of March, 1852, Pearce, the appellee, in consideration of ninety dollars, purchased by quit claim deed from Prudence and Ephraim Putnam, wherein the said Prudence acknowledged, separate and apart from her husband, that she had executed the same, free from compulsion, etc., as the Statute of Arkansas prescribes shall be done by a feme covert owning land in her own right.
The first ground of error, assigned by the appellant, is, that tbe Court below struck out tbe plea in abatement, and his demurrer. -
The plea shows that the appellee, Pearce, had filed no bond for costs, upon the exhibition of his cross-bill. Sec. 1, chap. 40, Gould's Dig., provides, that in all suits, where the person, for whose benefit an action is about to be brought, shall file the obligation of some resident, for the payment of such costs as may accrue in the action. Sec. 2d, provides that if any suit shall be commenced without filing such obligation, the dourt, upon motion, shall dismiss the case.
In the first place, it must be recollected that the appellee, Pearce, did not commence the action. But by the bill of the appellant was driven to cross-matter for defence.
Secondly. The appellant, upon his own motion, had submitted to answer, and waived any objection as to costs. Kittlewell vs. Scull, 3 Ark. 474.
The second ground of error is, that appellant’s demurrer was stricken out by the Court.
Appellant having elected to answer only, was bound to do so. A demurrer would not satisfy the rule. Cooper Eq. Pl. 114, 232, 115; 2 Bro. Ch. Rep. 214, Kersick vs. Clayton.
And, by his submission to answer, he waived any formal objections to the cross-bill, on the ground that no interrogatories were appended.
A complainant need make only such use of the defendant for discovery as he thinks proper. He may call upon him to answer, with interrogatories or without them, or may decline to catechise him at all. Sec. 32, chap. 28, Gould's Dig., provides that defendant may introduce new matter, and may exhibit interrogatories. Thus giving him like advantages with the complainant. But this is not imperative, but purely discretionary.
He need not make a witness of his adversary, unless he desires it. And, in many cases it is not done; prudence prevents it, and the defendant is debarred the privilege of making testimony in the case.
So, on neither reason nor authority can I discover the propriety of exacting interrogatories in an original or cross-bill.
But it is contended by counsel that the demurrer, denying the equity of the cross-bill, ought, upon that ground, to have been sustained. This is getting back to the main question.
And the Court below, sustaining the equity set up in the cross-bill, could not, upon that ground, have sustained the demurrer.
The cross-bill ivas filed, and charged fraud, and if retained at all by the Court, was not demurrable, but must, by the rules of pleading, be answered. Ark. Dig., p. 229, sec. 27; 14 S. & Mar. Rep. 204, Neylans vs. Burge; Free. Ch. Rep. 206, Anderson vs. Lewis; Eq. Draftsman 384.
I think, then, that the demurrer might well have been overruled, if not stricken out.
And where there is any irregularity in the filing of a plea in chancery, it may be taken from the files. 2 Danl. Pl. & Pr. 918.
The third, and perhaps more important point, assigned by appellant for error, is the refusal of the Chancellor below to permit the applicant to file his answer to the cross-bill.
■ As a matter of practice, answers ought to be encouraged, and not persistently suppressed, in the absence of material injury to the adverse party.
And though by laches a party may submit himself to exemplary terms, yet under circumstances similar to those surrounding the appellant in this case, from which it is manifest that neither contempt nor delay was intended, but occurred in some measure by providential interposition, I cannot hold it less than a rigid enforcement of a rule, if not an abuse of discretion, to refuse the answer.
There was no contempt offered, for the parties disclaimed that, and proposed a submission of any terms whatever.
There would have been no consequent delay, surprise nor injury, as the cause, by consent, was continued from term to term, until January, 1856, before the final hearing. The filing of the answer would have neither retarded nor withheld justice, and if not, it ought to have been received and made part of the case.
And having thus far disposed of the points of pleading arising in the cause, I proceed now to examine the title: and first take up that of Elliott, the appellant.
On the 27th of December, 1837, the land in controversy being unimproved, McPherson, then a resident of Phillips county, assuming to have the right to do so, did, by his bond of that date, and in consideration of three hundred dollars, contract to •sell the said land to the appellant, and was to sell by deed in fee, to be executed by the following year. But this contract was never complied with by McPherson, for he had, neither when he executed the bond, nor when he agreed to make the deed, any semblance of right to the property himself. And this he and appellant both knew, it must be presumed. This transaction then, neither invested title, nor color of title in the appellant.
For it was not an instrument purporting to convey title. But an agreement by which title was to be subsequently obtained. And the possession given by McPherson to the appellant, was a mere tortious act, a trespass, for which they were both liable to the proper owner.
It was in violation of law, and without authority of law, from any one. And such acts cannot be construed into a tenancy or trust, without the subsequent assent of the proprietor, either express or implied.
There was no express authority from the owners, nor could their assent be implied. They were non-residents, and without notice.
There is no pretence or proof to that effect.
The next paper in the series set up by the appellant, as title, is the deed executed by the sheriff of Phillips county, Irvin, to him in 1844.
And first, does this amount to title?
The land in question is a military bounty tract, patented to Prudence Putnam, January 18, 1831.
The sale made by the sheriff was for the taxes of 1834, 5, 6, 7 and 8.
But military bounty lands are exempt from taxation, by authority of Congress, for the term of three years from the emanation of the patent. See original law of the Territory of Arkansas, March 2d, 1819; Steel & McC. Digest, p. 40., sec. 11; 1st Instructions Ops., p. 311, ch. 228, sec. 11.
Consequently the tax levied by the sheriff for the year 1834, was without authority of law.
And, as a further consequence, the sale made in virtue of that levy was invalid also. Under the Territorial statute for the assessment and taxation of property, the 1 si day of January in each year was the test day. Steel & McC. Digest, p. 466, sec. 16. And on the 1st day of January, 1834, the three years not having elapsed, this bounty to Mrs. Putnam could not be taxed, nor until January, 1835.
Again: The sheriff in this case derived his authority, and acted in virtue of state regulations, as we must presume, in assessing and selling the land in question for taxes.
The State law prescribed an ad valorem tax, and he so assessed the land for the back years of 1834, 1835 and 1836. The Territorial law prescribed a specific one. This, again, I think, the sheriff had no authority to do. Because, clearly, if the unpaid Territorial tax could be collected by the State at all, such amounts could only be collected as the lands were charged with under Territorial legislation — which was $ 1 to the hundred acres.
These are not merely irregularities or defects that might be cured by presumption or proof. But there is a fundamental want of power to perform the act, on the part of the officer.
In the case of Patrick vs. Scott, this Court (in the opinion of Scott, Justice,) say, that “ such a power as that defined for the collector of taxes, by the current of authority, lives only in the authoritative acts prescribed to be done by him — the power to do the succeeding act arises from his having authoritatively done the preceding one.
The deed from the collector, therefore, containing recitals of facts which show that he acted beyond the scope of his authority, as title, I think, would be inadmissible and void.
But although void, yet it is for some purposes, color of title, and is good for possession.
It is evidence that a sale-of land was made by the collector, for the unpaid taxes.
And if under such a sale, whether void, regular or irregular, the purchaser, or his heirs or assigns, takes possession of the land, and the original owner is driven to the necessity of bringing an action for it, he is estopped and must go out of Court, if limitation is plead in bar, and it is shown that five years have elapsed since the sale for taxes, and before the institution of the suit.
The 35th section Digest provides, that “ all actions against the purchaser, his heirs or assigns, for the recovery of lands sold by any collector of the revenue for the non-payment of taxes, shall be brought within five years after the date of such sales, and not thereafter.
This language is too plain to admit of doubt. It is without qualification, and applies to all sales, whether regular, irregular or void.
With the justice or policy of the law this Court has nothing to do. Its duty is to expound the statutes, and give them that effect which, to our minds, seems to have been intended by the Legislature.
And the view taken of the tax sale by the collector, is fully corroborated by the Supreme Court of the United States in the case of Pillow vs. Roberts, 13 How., p. 477.
But it has been contended by counsel for the appellee, that appellant was affected with a trust to the Putnams, and therefore, in equity, he could not take the land under the tax sale. If there was any evidence of a confidence or trust presented in the record, that point might be attended with some difficulty.
But I have not been able to discover anything of this kind in the case, and must hold that ground insufficient to retain the cross-bill and enter a decree against the appellant.
The deed from the Putnams to Sylvester passed no 'title certainly.
She owned in her own light, was a feme covert, and without acknowledgment as the statute prescribes, the deed was a nullity, and so this Court held in the case of McDaniel vs. Grace, 15 Ark. 465, where the question is fully examined and settled.
Sylvester having no title himself could convey none to the appellant.
It follows, then, that the Court below erred in dismissing appellant, and decreeing title in Pearce, the appellee. For admitting his title to be perfect, he could have no standing in court, wffien he filed his cross-bill November, 1854, fifteen years having intervened since the sale of the land for taxes. | [
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Ed. F. MoFaddiN, Associate Justice.
This is a lawsuit between rival claimaints for lands in Chicot County. The case was originally filed in the chancery court, but by consent was transferred to law and ivas tried on an agreed statement of facts. Wells, as plaintiff, claimed title to certain lands by reason of (a) a deed from Daisy Edwards, an alleged former owner, and (b) a deed from the Cypress Creek Drainage District . Brown, as defendant, claimed title under a deed from the Southeast Arkansas Levee District and also an attempted redemption by him from the Cypress Creek Drainage District. The Circuit Court found that Wells was the owner of the land; and from that judgment there is this appeal.
WELLS’ TITLE.
The lands are located in the Southeast Arkansas Levee District and the Cypress Creek Drainage District. Delinquencies due these Districts, as well as delinquencies for State and County taxes, give rise to this litigation. Since Brown claims through a 1952 deed from the Southeast Arkansas Levee District, we may start our recital of Wells’ title with Daisy Edwards’ deed.
On January 3, 1947 Daisy Edwards received a' general warranty deed from Lester Golden and wife describing the lands herein conveyed; and on the same day Daisy Edwards received a deed from the Southeast Arkansas Levee District. This Levee District deed recites that all State, County, and Southeast Arkansas Levee District taxes have been paid “. . . up to and including the year of 1945, payable in 1946.” Daisy Edwards also paid the State, County, and Southeast Arkansas Levee District taxes (assessments) for 1947; but no one paid the 1947 assessments due on the lands to the Cypress Creek Drainage District; and that District foreclosed its delinquent 1947 assessments in Case No. 7769 in the Chicot Chancery Court. The foreclosure decree was entered April 3, 1950; the sale was on October 20, 1950; the sale was approved by the Court on November 6, 1950; and the commissioner, with Court approval, conveyed the lands herein involved to the Cypress Creek Drainage District by deed dated December 15, 1952.
Daisy Edwards conveyed the land to Wells by deed dated November 8, 1952; and on December 18, 1952, the Cypress Creek Drainage District executed a deed to Wells, which deed also recited: “. . . this deed being a complete release for all liens granted by law to this district for unpaid taxes or assessments upon the above described lands for the year 1951 and prior years”. Thus, after December 18, 1952 Wells had a deed from Daisy Edwards and a clearance of all old delinquencies from the Cypress Creek Drainage District; but had outstanding against his title the delinquent State and County taxes and assessments due the Southeast Arkansas Drainage District for 1948 and subsequent years.
BROWN’S TITLE.
As aforesaid, the State and County taxes, as well as the assessments due the Southeast Arkansas Levee District on the lands herein, remained delinquent for the years 1948 to 1951; and on November 26, 1952, the Southeast Arkansas Levee District executed a deed to Brown, describing the lands; and this deed recited: “. . . that Southeast Arkansas Levee and State and County taxes are fully paid up to and including the year of 1951, payable in 1952”. Thus, Brown’s title is based on his said 1952 deed from the Southeast Arkansas Levee District.
The Circuit Court entered judgment for Wells, and Brown has appealed. We affirm the Circuit Court judgment for the reasons herein stated.
I. The Laws Creating The Two Improvement Districts. Our decision in this case turns on the uniform provisions of the act creating the Cypress Creek Drainage District, as contrasted with the peculiar provisions of the act creating the Southeast Arkansas Levee District. The Cypress Creek Drainage District was created by Act No. 110 of 1911, which act was amended by Act No. 455 of 1911 and Act No. 80 of 1915. In Section 13 of the Act No. 80 of 1915, there is set out the procedure for foreclosing the delinquent assessments on lands in the Cypress Creek Drainage District. This procedure is very similar to that contained in the general drainage district law, as found in Sec. 21-546 Ark. Stats. The Cypress Creek Drainage District enforces the collection of delinquent assessments by chancery proceedings; and after the lands are sold by the commissioner, there is a period of two years for redemption by the owner or any person claiming under him. There is no provision in the Cypress Creek Drainage District act which joins the State and County tax forfeiture with the delinquent assessments of the Cypress Creek District.
The Southeast Arkansas Levee District was created by Act No. 83 of 1917; and there is a rather peculiar provision regarding the delinquent assessments due that District as tied in with the delinquent State and County taxes. In the recent case of Beck v. DeFir, 227 Ark. 112, 296 S. W. 2d 396, Chief Justice Lee Seam-ster discussed with great clarity the Act No. 83 of 1917 involving the Southeast Arkansas Levee District. It was pointed out that if any lands in the said District became delinquent for State and County taxes and assessments due the Southeast Arkansas Levee District, then — in default of other bidders at the regular tax sale for State and County taxes and Levee assessments — the lands were automatically sold to the Southeast Arkansas Levee District for State and County taxes as well as for the assessments of the Southeast Arkansas Levee District; but the Levee District was not required to pay its bid until the expiration of the time for redemption.
It was also pointed out, in the said opinion, that the Southeast Arkansas Levee District was required to file a suit in the chancery court to confirm its tax title, and that any owner might effect a redemption at any time before final decree of confirmation. It was also pointed out that the Southeast Arkansas Levee District had never filed any such confirmation suit, as required by statute, and, therefore, the land owner still had a right to redeem from the delinquent State and County taxes and delinquent Southeast Arkansas Levee District assessments. Chief Justice Seamster said:
“In the instant case, at the time of the trial, the Levee District had never filed, in the Desha Chancery Court, a suit to confirm its tax title in the land here involved. The Levee District could only convey to appellants such title as it had procured. Its title was subject to redemption by any individual owner at any time before the confirmation decree, confirming its tax title, was finally entered of record.”
The case of Beck v. DeFir has direct application to the case at bar because, here, the lands involved were forfeited to the Southeast Arkansas Levee District for the State and County taxes of 1948 and subsequent years, as well as for the delinquent assessments due the Southeast Arkansas Levee District for 1948 and subsequent years; and the Southeast Arkansas Levee District never filed any confirmation suit at any time. So, Wells, as the owner (claiming under Daisy Edwards, as aforesaid), had the right to effect a redemption from the delinquent taxes due the State and County and the delinquent assessments due the Southeast Arkansas Levee District. He tendered into court in this case such required amount. The deed from the Southeast Arkansas Levee District to Brown conveyed only the “lien-claim” of the Southeast Arkansas Levee District; and Brown was required to have his title confirmed before the equity of redemption of Wells could be cut off. Brown did not have his title confirmed; so Wells, as the owner, was entitled to exercise the right of redemption. As aforesaid, it is the peculiar wording of the Act of the Southeast Arkansas Levee District (Act No. 83 of 1917) that brings about the stated result.
II. Brown’s Attempted Redemption From Cypress Creek Drainage District. The agreed statement of facts recites: ■ ..
“On November 12, 1952, the date of the purchase from Southeast Arkansas Levee District of its title acquired by virtue of sale for non-payment of 1948 general taxes and levee taxes, appellant, W. 0. Brown, also attempted to redeem said lands from all delinquent assessments in Cypress Creek Drainage District. The Board of Commissioners of said Drainage District would not permit redemptions to be made in the office of the Chancery Clerk of Chicot County, Arkansas. Persons desiring to redeem lands were required to go beyond the limits of Chicot County, Arkansas, to the office of the attorney for the District to effect redemptions. Appellant, W. G. Brown, on November 12, 1952, made a trip to the office of the attorney for the District in an attempt to redeem said lands from all delinquent assessments in said District but was advised that said attorney was on a deer hunt and that said redemption could not at that time be effected. Appellant, W. G. Brown, thereupon requested information as to the sum required to redeem and was advised that said sum could not be determined. Whereupon, appellant requested that a statement of said amount be prepared and mailed to him for immediate payment. Such statement was never furnished. ’ ’
Brown claims that his conduct, as reflected by the foregoing recitals, amount in equity to a redemption. He says: “The action of W. G. Brown, in attempting to effect a redemption of the lands involved in this action from all sales and delinquencies of Cypress Creek Drainage District on November 12, 1952, was equivalent to a redemption thereof and said District had no title to convey to plaintiff, H. W. Wells.”
' To support his contention, Brown cites Wilkins v. Lenon, 182 Ark. 953, 33 S. W. 2d 1093; and Botts v. Stephen, 203 Ark. 1031, 160 S. W. 2d 198. But the conduct of Brown in the case at bar falls short of the conduct of the parties who sought redemption in each of the cited cases. In Wilkins v. Lenon, supra, the party seeking to redeem actually inquired of the agent of the improvement districts the amount necessary to redeem from all delinquencies; the agent stated the amount; and same was actually paid. Later it developed that the agent of the district had overlooked an item of $5.90. This Court held that the person seeking to redeem had acted in good faith and should he subsequently allowed to redeem for the $5.90 overlooked by the agent of the improvement district. Likewise, in Botts v. Stephen, supra, the person desiring to redeem inquired of the agent of the improvement district for the correct amount, and paid what was claimed by the district as the full amount necessary to redeem. This Court held that such payment was in fact redemption.
In the case at bar, according to the stipulated facts, Brown merely sought to inquire, on November 12, 1952, how much it would cost to. redeem the lands; he never received a statement of the cost of redemption; never pursued the matter any further; never paid any amount for redemption; and on December 18, 1952 — one month and six days after Brown’s attempted inquiry — the Cypress Creek Drainage District executed a deed to ap-pellee Wells. It will be observed that Brown never paid any money to the Cypress Creek Drainage District; never made any tender of money; and did nothing for over a month after attempting to make his alleged inquiry on November 12, 1952. We hold that Brown did not bring himself within the rule of the two cited cases; that he did not pursue his effort to redeem with sufficient diligence ; and that his claim of attempted redemption is without merit.
Affirmed.
RobiNSON, J., not participating.
Wells also deraigned title from the sovereignty of the soil.
The Circuit Court reserved for later trial the matter of damages and improvements. Also the Circuit Court judgment allowed Wells to accomplish redemption for recent delinquencies. These matters are not before us on the present appeal.
Brown paid his money for this deed on November 12, 1952; hut the deed was not executed until November 26, 1952.
When Brown received this deed from the Levee District, he attempted to redeem from the Cypress Creek Drainage District, but did not succeed, as will be more fully developed in Section II of this opinion.
Brown’s deed from Southeast Arkansas Levee District was dated November 26, 1962, as previously recited; but he paid his money for that deed on November 12, 1952.
As bearing generally on this matter of efforts at redemption, see 85 C.J.S. 231 and 85 C.J.S. 304. | [
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Paul Wakd, Associate Justice.
Cecil Jennings and others, all citizens and taxpayers living in the vicinity of Norfork Lake, Baxter County, filed a complaint against Cecil Lynch and the other members of the Arkansas Highway Commission, on May 4, 1956, wherein they asked the Chancery Conrt of Pnlaski County to direct the said Commission to construct a road from “Mountain Home across Norfork Dam, and through the rock bluff at the Norfork Dam . . ., and on to Elizabeth,” and also to relocate and reconstruct State Highways 62 and 101 in certain particulars therein set forth.
A short statement of back ground facts will make it easier to understand the issues involved. Norfork River, prior to 1941, ran in a southerly direction through Baxter County and emptied into White River near the town of Norfork. There was a bridge across the Norfork River at the small town of Henderson which was located about 9 or 10 miles south of the Missouri line and about 10 miles north of the present location of the Norfork Dam. In 1941 the U. S. Government began acquiring land preparatory to constructing the said dam and the attending reservoir. It was known at the time, of course, that the reservoir would inundate the Henderson bridge.
On May 29, 1943 the U. S. Government filed a suit No. 106, in U. S. District Court, Western District of Arkansas, Harrison Division, in which it declared the taking of the necessary land for the dam site and the reservoir, including the bridge and a portion of State Highway 62, which ran east and west across the Henderson bridge and a portion of Highway 101 which ran from the Missouri line and joined Highway 62 near the bridge.
After the dam was completed the water gates were closed on June 17, 1943, and by October of that year the Henderson bridge and adjoining portions of Highways 62 and 101 were inundated. This necessitated the installation of an expensive ferry at Henderson to cross the lake. The dam was designed and constructed in such a way that it could be used as a bridge. The only reason, apparently, why it is not and has not been used as a bridge is that it runs into a high rock bluff on the east side. Also, due to said bluff, the roads have not been constructed up to the dam on either side.
' As we understand it, appellants instituted and now maintain this litigation on the general theory that the Arkansas Highway Commission is legally obligated to re-route highways 62 and 101 so as to go over the dam, necessitating the removal of the stone bluff at the east end of the dam. As was held in Paving Districts Nos. 76 and 52 of Pine Bluff v. State Highway Commission, 186 Ark. 68, 52 S. W. 2d 623, it is apparently admitted by appellants that, ordinarily, constructing and routing highways are matters of discretion with the Highway Commission and not subject to control by mandamus.
If, as appellants contend, there rests upon the Highway Commission an obligation in this case to construct specific roads and locate them in definite places and if this obligation is such as can be enforced by mandatory injunction, then it becomes necessary to determine how this obligation arose. This, we think, appellants have failed to point out. However we discuss below the only grounds or methods suggested by appellants.
First, it is appellants’ contention that when the Arkansas Highway Commission accepted the money from the U. S. G-overnment which was assessed as damages in the condemnation proceedings (case No. 106) referred to above, it did so as trustee for the people for the express purpose of building a road across the dam. We do not agree with appellants’ interpretation of the condemnation proceedings. It would serve no useful purpose to set out these proceedings and discuss them in detail, because we think their purpose and effect are obvious and may be briefly stated. In so far as relates to this opinion, the sole object of the condemnation proceedings and the sole effect of the court order was to fix the amount of damages the 17. S. Government should pay to the State of Arkansas and the Highway Commission for inundating and destroying certain roads and the Henderson bridge. In arriving at this amount it was deemed pertinent to determine the cost of replacement, i. e., building substitute roads and bridges to take care of the east and west traffic. Before the replacement cost could be estimated it was, of course, necessary to try and determine the most feasible plan of replacement. In all, six different plans were considered, and one of these was to nse the dam for a bridge. It was npon this last plan that the agreement was reached and npon which the conrt (in case No. 106) fixed the damages. It appears clear to ns, from an analysis of the language used in the conrt order and the settlement agreement, that the plan to nse the dam as a bridge amounted to nothing more than a feasible method of determining damages, and that it did not legally bind the Highway Commission to follow that plan later in the expenditure of the money. Certainly no language to that effect appears in the record of case 106 shown in the record.
Secondly, appellants make the argument that Act 52 of 1945 obligated the Highway Commission to spend the money (received for damages) to relocate the Highways over Norfork Dam. However, reference to the language of this act fails to reveal any substantiation of appellants’ argument. Section 1, after referring to the funds received by the Highway Commission in connection with the Norfork Dam condemnation proceedings, uses this pertinent language:
“. . . they are hereby irrevocably allocated and pledged to the construction and reconstruction of roads and bridges and ferry operation in the Norfork Dam area found necessary to replace the roads and bridges destroyed or rendered useless by reason of the building of the Norfork Dam by the Federal Government. ” Section 2 of said Act reads:
“Any citizen and taxpayer in the State of Arkansas shall have the right to restrain any diversion of said funds or interest derived therefrom from these purposes by proceedings filed in the Pulaski Chancery Court.” if it be conceded for the purpose of this opinion that the legislature had the right to force the Highway Commission to construct a highway across the dam, and if it be conceded likewise that appellants have a right to maintain this suit against the Commission, still it used no such directive language in Act 52. Moreover, it appears that the legislature has long ago abandoned any intention it may have expressed by the passage of said Act 52 to direct the nse of the condemnation money by the Highway Commission. Exhibit No. 5, in the record, shows that the Highway Commission had, by 1950, spent on the ferry at Henderson and the roads in the vicinity of the dam as much money as it received from the U. S. Government. It appears now that the legislature took cognizance of the above mentioned situation. By Act 175 of 1947 and Act 361 of 1949 the legislature carried forward, in effect, the directive language copied above from Act 52 of 1945, but Act 178 of 1951 which dealt with funds of the same nature omits the directive language above mentioned, and such language has not since been reenacted.
From the above it follows that the decree of the trial court dismissing appellants ’ complaint must be and it is hereby affirmed.
Affirmed.
McFaddiN, J., concurs. | [
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Minor W. Mill wee, Associate Justice.
On April 20, 1949, appellee filed suit against appellant alleging that for more than a year she had committed certain acts designed to humiliate, embarrass, worry, disturb and injure him in his social and business relations. Among such alleged acts were: Writing, mailing and otherwise .delivering numerous threatening, slanderous and vituperative letters and notes to appellee; making similar oral statements to his employer; repeatedly accosting appellee on the streets, at his place of business, residence, and in church, making false and embarrassing statements; and the continuation of such acts after ap-pellee, appellant’s father and police officers had repeatedly requested that she desist. Appellee further alleged he had no adequate remedy at law and prayed that appellant be enjoined from the- continuation of such acts. A temporary restraining order was issued when the suit was filed.
At a hearing held February 23, 1950, on appellee’s petition for a contempt citation against appellant the chancellor found she had persistently violated the restraining order for many month's. The court further found that, because of appellant’s “excitable and irrational” condition, final action on the contempt charge should be postponed pending a mental examination by authorities at the State Hospital. At similar hearings on April 12, 1950 and April 27, 1950, the court found that appellant had continued such violations but postponed final judgment upon her promise to desist, and pending her good behavior and further observation as to her mental condition.
At another hearing on the contempt citation on June 1, 1950, the court again found that appellant had failed to live up to her promises and had continued to ■commit the acts prohibitecl’in the1 restraining'order. Appellant was adjudged guilty of contempt and her punishment fixed at 30 days imprisonment in the county jail, said sentence to run from the date- of á commitment to he issued by the clerk]1’“when directed by this Court.”
On December 4, 1956, appellee filed a petition alleging further persistent' violations of the original restraining order and requested a new citation requiring appellant to show cause why a commitment should not issue as provided in the order of June 1, 1950; and asked that she be further enjoined from the institution and prosecution of any “suit at law, or otherwise” against appellee. Appellant answered with a general denial and alleged that the order of June 1, 1950, was invalid.
After a hearing on December 18, 1956, the court entered an order finding that appellant had willfully and persistently refused to obey previous orders of the court and had continued, particularly within the last six months, to commit the acts enjoined as well as new acts of molestation against appellee, his wife, mother' and employer. Appellant was again enjoined from commission of said acts and adjudged guilty of contempt with the punishment of six months in jail to be suspended upon condition that she post bond in the amount of $200.00 as security for her compliance with the court’s order. This appeal followed the posting of a supersedeas by appellant in the sum of $200.00.
Only the parties testified at the last hearing. They became acquainted in 1945 while both were working for a printing and lithographing company in the City of Little Rock where appellee is still employed. Appellant is empjpyed as office manager of a local lumber company ./^According to appellant they had many dates and engaged'' in innumerable sexual intimacies over an extended period while appellee testified they were together only a few times and engaged in sexual intercourse only once when she came to his apartment. Whatever their relationship, appellee decided to discontinue it while the appellant felt differently and began a course of con duct in which she sought to force her attentions upon him.
For several years appellant has written numerous letters and notes to appellee in an effort to force him to renew their association. These notes and letters, signed and unsigned, were delivered by mail and by the appellant leaving them in or upon appellee’s automobile, his residence and place of business. Similar letters have been written by appellant to appellee’s mother, wife, employer and the real estate company from which ap-pellee purchased his home and, in which, appellant states that appellee is the father of her unborn child and is soon to be faced with a paternity suit. Appellee estimated that he had received at least 200 such communications within a year prior to the last hearing.
On September 26, 1948, appellant caused a picture of herself and the announcement of their approaching marriage to be published in a local newspaper. On May 13, 1952, she made written application for a marriage license in their names. Appellee says both the announcement and application were made without his knowledge or consent. Almost daily appellant accosts appellee on the streets in an attempt to engage him in conversation. Since appellee’s marriage on June 30, 1956, appellant has followed appellee and his wife to town in her car nearly every work day and left a note or letter in or upon his car when he refused to talk to her. On numerous occasions she has parked her car within a few feet of appellee’s home for long periods. The telephone at appellee’s home rings frequently when the caller merely “hangs up” upon answer being made.
In her testimony appellant admitted doing most of the things charged by appellee, asserting it was all done because of her abiding love for him and his broken promise to marry her. She denied that the announcement and application for a marriage license were made without his consent or that she caused her name to be listed in the city directory as “Mrs. George W. Gray”. There was no corroboration of her testimony that she had four miscarriages as the result of the relationship between them, and she admitted that she had no letter or note written to her by appellee.
Appellant first contends the trial conrt had no jurisdiction to restrain her from committing any of the acts in question under our holding in Smith v. Hamm, 207 Ark. 507, 181 S. W. 2d 475. In that case the members of one family sought to restrain their next door neighbors from cursing, abusing, threatening to shoot and commit other acts of violence against them. In affirming the action of the chancellor in sustaining a demurrer to the complaint, we held that before a court of equity will enjoin either a public or private nuisance there must be some actual or threatened interference to property or rights of a pecuniary nature as distinguished from personal rights. In the opinion Judge Knox carefully pointed out that the acts there complained of constituted violations of the criminal statutes and the injured parties hence had an adequate remedy at law through the enforcement of such laws. The distinguishing feature between that case and this one is that the acts of the appellant here do not constitute crimes and appellee is without any remedy at law. Unless we are willing to recognize some relaxation of the doctrine that equity has no jurisdiction to protect personal rights where no property rights are involved, ap-pellee and his family must continue to endure the continued harassment and molestations of the appellant ad infinitum, or so long as she chooses.
Many leading authorities have frequently commented upon the unreasonableness of so arbitrary a doctrine that a court of equity will protect one in his rights of contract and property, but deny protection in his far more sacred and vital rights of a personal nature ; and there is a progressive tendency on the part of courts to remedy by injunction, injuries to personal rights. See Annotations in 14 A.L.R. 300 and 175 A.L.R. 441; 19 Am. Jur., Equity, Sec. 150; 28 Am. Jur., Injunctions, Sec. 71; Pound, “Equitable Relief Against Defamation and Injuries to Personality”; 29 Harvard L. Rev. 640; Long, “Equitable Jurisdiction to Protect Per sonal Rights,” 33 Yale L. J. 115; Leflar, “Equitable Prevention of Public Wrongs”, 14 Tex. L. Rev. 438; Walsb, “Equitable Protection of Personal Rights”, 7 N. Y. ÍJ. L. Rev. 578; Restatement of Torts, Yol. 4, Sec. 937.'
In the earlier Annotation in 14 A.L.R. it is said: “Although the courts have been reluctant to admit that equity had jurisdiction to enforce or protect merely personal rights, and have usually discovered at least a nominal property right on which to base the granting of equitable relief, there are a few cases in which the courts have had the courage openly to repudiate the doctrine that only property rights will he protected, and to assert the jurisdiction of a court of equity to protect personal rights also.”
In the later Annotation in 175 A.L.R. numerous cases are cited in support of the following statement at page-442: “In many of the more modern cases, the courts have either squarely held or have recognized as a principle that equity jurisdiction exists and will be exercised in appropriate instances for the protection of personal rights, and that the power of an equity court is not limited to situations in which a property right is involved. In some of such cases, the courts have remarked that the ‘old’ rule that equity will protect only property rights has been greatly relaxed, that such ‘rule’ is known chiefly by its breach rather than by its observance, and that law in action is breaking away from the property limitation which still receives sanction in law in books. It has also been observed that in reading decisions holding or stating that equity will protect only property rights, one is struck by the absence of any convincing reasons for such a sweeping generalization, that on principle it is difficult to find any sound reason for the enunciation of a broad principle that equity will not protect personal rights, and that the issue should not in logic or justice turn upon the sole proposition that a personal rather than a property right is involved. So to reason, it has been declared, would be to place property rights in a more favorable position than personal rights, a doctrine wholly at odds with the fundamental principles of democracy, and one which has been forcefully castigated as suitable only to a semi-savage society.”
There are several cases in which courts have exercised equity jurisdiction to restrain and enjoin repeated molestation, assaults, harassments and the like. Thus the Texas court concluded that equity would intervene to protect purely personal rights of a woman who for a period of several years was continually importuned, assaulted, harassed, threatened and molested by her former paramour in his efforts to force her to resume her illicit associations with him. Hawks v. Yancey, (Tex. Civ. App.), 265 S. W. 233. Injunctive relief has also been extended to prevent an intrusion of a third person into family affairs destructive of the consortium between the spouses. Henley v. Rockett, 243 Ala. 172, 8 So. 2d 852. Other cases recognizing the jurisdiction of equity to protect personal rights are: Ex parte Warfield, 40 Tex. Grim. Rep. 413, 50 S. W. 933, 76 Am. St. Rep. 724; Stark v. Hamilton, 149 Ga. 227, 99 S. E. 861, 5 A.L.R. 1041; Vanderbilt v. Mitchell, 72 N. J. Eq. 910, 67 A. 97, 14 L.R.A. (N.S.) 304; Kenyon v. City of Chicopee, 320 Mass. 528, 70 N. E. 2d 241; Hunt v. Hudgins, (Tex. Civ. App.), 168 S. W. 2d 703; Foley v. Ham, 102 Kan. 66, 169 P. 183, L.R.A. 1918 C 204.
We find no fault with the following rule adopted by the Massachusetts court in the Kenyon case, supra: “We believe the true rule to be that equity will protect personal rights by injunction upon the same conditions upon which it will protect property rights by injunction. In general, these conditions are, that unless relief is granted a substantial right of the plaintiff will be impaired to a material degree; that the remedy at law is inadequate; and that injunctive relief can be applied with practical success and without imposing an impossible burden on the court or bringing its processes into disrepute.”
In our opinion appellee was entitled to a part of the relief granted by the trial court. He has no remedy at law against the almost incessant harassment which the record discloses he has been subjected to over a period of years. The acts of the appellant are not criminal and might be classed as trivial if they had been merely sporadic or of short duration. But appellee has the right to pursue his lawful daily occupation and family activities unhampered by the protracted molestations of the appellant as disclosed by the extraordinary circumstances presented here. This does not mean that she may not pursue any legal remedy she may have for breach of promise, or any other legal wrong which he might have committed against her by reason of their association. In this respect, and one other, the order of the trial court was too broad. The court was without power to restrain appellant from seeking redress in a court of law by filing a suit for damages. Whether she has a valid action of this kind is for the proper court to determine. The order was also too broad in prohibiting appellant from driving in the neighborhood of appellee’s home.
So much of the decree as enjoins appellant from driving in a normal manner near appellee’s home or filing any action for damages against him is, therefore, reversed. In all other respects the decree is affirmed. The costs of this appeal will be shared equally by the parties. | [
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Sam RobissoN, Associate Justice.
This case involves the right to the use of subterranean waters by adjoining-landowners. Appellant, Paul Jones, and his wife, El-wanda Jones, own a small parcel of land on which they live, near Bloomer, Arkansas, and the appellant, Mrs. Laura Ward, owns and lives on an adjoining small acreage. The appellee, A. T. Crouch Creamery Company, owns land adjacent to the Jones and Ward lands. In the years 1954 and 1955 the appellees drilled water wells on the Crouch property, and the water from these wells was conveyed by a pipe line to chicken processing plants operated by appellee, Oz-Ark-Yal Poultry Company, under a lease agreement with the. Crouch Creamery Company.
Appellants filed this suit, alleging appellees were using subterranean -waters from seven wells they had drilled on the Crouch property, to such an extent that wells used for domestic purposes, located on the adjacent Jones and Ward lands, had been caused to go dry. Appellants asked that appellees be enjoined from using the wells on the Crouch property for processing chickens, and also prayed for damages alleged to have been sustained. The chancellor was of the opinion that the use of water from the wells on the Crouch property for the purpose of processing chickens was not the cause of the failure of the Jones and Ward wells, and, therefore, rendered a decree in favor of the defendants, the appellees here. The Joneses and Mrs. Ward have appealed.
In our opinion, a preponderance of the evidence proves that the use of water on the Crouch property for the purpose of processing chickens caused the Jones and Ward wells to go dry. To sustain the decree, appellees rely largely on the testimony of Mr. James M. Rutledge, a registered engineer, to the effect that there was a severe drouth during the years 1952 to 1955, inclusive, which caused a lowering of the underground water level; that the amount of water taken by appellee was inconsequential; and, furthermore, that the water in the wells on the Crouch property carde from a different source of supply than the water going into the Jones and Ward wells. But this opinion evidence of an expert, regardless of how well qualified he may be, does not carry much weight in the face of positive testimony of existing facts leading to a different conclusion.
Mrs. Ward has lived on her place for more than a quarter of a century; she had an extraordinarily good artesian well; it was sufficient to supply all domestic needs, including the watering of twenty head of cattle, and a surplus ran over the top of the well into a stream. The Joneses bought their property in 1951, and the well thereon furnished an ample supply of water until July, 1954, when the appellees put down two wells on the adjoining Crouch property. After the two wells were completed, appellees proceeded to test them by determining the amount of water the wells would supply within a given time. When water was pumped from the Crouch wells, in making the test, the Jones and Ward wells went dry within two hours from the time the test was started. After the test was completed on the Crouch wells, the well pipes were capped, and no water was used from the Crouch property at that time. Almost immediately, water again returned to the Jones and Ward wells, and they furnished water the same as they had done before the tests were made on the Crouch wells.
In July, 1955, the Crouch wells were put in use in processing chickens and the Jones and Ward wells again went dry. This condition continued until September, 1955, when Jones, whose well was forty-eight feet deep, extended it to a depth of one hundred and fifty feet. He obtained water at that depth until January, 1956. In the meantime, appellee put down five additional wells on the adjoining Crouch property, and the Joneses’ one hundred and fifty-foot well went dry. At the time of the trial, the wells on the Crouch property were not in use, and water had returned to the Jones and Ward wells.
The fact that every time the chicken processing plant put the wells on the Crouch property in use the Jones and Ward wells went dry, and every time the Crouch wells were shut down the Jones and Ward wells again produced water, shows just about as conclusively as it is possible to prove anything by circumstantial evidence that the large amount of water taken from the Crouch wells to process the chickens caused the Jones and Ward wells to go dry. Oz-Ark-Val was processing up to twelve thousand chickens per day; it required two to three gallons of water for each fowl. A well located at the plant in the town of Bloomer was capable of supplying about two-thirds of the water required; but this left a deficiency of several thousand gallons of water per day, to be provided from the Crouch property adjoining the appellants’ land. The underground water was simply not there in sufficient quantity to supply the poultry plant and leave enough for the dometic needs of the Joneses and Mrs. Ward.
As to water rights of riparian owners, this State has adopted the reasonable use rule. Harris v. Brooks, 225 Ark. 436, 283 S. W. 2d 129; Harrell v. City of Conway, 224 Ark. 100, 271 S. W. 2d 924. We see no good reason why the same rule should not apply to a true subterranean stream or to subterranean percolating waters. Text writers have divided subterranean waters into two classifications, namely, percolating waters and underground streams. In 93 C. J. S. 761, it is said:
“In legal consideration, subterranean waters are divided into two classes, namely, percolating waters and underground streams. Flowing subterranean waters consist of waters whose courses are well-defined and reasonably ascertainable and whose existence is not of a temporary or ephemeral character. ‘Percolate,’ in this connection, is a term which may designate any flowage or subsurface water, other than that of a running stream open, visible, and clearly to be traced. The term ‘percolating waters’ includes all waters which pass through the ground beneath the surface of the earth without a definite channel and not shown to he supplied by a definite flowing stream; percolating waters are those which seep, ooze, filter, and otherwise circulate through the subsurface strata without definite, or defined, channels, or in a course that is unknown and not discoverable from surface indications without excavation for that purpose. Percolating waters may be either rain waters which are slowly infiltrating through the soil or they may be waters seeping through the banks or bed of a stream which have so far left the bed and other waters as to have lost their character as part of its flow.
“The general rule, which has been said to be well stated in corpus juris, is that all underground waters are presumed to be percolating, and, to take them out of the rule with respect to such waters, the existence and course of a permanent channel must be clearly shown. A well will be presumed to be from percolating water, in the absence of proof to the contrary.”
The English rule has been that the landowner is entitled to extract from the ground all of the water he could obtain from under his own land. This rule has been adopted by several of the states. See 55 A. L. R. 1390 for list of cases following English rule. On the other hand, about an equal number of states have adopted the rule of reasonable use, known as the American rule, as applied to underground water. Cases so holding are cited in 55 A. L. R. 1398. Several of the states which first adopted the English rule later changed to the American rule.
“At an early day the courts expressed dissatisfaction with the common-law or English rule as to rights in percolating water. In Bassett v. Salisbury Mfg. Co. (1862) 43 N. H. 569, 82 Am. Dec. 179, where the question before the court was in regard to drainage of surface water, the court, in discussing the theory of rights in waters, both surface and subterranean, suggests that the right of a landowner to appropriate percolating water in his own land is limited by the corresponding right of his neighbor, and extends only to a reasonable exercise of such right; or, as said by the court, the rights are correlative. This dictum was approved in Swett v. Cutts (1870) 50 N. H. 439, 9 Am. Rep. 276. The Bassett case appears to be the first case in which the doctrine of correlative rights in percolating waters is mentioned, and it is cited with approval and its doctrine adopted in full in Katz v. Walkinshaw (1902) 141 Cal. 116, 64 L. R. A. 236, 99 Am. St. Rep. 35, 74 Pac. 766, 70 Pac. 663, the first case in which the rule of reasonable use of correlative rights is applied. But even before this, Coleridge, J., dissenting in the case of Chasemore v. Richards (1857) 2 Hurlst. & N. 186, 157 Eng. Reprint, 71, the leading case in England upon the question of rights in percolating waters, expressed the opinion that the rights of adjoining landowners in regard to percolating water in their lands should be governed by the maxim, ‘sic utere tuo ut aliemmi non laedas,’ and not by the rule of absolute ownership applied; and Lord Wensleydale, in the same case before the House of Lords in (1859) 7 H. L. Cas. 349, 11 Eng. Reprint, 140, 1 Eng. Rui. Cas. 729, expressed dissatisfaction Avith the working of the common-law rule.
“Beginning with Katz v. Walkinshaw (Cal.) supra, the courts began to limit or break away from the common-law rule in regard to percolating waters, and apply Avhat they called, variously, the rule of ‘reasonable use,’ the rule of correlative rights, or the American rule.” 55 A. L. R. 1398.
The American rule is Avell stated in Hudson v. Dailey, 156 Cal. 617, 105 Pac. 748:
“Where two or more persons oavu different tracts of land, underlaid by porous material extending to and communicating with them all, Avhich is saturated with water moving with more or less freedom therein, each has a common and correlative right to the use of this water upon his land, to the full extent of his needs, if the supply is sufficient, and to the extent of a reasonable share thereof, if the supply is so scant that the use by one will affect the supply of the others.”
In Restatement of the Law of Torts, Sec. 858, it is said:
“Therefore, each possessor’s rights and privileges with respect to the use of subterranean waters are qualified rather than absolute for the same reasons that each riparian proprietor’s rights and privileges with respect to the use of water in the watercourse or lake are qualified and not absolute. . .
Without a supply of water for domestic needs, appellants’ property becomes wholly unsuitable as a place to live, and it does not appear to have much value for any other purpose. It is unreasonable to permit appellees to use thousands of gallons of water per day for the purpose of processing chickens, not leaving enough water for the domestic needs of the Joneses and Mrs. Ward. In addition to asking that appellees be restrained from taking an unreasonable amount of water from the ground, appellants prayed for damages alleged to have been sustained. As above stated, the Chancellor did not reach the question of damages. On appeal we allow no damages because, in our opinion, the evidence is not sufficient in that regard.
Reversed with directions to enter a decree not inconsistent herewith.
Harris, C. J., and McFaddiN, J., dissent. | [
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MiNor W. Millwee, Associate Justice.
This is an aftermath of Drewry v. Sykes, 226 Ark. 539, 291 S. W. 2d 258, and involves the extent of the liability of appel-lees, R. E. Larkey and L. R. Ray, as sureties on the su-persedeas bond filed by appellees, L. E. Drewry and Harve Willis, as appellants on the former appeal.
In October, 1954, the appellant, Ralph Sykes, brought suit for dissolution, accounting and settlement of the affairs of a partnership composed of Sykes and the appellees, Drewry and Willis, for the purpose of operating a coal mine on a 40-acre tract belonging to Sykes in Johnson county. Sykes owned 5/8ths, Drewry l/4th and Willis l/8th interests in the partnership. On the former appeal we affirmed the action of the chancellor in dissolving the partnership, ordering the sale of partnership assets and directing that net sale proceeds he applied as follows: First, the smn of $542.19 to creditors other than partners; second, the sum of $8,082.01 to appellant Sykes as a creditor; and third, that if any proceeds remained after discharging said liabilities, the court would make further orders of distribution. The court also directed that if sale proceeds were insufficient to pay all liabilities, said partners should contribute to the payment of the unpaid balance according to their respective interests in the partnership.
As appellants on the former appeal, Drewry and Willis executed and filed a supersedeas bond with Larkey and Ray as sureties, as follows: c-
“BOND FOR SUPERSEDEAS
Whereas, the appellants, L. E. Drewry and Harve Willis, have taken an appeal from the decree of the Chancery Court, rendered on the 19th day of November, 1955, wherein the Court ordered the sale of the assets of the New Spadra Coal Company after advertisement for ten days by the Commissioner, and said appellants desire to supersede said sale until their rights may be determined by the Supreme Court of Arkansas:
Now, R. E. Larkey and L. F. Ray, as sureties, hereby covenant with said appellee that appellants will pay to appellee all costs that may be adjudged against appellants on such appeal, or, in the event of appellant’s failure to prosecute said appeal to final judgment in the Supreme Court, or if said appeal shall be, for any cause, dismissed, that said sureties shall pay to appellee all costs, and shall perform the judgment of the Court appealed from; also that said appeal shall be prosecuted without delay; also that they will satisfy all damages to appellee during the pendency of this appeal should the decree of the trial court be affirmed.”
After the filing of the mandate of this court on the former appeal a sale of partnership assets was held and subsequently confirmed at which appellant Sykes be came the purchaser for $2,750.00. On February 27, 1957, Sykes filed in the trial court his motion against appellees for summary judgment on the supersedeas bond alleging that, after deducting the net sale proceeds from the total partnership indebtedness, there remained a deficiency of $6,074.70, one-fourth of which Willis was obligated to pay, and one-eighth of which Drewry was obligated to pay, along with Larkey and Ray as sureties on the supersedeas bond; and that, in addition, appellant had since the original trial expended $255.51 for electric power and pipe fittings for the preservation of the partnership property. In an amendment to his motion, appellant also asserted that during the pendency of the former appeal he had been further damaged in the sum of $75.00 per month by reason of certain services performed by him necessary to preserve the property; and that he had been otherwise damaged in the sum of $300 per month because of the delay occasioned by the appeal. Appellant prayed for a supplemental decree fixing the amount allegedly due him from all the appellees for said items.
On July 23, 1957, appellees filed a motion to dismiss appellant’s motion for summary judgment on the super-sedeas bond on the ground that there was no monetary judgment awarded either in the trial court or this court on the former appeal, said judgment, and the superse-deas issued thereon, being only for the sale of the partnership property; and that appellant had no valid claim against appellees under said bond other than for actual court costs on the former appeal. The instant appeal is from a decree sustaining appellees’ motion, and dismissing with prejudice appellant’s motion for summary judgment on the supersedeas bond for all items except court costs.
For reversal appellant first contends that under our statutes and the language of the supersedeas bond the appellees, Larkey and Ray, as sureties, bound and obligated themselves for the full performance and satisfaction of the decree. Hence, says appellant, the sureties were rendered liable to appellant on his motion for judg ment in the snm of $2,278.01 which, represents 3/8ths of the $6,074.70 deficiency remaining after applying the net sale proceeds to payment of partnership liabilities. Appellant relies on that portion of Section 5 of Act 555 of 1953 (Ark. Stats., Sec. 27-2121.1) which provides that a supersedeas bond, “shall be conditioned for the satisfaction of the judgment in full, together with costs, interests, and damages for delay, if for any reason the appeal is dismissed or if the judgment is affirmed . . Appellant overlooks other provisions of the same section relating to the amount of the super-sedeas bond to be fixed to stay a sale of property, as well as Ark. Stats., Sec. 27-2125 which provides: “The su-persedeas may be issued to stay proceedings on a part of a judgment or order, in which case the bond shall be varied so as to secure the party superseded.” There was no repeal of this section by Act 555 of 1953. Just as a party may appeal from any part of a decree or judgment under Sec. 3 of Act 555 (Ark. Stats., Sec. 27-2106.2), he may stay only a part of the judgment or decree under Sec. 27-2125, supra.
As the chancellor pointed out, there was no monetary judgment rendered on the former appeal. Also, there had been no sale of partnership assets when the original decree was rendered, and the preamble of the supersedeas bond provided for a stay of only the sale of the assets and there is nothing in the second paragraph of the bond that binds said sureties for the payment of the unascertained deficiency to which the other appel-lees were required to contribute. In this connection we have held that it is not within the province of this court to adjust the equities between the parties by marshaling the securities or assets for the benefit of sureties on the supersedeas bond, for that would amount to an exercise of original jurisdiction. Kirby v. Young, 145 Ark. 507, 224 S. W. 970. See also, Stephens v. Shannon, 44 Ark. 178, where it was held that summary judgment may be given against sureties on a supersedeas bond only for costs where a decree for plaintiff merely fixed a vendor’s lien on land and there was no judgment against the appellants for the recovery of money. In the circumstances presented here the chancellor correctly concluded that the sureties on the supersedeas bond were not liable to appellant for the amount of the deficiency of $2,278.01 alleged to be due by the two principal appellees.
This brings us to the question of the liability of the sureties for alleged damages caused by delay pending the former appeal. At the hearing on the motion to dismiss appellant’s motion for summary judgment the chancellor declined to hear proof relating to such alleged damages. In sustaining the motion to dismiss without such proof the trial court, in effect, sustained a demurrer to appellant’s motion for summary judgment on this feature of the case. On this point it is noted that the second paragraph of the supersedeas bond binds the present appellees to, “satisfy all damages to appel-lee (Sykes) during the pendency of this appeal should the decree be affirmed.” Even where some particular element of recovery specified in the statute is not set out in the bond, this court has held that the provisions of the statute may be considered as written in it. See cases cited in Dover v. Henderson, 197 Ark. 971, 125 S. W. 2d 798. Since both the bond and the statute (Ark. Stats., Sec. 27-2121.1) cover damages for delay, we hold the trial court erred in summarily dismissing the motion for judgment on the bond without a hearing on this issue. To this extent the decree is reversed and the cause remanded for further proceedings to determine the amount of delay damages, if any, occasioned by the former appeal. In all other respects the decree is affirmed. | [
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Paul Ward, Associate Justice.
Dr. W. H. Horn and Bertie Lee Horn (Ms first wife) had four cMldren, all living and now adults. They are: W. C. Horn, Ray H. Horn, Claud H. Horn, and Ida (Horn) Hearn. Bertie Lee Horn died in 1940, owning considerable real and personal property in her own name and right, hut her estate was apparently kept together and handled by her husband and children until 1954 when letters of administration were requested. On September 27th of that year her son, Claud H. Horn was appointed administrator. On appeal that case is docketed as No. 1509.
Dr. W. H. Horn married Alpha (now Alpha Horn) in 1942 and they had no children at the time of his death on September 14, 1954. On September 27, 1954 letters of administration on his estate were issued to his son, W. C. Horn, and that ease, on appeal, in No. 1508.
The administrators in each case filed inventories listing, in detail, the real and personal property. This litigation and these appeals are concerned with personal property only.
The inventory in No. 1508 (Dr. Horn), among other things, listed numerous items of household furniture, one diamond ring, 26 hogs, 105 head of cattle, and 2,000 bales of grass hay. The inventory in No. 1509 (Bertie Lee Horn), among other things, also listed 26 hogs, 105 head of cattle, and 2,000 bales of grass hay.
Alpha Horn, as the widow of Dr. Horn, filed exceptions to the inventory in No. 1508, claiming as her own, the diamond ring and numerous other articles. She also filed exceptions to the inventory in No. 1509 on the ground that certain listed items (also listed in No. 1508) were assets of her husband’s estate. After a hearing, the Probate Court, disallowed the exceptions in toto in No. 1509, and also disallowed the exceptions as to all items in No. 1508 except as to two bedroom suites valued at $300, one dining room suite valued at $100, and one ironer valued at $50. From both judgments of the court Alpha Horn has appealed.
No. 1509. Appellant makes no contention that there is any personal property belonging to her husband’s estate which has been left out of the inventory in No. 1508. As we interpret appellees’ brief they admit and acknowledge that appellant will get her share, under the law, in all items listed in No. 1508, which of course is all she is entitled to receive. We refer to the statement in appellees’ brief where they say: “No one has ever denied that she (referring to appellant) has her dower interest in all of the property listed in Dr. Horn’s estate.” Therefore, based on that interpretation of the position here taken by appellees, the judgment of the Probate Court is affirmed.
No. 1508. The Probate Court refused to give appellant a 32nd degree diamond Masonic ring, valued at $900, which was listed in the inventory of the personal effects of her husband’s estate. Appellant’s abstract of the testimony in this connection is substantially as follows : Appellant said the Dr. took the ring off his finger and gave it to her. Virginia Dodson said she saw Dr. Horn give the diamond ring to Alpha Horn and say he was giving it to her, but in the discussion she handed it back to him; he (Dr. Horn) gave her the ring in 1953 and she held it a few minutes and handed it back to him and said “you just go ahead and wear it”; about four weeks later he had given it back to her and she was still holding it when I left the room; it might have been the second time he gave it to her, and I never recall seeing her wear it; I said “Dr. Horn, when are you going to give Mrs. Horn a ring like this?” He had it off his finger and said “I am giving it to her now”; she (appellant) said “you keep it and wear it.” We cannot say that the above testimony is so definite as to a delivery of the ring and the intent to part with the title to it that the Probate Judge, who observed the witnesses and their demeanor, reached the wrong conclusion.
Appellant claimed title to numerous otter items of personal property listed in the inventory which the Court refused to give her. The Court did give appellant each item where she testified that she bought it with her own money. We deem it unnecessary to set out the testimony relating to these items in view of the conclusion hereafter reached and because, in our opinion, the testimony relating to the articles which the court refused to give appellant is less favorable to her than the testimony relating to the diamond ring.-
The record reflects that appellant has already been awarded an allowance of $1,000 and $500 pursuant to the provisions of Ark. Stats. § 62-2501 a. and c., but we fail to find where she has been given an allowance under sub-section b. of said section. This sub - section reads: “Such furniture, furnishings, appliance, implements and equipment as shall be reasonably necessary for the family use and occupancy of her dwelling, shall be assigned to and vested in the widow, if any, provided she was living with her husband at the time of his death”. As provided in sub-section d. of said section, the allowances under sub-sections a., b., and c. are cumulative.
Since appellant was apparently living with her husband at the time of his death, she is entitled to have vested in her the title to such items mentioned in sub-section b. as shall be reasonably necessary for her use as set forth therein.
The judgments in both causes are therefore affirmed, but the cause in No. 1508 is remanded with directions to the trial court to comply with the provisions of this opinion upon timely application by appellant. | [
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CakletoN Harms, Chief Justice.
This appeal seeks to reverse the decree of the White County Chancery Court, wherein Mildred Holt, appellee, was awarded the custody of the two minor children of appellee and appellant, Ernest M. Holt, Jr. Appellant, for reversal, alleges one point, namely “The order of the lower court awarding the custody of the minor children to appellee is contrary to the well established principle, constantly adhered to by this Conrt, that the first and paramount consideration of the Conrt is the security, well-being and happiness of the children.”
To briefly summarize a history of the case, Mildred Holt, on April 9, 1951, was granted a decree of divorce from Ernest M. Holt, Jr., by the White Chancery Court, and was given custody of the minor children, Linda Kay, then 6, and Larry Wayne, then 4, with visitation rights reserved to Mr. Holt. The decree provided that Holt should pay the sum of $12.50 per week for maintenance of the children. Mrs. Holt, sometime thereafter, moved to Little Bock, and obtained a job at the Westinghouse Corporation, earning approximately $50.00 per week. The children, together with an older child of Mrs. Holt’s by a previous marriage, were placed in the Elizabeth Mitchell Children’s Home, due to the inability of the mother to take care of them while working. They remained in the Home for a period of about three years, with the mother taking them to her home each weekend. During this period, the cost of keeping the children in the Home was largely borne by the mother. According to the evidence, the father, who had remarried in the meantime, contributed almost nothing for approximately two years. On November 28, 1955, appellee was given judgment against appellant for arrearage in child support payments in the sum of $1,174.09, and the court decreed that no further hearing be held on child custody until said amount was paid. Subsequent thereto, Mr. Holt filed a motion asking that this judgment be set aside; that the divorce decree be modified by granting him custody of the children, and setting up that he had been hospitalized and unable to work, as the reason for his failure to make the payments to Mrs. Holt. The judgment was set aside and appellant’s motion was set down for hearing. Upon the hearing, the court found Mr. Holt’s arrearage to be $1,274.09, and ordered that he pay $100 on such arrearage and $50 to Mrs. Holt’s attorney. The order further provided that Mr. Holt’s motion for custody not be heard until the said sum of $150, as well as any child support payments accruing following the order, be paid. Subsequent thereto, Mrs. Holt entered the State Hospital for Nervous Diseases, and stayed there until July 31, 1956. On May 11, 1956, the original decree was modified to the extent that Mr. Holt was authorized to have custody of the children on certain weekends, and when the school term ended, Mr. Holt took his children from the Elizabeth Mitchell Home, and carried them to his own home at Kensett, White County. They remained there until the present hearing, which was held on September 20, 1956, with the final order being entered on November 20, 1956. This order dismissed Mr. Holt’s petition for permanent custody of the children, and restored, to Mrs. Holt such custody; provided for judgment against Mr. Holt for Mrs. Holt in the sum of $1,274.09, allowed an additional fee of $150 to her attorney, directed the continuance of the $12.50 per week for maintenance of the children, and granted Mr. Holt visiting privileges on certain weekends of each month. Prom this final order comes this appeal.
It is conceded by counsel for both parties that the controlling consideration, in determining who shall gain custody, is the welfare of the children. As has been previously stated by this Court in Cushman v. Lane, 224 Ark. 934, 277 S. W. 2d 72, "* * * The paramount and controlling consideration here, as in all custody cases, is the child’s best interest and welfare. Each case presents a different factual situation and no hard and fast rule can be laid down in determining what is best for the permanent welfare of the child. * * *”
In contending that he is entitled to the custody of the children, appellant states that he and his present wife live at Kensett, where both are employed, working five days a week from 7 a. m. until 4 p. m. He earns $100 per month, and his wife earns from $200 to $250 per month. They own their home, fully paid for, which, according to the evidence, was purchased about two years before the hearing. A new Pontiac automobile has been purchased, with payments of $70 per month, and a television set, requiring payments of $5 per week. The present Mrs. Holt states that she is willing to help provide for tlie children, and that she and appellant have an income of $200 to $250 per month to pay ordinary expenses over and above the payments heretofore mentioned.
When school commenced, the children enrolled in the Kensett school, where their grades were better than while at Little Rock. At the end of the school day, the children returned to the home of their grandparents (who lived a few blocks from appellant) and remained there until their father had returned home.
Appellant admits that he did not make his support payments as required, but states that he has “been sick quite a bit of the time” with an ulcerated stomach, and also had injured his hand in a saw, which prevented, and still prevents, his working full time.
The mother, Mildred Holt, was discharged from the hospital, as competent, on July 31, 1956. She was to resume work at Westinghouse tlie day following the present hearing with an approximate income of $50 per week, and had obtained an apartment in North Little Rock, large enough to accommodate the children (four rooms, bath, and back porch) at the rental of $55 per month, including utilities. She expected to work the day shift from 7 a. m. until 4 p. m., in which case she would return to the apartment soon after 4 p. m. to be with the children. Her eldest daughter was also of sufficient age (14) to look after the two younger children until her return. She testified that, if she were placed on the night shift at Westinghouse, the landlady and her husband had agreed to look after the children until she returned from work.
Admittedly, it is difficult to determine which parent should have custody, for it is not easy to ascertain which would better promote the children’s welfare. While certainly we would not deny appellant the custody of his children because of his failure to comply with the prior maintenance orders of the court, (if we were convinced that their welfare would best be served by being placed with him) still we feel that the evidence of his irregular payments, including numerous months in which no payment at all was made, is relevant evidence touching upon the question of appellant’s affection and regard for the children. Though perhaps unable to fully comply with the maintenance order of the court at all times, nonetheless, we feel that some amount could have been given the children for their needs. This feeling is strengthened by the fact that Mr. Holt and his present wife were able to purchase a home during this period of time.
Also, Mrs. W. D. Thomas, superintendent of the Elizabeth Mitchell Children’s Home, testified that during the approximate three year period the children were in the home, she only saw the father once. In reply to the question of counsel: “Q. Did he show any interest in the children to your knowledge? A. Not any at all.”
It may well be that from a financial point of view, the interests of the children would be best served by placing them with their father. But wo do not conclude that the well being of a child is governed entirely by the amount of money that is spent upon him. Other considerations are more important. That this mother loves these children devotedly is not questioned; that she has provided to the best of her ability is likewise unquestioned; nor have her morals and character been brought into issue. In short, if custody should be placed in the father, it would mainly have to be on the basis that Mr. Holt and his present wife are better able financially to take care of these children than is appellee; or perhaps, we should say that Mr. Holt’s present wife is better able to take care of them, since the bulk of the income is derived from her earnings. In regard to appellant’s argument that appellee lacks stability, (referring to her confinement in the State Hospital) the evidence reflects she is presently able to manage her affairs. It may well be that the strain of looking after the needs of three children, with inadequate income, and insufficient help from the father, could have contributed to appellee’s condition. Prompt remittance by Mr. Holt of his monthly support payments will serve to supplement the income of the mother, thus mitigating the needs of the children, and lessening the strain on the mother.
As stated, matters of custody are difficult matters. "We recognize there is something to he said for both sides in the instant litigation. The Chancery Court has had these parties before it on several occasions, and has had the opportunity to observe their attitude toward the children, their interest in, and apparent affection for, same. Under the proof before us , we are unable to say the court erred in placing custody in the mother. Fortunately, in custody cases, the court retains jurisdiction, and if future developments should indicate that a change of custody would be desirable, and for the best interests of the children, the Chancery Court is vested with full authority to revise its orders.
Affirmed.
Justice Holt not participating.
The mother’s plans for work and care of the children apparently were effected, as the hearing was conducted on September 20, 1956, but the decree was not entered until November 20, 1956. | [
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George Bose Smith, J.
In this proceeding the appellant, Charles E. Evans, Jr., contests the will of his mother, Winnie Evans Hill, on the grounds of testamentary incapacity and undue influence. In the trial court the will was upheld and admitted to probate,,
Mrs. Hill, a lifelong resident of Ashley county, died March 11, 1956, at the age of fifty-eight. She was survived by her son, who lives in Mississippi, and by two sisters, Mrs. Genie Porter of Glastonbury, Connecticut, and Mrs. Yelma Benjamin, of Houston, Texas. By her will, executed on October 19, 1955, Mrs. Hill left substantially one half of her estate to Mrs. Porter, one fourth to Mrs. Benjamin, and one fourth, to a practical nurse, Mrs. Nettie Arrington, on condition that Mrs. Arrington he in the employ of the testatrix at her death. The appellant’s two minor children were made contingent beneficiaries if any of the principal bequests should fail.
It is the appellant’s contention that his mother had been ill for some twenty years before her death and that the illness resulted in mental incompetency several years before the will was signed in 1955. It is also asserted that the beneficiaries of the will unduly influenced the testatrix, but there is very little proof to support this assertion. Both of Mrs. Hill’s sisters have been nonresidents for many years. Mrs. Porter, the chief beneficiary under the will, had not even seen Mrs. Hill for more than two years before the will was executed. Mrs. Benjamin came to Arkansas for a brief visit about three weeks before the will was executed, but there is nothing to indicate the exercise of a sinister influence upon the testatrix. Nor do we find any proof of wrongful conduct on the part of the remaining beneficiary, Mrs. Arrington. Without discussing this issue at length, it is enough to say that the trial court’s rejection of the charge of undue influence is not against the weight of the evidence.
On the principal issue of testamentary capacity the law is so well settled in this state that there is no need for us to restate the familiar rules that control this case. The basic question is whether the probate court’s finding of testamentary capacity is contrary to the preponderance of the proof. The record is much too large to warrant a detailed review of all the testimony. We are convinced that the weight of the evidence supports the trial court’s conclusion and shall state only some of the salient facts that confirm our view.
The testatrix married her first husband, Charles ft. Evans, in her teens and lived with him until his death in January of 1947. A few months after Evans died the testatrix married a man named Gibson and made her home in Louisiana for a short time. In the summer of 1947 the appellant filed a suit against his mother. The complaint charged her with fraud in connection with an undelivered deed and asserted that she was wrongfully dissipating the estate of Evans senior, who had died intestate. This case was settled in 1948 by the entry of a consent decree dividing the Evans estate between the mother and son. Most, if not all, of the property owned by Mrs. Hill at her death was derived from the estate of Evans. In July of 1955 the appellant again sued his mother with respect to the property involved in the earlier case. This suit was compromised by a consent decree entered two days before Mrs. Hill’s death.
The litigation we have mentioned tends to show that Mrs. Hill’s failure to provide for her son in her will was not the result of mental incapacity. We may fairly infer that the suits brought by the son against his mother led to some estrangement between the two; certainly their relation was not close after 1947. We may also fairly suppose that the testatrix, in making her will, adopted the view that her son had already received, through litigation, his just share of his father’s former holdings. Finally, it must be noted that each suit proceeded to a decree without the appointment of a guardian ad litem for the defendant. Thus it seems that the appellant, in his mother’s lifetime, was not sufficiently convinced of her incompetency to take the precaution of having a guardian appointed as a safeguard to his interest as well as hers in the land involved in that litigation.
It is shown that the testatrix suffered from arthritis and from arteriosclerosis for a number of years before her death at the age of fifty-eight. In the course of her painful illnesses Mrs. Hill consulted many physicians. These expert witnesses are not in agreement as to her testamentary capacity; their conflicting testimony is fairly evenly balanced.
Dr. Wright, whose clinic is in Louisiana, attended Mrs. Hill occasionally over a period of twelve years and thinks that she was incompetent to make a will on October 19,1955. Within a month after that date Dr. Wright observed Mrs. Hill and recorded a diagnosis of dementia praecox. Another physician, Dr. Wood, who treated Mrs. Hill on a few occasions in 1955, expresses the opinion that she was then unable to transact ordinary business.
On the other hand, the testimony of Dr. Regnier and Dr. Delaney is persuasive. Within the month preceding the execution of the will Mrs. Hill was an in-patient at the Orossett Health Center, from September 19 to October 5, under the care of Dr. Regnier. The detailed records of the hospital rather strongly negative the suggestion of mental incapacity. Dr. Regnier’s opinion that his patient was able to make a will is shared by Dr. Delaney, who attended Mrs. Hill on the day after the will was signed.
The testimony of the lay witnesses is also in conflict, but in our judgment it preponderates in favor of the will. W. S. Arnold, who drafted the instrument, was called as a witness by the contestant, although Arnold was one of the attorneys for the proponents of the will. This attorney had been employed by Mrs. Hill to defend the second suit brought against her by her son. Mrs. Hill’s third husband, Bradley Hill, died while she was in the hospital at Orossett. After her return to Hamburg she telephoned Arnold and asked him to come to her home to discuss the preparation of a will. Arnold visited her on October 11 and obtained the information needed for the drafting of the will. Mrs. Hill enumerated her relatives — without prompting, as Arnold did not know who her relatives were. She also furnished him with a correct description of her land and with the birth dates of her two grandchildren. The testatrix selected as attesting witnesses a banker, an abstracter, and a merchant. After having prepared the will Arnold returned to Mrs. Hill’s home on October 19, with the witnesses, and the instrument was duly executed.
The three attesting witnesses made the usual proof of the will and, as far as they were examined in the matter, confirmed the existence of testamentary capacity. An attorney, Y. W. Etheridge, testified in the case before he was employed to represent one of the proponents of the will. Etheridge had known Mrs. Hill for thirty years and had been her neighbor for three or four years before her death. It was his positive and unqualified opinion, based upon almost daily observation, that Mrs. Hill had the mental capacity that the law requires on the part of a testator.
Without further detailing the evidence we conclude from the record that the trial court’s findings are supported by the weight of the testimony.
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J. Seaborn Holt, Associate Justice.
Appellee, Benton Plumbing, Inc., brought this suit against appellants alleging that both were Arkansas corporations with their principal place of business in Benton, Arkansas, and sought to recover from appellants $1,218.96 as balance due, together with a lien, for plumbing installations in houses built on, and service connections made to, some 30 lots belonging to appellants. Appellants answered with a general denial. Trial resulted in a decree for the amount prayed and a lien for said amount and a judg ment in rem was declared against the real estate in question. This appeal followed.
For reversal appellants rely on the following points: “1. Service not valid on defendant, Benton-Bauxite Housing Co-op., Inc. 2. . No evidence to substantiate finding of court that appellee is entitled to judgment against defendants Benton-Bauxite Housing Co-op., Inc., and Adams and Howard Co., Inc. 3. Appellee not having ' entered into contract with owner of the property upon which services performed is not entitled to lien. 4. No evidence to substantiate finding of court that two individuals, Wesley Adams and Victor Howard who are not parties to this suit, were owners of the property upon which the services were performed. 5. No evidence that Benton-Bauxite Housing Co-op., Inc. was a subterfuge through which Adams & Howard Co., Inc., and individuals Wesley Adams and Victor Howard intended to defraud appellee.”
The record reflects that on August 26, 1954, the following contract was entered into between Benton-Bauxite Housing Co-op., Inc., and appellee, Benton Plumbing, Inc.: “Benton-Bauxite Housing Co-operation, c/o Adams & Howard, Benton, Arkansas Gentlemen: For the sum of twenty thousand two hundred fifty dollars ($20,-250.00) we propose to furnish the labor and material to install the plumbing and gas piping in thirty (30) houses you are to build in the Troutt Addition in Benton, Arkansas. This bid includes the following: (description of installations and services) . . . This bid includes gas piping for kitchen, bath, water heater and floor furnace, also connecting and vent floor furnace, but bid does not include furnishing floor furnace. Terms: 90 per cent estimate on first of each month.
“Bid accepted: .
Date
Benton-Bauxite Housing Co-op.
/s/ Wesley Adams, Pres.
Very truly yours,
Benton Plumbing, Inc.
/s/ M. W. Rommel
Pres.”
The following findings by the trial court, we think, are supported by the preponderance of the testimony. ‘ ‘ That on August 26, 1954, as alleged in Paragraph 2 of the complaint, Wesley Adams, purporting to be the president of Benton-Bauxite Housing Co-op., Inc., entered into a written agreement with the plaintiff for the plumbing on thirty houses in Troutt Addition to the City of Benton, Arkansas, for the sum of $20,250.00, and that the said plaintiff had also in the past done similar work in said addition for the defendant, Adams & Howard Company, Inc., the incorporators of whom were Wesley Adams and Victor Howard, who also carried on certain similar operations in said addition under an incorporation known as Parkwood Homes, Inc., and that the same persons, Wesley Adams and Victor Howard, were the owners, at all times mentioned in the complaint, of the lots described in the complaint filed herein upon which the plaintiff under the written contract signed by Wesley Adams as President of Benton-Bauxite Housing Co-op., Inc., and the oral agreement later entered into between them and plaintiff, performed the plumbing services mentioned in the complaint of the plaintiff.
“The court further finds that Benton-Bauxite Housing Co-op., Inc., was a proposed dummy corporation and never did actually come into existence but was a subterfuge through which Adams & Howard Company, Inc., and Wesley Adams and Victor Howard personally intended to defraud the plaintiff and defeat his lien for serv ices performed upon the lots described in the complaint under the contracts mentioned therein, and that thereafter Adams & Howard Company, Inc., was dissolved and the assets of said corporation including the lots herein described, became the individual property of "Wesley Adams and Victor Howard, subject to the lien of the plaintiff herein for services performed under contract with the purported corporation Benton-Bauxite Housing Coop., Inc., and that as proposed President of such corporation the said Wesley Adams had (was) authorized to bind the stockholders of such proposed corporation and therefore to create a lien upon the lands herein described.
“That the plaintiff, acting in good faith under the terms of said contracts and without having knowledge of any intent to defraud it or of the manipulations of the owners of said lands mentioned in the complaint, rendered the plumbing services described in said complaint to each of the lots under authority from the defendant corporations, and by reason thereof held an absolute lien thereon for labor done and materials furnished under said contract at the time of the filing of the complaint, and which lien should be declared a lien against each and every lot described in the complaint of plaintiff, and that they should have judgment against the defendant corporations in the sum of $1,218.96, which judgment should be declared a lien against said lands and a judgment in rem against said lands, and the same should be foreclosed, and unless said judgment be paid within thirty (30) days said lands should be sold to satisfy said judgment.”
While it appears that appellant, Benton-Bauxite Housing Co-op., Inc., had failed to take all necessary steps to incorporate (Sec. 64-103 Ark. Stats. 1947), it and its incorporations had certainly held it out as a corporation, accepted the benefits of its contract above with appellee and it and its incorporators are, therefore, bound by its terms whether its corporate status had been completed or not; and, further are estopped, as we shall presently point out.
As indicated, the chancellor found, and we think correctly so, that Wesley Adams and Victor Howard were, in effect, joint owners of the lands in question, and while neither was made a party individually to this suit Adams, by signing the above contract -as president of a nonexistent corporation, thus inducing appellee to perform plumbing services on property which he and Howard jointly owned thereby increasing its value to their benefit, he, (Adams) was acting in privity with Howard .and both are estopped to question the judgment here. The rule announced in Collum v. Hervey, 176 Ark. 714, 3 S. W. 2d 993, applies with equal force here: “But to give full effect to the principle by which parties are held bound by a judgment, all persons'who are represented by the parties and claim under them or in privity with them are equally included by the same proceedings . . . The ground therefore upon which persons standing in this relation to the litigating party are bound by the proceedings to which he was a party, is that they are identified with him in interest; and whenever this identity is found to exist, all are alike concluded. Hence all privies, either in estate, in blood, or in law, are estopped from litigating that which is conclusive on him with whom they are in privity. Litchfield v. Goodnose, 123 U. S. 549, 8 S. Ct. 210, 31 L. Ed. 199 . . . As used when dealing with the estoppel of a judgment, privity denotes mutual or successive relationship' to the same right of property, and it is classified as privity in estate, privity in blood, and privity in law, in all of which kinds there must be an identity of interest. A privy in estate is one who derives title to property from another. He comes in by succession to property by contract or law. To make one person a privy in estate to another, that other must be predecessor in respect to the.property in question, from whom the privy derives his right or title. Examples of this class of privies are joint tenants, donor and donee, lessor and lessee, and successors in office. Privies in representation are illustrated by executor and testator, administrator and intestate. 15 R. C. L. 1015.”
Other points raised by appellants have been carefully considered and all found to be without merit. Affirmed. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
This was an action of debt, brought in the name of the State, for the use of Brown & Bean, against Crow, as sheriff of Clark county, and Sloan and Thornton, as his securities. The suit was upon the official bond of Crow.
The substance of the breach of the bond assigned in the declaration is, that under an execution which came to the hands of Crow, as sheriff, he sold the steamboat Arkadclphia, the property of Brown & Bean, for less than two-thirds the appraised value. The case has been in this Court before, and is reported in 6 Eng. 642, where the pleadings and facts, to the time of the first trial, fully appear. Among the pleas interposed by the securities of Crow, was one averring that he was not sheriff, etc., to which the plaintiff took issue. After the cause was remanded from this Court, it was again submitted to a jury upon the issues, etc.
On the trial, the plaintiff read in evidence the execution described in the declaration, and the return endorsed thereon. The execution was issued by the Clerk of the Ouachita Circuit Court, against the steamboat Arkadelphia, upon the transcript of a judgment of a justice of the peace, filed in his office, and is addressed to the sheriff of Clark county.
It appears from an endorsement thereon, that it came to the hands of W. S. Smith, sheriff of Clark county, on the 7th of June, 1844, that he levied upon the boat the 12th of July following, and advertised her to be sold on the 25th of the same month. Then follows a return made by the defendant, Crow, commencing thus:
Whereas, on the 25th day of July, 1844, the said W. S. Smith having resigned his office of sheriff, and I, James H. Crow, having received the pro tem. appointment of sheriff, for said county of Clark, and the said Smith, late sheriff, delivered the written order of sale to me to be further executed, as the law directs, with his return as above thereon, and on this, the 25th day of July, 1844, before the legal hours of sale, F. Jordan, Esq., demanded the appraisement of said boat, etc., etc.
The return proceeds to show the appraisement and sale of the boat, etc., and is signed by Crow, as sheriff.
The plaintiff also offered to read in evidence the order of the presiding judge of the County Court of Clark county, appointing Crow sheriff pro tempore, which, upon the objection of the defendant, the Court excluded.
The plaintiff then proposed to read in evidence, an authenticated copy of the bond executed by Crow, as sheriff, etc.— also, the original, and offered to prove its execution, etc., but the Court excluded them. The bond is dated 25th July, 1844, and its condition recites that Crow had, 'on that day, been appointed sheriff, pro tempore, of Clark county, by the judge of the County Court, etc.
The plaintiff also offered to prove by a witness, that Crow acted as sheriff, and advertised and sold the boat as such, etc., which the Court excluded.
The Court instructed the jury, that if they believed that the presiding judge of Clark County Court had appointed said Crow sheriff, as alleged in the declaration, such appointment was not legal, and they must find for the defendants, under the issues herein.
And further, that if the jury believed that said Crow acted-as sheriff, as alleged in the declaration, and made return of his said acts as such, when he was not really sheriff, he could not be sued on his official bond as sheriff, but could be made responsible individually, and they must find in favor of the defendants.
The jury returned a verdict in favor of the defendants, the plaintiff moved for a new trial, on the grounds that the Court erred in excluding evidence offered by the plaintiff, and instructing the jury as above.
The Court overruled the motion, and the plaintiff excepted and brought error.
1st. The constitution provides, that the qualified voters of each county shall elect one sheriff, etc.,/or the term of twoijears. Art. 6, sec. 17. It also provides for the holding of general elections every two years, etc. Art. 4, sec. 8. Thus the term of the office is made to correspond with the period fixed for the general elections by the people. Though the officer for the regular term must be elected by the qualified voters of the county, yet inasmuch as the constitution makes no provision for filling vacancies that may occur in the office between the periods fixed for the general elections, by death, resignation or removal, the mode of filling such vacancies is within the control of the Legislature, as held in The State vs. Sorrells, 15 Ark. 674. Such has been the usage of the government from the time the constitution was adopted — various acts having been passed, providing for filling vacancies by appointment. See Acts of 1836, p. 128; Acts of 1840, p. 6; Acts 1842, p. 41; Gould’s Dig. ch. 160, sec. 15; and ch. 175.
The appointment in question was no doubt made by the judge of the County Court of Clark county, under the following act:
“ If the offices of sheriff and coroner shall both be vacant at any one tiKSte, the presiding judge of the County Court shall appoint a sheriff pro tempore, who shall give bond in accordance with this act, and shall perform all the duties of the office of sheriff until the vacancy which he temporarily occupies is filled according to law. Rev. Stat., chap. 140, sec. 15; Eng. Dig., ch. 151, sec. 14; Gould’s Dig. ch. 160, sec. 15.
The act of 29th October, 1836, (Acts of 1836, p. 128,) provides, that in all cases of vacancy in the office of sheriff, etc., the Governor should fill such vacancy by appointment, until the next general election, but this act was not carried into the Revised Statutes, (prepared by Ball & Roane); nor did that revision contain any general provision for filing vacancies in the office &f sheriff. The act of 3d of December, 1840, {Acts of 1840, p. 6,) passed at the first session of the General Assembly after the Revised Statutes were put in force by proclamation of the Governor, was doubtless intended to supply this omission. Section 1 of this aost provides that, when any vacancy shall occur in the office of sheriff or coroner, etc., it shall be filled by writ of election issued by the Governor.
Section 2 provides that, when the office of sheriff shall be vacated by death, resignation, removal or otherwise, it shall be the duty of the judge of the County Court or coroner to give immediate written notice of such vacancy to the Governor, who shall thereupon issue a writ of election to the coroner, requiring him to hold an election to fill such vacancy, after giving at least ten days’ previous notice, etc. The 3c? section provides that when a vacancy shall occur in the office of sheriff, the coroner shall be ex-officio sheriff ad interim, and in like manner, the sheriff shall be ex-officio coroner, and shall give notice of such vacancy in the office of coroner, in the manner prescribed in the foregoing section.
Th.e act of the 31st December, 1842, {Acts of 1842, p. 41,) provides, that, where the offices of countyjudge, sheriff and coponer, may be all vacant at the same time, the clerk of the Circuit Court shall give at least ten days’ notice, etc., that an election will be held, etc., for the purpose of electing a sheriff and coroner, etc.
The appointment in question was made 25th of July, 1844, and before the passage of the act of December 14th, 1846, (Gould’s Dig., ch. 175, sec. 3,) in relation to vacancies in the offices of sheriff, etc., and which specifically repealed the act of December 3d, 1840, etc.
Did the act of December 3d, 1840, repeal, by implication or conflict, the statute above copied, empowering the judge of the County Court to make a pro tempore appointment of sheriff, where the offices of sheriff and coroner were both vacant, etc.
This statute was part of the Revised Statutes, and was carried into the Digests of 1848 and 1858, the digesters supposing it to be still in force. There was no necessary conflict between it and the act of December 3d, 1840. Construing the two statutes together, when a vacancy occurred in the office of sheriff and coroner both, the judge of the county court, being near at hand, was authorized to make a pro-tempore appointment of sheriff and the appointee would act as such until the governor could be informed of the vacancy, issue a writ of election, and cause the vacancy to be regularly filled, when the pro-ttmpore appointee would cease to act. But if it be supposed that the act of December 3d, 1840, repealed the statute empowering the County Judge to make such temporary appointment, then in case of a vacancy in both the offices of sheriff and coroner, there would have been no one to act as sheriff during the time that was required to notify the Governor of the vacancy, issue the writ, hold the election, etc., etc.
It follows that the Court below erred in excluding from the jury the order of the Judge of the County Court, appointing Crow sheriff pro tempore, also erred in excluding the bond executed by him and his securities, in pursuance of the appointment, which contained an admission of the appointment, and would have been sufficient on the part of the plaintiff without introducing the order of the judge making the appointment, though he had the right to introduce both if he deemed it proper so to do. A duly authenticated copj'- of the bond was competent evidence (Gould’s Dig. chap. 67, sec. 11,) as well as the original.
The court also erred in giving the first instruction to the jury.
2. The second instruction is based upon the first, and falls with it. The first asserts, in effect, that the appointment of Crow, as sheriff, by the Judge of the County Court, was illegal and void. The substance of the second is, that the appointment being illegal and void, the bond taken in pursuance thereof was also void, and no action could be maintained thereon, though Crow was personally responsible for his acts as sheriff, etc. The first proposition being without foundation, so far as appears from the record now before us, the second becomes abstract, and need not be decided. For the errors above indicated, the judgment of the court below is reversed, and the cause remanded with instructions to grant the plaintiff a new-trial. | [
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Mr. Justice Batson
delivered the opinion of the Court.
This was a bill filed on the chancery side of Poinsett Circuit Court, by appellants, against the appellees, for partition and distribution of the estate of William R. Lipscomb, deceased.
The cause was brought to hearing on the original and amended bill; bill taken pro confesso as to Jordan R. Lipscomb, who had failed to answer; answers of the other defendants, exhibits, replications, and an agreed statement of facts, signed by the solicitors of the respective parties, filed, and ordered to be made a part of the record in the cause.
From the pleadings and agreed statement of the facts, we ascertain that William R. Lipscomb departed this life intestate, in the county of Poinsett, on the 15th day of December, 1854, leaving neither wife, child, father, mother, brother, sister, grandfather or grandmother, him surviving.
That said William R., at the time of his death, owned a number of slaves, which he had acquired in the State of Tennessee, one moiety as distributee of the estate of his deceased father, the other as distributee of the estate of his sister of the half-blood in the paternal line.
That subsequent to the acquisition of his property, one Jesse V. Cross, intermarried with the mpther of said William R., in the State of Tennessee, and was there appointed guardian of said William R.
That Cross, after that time, removed to Poinsett county, resided upon a farm containing 640 acres, which is described in the pleadings; that he brought with him from Tennessee the said William R., and all his property, and kept the property in his possession, on the farm aforesaid, until the winter of 1853,-’4, when he moved to another plantation in the same county, and left the said William R. and his negroes on the farm above mentioned, in charge of William R., and an overseer, employed by Cross, and subject to his control — the said William R. then being within the age of twenty-one years.
That at the January term of the Probate Court of said county of Poinsett, A. D. 1852, Cross, as guardian of William R., was indebted to his said ward, about the sum of $10,500, for the hire and increase of the slaves of his said ward, as appeared from the settlement of his accounts with .the Court.
That at said term he obtained an order of that Court, authorizing him to purchase for said William R., or to convey to him, the farm upon which said Cross then lived, containing 640 acres, at the sum of $8,000, and for which amount Cross was to receive credit on his account as guardian, as aforesaid.
That the farm mentioned in said order was the same upon which Cross left William R. and his negroes and overseer, as above stated.
That William R., and his negroes, and said overseer, remained upon said farm under Cross, until the death of said William R.
That Cross, up to the death of said William R., had not made him a deed to, or given him any evidence of right, to said lands, and the title thereto remained in Cross up to the time of the death of said William R.
That Cross, up to the death of William R., or subsequent thereto, made no report to the Probate Court of his proceedings upon the before mentioned order as to said lands.
That after the death of said William R., (who died within the age of twenty-one years), Colbert Caldwell, who is made a defendant to the bill, was duly appointed administrator of his estate, and proceeded to collect the property belonging thereto.
That said Caldwell, as administrator, finding that said Cross, as late guardian, was indebted to the estate of his intestate, in a sum over ten thousand dollars, and believing the bond of said guardian worthless, and insufficient to secure the payment of said sum, took from Cross and wife, in trust, etc., a deed for the 640 acres of land above mentioned, for which he allowed him the sum of $8,000 — which was placed as a credit to his said indebtedness; that, at the same time, he purchased of said Cross, in trust, other 80 acres of land, at the price of $400 — for which he also allowed him a credit; and the balance of the original sum due by Cross to his ward, including the interest due thereon, was then secured to said administrator by the promissory notes of said Cross and others.
That the purchases made by administrator were for the interest of the estate, and that the lands and negroes are in no wise necessary for, but are incumbrances to, the administration
That appellants, John T. Lipscomb, Mary E., wife of Edward Byrd, Elizabeth V. Lipscomb, Jane, wife of Thomas M. Mosely, Theophilus G. Lipscomb. Margaret E. Lipscomb, Sarah A. B. Lipscomb, and Harriet N. Lipscomb, are cousins of said William R., being the children of one Richard Lipscomb, deceased, who was a paternal uncle of said William R.; that defendants Jordan R. Lipscomb is a paternal uncle, and Jeremiah Graves, Mary, wife of Thomas Graves, Ibby, wife of Hosea McNeil, Solomon Graves, and Elizabeth Lee, are his maternal uncles and aunts.
Upon hearing, the chancellor decreed that the whole of said estate, and each and every part thereof, be taken as personal estate, so far as the manner of descents and distributions be concerned; and decreed a distribution thereof per stirpes to complainants, who were in unequal degree, and per capita to defendants (save Caldwell), who were in equal degree.
Complainants appealed.
Appellants, in their bill, claim that they are entitled to the one equal half, and defendant, Jordan R. Lipscomb, is entitled to the other moiety of the entire estate — the said Jordan R. being a paternal uncle, and appellants being the children, and husbands of the children of the only other uncle of said William R. in the paternal line.
The construction given to our statute of descents and distributions in the case of Kelley's heirs et al. vs. McGuire & wife and others, 15 Ark. 599: “ that personal property, where there were no descendants, should go to collaterals in the same way it would have gone to descendants, if any; that is to say, per capita, if in equal degree, and per stirpes, if in unequal degree, without enquiry as to how the property was acquired by the intestate;” and which we hold to be a correct interpretation of the statute, settles the principal questions in this case.
The only remaining question for our determination is, whether the 640 acres of land, above mentioned, should, for the purpose of descents and distributions, have been treated as real or personal estate. Appellants’ counsel, in this Court, insist: that the 640 acres of land were owned by deceased at the time of his death, and being a new acquisition should go to the paternal uncles, to the exclusion of the maternal side; that Cross, under the sanction of the Probate Court, had sold this land to his ward at a certain sum, in extinguishment of so much of his indebtedness, put him in possession, that he remained in possession, under his contract, until his death, and could, at any time before his death, have enforced specific performance; and that the conveyance to Caldwell, the administrator, in trust, for the benefit of the heirs, and passing credit to Cross for the amount, •was a consummation of the original contract in form, but added nothing in equity to the rights of deceased.
If there was a contract for the sale and purchase of this land, as insisted by appellants, it was made by Cross, the guardian, acting in his own behalf, of the one part, and the Probate Court, acting in behalf of the ward of Cross, of the other part.
Without stopping to enquire into the power of the Probate Court to make such contract, we shall content ourselves with the enquiry as to whether it was in fact made.
The order of the Probate Court, upon its face, certainly does not disclose a contract that would have been enforced against Cross in a Court of equity. Nor do we conceive that any thing was subsequently done by the parties, to give it that character, or to show that they even so regarded or intended it.
The order was made at January term, 1852; Cross was then residing upon the farm, and continued thereon until the winter of 1853,-’4; he then removed to another plantation, leaving intestate (who was a minor, and under his controlas guardian,) upon the farm, with his negroes, in charge of intestate and an overseer employed by Cross and under his control, who resided thereon until the 15th December, 1854, at which time he died. During all this time, Cross had made no conveyance of the land, or claimed credit for the price thereof; and subsequently conveying the farm to the administrator, at the same price he had demanded near three years previous to that time; and permitting interest to be computed from the date of the order of the Probate Court, up to the time of making the conveyance, shows that he did not make the conveyance in consummation of what he supposed a previous contract. And taking into consideration the relative position of the parties, added to the silence of the record as to the fact that intestate was ever informed of this supposed purchase, consulted with reference thereto, or having claimed the land, or done any act inconsistent with the title of Cross, we cannot admit that he was holding possession under contract.
We are clearly of the opinion that the order of the Probate Court, or any act thereafter done by the parties, prior to the death of said intestate, did not change the nature of the indebtedness of Cross to the intestate; that it came to the hands of the administrator as personal estate, and should have been so treated in making distribution.
Finding no error in the decree of the Court below, it must be affirmed. | [
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Mr. Justice Compton
delivered the opinion of the Court.
Appellant was indicted in the Franklin Circuit Court for selling ardent spirits contrary to the statute, etc.
He pleaded in abatement that he was indicted by the name of Justin Bennaux; whereas he was then, and had always been known by the name of Justin Beneux.
The Court sustained a demurrer to the plea. Appellant stood mute, and a plea of not guilty being entered by order of the Court, he was convicted and fined.
Did the Court err in sustaining the demurrer? It is insisted by counsel that Beneux is a French name, and that, according to the rules of orthography and pronunciation in the French language, is widely different in sound from Bennaux. It may be replied, that however this might be to the ears and understanding of a Frenchman, the names would seem to be idem sonans, according to our language.
In Rector vs. Taylor, Gardiner & Co., 7 Eng. 128, this Court held that the names “ Gardiner ” and “ Gardner,” were not variant in sound, the letter “i” in the one name making no necessary difference in sound. In that case, the Court said: “ So, we held ‘ Gravaier ’ and ‘ Gravier,’ to be the same sound. The decisions have already gone as far as may be allowed in support of such technicalities, which do but tend to produce delay in the due administration of the law, and should rather be modified, than extended further.”
In sustaining the demurrer, the Court did not err.
Judgment affirmed. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
This was a bill to redeem land, alleged to have been mortgaged, determined in the Ouachita Circuit Court.
The bill was filed by Lyman Stacy against Josiah H, Scogin, as executor of Thomas Jones, deceased, Amanda E. Jones, Henry T. Jones, Joel Jones, Sarah A. Jones and Nancy L. Jones, heirs of the said Thomas Jones, and the unknown heirs of Elizabeth Stacy, deceased.
The bill alleges, in substance, that on the 22d of September, 1848, the complainant conveyed to Thomas Jones, by deed absolute upon its face, a tract of land, tying in Ouachita county, with relinquishment of dower by Elizabeth Stacy, then wife of complainant. That the deed was not intended by complainant, nor understood by Jones, to be an absolute conveyance of the land, but a morgage, etc. No money was paid by Jones to complainant for the land, but the sole consideration for the conveyance was as follows:
At the time the deed was executed, one Ferrell had a suit pending in the Ouachita Circuit Court against complainant, and he knowing that judgment would be recovered against him, and being desirous of preventing a sacrifice of any of his property, applied to Jones, who was a man of wealth, for assistance, and a loan of a sufficient sum of money to satisfy the judgment when it should be rendered; and he agreed to comply with complainant’s request on being made secure from all loss. "Whereupon complainant executed to Jones the deed above referred to, and his wife, Elizabeth, relinquished dower, etc., in order to secure and save Jones harmless on account of any pecuniary assistance he might render to complainant, for the purpose of satisfying any judgment that might be rendered against him in Ferrell’s suit.
That after the execution of the deed, on the 28th of September, 1848, Ferrell recovered judgment against complainant for $117 78; but no attempt was made to enforce payment thereof until September, 1850, wdien Ferrell applied to complainant to satisfy the judgment; and proposed to him to take his note, with security, for the amount of the judgment, and interest, in satisfaction thereof; which proposition complainant accepted; and thereupon complainant executed to him his note, with Jones as security, for $220, dated 10th September, 1850, and due 1st March, 1851, which Ferrell accepted in satisfaction of the judgment. That the only assistance ever rendered complainant by Jones, under the above agreement, was his becoming security of complainant upon the note.
That on the 10th of September, 1850, Jones, in order to prevent any misunderstanding or disagreement concerning what was the true consideration and intent of the above deed, executed to Elizabeth Stacy, the wife of complainant, a covenant in the penal sum of $1,000, conditioned as follows:
“Whereas the said Thomas Jones hath this-day bargained and sold unto the said Elizabeth Stacy, a certain tract of land, situate and tying in the, etc., etc., [here the land embraced in the deed from complainant to Jones is described,] for the consideration of two hundred and twenty dollars, the amount of a note that Bennett Ferrell holds against L. Stacy and Thomas Jones — when the amount of theánoteis paid, Thomas Jones is to make, execute and deliver to the said Elizabeth Stacy, her heirs or assigns, a good and sufficient general warranty deed for the said land.”
Which covenant, the bill further alleges, Jones delivered to complainant on the day it was executed.
That after the execution of the covenant, Elizabeth Stacy departed this life, without issue of her body, etc. After her death, in the year 1853, complainant fully paid to Ferrell the above note with his own means; and informing Jones thereof, requested him to re-convey the land to complainant, which he refused to do, and persisted in refusing, until his death in September, 1854. He left Scogin his executor, and the other defendants, named above, his minor heirs. Mrs. Stacy left no heirs known to complainant.
The land described in the deed and in the covenant (which are exhibited) is situated on the right bank of the Ouachita river, and valuable as a shipping point, etc. That from the time of the execution of the deed to the month of -, 1854, Jones never pretended that he had any right to the land, except a lien upon it to indemnify him as the security of complainant on the note to Fen-ell, etc., etc.
The bill prays that the deed from complainant to Jones be declared a mortgage, and canceled, and that the executor and heirs of Jones be decreed to convey the land to complainant, with covenants of warranty, etc.
Publication of notice to the unknown heirs of Mrs. Stacy, and decree against them pro confesso.
The other defendants (the executor and heirs of Jones) filed a demurrer to the bill on the following grounds:
1. The deed from complainant to Jones was made to defraud the creditors of complainant, and therefore he is not entitled to relief in equity, etc.
2. The complainant is estopped from setting up any claim against Jones’ heirs, he having sanctioned the sale of his property to his wife by Jones.
3. The bill shows that the heirs of Mrs. Stacy have an interest in the subject matter of the suit, and they should have been made parties.
4. Want of equity, etc., etc.
The Court overruled the demurrer, and the defendants resting thereon, the Court rendered a final decree, to the effect that the deed from complainant to Jones was intended to be amortgage, etc., and that it be canceled, etc., and that the executor and heirs of Jones execute to complainant quit claim deeds to the land, etc. That the covenant from Jones to Mrs. Stacy was executed and intended for the benefit of complainant, that her heirs had no interest therein, and that they be barred from setting up any claim thereunder, and that the covenant be canceled, etc.
The executor and heirs of Jones appealed from the decree.
1. There is nothing in the first cause assigned for the demurrer. It does not appear from the allegations of the bill that complainant had more than one creditor (Ferrell) at the time the land was conveyed to Jones, and the conveyance was made to procure the means of paying the demand of that creditor, which was afterwards paid. Moreover, if the conveyance had been made for the purpose of defrauding the creditor’s of complainant, Jones being a party to the transaction, the objection would have come with bad grace from him or those claiming to hold under him as his heirs and executor. Trapnall's ad. vs. Brown, 19 Ark. 39; Anderson vs. Dunn, Ib. 659.
2. The other grounds of demurrer are well taken. It is to be inferred from the allegations oí the bill that the covenant of Jones to convey the land in fee to Mrs. Stacy and her heirs, on payment of the note to Ferrell, was executed by the consent and procurement of complainant. The transaction, therefore, as made out by the bill, is simply this: Complainant and wife conveyed the land, by absolute deed, to Jones, and Jones, by consent of complainant, executed his covenant directly to the wife to convey the land to her and her heirs, upon payment of the debt upon which Jones had become the surety of complainant.
In equity, upon the allegations of the bill, the transaction must be regarded as a provision by complainant for the voluntary settlement of the land upon his wife, and which he had the right to make, and she to accept, in the absence of any showing that there were any intervening rights of creditors to prevent it. Smith vs. Yell, 4 Ark. 293; Spring vs. Hight, 22 Maine R. 411; Whitten et al. vs. Whitten, 3 Cushing R. 191; 2 Story Eq., sec. 1204; Picquet vs. Swan et al., 4 Mason 445; Sexton vs. Wheaton, 8 Wheaton 229; 4 Barb. Sup. Court Reports 407.
The covenant being valid. Jones was bound by its terms to convey the land (after the payment of the note to Ferrell) to Mrs. Stacy, etc. A conveyance to her husband would have been no discharge of the covenant. Had a specific enforcement of the covenant to convey been sought during her lifetime, she and her husband would have been joined in the bill (2 Bacon Ab. Baron & Feme, K. p. 56), but the title would have been decreed to her, in pursuance of the terms of the covenant. She being dead, the equitable title to the land, and the right to the conveyance, which vested in her by the terms of the covenant, passed to her heirs, and her husband ceased to have any interest therein. Reeves Domestic Relations. 28.
The decree of the Court below is reversed, and the cause remanded, with instructions to dismiss- the bill for want of equity. | [
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Mr. Chief Justice English
delivered the opinion- of the Court.
James H. Massey, as surviving partner of a late mercantile firm composed of himself and Joseph H. Palmer, trading under the firm name of Joseph H. Palmer & Co., brought an action of debt against Hedrick Pike and James J. Cowart, as late partners, doing business under the style of Pike & Cowart, in the Monroe Circuit Court.
The cause of action is set out in the declaration, as follows:
“ For that whereas, the said defendants, heretofore, to-wif,: on the 14th day of July, 1852, at, etc., made their certain writing obligatory signed by their firm name and style of Pike & Cowart, and sealed with their seal, bearing date, etc., and then and there delivered the said writing obligatory to the said Joseph H. Palmer & Co., of whom the plaintiff is survivor, the said Joseph H. Palmer having departed this life since the execution and delivery of said writing obligatory, which said writing obligatory is now t,o the Court shown; by which said writing obligatory they, the said defendants, then and there promised to pay, one day after the date thereof, to the said Joseph H. Palmer & Co., or order, the sum of two hundred and: thirty-eight 58-100 dollars, for value received, to bear interest at the rate of eight per cent, per annum from date until paid; by means whereof, etc., etc., the said defendants then and there became liable to pay to the said Joseph H. Palmer & Co., and since the death of the said Joseph H. Palmer, to the plaintiff, the surviving member of the said firm of Joseph H. Palmer & Co., the said sum of money in the said writing obligatory specified, and interest thereon, etc., etc., according to the tenor and effect of the said writing obligatory. And although the said sum of money in the said writing obligatory specified, hath been due and payable according to the tenor and effect of the said writing obligatory: yet the said plaintiff in fact saith that the said defendants, although requested so to do, did not, nor would either of them, pay the said sum of money in the said writing obligatory specified, nor the eight per cent, interest thereon, or any part of either thereof, to the said plaintiff, as survivor of Joseph H. Palmer & Co., nor to the said Joseph H. Palmer & Co-, in manner aforesaid, or otherwise howsoever, but have hitherto wholly neglected and refused so to do, and still do neglect and refuse, to the damage of said plaintiff, as survivor,” etc., etc.
It does not appear that the defendant, Cowart, was served With process. The writ was executed upon Pike, who appeared ■and filed a demurrer to the declaration, on the following •grounds:
1st. The breach in said declaration is insufficient in this, that it does not negative the payment of the said sum of money in the said declaration specified, to the said Joseph H. Palmer in his lifetime.
2d. Said declaration does not state or show whether the said supposed cause of action therein specified accrued to the said Palmer & Có., or to the said plaintiff, as survivor, etc.
The Court sustained the demurrer as to the first cause assigned, and overruled it as to the second; and the plaintiff declining to amend the declaration, final judgment was rendered against him in favor of the defendant Pike.
The plaintiff brought error.
The breach was sufficient. Payment of a partnership debt to a member of a firm, is a payment to the firm. So a nega tion of payment to the firm, is a negation of payment to any member thereof.
The counsel for the defendant in error, (Pike,) submits that the declaration is bad, because one partner cannot bind another by deed, etc. The argument assumes that the bond sued on was executed by but one of the partners in the firm name, but the declaration alleges that it was executed by both of them— the language of the declaration is, “ that the defendants, on, etc., made their certain writing obligatory, signed by their firm name, and style of Pike & Cowart, and sealed with their seal,” etc.
It is true that one partner cannot bind another by a deed or bond, by virtue of the partnership relation merely. But one partner may bind another by deed, under a sealed power {Story on Part., sec.. 117.) So, if a deed be executed by one partner in the presence of, and with the assent of the other, it is the deed of both of them. Ib. sec. 120.
Here, the declaration alleges, in effect, that both of the partners executed the bond sued on, and if it was in fact executed by but one of them, without power from, or the assent of the other, this must be shown by plea of non est factum, to be interposed on the part of the partner who did not execute the bond.
. Cowart not being a party to the judgment of the Court below, the writ of error was improperly prosecuted against him. His name must therefore be stricken from the writ, and from the record here, and the judgment of reversal rendered against Pike only.
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G-eorgb Bose Smith, J.
This election contest involves the office of school director of Moro School District “B.” Short, as the only nominee on the printed ballot, received 89 votes, and Byrd received 182 write-in votes. Upon these returns the county board of election commissioners and the county court declared that Short had been elected without opposition. Ark. Stats. 1947, § 80-318. Byrd then brought suit in the circuit court to contest the election. The court held that the votes for Byrd could not be counted, because he had not given written notice of his intention to be a write-in candidate at least forty-eight hours before the opening of the polls. Ark. Stats., § 3-1022.
Byrd first contends that the required notice was actually given. The written notice was left at the office of the county board of election commissioners at about two o’clock on Thursday afternoon, March 14, 1957, and was received by a commissioner later that afternoon. The polls were opened at eight o’clock on Saturday morning, March 16. Although this proof shows at most the giving of notice forty-two hours in advance, Byrd contends that by law the polls should not have been opened until 2:00 p. m. on election day.
This position is not well taken. It is true that Act 30 of 1935 directed that school elections be held between the hours of 2:00 p. m. and 6:30 p. m. Ark. Stats., § 80-308. But the voting hours were changed by Act 56 of 1949, which provides that “the general election laws, insofar as applicable, shall apply to school elections.” Ark. Stats., § 80-317. By the general election laws the polls must be opened at 8:00 a. m. Ark. Stats., § 3-908. The legislature, by comprehensively applying the general election laws to school elections, covered the latter field anew .and thereby impliedly, repealed the law requiring the vote to be taken in the afternoon. See Western Union Tel. Co. v. State, 82 Ark. 302, 101 S. W. 745. Byrd relies chiefly upon Faver v. Golden, 216 Ark. 792, 227 S. W. 2d 453, where we held-that the procedure for contesting a school election was not affected by Act 56 of 1949. That case is not controlling, for there the only question concerned the proper method of contesting the election. Act 56 does not purport to alter the rules governing election contests, but it does change the procedure for conducting the election, which is the issue now before us.
It is immaterial that the requirement of forty-eight hours notice was not a part of the general election laws when they were made applicable to school elections; for the rule is that when a statute adopts the general law on a particular subject, rather than a specific statute only, the adopting statute refers not only to the existing law but also to later legislation on the subject. Howard v. State ex rel. Stuckey, 223 Ark. 634, 267 S. W. 2d 763. It is also settled that such an adoption of other laws by reference does not infringe the constitutional provision against the extension of a statute by reference to its title only. State v. McKinley, 120 Ark. 165, 179 S. W. 181.
Byrd further contends that the legislature cannot forbid the counting of write-in votes, in view of Article 3, § 11, of the constitution: “If the officers of any election shall unlawfully refuse or fail to receive, count or return the vote or ballot of any qualified elector, such vote or ballot shall nevertheless be counted upon the trial of any contest arising out of said election.” A statute prohibiting write-in votes was upheld in Davidson v. Rhea, 221 Ark. 885, 256 S. W. 2d 744, and although this particular section of the constitution was not mentioned in that opinion, we do not think that it requires us to reach a different conclusion. The constitution, by its reference to the election officer’s unlawful refusal or failure to count a particular vote, plainly contemplates that laws may be enacted to regulate the casting of the ballots. Carried logically to its conclusion Byrd’s argument would enable tlie voters to elect a child or a nonresident alien to office, despite laws to the contrary; for it could be demanded that the votes for such a candidate be counted. ¥e have no doubt that this section of tbe constitution may be invoked only when the election officer’s conduct is contrary to law.
Byrd next insists that even if the polls were properly opened at eight o’clock in the morning the proof shows a substantial compliance with the requirement that the written notice be given forty-eight hours in advance. Byrd offered to prove that the write-in campaign in his behalf was not carried on in secret, that it was initiated long before the day of the election and received much publicity, and that it led to a far heavier vote than that ordinarily cast at a school election in this district. From these facts it is argued that the actual notice of forty-two hours accomplished every purpose that the legislature could have had in mind in fixing a minimum period of forty-eight hours.
Of course this same argument could be made if no written notice at all had been given; it really amounts to an assertion that at this election the statutory notice of Byrd’s intention to be a write-in candidate proved to be a useless gesture and should therefore not be insisted upon by the courts. The answer to this argument is that the doctrine of substantial compliance cannot reduce the minimum time fixed by the legislature in a statute of this kind. In election matters, as in many other fields of law, it is often necessary that some of the rules be exact. A person cannot vote until the moment he reaches the legal age of twenty-one; a candidate must qualify before the stroke of noon on a designated day before the election; a precise number of signatures are essential to a petition under the initiative and referendum law. In every case of this kind it can be said, as Byrd in effect says here, that the line is arbitrary and might as well be drawn somewhere else. Nevertheless, if the desired goal of certainty is to be reached, it is necessary that some controlling rule be adopted, however arbitrary it may seem. Here the legislature has fixed the minimum period of notice at forty-eight hours, which must be taken to exclude the possibility that some shorter period can suffice.
Finally, Byrd argues that the county board of election commissioners erroneously went behind the certified returns of the election judges, which showed that Short had received 89 votes and Byrd 182. On this point Byrd invokes the familiar rule that a canvassing officer or board has no judicial discretion and cannot explore issues of fact that should properly be decided in an election contest. Patton v. Coates, 41 Ark. 111; Parsons v. Mason, 223 Ark. 281, 265 S. W. 2d 526. On the other hand, the canvasser’s declaration of the result of the election is prima facie correct and becomes conclusive in the absence of an appeal or an election contest. Shimek v. Janesko, 188 Ark. 418, 66 S. W. 2d 626.
Without pausing to determine whether Short could have met the present objection by filing a suit to contest his own successful election, we do not think that the county board’s action involved the ascertainment of any fact not already within the board’s official knowledge. There can be no objection to the canvassing officer’s taking into consideration facts that are officially of record and that he is required to know. For example, in Howard v. McDiarmid, 26 Ark. 100, the county clerk was required by law to canvass the returns and forward an abstract thereof to the secretary of state. In three precincts double elections were held, and two conflicting sets of returns were sent to the county clerk. In answer to the contention that the clerk should have forwarded both sets of results to the secretary of state, we held that it was the clerk’s duty to determine from the records in his office who were the regularly appointed election judges in the precincts in question and to forward only the returns certified by those judges.
In the present case it was the duty of the county board to canvass the returns and to file one of the ballots with its findings, Ark. Stats., § 80-318; so the board knew officially that Short was the only candidate listed on the printed ballot. Byrd must therefore have been a write-in candidate, but to qualify as such he was required to serve a written notice of his intention, at least forty-eight hours before the opening of the polls, upon a member of the county board. Ark. Stats., § 3-1022. Since the board also knew that the notice had not actually been served within the time allowed, it did not go beyond its official knowledge in holding that the votes for Short were the only ones that could legally be counted.
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J. Seabork Holt, Associate Justice.
This is the second appearance of this case here. On the former appeal there was involved the title to the Assembly of God Chnreh at 20th and Broadway, Little Rock, Arkansas, Sellers v. Brown, 225 Ark. 989, 287 S. W. 2d 471. In that case we held in effect that the Reverend Sellers, appellant, was a trustee for the church and that title to said property was in the church. We further held on a cross-appeal that the church had no interest in property acquired by Sellers located at 5010 Midland Road, Little Rock, Arkansas, on which property, appellees are here seeking receivership and lien. Our former opinion recites: “Sellers purchased this site at 20th and Broadway for a total sum of $40,000, of which $23,000 was paid in cash and a mortgage assumed for the balance, and began construction on the new church. Sellers made a contract with one Graham Harp to furnish the material and supervise the building of a church structure. This contract was approved by a meeting of the church until the funds became exhausted. At the time of the trial, there were outstanding liens, including the mortgage, in excess of $21,000. Unsecured debts amounted to more than $35,000. Sellers has resigned as pastor of the church and the appellees, as the official board of the Central Assembly of God Church of Little Rock, brought this suit against Sellers and his wife to divest them from title to the (church) property.”
It appears that while the former appeal was pending, two lien holders for materials furnished secured judgments against Reverend Sellers and the church. The church, in an effort to complete the building of the church, borrowed money from its parent organization, The General Council of Springfield, Missouri, to be used in discharging labor and material-men’s liens and for completion of the church. As a condition for the loan The General Council required that all discharged liens be assigned to H. E. Shaw as its trustee. At this stage appellees Brown, and Shaw as trustee, filed “Affidavit for General Attachment ’ ’ in which they alleged: ‘ ‘ Plaintiffs Durwood Brown et al., as trustees for the Central Assembly of God Church, allege judgments against the defendants, Robert C. Sellers and Virginia Sellers, his wife, in the total amount of $108.06 on an Order on a mandate of the Supreme Court of Arkansas entered April 32th, 1956, and that defendants are non-residents of the State of Arkansas and the owners of valuable property and assets in Pulaski County. Plaintiff H. E. Shaw, Trustee, alleges the assignment to him of judgments against the defendants in the sums of $1,805.03 and $1,269.89, recovered by Katterjohn Concrete Products Company, Inc., and Gregg Hamilton, Trustee in Bankruptcy, respectively, on July 18th, 1955 and July 19th, 1955, respectively, a total of $3,074; the same being just claims which he is entitled to recover, and by virtue of which he claims a lien upon valuable property and assets of defendants in Pulaski County.” They prayed for an Order of Attachment against Sellers and the appointment of a receiver.
On a hearing the trial court declined to rule on whether the judgments against (the Sellers) appellants were enforceable but found that the appellees were entitled to relief and granted appellees’ prayer for the ap pointment of a receiver and master. Tlie finding contained this language: ‘ ‘ Though the plaintiffs, and Shaw, Trustee, originally filed an Affidavit for an Attachment, and are entitled to relief, the Court deems it best and proper to try and protect the equities of all parties herein interested in said property, and after due consideration is of the opinion that the appointment of a Receiver and Master will better serve the ends of justice. ’ ’
It appears to be undisputed that the lien-holders had. acquired valid liens against the property of the church for materials and labor furnished in the construction of the church. The judgments were entered against Sellers and the church jointly and of course would ordinarily have been enforceable against Sellers’ individual property. But Sellers contends that the church in effect paid the judgments, through the agency of its parent organization, and that in the circumstances the church is not entitled to assert what is in substance a claim for comtribution against Sellers, since the church received the full benefit of the labor and materials that the judgments represent.
We think that the trial court erred in refusing to rule upon the material and vital issue presented, .which, as indicated, was whether the judgment liens involved were enforceable against the property of the Sellers (appellants), and that the appointment of a receiver was, in the circumstances, premature. Accordingly, the decree is reversed and the cause remanded with directions to proceed in a manner consistent with this opinion. | [
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Paul Ward, Associate Justice.
On March 14, 1956 43 landowners (out of a total of 78) filed a petition in the County Court of Pike County, asking to annex approximately 1,300 acres to the town of Glenwood in accordance with the provisions of Ark. Stats. § 19-301 to 19-306 inclusive. Later the petition was amended to contain only 690 acres and, as so amended, was approved by the County Court over the remonstrance of several affected landowners, including the appellees.
Prom the above order of the County Court the remonstrants perfected an appeal to the Circuit Court, although they made no contention that the petitioners (appellants here) failed to comply with the procedural requirements of the pertinent statutes.
The Circuit Court, after hearing petitioners’ witnesses on direct and cross examination, denied the (amended) petition for annexation. This appeal follows.
In denying the petition to annex, the court made the following findings of facts: Ninety per centum of the territory attempted to be annexed is presently used for agricultural and livestock purposes; None of the lands have been platted and held for sale or use as town lots; None of the property has been held on the market to be sold as town property; Only 5 or 6 homes are located in more than 200 acres attempted to be annexed on the north side of town; Only 3 or 4 homes have been located in the more than 200 acres on the west side of town, and not more than 27 or 28 houses are located on more than 200 acres on the east side of town; The property sought to be annexed is not needed for any proper town purposes such as an extension of its streets, sewer, gas or water systems, or to supply places for the abode of businesses or residents, or for needed police protection, and; The said properties are not needed at the present time by reason of their adaptability for prospective town uses. The court further found that only a very few business houses are located in this area, that very few are served with lights and telephones, and that no streets or roads have been provided except the state highway which runs through the area.
Instead of setting out the testimony of each witness we think it suffices here, in view of the decision hereafter reached, to state that we have read the same and that we find it substantially- as set out above. We are, therefore, convinced that there is substantial evidence to support the judgment of the trial court and that it must be affirmed. In other words, we find that' the testimony set forth above constitutes substantial evidence that the lands here proposed for annexation do not meet the test as stated in Vestal v. Little Rock, 54 Ark. 321, 15 S. W. 891.
The burden of appellants’ argument is that there is a material difference in proceedings under Ark. Stats. § 19-301 to 19-306 (where the property owners initiate the annexation proceedings as they did here) and in proceedings under Ark. Stats. § 19-307 (where the city takes the initiative) and that, in the former case, the substantial evidence rule does not apply. It is conceded, as it must be, that the substantial evidence rule does apply where the city initiates the annexation proceed •ings. See: Burton v. City of Fort Smith, 214 Ark. 516, 216 S. W. 2d 884, and City of Newport v. Owens, 213 Ark. 513, 211 S. W. 2d 438.
There are, we think, at least two reasons why the same evidence rule should apply in both methods of annexation proceedings mentioned heretofore.
First. The wording of the statute which authorizes the exercise of discretion and judgment on the part of the court is practically the same in both procedures. Where the landowners, as here, initiate the annexation procedure, § 19-302 says: “The court shall enter its order granting the petition” . . . “if the court shall be satisfied that . . ., the prayer of the petitioners is right and proper.” (emphasis supplied). When the city initiates the petition under § 19-307, the “proceedings shall be had . . . as is prescribed in ... § 19-101-19-103 . . .” In the last mentioned section the court will grant the petition when it is “deemed right and proper, in the judgment and discretion of the court. . .” From the above we think it is clear that the court is empowered to exercise the same discretion and judgment as to what is “right and proper” in each case regardless of how it was initiated.
Second. Both the landowners and the city need the protection afforded only by the exercise of sound judgment and discretion. As suggested by appellants, without the restraining hand of the courts a city, operating under § 19-307, could reach out and take in surrounding territory “regardless of the will of those mostly affected”. It is equally true however, that, absent the same restraint, property owners could force themselves upon a town regardless of its will.
In line with appellants’ contention that the substantial evidence rule does not apply to proceedings un der § 19-301 — 19-306, they say that “It was the duty of the Circuit Court on appeal to grant the amended petition,” and in support, quote from Call v. Wharton, 204 Ark. 544, 162 S. W. 2d 916. We find nothing in that case, however, which conflicts with what we have said above. The court in the cited case decided only one question of law, viz: Under % 9495 of Pope’s •Digest (in material respects the same as Ark. Stats. § 19-301) the petition must be signed by a majority of landowners of the affected territory who live in the county, and not just a majority of the landowners who live in the affected territory. The language relied on by appellants is found in the next to the last paragraph of the cited opinion. In the first place the language is dictum, and, in the second place, if it were not dictum, appellants are apparently overlooking that the court said “other conditions set out in the section” must be complied with. As we have already seen one of these is that the petition must be right and proper.
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Paul Ward, Associate Justice.
The question is: Was appellant’s employee, a truck driver, acting within the scope of his employment when he injured appellee? Over appellant’s objections, the question was submitted to a jury which gave appellee $1,250 actual damages and $500 exemplary damages.
We agree with appellant that the record contains no substantial evidence to support the above verdict and the judgment of the Court.
On December 31, 1957 Ernest Eugene Wilson, the estranged husband of appellee, was driving appellant’s truck from Memphis through Texarkana, enroute to Tulsa, carrying a load of automobiles, when he was contacted by appellee, his estranged wife. The two effected a temporary reconciliation and spent the night together. It was agreed that appellee would meet Ernest on his way back from Tulsa and return to Memphis (where they had formerly lived) with him, in convoy, driving her own car. Either because appellee left Ernest a note, as claimed by Mm, or because of a pre-arranged plan, as stated by appellee, Ernest went by the home of ap-pellee’s parents near Ogden (a short distance from Tex-arkana) about 2:30 A. M. on the morning of January 3, 1958. Appellee was at the home of her parents, and, supposedly, they were to get together there and proceed on to Memphis. What took place there determines the issue in this case.
Appellee’s version of the difficulty that followed, the cause of her injury, and the preceding circumstance is as follows: We were separated, and he was under a peace bond. I am in the process of divorcing him. It was dangerous for me to stay with him — he beat me up lots of times. He said he would be in about 11 o ’clock the night of the 2nd, but he wasn’t in until about 3 o’clock in the morning of the 3rd. We were to make the trip back to Memphis. When he arrived I said “I have the car packed but I am not ready. I think we should have a talk.” He said, “get in here. It’s warm in here,” meaning the cab of the truck. The motor was running. I told him I thought we should have a talk before I went back with him — we were having so much trouble. We started talking, and I didn’t believe I would leave. He said I shouldn’t go back to Memphis if I didn’t go with him. Then he cursed me, and I told him I wasn’t going to leave with him. We quarreled about property. I said I wouldn’t give him anything, and he wouldn’t give me the keys to the house in Memphis. We only discussed our personal affairs — matters strictly between the two of us. I finally got mad. He wanted me to get out. He said “get the hell out; I’m going.” He didn’t give me time. He pushed me and I fell. He let his foot off the clutch. The truck moved and I fell backwards. At the same time he shoved me he let off the clutch. I was injured, and stayed in the hospital until the doctor said I would be all right.
It clearly appears from the above factual statement, we think, that Ernest Eugene Wilson was not acting within the scope of his employment, as a truck driver for appellant, at the time appellee was injured, or dur ing the events transpiring immediately prior thereto. We cannot escape the conclusion that Ernest was in no manner engaged in anything pertaining to his master’s business. The business in which he and his estranged wife were engaged at the time can hardly he described more clearly than was done by appellee herself. She said they only discussed personal relationship matters strictly between themselves. According to appellee’s own account her injury was the result of a personal quarrel and the willful acts of her husband. By no stretch of the imagination can we see how any of these acts tended in any way to promote the interest of appellant. The mere fact that Ernest was, at the time, an employee of appellant is not decisive of the question in favor of ap-pellee. The acts of Ernest which caused the injury complained of must have been in the discharge of a duty he owed his master before appellant here would be responsible. Many expressions from the opinions of this court sustain these asserted rules.
It was held that the negligent acts of an elevator operator were not within the scope of his employment in Sweeden v. Atkinson Improvement Co., 93 Ark. 397, 125 S. W. 439. In reaching this conclusion the court among other things said:
“The act of the servant for which the master is liable must pertain to something that is incident to the employment for which he is hired, and which it is his duty to perform, or be for the benefit of the master. It is therefore necessary to see in each particular case what was the object, purpose and end of the employment and what was the object and purpose of the servant in doing the act complained of. The mere fact that he was in the service . generally of the master . . . would not make the act attributable to the master. The act must have been done in the execution of the service for which he was engaged. And if the servant steps aside from the master’s business to do an independent act of his own and not connected with his master’s business, then the relation of master and servant is for such time, however short, suspended; and the servant, while thus acting for a purpose exclusively Ms own, is a stranger to Ms master for whose acts lie is not liable.”
We find tMs expression in American Railway Express Co. v. Davis, 152 Ark. 258, 238 S. W. 50:
“We have frequently announced and steadily adhered to the rule that ‘the test of liability of a master for a tort committed by a servant is whether the act complained of was done in the prosecution of the master’s business — not whether it was done during the existence of the servant’s employment.’ ”
In American Railway Express Company v. Mackley, 148 Ark. 227, 230 S. W. 598, the court approved this rule:
“ ‘Where a servant acts without reference to the service for which he is employed, and not for the purpose of performing the work of the employer, but to effect some independent purpose of his own, the master is not responsible for either the acts or omissions of the servant.’ ”
Many other cases announcing the same rules in similar language could be cited. Some of them are: Wells Fargo & Company Express v. Alexander, 146 Ark. 104, 225 S. W. 597; Chicago Mill & Lumber Company v. Bryeans, 137 Ark. 341, 209 S. W. 69; Pickens v. Westbrook, 191 Ark. 156, 83 S. W. 2d 830; C. J. Horner Company v. Holland, 207 Ark. 345, 180 S. W. 2d 524; Lindley v. McKay, 201 Ark. 675, 146 S. W. 2d 545; Page Lumber Company v. Carman, 214 Ark. 784, 217 S. W. 2d 930, and; Capital Transportation Company v. Armour & Co. (Ark.) 200 F. 2d 722. In the Carman case, supra, the court said, quoting, that, “If a servant completely turns aside from the master’s business and pursues business entirely his own the master is not responsible.” As stated in the Machley case, supra, the rules of law governing the liability of a master in this kind of case have been made plain, but the difficulty in most cases is in determining whether or not the servant has stepped aside from the employment. We do not find this difficulty here.
Considering the facts of this case in the light most favorable to appellee and applying the rules above an- nouneed, the only reasonable conclusion we can reach is that Ernest Eugene Wilson was not acting within the scope of his employment when he caused the injury to ap-pellee. For that reason the judgment of the trial court is reversed and the cause of action is dismissed.
Reversed.
Millwee and George Rose Smith, JJ., dissent. | [
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MiNOR W. Millwee, Associate Justice.
Appellant, Leroy Carroll, originally brought this suit to divest an undivided one-half interest in 40 acres of land out of L. A. Kesinger and World Gospel Mission, Inc., and vest it in Mm pnrsnant to an alleged oral contract between the appellant and Kessinger, who will be referred to as appellee. It was alleged that dnring negotiations for the purchase of the land, appellee fraudulently led appellant to believe that he was purchasing the property for them as tenants in common in accordance with their oral agreement; and that upon completion of the purchase appellee refused to convey to appellant his half interest although the latter was ready and able to pay half of the purchase price and expenses of sale.
The chancellor properly sustained appellee’s demurrer to the original complaint on the ground that its allegations disclosed an alleged contract within the statute of frauds, but appellant was allowed 15 days to plead further. An amendment to the complaint was then filed alleging the land was purchased pursuant to an oral partnership agreement between the parties to buy the 40 acres and any other lands that could profitably be resold; and that appellee breached the agreement by conveying the property to World Gospel Mission, Inc., without consideration. The new prayer for relief was that title to the 40 acres be vested in the parties as partners upon appellant’s payment of half the purchase price and acquisition costs; and that said partnership be wound up if they could not continue the venture. Appellee answered after his demurrer to the amended complaint was overruled and the case proceeded to trial. The court also overruled appellee’s demurrer to the evidence presented by appellant. This appeal is from a decree finding the issues in favor of ap-pellee at the conclusion of all the proof, and dismissing the complaint for want to equity.
Appellant lives in Sylvan Hills, a suburb of North Little Rock, Arkansas, and appellee lives in Little Rock. They have known each other for several years and occasionally have hunted together. In 1955 there was some discussion between them about the purchase of lands near the right of way for the new highway between Jacksonville and North Little Rock. Appellant telephoned appellee on August 29, 1955, and asked Mm to come out and look at a 40-acre tract owned by C. D. Ulrich. Ap-pellee drove to appellant’s borne where Ulrich was introduced to him and the three men inspected the property. Appellee and Ulrich then drove to Little Rock where they executed an “Offer and Acceptance” for sale of the land to appellee for $8,000.00 payable in annual installments dating from a conveyance to be executed when certain title defects were cleared. A second similar agreement was executed by them on November 14, 1955; and on February 14,1956, Ulrich executed his deed to appellee in accordance with their written agreement. On the same date appellee and his wife conveyed the land to World G-ospel Mission, Inc., with the latter assuming payment of the unpaid balance of the purchase price in the amount of nearly $6,000.00.
The evidence concerning any partnership arrangement, or other agreement whereby appellant was to be interested in the purchase of the land by appellee, is in sharp dispute. According to appellee it was under^ stood throughout the negotiations that he was buying and paying for the land for himself. He testified that-both before and after execution of the agreement to purchase on August 29, 1955, he told appellant it was all right to buy the land himself or with appellee but he refused, stating he was land poor and could not put up the money. According to appellant and his wife the parties talked about buying the land “fifty-fifty” and agreed to do so. The parties also talked to James Gr. Hill who lived in the vicinity about the purchase of another tract and he testified that appellee told him there was a partnership agreement. Appellant and Ulrich had been neighbors for 30 years. Appellant also testified he told Ulrich about the partnership arrangement but this was denied by Ulrich, who stated that appellant had never attempted to buy the land nor made any claim of any interest in the transaction to him.
Appellant called appellee again in February, 1956, and stated that new surveys had been made showing the 40 acres closer to the new highway and much more valuable, than originally expected and asked appellee to come out. Appellee testified that after again viewing the property appellant wanted to buy the most valu-ble 10 acres immediately adjacent to the new road for $2,000.00 hut appellee refused to sell it to him. This testimony was not specifically denied by appellant who had previously stated that appellee did not then tell him how much money appellant should put up but indicated that he would see him about it later. It is not contended that appellant ever actually tendered any part of the purchase price and acquisition costs; and there is little to indicate the parties contemplated a resale of the property jointly.
In support of his contention for' reversal appellant cites several cases to support the proposition that an oral contract of partnership for the purpose of buying lands jointly and divided the profits is not within the statute of frauds. In finding the issues in favor of appellee the chancellor perhaps did not reach this question, and neither do we. Before appellant could prevail under the rule, and take the case out of the statute, the burden was upon him to establish the partnership. In our opinion a preponderance of the highly conflicting evidence simply does not support the conclusion that a partnership was established. As we have frequently held: “In order to constitute a partnership, it is necessary that there shall be something more than the joint ownership of property. A mere community of interest by ownership is not sufficient. This creates a tenancy in common, but not a partnership.” LaCotts v. Pike, 91 Ark. 26, 120 S. W. 144. See also, O’Bryan v. Zuber, 168 Ark. 613, 271 S. W. 347. As we view the evidence, the chancellor could have justifiably found it insufficient to even establish an agreement for joint ownership of the property by the parties. The decree is accordingly affirmed. | [
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MiNOR W. Mill/wee, Associate Justice.
The sole question is whether a deed executed by H. C. Sides, deceased, on September 21, 1944, purporting to convey a 26-acre farm to appellees was ever delivered in the lifetime of the grantor so as to vest title in appellees.
IT. C. Sides was unmarried and living alone at Rector, Arkansas, where he died intestate July 14, 1956, survived by one brother, one sister and eleven nieces and nephews, six of whom are the appellees. At the time of his death Sides owned and was in possession of the 26-acre Clay county farm. After his death a committee selected by relatives to examine his effects found a small locked metal box in his trunk in which they found the unrecorded warranty deed conveying the 26 acres to appellees who had it placed of record and went into possession. Appellants, who are the surviving brother, sister and other five nieces and nephews brought this suit to cancel the deed on the ground of nondelivery. This appeal is from a decree finding the deed was properly delivered to appellees in the lifetime of the grantor and dismissing the complaint of appellants.
Since it was conceded in the answer that the deed in question was in the possession of H. C. Sides at the time of his death, the. chancellor correctly, held a presumption arose that it was never delivered, and that ap-pellees had the burden of proving delivery. Van Huss v. Wooten, 208 Ark. 332, 186 S. W. 2d 174.
Appellee, Flora Patrick, testified that she and her uncle were very close and lived in each other’s homes several times; that prior to the execution of the deed he told appellees he was giving them the farm; and that she visited in his home shortly after the deed was executed. When asked what transpired on that visit, she testified: A. “Uncle Henry gave me the deed and he said, ‘Flora, this is a deed to the land that I want you children to have at my death.’ He gave me the deed to the land and said, ‘This is the deed I am giving you girls and Glen. ’ That was my brother. I taken the deed and read it and I said, ‘Uncle Henry, I have no place to keep it. Will you keep it for us? And you will have the use of the land as long as yon live.’ And I thanked him for the deed and handed it hack to him. Qr When was the next time yon saw the deed? A. Since this lawsnit came np. Q. Yon were not present at the time it was found? A. No, I was not.” She also stated that appellees paid for the drafting- of the deed.
Appellee, Cecil Langhlin, testified her uncle was visiting in her home at Paragonld, Arkansas, in 1946 or 1947 when he told her to stop by his home the next time she was in Rector. Upon making the visit he gave her the deed saying: “Cecil, here is the deed that belongs to yon children.” She further stated she took the deed home with her and kept it two or three weeks but, after a discussion of the matter with her brother, another of the grantees, she returned the deed to her uncle for safe-keeping because he kept everything ‘ ‘ under lock and key” and she had no lock box in which to keep it. At the time the deed was found in her uncle’s lock box by the notary who had drafted it she and other relatives present heard her uncle, Hillard Sides, say: “That’s it, that’s it. If that is the way he wants it, all right.” Mrs, Langhlin’s testimony relative to the agreement to return the deed to her uncle for safe-keeping was corroborated by her brother, and the other appellees testified they had known of the execution of the deed for a longtime.
In opposition to the foregoing testimony Ray Fry-man, son of the appellant, Laura Fryman, decedent’s niece, stated he was present when the deed was found and heard Cecil Langhlin say: “I didn’t know that Uncle Henry had left us anything.” Appellant, Hillard Sides, testified that when the deed was found Cecil Langhlin and her mother, “held up their right hands and swore that they didn’t know a thing in the world about it (the deed).” He further stated that Cecil Langhlin and Zenith Shannon, another appellee, had previously gone through the same ceremony on the steps of the hospital on the night of the grantor’s death. On cross-examination he admitted his relationship with the grantor and their sister was bad for several years because he felt they had cheated him oat of his part of their father’s estate. Cecil Laughlin and others present contradicted Hillard Sides as to the making of these statements and said he advised them to have the deed recorded at the time it was fonnd.
This conrt has repeatedly approved the following statement from the early case of Miller v. Physick, 24 Ark. 244: “A deed to he operative must he delivered. The act of signing and sealing gives it no effect without delivery. The delivery is a substantive, specific, and independent act, which may be inferred from words alone, or from acts alone, or from both together, and though there is no particular form in which to make it, still enough must be done to show that the instrument was thereby considered to have passed beyond the legal control of the maker, or his power to revoke it.” We, have also said there is no delivery unless what is said and done by the grantor and grantee manifests their intention that the deed shall at once become operative to pass title, and that the grantor shall lose dominion over the deed. Woodruff v. Miller, 212 Ark. 191, 205 S. W. 2d 181.
It is also well settled that the presumption of nondelivery of a deed, arising from the finding of it among the grantor’s effects on his death, is rebuttable by proof of delivery. Cribbs v. Walker, 74 Ark. 104, 85 S. W. 244. Also, the mere return of a duly delivered deed by the grantee to the grantor does not ordinarily operate to re-vest the title in the grantor. Mauldin v. Howell, 212 Ark. 268, 205 S. W. 2d 446. Thus, where the grantor executes and delivers a deed to the grantee and after-wards receives it back merely for the performance of some act in connection therewith, the delivery is sufficient. Brooks v. Isbell, 22 Ark. 488. This rule has been applied in several jurisdictions and the prior delivery held not to have been invalidated where the deed is returned to the grantor for safe-keeping. See cases cited in 26 C. J. S., Deeds, Sec. 42 b.
Whether the deed in question was actually delivered to appellees by their uncle and subsequently re turned to him merely for safe-keeping was a sharply disputed question. Most of the witnesses on this issue were interested in the outcome of the suit and the chancellor, who observed them as they testified, was in a much better position than are we to determine their credibility. We cannot say his finding in favor of appellees is against the preponderance of the evidence.
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Sam Robinson, Associate Justice.
This suit was filed by appellee, George Franklin, July 7, 1955, contending that he entered into an oral contract to purchase a lot in North Little Rock owned as an estate by the entirety by Tom and Margaret Williams. A three-room house was situated on the property; the agreed purchase price was $175.00, to be paid in installments, bearing no interest. Franklin further contends that be entered into possession of the property immediately upon consummation of the agreement and bad lived there since that time; that be completed paying for the property in 1952, but that a deed was not made to him at the time by Margaret Williams because of her physical condition, she being 83 years of age. Prior to that time Tom Williams had died. Margaret Williams died November 3, 1954, and this suit was filed by Franklin against Charles L. Carpenter, administrator of Margaret Williams ’ estate, and against Henry Harris, Louis Harris, and Hattie Williams, alleged heirs of Margaret Williams. The complaint alleges the oral contract to purchase, coupled with delivery of possession and payment of the purchase price, and also asserts title by adverse possession. Charles L. Carpenter, the administrator of Margaret Williams ’ estate, Henry Harris and Louis Harris filed answers denying allegations of the complaint; Hattie Williams filed an answer in which she admits the allegations in the complaint and states:
“I state that I have personal knowledge of the transaction alleged in the complaint of the plaintiff between MARGARET WILLIAMS, now deceased, and GEORGE FRANKLIN, and that I was present when the property was sold to GEORGE FRANKLIN and saw the purchase price delivered to the said MARGARET WILLIAMS.”
It developed that Hattie Williams is not the daughter of Margaret Williams, but the daughter of Tom Williams by a previous marriage, and since Margaret Williams had, by survivorship, become absolute owner of the estate by the entirety, she is not an heir; therefore, she had no potential interest. But this fact was not known at the time Hattie filed her answer. There was a decree in favor of George Franklin; the administrator and Henry Harris and Louis Harris have appealed.
We do not think that Franklin acquired title to the property by adverse possession, because according to the undisputed testimony he did not claim title to the place until 1952, when he says he completed paying for it. He was not holding the property adversely up to that point; he was in possession either as a tenant or under an agreement of purchase. According to appellants’ contention, Franklin was there as a tenant. According to appellee, he had possession by reason of the purchase agreement. But in any event, he was not holding adversely.
Now comes the proposition of whether Franklin proved by sufficient evidence his ■ alleged oral contract to purchase. The alleged delivery of possession, payment of the purchase money, and the making of improvements, if true, would take the transaction out of the Statute of Frauds. McKenzie v. Rumph, 171 Ark. 791, 286 S. W. 1022; Nicholas v. Ward, 205 Ark. 318, 168 S. W. 2d 1095.
We believe that Franklin proved his case by the required weight of the evidence, notwithstanding his own testimony pertaining to the transaction must be disregarded because of the “dead man’s statute”. Franklin moved into the house on the property in 1940. Later he was joined by his brother, Booker. There is a conflict in the evidence as to just what the agreement was whereby George was given possession of the property. George contends there was an agreement whereby he bought the property for $175.00, to be paid in installments as he could pay it. Appellants contend that Margaret merely let George and his family live there in consideration of George’s doing chores for her. George’s father also came to live on the property, as did Booker’s wife. Appellants are supported in their contention by the testimony of several witnesses as to statements made by Margaret in the presence of George indicating George was merely a tenant at the sufferance of Margaret, and that she was dissatisfied with his failure to do the required chores, and that Margaret also complained that George had mortgaged the property and she had the burden of paying off the mortgage.
On the other hand, George produced witnesses who claimed that they were present when the agreement was made to purchase the property. He also introduced, as acknowledgment of money paid on the purchase price, receipts which another witness testified were given to Booker, who was helping George pay for the property. If George’s witnesses are to be believed, undoubtedly there was a sale. On the other hand, if appellants’ witnesses are correct in their version of the statements that were made by the parties along through the years, then in all probability there was no sale. But there are circumstances that weigh heavily in George’s favor. Margaret and Tom Williams bought the property in 1927 from Grover T. and Ruby J. Owens for the consideration of $175.00. It will be recalled that 1927 was prior to the great depression, which later depressed the price of real estate. The evidence is that George agreed to pay $175.00 for the property in 1940. At that time real estate had not completely recovered from the depression, and if $175.00 was a reasonable price when Margaret and Tom bought it in 1927, it was in all probability a reasonable price in 1940 when they sold it.
Next, receipts were produced showing money paid to Margaret by Booker, the brother of George; there is no evidence in the record to indicate that Booker would be paying Margaret money for anything unless it was something in connection with the property. Incidentally, none of the witnesses produced by either side stated there was ever any understanding between the parties that rent was to be paid. A receipt given on December 24, 1952, for $20.00, is marked “paid in full”.
Henry Harris, nephew of Margaret Williams, and one of the appellants, testified that Margaret Williams had stated that George claimed to have bought the property but was too lazy to pay for it. George has lived on the property since 1940 and there is not any evidence to the effect that he was supposed to pay rent. In 1945 the tax record was changed to show George as the owner. He redeemed the property from sale for the taxes of 1947 and 1948 and paid the taxes on the property in his name thereafter. According to the undisputed evidence, he mortgaged the property on one occasion for $300.00. Ordinarily, a person does not mortgage prop erty that someone else owns. George built a room on the house, and covered the house twice.
Margaret never did record the Owens deed. Jewell Godfrey testified that she saw Margaret, who was then 83 years of age, turn the deed over to George in 1952. George recorded the deed in that year, had it in his possession, and introduced it at the trial. He says that due to her advanced age Margaret was unable to go to town and execute a deed. Margaret was an old colored woman, and George is an old colored man. George is practically illiterate, and it does not appear that he would have known what the Owens deed was unless it had been explained to him.
When all the evidence is taken into consideration, we believe that- George has met the heavy burden of proving his oral contract to purchase, that he was given possession, and that he paid for the property, the consideration being $175.00, which he paid over a period of twelve years.
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Sam Eobinson, Associate Justice.
This is a suit for a declaratory judgment, the issue being whether a .county is required by law to reimburse tbe State Hospital for necessary maintenance for persons charged with a criminal offense who have been committed to the hospital by the circuit court for a mental examination. The Circuit Court held that the County is liable for such maintenance, and the County Judge has appealed.
Initiated Act 3 of 1936 authorizes the circuit court to send to the State Hospital for mental examinations persons Avho have been charged with a crime and are awaiting trial.
Ark. Stat. § 43-1301 provides:
“* « * The State Hospital shall be reimbursed by the county for such observation at the same rate as that established for the maintenance of patients under the provisions of Act 241 of 1943. * * * ”
Act 415 of the Acts of 1955 (Ark. Stat. § 59-230.1, Pocket Supp.) provides:
‘•‘The business manager of the State Hospital shall periodically ascertain the per capita cost of maintenance of patients and shall render monthly statements of charges therefor to the guardian or other person whose duty it is to provide care, maintenance or support of each patient, and he shall diligently attempt to collect such charges.”
Judge Mitchell Cockrill of the Pulaski Circuit Court, Third Division, wrote an opinion as follows:
“The First Division Pulaski Circuit Court (Criminal Division) in the course of criminal actions pending before it committed some twenty-seven persons to the State Hospital when those persons who had been charged with a crime raised the defense of insanity. Such a commitment procedure is authorized by Initiated Act 3, Ark. Acts of 1936 as amended by Act 237, Ark. Acts of 1955 (Ark. Stat. (1947) Pocket Supp. % 43-1301); which act provides that the State Hospital ‘ shall be reimbursed by the county * * * at the same rate as that es-» tablished for the maintenance of patients under the pro visions of Act 241, Ark. Acts of 1943 (Ark. Stat. (1947) Pocket Supp. § 59-230.1).’ The commitment of the Pulaski Circuit Court, First Division, was in the usual course of handling the criminal proceedings by the State, then pending before it, and was'necessary in the discharge of its duties.
“The State Hospital accordingly billed the County $50.00 for each of twenty-seven persons committed for an observation and report. The total amount claimed by the State Hospital is $1,350.00. The State Hospital charged Pulaski County ‘at the same rate as that established for the maintenance’ of other patients. No more than 90 days Was charged to the County for any one patient.
“There is no objection to the rate charged and no question of the reasonableness of the charge of $50.00 per month per patient; nor is there any contention that the State Hospital acted in excess of the authority conferred by Act 415, § 4(a), Ark. Acts of 1955 (Ark. Stat. (1947) Pocket Supp. § 59-230.1). There is no contention that the act authorizing the hospital to.fix the charges is unconstitutional for lack of adequate standards to guide the determination, and none could be raised, for the charge could be determined by simple accounting and mathematical computations. Judge Campbell’s defense and contention seems to be that the Legislature cannot constitutionally impose a charge on the County since by Section 28 of Article 7, Ark. Const, he is given ‘exclusive original jurisdiction in all matters relating to * * * the disbursement of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties. ’
“The defendant makes the further contention that, what the Legislature cannot do, namely, bind the County Court in its area of exclusive jurisdiction, neither can it delegate to. the State Hospital Board the power to do.
The defendant bases his entire argument on Section 28 of Article 7 of the Arkansas Constitution and certain statements from the opinion of our late Chief Justice Griffin Smith, in the case of Campbell v. Little Rock School District, 222 Ark. 615, 262 S. W. 2d 267.
“If we assume that the County Court has ‘exclusive original jurisdiction’ then there would be no difficulty in deciding:
“1. That the Act under consideration is unconstitutional.
“2. That the Act fixing and requiring payment of grand juror fees is unconstitutional.
‘ ‘ 3. That the general salary acts of the county officials are unconstitutional.
“4. That the Act requiring the county court to defray the expenses of the several courts of record is unconstitutional.
“5. That the Act imposing the costs of primary elections on the counties is unconstitutional; and on ad inf initem.
“The crucial question is whether the County Court has ‘exclusive jurisdiction’. Our court has stated in Price v. Madison County Bank, 90 Ark. 195, 118 S. W. 706: ‘We think that it was only intended by them (the framers of the Constitution) that the county court should have jurisdiction when the subjects enumerated in Sec. 28 of Art. 7 were directly affected. This construction is borne out by the decisions of our court.’
‘ ‘ Our Supreme Court, in the case of Adams v. Whittaker, 210 Ark. 298, 195 S. W. 2d 634, had under consideration the question of the Legislature’s power to impose upon the county the expense of a primary election. In a lengthy opinion discussing many facets involving such a problem, our court said, among other things:
“ ‘Section 28 of Article 7 defines the jurisdiction of the county courts, and gives them jurisdiction over mat ters of “local concern” of their respective counties. There is nothing about this act (requiring the payment of expenses of a primary election) involving the jurisdiction of the county court, except indeed to order the payment of the expenses of the election for which the act provides.’
“The court then proceeded to quote from a prior opinion in the case of Little Rock v. North Little, Rock, 72 Ark. 195, 79 S. W. 785: ‘ “It thus appears that the local concerns over which the county court is given exclusive jurisdiction are those which relate specifically to county affairs, such as public roads, bridges, ferries and other matters of the kind mentioned in the section referred to * * * ” ’
“The Court concluded that the Legislature had the power to impose the expenses' of an election on the counties and such an Act is not unconstitutional under Art. 7, § 28, of the Constitution.
“The Court has also held counties liable for the expenses of municipal courts created by ordinance which were adopted under authority of a legislative Act, as against the contention that such Acts were violative of the provisions of Art. 7 § 28, Ark. Const. Crawford County v. City of Van Buren, 201 Ark. 798, 146 S. W. 2d 914, and Jackson County v. Pickens, 208 Ark. 15, 184 S. W. 2d 591.
“The Supreme Court, in the case of Jeffrey v. Trevathan, 215 Ark. 311, 220 S. W. 2d 412, again reviewed some of the prior holdings and stated:
“‘(a) In Cain v. Woodruff Co., 89 Ark. 456, 117 S. W. 768, it was claimed that a legislative enactment, requiring the county to pay the sheriff seventy-five cents per day for feeding each prisoner, was void as violative of the county court’s power under said Art. VII, § 28 of the Constitution. In holding the Act valid, we said:
“ ‘ “The Legislature, unless restricted by the Constitution, has full and plenary powers to adopt such policies and prescribe the duties which it demands of officers in carrying out such policies which it deems best for the peace and welfare of the People. Straub v. Gordon, 27 Ark. 625; Carson v. St. Francis Levee District, 59 Ark. 513, 27 S. W. 590.
“ ‘ “Aside from the restriction of the State or Federal Constitutions, the Legislature is unfettered in the exercise of legislative power. The question as to whether the enactment is wise or expedient belongs exclusively for the General Assembly to determine. State v. Martin, 60 Ark. 353. (30 S. W. 421, 28 L.R.A. 153)
“ ‘ “ ‘The.Constitution regards the county courts as political and corporate bodies that are to be controlled and regulated in their discretion by the acts of the General Assembly, and not as independent of or superior to it. As political and corporate bodies, they are required to conform their action to the rule of the Legislature, and in the exercise of their jurisdiction to proceed in the mode and manner prescribed by law. County of Pulaski v. Irvin, 4 Ark. 475; Hudson v. Jefferson County Court, 28 Ark. 359.’ ”
“‘(b) In Crawford County v. City of Van Buren, 201 Ark. 798, 146 S. W. 2d 914, it was claimed that a legislative enactment requiring the quorum courts to appropriate money for municipal court purposes was violative of the said Art. VII, § 28 of the Constitution. In holding the legislative enactment to be valid, we said, in referring to §§ 28 and 30 of Art. VTI:
“ ‘ “We do not think, however, that these sections of the Constitution operate to deprive the general assembly of the power to impose duties upon counties and to require counties to pay therefor. Our cases are to the contrary. For instance, in the case of Polk County v. Mena Star Co., 175 Ark. 76, 298 S. W. 1002, there is an enumeration of various items of expenses imposed upon counties by legislative enactment. In the case of Burrow, County Judge v. Batchelor, 193 Ark. 229, 98 S. W. 2d 946, there was involved an act of the genera] assembly • requiring all counties to pay salaries of circuit court and grand jury stenographers. This act was upheld, * * ’
“Act 77, § 6, Ark. Acts of 1879, Pope’s Digest § 2527, now codified as Ark. Stat. (1947), § 17-409, has been considered and discussed in many cases. In Polk County v. Mena Star Co., supra, it was pointed out that * * this court many years ago, determined and held that there were two classes of obligations dealt with in this section of the statutes (Ark. Stat. (1947), § 17-409); first, those that are imposed on the counties by law and about which the county court is substantially without discretion; * * * items 1 to 4, inclusive, being in the first class * * V It is interesting to note that the first item (Ark. Stat. (1947), § 17-409, sub-par. Sixth — 1.) provides: ‘1. To defray the lawful expenses of the several courts of record of the county or district and the lawful expenses of criminal proceedings in magistrate’s courts, * ' * *’
“Prom this plain language and the many decisions analyzed in reaching the conclusion herein set forth, it seems fundamental that the County Court is responsible for the expenses of the courts in our judicial system.
“Even the case of Campbell v. Little Rock School Dist., et al, 222 Ark. 615, 262 S. W. 2d 267, relied on by the defendant in the case under consideration, recognizes the power of the Legislature to bind the County Court. That case is not controlling,- nor decisive of the question presented here, for there the County Court was ‘without audit or power of scrutiny except the right to appoint three property owners to act in that behalf’. The distinction was clearly set forth by the late Chief Justice Griffin Smith, with the following language: ‘ The distinction lies in the fact that here * * * three property owners * * * (have) the power to make conditional contracts affecting county revenues derived from tax sources.’ (Emphasis supplied)
“Upon reference to the language of Art. 7, § 28, of the Arkansas Constitution (‘The County Court shall have exclusive original jurisdiction in all matters relat ing to comity taxes, * * * the disbursement of money for county purposes * * *’), it is readily apparent that the language of the act there being considered fell squarely within and directly affected the subjects enumerated in Art. 7, § 28, Ark. Const., so that the rule in Price v. Madison County Bank, 90 Ark. 195, 118 S. W. 706, applies.
“Here we have an item having to do with expenses of the Circuit Courts, * * * It is inconceivable that the framers of our Constitution could have intended to stretch the plain language of Art. 7, § 28, so as to vest the County Court, an office requiring no special knowledge of the law, with exclusive jurisdiction to completely thwart the operation of our criminal courts in granting an accused certain rights, by refusing to pay expenses of that court. The Circuit Court, a State office, was here discharging a duty imposed on it by the legislative branch, namely, granting a mental examination to one accused of a crime who has raised the defense of insanity. In view of the myriad of cases and the long-standing operation of Ark. Stat. (1947) § 17-409 (1879 Act) there can be no question but that the County Court and the Quorum Court, its appropriating agency, must pay the expenses of the courts of record within their boundaries.
“Finally, the court is persuaded by the holding of the Supreme Court in the case of Phillips County v. Arkansas State Penitentiary, 156 Ark. 604, 247 S. W. 80. In the penitentiary case, the county urged that the legislature had no authority under the Constitution to impose upon the counties the cost of maintaining a State institution. Factually, the case is indistinguishable, for there an act of the legislature had required that the counties should pay to the State Penitentiary the sum of $1.00 per day for each day a person remained in confinement prior to electrocution and, further, that the county should pay to the State Penitentiary $25.00 for the electrocution of a person charged and convicted with a capital offense.
‘ ‘ The county there, as here, relied on a line of cases construing the exclusive original jurisdiction of the county court but which are inapplicable in the case at bar, just as they were inapplicable in the penitentiary case. Our Supreme Court said:
“ ‘* * * The expense imposed by the present statute is not, we think, a contribution towards a State institution, or towards the payment of the salaries of State officers, but is an expense in enforcing the criminal laws of the State, which has always been held to be a matter within the power of the lawmakers.
“ ‘There is no constitutional restriction upon the imposition of costs of prosecution, and it has always been held by this court that this was a matter regulated entirely by statute. Lonoke County v. Reed, 122 Ark. 111 (182 S. W. 563) * * *
“ ‘The statute constitutes no invasion of the jurisdiction of the county court in fixing the amount to be paid by the county as the expense of keeping the convicts and carrying out the sentence of the court.
# # * J
“The Court finds in this case that the sum claimed by the State Hospital under the statute in question is an expense of enforcing the criminal laws of this State.
“This Court feels that the presumption of constitutionality would require .the conclusion reached herein, though this ‘so-called’ presumption was not here relied on as the basis for the conclusion reached.
“It is, therefore, the conclusion and judgment of this Court that the defendant, R. A. Campbell, County Judge and Judge of the County Court, is indebted to the State Hospital in the amount of $1,350.00.
“It is hereby declared that the County Court should pay to the State Hospital the sum of $1,350.00.”
We agree with the views expressed by Judge Cock-rill.
Appellant contends, also, that Initiated Act 3 violates Article 5, § 1, of the State Constitution by delegating the authority to determine the cost of keeping persons sent by the court to the State Hospital for a mental examination. But there is no unlawful delegation of authority.
In Johnston v. Bramlett, 193 Ark. 71, 97 S. W. 2d 631, we said:
"While the Legislature cannot delegate the power to make a law, it can make a law to delegate the power to determine certain facts. * * *”
And in Little Rock v. North Little Rock, 72 Ark. 195, 79 S. W. 785, the Court quoted from a Pennsylvania case:
“ ‘There are many things upon which wise and useful legislation must depend, which cannot be known to the laAvmaking power, and must therefore be a subject of inquiry and determination outside the halls of legislation.’ ”
And in Hogue v. The Housing Authority of North Little Rock, 201 Ark. 263, 144 S. W. 2d 49, the Court said:
"A careful reading of the act does not. reflect that the Legislature has delegated its right to make laws to the public agency or authority. The most it does is to delegate power to the agency or authority to determine facts conditioning the operation of the law. This delegation of authority to determine facts upon which its law may operate is permissible. * * * J 5
Here, the Legislature merely provided that the Hospital shall be reimbursed at the same rate as that established for the maintenance of patients in the institution. There is no unlawful delegation of authority in such procedure.
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J. Seaborn Holt, Associate Justice.
Appellee, G-arrigus, brought this suit to "recover damages for personal injuries which resulted when he was struck by an automobile driven by appellant, Williamson. Appellant denied any liability, alleging as a complete defense and bar, contributory negligence of appellee. By agreement a jury was waived and trial was had before the court, sitting as a jury, which resulted in a finding and judgment for appellee in the amount of $8,961.85. This appeal followed.
For reversal appellant contends that the evidence shows that he was free from any negligence, that ap-pellee was guilty of contributory negligence barring any recovery, and that the verdict was excessive.
The testimony shows that appellee was walking diagonally across Main Street in Russellville between street intersections, or “jaywalking” as it is-sometimes called, when he was struck by appellant’s car. A fair summation of the facts we think, is contained in the following findings and conclusions of law of the trial court: “. . . defendant (appellant) Williamson, in driving south on Arkansas Avenue, turned simultaneously with another car, not identified, being driven north from South Arkansas Avenue into Main Street. That according to defendant’s (appellant’s) testimony, the two cars traveling to the West, were at least at the point of the accident, almost abreast. Defendant (appellant) stated that his car was about half the distance of the other car to the rear, and that abont one yard separated the two cars, north and south. In response to question asked by his attorney, Mr. Williamson stated that his view to the left was obstructed. Other witnesses testified that just prior to the accident, the preceding car was about 10 or 15 feet in the front of the Williamson ear. Based upon the testimony of the defendant (appellant), who was in a better position to observe the true physical conditions and location of the two cars, assuming there were two cars, than that of other witnesses who were a considerable distance away, defendant (appellant) from the point of turning from Arkansas Avenue into Main Street, traveled a considerable portion of distance, just behind the second car he testified to, or almost parallel with the car driven to his left. Accepting this testimony as true, defendant continued to drive with his view to the left obstructed and at the rate of speed he was driving, 20 to 25 miles an hour, did not have his car under such control as to be able to avoid the accident.* * * He (appellant) placed his car to the right of the car just preceding him,' about a yard interval between the two cars ... ‘I would say that the front of my ear was about even with the middle of his (second car).’ Defendant (appellant) also stated in response to question by the court that plaintiff, Garrigus, stepped from in front of west bound car to his left in front of Williamson car . . . Mr. Garrigus was an old man, moved very slowly with a shuffling walk, and if the two cars were traveling parallel or partially parallel as described by defendant (appellant), without any decrease in speed of either car, to have moved into the lane traveled by defendant (appellant), plaintiff (appellee) would have (had) to jump or to say the least, moved rapidly from the front of the other car.
“Mr. Charles Wilson testified: ‘I didn’t see any cars until I saw this car down in front of the courthouse, the first I saw, and Uncle John (plaintiff-appel-lee) came out ... it seems like ... he walks kind like (indicating) and he was trying to get out of the way of the car, is the way it looked to me.’ From this testimony, as given, plaintiff (appellee) apparently saw the Williamson car and sought to avoid being struck. The ‘ other car ’ apparently was not seen by Mr. Wilson. The weight of the testimony, however, rather sustains the finding that there was a second car.
“Viewed from the whole of the testimony heard in the trial, it is the finding of the court that defendant was guilty of negligence in the manner of the operation of his automobile immediately prior to and at the scene of the accident. In examining the testimony of defendant (appellant), which has been transcribed for the benefit of the court, in no particular does he testify that he was keeping a constant lookout as required by law. It may be assumed of course that defendant was looking ahead, but apparently not laterally. While defendant (appellant) testified that he was not exceeding the speed limit, it would not necessarily follow that under the existing conditions he was justified in driving at the legal rate of speed. Cars were parked on the north side of Main Street. Sufficient room remained north of the center line to permit two lanes of travel, but the right portion of the street would be limited and would require careful, prudent driving. Motorist, under the existing conditions attendant on one of the main traveled streets would be required to anticipate the presence of pedestrians, and this would require a constant, continuous lookout.” It appears that due to loss of memory, appellee was unable to testify in this case.
The relative duties of the pedestrian and motorist, in circumstances such as are presented here, have many times been announced by this court, both have equal rights in the use of streets and highways. Motorist, in operating automobiles, must keep a constant lookout to avoid injury to pedestrians, see Northwestern Casualty & Surety Co. v. Rose, 185 Ark. 263, 46 S. W. 2d 796; and, must anticipate the presence of pedestrians on streets and exercise reasonable care to avoid injuring them, see Morel v. Lee, 182 Ark. 985, 33 S. W. 2d 1110; Self v. Kirkpatrick, 194 Ark. 1014, 110 S. W. 2d 13; Pate v. Fears, 223 Ark. 365, 265 S. W. 2d 954; Black & White, Inc. v. Fisher, 224 Ark. 688, 275 S. W. 2d 876. Pedestrians are required to exercise ordinary care for their own safety. As to the duties and care required of a pedestrian in crossing a street, Blashfield Vol. 2A, Sec. 1452, states the rule as follows: “A pedestrian has a right to cross a street diagonally in the middle of the block, or elsewhere than at a crossing, subject to the duty of making reasonable use of his senses in order to observe impending danger, though he may rely to some extent on the motorist exercising reasonable care, and whether he is in the exercise of ordinary care in so doing is usually for the jury ... A pedestrian so crossing the street is under no duty to anticipate any action on the part of the motorist that will imperil his safety ... or that the car is not being run at a controllable speed. In such situations, as in other cases, the right of the pedestrian to assume that the motorist will not violate traffic regulations may affect the question of his negligence.
“A person, crossing a street in a diagonal direction, at a place where there is no crosswalk, is not negligent as a matter of law in failing to look continually for automobiles approaching from behind, as there is no fixed rule that he must turn and look back, but whether he does so depends on the circumstances in the particular case, and, while he must be alert, where he should look depends upon the law of the road, the current or traffic, his means of observation and local conditions.”
In Am. Jur. Prud. Sec. 762 of Yol. 5A, the textwriter says: “Where a pedestrian is forbidden by law to cross a street or highway between intersections it is generally held that the mere violation of the statute or ordinance will not necessarily operate as a bar to recovery. Such question as the proximate cause of the accident .... may make the issue one of fact for the jury to decide in light of all surrounding circumstances.”
In a very recent case, Pate v. Fears, 223 Ark. 365, 265 S. W. 2d 954, we have set forth and defined the relative rights and duties of pedestrians and motorists in circumstances such as are presented here, where we said:. “There are many decisions of this conrt defining the relative rights and duties of pedestrians and drivers of automobiles using the public streets and highways. Both have a right to use the streets and are required to exercise ordinary care for their own safety and the prevention of injury to others . . . this court said in Northwestern Casualty & Surety Co. v. Rose, 185 Ark. 263, 46. S. W. 2d 796, ‘It is the well-settled rule that the duty rests, upon the driver of an automobile to exercise ordinary care in its operation, and in the exercise of such care it is his duty to keep a constant lookout to avoid injury to others. This is particularly incumbent upon him when driving on the street of a city in order to avoid injury to pedestrians, ■ as he should anticipate their presence, upon such streets and their .equal right to their use.’ In Morel v. Lee, 182 Ark. 985, 33 S. W. 2d 1110, the court said, ‘Ordinary care, however, is a relative term, its interpretation depending upon the facts and circumstances of each particular case; and, although drivers of automobiles and pedestrians both have the right to use the streets, the former must anticipate the presence of the latter and exercise reasonable care to avoid injuring them, care commensurate with the danger reasonably'to be anticipated’.” In the case of Black and White, Inc. v. Fisher, 224 Ark. 688, 275 S. W. 2d 876, we said: “The relative rights of pedestrians and motor vehicles in a public street are equal, and each is obliged to act with due regards to the other. Neither is called upon to anticipate negligence of the other.” As indicated, we think there was substantial evidence presented, when considered in the light most favorable to appellee, as we must, to support the findings of the trial court to the effect that the proximate cause of the collision and injuries to appellee was due to the negligence of appellant, and not to appellee’s negligence.
On the question of excessiveness of the verdict, little need be said. Of the amount of damages allowed appellee ($8,961.85) it appears that $1,961.85 was for medical care, hospitals, nursing, drugs, etc., $2,000 was for loss of earnings and $5,000 was for the permanent injury, pain suffered and mental anguish. It was un disputed that the life expectancy of appellee was five years. At the time of the injury he was 84 years of age and receiving $105 per month, $50 of this amount was retirement pay paid by the city and $55 paid to him as night watchman by the merchants of Russell-ville. It appears undisputed that-appellee was seriously injured in June 1953. Medical testimony shows that his injuries were painful and permanent. He suffered a fractured leg, a broken arm, abrasions and other bodily injuries. He was confined to a hospital about 2% months and at his home in bed for 5y2 months thereafter. His physician testified that he would continue to suffer in the future and that his injuries were permanent. In cases of this nature we are afforded no definite yardstick by which to measure damages and the amount awarded must, therefore, be left to the sound discretion and judgment of the jury, or the court sitting as a jury, based upon the evidence in the case. The amount so awarded cannot be disturbed by this court as excessive if we find any substantial evidence to support it. We reannounced the rule on measure of damages in Hot Springs Street Railway Co. v. Hill, 198 Ark. 319, 128 S. W. 2d 369: “The measure of damages for a physical injury to the person may be broadly stated to be such sum, so far as it is susceptible of,estimate in money, as will compensate plaintiff for all losses, subject to the limitations imposed by the doctrines of natural and proximate consequences and of certainty, which he has sustained by reason of the injury, including compensation for his pain and suffering, for his loss of time, for medical attendance and support during the period of his disablement, and for such permanent injury and continuing disability as he had sustained. Plaintiff is not limited in his recovery to specific pecuniary losses as to which there is direct proof, and it is obvious that certain of the results of a personal injury are insusceptible of pecuniary admeasurement, from which it follows that in this class of cases the amount of the award rests largely within the discretion of the jury, the exercise of which must be governed by the circumstances and be based on the evidence adduced, the controlling principle being that of securing to plaintiff a reasonable compensation for the injury which he has sustained. ’ ’ When we consider appellee’s reduced earning capacity, his permanent injuries with attendant pain and suffering, we do not find the verdict excessive. It is also significant to note that at the time of the trial in June 1957 appellee had already lived 4y2 years after his injuries, or about six months short of his life expectancy.
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CarlbtoN Harris, Chief Justice.
Appellant, Ed Ward, filed this suit to set aside a conditional sales contract on the grounds of usury. Ward purchased a Dodge truck from the Louis George Motor Company, according to his allegations, for the sum of $2,580. He traded in two trucks for the new one, and contends he was allowed $900 for same, less a debt of $500 owed on the trucks to the Planters Bank, which was paid off by George. Ward signed a conditional sales contract for $2,831.35, which was assigned to appellee, Universal C.I.T. Credit Corporation. Appellant contends the interest amounted to $376.20, and that said amount was usurious, over and above 10 per cent per annum, to the extent of $143.79. Appellee contends that the parties traded for a “difference”, ($1,818 plus the $500 due the bank) rather than a specified amount, for the sale of the truck. The contract assigned to C.I.T. called for the payment of $2,831.35 , for which George was paid $2,318. After making one payment, Ward filed the instant suit. Appellee filed its answer denying the charge of usury; counterclaimed by setting up that appellant was in default, and by reason of the acceleration clause, declared the entire balance of $2,739.30 due and payable; asked that an order be issued for the seizure of the truck. The affidavit for the order of seizure declared the truck to be of the value of $2,000. In order to retain possession of the truck, Ward furnished a bond, signed by Melvin and Louis Lapides, that Ward “shall perform the judgment of the court in this action.” After hearing the proof, the court held that the contract was not usurious, and granted judgment against both Ward and the sureties in the sum of $2,739.30 and costs. From such judgment, Ward brings this appeal. No notice of appeal was given by either of the sureties.
For reversal, appellant first contends that more than 10 per cent interest was charged under the contract, and same accordingly should be cancelled as usurious. Ward and George relate an entirely different version of the transaction. Ward simply contends that the purchase price of the Dodge truck was $2,580, less a down payment of $400, (trade-in of his trucks) plus insurance charge of $275.15, leaving a balance of $2,455.15 to he financed in 24 monthly payments. Subtracting this figure from the conditional sales contract of $2,831.35 leaves a finance charge of $376.20. Under this theory, the contract would be usurious. George testified that he and Ward (who was a part-time salesman for the George Motor Company) reached an agreement whereby Ward would trade in the trucks, and pay a balance of $1,818. $523.88 was still owed on the two trucks to the Planters Bank. Adding the $500 gives $2,318. George states this was the sole basis of the trade; no purchase price was mentioned; nor was any trade-in price agreed upon; they simply traded on the difference. After driving the truck for two months, Ward asked for a bill of sale in order to buy a state license. He was given a bill of sale for $3,218, though George testified this was no more the actual figure than was the $2,580 . According to George, Ward asked that this figure be changed so he wouldn’t have to pay so much sales tax. “* * * Since he had been working for me, and it is a common practice for all dealers to cut the price down to save on the sales tax when they put a balloon price on both trade-in and sale price so they can finance the deal, and I cut the price down to what I figured the trade-ins would bring, and the difference I charged him, and that was to save on his sales tax, which he wanted, and we took up the other bill of sale and tore it up. * * *” Appellee’s theory, accordingly, is that its contract for $2,831.35 covered $2,318 paid the dealer (trade-in difference of $1,818 plus the $500 paid the bank), and insurance premiums paid by it in the amount of $275.15, thus leaving a carrying charge of $238.20. Let it he pointed out that the charge of usury does not involve the insurance items. Ward signed the "insurance election” contained in the contract, and does not contend that such insurance bought in his behalf was a charge to cover usury. Appellee admits that if $2,580 was the purchase price, the contract was usurious; on the other hand, appellant concedes that if the dealer’s version of the contract is correct, then the contract is not usurious.
The answer to the litigation therefore resolves itself into the simple question of which evidence the ( liancellor accepted. Both versions of the transaction cannot be correct. This court has held many times that it will not disturb the findings of the Chancellor unless they are against the preponderance of the evidence. England v. Scott, 205 Art. 47, 166 S. W. 2d 1014; Kelker v. Payton, 227 Ark. 369, 298 S. W. 2d 704. Appellant’s evidence, as to the transaction, consisted of his own testimony, and the bill of sale. Appellee’s evidence, as to the transaction, consisted of the testimony of George, Eva Langston, bookkeeper for George Motor Company, (whose testimony verified George’s statement that Ward asked that the sale price be reduced in order to save sales tax) and a copy of invoice showing the price to be $3,218. We are unable to say that the court’s findings were contrary to the weight of the evidence.
It is next contended that the judgment should not have been rendered against the sureties in the amount of $2,739.30, even though judgment for such amount be entered against Ward, for the reason that ap-pellee, in its petition for order of seizure, only alleged the value of the Dodge truck to be $2,000; it is insisted that the liability on the bond is limited to that extent, though it does provide that Ward * * shall perform the judgment of the court * * We dispose of this contention by pointing out that the sureties did not join in this appeal nor give any notice as re quired by statute. Section 27-2110 , .1, Ark. Stats., reads as follows:
“Parties interested jointly, severally, or otherwise in a judgment or decree may join in an appeal therefrom; or, without summons and severance, any one or more of them may appeal separately, or any two or more of them may join in an appeal.”
Ward did separately appeal, but the sureties, who had the like right, failed to do so. The sureties were parties; they sought separate and additional relief from that sought by Ward, averring that their liability did not extend to the full amount of indebtedness claimed by appellee. This contention was presented to the trial court. The Messrs. Lapides, in signing supersedeas bond (to supersede the judgment against them), described themselves as “appellants”; yet no notice of appeal was ever filed. The filing of notice of appeal within the time prescribed by law is a jurisdictional prerequisite to the appeal. General Box Co. v. Scurlock, 223 Ark. 967, 271 S. W. 2d 40. There is, accordingly, no appeal before us from the sureties to be passed upon.
The judgment of the Chancery Court is, in all respects, affirmed.
The amount due the bank was actually $523.88, but appellant paid the $23.88 in cash.
Payment scale, covering two year period, called for four payments at $90.58; one at $748.01; nineteen at $90.58.
See footnote 1.
George had sent C. I. T. a worksheet with the figure $3,218 and showing a trade-in of $1,400 as a boost of both prices in order to give Ward enough for a down payment.
Act 555 of 1953. | [
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Ed. F. McFaddiN, Associate Justice.
The refusal of the trial court, to award damages for wrongful issuance of a temporary injunction, is the only point at issue on this appeal.
The Reader Railroad, a common carrier (hereinafter called “Reader”), had a spur track that crossed the land owned by appellee, Allen Green. This track served a gravel pit, and was frequently used prior to 1946. After that year there was little, if any, use of the said spur track; and in 1952 Reader began removing the rails. Thereupon, appellee Green filed the present suit in the Chancery Court to enjoin Reader from removing the rails. Green alleged that the spur line had been abandoned for many years and that the rails had become his property because of such abandonment. When Green filed his suit on March 10, 1952, he also filed a bond and obtained from the Chancery Court a temporary restraining order preventing Reader from removing the rails. The condition of the bond was that the plaintiff would pay the defendant “. . . all damages suffered by it by reason of the temporary restraining order, if such be wrongfully or illegally issued.” On April 29, 1952, Reader filed a motion to dissolve the temporary injunction, claiming that the suit had not been brought in the proper venue.
For reasons that do not appear in the record, there was no hearing on the motion to dissolve the injunction until November 2, 1956, at which time the Chancery Court overruled the motion (which raised only a question of venue, as aforesaid); and immediately Reader filed its answer, denying abandonment and claiming damages because of the temporary restraining order. Trial was in the Chancery Court on November 21, 1956. The cause taken under submission was decided on December 6,1956; and a decree was entered which found, “. . . that the temporary restraining order was wrongfully issued and should be dissolved.” But the Chancery Court also found, “. . . that defendant is not entitled to recover damages on account of the is suance of the temporary injunction”. All court costs were taxed against the plaintiff, Allen Green.
There is no appeal by Green. The only appeal is by Reader, claiming that it showed without contradiction that it was entitled to substantial damages for the wrongful issuance of the injunction, and that the Chancery Court committed error in refusing to award such damages. The appellant, in effect, claims that the trial court abused its discretion in refusing to award substantial damages to Reader, after having found — as it did — that the injunction was wrongfully obtained.
I. Power of Court To Award Damages on Dissolution Of Injunction. Section 32-307 Ark. Stats, reads:
“Assessment of damages upon dissolution of injunction or restraining order. Upon the dissolution in whole or in part of any injunction or restraining order of any and every kind and nature whatsoever, the chancery court wherein the same was pending may assess and render against principal and sureties on the injunction bond a valid judgment for any and all damages occasioned by the issuance of such injunction or restraining order; and the court may either appoint a master to report as to such damages, or may render summary judgment therefor, or at its discretion may cause a jury to be empaneled to find such damages.”
The above is from Act No. 102 of 1915; and, in the case of Citizens Pipe Line Co. v. Twin City Pipe Line Co., 183 Ark. 1006, 39 S. W. 2d 1017, this Court discussed in detail the effect of the 1915 Act on previous statutes. In the case of Sullivan v. Wilson Merc. Co., 168 Ark. 262, 271 S. W. 30, we held that, when the Court dismissed a temporary restraining order, the defendant was entitled to recover his damages.
In the light of these cases, it necessarily follows that Reader was entitled to at least nominal damages in this case, when the Court found, as it did, that the temporary restraining order had been wrongfully issued. Since all costs were adjudged against Green, Reader has, in effect, recovered nominal damages; but Reader claims more than nominal damages. It claims a total of $1,307.37, and the principal items are: (1) rent paid the Missouri Pacific Railroad Company for the rails during the four and one-half years of the existence of the injunction; (2) increased cost of labor required to remove the rails in 1956 over the like cost in 1952 when the injunction was issued; and (3) also the value of the railroad spikes lost from the track during the four and one-half years ’ delay.
II. Minimizing Damages. Green points out that the temporary restraining order was granted on March 10, 1952; that Reader did not call up for hearing the motion to dissolve the temporary restraining order until November 21, 1956; and that it was the duty of Reader to press its motion to an earlier conclusion— this, because of the rule that a party damaged must use diligence to minimize his damages. Gibson v. Lee Wilson & Co., 211 Ark. 300, 200 S. W. 2d 497. It is the duty of a person enjoined to minimize his damages resulting from the improper suing out of a temporary injunction. The Supreme Court of Tennessee,, in Johnson v. Brown, 138 Tenn. 395, 198 S. W. 243, Ann. Cas. 1918C 672, recognized this rule in this language: “It was the defendant’s duty to minimize the damages as much as he could, as in all other cases of injury, by the exercise of reasonable care.” See also 28 Am. Jur. “Injunctions”, Key 345, and annotation in Ann. Cas. 1918C 673.
We have found no case — and learned counsel have cited us to none — holding that the duty on the enjoining plaintiff to bring the ease to trial is stronger than the duty on the enjoined defendant to press for trial to dissolve the injunction. We find nothing in the record to suggest why the case was delayed. Since the trial court refused substantial damages to Reader, we indulge the presumption that the trial court considered the delay, in bringing the case to trial, to be chargeable against Reader rather than against Green. Since all costs in the case were adjudged against Green, the effect was to allow Reader nominal damages; and Reader has failed to show that the trial court was in error.
Therefore, the judgment is affirmed.
Reader had a right-of-way deed from a former owner of the land. | [
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Ed. P. McFaddih, Associate Justice.
Charley Seward killed his brother, James (Bud) Seward; and was convicted of first degree murder (§ 41-2205 Ark. Stats.) with sentence of life imprisonment. He brings this appeal. The motion for new trial contains fourteen assignments. We have studied all of them, but discuss in detail only those most seriously urged by appellant’s counsel.
I. Sufficiency Of The Evidence. The defendant admitted the homicide and claimed self defense. On appeal, we view the evidence in the light most favorable to the verdict, as is our rule in cases like this one. Eddington v. State, 225 Ark. 929, 286 S. W. 2d 473; Allgood v. State, 206 Ark. 699, 177 S. W. 2d 928. It appears that the defendant, Charley, entered a room in which his brother, Bud, was in bed. The brothers engaged in a conversation which started out in a friendly manner, but developed into some dispute about Bud having interfered with Charley’s rent collections and other matters. The conversation became acrimonious. An eye witness said that Bud never got out of bed, and that Charley shot Bud three times. Another brother, named Mike Seward, testified that a few days before the homicide, Charlie had told him that if Bud did not stay out of the way, Charley was going to hurt Bud. In short, there was sufficient evidence to establish a willful, deliberate, malicious, and premeditated killing, and to negative the claim of self defense.
II. Instructions. As aforesaid, the defendant claimed self defense. He testified that Bud was in bed at the beginning of the conversation; but that Bud got out of bed and stabbed him with a knife, inflicting severe injuries; and that Charley resisted as long as he could. Here is appellant’s abstract of his testimony:
. . Then he pushed me back to the chair. When I fell in the chair he had hold of me ... I kicked off of him with my feet, he fell on the bed. He still had the knife. When I pushed him back to the bed he started getting up with the knife when I come up with the gun. I shot him because I thought he was com ing back to me with the knife. I thought I was bad cut. I was afraid. I was bleeding.”
Among other instructions, the defendant requested his Instruction No. 10 on self defense:
“You are instructed that one who is suddenly viciously assaulted by another is not required to retreat, but may stand his ground and repel force with force, and if necessary to protect himself, may slay his assailant, unless accused himself provoked the assault. ’ ’
In refusing the instruction, the Court said that the matter was covered in other instructions. The Court’s statement was true: two such instructions were defendant’s Instruction No. 12 and the Court’s Instruction No. S-7.
Furthermore, we also think the defendant’s Instruction No. 10 was properly refused because it did not use the words “murderous intent”. In Carpenter v. State, 62 Ark. 286, 36 S. W. 900, Justice Battle used this language:
“But the rule is different where a man is assaulted with a murderous intent. He is then under no obligation to retreat, but may stand his ground, and, if need be, kill his adversary.” (Italics our own.)
It will be observed that the defendant’s Instruction No. 10 was evidently framed from Justice Battle’s language as above quoted, but failed to use the necessarily essential words, “murderous intent”. The use of these words has been mentioned in some of our cases: Larue v. State, 64 Ark. 144, 41 S. W. 53; Bishop v. State, 73 Ark. 568, 84 S. W. 707; and Garrett v. State, 171 Ark. 297, 284 S. W. 734.
The Court gave, on its own' motion, Instruction No. S-7, which was correct. It reads:
“You are instructed that no one in resisting an assault made upon him in the course of a sudden brawl or quarrel, or upon a sudden encounter, or in a combat on a sudden quarrel, or from anger suddenly aroused at the time it is made, is justified in taking the life of the assailant, unless he is so endangered by such assault as to make it necessary to kill the assailant to save his own life, or to prevent a great bodily injury, and he employed all the means in his power, consistent with his safety, to avoid the danger and avert the necessity of the killing. The. danger must apparently be imminent and actual, and he must exhaust all means within his power, consistent with his safety, to protect himself, and the killing must be necessary to avoid the danger. If, however, the assault is so fierce as to make it, apparently, as dangerous for him to retreat as to stand, it is not his duty to retreat, but he may stand his ground, and, if necessary to save his own life; or to prevent a great bodily injury, slay his assailant.”
The defendant has all .the time insisted that the above instruction did not give the defendant the full benefit of his plea of self defense because it gave the positive right of self defense only in the last sentence, and then in an argumentative manner. We find no merit in defendant’s contention. This Instruction No. S-7 is identical with the one approved by this Court in Smith v. State, 194 Ark. 264, 106 S. W. 2d 1019. An examination of the transcript and briefs in the cited case discloses that the same objection against the instruction — i.e., that it was argumentative — was made in the Smith case, and the instruction was approved even in spite of such objection.
III. Cross-Examination Of Defendant. The defendant became a witness in his own behalf; and on cross-examination the Trial Court — over the objections of the defendant — permitted the Prosecuting Attorney to interrogate the defendant concerning (a) the death of his second wife; and (b) the homicide of Will Walker.
The defendant stated that his second wife died in 1953; that he and his wife were working in the field; that an oil can exploded; and that his wife was burned to death. The defendant’s attorneys objected most strenuously to such line of questioning, saying, inter alia: “Mr. Thweatt: Does he mean to make this jury believe this man did something' wrong? That is not the proper way to do that.” The Court ruled:
“The objection is overruled at the present time . . . The Prosecuting Attorney will be permitted- to ask the questions but he is informed now that he is bound by the answers of this witness because they are not matters covered on direct examination; and therefore he is bound by the answers.”
In regard to the homicide of Will Walker, the defendant stated that he killed Will Walker in a knife fight in St. Francis County, Arkansas in 1936. An additional objection was that the homicide in 1936 was too remote to have any bearing on the 1956 homicide for which defendant was then on trial. The Trial Court was correct in permitting the cross-examination of the defendant on both of the matters. The defendant voluntarily took the stand and became a witness. Willis v. State, 220 Ark. 965, 251 S. W. 2d 816. The questions as to defendant’s previous conduct were asked him on cross-examination. There was no effort to show by any other person the previous conduct of the defendant. See DuVal v. State, 171 Ark. 68, 283 S. W. 23. We have repeatedly held that when the defendant takes the witness stand the State may cross-examine him for the purpose of testing his credibility.
In Hollingsworth v. State, 53 Ark. 387, 14 S. W. 41, we said:
“It has always been held that, within reasonable limits, a witness may, on cross-examination, be very thoroughly sifted upon his character and antecedents. The court has a discretion as to how far propriety will allow this to be done in a given case, and will or should prevent any needless or wanton abuse of the power. But, within this discretion, we think a witness may be asked concerning all antecedents which are really significant, and which will explain his credibility. ’ ’
In Bevis v. State, 209 Ark. 624, 192 S. W. 2d 113, Justice FraNk G. Smith, speaking for this Court, said:
“Over appellant’s objection and exception, the court permitted the prosecuting attorney to ask appellant if he had not shot his first wife. A similar question was held proper in the case of Gaines v. State, 208 Ark. 293, 186 S. W. 2d 154. The testimony could, of course, be considered for the purpose only of affecting the credibility of the witness. He answered that he had not, and that answer concluded the inquiry. Had he answered that he had, he should have been permitted to explain, without elaboration, the circumstances, as for instance that the shooting was accidental, or to explain briefly the circumstances showing lack of criminality, and as the matter was collateral, his answer could not have been shown to be false. McAlister v. State, 99 Ark. 604, 139 S. W. 684. No attempt was made to do so.”
In DuVal v. State, 171 Ark. 68, 283 S. W. 23, we said the cross-examination of the defendant could relate to his conduct “regardless of time”; and in Pope v. State, 172 Ark. 61, 287 S. W. 747, the cross-examination of the defendant related — as here — to a previous stabbing incident. See also Trotter v. State, 215 Ark. 121, 219 S. W. 2d 636; and Montague v. State, 213 Ark. 575, 211 S. W. 2d 879. No error was committed by the Trial Court in allowing the cross-examination of the defendant in the case at bar.
We have examined all the other assignments in the motion for new trial and find no error.
Affirmed. | [
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Ralph W. Robinson, Special Associate Justice.
The question to be determined on this appeal is whether the parties to a sales contract can waive, and by express contract have waived, the implied warranties afforded by the Uniform Sales Act.
On May 9, 1955 appellee, Dr. B. M. Gardner, purchased a new McCormick hay baler from Moss Truck & Tractor Company, a partnership composed of W. E. Moss and W. E. Moss, Jr. Dr. Gardner traded in an old hay baler and paid $359.49 in cash, and for the balance of the purchase price executed a title retaining note to Moss for $1,359.82 as the balance due for the new hay baler. When the note was not paid at maturity and Moss filed action, Dr. Gardner claimed that he had rescinded the entire sale because of breach of implied warranty. He claimed that the hay baler -was defective in that it did not tie the bale of hay when baled; that he had repeatedly notified Moss of the defect; that such defect had not been corrected; and that Gardner therefore had the right to rescind the entire trade because of Section 68-1469 of the Arkansas Statutes, 1947 annotated. Dr. Gardner relied on the implied warranty stated in § 68-1415 of the Arkansas Statutes, 1947 annotated.
Moss claimed, inter alia, that all implied warranties had been expressly excluded from the sale because of the contract which Dr. Gardner had signed, and which is more fully detailed herein.
The Chancery Court found in favor of Dr. Gardner and granted him all claimed rights of rescission. As a prerequisite to such relief granted Dr. Gardner, the Chancery Court found:
‘ ‘ There is an implied warranty of fitness in the machine (Haybaler) sold by the plaintiffs and cross defendants, W. E. Moss and W. E. Moss, Jr., partners, doing business as Moss Truck & Tractor Company, and this implied warranty is in full force and effect even though there is an express warranty in the contract of sale limiting the International Harvester Company’s liability to furnishing any new parts for those which, in the judgment of company, might have been shown defective.”
There were many other issues in the Trial Court which we need not discuss, because our holding on the matter of implied warranty makes it unnecessary for us to consider any of these other matters.
The contract of purchase which Dr. Gardner signed with Moss contained this language:
“The Warranty on the back hereof is in lieu of all other warranties express or implied and all other obligations or liabilities on the part of the Seller. THE PURCHASER ACKNOWLEDGES RECEIPT OF A COPY OF THIS ORDER, WHICH, TOGETHER WITH THE WARRANTY ON THE BACK HEREOF, IS UNDERSTOOD TO BE THE ENTIRE CONTRACT RELAT ING TO THE SALE OF THE EQUIPMENT COVERED BY THIS ORDER.”
On the back of the contract, this is the warranty referred to in the above language:
“The International Harvester Company warrants each item of new McCormick Farm Equipment to be free from defects in material or workmanship under normal use and service. The obligation of the Company under this warranty is limited to furnishing new parts for those parts that prove, in the Company’s judgment, to be defective in material or workmanship within six (6) months after delivery by the Seller to the original Purchaser. New parts will be furnished free of charge to the Purchaser at the Seller’s place' of business.
“The above warranties are in lieu of all other warranties expressed or implied and all other obligations or liabilities on the part of the Company, and no person, agent or dealer is authorized to give any other warranties on the Company’s behalf or to assume for it any other liability.”
Dr. Gardner gave an affirmative answer to inquiry as to whether he had read the warranty on the contract.
Assuming that the hay baler was entirely defective and that it violated the implied warranties stated in § 68-1415 Arkansas Statutes, which is § 15 of the Uniform Sales Act, nevertheless, Moss contends that all of these implied warranties were expressly excluded from this transaction because of the above quoted language, and Moss cites us to § 68-1471 Arkansas Statutes (which is Section 71 of the Uniform Sales Act) and which reads in part:
“Where any right, duty or liability would arise under a contract to sell or a sale, by implication of law, it may be negatived or varied by an express agreement or by the course of dealing between the parties or by custom, if the custom be such as to bind both parties to the contract or the sale.”
The eases are uniform in holding that the said quoted language from. § 71 of the Uniform Sales Act allows parties to contract away and exclude from their transaction all implied warranties under the Uniform Sales Act, and all express warranties except those contained in the contract. 117 A. L. E. 1344.
The question for determination then is whether or not a sales contract under the Uniform Sales Act can exclude from the transaction all implied warranties under the Statute, and whether of not tinder this contract the implied warranties have been waived. The contract that Gardner signed with Moss says:
“The above warranties are in lieu of all other warranties express or implied and all other obligations or liabilities on the part of the Company, and no person, agent or dealer is authorized to give any other warranties on the Company’s behalf or to assume for it any other liability. ’ ’
“Provided, however, on items of new McCormick farm equipment where a special' warranty is printed in the owner’s manual furnished with such equipment, in every such case such printed warranty shall be controlling and to the exclusion of all other warranties express or implied.”
This language is too clear to admit of doubt. It excludes all implied warranties under the statutes and leaves Dr. Gardner only the right to claim under the express warranties stated on the reverse side -of the contract, and which we have heretofore copied. There can be no serious claim made that these express warranties were violated. Dr. Gardner has signed a contract specifically waiving all his implied warranties, and the Chancery Court was in error in holding that he had any implied warranties, in the light of the contract he signed.
It is not for us to moralize on the matter; there is ample evidence here that this hay baler was defective; and we seriously doubt if a sales agency or management can ever build customer good will by relying on the printed form of a contract in the face of testimony of this nature. If manufacturers and sales agencies continue to resort to such fine print on the back of the contract, it may be that a person buying an expensive piece of machinery will have to take his lawyer around with him to tell him the legal implications resulting from the signing of such a contract. The transaction here will not build customer good will and better friendships; but, since the enactment of the Uniform Sales Law and according to the strict letter of that law, Dr. Gardner by executing this contract waived all of his implied warranties, and so the decree of the Chancery Court must be reversed and the cause remanded, with directions for the Chancery Court to enter judgment for the amount sued for.
Harris, Chief Justice, not participating; Ward, J., dissents.
Arkansas adopted the Uniform Sales Act by Act No. 428 of 1941 (see 68-1404 et seq. Ark. Stats.).
Moss also claimed (a) that the hay baler had been repaired so that it would tie the bales of hay properly; and also (b) that Dr. Gardner had waited too long to attempt to exercise a rescission of the Contract. | [
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Rex W. PerkiNS, Special Justice.
The appellants’ decedent, John A. Smith, and appellee Ada Davidson Smith were husband and wife from February 10, 1946 to December 10, 1954. Prior to the time of such relationship the decedent purchased eighteen (18) United States Grovernment Savings Bonds, Series E, payable to Sgt. John A. Smith P. O. D. (payable on death) Miss Ada Davidson.
On September 24, 1954 the decedent filed a divorce proceeding against the wife in the Arkansas County Chancery Court, Southern Division, being Case No. 5946. The decree of divorce and an approval of a property settlement agreement was rendered on the wife’s cross-complaint on December 10, 1954; and in that decree the Court retained jurisdiction of the cause for such further orders as might be necessary to enforce the rights of the parties.
The property settlement agreement approved by the Court, among other things, provided: “First Party (John A. Smith) agrees to pay to Second Party (Ada Davidson Smith) Forty Thousand Dollars ($40,000.00) in cash and deliver to her United States Savings Bonds in the face amount of $1,800.00, the said bonds being identified as those which are now kept in a lock box in a bank in the City of DeWitt.”
The settlement agreement was fully performed as agreed, except $1,780.00 in cash was paid to the wife in lieu of delivering the $1,800.00 in United States Government Bonds. The following notation appeared on the original of the property settlement agreement: “Cash $1,780.00 substituted for Bonds, and draft for $40,000.00 received, (s) R. A. Eilbott, Jr. Attorney for Ada Smith.”
Subsequently on October 30, 1955 John A. Smith died. Mildred S. Roman and George Smith, the appellants, were appointed joint administrators of his estate by the Arkansas County Probate Court, and as such they found the United States Series E. Savings Bonds mentioned in the property settlement agreement in his safety deposit box. The names of the payees had not been changed from the time of their original issue.
On May 9, 1956 the administrators filed an intervention in the case of John A. Smith v. Ada Davidson Smith, No. 5946, in the Chancery Court of Arkansas County, Southern District, alleged in substance the facts set out hereinabove, and prayed: For an order of this Court directing the said defendant to endorse the bonds, in order to complete the settlement; and in the event of her failure to do so, that appropriate action be taken to require her to endorse the said bonds; and for such further relief as the petitioners may be entitled to in a court of equity. On May 19, 1956 the wife filed a demurrer to the intervention, and an answer thereto, and a cross complaint claiming said bonds and praying for an order for delivery. Also, on May 19, 1956 the wife petitioned the Arkansas County Probate Court, Southern Division, in the Matter of the Estate of John A. Smith, Jr., deceased, for an order directing the administrators to deliver the bonds in question to her. Both the Chancery case and the Probate case were consolidated for trial purposes by agreement. The Trial Court reserved its ruling on the demurrer in the Chancery case until all the evidence was in, at which time an order sustaining the demurrer was entered. Both parties to the Chancery proceeding have appealed.
The appellants first contend that the Arkansas County Chancery Court had jurisdiction to enforce the property settlement agreement and to determine the rights to the proceeds of the United States Savings Bonds. In the original proceedings in the case of John A. Smith v. Ada Davidson Smith, Arkansas County Chancery Court, Case No. 5946, the Court entered a divorce decree in which a property settlement agreement was approved, and jurisdiction was reserved for the specific purpose of rendering such further orders as may be necessary to enforce the rights of the parties. After the death of appellants’ decedent John A. Smith, the appellants, as administrators of the estate of John A. Smith, deceased, filed an intervention in the Arkansas County Chancery Court, Southern District, seeking to enforce their rights as successors to the interest of John A. Smith, deceased; in the United States Savings Bonds under the property settlemeny agreement. Ap-pellee resists the intervention on the ground that the Court had no jurisdiction, which position was sustained by the Trial Court. The appellants, Mildred S. Roman and George Smith, as administrators of the estate of John-A. Smith, deceased, were privy in law and estate to John A. Smith, deceased; and, therefore, they had a right to intervene in the Chancery suit to claim the rights of John A. Smith, deceased, under the property settlement agreement over which the Trial Court had specifically retained jurisdiction for the purpose of rendering such further orders as may be necessary to enforce the rights of the parties. Collum v. Hervey, 176 Ark. 714, 3 S. W. 2d 993, 15 R. C. L. 1015.
Appellants next contend that as representatives of the estate of John A. Smith, deceased, they are entitled to the proceeds from.the bonds in suit. In opposition, appellee contends that under the United States Treasury Regulations the form of registration of these bonds is conclusive of ownership, and that this Court cannot enter an order affecting either the ownership of the bonds or the proceeds received therefrom contrary to the registration. In this respect she contends that the case is controlled by the following provisions of the Treasury Begulation:
Sec. 315.4 of said regulations provides for the registration of savings bonds in the names of two persons in the alternative as co-owners and no other form of registration establishing co-ownership is authorized. Begistration may also be made in the name of one person payable on death to another. Sec. 315.11 makes savings bonds nontransferable and payable only to the owners named thereon except under circumstances not pertinent to this litigation. Sec. 315.45 specifies the manner in which bonds registered in the names of two persons as co-owners shall be paid. It provides (1) payment will be made to either co-owner upon his individual request during the lifetime of both; (2) any bond will be reissued to any designated person during the lifetime of both co-owners upon the request of both where the co-owners are divorced or legally separated or their marriage annulled after the issuance of the bond; and (3) if either co-owner dies without having presented and surrendered the bond for payment or authorized reissue, the surviving co-owner will be recognized as the sole and absolute owner of the bond, and payment or reissue will be made only to such survivor as though the bond were registered in his name alone. Sec. 315.46 specifies the manner in which bonds registered in the name of one person payable on death to another shall be paid. It provides (1) payment will be made to the registered owner during his lifetime upon his individual request as though no beneficiary had been named in the registration; (2) any bond will be reissued to name the beneficiary designated on the bond as co-owner, to the registered owner, to eliminate the beneficiary, or to substitute another named beneficiary, or to name another person as co-owner, upon the consent of the designated beneficiary, and to name the beneficiary as the owner upon proof of the death of the registered owner; and, (3) if the registered owner dies without having presented the bond for payment or authorized reissue and is survived by the beneficiary, upon proof of such death and survivorship, the beneficiary will be recognized as the sole and absolute owner of the bond, and payment or reissne will be made only to such survivor, as though the bond were registered in his name alone. Sec. 315.13 provides for the recognition of conflicting claims as to the ownership or interest in such bonds as between co-owners when established by a valid judicial proceeding providing such proceeding does not give effect to an attempted voluntary transfer inter vivos of the bond, or would defeat or impair the right of survivor, conferred by these regulations upon a surviving co-owner or beneficiary. This section further provides that a divorce decree ratifying or confirming a property settlement agreement between husband and wife, or otherwise settling their respective interests in savings bonds, will be recognized and will not be regarded as a proceeding giving effect to an attempted voluntary transfer inter vivos.
These are the sections of the regulations under which the bonds in suit were issued and are part of the terms of the contract between the United States and John A. Smith in his lifetime, and which appellee contends abolutely bar the appellants from a recovery in this case. In effect she says that under these regulations and the contract the appellants’ decedent could have requested payment to himself as the registered owner and surrendered the bonds for that purpose during his lifetime; but that he made no attempt to pursue this remedy although he lived for more than eleven months following the divorce decree and property settlement agreement. The result was that the appellants’ decedent, the registered owner of the bonds in suit, died without having presented and surrendered them for payment or reissue. This, the appellee contends, made her the absolute owner of said bonds as provided by the regulations under which they were issued. She disposes of the property settlement agreement with the assertion that it is an attempted voluntary transfer inter vivos of the bonds involved which would defeat her right of sur-vivorship, and that her rights to the bonds, regardless of the provisions of the property settlement agreement, or tlie substitution of the cash for bonds, depended entirely upon her surviving the appellants’ decedent.
In support of this proposition she refers to Myers v. Hardin, Adm., 208 Ark. 505, 186 S. W. 2d 925; Jones v. Hardin, Adm., 211 Ark. 273, 200 S. W. 2d 95; and Taylor v. Schlotfelt, 218 Ark. 589, 287 S. W. 2d 890. In the Myers case the Court held that the United States Bonds issued to a decedent and payable after her decease to a named beneficiary, became on her decease the absolute property of the named beneficiary without regard to the provisions of the will of the deceased which made no specific reference to ■ the bonds. The Jones case is a related case of Myers v. Hardin, supra. The Taylor case held that a guardian cannot cash United States Bonds issued to his ward and a co-owner during the life of his insane ward unless the proceeds are required for the maintenance of his ward; and the death of the ward completes the gift of the bonds to the co-owner. These cases fail to provide a solution to the problem here because the beneficiaries had made no attempt to dispose of their interest in the bonds for a valuable consideration before the death of the registered owner, and the effect of such a disposition of interest on the ultimate ownership of the bonds was not discussed or decided by this Court.
Many cases from other jurisdictions have been examined, and no case has been found where the court permitted a surviving owner of United States Savings Bonds to repudiate a property settlement agreement or a contract of any nature under which a surrender of interest in bonds was made to the other owner for a valuable consideration, and upon the surviving owner’s claim to the absolute ownership thereof for the sole reason that such deceased owner had not, during his lifetime, cashed the bonds or taken steps to have them reissued in his name alone. In Tharp v. Besozzi, Ind. App., 144 N. E. 2d 430, Thelma C. Tharp and one Arthur Morrison were one time husband and wife, and during the period of such relationship they acquired United States Savings Bonds, Series E, which were held in their joint names with right of survivorship. The wife filed suit for divorce against the husband, and while said suit was pending the parties entered into a property settlement under the terms of which the husband retained the United States Savings Bonds. The property settlement agreement was fully performed, and on October 4, 1946 a divorce decree was rendered which did not incorporate or ratify the agreement. The husband died on November 15, 1953, without having cashed or surrendered the bonds and having them reissued in his name alone. The wife claimed the proceeds from the bonds and relied on the Treasury Regulations cited hereinabove. The Court held that although the bonds represented a contract between the United States of America and the registered owner of the bonds, the United States could not be compelled to pay any person other than the registered owner; nevertheless the wife should surrender the bonds in controversy for cash in compliance with the treasury regulations and pay the proceeds therefrom over to the administrator of the deceased husband’s estate. See Lemon v. Foulston, 169 Kan. 372, 219 P. 2d 388.
The Supreme Court of Louisiana has held that the Louisiana Statutes of descent and distribution apply to co-owned United States Savings Bond held by a decedent, and even though the federal law controls as to the payee of such bonds, it does not prevent the Louisiana law from determining how the proceeds therefrom shall be distributed. Succession of Gladney, 223 La. 949, 67 So. 2d 547. In Ibey v. Ibey, 93 N. H. 434, 43 A. 2d 157, it was held that where a husband purchased United States Savings Bonds and made them P. O. D. to others to defraud his wife of her downer interest, a constructive trust would be imposed upon the proceeds therefrom held by such payees. In Chase v. Leiter, 96 Cal. App. 2d 439, 215 P. 2d 756, it was held that the Treasury Regulations could not be used as an instrument of fraud, so a constructive trust was declared in the proceeds of United States Savings Bonds as a means of compelling performance of an agreement to make a joint will. Accord: Anderson v. Benson (D. C. Neb.), 117 F. Supp. 765; Union National Bank v. Jessell, 353 Mo. 467, 215 S. W. 2d 474.
In this case, appellee received all that she was to get under the property settlement agreement which was at least approved in part hy the Chancery Court, and now she seeks to get a part of that property which was set aside to the appellants’ decedent solely because he neglected to cash the bonds or have them reissued in his name alone during his lifetime pursuant to the Treasury Begulations. Such a construction of the Treasury Begulations is not supported by the authorities, and certainly is contrary to the principles of equity and fair dealing.
Insofar as the United States of America is concerned the bonds in suit are the absolute property of the appellee, and this Court cannot compel the G-overnment to pay them to anyone else or to recognize the interest of anyone else in them except as expressly provided by the Treasury Begulations under which they were issued. See notes 140 A. L. R. 1435, 161 A. L. R. 170, 188 A. L. R. 245, and 173 A. L. R. 550. But this is not an action against the United States for the payment of the bonds in suit, nor is it a proceeding to compel the United States to recognize the appellants’ interest in them. This suit merely seeks to compel the appellee to surrender the bonds in suit for cash in compliance with the Treasury Begulations. The United States will satisfy its obligations under the bonds by paying the proceeds in accordance with the terms of its contract to the named beneficiary — the appellee in this case, and there is nothing in the law or regulations which prevents this Court from declaring a constructive trust in the proceeds of the bonds in order to prevent flagrant and unfair dealings or even fraud. See Anderson v. Benson, supra; Chase v. Leiter, supra; Ivey v. Ibey, supra; Tharp v. Besozzi, supra; Union National Bank v. Jessell, supra. Since the federal regulations require that the bonds be cashed “voluntarily”, the court cannot compel the appellee to cash the bonds. It should, however, enter a money judgment against the appellee for the value of the bonds, which will be surrendered to her upon satisfaction of the judgment.
The judgment . and decree are reversed and the causes remanded to the lower courts for further proceedings in accordance with this opinion.
Harris, C. J., disqualified and not participating; Holt, McFaddiN and RobiNsoN, JJ., dissent. | [
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J. Seaborh Holt, Associate Justice.
Appellee, Billy Joe Holder, was elected Sheriff and Collector for Searcy County, Arkansas, and took office January 1, 1951. He served three terms, a period of six years, his last term having expired December 31,1956. On January 7, 1951, he appointed his wife, June Holder, to be his Deputy Sheriff and Collector, in which capacity she served until December 31, 1956. During the period from January 1, 1951 to November 1, 1953, she worked without pay. Sheriff Holder’s compensation was paid from the fees of his office, not to exceed a maximum amount of $5,000 annually, as the law provided. The 1953 Legislature passed Act 411 which was approved and became effective on March 28, 1953. This act in part provides: “Section 1. The Sheriff in all counties having a population of not more than 11,000 and not less than 10,200 according to the 1950 Census may employ one deputy sheriff. Such deputy sheriff shall receive from the General County Fund an annual salary not to exceed Twelve Hundred ($1,200) Dollars.” Section 2 repealed all laws in conflict therewith, and Section 3 made the Act an emergency measure. Thereafter, in November 1953, proceeding under the terms of this act, Sheriff Holder appointed June Holder his deputy sheriff, and between the dates of December 30, 1953 and April 7, 1956, June claimed and was paid $100 per month for 28 consecutive months (a total of $2,800) from the County General Fund on county warrants issued by the County Clerk and approved by the County Judge.
Appellants, as taxpayers for themselves and all other similarly situated, brought the present suit against ihe sheriff and his bondsmen alleging that Act 411 is unconstitutional and void and that the $2,800 paid to June Holder as deputy sheriff was illegally paid, that the sheriff’s accounts should be surcharged for this money so paid, and prayed that the county officials be enjoined from making further payments to the deputy sheriff under said act; also, for judgment against Sher iff Holder, Central Surety and Insurance Corporation— Ms bonding company, and June Holder, Ms deputy.
To this complaint appellees, Sheriff Holder, June Holder, his deputy, and Central Surety and Insurance Corporation, each filed a separate demurrer in which each alleged that the complaint did not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer of Sheriff Holder, overruled the separate demurrers of the bonding company and June Holder, and later, on a final hearing, dismissed the cause as to the bonding company and returned judgment against June Holder as deputy sheriff for $2,800, drawn by her under Act 411 above, and restrained the county officials from, disbursing any other funds under said act. The cause is before us on direct appeal of appellants and on a cross-appeal.
Appellants rely for reversal on the following points: ‘ ‘ 1. The Chancellor erred in sustaining the demurrer of the Sheriff and holding said sheriff not responsible for sums paid to his deputy. 2. The Chancellor erred in dismissing the appellants’ complaint as to the appellee, Central Surety and Insurance Corporation, the official bonding company of the Sheriff during all times and dates in issue in this cause.”
We hold that the chancellor, was correct in sustaining the demurrer of Sheriff Holder and in dismissing the cause against the bonding company. Clearly, we think Act 411 here in question is void and unconstitutional since it is a special act and right in the teeth of the provisions of Amendment 14 of the Constitution of Arkansas which says in plain, unmistakable language: “The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.” It is conceded that Act 411 here applies only to Searcy County since this is the only county in Arkansas' having a population (by the 1950 census) of not less than 10,200 nor more than 11,000. “A law is special in a constitutional' sense when, by force of an inherent limitation, it arbitrarily separates some person, place or thing from those upon which, but for such separation, it would operate, (citing cases) . . • . In 25 R. C. L. p. 834, paragraph 81, it is said: ‘And where a statute fixes the compensation of an officer in a particular locality upon a basis entirely different from that of all other persons' filling like offices in the State, it has been held not tó be a general law, but within the constitutional prohibition against special legislation.’ ” Smalley v. Bushmiaer, 181 Ark. 874, 31 S. W. 2d 292. ‘ ‘ The exclusion of a single county from the operation of the law makes it local, and it cannot be both a general and a local statute,” Webb v. Adams, 180 Ark. 713, 23 S. W. 2d 617.
Act 411 specifically provides that the deputy sheriff here, June Holder, not the sheriff, shall receive the salary of $100 per month. This salary money never passed through the sheriff’s hands but was paid direct to his deputy and the sheriff was not charged with these funds. The sheriff’s bond contained this provision: “. . . the condition of the above bond is such that if the said Billy Joe Holder shall well, and truly and faithfully discharge and perform the duties of his office, and at the expiration of his term shall render unto his successor in office a correct account of all sums of money, books, goods, valuables and other property as it comes into his custody as such Sheriff of Searcy County, Arkansas, and shall pay and deliver to his successor in office, or any other person authorized to receive the same, all balances, sums of money, books, goods, valuables,' and other property which shall be in his hands, and due by him, then the above obligation shall be null and void, else the same to remain in full force and virtue.” (Duly executed by principal and surety and recorded.)
As indicated, the trial court found, in the circumstances, June Holder liable; that Sheriff Holder was not liable to appellants for the $2,800 paid to his wife, June Holder; and, also that appellee bonding company was not liable as his bondsmen — and we agree. We find no breach of this bond by the sheriff which would place any liability on the bonding company. It is stipulated that Sheriff Holder’s bond was the only one on which the bonding company was a surety.
We next consider appellees’ points for reversal on their, cross-appeal. “1. Act 411 of 1953 is constitutional. 2. Inequitable to render judgment against June Holder. 3. The court erred in rejecting the position of June Holder that sbe was an employee, as distinguishéd from an officer of Searcy County. 4. Appellants right to prosecute this cause was barred by laches and unclean hands.” We do not agree to any of these contentions.
What we have said above applies with equal force to points 1 and 2 and disposes of each. Both are untenable. Point 3, we hold that June Holder in the circumstances was clearly an officer and not an employee. Our general statutes provide that a sheriff may appoint one or more deputy sheriffs, § 12-1105 Ark. Stats. 1947. The trial court clearly found, however, “. . . that the general laws of the State did not at the time here in question authorize payment of a deputy of any salary or compensation over and above the various fees and emoluments that the sheriff was entitled to draw prior to the enactment of Act 411 of the Acts of 1953.”
Bouvier’s Law Dictionary defines “deputy” as “one authorized by an officer to exercise the office or right which the officer possesses, for and in place of the latter ... In general, a deputy has power to do every act which his principal might do; but a deputy cannot appoint a deputy.” In a Texas case (State v. Brooks, 42 Texas Reports 63) in which a deputy sheriff was convicted of a crime of embezzling tax money which he had collected for the State of Texas in his capacity as deputy sheriff, and one defense was that he was not an officer, the Supreme Court of that state held that: “A deputy sheriff is an officer within the meaning of the law punishing embezzlement of public money.” We think the case of Revis v. Harris, 219 Ark. 586, 243 S. W. 2d 747, relied upon by appellees is distinguishable for there we held that the mayor when he performed services for the Municipal Water and Light Plant was acting as an employee and not as an officer and was entitled to the money that he had received as a laborer for the water and light plant on a quantum meruit basis. Here, as indicated, June Holder, was an officer and not an employee. Appellees’ fourth, contention we find to he wholly without merit.
Affirmed. | [
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J. SeaborN Holt, Associate Justice.
Appellant, John D. Moore, filed a claim with the Arkansas Work men’s Compensation Commission, against appellee, Long-Bell Lumber Company, Inc., for compensation benefits under our Workmen’s Compensation Law,— § 81-1301 — 81-1349, Ark. Stats. 1947, — for an injury received on December 7, 1953 while skidding logs. Long-Bell controverted the claim on the ground that Moore was not in its employ at the time of his injury.
On a hearing before a single commissioner, the claim was denied on a finding by the commissioner that Moore was not an employee of Long-Bell at the time of the injury. The full commission upheld the action of the single commissioner and on an appeal to the Polk Circuit Court that court affirmed the decision of the commission. Prom the judgment is this appeal.
For reversal appellant says: “It is Moore’s contention that he was an employee of Long-Bell when he was injured. It is Long-Bell’s contention that Moore was an employee of Harry Yaught, who it is contended was an independent contractor. If Harry Yaught is an independent contractor, then Moore cannot recover from Long-Bell, ... . ” The question presented, says appellant, then “is whether Vaught was an independent contractor, at the time of the injury.”
There appears to be little, if any, dispute as to material facts. The commission in its “Statement of the Case” said: “Claimant bases his contention upon the following: That on or about the 2nd day of October, 1953, Mr. Leon Hall, representative of the Long-Bell Lumber Company in the Mena, Arkansas, area, purchased a tract of timber from Mr. Logan Simpson and others; that a timber deed was given by Logan Simpson and others to the Long-Bell Lumber Company; that two checks were given by the Long-Bell Lumber Company, in the amount of $300.00 each, for the payment of said timber; that said timber deed was never recorded. Claimant further contends that Mr. Harry Yaught, who cut and removed the timber, did not have and was not an independent contractor during the removal of the timber, that Harry Yaught was an employee of the Long-Bell Company and that claimant was also an employee.
‘‘Respondent contends that Mr. Harry Vaught was an independent contractor; that it was his business to purchase tracts of timber, cut them, and deliver to various companies in the area; that'it is the general practice in the timber industry for a lumber company to finance the man who is cutting and delivering the logs. That in this particular case the tract of timber on the Simpson land was discovered respectively by Mr. Hall and Mr. Vaught. That Mr. Hall arranged with Mr. Vaught to purchase this tract of timber for $600.00. That the timber deed was issued to Long Bell Company merely as a security transaction, to secure the investment that they were making. That the records of the Company show that the $600.00 was charged to Harry Vaught. That as the timber was cut and brought into the yard of the Long-Bell Lumber Company, Vaught was given credit against the indebtedness for each load. That Mr. Vaught hired or contracted with Mr. Columbus Campbell to help in cutting and skidding the logs. That Mr. Campbell in turn hired claimant, John D. Moore, to help him.”
Following this statement is what appears to us to be a fair summation of the facts. “Mr. Logan Simpson testified that he made the timber deed out to Long-Bell Lumber Company; that Mr. Hall told him that Mr. Vaught was to get the timber. Mr. Simpson further testified that he supposed he would have held Long-Bell Lumber Company responsible for carrying out the terms of the timber deed.
“Mr. Harry Vaught testified that Mr. Leon Hall, representative of Long-Bell, told him about the Simpson tract of timber; that they went and looked at it together and that he took the deal with the understanding that he would make a profit if and after he had paid back the $600.00 to Long-Bell. That after he had paid back the $600.00 to .Long-Bell, he sold some of the timber to another lumber company. That at the time claimant was hurt he had paid back about $300.00 of the $600.00 purchase price, to Long-Bell. That he contracted with Mr. Campbell to.give him fifteen per cent of the value of the logs when sold for skidding the logs. That Mr. Campbell hired Mr. Moore, the claimant, to help him and that claimant was paid on a percentage by Mr. Campbell. That when the logs were bought by Mr. Delmer Fair, who testified that he was an independent buyer on the Long-Bell yards, they would deduct one-third or 35 per cent, which would be applied on the $600.00 debt. Mr. Vaught further testified that on one occasion Mr. Hall told him to go back and cut timber on a certain part of the tract, but that at all times he figured he was in charge of the whole operation.
“Mr. G-us Pollard testified that he hauled the timber on this particular job; that he was paid twenty or twenty-five per cent for this hauling. That he was paid most of the time by Mr. Delmer Fair when he delivered the logs; that he was not hired for any particular length of time and could have quit at any time. That he finally did quit the job when he could not make expenses out of it.
“Mr. Columbus Campbell testified that he went to work on the Simpson tract of timber after Mr. Harry Vaught came out to make the arrangements; that he was to get fifteen per cent for skidding the logs and posts; that he needed help to do the job and that he got John D. Moore, claimant, to help him; that he furnished the mules and feed and gave claimant Moore one-fourth of the fifteen per cent that he received. That he could have quit anytime he wanted to and that Mr. Vaught was the foreman of the woods. That he saw claimant get his leg broken on the job while working in the woods on the 7th day of December, 1953. That he quit work before the job was completed.
“Claimant, John D. Moore, testified that Columbus Campbell and Harry Vaught came and asked him to help with the skidding of the timber; that he was to get one-fourth of the fifteen per cent that Mr. Campbell received; that he averaged $25.00 per week working on this particular job. That while pulling a log with a mule the log flew back and hit his leg breaking it; that Mr. Vaught arranged to get him to the hospital in Mena, Arkansas, that he was treated there and was taken to the Veterans Administration Hospital in Little Rock, Arkansas, for treatment, when Mr. Harry Vanght came hack and told him there was no insurance. That he has been receiving treatment since the date of his accident and is still under the care of the Veterans Hospital. Said medical reports having been introduced as evidence into the record.
“Mr. L. 0. Moon, Manager of the Three States Lumber Company, at Mena, Arkansas, testified that he bought timber from Harry Vaught during the time that he was working on the Simpson tract of timber. That Mr. Vaught told him that Long-Bell did have an interest in the timber but that he had paid them off. That his company had advanced or put up money for Harry Vaught to work off a timber tract. That this is the normal practice in the lumber industry.
“Mr. Delmer Fair testified that he buys posts and poles; that he operates his business on the Long - Bell Lumber Company yard; that he buys poles and pays for them by his individual check and then when the pole is peeled he sells them to Long-Bell. That when he pays for timber or poles, he gives his personal check and he usually asks how they want the check made out; that he vrill make out the check to the different ones for the percentages they have in the work. That if he does not get a good grade on the poles ho would lose money; that if the poles burned they would be his responsibility until they are sold to Long-Boll. That he deducted the money owed to Long-Bell on the $600.00 debt and paid this over to the Company and then would pay Mr. Vaught for the timber. That on a number of occasions Mr. Vaught would ask him to make out the checks for the different percentages for skidding and hauling and that he would do this to accommodate Mr. Vaught. That he sells poles and posts to other companies other than Long-Bell; that he is not on the payroll of Long-Bell; that he uses his own money to buy poles.
“Mr. Leon Hall testified that he was the manager of the Long-Bell Lumber Company in Mena, Arkansas. That Mr. Harry Vaught is not an employee of the Company; that Columbus Campbell and claimant, John D. Moore, are not employees of the Company. That he heard that Mr. Simpson had a tract of timber for sale and that he knew Mr. Vaught was not employed and that he had loaned him money in past transactions. That he took Mr. Vaught out to see the tract of timber and told him he could cut this and pay back the $600.00 purchase price and make a profit. That he issued the drafts made payable to Logan Simpson for the tract of land, but on the face of the checks was noted, ‘Advanced to H. H. Vaught on timber.’ That it was necessary to show an advance to Mr. Vaught so that the home office could set up a charge to Vaught. That he had dealt with Mr. Vaught- before and that there was no written agreement on the loan. That the timber deed was taken for security reasons in view of the fact that no written agreement was made. That the Company considered the timber belonged to Mr. Vaught; that they would have held him responsible to pay back the $600.00, and that they have had this happen on other occasions. That he did not have anything to do with the way the timber was cut nor in a supervisory capacity. A ledger sheet was introduced in evidence showing the payments credited to Harry Vaught on the payment of the $600.00 advanced on the Simpson tract. That no social security, unemployment, insurance nor tax deductions were made on claimant or any other men working on the Simpson tract; that they were never paid by any checks drawn on the Long-Bell Lumber Company. That Long-Bell did not furnish any tools, equipment, trucks or any kind of equipment on the Simpson tract. That he did not specifically tell Harry Vaught what sizes to cut from the Simpson tract other than to furnish him with the type of material that the Company was buying at that time, and that this is the common practice to tell a producer. ’ ’
As indicated, on the above facts, the commission found that Moore was not an employee of Long-Bell at the time of his injury, but was an employee of. Vaught, an ind,ep'endent'contractor; '.Under our well established rule, since the enactment of our Workmen’s Compensation Law, we have consistently held that the findings of the commission are entitled to the same verity as would attach to a jury’s verdict and that the circuit court on appeal to it, and this court, must affirm if there is any substantial evidence to support the commission’s finding, and we think there was such substantial evidence shown here. See J. L. Williams & Sons v. Smith, 205 Ark. 604, 170 S. W. 2d 82; Baker v. Silaz, 205 Ark. 1069, 172 S. W. 2d 419; Hughes v. Tapley, 206 Ark. 739, 177 S. W. 2d 429; Fordyce Lumber Company v. Shelton, 206 Ark. 1134, 179 S. W. 2d 464.
In Wren v. D. F. Jones Const. Co., 210 Ark. 40, 194 S. W. 2d 896, we used this language: “Under our Workmen’s Compensation Law the Commission acts as a trier of the facts — i. e., a jury — in drawing the inferences and reaching the conclusions from the facts. We have repeatedly held that the finding of the Commission is entitled to the same force and effect as a jury verdict. In Ozan Lumber Co. v. Garner, 208 Ark. 645, 187 S. W. 2d 181, in affirming the finding of the Commission to the effect that the worker was an independent' contractor and not an employee, we said: ‘We are not concerned here with the preponderance of the testimony. After a careful review of the entire record,- we have reached the conclusion that there is substantial evidence presented to support the Commission’s finding that ap-pellee, at the time of his injury, was an independent contractor.’ ” See also Springdale Monument Co. v. Allen, 216 Ark. 426, 226 S. W. 2d 42.
It appears that no hard and fast rule may be laid down to determine whether a -workman is an employee or' an independent contractor. Each case must be determined on the' facts presented. “The most important test in determining whether a person employed to do certain work is an independent contractor or a mere servant is the control over the work which is reserved by the employer. Whether one is an independent contractor depends upon the extent to which he is, in fact, independent in performing the work. Broadly stated, if the contractor is under the control of the employer, he is a servant; if not nnder such control, he is an independent contractor.” 27 Am. Jur. 486.
The comparatively recent case of Lockeby v. Ozan Lumber Co., 219 Ark. 154, 242 S. W. 2d 115, appears to he directly in point. In this Lockeby Case, which presented a fact situation even stronger in favor of the appellant in that case, we held that the injured employee there, Lockeby, was not an employee of the Ozan Lumber Company when injured, but was employed by an independent contractor. We there said: “Under our decisions, such as Ozan Lumber Co. v. Garner, 208 Ark. 645, 187 S. W. 2d 181, the facts that we have narrated are sufficient to support the Commission’s conclusion that Lockeby was not an employee at the time of his accident. The distinction between an employee and an independent contractor has been well established by our decisions. With knowledge of those decisions the Legislature has not seen fit to broaden the coverage of the Act; instead the statutory definition of an employee has remained unchanged. When the original Act was repealed and a new statute adopted in 1948 the definition of an employee was reenacted verbatim. Ark. Stats. 1947, § 81-1302.
. “It is argued, however, that the lumber company’s method of operation after 1945 was merely a colorable arrangement to avoid liability for torts and workmen’s compensation. No doubt the company was motivated by a desire to reduce its liability in those respects, but that fact is not decisive of the issue. The real question is whether, under the new arrangement, the company actually retained that supervision and control that marks the contract as one of employment, regardless of its form. There is substantial testimony to sustain the Commission’s conclusion that such supervision and control were not retained by the company.”
We conclude, therefore, that there was substantial evidence to support the commission’s finding that Moore was not an employee of appellee when injured. Affirmed.
Justice Millwee and Justice RobiNsoN dissent. | [
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MiNor W. Millwee, Associate Justice.
Appellant, Yince Abbene, brought this suit to restrain appellees, Jay Cohen and wife, from closing an alleged alley or passageway along the rear of certain business properties which front on Main Street in the City of Pine Bluff, Arkansas. The appellant Abbene’s store building is known as 617 Main Street. Intervener, David White, is the lessee of A. B. Cooper who owns a building located at 615 Main Street but declined to join in the suit. Ab-bene and White asserted that they and the public generally had used the pasageway openly, continuously and adversely for many years and that such usage had ripened into a prescriptive right or easement over a portion of appellees’ Lot 20 feet wide and 118.89 feet long. Appellees answered with a general denial and alleged that any use made of their property by others had been sporadic, under specific arrangements with appellees and purely permissive.
In a decree dismissing appellants’ complaint and intervention the chancellor found there was a lack of intent on their part to hold adversely against appellees and that the use made of the premises by appellants and the public generally was permissive. The issue here is whether such findings are against the preponderance of the evidence. '
It is well settled by our cases that the owner of one lot may acquire an easement over the land of another by the open, notorious and adverse use thereof under a claim of right for a period of seven years. Bond v. Stanton, 182 Ark. 289, 31 S. W. 2d 409. But it is equally clear that a mere use, even though continued for the statutory period, does not ripen into a prescriptive right unless the circumstances are such as to put the owner of the servient estate on notice that the way is being used adversely under a claim of right. Clay v. Penzel, 79 Ark. 5, 94 S. W. 705; Barbee v. Carpenter, 223 Ark. 660, 267 S. W. 2d 768. Whether use of the passageway in question by appellants and the public was adverse or permissive is a question of fact; and the burden was upon appellants to show that such use was adverse to appellees and not under their permission. Brundidge v. O’Neal, 213 Ark. 213, 210 S. W. 2d 305.
Appellees’ lot is approximately 20 feet wide and in the shape of an inverted “L.” The vacant portion over which appellants claim an easement extends South from Sixth Avenne for 118.89 feet. From that point the lot extends at a right angle "West 160 feet to Main Street and a bnilding is located on this portion of the lot which appellees nse as a storage or warehouse for their appliance business located in the next block. Other business lots lying South of appellees’ lot fronting on Main Street also extend 160 feet but none of the buildings extended the full lot length until 1946 when the Chief Pontiac Company building adjacent to Abbene’s building on the South was extended East so as to eliminate the entrance to the passageway area from Seventh Avenue. The appellants and other business men in the block made no protest when this south entrance was closed.
Appellees acquired their lot in 1944 and they and their predecessors in title have for 12 or 15 years exacted a rental for the use of the vacant portion of their lot as a passageway from the owners of the Chief Pontiac Company and the Western Auto Store, which is located between the buildings of appellees and the appellants. Appellant Abbene’s building was constructed in 1919 by his father who operated a shoe repair shop in it until 1946 when appellant acquired the property and added a laundry and cleaning plant to the business. Ap-pellee, Jay Cohen, and Appellant Abbene have been close personal and business friends for many years.
Cohen testified that in 1946 he demanded rents from Abbene for use of the passageway but agreed to forego the rental charge because appellant was unable to make such payments and agreed to a limited use of the area. He also said he made a similar temporary agreement with Intervener White who later agreed to pay the rental but failed to do so. White admitted but Abbene denied that Cohen demanded the rentals, but both knew that other property owners in the area were paying for use of the passageway. Abbene also admitted that he never notified Cohen that he was claiming any right to use his land. A prospective purchaser of Abbene’s building testified that Abbene told him he had permission to go through, appellees’ property and that the purchaser could probably work out a similar arrangement.
Appellants and some of their employees testified that they and their customers had used the area in question in parking vehicles at the rear of their places of business for 12 or 15 years. There was also evidence of some use of the area for freight deliveries during this period but there was other proof that most such deliveries were made through the front entrances on Main Street. A partner in the transfer business stated that he had observed his trucks make freight deliveries through the passageway “at least a dozen times” since 1946. While some of the witnesses thought the area in question was an alley it was never platted or dedicated to the city as' such. At the conclusion of appellants ’ testimony they reduced their claim of an easement to “approximately 10 or 12 feet” instead of the entire 20-foot width of appellees’ lot.
In reaching the conclusion that such use as was made by the appellants and others of the passageway in question was permissive, and without the intent to hold adversely under a claim of right, the chancellor relied heavily on our decision in LeCroy v. Sigman, 209 Ark. 469, 191 S. W. 2d 461. There we upheld the trial court’s conclusion that the use of a passageway by those claiming an easement by prescription was permissive and not adverse where the physical facts and nature of occupancy and use of the disputed area were strikingly similar to that shown here. While the evidence in the instant case on this issue is in sharp dispute, there are several factors which lend greater strength to the position of appellees than that of the owners of the subservient estate in the LeCroy case. These are the close friendship of the parties, the closing of the South entrance to the passageway without protest in 1946, and the demand and collection of rentals for use of the area from other owners for 12 or 15 years. So we conclude that the chancellor’s findings are not against the preponderance of the evidence, and the decree is affirmed.
Chief Justice CarletoN Harris, disqualified and not participating. | [
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MiNOR W. Mill wee, Associate Justice.
On December 28, 1955, the appellant, Arkansas State Highway Commission, filed suit condemning 5.44 acres of land out of a 14.44-acre tract owned by appellees, Frank Gr. Carder and Frank O. Carder Jr., in Jacksonville, Arkansas. These lands along with others were condemned for the reconstruction and relocation of that part of TJ. S. Highway 67 in Pulaski County known as the North Little Rock — Jacksonville — Air Force Base Highway. A “Declaration of Taking” was filed January 16, 1956 for the “ controlled-access ” road. The issue of the amount of damages sustained by appellees for the taking of their lands was tried to a jury on December 11, 1956, resulting in a verdict and judgment for $31,500.
Appellant first contends the verdict is excessive in that there is no substantial evidence to support it because there is no fair or reasonable basis for the estimates and opinions of the witnesses for appellees concerning the amount of their damages. While the question of the sufficiency of the evidence is one of the law, it is also settled that in making such determination this court must consider the testimony in the light most favorable to appellees and indulge all reasonable inferences in favor of the judgment.
The evidence discloses that 6.95 acres of the tract owned by appellees is zoned for commercial use from which portion appellant took 4.32 acres. The remaining 7.49 acres is zoned for residential use and 1.12 acres were taken from this portion. The land taken will be used in the construction of an overpass and dump varying in height up to 15 feet and 3 inches and extending across the entire tract with a width or frontage of 449 feet along Main Street in the City of Jacksonville at the place of beginning and a width of 240 feet on the Northeast or point of leaving appellees’ property. After the taking of the 5.44 acres there remains an irregular shaped parcel of 1.17 acres zoned for com mercial use on the Bast and 7.83 acres on the West of which 6.37 acres is residential and 1.46 acres is commercial. A strip of about 2 acres on the West is burdened by a power line easement. While there was some evidence of plans for interchange or service roads along the limited access highway by appellees’ property, final approval of such plans had not been made at the time of trial.
Three real estate expert witnesses for appellees shown to be well qualified by background and experience estimated appellees damages in amounts varying from $43,000 to $71,500. Such estimates included the market value of the lands taken and damages to the remaining lands by reason of the taking and construction. These witnesses were of the opinion that said lands were strategically located for business use as a shopping area for the inhabitants of the rapidly growing City of Jacksonville and the Little Rock Air Force Base. Instances of sales of lands in another commercial area of the city which the witnesses regarded as comparable in value to the lands in question were given along with other factors bearing on market value.
The foregoing testimony was sharply disputed by the three experts presented by the appellant who estimated appellees’ total damages at $6,400 to $7,102. While admitting it was valuable as commercial property, they denied that the lands were suitable for shopping center development and did not regard it as comparable in value to land in a nearby shopping center area which sold for considerably more than was allowed ap-pellees in the instant case. In support of their estimates they cited sales of other properties during the last 2 or 3 years which they considered more nearly comparable in value to appellees’ lands. It was admitted that there has been a sharp increase in land values generally in the area during the past three years on account of the construction of the Little Rock Air Force Base.
In condemnation proceedings like this we have repeatedly held that the owner may be allowed to show every advantage that his property possesses, present and prospective, in order that the jury may satisfactorily determine what price it could he sold for on the market. Kansas City Southern Ry. Co. v. Boles, 88 Ark. 533, 115 S. W. 375. The credibility of the various witnesses who testified concerning the damages sustained by appellees was a matter for the determination of the jury, and it furnishes no ground for reversal that the verdict might appear to us to be contrary to the preponderance of the evidence. State Highway Commission v. Jelks, 203 Ark. 878, 159 S. W. 2d 465. Also in cases of this kind the jurors are accorded great latitude in considering testimony as to damages and their verdict will be set aside as excessive only when it is not supported by proof, or when it is so excessive as to indicate passion, prejudice or an incorrect appreciation of the law applicable to the case. Texas & St. Louis Ry. Co. v. Eddy, 42 Ark. 527. Tested by this rule, the amount awarded in this case is certainly liberal but we cannot say the verdict is unsupported by substantial evidence or that it is so excessive as to call for a reversal or modification of the judgment.
The only other contention for reversal is that the trial court abused its discretion in refusing to allow the jury to view the lands in question. When appellant renewed its motion that the jury be permitted to view the property at the conclusion of all the testimony, and after counsel for appellees stated his reasons for believing that no useful purpose would be served thereby, the trial court ruled as follows:
“THE COURT: As explained to you gentlemen last evening, the usual policy of the Court, the customary rule followed is to inquire of the jury as to whether or not they would like to go and view the property and in this case I am going to ask the jury if they feel that a view of the property would add to the information which has been supplied to the members of the jury as to whether or not they would like to go and view the property. Let’s see a raising of the hands of the jury who feel that it is not necessary for them or who feel that they do not care to go and view the property. (A unanimous showing of hands was indicated by the jury.) Gentlemen, it seems to the Court the great number of exhibits here, we have pictures of the property, I think a pretty clear picture of the situation out there has been presented, the type of lands and its location and all has been given the jury and jury has indicated that it feels that it does not care to view the lands, so the motion will be denied and you may note your exceptions. ’ ’
While it is conceded that it was within the trial court’s discretion to allow a jury view of the property under out statute , appellant argues that the court failed to comply with it and allowed the jurors to determine for themselves whether they should view the lands. It is true that the exercise of the authority or power to allow a jury view rests in the judgment and discretion of the court and not the jury under the statute. Bridgman v. Baxter County, 202 Ark. 15, 148 S. W. 2d 673. A view is not a matter of right, but rests in the sound discretion of the trial judge as to whether it is proper to enable the jury to obtain a clearer understanding of the issues or make a proper application of the evidence. When the court’s ruling on the question is considered in connection with the numerous maps, plats, photographs and other descriptive items of evidence adduced, we cannot agree that the court abdicated its power and authority or abused its discretion in refusing the jury view of the property.
Affirmed.
Ark. Stats., Sec. 27-1731, reads: “Whenever, in the opinion of the court, it is proper for the jury to have a view of real property which is the subject of litigation, or of the place in which any material fact occurred, it may order them to be conducted in a body, under the charge of an officer, to the place, which shall he shown to them by some person appointed by the court for that purpose. While the jury are thus absent, no person other than the person so appointed shall speak to them on any subject connected with the trial.” | [
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George Rose Smith, J.
This is a suit brought by E. E. Burgess to foreclose two mortgages upon land owned by the appellant. The principal defense is a plea of usury. The chancellor rejected this plea, fixed the amount of the indebtedness at $13,050.30, and entered a decree of foreclosure. Burgess died during the penden-cy of the appeal, and the cause has been revived in the name of his executor.
The debt sued upon represents money and supplies advanced by Burgess over a period of years for the cultivation of land being farmed by the appellant and her husband. The account goes back to the fall of 1946 and was at first secured by the yearly execution of a chattel mortgage on the crop. In March of 1951 the debt exceeded the estimated value of the crop for that year, and the debtors executed the first of the two real estate mortgages in issue. It secures a note for $4,000, with interest at 10 per cent per annum. On January 1, 1953, the Brookses executed the other mortgage sued upon, to secure a note for $6,588.47. This note recites an interest rate of 10 per cent, though it is described in the mortgage as bearing only 8 per cent before maturity and 10 per cent thereafter. It does not appear that either note was meant to represent the exact amount then owed. The lender’s son, Marvin Burgess, testified that the $4,000 mortgage was given “to cover a part of what they owed at that time.” It is not clear whether the second mortgage was a renewal of the first, nor is it shown how the principal amount of $6,588.47 was determined.
Each note recites the maximum legal rate of interest and is not ostensibly usurious. Before the suit was filed, however, the appellant requested and was given a statement of the account. This statement covers the years 1946 through 1954, contains some 640 items of debit and credit, and must have been prepared from the lender’s records. It discloses that the lender invariably calculated the interest on September 1 of each year and simply entered an interest charge amounting to 10 per cent of the sum then owed, regardless of when the advances had been made. In the first year, for example, a total of $3,389.99 was advanced from time to time between October 25, 1946, and September 1, 1947. On the latter date an interest charge of exactly 10 per cent, amounting to $338.99, was entered. Needless to say, this method of computing interest is usurious.
In view of the lender’s itemized statement the appellant’s attorney raised the question of usury before the suit was' filed. Burgess then offered to delete the illegal charges and later brought suit for the amount of the principal only, though the complaint was subsequently amended to ask for interest in accordance with the terms of the mortgages. At the trial Marvin Burgess testified that he kept his father’s books and followed “a practice of ours for years” in making the 10 per cent interest charge every September. This is from his testimony:
“A. I charged interest the first of each September.
‘ ‘ Q. How much interest did yon charge ?
“A. Ten per cent.
“Q. Suppose a man obtained $100.00 on the first of August, how much interest would you charge on that item the first of September?
“A. Ten per cent.
“Q. Even though he had it only one month?
“A. That is right. I charged 10 per cent on the dollar the first of September, regardless of wrhen he got it. ’ ’
In attempting to excuse his practice the witness stated that he had no training in accounting, that he was under the impression that he was charging the interest rate prescribed by the mortgages, and that he offered to correct the account when he learned that his charges were unlawful. It is now argued that the lender merely made a mistake of fact in the calculation of interest. Since suit was not actually brought on the usurious account it is contended that the mortgages should be enforced according to their terms.
We do not find this reasoning impressive. It is immaterial that the debtors did not participate in the unlawful computations. “It is not necessary for both parties to intend that an unlawful rate of interest shall be charged, but if the lender alone charges or receives more than is lawful, the contract is void.” Wilson v. Whitworth, 197 Ark. 675, 125 S. W. 2d 112. Here the lender made excessive interest charges for more than eight years — from the inception of the account in 1946 to the submission of the itemized demand in 1955. It is plain enough that the notes, despite their failure to state the exact sum owed, were based upon a calculation embodying usurious interest. It is impossible to ascertain the sum due by merely examining the notes and mortgages; the lender’s records must be consulted before the correct balance can be determined. That the suit was brought only for interest at the legal rate amounts in substance to no more than an effort to remit the excess, which cannot validate the contract. Habach v. Johnson, 132 Ark. 374, 201 S. W. 286.
Nor is this a situation that permits a finding of excusable mistake. We have often recognized that a lender who attempts to compute his charges according to law is not to be penalized for an inadvertent mathematical error or for a true mistake of fact, such as the inclusion of an incorrect charge for insurance. Garvin v. Linton, 62 Ark. 370, 35 S. W. 430, 37 S. W. 569; Cox v. Darragh Co., 227 Ark. 399, 299 S. W. 2d 193; Griffin v. Murdock Acceptance Corp., 227 Ark. 1018, 303 S. W. 2d 242. That is not the case before us. Here the lender made no effort to compute the interest at the legal rate, nor was there a mathematical error in his calculations. At the most Burgess made a mistake of law, that of thinking that his method of charging interest was lawful. If the usury laws are to mean anything at all it is plain enough that those who engage in the business of lending money must at their peril familiarize themselves with those laws. Otherwise there is nothing to prevent every lender from habitually collecting excessive interest charges, as long as he purges the account of usury when it becomes necessary to go into court.
Reversed and remanded for the entry of a decree canceling the notes' and mortgages.
Harris, 0. J., disqualified and not participating. | [
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George Rose Smith, J.
This dispute centers upon the question of whether the appellant attorneys, Tom Gentry and Thorp Thomas, are entitled to act as coun sel for tiie appellee administrator in an action for the wrongful death of Billy Warren Brod. The probate court, by the order now under review, approved the administrator’s employment of three other attorneys, Kenneth Coffelt, Ben McCray, and Fred Briner, and enjoined the appellants from acting further in the suit for wrongful death.
Billy Warren Brod, aged nineteen, was killed in a traffic collision on October 8, 1956. On October 15 the probate court appointed the decedent’s father, M. L. Brod, as administrator of the estate and approved a contract by which Brod employed G-entry and Thomas to bring the action for wrongful death.
Three days later the decedent’s nineteen-year-old widow, Linda Brod, filed a petition protesting the earlier appointment, which had been made without notice to her, and asserting her preferred right to nominate the personal representative. After a hearing on October 29 the court set aside its original order and appointed the widow’s nominee, Gordon Richardson, as administrator of the estate. On appeal we sustained the widow’s position in the matter and affirmed the order naming Richardson as personal representative. Brod v. Brod, 227 Ark. 723, 301 S. W. 2d 448.
A week after our decision on the first appeal Richardson, without notice to these appellants, presented to the probate court a motion asserting that two actions for wrongful death were pending in the circuit court — one brought by Gentry and Thomas and the other brought by the three attorneys whom Richardson had employed on the day of his appointment. In his motion Richardson asked that his contract with Coffelt, McCray, and Briner be approved, that he be authorized to dismiss the suit filed by Gentry and Thomas, and that the latter attorneys be prohibited from taking any further action for the administrator or for the estate. On the presentation of this motion the probate court entered an order granting the relief asked.
The appellants, in insisting upon the continuing validity of their contract with the original administrator, rely upon that section of the Probate Code which provides that the removal of a personal representative does not invalidate his prior official acts. Ark. Stats. 1947, § 62-2203. The appellee contends in tnrn that the appointment of M. L. Brod was void and conld not be the basis for a contract binding the estate.
We need not explore the merits of these contentions, for we are met at the ontset by the fact that an administrator in succession undoubtedly has the power to substitute attorneys of his own choice for those already engaged. It is a fundamental characteristic of the attorney-client relation that the client always has the right to control the litigation and the consequent power to discharge the attorney, with or without cause. Johnson v. Mo. Pac. R. Co., 149 Ark. 418, 233 S. W. 699. This principle should apply, and has in fact been applied, when the client happens to be the personal representative of an estate. In re Montgomery’s Estate, 272 N. Y. 323, 6 N. E. 2d 40; In re Dix’ Estate, 144 Misc. 494, 259 N. Y. S. 449. Hence it is clear enough that the contract between Brod and the appellants did hot confer upon these attorneys a vested right to carry the proposed litigation to its conclusion.
It is also asserted that the appellants were deprived of a property right without due process of law, in that their contract of employment was terminated without notice to them or an opportunity for them to be heard. This contention raises what is really a twofold issue, which must be considered in its separate aspects. By its language the court’s order is purely prospective in operation, restraining the appellants from taking further action as counsel for the estate. In this aspect the order, although entered without notice, does not involve a denial of due process. The administrator, as we have seen, had the power to discharge these lawyers, despite their protest. It may be doubted whether the probate court’s approval was essential to the exercise of that power. See In re Dix’ Estate, supra, and Ark. Stats., § 62-2208, with the appended Committee Comment. But in any event the appellants are not in a position to complain without first showing that the want of notice prevented them from asserting a defense to the court’s action. That showing has not been made.
On the other hand the court’s order, although it does not purport to touch this subject, might be relied upon as a bar to the appellants’ right to contend that a valid contract of employment had been wrongfully breached by the appellee. Upon this aspect of the case we agree that the appellants would be denied due process if the order were construed to deprive them of their rights without notice and without an opportunity for the assertion of their claim.
We therefore affirm the court’s order, in its prospective aspect, without prejudice to any claim for compensation or for damages that the appellants may think it proper to assert. Such a claim has not yet been presented, nor could it be decided on the record before us. The contract by which Brod employed the appellants is not in evidence; we know nothing of its terms. If that agreement should be found to be valid and to have been wrongfully breached, a question might arise whether the appellants’ damages should be measured by the value of their past services or by the net loss resulting from the breach. See Berry v. Nichols, 227 Ark. 297, 298 S. W. 2d 40. In this record there is no proof touching even remotely upon these issues, which are accordingly left open for future decision.
Affirmed.
Harris, C. J., and Ward and Robihson, JJ., dissent. | [
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Sam Robinson, Associate Justice.
In June, 1954, the appellant, State National Life Insurance Company, sold to Clara E. Stamper a policy covering hospital and other expenses growing out of sickness or an accident. It is stipulated that if appellee is entitled to recover under the terms of the policy it is in the sum of $222. The cause was tried before the court sitting as a jury, and from a judgment in favor of the policyholder the insurance company has appealed.
The applicable provision of the policy is as follows: “State National Life Insurance Company . . . hereby insures the person named as Insured . . . and . . . promises to pay the Insured toward the expense actually incurred by the Insured . . . necessitated by . . . (b) sickness suffered while this policy is in force, the cause of which sickness originates after thirty days from the effective date of this policy . . .” The appellant contends that the cause of the insured’s dis ability originated prior to thirty days following the effective date of the policy.
In July, 1955, a little over a year after Mrs. Stamper purchased the policy of insurance, she began to suffer pain in her neck and shoulders. At first she thought it was caused by her teeth, and had her teeth pulled, but this did not give relief. During most of her life she had a small bony growth or knot on the back of her head. Prior to July, 1955, she had suffered no ill effects whatever from this growth, but in August, 1955, it was determined that the bony growth had increased in size to the point where it was causing the pain suffered by Mrs. Stamper. According to the undisputed evidence the bony growth had not caused any trouble whatever until more than a year after the issuance of the policy of insurance, and it is apparent from the evidence that if this growth actually did cause Mrs. Stamper’s trouble it, did so because of increase in size subsequent to the time the policy was issued.
In Home Life Ins. Co. v. Allison, 179 Ark. 65, 68, 14 S. W. 2d 229, in holding that the insured was entitled to recover for disability due to sleeping sickness, although the cause of such sleeping sickness was an attack of flu occurring prior to the effective date of the policy, the Court said: “Certainly the parties did not contract with reference to latent germs or seeds of disease or illness existing in the body prior to the delivery of the policy.” There is an annotation on the subject in 53 A. L. R. 2d 687, and the weight of authority is that the sickness should be deemed to have had its inception at the time it first manifested itself or became active, or when sufficient symptoms existed to allow a reasonably accurate diagnosis of the case, so that recovery can be had, even though the disease, germs or infection was present in the body prior to the excluded time, if the condition was latent, inactive, and perhaps not discovered. In the case at bar it appears conclusive that Mrs. Stamper did not have any condition causing disability which manifested itself within thirty days from the effective date of the policy.
An attorney’s fee in tire sum of $100 was allowed by the trial court, and appellee asks that an additional fee be allowed for the appeal. We think the request should be granted in this case, and $100 additional is allowed.
Affirmed. | [
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Paul Ward, Associate Justice.
This litigation is over the title to a parcel of land, 50 feet by 150 feet, on which is located a combination cafe and dwelling.
This laud was purchased by appellee and Nivia H. Walker (his then wife) in 1945 as an estate by the entirety. On September 30, 1947, Nivia H. Walker secured a divorce from appellee on the ground of desertion. Service on appellee was obtained by warning order, and appellee had no personal knowledge, at the time, of the divorce proceedings.
Incidental to the divorce decree the court ordered the estate by the entirety dissolved, and ordered appellee’s one-half sold to satisfy an award it had made to Nivia against appellee. At the sale Nivia became the purchaser, and in this manner, became (as she considered) the fee simple owner of the entire interest in the land in controversy.
Nivia at once went into possession of the property and continued in possession until her death on February 28, 1954. Thereafter her heirs, the appellants, continued in charge and possession of the property (paying taxes, as Nivia had also done) until August 26, 1955.
On the last mentioned date appellee brought a suit against appellants in which he asked the court to declare null and void the purported dissolution and sale of the estate by the entirety, to invest him with a fee simple title in said lands, and to order an accounting of all rentals received from the property. The trial court, after a full hearing, held with appellee on all points, after making the following pertinent findings of facts: (a) “No attachment was ever made upon the land in the said divorce action, . . (b) “. . . Raymond Walker first learned of the entry of a decree of divorce in favor of Nivia Walker in 1949”; and (c) “No property settlement agreement was ever entered into between the plaintiff (appellee) and Nivia Walker and . . . there was no agreement whereby Nivia Walker was to receive a deed from plaintiff (appellee) to the property in question. ’ ’
Although there are some phases of this case which enlist our sympathies in behalf of appellant, we must say that the testimony supports the findings of the Chancellor.
There are suggested to us only four possible grounds on which to base a reversal of the decree of the trial court, viz., (1) The Chancery Court, in the divorce action, had authority to dissolve the estate by the entirety; (2) The Chancery Court, in the divorce action, had a right to find there was a property settlement whereby appellee gave his wife the property in question; (3) The Chancery Court, in the divorce action, had a right to sell appellee’s interest in the land to satisfy the judgment against him; and (4) Appellants acquired title to the property by adverse possession. These will he discussed in the order mentioned.
1. Appellee and his wife acquired title (by the entirety) in 1945, hut it was not until 1947 (by Act 340) that the Chancery Courts were given the power to dissolve such an estate. Jenkins v. Jenkins, 219 Ark. 219, 242 S. W. 2d 124, 27 A. L. R. 2d 861, held that said Act 340 was not retroactive. Therefore the 1947 decree dissolving the estate by the entirety was a nullity, and is no bar to appellee in this collateral attack. McDonald v. Fort Smith & Western Railroad Co., 105 Ark. 5, 150 S. W. 135, and Laflin v. Drake, 218 Ark. 218, 237 S. W. 2d 32.
2. Appellant’s proof falls far short of showing Mrs. Walker acquired the interest of appellee by a property settlement. In fact, in her divorce action, Mrs. Walker made no such claim and the Chancellor, in attempting to dissolve the estate by the entirety, made no mention of such. In this record there is nothing which would have justified the Chancellor, in this case, in holding contrary to the above. On the other hand, he made the positive finding “that no property settlement agreement was ever entered into between” appellee and his wife. This finding is amply supported by the testimony. Moreover, the only settlement that is even suggested by the testimony is oral, and that would not have divested appellee of his title nor would it have invested the court with jurisdiction to do so.
3. Little need be said about the sale of appellee’s property/in the divorce proceeding, to satisfy a judgment obtained against him on a warning order. As shown by the return of the attorney ad litem, appellee was not personally served and had no personal knowledge of the divorce proceeding. The record affirmatively shows that no attachment was issued against appellee either before or after the divorce suit was filed. Therefore the personal judgment rendered against appellee and the sale based thereon were null and void.
4. The Chancellor was correct in holding that appellants had not acquired the property by adverse possession.
This suit was filed by appellee on August 26, 1955. So, before appellants could prevail, on this ground, they would have to show adverse possession since, at least, August 26, 1948. It is not disputed that appellants (and Mrs. Walker before her death in 1954) were in actual possession of the property for more than 7 years but they have failed, as found by the Chancellor, to show their possession was adverse.
It is not seriously contended appellee had actual knowledge that appellants were holding adversely for 7 years. The Chancellor found as a matter of fact that appellee did not even know of the divorce until some time in 1949 (less than 7 years before this suit was filed). The finding is fully sustained by the testimony. It should be noted also that knowledge of the divorce in no way implies knowledge of adverse possession of the land involved.
Moreover, the testimony fails to show such character of possession by appellants as was reasonably calculated to bring home to appellee the knowledge that they were holding adversely to his interest in the land, and certainly this was true during the lifetime of his former wife who lived till 1954 (only one year and a half before this suit was filed). During Mrs. Walker’s lifetime she had the same right to occupy the property that appellee had since they were owners by the entirety. The occupancy of one could not be considered adverse to the title of the other in the absence of proof of some special incidents of occupancy reasonably calculated to so inform the other. There is no proof of such incidents in this record. The very most shown by the proof here is that appellee left his wife and permitted her to live on the property. We have frequently and consistently held that, “where entry upon land is permissive, the statute will not begin to run against the legal owner until an adverse holding is declared and notice of such change is brought to the knowledge of the owner.” (Quotation from Harp v. Christian, 215 Ark. 833, 223 S. W. 2d 778.) See also Bailey, Trustee v. Martin, 218 Ark. 513, 237 S. W. 2d 16.
Appellants rely heavily on the decision in Bride v. Walker, 206 Ark. 498, 176 S. W. 2d 148, but certain distinguishing facts make it inapplicable here. In the cited case an estate by the entirety was not involved. Also the husband knew his divorced wife had been occupying the land for 10 years, and the court said “He must have known that she was not occupying this land as his wife, and that, since she had obtained a divorce from bim, her possession was adverse to him.” The facts mentioned in the Bride case are not present in the case under consideration.
Affirmed.
Holt, J., not participating.
Rehearing denied November 25, 1957; Millwee and Robinson, JJ., think the petition for rehearing should be granted. | [
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G-eorgb Rose Smith, J.
In 1951 the various owners of the Metzger Building in Little Rock conveyed the property to a trustee, who was to manage the building during the ten-year term of the trust, collect the rentals, and make quarterly distributions of the net income. Lulu Upton, the appellant’s testatrix, owned an undivided .11317 interest in the building and joined the other owners in the creation of the trust. Mrs. Upton died March 13, 1956, and by her will devised a life estate in her undivided interest to her husband, Harry Upton, who died a few months later, on July 21, 1956.
For the first three months of 1956, during which Mrs. Upton’s death occurred, the net income accruing from her interest in the trust amounted to $1,395.57. This money was paid by the trustee to the appellant, as administrator, and was inventoried as an asset of the estate. In 1957 the appellee, as executrix of Harry Up.ton’s will, filed a petition asking that this money he distributed to the Harry Upton estate and that it also receive its proportionate part of a reserve fund that had been built up by the trustee. The probate court granted the petition with respect to the first item and postponed consideration of the appellee’s claim to the reserve fund. An appeal and cross-appeal have brought both issues to this court.
On the first point the language of Mrs. Upton’s will must be considered. That instrument, after reciting the testatrix’s undivided interest in the Metzger Building, continues with these two paragraphs:
"Fourth: I give, devise and bequeath unto my said husband, Harry A. Upton, a life estate in and to all my said undivided interest, and in and to all of the rents, issues and profits which may accrue from the said undivided interest I own in the said George A. Metzger Building;
"Fifth: It is my intent and purpose, in giving to my said husband, Harry A. Upton, all of the income accruing from the rents, issues and profits from my said undivided interest in the said George A. Metzger Building, that the same shall be paid to him during his natural life, so long as he shall live, and so long as the said George A. Metzger Building is not sold or partitioned by the present owners.”
We are unable to agree with the trial court’s conclusion that these paragraphs of the will had the effect of bequeathing to the surviving husband the entire net income for the first three months of 1956, most of this income having already accrued before Mrs. Upton’s death on March 13. A will is ordinarily construed to speak as of the death of the testator, Weeks v. Weeks, 211 Ark. 132, 199 S. W. 2d 955, and as a general rule the beneficiary of a testamentary trust is entitled to the income only from the date of the testator’s death. Best., Trusts, § 234. Here the language of the will is not contrary to these principles, for the testatrix refers to the income which ‘ ‘ may accrue ’ ’ from the building. This reference is plainly prospective and rebuts the suggestion that the testatrix had in mind income .that had already accrued.
On this phase of the case the cause will be remanded with instructions that the trial court determine the amount of income that accrued from March 13 to March 31 and award that amount to the Harry Upton estate. In making this determination the court will apply the familiar common law rule that rent is not regarded as accruing from day to day, like interest; it is considered to accrue in its entirety on the day that the payment is due. Tiffany-on Real Property (3d Ed.), § 888; Thompson on Real Property (Perm. Ed.), § 286; Rest., Trusts, § 235. (As far as this case is concerned, this rule is not changed by Ark. Stats. 1947, § 50-501, which is applicable only when the lease is executed by a life tenant. Mrs. Upton owned her undivided interest in fee.) Consequently the Lulu Upton estate is entitled to retain all rents that were payable on or before March 13, while the Harry Upton estate is entitled to those that were due after that date.
Although the probate court did not pass upon the ap-pellee’s claim to a proportionate part of the trustee’s reserve fund, both parties have submitted this issue for our decision on this record. The trust instrument executed in 1951 conveyed the property to the trustee and also named an Advisory Committee of three persons. With respect to the reserve fund the instrument provides : ‘ ‘ The Trustee will accumulate and maintain a reserve for emergencies in such amount as may be fixed by the Advisory Committee.” It is also directed that the quarterly distributions be made after the deduction of expenses and amounts held for the reserve. This fund, Avhich seems to have been intended to take care of major repairs and of damage resulting from unforeseen casualty, amounted to almost $13,000 at the date of Harry Upton’s death. The appellee contends that Upton’s estate is entitled to a distribution of its part of this fund.
This contention is not well taken. Even when the terms of the trust do not expressly authorize the aceu- mulation of reserves the trustee is nevertheless empowered to create reasonable reserves, “and he can properly withhold enough of the income to meet present or future expenses which are properly chargeable to income.” Rest., Trusts, § 233, Comment e. Here the trustee’s authority is not open to doubt, for the settlors of the trust affirmatively commanded that the reserve fund be created and be withheld from the distributions of income. Mrs. Upton joined in the execution of the trust instrument and of course could not have revoked it, as she reserved no individual power of revocation. Rest., Trusts, § 330. Hence she could not herself have demanded a distribution of the reserve fund during the life of the trust, and the beneficiary of her will stands in no better position. The bequest of the income to Harry Upton must be taken to refer only to the net income, after the deduction of expenses and subject to the preservation of the reserve fund created by the settlors of the trust.
Reversed and remanded for further proceedings. | [
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MiNOR W. Mill wee, Associate Justice.
Appellant, Wayne Hurst, had been operating a school bus for ap-pellee, Flippin School District No. 26, for three years prior to June 19, 1956, when they executed a written contract for the ensuing 1956-1957 term on a form prescribed by the State Department of Education. It was the same form they had previously used and provided that appellant should drive appellee’s school bus in delivering children to and from school for $5.00 per day during the nine school months, beginning September 3, 1956, “over a route beginning at a point known as Oak Grove Bus Route and making stops as named on attached sheet and made a part hereof, taking on and letting off at each stop children designated by first party (district), on attached sheet. (Such schedule may be changed as necessity demands).” The Oak Grove Route began in the Oak Grove community where appellant resided and terminated at the school in Flippin, Arkansas. Under Section 7 of the contract appellant agreed to follow the instructions of the school principal “as to schedule, detours, or regulations governing the system of transportation.” Under Section 10 the appellee district reserved “the right to change the routing of any bus, not exceeding one mile, without extra compensation. ’ ’
A day or two after the beginning of school on September 3,1956, it was determined that the bus on another of the five routes of the district was overloaded. Ap-pellee decided to add 4 miles of this route to the one driven by appellant, which had less than a normal load, in order to properly apportion the number of pupils to the various buses and routes in accordance with departmental safety regulations. A controversy arose between the parties which resulted in appellant’s refusal to continue driving the revised route on September 13, 1956. He brought this action on June 17, 1957, seeking $1,000 damages allegedly resulting from a breach of the employment contract and his wrongful discharge by appellee. Appellee filed a general demurrer to the complaint and an answer which contained a general denial and asserted that appellant’s own misconduct and breach of the employment contract rendered its completion impossible. At the beginning of the trial before the court without a jury appellant accepted $44.10 tendered by appellee as payment for the 8 days he actually drove the bus in 1956.
This appeal is from a judgment for appellee based upon extensive findings to the effect that the written instrument constituted a valid and binding contract; that the proviso that a sheet be attached designating the bus stops did not constitute a material part of the contract and the failure to comply with it did not make the contract incomplete; that under Section 10 appellee had the right to make the four mile extension of appellant’s bus route by the payment of extra compensation; that appellee recognized its obligation to make such payment and was willing and able to do so, hut that appellant wrongfully refused to continue driving the bus before the parties had an opportunity to negotiate or reach the usual agreement concerning the amount of such extra compensation; that it could not he said from the testimony that appellee refused to pay additional compensation or that the amount thereof could not have been agreed upon had sufficient opportunity been given for a discussion of the matter; and that appellee did not discharge appellant without cause, nor in any manner breach the contract.
It is first contended by appellee that the trial court erred in refusing to hold that the writing relied upon did not rise to the dignity of a contract because: (1) It was never completed by attaching the route sheet as stipulated; and (2) it contained no formula for determining the additional compensation provided when a route was extended more than a mile. Appellant just as vigorously argues that the writing in plain and unambiguous language precluded the appellee from adding more than one mile to the Oak Grove Bus Route under any circumstances; and that the court’s holding that such right was implied from the language of Section 10 is contrary to the law of contracts in that it purports to obligate the parties to make an agreement other than the one they actually executed. There would perhaps be much merit in either of these contentions if the instrument in question is construed without regard to the construction the parties themselves had placed upon it, and identical writings, over a period of several years. It must be conceded that the meaning of Section 10 of the contract is indefinite and ambiguous as to appellee’s right to add more than a mile to a bus route and the method of determining the amount of extra compensation to be paid. We agree with the trial court’s finding that the right to add more than a mile to a route is implied from the language of the section, but the exact meaning is nevertheless doubtful.
It is well settled by our decisions that, in construing a contract the meaning of which is doubtful, the construction placed thereon by the parties to it, as reflected by their words and acts, must be given consideration. See cases cited in Lutterloh v. Patterson, 211 Ark. 814, 202 S. W. 2d 767, where we approved this statement from 12 Am. Jur. 787: “In the determination of the meaning of an indefinite or ambiguous contract, the interpretation placed upon the contract by the parties themselves is to be considered by the court and is entitled to great, if not controlling, influence in ascertaining their understanding of its terms.” We have also repeatedly approved the following rule in 6 E. C. L. 853 as set out in Temple Cotton Oil Co. v. So. Cotton Oil Co., 176 Ark. 601, 3 S. W. 2d 673: “In fact, where, from the terms of the contract, or the language employed, a question of doubtful construction arises, and it appears that the parties ‘ themselves have practically interpreted their contract, the courts will generally follow that practical construction. It is to be assumed that parties to a contract know best what was meant by its terms, and are the least liable to be mistaken as to its intention; that each party is alert to protect his own interests and to insist on his rights, and that whatever is done by the parties during the period of the performance of the contract is done under its terms as they understood and intended it should be. Parties are far less liable to have been mistaken as to the meaning of their contract during the period while harmonious and practical construction reflects that intention, than they are when subsequent differences have impelled them to resort to law, and one of them then seeks a construction at variance with the practical construction they have placed upon it of what was intended by its provisions. It has even been said that the practical construction of the ambiguous terms of a contract will be adopted, although the.language used may-more strongly suggest another construction.”
Another familiar rule is that where a jury is waived and the case tried before the judge sitting as a jury, his finding on a question of fact is as conclusive on appeal as a jury verdict and will not be disturbed, if there is any substantial evidence to support it. We must also give the evidence adduced on behalf of appellee the strongest force that it will reasonably bear in determining whether there is substantial evidence to support the judgment. Wallis v. Stubblefield, 216 Ark. 119, 225 S. W. 2d 322.
Under the undisputed testimony the parties waived performance of the provision relative to the attachment of a route sheet to the employment contract designating bus stops for the very practical reason that there was no way to determine in June what the schedule of stops might be in the following September.
There is also substantial evidence to support the conclusion that the parties themselves construed the ambiguous Section 10 as authorizing appellee to extend appellant’s bus route more than a mile by the payment of extra compensation. For several years, and under the identical contract, it had been a common practice, acquiesced in by the various drivers, to make such extensions and changes in routes by the payment of extra compensation fixed by negotiations between the driver affected and the board of directors of the district. In this connection it was shown that immediately prior to the change ordered by appellee in September, 1956, the appellant was driving a 48-passenger bus carrying 35 children while the driver on the Bull Shoals Boute was transporting 65 children in a 48-passenger bus in violation of departmental safety regulations. By addition of the four miles to appellant’s route the passenger, load was equalized and appellant was only required to drive 41.4 miles per day which was still 2.5 miles below the average of 43.9 miles for all the drivers. There is also persuasive evidence to the effect that appellant refused to drive tlie extended route, or to enter into any negotiations with the board of directors relative thereto, because the change required him to begin work 20 minutes earlier and to devote less time to his rather extensive farming operations; and not because of any possibility that he and the appellee might not reach an agreement on the amount of extra compensation to be paid. It is also clear that he studiously avoided any negotiations with the directors as to the amount of extra compensation to be paid, although he testified, on cross-examination, that he had never denied appellee’s right to make the 4-mile extension in question.
"When the instant contract is construed in the light of the interpretation given it by the parties themselves, as reflected by their acts and declarations, we are convinced the trial court correctly construed it; and that the evidence is substantial and sufficient to sustain the conclusion that appellee did not discharge appellant without cause or otherwise breach the employment contract.
~We agree that appellee’s supplemental abstract of the testimony was necessary and proper under rule 9, and the clerk will be directed to fix the brief costs in an amount sufficient to compensate for appellant’s noncompliance with the rule in this respect.
The judgment is affirmed.
George Rose Smith and RobiNsoN, JJ., dissent. | [
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Sam RobiNSON, Associate Justice.
This action was filed by the Arkansas State Highway Commission to condemn for highway purposes certain lands situated in Pulaski County. A fraction over 59 acres were taken from the appellees. The appellees filed an answer alleging that the 59 acres were part of a 3,000 acre tract; that the value of the land taken was $24,000; and that they had suffered damages in the sum of $50,000 by reason of a severance of the property. Later an amended answer was filed in which damages of $200,000 were alleged. There was a jury verdict in the sum of $100,-000. On appeal the Highway Commission contends that the verdict is excessive.
Appellees own a little over 3,000 acres across which the highway is to be constructed. A strip consisting of about 59 acres has been taken, leaving about 2,000 acres which will be on the west side of the highway and 1,000 acres on the east side. The highest valuation placed on the property taken is $200 per acre, which would make a total of about $12,000 as the highest value placed on the land taken. In addition, it would be necessary for the property owners to fence each side of the new high- w.*y, tlie highest estimate of the cost of such fencing being $5,400, which, added to the $12,000 for the land taken, would total about $17,400. This portion of the verdict is sustained by substantial evidence. The question is whether there is substantial evidence to sustain the balance of the verdict amounting to about $83,000, which the jury must have given as damages due to a severance of the property.
The property is located northeast of North Little Rock, the south line of the property being about six miles from the city limits. Appellees acquired the land in 1928 and have farmed it since that time, but the earnings of the place are shown only for the years 1954, 1955 ■and 1956: $13,019.76 for 1954; $11,585.88 for 1955; and $12,650.83 for 1956. One of the appellees, Mr. C. S. Du-pree, gives practically all of his time to the operation of the place, and two of his brothers give a portion of their time, but in arriving at the net amount earned by the farm, nothing was allowed for the work done by the owners.
The owners contend that the market value of the property has been depreciated to the full extent or in excess of the amount of damages allowed by the jury because of the severance. Several witnesses gave testimony to the effect that in their opinion the damages caused by the severance exceed the amount awmrded by the jury. If such evidence is substantial, the judgment must be affirmed. The witnesses on behalf of the landowners estimate the damages at from $87,000 to $161,-000, and witnesses on behalf of the Highway Commission give estimates of damage from a low of $8,200 to a high of $12,200. The assessed valuation of the entire 3,000 acres for 1956 is $21,815. Whether there is substantial evidence to support the verdict is a question of law. Arkansas State Highway Comm. v. Byars, 221 Ark. 845, 256 S. W. 2d 738; Mo. Pac. Transportation Co. v. Bell, 197 Ark. 250, 122 S. W. 2d 958.
On the wrest side of the strip taken for the new highway is a cattle barn and corrals. This is on the tract which would contain about 2,000 acres. There are no similar facilities on the east side. The barn is 100 ft. x 100 ft. and is used for storing seed and also feed for the cattle. Part of the feed is stored in temporary silos made of wire and paper. This method has been found to be more economical. There are four tractors on the place and four hired men. Feed for the cattle is moved in trailers attached to the tractors. There are five stock ponds and one borrow pit where the stock can drink. Two of these are on the east side of the new right of way. There are 1,200 acres of crop land, 1,000 acres in pasture and open timber, and 860 in timber. The number of acres in particular crops and the production given for one of the years are as follows: 203 acres in cotton (100 bales produced); 238 acres in hay;, .30 acres in beans; 60 acres in corn; 120 acres in silage. Mr. C. S-Dupree, one of the owners, values the place at $150' per acre straight across, for a total of $450,000. But he says that after the severance the property will be worth only $100 per acre, thereby giving $150,000 as his estimate of the damages due to the severance. It also appears that there will be a strip of land between a drainage ditch and the new road on which at the north end it will be difficult to operate four-row farm equipment. Mr. Dupree also says it will be difficult to cultivate any closer than about 20 feet from the highway fence, and this will cause some loss. He further contends that labor, equipment and livestock cannot be moved across the new highway and therefore the place cannot be worked as one unit. He further states that to move farming equipment across the highway it would be necessary to purchase insurance which would cost about $100 per month. According to undisputed evidence the Highway Commission will provide a grade crossing.
Mr. W. C. Wilkinson, of Summerville, Tennessee, is in the mortgage loan business. He testified that the value of the property before the taking was $308,770 and after the taking the value was reduced to $220,000, the damages amounting to $88,770. He testified in detail as to how he arrived at the valuation before the taking, but he gives no clue as to how he arrived at the amount of damages mentioned.
Mr. Floyd Fulkerson, wlio farms in Pulaski County, testified that appellees’ property is better suited for a large cattle operation than any other purpose and that it Avould support 800 or 900 head of cattle.. He gave an over-all value of $150 per acre before the taking, and stated that the damages Avould amount to about 25 per cent; that the damages due to the severance .would amount to approximately $129,000. Mr. Fulkerson gives no substantial testimony as to why the severance Avould reduce the property in value by 25 per cent when used as a large cattle operation. It is shown by the evidence that the OAvners now have 289 head of cattle on the property, but there is not a scintilla of evidence that they have ever made any money whatever out of cattle. Of course, it was to the interest of the owners to show the full earning capacity of the place, and yet they produced not one iota of evidence to the effect that they had ever made any money whatever out of cattle. If the place was worth from $450,000 to $600,000, as estimated by witnesses produced by the OAvners, then, based on the capacity to support from 800 to 900 head of cattle, there would be an investment of from $500 to ovar $600 in land to support one cow. The record is completely void of any evidence to the effect that a person could pay such a huge amount for land on which to run cattle, and make a profit. Of course, the amount of profit that could be made on the land from farming or raising livestock is of primary importance here as going to sIioav the value of the land, because there is no contention that the potential value of the property for industrial or residential purposes because of its location is lessened by reason of the new road.
Mr. William A. Payne, real estate appraiser engaged in the mortgage loan business, testified that the value of the property before the taking was $371,500 and after the taking $287,500, and he gave $87,000 as the amount of damages, including the cost of fencing. Of course, the witness could not arrive at a sound valuation Avithout taking into consideration what the property Avould produce, and Mr. Payne did not knoAV if any cotton is planted on the place, and thought the cotton allotment to be 2,200 acres. The Government pays $46 per acre if the land is placed in the Land Bank.
Mr. George Ed McCain has a place across the road from the property involved in this litigation. He places the damages at 20 per cent to 25 per cent of the total value of the place. Mr. McCain thinks the property is worth $200 per acre straight across, or $600,000 for the 3,000 acres, and that it will he depreciated $150,000 to $200,000 by the construction of the road. Mr. McCain gives no satisfactory basis for placing such a huge market value on the property or for the amount of damages he mentioned.
The owners have been operating this place since 1928 and there is no showing that they have ever made over $14,000 per year out of the property, and in arriving at this figure as to the profit made, nothing is allowed for the work the owners do in connection with the operation of the place. As heretofore stated, Mr. C. S. Dupree gives his full time to looking after the place, and his two brothers give part of their time. Certainly between the three of them their services would he worth at the minimum a total of $9,000, and when this charge is correctly made it would leave a net profit on the place of not over $6,000 per year. No witness says the place is worth from $380,000 to $600,000 because it would produce a net of some $6,000 to $14,000 per year from crops, and there is no showing that the owners have ever made a dime out of cattle.
This kind of case constitutes one of the most difficult problems with which this Court has to deal. The law is firmly established that if there is any substantial evidence to support a jury verdict it must be affirmed on appeal. But, as heretofore pointed out, the question of whether there is substantial evidence to support the verdict is not a question of fact, but a question of law. There is some evidence in this case to the effect that the appellees have been damaged over $160,000.. But does this mean that if there had been a jury verdict for that amount this Court would have to affirm it, when the Court does not think there is substantial evidence to sustain such a verdict?
In the Byars case, supra (221 Ark. 845, 256 S. W. 2d 738), we quoted from St. Louis Southwestern Ry. Co. v. Braswell, Administrator, 198 Ark. 143, 127 S. W. 2d 637, as follows (221 Ark. 852): “ ‘The difficulty is in differentiating between any evidence and substantial evidence . . . Must appellate judges close their eyes and their minds to the obvious fact that in a particular case the evidence, from its very nature, could not have been convincing, though it produced a given result? Shall we affirm that such evidence was necessarily substantial because it was favorably acted upon by the jury?’ ”
When the appellees are allowed the highest value placed by any witness on the land taken ($200 per acre) and the highest amount estimated for the construction of fences ($5,400) there is left a jury verdict of about $83,-000 for damages due to severance. When all the evidence in this case favorable to the appellees is considered, disregarding the evidence produced by the appellant and favorable to the appellant, we do not believe that it can be said there is substantial evidence to .support the verdict. And, although this Court is very reluctant to set aside the jury verdict, we would be derelict in our duty if we failed to set aside such a verdict when, after a careful examination of the record and the briefs in the case, we do not think the evidence is substantial to support the verdict. Of course, the next question is what would be a proper amount. We have reached the conclusion that a judgment for $62,400 can be sustained. If, within 15 judicial days, appellee will file a remittitur of $37,600,' the judgment will be affirmed. Otherwise, it will be. reversed and remanded for a new trial.
Harris, C. J., and MoFaddist, J., dissent. | [
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Paul Ward, Associate Justice.
On September 30, 1956, at approximately 3:30 A.M., James Harper’s Pan Am Service Station at Warren, Arkansas, was entered and a cash register valued at approximately $300, containing about $35, was taken, and the cash register was thrown in the Saline River near Warren. Calvin Mc-G-ehee, age 21, Jerry Lawrence, age 18, J. C. Adams, age 18, and Rudolph Herrod, age 18, all of Warren, Arkansas, entered pleas of guilty to entering the station and taking the cash register and money. They stated that appellant Terrell Y. Johnson, who was an employee of the burglarized station, had previously given Calvin McGehee a key to the side door of the station for the purpose of entering the station. They stated that appellant Ray Knight, an ex-policeman of Warren, had conferred with and encouraged them, to commit the crime, allegedly, in an effort to embarrass the city police officers.
On February 4,1957 appellants, Knight and Johnson, were indicted for the crime of burglary and grand larceny in connection with the above described incident, and on February 8, 1957 they were tried jointly, and convicted as charged. Knight was sentenced to 5 years in the penitentiary and Johnson was sentenced to 2 years in the penitentiary. They prosecute this appeal from said convictions and sentences.
The two appellants are represented by different attorneys and they have filed separate briefs in which they rely upon somewhat different grounds for a reversal.
Knight relies upon three separate grounds, in his brief, which we now discuss in the order named.
One. Appellant contends that it was error for the court to refuse to direct a verdict of not guilty at the close of the State’s testimony. In support of this contention appellant says there is no corroborating testimony of the accomplices and, also, that the trial court failed to properly instruct the jury during process of the trial. We do not agree with either of appellant’s contentions.
As pointed out by appellant, Ark. Stats. § 43-2116 provides that a conviction can not be based upon the testimony of an accomplice unless corroborated by other evidence “tending to connect the defendant (Knight) with the commission of the offense.” We agree, as also pointed out by appellant, that mere suspicion does not meet the test above set forth. See Bright v. State, 212 Ark. 852, 208 S. W. 2d 168. We have consistently held that the sufficiency of the corroborating testimony in such instances is a matter for the jury to decide. See: Kennedy v. State, 115 Ark. 480, 171 S. W. 878; Mankey v. State, 192 Ark. 901, 96 S. W. 2d 463; and McClure v. State, 214 Ark. 159, 215 S. W. 2d 524. After a careful review of the record we are convinced that there is substantial corroborative testimony to support the verdict of guilty by the jury. James Harper, the owner of the filling station, said Knight came to him voluntarily and offered to take him to where the cash register was for the $100 reward which had been offered for its return. A State Policeman said Knight told him and the sheriff about two weeks after the burglary who had committed the crime. The sheriff said that the next day after the burglary Knight told him he was under the bridge when the boys threw the cash register in the river and he knew who did it. Later Knight told the sheriff he talked with some of the boys at the Economy Station (near the burglarized station) about the burglary and knew they were going to commit the theft, and, according to the sheriff, Knight admitted the boys later told him what they had done. The above testimony was, we think, substantial corroboration as required by the rules announced by our decisions.
Appellant says the trial court improperly instructed the jury regarding the amount of corroboration necessary. When Calvin McG-ehee was asked whether Knight had anything to do with the burglary, the court was asked to tell the jury that the witness was an accomplice and that his testimony could be considered only as such in accordance with later instructions. The court did, at that time, so instruct the jury, but in doing so he said “there must be some fact, some evidence, however, slight, to connect the defendant with the commission of the crime outside of the evidence of the accomplice”. Appellant objects to the words, “however slight,” used above. Even if it be conceded that these words were used inadvisedly, still we think any possible error was cured and any possible prejudice was erased by proper instructions later given by the court. The words above mentioned were used by the trial court during the trial of the case and were not intended as an instruction to the jury. The statement of explanation was made by the court to the jury at the request of the defendant. If appellant objected to any particular words used by the court, he should have pointed them out at the time. This he failed to do, and cannot now be heard to complain.
Two. Harper was asked by the State if he received any money from any of the accused by way of restitution, and in replying in the affirmative he mentioned appellant’s name. The witness was immediately inter rupted by an objection on bebalf of the appellant. Thereupon the court cautioned the jury to disregard the testimony. The court also asked the jurors if they could do that and all of them held up their hands to indicate they could. From this it is hard to see how any prejudice could have resulted to appellant. Moreover, appellant is in no position to urge a reversal on this ground because it was not brought forward in his motion for a new trial.
Three. Finally it is contended that the court committed reversible error in allowing the introduction of certain testimony relative to crimes committed by appellant, or within his knowledge. When a question of this nature was asked of Jerry Lawrence, an objection was immediately interposed. Thereupon the court limited the testimony to “a scheme between this ex-officer or officer at the time and these young men.” After this the witness was allowed to say he and appellant, with some of the other boys, had siphoned gas out of cars. Again we are not called upon to- decide whether the above testimony was erroneously admitted, because no such contention was brought forward in the motion for a new trial.
We have considered other assignments of error mentioned in the motion for a new trial, including a general objection to the instructions, but find no reversible error. Therefore the case is affirmed as to appellant, Ray Knight.
Johnson seeks a reversal on four separate grounds set forth in his brief but we deem it unnecessary to discuss all of them, because we have concluded the case must be reversed and remanded for a new trial, as to him, on a combination of two of the grounds.
It is not contended by the State that Johnson was present when the robbery occurred, or that he even knew it was going to take place. His conviction rests solely upon the testimony of an accomplice, Calvin Mc-G-ehee, to the effect that Johnson gave him a key to the filling station, and upon certain alleged admissions, to the same effect, made by appellant to the sheriff. Nei- tlier of these sources of testimony is definite or convincing. One of McGehee’s accomplices testified that Mc-Gehee told him that he (McGehee) stole the key (used to enter the filling station) from appellant. McGehee later said that Johnson gave him the key some 3 or 4 months previously. In fact McGehee stated he had forgotten he even had the key until they decided to rob the filling station. None of the four accomplices claim the intended robbery was ever mentioned to Johnson before it was executed. Outside of this decidedly weak testimony on the part of Johnson’s accomplice, there is no substantial testimony tending to connect him with the crime. The strongest testimony in the record of this nature is that of the sheriff, and it is far from positive. He says appellant admitted, after much hesitation, that he gave the key to McGehee. This, standing alone, would of course be substantial evidence to sustain a jury’s verdict, but its evidentiary force is weakened if not erased entirely by other facts and circumstances. Appellant admits, and he is corroborated by McGehee, that he gave a bunch of keys to McGehee several weeks or months before the robbery. It seems that the purpose was not a laudable one but it definitely was not for the purpose of committing the robbery in question — perhaps explaining why appellant was reluctant to admit giving the keys to McGehee. Also, the sheriff, with commendable frankness, admits that appellant never did say he gave the key to McGehee to rob the filling station. In addition, there are numerous circumstances which tend to show appellant took no part in the robbery. He was not present, he did not know the boys were going to rob the station, he knew of $1,000 concealed in the station but did not tell the four boys anything about it, and he did not get any of the money which was taken.
Prom a study of the record it seems that one of the strongest incriminating circumstances against Johnson and one which could have been the deciding factor with the jury, was that McGehee knew which key (of a large number of keys given to him by appellant) would unlock the side door to the filling station. This circumstance, unexplained, would indicate appellant must have pointed out to McGrehee the proper key.
In view of the above circumstance and in view of the weakness of the testimony against appellant as heretofore set out, we have concluded that appellant’s motion for a new trial on the ground of newly discovered evidence should have been granted. In this motion, appellant set out that, after the trial was over, Mrs. Harper Wolfe of Warren informed him that Calvin McGrehee had formerly worked at the filling station which was robbed. The form and sufficiency of other material allegations in the motion are not questioned.
From what has already been stated, the relevancy and importance of Mrs. Wolfe’s testimony is apparent.
We have concluded therefore, that the judgment against Johnson should be reversed, and that the cause should be remanded for a new trial consistent with this opinion. It is so ordered. | [
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CakletoN Harris, Chief Justice.
James R. Swank and Cecil Ray Edmonds, doing business as Edmonds & Swank, were partners in the business of constructing dwellings in the state of Colorado. In January, 1955, the two men, having become interested in establishing a dog track in Arkansas, came to Little • Rock and contacted the chairman of the State Racing Commission relative to acquiring a permit. It was agreed between Ed-monds, and Swank, a Denver businessman and rancher, that the two should bear equally all expenses incident to promoting the track, and that Swank would receive 50 per cent of Edmonds’ net interest in a company to be organized. The two returned to Denver, and Ed-monds advertised in the Denver Post for people who would be interested in purchasing stock in a race track, advertising costs being borne equally by both parties. Edmonds returned to West Memphis, Arkansas, and in the latter part of March, 1955, Swank and Jules Singer, a Denver attorney, came to West Memphis, and the three men incorporated the Southland Racing Corporation. On April 4th, Swank and Edmonds entered into a written agreement confirming the aforementioned verbal agreement. This was the last direct contact between the two, and Edmonds thereafter spent most of his time in Arkansas, while Swank remained in Colorado. Shortly thereafter, Edmonds sold his interest in the Swank and Edmonds Construction Company to one William T. Kerns. On May 6th, Kerns obtained a release from Swank releasing “C. R. Edmonds and every other person, firm or corporation from any and all claims which I may have or profess to have in and to any stock or other interest in the Southland Racing Corporation * * *” and specifically relinquishing any claims which Swank might have arising from the letter dated April 4,1955, wherein Swank was to accept a 50 per cent interest in the stock retained by Edmonds. In consideration of the release, Kerns delivered to Swank a letter advising that he would (1) give Swank $3,500 (2) exert his best efforts to secure a racing permit in Arkansas , and if successful, assign to Swank 80 per cent of his interest therein, and (3) not relinquish possession of the release until Kerns had secured a contract for the construction of Southland Racing Corporation. Swank contends that Kerns did not comply with any of the provisions. On July 15, Kerns entered into a written agreement with Edmonds wherein Kerns agreed, in consideration of the assignment to him of 15,000 shares of common stock in Southland, to assign to Edmonds the aforementioned release and relinquishment of Swank’s interest in the Southland Corporation. In August, Swank went to the office of Singer in Denver, and in consideration of the issuance of 6,000 shares of Southland Racing Corporation stock, executed a second release. The stock was later sent to Swank , and sold by him for approximately $5,000. In October, 1956, Swank instituted suit against Edmonds, alleging that the releases had béen obtained from him by fraud, and asking that he be awarded 50 per cent of Edmonds’ net interest in Southland. Upon trial, the court dismissed Swank’s complaint for want of equity. From such decree comes this appeal.
Appellant’s principal argument for reversal is based upon a contention that Edmonds, Kerns, and Singer entered into a conspiracy to defraud him of his interest in Southland Racing Corporation. A conspiracy was not alleged in the complaint, nor were Kerns and Singer made parties to the action; in fact, their names do not appear in the pleadings. The complaint simply alleges that the acts of fraud, trickery, and deceit were committed by Edmonds, “his agents, servants, and employees.” At any rate, the evidence falls far short of that necessary to establish a conspiracy. No good purpose would be served in detailing the testimony. Suffice it to say that there is not one iota of evidence . . . conversations . . . letters . . . telephone calls . . . that would establish the three men plotted or conspired together to obtain Swank’s interest in the company, nor is there any evidence to establish that Kerns or Singer was acting under authority of, or at the direction of Edmonds when they obtained the two releases from Swank. Edmonds testified that he had only known Kerns about two weeks when Kerns proposed to buy his interest in the construction firm of Edmonds and Swank. He stated that he had never employed Kerns, and had never known him very well. There is nothing in the testimony that would prove otherwise. Of course, Edmonds was entirely within his rights in disposing of his interest in the construction company .
In addition to the contention that the three men conspired to defraud him, appellant sets out other grounds for reversal. It is alleged that the first release executed by Swank was void for lack of consideration. Swank testified that Kerns did not give him the $3,500, did not exert any efforts to secure a permit for another racing track in Arkansas, and in violation of bis agreement, relinquished possession of the release without securing a contract for the construction of Southland Racing Corporation. As to whether Kerns carried out these conditions is, in our opinion, immaterial, first, because, as previously stated, it was not shown that Kerns was acting in concert with, or under the direction of Edmonds, or that Edmonds even knew the consideration for the release; second, Swank gave a second release in August (which we consider a ratification of the first release) in consideration of receiving 6,000 shares of Southland Racing Corporation stock .
It is next alleged that the releases were invalid because of the actions and conduct of the attorney, Jules Singer. Appellant contends that Singer was in possession of facts relating to the affairs of Southland, and was obligated to convey such information to him (Swank) because of the fiduciary relationship existing between them, before obtaining the second release. Specifically, he contends that Singer knew that Edmonds held 500,000 shares of stock in Southland, and that had he (Swank) been so aware, he would not have settled his 50 per cent share under the original agreement with Edmonds, for 6,000 shares of stock. In the first place, as previously herein set out, there is no evidence that would establish Singer to be Edmonds’ agent , and Ed-monds would not be otherwise responsible for Singer’s misdeeds, if such they were. In the next place, it would appear that Swank could have obtained the information as to the number of shares held by Edmonds, since the prospectus of Southland Racing Corporation was available to the public as of July 15, 1955, and showed that Edmonds held 500,000 shares, and that the South-land stock was valued at $1.00 per share. The evidence showed that the prospectus was available at most securities dealers, and that four dealers in Denver had it. In fact, Swank testified that he later learned the amount of stock owned by Edmonds through such a prospectus obtained from the General Investing Corporation, though he did not state when he obtained same. The stock was not immediately given to Swank, but was sent to him in the latter part of April, 1956, after which, he sold it for $5,000. It is inconceivable that Swank did not know, or could not have known, before that time, the number of shares held by Edmonds, since the prospectus had been out for nine months. Appellee contends that Swank, because the future of Southland Bac-ing Corporation was, at the time, rather precarious, decided he had best accept the 6,000 shares of stock for whatever interest he might have and remove himself from the venture. There is some logic in this argument since a movement had been organized to sponsor an amendment to the Constitution of the State of Arkansas to prohibit all parimutuel betting in the state.
Swank, though one of the original incorporators, contended that from the beginning he was not informed as to the structural set up, or how many shares of stock Edmonds would receive. He testified that he had asked Edmonds, Kerns, and Singer, but received no satisfactory answer. It seems to us rather illogical that a successful businessman, who, according to his own testimony, had been refused information by all three parties, and should accordingly have been “put on guard”, would sign a release without full understanding and knowledge of what he was signing.
Beiterating, we find no evidence that would establish a conspiracy, or establish that Kerns and Singer were acting as agents of Edmonds.
No error appearing, the decree is affirmed.
Swank’s evidence showed that he made a total expenditure of about $1,100 toward expenses.
Not referring to Southland.
The stock was sent later because it was promotional stock and could not be sold until registered by the SEC.
Swank testified that Edmonds sent him a note inquiring “* * * if it would he O. K. to sell to Kerns, and I couldn’t have stopped him anyway.” This was the only contact between the parties after April 4, 1955.
This 6,000 shares was part of the 15,000 which Kerns had received from Edmonds.
Prom the testimony of Swank: “Mr. Digby: Was he representing you, Mr. Swank? A. No. Q. Do you know who he was representing then? Mr. Catlett: Does he know of his own knowledge? Witness: I don’t know anything about his status.” | [
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J. SeaborN Holt, Associate Justice.
Appellant, A. D. Scifres, by information was charged with the crime of robbery. Trial resulted in a verdict of guilty and tbe jury fixed Ms punishment at a term of three years in the penitentiary. This appeal followed.
For reversal appellant has brought forward 19 assignments of alleged errors. In assignments 16, 17 and 18 he, in effect, challenges the sufficiency of the testimony. The testimony shows that on May 28, 1957, Scifres and the victim of the robbery, Oscar Hunsaker, had been together in Little Eock and later in the afternoon returned to Pine Bluff, where Hunsaker left Scifres and went on to his home in Star City. Appellant and an accomplice, Charles Hackney, in appellant’s truck went from Pine Bluff to Dumas to sell some vegetables. Scifres had on occasion borrowed money from Hunsaker and knew that he had a substantial amount of money with him on that day. In company with Hackney, Scifres went to Hunsaker’s home (at about 9 p.m.) called him to his front door, struck him over the head, knocked him down and took his wallet which contained about $285. Both Hackney and appellant later admitted the robbery but each accused the other of actually talcing the money. On the above brief statement of material facts, we hold the evidence ample to convict appellant.
By assignments 1 and 2 error is alleged in the refusal of the trial court to excuse veniremen McLemore and Russ. On voir dire McLemore testified that he had served as a peace officer, and when asked by the court if he were prejudiced against people accused of crime, he replied: “Well, to some extent.” After further questioning, however, he said in effect that he would lay aside any prejudice and try the case on the law and the evidence. In similar situations we have held the juror qualified. See Lewis and Wren v. State, 220 Ark. 914, 251 S. W. 2d 490 and Buchanan v. State, 214 Ark. 835, 218 S. W. 2d 700. We hold, therefore, that there was no abuse of the court’s discretion in holding this juror qualified in the circumstances.
The other venireman, Russ, — a Negro who had reached the 7th grade in school, — was challenged by the appellant on the ground that he lacked sufficient education to understand or comprehend the court’s instructions. Specifically he based this contention on the following: “Q. Can you define . . . the words bias and prejudice? A. You have something within you against. Q. Can you define . . . the word duress. A. No, sir. Q. Can you define . . . the word intimidation? A. I am sorry. Q. You have no idea? A. No, sir, why I wouldn’t express. Q. Can you define . . . presumption of innocence. . .? A. That he is not guilty. Q. Can you define . . . present ability. A. I am sorry.” Also on certain answers given by Russ (Appellant’s abstract): “I have lived northeast of town about twenty years. I have not had any experience that would cause me to be prejudiced against the crime of robbery. No, I would not be prejudiced if evidence shows defendant drank liquor to excess. No. I do not drink. I have never sat on a jury before. I am 49 years old. If some reasonable doubt as to guilt existed in my mind I would acquit Mr. Scifres. I would follow the testimony and law and would follow my own opinion.”
We find no atrase of the court’s discretion in declaring Buss qualified when reasonable tests as to qualifications were applied, as here. The text writer in 31 Am. Jur., Jury, Sec. 131 used this language: “. . . It is not necessary, of course, that a juror should he a scholar and understand the definition of every word used in the course of a trial by witnesses, counsel, and the court. It is sufficient if he is conversant with the language to the extent that he can understand in substance the testimony of witnesses and the argument of counsel. An objection based on a juror’s supposedly imperfect knowledge of English is one addressed to the judgment of the trial court, and unless flagrant abuse of discretion clearly appears, the court’s ruling thereon is seldom disturbed . . .” We said in Montaque v. State, 219 Ark. 385, 242 S. W. 2d 697: “Jurors must be presumed to possess the qualifications required under Sec. 39-208 and 39-206 of the statutes (Ark. Stats. 1947) and that is ‘persons of good character, of approved integrity, sound judgment, and reasonable information’.” The Supreme Court of the United States in the case of The Sioux City S Pac. RR Co. v. Harry G. Stout, (1873) 17 Wall 657, 21 L. Ed. 745, set out what it termed to be the complexion and general qualifications of the members of the ideal jury under our jury trial system: “Twelve men of the average of the community, comprising men of education and men of little education, men of learning and men whose learning consists only in what they have themselves seen and heard, the merchant, the mechanic, the farmer, the laborer; these sit together, consult, apply their separate experience of the affairs of life to the facts proven, and draw a unanimous conclusion. This average judgment thus given it is the great effort of the law to obtain. It is assumed that twelve men know more of the common affairs of life than does one man; that they can draw wiser and safer conclusions from admitted facts thus occurring, than can a single judge.”
In Assignments 4, 5, 6 and 7 Scifres contends that the court erred in permitting the prosecuting attorney to question him about prior convictions. It appears un disputed that appellant was interrogated on Ms cross-examination only as to prior convictions except in one instance when he was asked if he had ever been arrested for grand larceny in Mississippi, but he was not permitted to answer this latter question, on instruction by the court. These questions were proper as going to his credibility as a witness, and the court so limited it. See Rutledge v. State, 222 Ark. 504, 262 S. W. 2d 650.
In Assignments 8, 9, 10, 11, 12, 13 and 15 appellant argues that the court erred in giving instructions 1, 2, 3, 4, 5, 6 and 8. In assignment 14 Scifres specifically objected to instruction 7 on the ground that larceny is not included in robbery. The record reflects that only a general objection was made to all of the above instructions with the exception of No. 7. Upon examination we do not find that any of these instructions, to which only a general objection was made, was inherently wrong. It was appellant’s duty to point out to the court, by a specific objection, any evil or error in these instructions in order to afford the court an opportunity to make corrections if necessary. TMs he failed to do, as indicated, in all but No. 7, to which he specifically objected on the ground that larceny did not include robbery. Instruction 7 provided: “Every person who shall for his own gain, or to prevent the owner from again possessing his property, buy or receive (any stolen goods, or anything the stealing of which is declared to be larceny, or) property obtained by robbery or burglary, knowing the same to have been so obtained, shall upon conviction be punished as in cases of larceny. ’ ’ The answer to this contention of appellant is, that larceny is included in the crime of robbery. See Haley v. State, 49 Ark. 147, 4 S. W. 746, and Cook v. State, 130 Ark. 90, 196 S. W. 922. We hold, therefore, that instruction 7 was correct.
In Assignments 3 and 19 appellant contends that the court erred in permitting the prosecuting attorney to attempt to impeach him by reading his prior alleged inconsistent statement and further erred in failing to require the introduction of appellant’s original confession. In answer it suffices to say, it has long been the rule in this state that a witness may be impeached by showing that he has made prior inconsistent statements. See Sec. 28-707, Ark. Stats. 1947; Hamm v. State, 214 Ark. 171, 214 S. W. 2d 917, Comer v. State, 222 Ark. 156, 257 S. W. 2d 564; Eddington v. State, 225 Ark. 929, 286 S. W. 2d 473. Appellant’s objection that the original confession was not introduced in evidence is not supported by the record. The record reflects that appellant’s statement or confession was introduced in evidence without objection. It is, therefore, too late for appellant to complain at this time. See Jenkins v. State, 222 Ark. 511, 261 S. W. 2d 784.
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Ed. P. McFaddiN, Associate Justice.
This appeal stems from a traffic mishap: a truck-trailer driven by W. T. Jackson collided with a car driven by Richard F. Toll, Sr., causing injuries which resulted in Mr. Toll’s death. The appellees (administratrix and administrator of Toll’s estate), as plaintiffs, obtained judgment against W. T. Jackson and also against the appellant, Phillips Cooperative Gin Company (hereinafter called “Gin Company”), as the employer of Jackson. The Gin Company has appealed; and on the record before us, only two points are designated for our review.
I. Appellant’s Request For Instructed Verdict. At the conclusion of all the evidence the' Gin Company moved for an instructed verdict in its favor; and the motion was overruled. The point we now’' consider is whether an instructed verdict should have been given. Viewing the evidence in the light most favorable to the appellees, as is our rule in cases like this one, these facts appear:
The Phillips Cooperative Gin Company is located at or near Lexa in Phillips County, and C. IT. Martin is the general manager of the gin. The Gin Company had accumulated a quantity of cotton seed, which it sold from time to time to various oil mills. On September 27, 1955, W. T. Jackson carried a load of cotton seed by truck-trailer from the Gin Company to the Southern Cotton Oil Mill in North Little Rock. After the seed had been delivered to the cotton oil mill, W. T. Jackson started back to his home; and on such return journey there occurred the traffic mishap which resulted in Mr. Toll’s death. The Gin Company claimed that Jackson was an independent contractor; and the plaintiffs — appellees — claimed that the relationship between the Gin Company and Jackson was that of master and servant. We are not concerned with any questions of negligence or amount of the verdict, hut are considering what was the relationship between the Gin Company and Jackson at the time of the traffic mishap.
In Olin Mathieson Chemical Corp. v. Shirey, 226 Ark. 530, 291 S. W. 2d 250, we listed many of our cases on this matter of independent contractor v. master-servant relationship; and we said:
“The rule is well established that where fairminded men might honestly differ as to the conclusion to he drawn from facts, whether controverted or uncontrovert-ed, the question should go to the jury. St. L. I. M. & S. Ry. Co. v. Fuqua, 114 Ark. 112, 169 S. W. 786. It is also well established that it is proper to direct a verdict for the defendant only when, under the evidence and all reasonable inferences deducible therefrom the plaintiff is not — under the law — entitled to recover. Wortz v. Ft. Smith Biscuit Co., 105 Ark. 526, 151 S. W. 691.”
It must also be remembered that when it is shown that the person causing the injury was at the time rendering a service for the defendant and being paid for that service, and the facts presented are as consistent with the master-servant relationship as with the independent contractor relationship, then the burden is on the one asserting the independence of the contractor to show the true relationship of the parties. In Warren v. Hale, 203 Ark. 608, 158 S. W. 2d 51, we said:
“It is generally held by the courts, including our own, that if the employer claims that an employee is an independent contractor for whose acts he is not responsible, the burden is upon him to show that fact. It was so held in St. L. I. M. & S. Ry. Co. v. Davenport, 80 Ark. 244, 96 S. W. 994, ... In Dishman v. Whitney, et al., 121 Wash. 157, 209 Pac. 12, 29 A. L. R. 460, it was held that ‘Where the facts presented are as consistent with the theory of agency as with that of independent con tractor, tlie burden is on the one asserting the independ-ency of the contractor to show the true relation of the parties. ’ Many other cases might be cited to the same effect. See 27 Am. Jur., p. 538, § 59.”
With all of the foregoing in mind, we come to the facts relied on by appellees to make a jury question on the issue of master-servant as opposed to independent contractor. We list some of the salient items:
1. The Gin Company sold a load of its cotton seed to the Southern Cotton Oil Mill. The cotton seed had to be delivered to the mill in North Little Rock. The Gin Company arranged with W. T. Jackson to transport the load of seed. On the way back to his home, Jackson had the traffic mishap here involved. The contract between the Gin Company and Jackson was entirely oral.
2. Jackson loaded the seed onto the truck-trailer at the gin at the place directed, but the load was never weighed until it reached the Southern Cotton Oil Mill. It was then for the first time ascertained how many tons of seed Jackson had loaded on the truck-trailer.
3. There is no evidence in the record that anyone except Jackson ever transported the seed of the Gin Company to any destination in the times here involved.
4. The Gin Company claimed that the purchaser of the seed (Southern Cotton Oil Mill, in this case) was to pay Jackson for transporting the seed, and that the amount Jackson was to receive was $4.20 per ton. The particular load here involved was on September 27,1955; and the record here shows that as late as October 5, 1955 the Southern Cotton Oil Mill addressed an inquiry to C. H. Martin (manager of the Gin Company) listing this load of seed by invoice number, pounds, rate for hauling, and gross amount, and showed the hauling item to be $65.66; and the Southern Cotton Oil Mill asked Martin in the inquiry of October 5th: ‘ ‘ This freight has not been paid to anyone. Advise how you want it handled.” Along with the load of September 27th there was another load of September 26th, on which the hauling amounted to $71.74; so the total of these two loads was $137.40. The September 27tli load was the load that Jackson had just hauled when he was returning home. The check of the Southern Cotton Oil Mill for $137.40 for hauling was made out to C. IT. Martin, dated October 5, 1955, and bore the notation: “W. T. Jackson Trucking.” The check was endorsed by C. IT. Martin and the Phillips Cooperative Gin Company; so the check never went through the possession of W. T. Jackson.
5. In explanation as to the inquiry made by the oil mill and as to why the check was made as it was, the appellant’s witnesses explained that the Gin Company had the custom of advancing money to Jackson and being repaid by collecting the amounts due Jackson from the various oil mills to which he had hauled seed from the Gin Company.
6. C. J. Jackson, the father of W. T. Jackson (the man here involved) is the president of the Board of Directors of the Gin Company. C. J. Jackson testified that he had no interest whatever in either the truck or the trailer used by W. T. Jackson; but it was nevertheless established that the trailer was registered and licensed in the name of C. J. Jackson.
7. W. T. Jackson testified that he did hauling “for the public”; that on September 26th, C. H. Martin, general manager of the Gin Company, told him to take a load of seed to the Southern Cotton Oil Mill in North Little Rock; that Jackson loaded the seed on the truck-trailer that night; that he began the trip to North Little Rock “about daylight on September 27th”; that he delivered the load of cotton seed to the Southern Cotton Oil Mill; and “the Southern Cotton Oil Mill paid me for the hauling. The checks were made out to me.” The photostatic copy of the checks in the record show that the checks were made out to C. H. Martin and that he endorsed the checks and passed them through the account of the Gin Company, as stated in paragraph numbered 4, supra.
8. A sharply disputed issue in the trial was the amount, if any, of control that the Gin Company retained over Jackson. Robert Dodd, who worked for Jackson on the truck-trailer, testified on cross-examination:
“Q. Have you been present when the manager of Phillips Gin, Phillips Cooperative Gin Company, would give W. T. Jackson instruction about where to haul the stuff!
A. Sometimes I would, sometimes I wouldn’t.
Q. Would they instruct him to take a load to such and such and come hack and take a load to such and such a place, do you remember anything about that!
A. No, sir, I don’t remember that. Anywhere they would tell him to carry a load he would carry it.
Q. They gave him instructions and directions!
A. Yes, sir.”
9. The Gin Company manager admitted there was no written contract with Jackson; but if the Gin Company should stop him with a load of seed enroute to Little Rock, and direct him to go instead to Helena, and if Jackson failed to obey the revised directions, then he would not be allowed to haul any more seed for the Gin Company.
The foregoing numbered paragraphs fairly reflect the evidence on the matter of independent contractor as opposed to master-servant. Two of our more recent cases on this are Barr v. Matlock, 222 Ark. 260, 258 S. W. 2d 540; and Olin Mathieson Chem. Corp. v. Shirey, 226 Ark. 530, 291 S. W. 2d 250; and in each of these cases we held ■ — ■ as we hold here — that the evidence offered by the plaintiffs showed facts as consistent with the theory of master-servant as with that of independent contractor; and that before the party asserting independent contractor relationship would be entitled to an instructed verdict, the evidence on the issue must present no factual question.
We conclude that all of the evidence reflected by the foregoing numbered paragraphs made a case from which reasonable men might draw the inference that Jackson was in fact the servant of the Gin Company rather than an independent contractor. So we find no error in the refusal of the trial court to grant an instructed verdict for the defendant Gin Company.
II. Appellees’ Instruction No. 5. We conclude that the giving of this instruction — later to be copied —■ constituted reversible error. In a series of instructions, not here challenged, the Court told the jury:
“Plaintiff contends that W. T. Jackson, at the time of the collision giving rise to this litigation, was an agent, servant or employee of Phillips Cooperative Gin Company and was acting in the scope of his employment. Phillips Cooperative Gin Company denies that W. T. Jackson was its agent, servant, or employee and contends that he was an independent contractor.
“An independent contractor is one who, in the course of an independent occupation, prosecutes and directs the work himself, using his own methods to accomplish it and represents the will of the company only as to the result of his work.
“Even though an employer’s control and direction over a contractor be retained the relation of master and servant is not thereby created unless such control and direction relate to the contractor’s physical conduct in performing the work with respect to the details thereof.
“A servant is a person subject to the command of his master as to the manner in which he shall do his work. The relation of master and servant exists only where the master can order the work and direct how it shall be done. When the person to do the work may do it as he pleases then such person is not a servant.
“If you find that W. T. Jackson at the time of the collision was not an agent, servant, or employee of Phil lips Cooperative Gin Company but was an independent contractor as defined in these instructions, yon will find in favor of Phillips Cooperative Gin Company.”
In the foregoing instructions the jury was given, a definite set of rules by which to determine the relationship of W. T. Jackson and the Gin Company. But the appellees asked, and the Court gave, over appellant’s general and specific objections, the appellees’ Instruction No. 5 here challenged. This instruction reads:
“In determining whether W. T. Jackson was an agent, servant, or employee of the Phillips Cooperative Gin Co., you should determine from all the evidence in the case in whose business W. T. Jackson was engaged and who had the right to control and direct his conduct, and if you find from a preponderance of the evidence that W. T. Jackson was engaged in the business of Phillips Cooperative Gin Co. and that Phillips Cooperative Gin Co. had the right to control and direct his conduct, at the time of the collision, then you will find that W. T. Jackson was an agent, servant or employee of Phillips Cooperative Gin Co. regardless of whether or not he was selected or paid by Phillips Cooperative Gin Co.” (Italics our own.)
This Instruction No. 5 added confusion rather than enlightenment. It was a binding instruction in that it told the jury that if two points were found, then the jury would find for the plaintiff. We have repeatedly held that when a binding instruction is given, then it must incorporate all of the essential conditions in the case. See Reynolds v. Ashabranner, 212 Ark. 718, 207 S. W. 2d 304, and cases there cited.
The instruction undertakes to draw the line between the independent contractor relationship on the one side and the master-servant relationship on the other side, and then tells the jury that in deciding on which side of the line Jackson and the Gin Company were the jury would consider only two conditions: (1) in whose business Jackson was engaged; and (2) whom had the right to control and direct his conduct. There are other conditions which should not have been ruled out in the instruction; and one of these is the right to terminate the employment. In a number of cases we have held that the right to terminate the employment at any time is of considerable weight on the question of determining whether the worker is an independent contractor or a servant.
In Wright v. McDaniel, 203 Ark. 992, 159 S. W. 2d 737, we said: “ ‘The fact that the employer may at any time terminate the performance of the work by discharging the employee is of considerable weight as tending to show that the employee is not an independent contractor. Bristol & Gale Co. v. Industrial Comm., 292 Ill. 16, 126 N. E. 599’; 31 C. J. 475.” In Hollingsworth & Frazier v. Barnett, 226 Ark. 54, 287 S. W. 2d 888, we said: ‘ ‘ The power of an employer to terminate the employment at any time without liability is incompatible with the full control of the work which is usually enjoyed by an independent contractor and is a strong circumstance tending to show the subserviency of the workman.”
Other cases to the same effect could be cited; but the point is, that the issue of the Tight of termination of employment was entirely omitted from this binding instruction. The conclusion as to what was the relationship (independent contractor v. master-servant) must be drawn by the jury from all of the circumstances and proof (Ice Service Co. v. Forbess, 180 Ark. 253, 21 S. W. 2d 411). In Topic I, supra, in discussing the refusal of the Court to give an instructed verdict, we emphasized that all of the circumstances there mentioned — added together — made a question of fact for the jury. It would be a mistake for the Court to single out only two factors and give a binding instruction on those two factors alone; yet such was the effect of appellees’ Instruction No. 5.
Not only was this instruction binding, but it was argumentative, and also was a comment on the weight of the evidence, in that it said: “. . . regardless of whether or not he was selected or paid by Phillips Cooperative Gin Company.” The instruction also amounted to a comment on the weight of the evidence and was prejudicial because it assumed that someone other than W. T. Jackson had a right to control his actions. The words of the instruction, “. . . in whose business W. T. Jackson was engaged . . . .”, seemed to clearly imply that he was not engaged in business for himself: at least it is quite possible that the jury could have so construed the language. The instruction contained other defects ; but what we have said is sufficient to demonstrate that the instruction was erroneous, and that the judgment must be reversed for the error in giving the Instruction No. 5.
The final conclusion reached in this case is the composite result óf a variety of views on the two points decided. Justices Millwee, Ward, Robinson, and MoPad-din compose the majority on the first point decided (i. e. that the Trial Court was correct in refusing to give the Gin Company’s request .for an instructed verdict). The Chief Justice and Justices Holt, Ward, and McFaddin compose the majority on the second point, decided (i. e. that .the Court erred in giving appellees’ Instruction No. 5).
• Reversed and remanded.
Millwee and Robinson, JJ., dissent.
See Black & White Cab Co. v. Doville, 221 Ark. 66, 251 S. W. 2d 1005, and cases there listed.
W. T. Jackson was not shown to have any permit irom the Public Service Commission. It was stated in the oral argument by appellant —and not denied by appellees — that W. T. Jackson came under some exemption clause of the law and was, therefore, not required to have a permit from the Public Service Commission.
The appellant’s objections to the instruction are as follows: “To which said instruction defendant Phillips Cooperative Gin Company objected generally, and specifically because it fails to consider that W. T. Jackson had or would have terminated any supposed employment; it is misleading because it assumes that someone had a right to control W. T. Jackson when he was or could have been an independent contractor engaged in his own business; it fails to define scope of employment; and the final phrase, ‘regardless of whether or not he was selected or paid by Phillips Cooperative Gin Company’ is an incorrect statement of law as used in connection with master and servant, and amounts to a comment on the evidence by emphasizing certain factors.”
In Hearn v. East Texas Motor Freight Lines, 219 Ark. 297, 241 S. W. 2d 259, we held that the proximity and arrangement of the instruc tions might be considered when one essential element — contributory negligence in that case — did not appear in the binding instruction. But the holding in the Hearn case finds no application in the case at bar because, here, all of the instructions were not designated for the record that is before us. The designations only contained the appel-lees’ Instruction No. 5 and the instructions asked by the Gin Company; so we cannot determine the matter of proximity and arrangement. | [
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Hart, J.
(after stating the facts.) It is insisted by counsel for the defendants that the court erred in instructing the jury that if the defendants agreed that the plaintiff might deliver all the logs under the contract on the bank of Beaver Slough, and that thereafter the defendants notified the plaintiff that all logs must be delivered on the bank of the St. Francis River, under the terms of the contract, and that no more logs would be taken up on Beaver Slough, the plaintiff had the right to treat the contract as broken, and would be entitled to recover under it.
We are of the opinion that the court erred in giving this instruction, for the reason that there was no testi: mony upon which to base it. The defendants denied having made an agreement with the plaintiff that he should deliver all the logs embraced in the contract on the bank of Beaver Slough. The testimony of the plaintiff himself is to the effect that he began to cut and deliver logs to thé defendants under the contract on Beaver Slough, and that this was agreeable to the defendants.
It is not fairly inferable from this testimony that the defendants agreed that all the logs might be delivered on Beaver Slough. The written contract provides that the logs were to be delivered on the bank of the St. Francis River, on certain sections of land, or at such other places as may be agreed upon. Under this contract the parties might agree upon another place of delivery. But such agreement is not proved in this case. The most that can be said is that the plaintiff commenced to deliver logs under the contract on the bank of Beaver Slough, and that the defendants accepted them there. The plaintiff said that his delivery there was agreeable to the defendants. But it is not shown that the defendants agreed to accept all of the logs there. The defendants might be willing to accept a part of them there and insist on the remainder being delivered at the place on the St. Francis River specified in the contract.
It follows, then, that the defendants had a right to stop the delivery of the remainder of the logs on Beaver Slough and insist upon their delivery upon the bank of the St. Francis River, as designated in the contract. , The defendants, however, having agreed that the plaintiff should deliver a part of the logs on Beaver Slough, should be compelled to receive all of the logs which had been cut by the plaintiff at the time the defendants notified him that they would not take any more logs there, or they should respond in damages for not doing so.
Therefore, for the error in giving the instruction as indicated in the opinion, the judgment must he reversed, and the cause remanded for a new trial. | [
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Wood, J.
The appellee instituted this action in the. circuit court of Washington County against the Arkansas National iBank of Fayetteville, Arkansas (hereafter called bank), to recover tlie sum of $3,366 with interest thereon at four per cent, from the 30th day of June, 1918, She alleged that the money was deposited with the bank to her credit by William Lehman, who had legally adopted the appellee as his daughter. The appellants filed an intervention alleging that they were the sole surviving heirs of William Lehman; that the money on deposit in the bank was the property of William Lehman, and at his death they became entitled to same as his only heirs. They denied that the appellee was the legally adopted daughter of William Lehman, and denied that she was entitled to the money in controversy. On the 29th of October, 1921, the bank paid to the clerk of the court the sum of $3,366, and by consent of all parties was discharged from further liability.
The appellee testified that ' she was the adopted daughter of William Lehman, deceased. Her father, William Lehman, delivered to her a bank deposit book and made her a present of some money in the bank, which book she introduced in evidence. When the book was delivered to her it showed a deposit of $600. When her father delivered the book to her he told her that was her money. William Lehman, her adopted father, had no child of his own. At the time he delivered the book to witness his wife was dead. From time to time after he first delivered the book to witness he called upon witness for the book and made other deposits, and told witness they were hers. Witness was the owner of the money in controversy, and had made demand on the bank for same, and instituted this action because the bank refused to pay the money over to her. Witness further testified that she had not checked against the deposit during the life-time of her father; that he said, “I am making a deposit for you. You don’t really need this money now. It might he that later you will need it.” The bank book had been in her possession at all times since it was first delivered to her by. her father, except at such times as her father called for it when he desired to make additional deposits. Her father was 68 or 70 years old at the time of his death. At one time during his life she loaned him $500, and. he gave her his note for it. Numbers and numbers of times before that her father had given her money, and she had always had a bank account with the bank, and also had an account with the First National Bank. .The $500 she loaned her father was in the First National Bank. She checked it out and • delivered the money to him. The reason she did not have her father pay the $500 when he was depositing the money to her credit was that she did not need it. He always looked out for witness’ welfare — anything she needed. She didn’t ask her father for interest on the note. She left the $500 note and mortgage in her father’s box for safekeeping at his suggestion. She knew nothing about her father making a deposit for her to avoid any judgment that might be obtained by the woman he had married in Texas. Her father had given her the money; that was all she knew. Her father had considerable money in the bank in his own name, which came into the hands of Mr. Wilson, his administrator. Her father had in his box, «which she opened, vendor’s lien notes amounting to thousands of dollars on property in Texas. She turned over the box to the administrator. Her father was stricken with paralysis at the home of Mrs. Collins.
T. L. Hart testified that he was cashier of the bank. The book exhibited and introduced is a savings pass book issued by the bank to Mrs. Ethel Broyles. The book gives a correct record of the amount of money deposited by William Lehmaii and the withdrawals from same which were charged to the account of Mrs. Ethel Broyles. William Lehman was dead. The withdrawals from the fund were by checks drawn by William Lehman. He made the last withdrawal in May before his death, amounting to $100. Witness had no instructions to honor appellee’s drafts against the account — had instructions not to honor checks drawn by her. Witness further stated that, while Lehman did not tell him definitely when he made the deposit, witness drew the presumption that he had some fears that some woman may be molesting his estate or his funds, and he said that he wanted that in such a shape that his daughter, Mrs. Broyles, would have no trouble after his death, but at the same time he reserved the right to control the fund as he saw fit. Witness was asked whether or not he had any authority from Mrs. Broyles to check against that account, and answered, “Well, we had no instructions from Mrs. Broyles either way.” Mrs. Broyles brought the bank book in after her father’s death and had witness to bring it down to date with the amount of accrued interest at that time. Witness further testified that he did not know where Lehman kept his pass book. He would bring the book with him when he made a deposit. He could not say that he had the book with him every time, but several times he did. Witness could not recall the exact words of Lehman in regard to the money but he said, “I want this money so no one can molest it. ’ ’ Thus in a scattering way he led witness to believe he was apprehensive that somebody would try to get it. Witness did not remember whether Lehman had other money on deposit at that time, but thinks that is all he had. Witness had been unable to find any checks against the deposit, except one. Witness exhibited this check, which was as follows:
“Muskogee, Okla. 5-3-21.
“Pay to the order of S. S. Gill, Trustee, $100.00, one hundred no/100 dollars.
“Endorsed by payee, this check becomes a receipt in full for account as per statement below.
“Arkansas National Bank, Fayetteville, Arkansas.
“Chg. Ethel Broyles.
“W. M. Lehman.”
The words “Charge Ethel Broyles” on the draft were put there by witness. Witness didn’t know about that particular check or draft, but it was witness’ understanding when Lehman made the deposit that he would control it and withdraw from it as he saw fit. He wanted it there so when he died it would be in such a shape that “she wouldn’t have any trouble in getting it. That was about the sum and substance of it.”
The appellee was recalled and testified that when her father was making deposits he would say to her, “This is for you,” and a few times he said, “I am going to check on this, will that be all right?” She replied, “Perfectly all right. Any time you need any money don’t save anything for me that you might need yourself —use it.”
There was testimony on behalf of. the .appellee to the effect that the relations between William Lehman and the appellee before and up to the time of Lehman’s death were pleasant. William Lehman died at Fayetteville. At that time the appellee was living in Joplin, Missouri.
We deem it unnecessary to set out the testimony that was introduced on behalf of the appellants, the interveners, and also the testimony that was introduced on behalf of the appellee on the issue as to whether or not she was the legally adopted daughter of William Lehman. The court made a general finding in favor of the appellee on all the issues, and in the view we have of the case it becomes wholly unnecessary to set forth any testimony except that already stated, for the reason that the appellant contends that the above testimony was not sufficient to show that there was a gift inter vivos of the money by Lehman to the appellee. If the above testimony' is sufficient to sustain the finding of the court that the money in controversy was given by William Lehman to the appellee, then all other questions pass out.
The law is well settled that the finding of fact of a circuit court sitting as a jury is as conclusive on appeal as would be the verdict of a jury, and the verdict of a jury on appeal will not be disturbed where there is substantial evidence to support it. See Rush v. Citizens’ National Bank, 114 Ark. 170; Greenspan v. Miller, 111 Ark. 190; Williams v. Board of Directors, 100 Ark. 166, and many cases cited in appellee’s brief.
No declarations of law were asked of made by the trial court, and the only question, therefore, for our determination is whether or not the above testimony, giving it its- strongest probative force in favor of the appellee, was sufficient in law to constitute a gift inter vivos between Lehman and the appellee. In Lowe v. Hart, 93 Ark. 548, the facts were somewhat similar concerning the delivery of money to the facts here. In that case one Carroll, the donor, handed to Mrs. Hart, the donee a certificate of deposit and said, “Here is a check for my money.” On another occasion he was at the hospital and was told that he might die, and was asked what he was going to do with his money, and his reply was, “John Hart’s folks will know what to do with my stuff.” Commenting upon these facts, we said: “If Carroll intended at the time he handed the certificate to Mrs. Hart to immediately pass to her the title and the right to draw his money on deposit, as the above evidence tends to show, and if she accepted it as her own, then the intention on his part to give, and on her part to accept, accompanied by delivery of the certificate for the purpose indicated, would constitute an absolute gift inter vivos. Citing Ammon v. Martin, 59 Ark. 191.” See, also, Nolen v. Harden, 43 Ark. 307, 318-19; Harmon v. Harmon, 131 Ark. 501-506; King v. Allen, 132 Ark. 54.
In the recent case of Gordon v. Clark, 149 Ark. 173, we held that the delivery to another by a depositor of a bank book showing the amount of the deposits would not be a delivery so as to pass title from the depositor to the person to whom the book was delivered. 'But the case at bar is entirely different from that, because here the deposits were made and entered in the bank book, not in the name of Lehman, the depositor, but in the name of appellee herself. “The savings pass book” says the cashier, “was issued by the bank to Mrs. Ethel Broyles.”
Now it occurs to us that the facts of the present record are fully as convincing of the intention of Lehman to give the appellee the money in controversy and of appellee to accept the same as were the facts in the case of Lowe v. Hart, supra. The court manifestly found that Lehman gave the appellee the bank book intending to vest in her the funds in controversy, and that she accepted the gifts. At least, a general finding would include a specific finding to that effect, and, even though we might have rendered a different verdict on the facts if we had been sitting as jurors, yet under well established rules of this court we cannot disturb the verdict or finding of the trial court where there is any legal evidence to sustain it. Lowe v. Hart, supra, and cases there ¡cited at pages 561-2.
The court might have found from the testimony of appellee that Lehman delivered to the appellee the bank savings deposit book, showing deposits in her name, with the intention of vesting title in praesenti in the appellee, and that the appellee accepted the gift as her own. Such a finding would constitute in law a gift inter vivos.
The judgment is therefore correct, and it is affirmed. | [
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Hart, J.
(after stating tbe facts). Tbe operation of tbe bankruptcy laws of the United States cannot be defeated by proceedings under State statutes looking to the winding up of tbe bankrupt’s estate. Tbe bankruptcy law of tbe United States is paramount, and tbe jurisdiction of tbe Federal courts in bankruptcy, when properly invoked in tbe administration of tbe affairs of insolvent persons and corporations, is essentially exclusive. Hickman v. Parlin-Orendorff Co., 88 Ark. 519; Baxter County Bank v. Copeland, 114 Ark. 316; Morgan v. State, 154 Ark. 273.
Therefore, when involuntary proceedings in bankruptcy were filed in the Federal bankruptcy court against T. A. Shamis, his estate must be administered and the distribution of his assets made by that court, and the general assignment which he had previously made for the benefit of his creditors was necessarily rendered null and void.
But it is contended by counsel for Shamis that the court erred in not admitting oral evidence to the effect that the creditors of Shamis had agreed to give him a discharge in full if he would execute a general assignment of all his property in favor of his creditors.
Whatever negotiations Shamis may have had with his creditors were all merged in the general assignment above referred to, which he executed. This court has uniformly held that all prior negotiations leading up to a written contract are merged therein, and the writing cannot be varied by proof of a parol contemporaneous agreement. Goodwin v. Baker, 129 Ark. 513; Harrower v. Insurance Co., 144 Ark. 279; Zearing v. Crawford, McGregor & Camby Co., 102 Ark. 575, and Cherokee Construction Co. v. Prairie Creek Coal Mining Co., 102 Ark. 428.
Inasmuch as the parol testimony in question would have tended to contradict and vary the written assignment of Shamis in favor of his creditors, the circuit court properly refused to allow it to go to the jury.
It is next insisted that the evidence is not sufficient to establish the claims of the plaintiffs, as shown by the verdict of the jury. It appears from the record that all the creditors of Shamis, who are plaintiffs in the present suit, filed their claims in the Federal bankruptcy court and that that court ordered paid to them about forty per cent, of the amount of their claims. It was also shown that an additional per cent, of their claims was paid them, so that each creditor received 42.7 per cent, of the amount of his claim.
This testimony was not attempted to be disputed by Shamis, and it sufficiently establishes the amount which remained due to each of the plaintiffs after having been paid his pro rata share allowed in the bankruptcy court. The Federal court in bankruptcy denied the petition of Shamis for a release against his creditors, and for that reason the creditors could maintain a suit to recover the balance due them -after having received their pro rata part in the distribution of his assets in the Federal bankruptcy court.
It follows that the judgment must be affirmed. | [
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Smith, J.
At the conclusion of all the testimony on the trial of this cause in the court below each party asked an instructed verdict, and neither asked any other instruction. Under our practice this is, in effect, a withdrawal of the case from the jury and the submission of it to the court, in which event it becomes our duty, on appeal, to view the case as if a jury had passed upon it and to sustain the court’s finding if the testimony tending to support'the finding is legally sufficient for that purpose. Webber v. Rogers, 128 Ark. 25; Watkins v. Louisiana State Life Ins. Co., 151 Ark. 596.
The facts, therefore, may be stated as follows: Sam Stuckey was the managing partner of the Sam Stuckey Company, which copartnership was engaged in the general furnishing business at Lepanto, Arkansas. This firm bought cotton prior to 1920 which was shipped to J. T. Fargason Company at Memphis, Tennessee. That company made advances on consignments of cotton which it held both as a factor and as a creditor to be sold by it for the account of Stuckey Company. At the beginning of the cotton season in the fall of 1920 Fargason Company held for the account of Stuckey Company about 150 bales, on which a balance of more than $20,000 was due. This cotton was finally sold for the account of Stuckey Company, and through the depreciation in price of cotton a large balance was left owing the Fargason Company on account of advances.
The Stuckey Company planned to buy cotton in the fall of 1920, and arranged for advances to be made by the Bank of Lepanto for that purpose. The following agreement was executed between Stuckey Company and the bank:
“bill of sale.
“This memorandum witnesseth that, for the hereinafter mentioned consideration, Sam Stuckey Company, of the county of Poinsett, State of Arkansas, hereinafter called ‘seller,’ has this day sold to Bank of Lepanto, of the county of Poinsett, State of Arkansas, hereinafter called the ‘buyer,’ all cotton of every grade and description which they may buy between this date and December 1, 1920, from any persons or firms whomsoever.
“Seller agrees to deliver all such cotton within the dates aforesaid to buyer, at the warehouse in the town of Lepanto, county of Poinsett and State of Arkansas, free of all charges; and buyer, in consideration thereof, hereby pays seller the sum of one dollar, receipt whereof is hereby acknowledged by seller, and further agrees to pay seller the full purchase price of the cotton bought as aforesaid, on such dates as such cotton is bought.
“The Bank of Lepanto retains absolute title in the cotton aforesaid until it relinquishes its title in legal form. And at any time said Bank of Lepanto so directs, the seller shall, as agent of said Bank of Lepanto, ship said cotton to Memphis, Tennessee, to be placed with cotton factors to the credit of said Bank of Lepanto.
“In witness whereof, we have hereunto set our hands this the 20th day of September, 1920.
“Sam Stuckey Company,
“Bank of Lepanto,
“W. R. Payne, Y. President.”
Stuckey bought cotton in the Lepanto market and paid for it with drafts drawn on the bank, and prior to the transaction out of which this litigation arose sold all the cotton so bought to O’Brien, the local agent of Farnsworth-Evans Company, cotton factors, doing business in Memphis, Tennessee.
The plan of operation was for Stuckey Company to repay the bank after selling the cotton. Any profit earned would have belonged to the Stuckey Company and any loss would have fallen on them.
Pursuant to this arrangement, Stuckey bought 26 bales of cotton, which he contracted to sell to O’Brien, for the Farnsworth-Evans Company. This sale was made on Friday, and the price was to be determined by the opening quotation on the Memphis market the following day. This sale, like all others made by Stuckey to Farnsworth-Evans Company, was made after consultation with Payne, the cashier of the bank, and with the approval of that officer, although O’Brien knew nothing of the bank’s interest in the cotton. The market opened on Saturday one hundred points off, and Stuckey asked O’Brien to release him from' the' trade. This O’Brien agreed to do after consultation with the Memphis office of bis firm, although the cotton had been shipped to his firm at Memphis. Upon the rescission of this sale, Stuckey directed O’Brien to notify FarnsworthEvans Company to turn the cotton over to Fargason Company. The cotton was shipped out of Lepanto on October 16, and on Monday thereafter Stuckey wrote to Fargason Company to place the cotton to the credit of the Bank of Lepanto, and gave Payne a copy of the letter.
The cotton was actually delivered into the possession of Fargason Company, on October 26, and the managing officer of that company testified that the delivery was accompanied by a note from Farnsworth-Evans Company advising the cotton should be placed to the credit of the account of Sam Stuckey Company, and the cotton was immediately so credited. •
On behalf of Fargason Company a letter was offered in evidence to that company from Sam Stuckey Company, dated 11-11-20, directing the 26 bales of cotton to be placed to the credit of the Bank of Lepanto, and on behalf of the Fargason Company it was testified that this was the only letter received from Stuckey Company on the subject, and it was not received until after the cotton had been credited to Stuckey Company’s account. But, as has been said, Stuckey testified that he wrote a letter to that effect on the Monday following October 16th, and we must assume the court' found there was such a letter, and in the ordinary course of the mails it would have been delivered to Fargason Company in Memphis before the cotton was delivered to it on October 26.
The original of a letter from the bank to Fargason Company, advising the cotton should be sold for the account of the bank, dated November 2, 1920, was also offered in evidence, and on behalf of Fargason Company it was testified that this was the first letter received from the bank; but Payne testified that he had written a previous letter, which in the usual course would have reached Fargason Company before October 26, and the second letter was written because the receipt of the first one was not acknowledged.
Fargason Company sold the cotton November 11, 1920, and credited the proceeds, less its charges as cotton factors, to the general account of Stuckey Company.
It is shown by the testimony, both of Stuckey and Payne, that the ¡bank advanced the money which paid for the 26.bales of cotton; and it is not claimed by Fargason Company that it made any advance on the 26 bales of cotton, or 'any of them.
The bank sued Fargason Company for the net proceeds of the. cotton, and the 'court below directed a verdict in the bank’s favor.
There is not involved in this litigation any question as to Fargason Company’s compensation as factors, for, as has been said, the suit was brought for the net proceeds.
For the reversal of the judgment it is insisted, first, that the writing set out above is a mere executory contract, which never operated to pass title as against Fargason Company, for the reason that there was never any delivery thereunder; second, that the cotton was actually delivered to Fargason Company as a creditor of Stuckey Company, and an appropriation thereof for that purpose made by 'a credit on the books of the Fargason Company, and the subsequent direction of the Sam Stuckey Company to sell the cotton for the account of the bank could not operate as a rescission of the prior payment.
There was a delivery, or rather a redelivery, of this cotton to the Fargason Company; and if this delivery was for the account of the bank, then the written agreement set out above became an executed one. The controlling question, therefore, is, for whose account was the delivery to Fargason Company made? Was Fargason Company’s possession that of a creditor or that of a factor?
We think the testimony set out is legally sufficient to support the finding that the cotton was delivered to Fargason Company as a factor, and not as a creditor having the right to apply the cotton to the general credit of Stuckey Company.
In section 4 of the article on Factors in 11 R. C. L., p. 755, it is said: ‘ ‘ The distinction between a contract of sale and a consignment of goods to a factor is that in the case of a sale the title passes to the buyer, while in the case of a consignment to a factor the possession passes . to the factor but the title remains in the consignor. Where goods are delivered by one party to another, to sell for the party delivering them, it creates the relation of agency, and the title remains in the principal, and the factor or agent is liable to pay, not a price, but to account for the proceeds of the goods when sold.” See also Mechem on Sales, sec. 43; Mechem on Agency (2nd. ed.), sec. 2499.
If the delivery to Fargason Company was as a factor, and not as a creditor, it was the duty of that company to apply the proceeds of the sale thereof, as directed, to the account of the bank, The undisputed evidence shows direction was given to Fargason Company before the cotton was sold to apply it to the 'account of the bank, and the testimony of Stuckey and of- Payne is that this direction was" given before the cotton was received by Fargason Company.
In other words, the testimony is legally sufficient to support these findings. The bank advanced the money to buy the cotton; the cotton was bought pursuant to the executory agreement, which became executed upon the delivery of the cotton to Fargason Company in Memphis. The delivery was to Fargason Company as a factor, and not as a creditor, and was for the account of the bank, and not that of Stuckey Company.
The judgment must therefore bé affirmed. | [
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Hart, J.
F. Burkart Manufacturing Company recovered judgment in the circuit court against Jeter Morse and S. J. Morse, partners doing business as the Morse Brothers Lumber Company, in the sum of $2,466.76 for lumber sold to the defendants.
The defendants appealed to this court, and executed an appeal bond under the statute. The supersedeas bond was duly approved by the clerk of this court and a supersedeas was issued. The judgment of the circuit court was affirmed on June 26, 1922. Morse v. Burkart Mfg. Co., 154 Ark. 362. On the 14th day of July, 1922, at the request of the F. Burkart Manufacturing Company, an execution wjas issued by the clerk of this court against the defendants, including the sureties on their appeal bond. The defendants in the action and the sureties on their appeal bond filed a stay bond under the provisions of secs. 4294-4297 of Crawford ■& Moses’ Digest.
The plaintiff, F. Burkart Manufacturing Company, has filed a motion to quash the stay bond.
In the first place, it may be stated that the sureties of the defendants on the supersedeas bond became in legal effect parties to the suit under our statute, and, in case of affirmance in such cases, judgment may be rendered against them by this court without notice to them. White v. Prigmore, 29 Ark. 208, and Rogers v. Brooks, 31 Ark. 194.
The sureties on the supersedeas bond having made themselves parties to the suit by entering into the appeal bond, are defendants within the terms of the statute relating to stay of execution in the hands of an officer. The statute provides that the defendants may give a stay bond, and, as we have already seen, the sureties on the appeal or supersedeas bond became defendants to the action by signing it.
The language of the statute authorizing a stay of execution by defendants giving bond as prescribed by the statute, does not limit the right of such stay to the circuit or chancery courts. To limit the right of stay to the lower courts which have jurisdiction to render original judgments and decrees would restrict the language of the statute within less than its, ordinary and plain meaning. The sureties on the appeal bond having become defendants to the action by signing the same, cannot sign the stay bond as sureties, but must sign it as principals. The stay bond is defective in this respect, and leave will be given to the defendants, as defined above, to secure proper sureties on the stay bond, if they are so advised and desire to do so.
It follows that the motion to quash the stay bond will be denied. | [
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McCullotjch, C. J.
Appbllánt instituted this action-against appellee to recover'the sum of $1,950, due on account for the price of a.lot of rice sacks sold, and delivered by appellant to appellee.
Appellee answered, admitting Ms indebtedness to appellant in the snm named for the price of sacks purchased, but set forth a counterclaim in the sum of $2,204.57 — $254.57 in excess of appellant’s claim for the balance of purchase price of three carloads of rice alleged to have been sold by appellee to appellant through the latter’s agent, L. P. Kunz.
Appellant answered the counterclaim, denying that he had purchased the rice from appellee.
There was a trial of the issue before a jury, and a verdict in appellee’s favor for the balance set forth in the counterclaim in excess of appellant’s debt.
The principal argument here for reversal is thg>t the evidence is not sufficient to sustain the verdict.
The testimony adduced by appellee was sufficient to show that Kunz was authorized by appellant to -purchase rice in the locality where appellee was engaged in growing rice, and that he purchased, for appellant, three carloads' of 'rice from appellee at the price claimed by the latter. The contention of appellant is that Kunz was authorized merely to buy rice to be shipped to appellant at its place of business in New Orleans, with draft for the purchase price attached to the railroad bill of lading.
There is sufficient evidence to show that appellant had frequently permitted Kunz to purchase rice by other methods; that is to say, by giving draft directly on appellant without attaching, the draft to the bill of lading. Moreover, the facts of the case fall within the rule that persons dealing in good faith with a general agent acting' within the apparent scope of his authority, are not, without notice, bound by specific instructions limiting the method of conducting the business, of the principal. Three States Lumber Co. v. Moore, 132 Ark. 371.
There was a conflict in the testimony of appellee and Kunz as to whether the sale of the rice was made to Kunz for himself or fof appellant. Appellee testified that he sold the rice to appellant, Kunz acting as the latter’s agent, but Kunz testified that he did not buy the rice for appellant, but entered into an agreement with appellee that they would ship the rice together and have it milled and sold. He testified, in other words, that the agreement between him and appellee was that the rice should be shipped to New Orleans and “toll-milled” and sold and the profits divided between them.
The evidence was sufficient to justify a finding in favor of appellee, and the issue was properly submitted to the jury upon an instruction which permitted.appellee to recover only upon proof of the sale of the rice to appellant through its authorized agent.
It is next contended that appellee ratified the act of Kunz in shipping the rice to his own account by accepting part payment from Kunz, after discovering that Kunz had handled the rice as his own. This contention is based upon a letter written by appellee to appellant after appellee discovered that Kunz had shipped the rice to be “toll-milled” instead of delivering it to appellant in consummation of the sale, in which said letter appellee stated that he had received certain payments from Kunz in money and merchandise, and demanded payment from appellant for the balance.
It appears from the testimony that, at the time of the sale of the rice by appellee, Kunz drew two drafts in favor of appellee on appellant, one for $3,600 and the other for $3,100. These two draft's were given for the price of the rice after deducting an amount which appellee owed for seed rice purchased from Kunz. Appellant paid the larger one of the drafts, but refused to pay the other one, and it is still in the hands of appellee. Subsequently, Kunz gave another draft to appellee on appellant for $1,000, and appellant refused to pay that draft also. Kunz paid appellee $900 in two drafts, one for $600 and one for $300.
We do not think that appellee’s acceptance of a portion of the price from Kunz after appellant repudiated the purchase constituted a ratification of the act of Kunz in shipping the rice on his own account. Appellee was bound to accept any payments which, were offered, and this did not imply a. ratification of the act of Kunz in taking the rice for himself instead of delivering it to his principal on the latter’s own account. Appellant being bound for the price of the rice under the contract of sale made by appellee with Kunz, any and all payments made by Kunz inured to appellant’s benefit. Appellant was put in no worse attitude by partial payments having been accepted by appellee, and is in no attitude to claim that a mere acceptance of partial payments by appellee from Kunz would constitute ratification.
Finally, it is contended that the verdict is excessive as to amount, and that, in any view of the testimony, appellant is entitled to recover of appellee $645.43 instead of appellee being entitled to recover $254.57. Counsel for appellant are mistaken in the statement that there is undisputed evidence in accordance with their contention as to the condition of the accounts between the parties. The verdict of the jury was based upon the testimony of appellee, which was to the effect that, after allowing credits mentioned and deducting appellant’s account against him for the price of the rice sacks, there was a balance due him of $254.57.
Judgment affirmed. . | [
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McCulloch, C. <1.
Appellee was organized as a road improvement district in Stone County under general statutes authorizing the creation of such districts by order of the county • court, and appellant was employed as engineer to form plans and supervise the work of construction, and his compensation was fixed in the contract at five per centum of the cost of constructing the improvement. The contract contained also the following clause with respect to additional compensation for overtime caused by delay:
“The party of the first part agrees that, in the event the work herein contemplated is not completed within the time limit as prescribed by the contract to be entered into between the board of commissioners and the contractor or contractors, whether the delay is caused by the commissioners or by the contractor, the party of the first part will pay to the party of the second part the sum of $12.50 per day for each day after the expiration of the time in which the contract is to be fulfilled by the contractor. The said sum shall be in addition to the amounts prescribed in the previous section of this contract”
The cost of construction under appellant’s supervision amounted to the sum of $93,097.15, and the commission under the terms of the contract was $4,654.86. There was a delay of 324 days in the completion of the work of construction as fixed in the contract between the district and the contractors, and appellant has been paid by the district said commission of $4,654.86, and also has been paid the further sum of $2,790.60 as additional compensation during the delay.
Appellant instituted the present action against the district in the chancery court of Stone County to recover the additional sum of $1,259.40, alleged to be due him for per diem during the delay in completion of the contract.
Appellee filed a cross-complaint, alleging that the delay was caused by the fault of appellant in rendering incorrect estimates of the cost of the improvement, and that he was not entitled to recover anything for per diem during such delay. It is alleged that appellant was indebted to the district in the sum of $5,070.82 for the amount overpaid him, and there is a prayer for recovery of that amount.
The case was tried before the chancellor, there being no question raised as to that court being the proper forum for determining the issues, and there was a decree in favor of appellee for the recovery against appellant of the sum of $215.60. It is conceded that the court, in reaching this result, allowed appellant’s claim for $12.50 per day during the additional period of delay, excluding Sundays, amounting to $684.40, but charged appellant with the sum of $900, which the court found that appellant was not entitled to by reason of the fact that he had incorrectly estimated the cost of construction $18,000 less than the actual cost.
We have reached the conclusion that the court whs not correct, either in allowing appellant to recover the overtime charged or in charging him back with the $900 for alleged mistake in estimate. The court was correct, in excluding Sundays from the estimate of overtime to be allowed, but we think that, under the facts of the case, appellant was not entitled to recover anything on this ■feature of the contract.
A fair and reasonable interpretation of the contract is-that appellant was to be allowed pay only during delay caused by the commissioners or by the contractor. The proof shows that the real cause of the delay for which appellant makes the present overtime charge was brought about by reason of the fact that the district was without funds, and that the construction work had to stop on that account. This was. due to the incorrectness of appellant’s preliminary estimates, and it was therefore not a delay caused by the commissioners or the contractor. The inaccuracy of the estimates may have resulted without fault or' carelessness on the part of appellant, but the delay resulted, nevertheless, not from any fault of the commissioners, but from this inaccuracy in the estimates which caused them to borrow a smaller sum of money than they subsequently found to be necessary in completing the improvement. This was one of the contingencies which the contract for overtime payment during the period •■of delay did not cover, for, as we have already said, the contract, when fairly interpreted, means that appellant was to be paid for overtime in case of delay caused by the commissioners or by the contractor. He took his chances on incidental delays caused otherwise than by the fault of the commissioners or the contractor. For this reason we are, as before stated, of the opinion that appellant is not entitled to recover the sum he nowr claims for the additional overtime.
There was a settlement made between the parties as to part of the overtime charge, and no sufficient ground is shown for disregarding the settlement and allowing the recovery of this amount thus voluntarily paid.
The court found that the cost of construction -was $18,000 in excess of appellant’s final estimate of the cost, and for this reason appellant was not entitled to the com mission on that additional cost, and that he should be required to pay it back. The evidence establishes that this much of the increased cost of the improvement resulted from the difference in the estimate on the classification of material removed in constructing- the road — the difference between the removal of earth and rock. The evidence shows also that this was such an inaccuracy as did not result from fault or carelessness, being- a matter about which there could be no exact estimate on account of the surface indications.
Be this as it may, the inaccuracy did not result in injury to ■■the district, for if the mistake had not been made it would not have lessened the cost of the work to the district. It is true that there was a delay in the work on account of this additional cost, running in excess of the limits fixed by the general statutes, but this defect was subsequently cured by a special act of the Legislature, and the work proceeded with the limitation removed.
But, after all, there was no injury to the district by reason of the mistake in the estimate, and the occurrence of such a mistake was not sufficient to deny appellant’s right to recover the amount of compensation stipulated in the contract, viz: five per centum of the actual cost of construction.
Our conclusion therefore is that the chancellor was incorrect in making both allowances, the one to appellant for overtime, and the other to appellee for recovery of the five per centum commission on the $18,000 increase in the cost of construction. The decree is therefore reversed,' and judgment will be entered here' dismissing both the complaint and cross-complaint. It is so ordered. | [
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Wood, J.
Appellant appeals from a judgment of conviction on an indictment charging' him, in good form, of the crime of carnal abuse of one Rebecca George. The indictment was returned by the grand jury of Greene County on the 7th day of December, 1921.
1. The appellant moved to quash the indictment at the May term of the Greene Circuit Court, 1922, upon the sole ground that there was no legal evidence before the grand jury upon which to base the indictment. Appellant relies upon section 298S, Crawford & Moses’ Digest, which reads as follows: “The grand jury can receive none but legal evidence. ’ ’ At the hearing on the motion the court permitted the appellant to introduce as a witness the stenographer who took down the testimony of the witnesses before the grand jury that returned the indictment against the appellant, and permitted the stenographer to read the testimony of the witness, Rebecca George, taken before the grand jury in the investigation of the alleged crime of carnal abuse of Rebecca George by appellant.
In her testimony before -the grand jury Rebecca George stated that she had been acquainted with the appellant some four or five years. She was asked whether he had ever had any improper relations with her, and refused to answer. She was asked whether or not she had testified in Squire Hayes’ court that Tony McDonald had sexual intercourse with her, and she stated that she remembered testifying, but was not going to inform the grand jury whether she was telling the truth then or not. She was then asked whether she remembered saying that she did tell it, and answered, “Yes.” She was asked whether the things she told there were the truth and answered, “I am not going to tell you anything.” She admitted that her baby was there. The grand jury asked who was the father of her baby, and she refused to tell. She stated that she remembered telling the prosecuting attorney about it, but refused to tell the grand jury anything about it. Further along in her examination she was asked this question: “Do you rsemember telling us that Tony McDonald was the father of the child?” Answer. “I told you, but you didn’t know if I told you the truth.” She was further asked, “You told us that Tony McDonald was the father of the child, and that Tony got you to sign a-letter saying that he was not the father of the child, but that he was the father of the child?” Answer, “Yes sir.” Question, “Was that the truth?” Answer, “I am not going to tell you.” She was recalled later before the grand jury, and in afisAver to questions stated that her baby was not Tony’s baby; that it was Hughie Warren’s baby, and further stated that Tony had not had at any time sexual intercourse with her, and that her prior statements to the effect that Tony had sexual intercourse with her were false.
The' witness next read the testimony of Mrs. Wilcv George, the mother of Rebecca George, taken before the grand jury. Mrs. George stated that upon ascertaining that her daughter was enceinte, she asked her daughter who -was the father of the child, and Rebecca stated that it was Tony’s. She then interviewed appellant in regard to the matter, and he admitted taking Rebecca to places, but denied having intercourse with her. Also "Wiley George, father of Rebecca George, testified before the grand jury that the appellant was the father of the child. He stated that Tony denied it, and said that if he had done it he knew a half dozen other men who had been with her beside himself, and further, that he could get by with anything he did in Paragould.
The testimony of Mrs. Hancock, taken before the grand jury, was to the effect that she and Mrs. Bob McDonald talked about the trouble that Tony McDonald and Rebecca George were in, and Mrs. McDonald stated that it was Tony’s child; that they had been together in her house. She stated that Rebecca had intercourse with Tony right in her own house — she heard them, and accused Rebecca of it, and Rebecca admitted it, and told witness about it. This witness further stated that after Hughde Warren was killed she heard Mrs. Bob McDonald say that they were going to get Rebecca to swear it on Hughie Warren — they were going to do that to save Tony. There was further testimony heard before the grand jury in the investigation of the charge upon which it returned the indictment, but the above is sufficient to show that the grand jury did have before it some legal evidence. It was competent upon the investigation of such a charge to prove that the appellant and Rebecca George had associated together and had opportunities for sexual intercourse, and that a child was born to Rebecca George. It was also competent to ask Rebecca George if she had not testified before the examining magistrate that the appellant had sexual intercourse with her, and, upon her answering in the affirmative, to further ask her whether or not she was then telling the truth. After refusing to answer whether she had told the truth or not, it was for the grand jury to determine whether she had testified to the truth before the examining magistrate, and it was still within the province of the grand jury to determine whether her testimony before the examining magistrate was the truth, notwithstanding .she afterward changed her story.
Therefore, it will be readily seen that the case before us is not one where the grand jury returned an indictment without having any legal evidence whatever upon which to ground its charge. The facts clearly differentiate this case from those cases set out in appellant’s brief, and upon which appellant relies, to the effect that where no evidence at all has been heard by the grand jury, or where an indictment has been returned upon wholly incompetent testimony, the indictment may be quashed upon motion before plea. As was said in State v. Logan, 1 Nevada 509: “But the reason of the rule will not authorize the setting aside the indictment, merely because evidence not of the best legal character is received and considered. If there be nothing to support the bill but evidence clearly incompetent, and which would not be admissible at the trial, as the sole testimony of a person rendered incompetent by conviction of an infamous crime, the indictment may be quashed before plea (1 Wharton’s American Criminal Law, sec. 493), but where there is the slightest legal evidence, the court cannot inquire into its sufficiency, or set it aside, because some illegal evidence was received with it.”
Therefore, appellant was not entitled to have the indictment quashed under the above statute, even if the doctrine of our court were in harmony with the doctrine of the cases upon which appellant relies in his brief. But our own court, in State v. Fox, 122 Ark. 197, has definitely ruled that a motion to quash an indictment can only be made upon one of the following grounds: (1) A substantial error in the summoning or formation of the grand jury. (2) That some person other than the grand jurors was present before the grand jury when they finally acted upon the indictment. (3) That the indictment was not found and presented as required 'by law. The above grounds are those contained in sec. 3057, C. & M. Digest.
Construing this statute in State v. Fox, supra, we said: “The grounds above specified exclude any right to make such motion for any other than one of the specified causes. The motion to quash the indictment for want of legal and sufficient evidence adduced before the grand jury to warrant the finding thereof certainly does not come within the first and second subdivisions of said section, and we do not think it can be said to be included within the third subdivision that the indictment was not found and presented as required by law. * * * * It was never the purpose of the law, as clearly indicated by the statute designating the only grounds upon which a motion to quash, or set aside, an indictment can be made, that such motion could be made because of the introduction of illegal testimony or want of any testimony at all to support the return of an indictment, and thus bring the testimony and proceedings before the grand jury for review by the trial court before a plea to the charge by the accused. The grand jury is an inquisitorial body, the proceedings of which are intended to be kept secret, and cannot be examined and reviewed by a trial court upon a motion to set aside or quash an indictment, except for causes specified in the statute.”
Section 2988, C. & M. Digest, which provides that “the grand jury can receive none but legal evidence,” in view of the holding of this court in State v. Fox, supra, is directory to the grand jury only, and its failure to observe the statute does not give the accused the right to set aside or quash an indictment on account of such failure. Under our Constitution (art. 2, § 8) and statutes (§§ 2977, 3006, C. & M. Digest) the grand jury is an inquisitorial and accusatory body. Such being the case, when it has returned into court an indictment accusing a person of crime, such ! £ an indictment is only an accusation and does not even raise a presumption of guilt, and in itself can do nothing except to serve as an accusation. ’ ’ Any irregularity in the finding and return of it by the grand jury does not deprive the accused of any substantial right. Worthen v. State, 82 Ark. 321; Latourette v. State, 91 Ark. 65. When the grand jury has returned an indictment accusing a person of crime without hearing any legal evidence, such a proceeding upon the part of the grand jury does not deprive the accused of any right guaranteed to him under the Constitution. Therefore, the accused cannot have such an indictment or accusation quashed or set aside except for some cause designated by the statute and in the manner therein provided. In the absence of a statute authorizing it, it is the general rule that the court will not inquire whether there was sufficient evidence before the grand jury on which to find an indictment. 14 R. C. L. 49; 28 L. R. A. 324, note 3; note to In re William B. Kennedy, 1 A. & E. Ann. Cases, p. 842; 12 Standard Ency. Proc. 620, and cases cited in note; Lee v. State, 148 S. W. 567, 40 L. R. A. (N. S.) 1132, note.
Our lawmakers, as we have seen, in § 3057, C. & M. Digest, have expressed the grounds upon which an indictment can be quashed. The expression of these grounds excludes all others, and the fact that the grand jury has not heard any legal evidence, or has heard evidence that is hot legal and competent, is not made one of the grounds for the quashing of an indictment. The trial court, therefore, did not err in overruling appellant’s motion to quash.
2. The prosecutrix, Rebecca George, testified that she was under sixteen years of age when the appellant had sexual intercourse with her; that as a result of such intercourse she became pregnant and later gave birth to a child. Over the objection of appellant, she exhibited the child to the jury, and she was allowed to testify that the appellant was the father of the child, and she was allowed to testify to the particular occasion and time of the sexual intercourse with the appellant when the conception took place. The appellant offered to show by a certain witness that the prosecutrix had admitted to her that the child belonged to Hughie Warren, and also offered to show by certain witnesses that about the time the conception took place, according to her testimony, she was associating with one Hugkie Warren and one Bob McDonald, on certain occasions, in a manner that would warrant the conclusion that they had opportunities for, and might have had, sexual intercourse with her also about the time that she alleged the conception took place. The court, over the objection of the appellant, rejected such testimony.
In Fuller v. State, 205 Pacific 324, the charge was the crime of rape on a negro girl under the age of consent. The accused offered to show that the child, which was produced by the prosecutrix and referred to by her as the result of an act of intercourse with the accused on a certain day, was the child of another. The court said: “Stated shortly and simply, he (the accused) had a right to account for the result, i. e., the child, by showing that it was due to another cause, that is, the sexual intercourse of another. His right to 'do this was coequal with the right of the State to support the allegation of rape by showing the outcome of the act. If appellant could show that he was not the father of the child directly charged to be his, it was most material to his defense, and he should be allowed to prove it by all relevant evidence. There is no dissent in the authorities from these propositions.”
To support its holding, the court cites the following cases: State v. Mobley, 87 Pac. 815; State v. Apley, 141 N. W. 740; 48 L. R. A. (N. S.) 269, and note at page 276; People v. Flaherty, 29 N. Y. Supp. 641: Bice v. State, 38 S. W. (Tex.) 803; State v. Height, 91 N. W. (Iowa) 935-940; 59 L. R. A. 437; People v. Currie, 111 Pac. (Cal.) 108; Parker v. State, 136 S. W. (Tex.) 453; 22 R. C. L., sec. 45, page 1211. We have examined the oases cited and find that they support the court’s holdings.
It is a well established doctrine that in prosecutions for carnal abuse, the prosecutrix being under the age of consent, her illicit relations with other men, showing want of chastity, are immaterial, because in such a pros eeution the chastity of the prosecutrix is not in issue, and testimony tending to prove specific acts of sexual intercourse with others than the accused is not relevant. Pleasant v. State, 15 Ark. 627; Plunkett v. State, 72 Ark. 409; Renfroe v. State, 84 Ark. 16; Peters v. State, 103 Ark. 119; Davis v. State, 150 Ark. 500. But the doctrine seems to be equally well established, as shown by the above authorities, that where the State undertakes on direct examination, as was done here, to corroborate the testimony of the prosecutrix by introducing a child which she testified was the result of the sexual intercourse with the accused, then testimony introduced by him in rebuttal, tending to prove that another might have been the father of the child, is competent and relevant. The logical tendency of such testimony would be to break down the credibility of the prosecuting witness on an issue which the State has elected to bring forward as material to the cause. Before such testimony becomes relevant, however, it devolves upon the appellant to show that the alleged acts tending to prove sexual intercourse with another occurred about the time conception took place. The testimony, in other words, to be competent must tend to contradict 'and rebut the testimony elicited by the State on the direct examination of the prosecutrix.
Without discussing the ruling of the court upon the offered testimony of each particular witness, which the court rejected, the above will be a sufficient guide to the court in determining what testimony of the character indicated will be competent on a new trial. The court erred in excluding the testimony tending to prove that the prosecutrix admitted that the child was the child of Hughie Warren and tending to show that others had sexual intercourse with the prosecutrix about the time the child was begotten.
3. The appellant offered testimony tending to contradict the testimony of the prosecutrix given before the magistrate in the preliminary trial of the appellant. The appellant did not ask the prosecutrix on cross-examina fcion any questions concerning her testimony before the examining magistrate, and did not ask her concerning specific acts of immorality or illicit intercourse with others. No proper foundation, therefore, was laid for the introduction of testimony showing that the prosecutrix had made statements contradictory to her testimony on the trial. If the appellant had asked the prosecutrix concerning the specific acts of alleged intercourse with others, and she had answered in the negative, appellant would have been bound by her answers. The offered testimony in the form presented was wholly collateral to the issue being tried, and the court, therefore, did not err in not allowing same. See Davis v. State, supra; Brust v. State, 153 Ark. 348.
4. The court quashed the depositions of certain witnesses taken by the appellant at Caruthersville, Missouri. Due and proper notice was given to the prosecuting attorney for the taking of such depositions. The depositions were not taken 'by consent, and appellant did not apply to the court, or a judge in vacation, etc., for an order authorizing him to take the depositions. Sec. 3112, C. & M. Digest, requires this be done. The above section is a part of the Criminal Code, and has never been repealed. Section 118 of the Revised Statutes, digested as sec. 130, ch. 52 of Gould’s Digest, provides as follows: “When any issue of fact is joined in any criminal ease, and any witness for the defendant resides out of the State, or residing within this State, is ancient, sick, infirm, or is about to leave the State, such defendant may apply to the court in which the cause is pending, for a commission to examine such witness upon interrogatories thereto annexed; and such court shall grant the same on the same terms as are provided by law in civil cases.”
In Gibbony v. Rogers, 32 Ark. 462, the court held that the above provision of the criminal code, which was then digested as sec. 1819 of Gannt’s Digest, and which is the same as section 3112, Crawford & Moses’ Digest, was not intended “to so alter or amend the law as it then stood in Gould’s Digest, supra, to prohibit the taking of depositions ont of the State in criminal cases and to make a distinction in that regard between them and civil cases.” But it was not there held that the depositions of witnesses residing out of the State could be taken in a criminal case without an order of the court or judge for that purpose. That was not the question before the court in Gibbony v. Rogers, supra. In that case there was an application for an order authorizing the taking of depositions of witnesses residing out of the State, and this court held that the order was necessary. So, as the law now stands, the depositions of witnesses residing out of the State may be taken in criminal eases, but such depositions can only be taken upon order of the court, etc., authorizing the same, as provided in sec. 3112 of Crawford & Moses’ Digest. The trial court therefore did not err in suppressing the depositions.
For the error indicated, the judgment is reversed and the cause remanded for a new trial. | [
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RONALD L. SHEFFIELD, Justice.
[[Appellant C.H. has filed an interlocutory appeal of an order entered by the Crawford County Circuit Court, Criminal Division, on January 11, 2010, setting aside that court’s December 2, 2009 order transferring C.H.’s case to the juvenile division of the circuit court. On appeal, C.H. contends that the criminal division of the circuit court could not revest itself with jurisdiction once it had transferred the case to the juvenile division. We have jurisdiction pursuant to Ark. R. Sup.Ct. 1 — 2(b)(1) and (4) (2010), as this case presents an issue of first impression needing clarification and development of the law.
On November 12, 2009, C.H. was charged with one count of rape, a Class Y felony, in violation of Ark.Code Ann. § 5-14-103 (Supp.2009), in the criminal division of the Crawford County Circuit Court. He was accused of unlawfully and felo-niously engaging in deviate sexual activity with his five-year-old half-sister, between November 2, 2009, and |2November 10, 2009. On November 16, 2009, C.H. filed a motion to transfer the case to the juvenile division of the circuit court, pursuant to Ark.Code Ann. § 9-27-318 (Repl.2009). C.H. was born on January 10, 1992, and was seventeen years old at the time of the alleged rape.
The criminal division of the circuit court held a hearing on December 2, 2009, to determine whether to transfer the case, pursuant to Ark.Code Ann. § 9-27-318(e). At the hearing, C.H. argued that the ease should be transferred to the juvenile division because he was only seventeen when he allegedly committed the crime; his alleged crime was neither aggressive nor violent, and it did not cause physical injury; he “comes from a broken home”; he had no criminal history; and he had a high chance of being rehabilitated and not offending again, unless he were to serve a sentence in the Arkansas Department of Correction. The State argued against transferring the case because C.H. was only two months shy of his eighteenth birthday when he allegedly committed the rape; the offense was heinous; the fact that C.H. was preparing to enter the military indicated that he had an adult level of sophistication and maturity; the criminal division of the circuit court could retain jurisdiction longer than the juvenile division; and, though he may have been remorseful, C.H. had not yet admitted that he committed the offense.
Several witnesses testified at the hearing. Sean Pittman, a mobile-assessment specialist and clinical social worker at the Piney Ridge Center in Fayetteville, Arkansas, a treatment center for juveniles with emotional and behavioral disorders, testified that he had examined |aC.H. and he believed C.H. would be a good candidate for Piney Ridge. However, to qualify, C.H. would have to be admitted to Piney Ridge before his eighteenth birthday. Erin Mata, a juvenile intake officer and department supervisor at the Crawford County Juvenile Probation Office, testified about the office’s policies on overseeing the probation of extended-juvenile-jurisdiction defendants who have been charged with sexual crimes, and how juveniles who do not cooperate can receive adult sentences from the court. C.H.’s father testified that C.H. did well in school and did not have any disciplinary problems; that C.H. kept to himself as much as possible at home; that he was intelligent; that the family encouraged C.H. to join the military in order to gain some maturity; and that C.H. was obsessed with video games. C.H.’s mother testified that there was a history of mental illness in her family. She also explained that at one point when C.H. was thirteen he grabbed her arm and twisted it behind her back. As a result of this assault, C.H. was evaluated by a counselor through the juvenile court system, though no charges were filed.
At the conclusion of the hearing, the criminal division of the circuit court indicated that it wanted C.H. to undergo a psychological evaluation to verify his IQ and social-functioning capacity, and to determine if he had any psychological diseases. On December 11, 2009, he was evaluated by a psychologist, Donna Van Kirk, Ed.D., who diagnosed him with As-perger Disorder and Disruptive Disorder Not Otherwise Specified. Accordingly, C.H. filed an amended motion to transfer his case to the juvenile division on December 21, 2009. On December 23, 2009, the State filed a response objecting to the motion to transfer. The State | ¿argued that Van Kirk’s evaluation did not conclusively show that C.H. had Asperger Disorder, and therefore C.H. had not shown that a transfer was warranted under Ark. Code Ann. § 9-27-318(g)(6). Section 9-27-318(g)(6) provides that, in determining whether to transfer a case to the juvenile division, the circuit court may consider the “sophistication or maturity of the juvenile as determined by consideration of the juvenile’s home, environment, emotional attitude, pattern of living, or desire to be treated as an adult.” Instead, the State argued that, given his age, the nature of the crime he was charged with, his history of antisocial behavior and physical violence, and his high level of intelligence, C.H. should be tried as an adult.
On December 30, 2009, the criminal division entered an order transferring the case to the juvenile division. As a basis for its order, the court made the following findings:
(1) The protection of society requires prosecution as an extended juvenile jurisdiction offender or in the juvenile division of the circuit court;
(2) The alleged offense was violent, but not committed in an aggressive, premeditated or willful manner;
(3) The offense was against a person;
(4) The culpability of the juvenile is offset based on the diagnosis of Asperger’s Disorder by Donna Van Kirk Ed.D.;
(5) The juvenile has not previously been adjudicated a juvenile offender;
(6) The juvenile is not mature or sophisticated based on evidence submitted at hearing of the juvenile’s home, environment, emotional attitude, pattern of living, or desire to be treated as an adult;
(7) There are facilities or programs available to the judge of the juvenile division of the circuit court which are likely to rehabilitate the juvenile prior to the expiration of the juvenile division of the circuit court’s jurisdiction;
(8) The juvenile acted alone;
(9) There are written reports submitted by Donna Van Kirk Ed.D. relating to the juvenile’s mental, physical, educational, and social history. Specifically Donna Van Kirk Ed.D. diagnosed the juvenile with Asperger’s Disorder.
¡-,On January 4, 2010, the State moved for designation to file the case under the Extended Juvenile Jurisdiction Act, pursuant to Ark.Code Ann. §§ 9-27-501 et seq., and § 9-27-318 (Repl.2009). The juvenile division held a hearing on January 6, 2010. Prior to the hearing, a plea agreement was reached between C.H. and the State. The agreement indicated that in return for pleading guilty, C.H. would (1) be put on probation with the Crawford County Juvenile Department for three years and four days; (2) be designated an Extended Juvenile Jurisdiction Offender; (3) enter and complete treatment at the Piney Ridge Center, beginning January 6, 2010; (4) provide a DNA sample to the Crawford County Sheriffs Department; (5) complete a Community Notification Risk Assessment for purposes of registering as a sex offender; (6) follow the Crawford County Juvenile Department Safety Plan; and (7) have no contact with his half-sister or any other juvenile under the age of fourteen. C.H. and his parents would also waive any rights to a jury trial, and C.H. would be re-evaluated by the juvenile division on his twenty-first birthday. Both C.H. and his mother signed the plea agreement.
At the hearing, the State informed the juvenile division that the victim’s parents did not approve of the disposition or the plea contemplated. The victim’s mother, C.H.’s stepmother, wanted the State to proceed against C.H. as an adult. The victim’s father, who is also C.H.’s father, indicated that he might approve of some other juvenile disposition, but objected to C.H. being admitted to Piney Ridge. The State maintained that it could not accept a plea from C.H. because it could not force the victim’s mother to agree to it. The 16court agreed that the case could not go forward as an extended-juvenile-jurisdiction case without C.H.’s father’s waiver of his right to a jury trial. C.H. then argued that his father’s refusal to sign the waiver was directly in conflict with his best interest, and he moved to have the court appoint a guardian ad litem to act in loco parentis. In the alternative, C.H. asserted that he should be transferred to Piney Ridge, pending a determination of whether pleading guilty would be in C.H.’s best interest. Finally, C.H. argued that he pled guilty in reliance upon the State’s offer as set out in the plea agreement, and requested that a hearing be scheduled to enforce the State’s offer. The State countered that the appointment of a guardian ad litem, who could waive C.H.’s right to a jury trial, would not resolve the fact that the victim’s mother opposed any sort of adjudication in the juvenile division, and the State would not compel her to acquiesce to a disposition of which she disapproved.
After hearing these arguments, the juvenile division found that it could not proceed because C.H.’s father refused to sign the waiver of C.H.’s right to a jury trial. The juvenile division noted that the case would likely be returned to the criminal division, and that the order from the criminal division transferring the case to the juvenile division specifically stated that the matter would be prosecuted as an extended-juvenile-jurisdiction case. The court observed that it was never the State’s original intention to pursue this case as an extended-juvenile-jurisdiction case. Therefore, the juvenile division contemplated that the State would file a motion to set aside the criminal division’s transfer order. The juvenile division also stated that C.H. was not entitled to a hearing to enforce the plea offer because the State still had the 17possibiIity of revoking its offer. Finally, the juvenile division denied C.H.’s request to be placed at Piney Ridge pending the outcome of any motion to set aside the criminal division’s transfer order.
On January 6, 2010, the State moved to set aside the criminal division’s order to transfer the case to the juvenile division. The State asserted that the case would not be resolved in the juvenile division before C.H.’s eighteenth birthday, on January 10, 2010, and therefore the case should proceed in the criminal division.
On January 11, 2010, the criminal division of the circuit court entered an order setting aside its December 30, 2009 order transferring the case to the juvenile division. It reasoned that the juvenile division had declined adjudication because the victim’s mother had objected to proceeding there. As a result, the case would not be adjudicated before C.H.’s eighteenth birthday. The court also stated in this order that it had entered the transfer order “with the understanding that the case would be pled before the juvenile turned eighteen on January 10, 2010.” On January 20, 2010, C.H. filed a timely interlocutory appeal. He also filed a motion for stay of the proceedings on January 28, 2010, which the circuit court granted the same day.
On appeal, C.H. argues that the criminal division of the circuit court erred when it set aside its order transferring the case to the juvenile division and revesting itself with jurisdiction. He maintains that once the criminal division transferred the case, which it did with a valid order pursuant to its statutory authority, it lost jurisdiction for all purposes and could not re-obtain it. He points out that the State could have appealed the transfer order, but | snever did. Therefore, C.H. contends, because the criminal division did not have jurisdiction, its set-aside order was null and void. C.H. further argues that Ark. Code Ann. § 9-27-306 (Repl.2009) grants to the juvenile division exclusive original jurisdiction when a proceeding has been transferred from the criminal division to the juvenile division, and there is no provision for divesting the juvenile division of jurisdiction once it has been conferred upon it. Finally, C.H. maintains that, though no Arkansas case has addressed this issue directly, the opinions in State v. Hatton, 315 Ark. 583, 868 S.W.2d 492 (1994), and Webb v. State, 318 Ark. 581, 886 S.W.2d 624 (1994), indicate support for the proposition that once a court transfers a case, it cannot revest itself with jurisdiction.
In response, the State argues that amendment 80 confers on circuit courts original jurisdiction in all justiciable matters. Therefore, according to the State, the issue in this case is not whether the criminal division had subject-matter jurisdiction, but whether the criminal division violated any statutory authority to set aside its transfer order. The State points out that there is no authority that indicates that a transfer order divests the transferring court of jurisdiction. The State also maintains that the authorities that C.H. cites, Webb v. State and State v. Hatton, predate Amendment 80’s unification of subject-matter jurisdiction in the circuit courts. Instead, the State cites Edwards v. Nelson, 372 Ark. 300, 275 S.W.3d 158 (2008), for the proposition that, when a division of the circuit court acquires subject-matter jurisdiction, its authority in the case is subject only to appellate authority. Finally, the State argues that the order setting aside the transfer order was proper because a court possesses |flinherent authority to set aside any order while it has jurisdiction of a case, pursuant to Arkansas Department of Human Services v. Isbell, 360 Ark. 256, 200 S.W.3d 873 (2005), and it was clear that the juvenile division could no longer retain jurisdiction when it was evident that the case would not be disposed of before C.H.’s eighteenth birthday.
Whether a court has jurisdiction “is always open, cannot be waived, can be questioned for the first time on appeal, and can even be raised by this court.” Coones v. State, 280 Ark. 321, 322, 657 S.W.2d 553, 555 (1983). Jurisdiction may also not be conferred by consent of the parties. State v. J.B., 309 Ark. 70, 827 S.W.2d 144 (1992). Section 6 of amendment 80 to the Arkansas Constitution provides for the jurisdiction of the circuit courts:
(A) Circuit Courts are established as the trial courts of original jurisdiction of all justiciable matters not otherwise assigned pursuant to this Constitution.
(B) Subject to the superintending control of the Supreme Court, the Judges of a Circuit Court may divide that Circuit Court into subject matter divisions, and any Circuit Judge within the Circuit may sit in any division.
Ark. Const, amend. 80, § 6. Pursuant to Ark. Const, amend 80, § 6(B), this court issued Administrative Order Number 14, which states, in relevant part,
1. Divisions.
a. The circuit judges of a judicial circuit shall establish the following subject-matter divisions in each county of the judicial circuit: criminal, civil, juvenile, probate, and domestic relations. The designation of divisions is for the purpose of judicial administration and caseload management and is not for the purpose of subject-matter jurisdiction. The creation of divisions shall in no way limit the powers and duties of the judges to hear all matters within the jurisdiction of the circuit court.
3. Administrative Plan.
a. Case Assignment and Allocation.
JlA • • •
(2) Cases in the criminal division, the juvenile division, or the domestic relations division may be exclusively assigned to particular judges, but such assignment shall not preclude them from hearing cases from any subject-matter division of circuit court. Except for the exclusive assignment of criminal, juvenile, and domestic relations division cases, cases in other subject-matter divi sions should not be exclusively assigned to particular judges absent extraordinary reasons which must be set out in the circuit’s administrative plan.
Ark. Sup.Ct. Admin. Order No. 14. Section 9-27-306(b) of the Arkansas Code indicates that the “assignment of cases to the juvenile division of circuit court shall be as described by the Supreme Court in Administrative Order Number 14, originally issued April 6, 2001.” Ark.Code Ann. § 9-27-306(b) (Repl.2009). Also, the circuit court has “exclusive original jurisdiction of and shall be the sole court for ... [proceedings for which a juvenile is alleged to be an extended juvenile jurisdiction offender.” Ark.Code Ann. § 9-27-306(a)(1)(G).
The juvenile and criminal divisions of the circuit court have concurrent jurisdiction over cases where, as in this case, the juvenile was at least sixteen years old at the time of the crime, and his or her conduct, if committed by an adult, would be a felony; the prosecuting attorney may charge such a juvenile in either division. Ark.Code Ann. § 9 — 27—318(c)(1) (Repl. 2009); see also Edwards v. Nelson, 372 Ark. 300, 275 S.W.3d 158 (2008). In the juvenile division, proceedings are “commenced by filing a petition with the circuit clerk of the circuit court or by transfer by another court.” Ark. Code Ann. § 9-27-310(a) (Repl.2009). Once a charge has been filed in either the criminal division or the juvenile division, the judge of that division or any party may make a motion to transfer the case to another division, pursuant to |nArk. Code Ann. § 9-27-318(e), if the juvenile meets the requirements of Ark.Code Ann. § 9-27-318(b). The court must then conduct a transfer hearing to determine whether the case should be transferred, and the court must consider the following factors:
(1) The seriousness of the alleged offense and whether the protection of society requires prosecution in the criminal division of circuit court;
(2) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;
(3) Whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted;
(4) The culpability of the juvenile, including the level of planning and participation in the alleged offense;
(5) The previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence;
(6) The sophistication or maturity of the juvenile as determined by consideration of the juvenile’s home, environment, emotional attitude, pattern of living, or desire to be treated as an adult;
(7) Whether there are facilities or programs available to the judge of the juvenile division of circuit court that are likely to rehabilitate the juvenile before the expiration of the juvenile’s twenty-first birthday;
(8) Whether the juvenile acted alone or was part of a group in the commission of the alleged offense;
(9) Written reports and other materials relating to the juvenile’s mental, physical, educational, and social history; and
(10) Any other factors deemed relevant by the judge.
Ark.Code Ann. § 9-27-318(g). The court must set forth its findings in writing, and transfer the case only if there is “clear and convincing evidence” that it should be transferred. Ark.Code Ann. § 9-27-318(h). If the juvenile is between the ages of fourteen and seventeen and charged with capital murder, murder in the first degree, kidnapping, aggravated robbery, rape, battery in the first degree, or terror-istic act, the criminal division may enter an order to |12 transfer the case to the juvenile division as an extended-juvenile-jurisdiction case. Ark.Code Ann. § 9-27-318(i); see also Ark.Code Ann. § 9-27-503 (Repl.2009).
Our case law provides further guidance as to how jurisdiction over cases is allotted among the divisions of the circuit court. In Edwards v. Nelson, 372 Ark. 300, 275 S.W.3d 158 (2008), which the State cited in its brief, the appellees objected to the appointment of Edwards as the administrator of the decedent’s estate because he was a convicted felon. Before this court could reach the merits of the appeal, we had to address the issue of whether the circuit court’s order invalidating the appointment was an impermissible collateral attack on the probate court’s order appointing Edwards. This court noted that the two courts had concurrent jurisdiction pursuant to amendment 80. In such instances, “when a court of competent jurisdiction acquires jurisdiction of the subject matter of a case, its authority continues, subject only to the appellate authority, until the matter is finally and completely disposed of, and ... no court of coordinate authority is at liberty to interfere with its action.” Edwards, 372 Ark. at 303, 275 S.W.3d at 161 (quoting Askew v. Murdock Acceptance Corp., 225 Ark. 68, 71-72, 279 S.W.2d 557, 560 (1955)). Accordingly, this court held in Edwards that the probate court that appointed Edwards was the first to acquire jurisdiction, and therefore retained jurisdiction “to the exclusion of any other court.” Edwards, 372 Ark. at 304, 275 S.W.3d at 162 (quoting Patterson v. Isom, 338 Ark. 234, 241, 992 S.W.2d 792, 796 (1999)). The circuit court, lacking original jurisdiction to decide the validity of the appointment, usurped the probate court’s authority.
lisThe rule in the case of concurrent jurisdiction was more fully explained by this court in Foster v. Hill, 372 Ark. 263, 275 S.W.3d 151 (2008). In that case, Division 3 of the Second Judicial District, pursuant to this court’s Administrative Order No. 14, appointed special prosecutors to investigate the death of DeAunta Farrow, which occurred in Crittenden County. After an investigation, the special prosecutors reported that there did not seem to be sufficient evidence to charge anyone with a crime, but that they would reevaluate the case if any new evidence came to light. A few days after the report, Division 6 issued an order calling a special grand jury to investigate Farrow’s death. The special prosecutors then filed a writ of certiorari to prevent Division 6 from proceeding. This court began its analysis by stating that the issue in the case was whether Division 6 had authority to enter its order calling for the grand jury. The court noted that amendment 80 established the circuit courts as the trial courts of original jurisdiction of all justiciable matters not otherwise assigned, and, though Administrative Order No. 14 authorized the judicial circuit to set up divisions, the creation of the divisions would not limit the power of a circuit judge to hear all matters within the jurisdiction of the circuit court. Therefore, Division 6 had subject-matter jurisdiction when it entered its order. However, by the common law rule of concurrent jurisdiction, Division 3 held exclusive jurisdiction over the matter since it had acted first in appointing the special prosecutors, so Division 6 was without authority to enter its order. Also, this court noted that it had set up a plan of assigning cases within the circuit court pursuant to its inherent superintending control over the lower courts. This plan had assigned all criminal matters 114arising in Crittenden County to Division 3, not Division 6. Therefore, this court granted the writ of certiorari.
In the case before us, the criminal division was the first to obtain jurisdiction of the case, and therefore it had exclusive jurisdiction. See Foster, supra; Edwards, supra. However, it then transferred the case to the juvenile division. This court in Edwards indicated that the purpose of the above-stated rule in the case of concurrent jurisdiction is to “prevent unseemly, expensive, and dangerous conflicts of jurisdiction and of process.” Edwards, 372 Ark. at 303, 275 S.W.3d at 161 (quoting Askew, 225 Ark. at 72, 279 S.W.2d at 560). Also, “[t]his rule rests on comity and the necessity of avoiding conflict in the execution of judgments by independent courts, and is a necessary one because any other rule would unavoidably lead to perpetual collision and be productive of most calamitous results.” Edwards, 372 Ark. at 303-04, 275 S.W.3d at 161 (quoting Askew, 225 Ark. at 72-73, 279 S.W.2d at 560-61). Therefore, while the criminal division obtained jurisdiction in this case originally, when it transferred the case to the juvenile division, it relinquished its exclusive jurisdiction to the juvenile division. To find otherwise would allow both the criminal division and the juvenile division to exercise exclusive jurisdiction, occasioning the “calamitous results” that the concurrent-jurisdiction rule seeks to avoid.
What is more, the criminal division lacked authority to enter an order setting aside its transfer order. No provision in the Juvenile Code grants authority to a division to set aside its order transferring a juvenile-defendant ease to another division. Indeed, the only provision of the Arkansas Code that authorizes a circuit court to set aside its order is Arkansas Rule of | isCivil Procedure 60, which does not apply in criminal cases, including juvenile-defendant cases. Ark.Code Ann. § 9-27-505(d) (Repl.2009); Ark.Code Ann. § 9-27-325(f) (Repl.2009); see also Thomas v. State, 345 Ark. 236, 45 S.W.3d 818 (2001).
Finally, the State failed to pursue the proper remedy in this case. In Thomas v. State, 345 Ark. 236, 45 S.W.3d 818 (2001), after the circuit court transferred a juvenile-defendant case to the juvenile court, the State filed a motion for reconsideration. Stating that it had entered the transfer order based on inaccurate information, the circuit court entered an order rescinding its prior transfer order and retaining jurisdiction over the juvenile. On appeal, this court held that the circuit court lacked jurisdiction to enter the set-aside order, and therefore we dismissed the appeal because we never acquired appellate jurisdiction. In addition, this court found that the State failed to pursue the proper remedy by filing a direct and timely appeal of the transfer order.
Likewise, in the instant case, the criminal division lost its exclusive jurisdiction over C.H.’s case when it transferred the case to the juvenile division. Therefore, the criminal division lacked authority to enter the January 11, 2010 order setting aside its December 30, 2009 order transferring C.H.’s case to the juvenile division, and so the set-aside order is a nullity. Accordingly, we never acquired appellate jurisdiction. We dismiss the appeal.
Appeal dismissed.
BROWN, J., concurs.
CORBIN, J., not participating. | [
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Mr. Justice Compton
delivered the opinion of the Court.
This was an action of assumpsit to recover of the defendant in error, the amount of certain assessments due upon his shares in the capital stock of the plaintiff.
By act of the Legislature, which was declared to be a public law, the plaintiff was incorporated for the purpose of constructing a railroad, with the powers and privileges usually granted for such a purpose. Acts of 1854, ’5, p. 220. The declaration contains four counts. The Court sustained a demurrer to the first, second and third; whereupon, the plaintiff dismissed as to the fourth count, and brought error.
It is urged in argument that the declaration is defective, because it does not aver that the plaintiff is a corporation, duly constituted, and authorized by law to sue in its corporate name. Such averments are not necessary. The rule is, that corporations may sue in their corporate name, and, if their legal existence be questioned, it must be done by plea. Angel Sf Ames on Corp. 631, 632, and authorities cited. Furthermore, the act incorporating the plaintiff, is a public law, of which the courts are bound to take judicial notice. It is also urged that there is no sufficient averment of the existence of a Board of Directors, wrho alone had the power to make the assessments. The first count avers that “ the corporation was organized,” and that “ the Board of Directors of said corporation made assessments,” etc. These averments are a substantial compliance with the rules of pleading, and are sufficient.
It is next insisted that there is no sufficient allegation of notice to the defendant of the several assessments on his shares in the capital stock of the company. Section 6 of the act of incorporation provides, that “ payment of the shares of the capital stock of the company shall be made in such sums, and at such periods, as shall be fixed by the Board of Directors; Provided, that sixty days notice be given of each call, published in at least two newspapers in south Arkansas, and one in the city of Little Rock.” This was a provision for the benefit of the stockholder, and the object was, not only to notify him that the assessments had been made, but also to allow sixty days in which to make payment. The notice thus prescribed is a condition precedent to the plaintiff’s right of action. Pierce’s Railroad Law 108, and authorities cited. A suit, therefore, to recover the amount of the assessments, if instituted before the defendant has had sixty days notice, would be prematurely brought, and could not be maintained. Com. Dig., title Action, (E 1) (E 2) (E 5) Zackery vs. Brown et al., 17 Ark. 443. The first count specifically sets forth the days on which the assessments were severally made, running through a series of years, from the 10th November, 1852, to the 27th November, 1856, and avers that the defendant, on those days, had notice of the assessments, and was requested to make payment. These allegations, when taken in connection with the fact, that the declaration was filed on the 14th August, 1858, — which, for the purposes of the demurrer, may be done, as in Zackery vs. Brown et al., 17 Ark. 443 — show that the defendant had more than sixty days notice of the assessments prior to the commencement of the suit. True, it doe3 not appear that sixty days notice was given by publication in newspapers, as prescribed by the charter; and this raises the question, whether the mode of giving the notice, as well as the notice itself, is a condition precedent to the plaintiff’s right to recover. We think it is not. One of the criterions by which to determine whether the requirements of a statute are imperative, or merely directory, is that those acts which are of the essence of the thing required to be done, are imperative; while those which are not of the essence, are directory. 1 Burrow 447; Smith’s Com. page 792. The case before us, is an apt illustration of the rule. The giving of sixty days notice is imperative, and must be strictly complied with, because it is of the essence of the thing required to be done — the mode of doing so, is directory, because not of the essence, and.may be either by publication in the manner prescribed by the charter, or by actual personal notice. In the Lexington West Cambridge Railroad Company vs. Chandler, 13 Met. 311, which was an action to recover the difference between the amount of an assessment, and the sum at which the defendant’s shares had been sold by order of the directors, it appeared that, by an article in the by-laws of the corporation, it was provided, that in case of sale, the Treasurer should notify the delinquent owner, when his residence was known, “ by letter, seasonably put in the mail.” Shaw, C. J., in delivering the opinion of the Court, said: “ It appears that a written notice, signed by the Treasurer, was delivered to the defendant, or left at his dwelling-house, but that no notice of such sale was sent through the post office. The Court decided that the notice given was sufficient, provided the jury were satisfied that it was in fact received by the defendant, as soon as he was entitled to receive it by mail. We think this was right. The by-law intended to provide an easy, convenient, and, under ordinary circumstances, a certain mode of giving and proving notice; but it was directory to the Treasurer, and not a condition precedent,” etc. This rule of construction is supported by authority, and certainly no reason can be given why actual notice, in such a case, would not be as good as that of publication, which would be but constructive notice. Under the allegations in the first count, it would be competent for the plaintiff to prove either.
According to the view we have taken, the first count is good, and, as to it, the demurrer ought to have been overruled.
The only remaining question, discussed by counsel, is as to the necessity of making proferí of the defendant’s written subscription to the capital stock of the company; and the objection taken, can only apply to the second count, in which alone, it is alleged that the defendant, in consideration that the plaintiff did then and there permit him to subscribe a certain agreement to become a member of said corporation, and the proprietor of two hundred shares therein, whereby said defendant became a member and proprietor as aforesaid, and there and then promised,” etc. At common law, proferí was necessary of deeds only. It was not necessary of any written agreement not under seal, nor of any instrument which, though under seal, did not come within the technical definition of a deed; as a sealed award, and the like. Com. Dig. Pleader (O 3), 3 Caines Rep. 256; Leafe vs. Box, 1 Wils. 121. In the construction put upon several of our statutory provisions by this Court, in Beebe vs. The Real Estate Bank, 3 Ark. 127, this rule of the common law was held to be enlarged, and that, under our statute, proferí of a promissory note, as well as of a bond, was necessary, and its omission was ground of general demurrer. This case has been followed by others, as in Alston & Patrick vs Whiting & Slark, 1 Eng. 402, where it was held that proferí of the assignment of a note or bond was necessary.
In the case now under consideration, the written subscription of the defendant was not declared on as the foundation of the action. He became the proprietor of two hundred shares of the stock by subscription, which is the usual mode of taking it, though it may be done otherwise, if consistent with the provisions of the charter. Upon his becoming a stockholder, his liability to pay such installments as might be assessed according to the terms of the charter, was fixed by the act of incorporation. It was on this statute liability that the second count, as well as the others, was framed, and not on the written agreement, which was treated as the mode by which the defendant became a stockholder, as shown by the language of the pleader, above quoted; and, being mere matter of evidence, profert was not necessary.
The demurrer, however, was properly sustained to the second and third counts, because they contained no sufficient averment that the defendant had sixty days notice of the assessments prior to the commencement of the suit.
The judgment of the Court below must be reversed, and the case remanded for further proceedings.
The foregoing opinion applied, also, to the cases of
Mississippi, Ouachita & Red River R. R. Co. vs. Withers.
same same vs. Martin.
same same vs. Branson.
same same vs. D. Gaster.
same same vs. Bush. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
This was an indictment in the Prairie Circuit Court, at February term, 1857, as follows:
“ The grand jurors, etc., etc., upon their oaths present that Sina Stillwell, late of, etc., on the 20th day of October, 1856, at, etc., did unlawfully suffer a game of pocre, the same being a game at cards, to be carried on in her house, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State,” etc.
The Court quashed the indictment, on motion of the defendant, on the grounds that it charged no offence known to the law, etc., etc.; and the State appealed.
The judgment of the Court below is in accordance with the decision of this Court in Stith vs. The State, 13 Ark. 680, and must be affirmed. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
This is an appeal from the judgment of the Circuit Court of Hempstead county, awarding a peremptory mandamus against Bernard F. Hempstead, as Land Agent of the Washington District, to compel him to issue certain certificates of purchase of swamp lands, to the heirs of George W. Underhill, deceased, etc.
It appears that, on the 6th of October, 1853, the Swamp Land Commissioners issued to Underhill five patent certificates, each for a number of tracts of swamp land purchased by him with scrip, etc., issued to him as a levee contractor, under the Act of 6th January, 1851.
These certificates show, by their recitals, the times when Underhill filed lists of the lands embraced therein, in the office of the Secretary of the Board of Swamp Land Commissioners, and made applications to purchase them, and when his purchases were completed.
It also appears that on the 14th of December, 1853, the Secretary of the board issued to him a certificate for several tracts of land, containing 960 acres, purchased by him on that day.
That on the 13th of April, 1855, Underhill having departed this life, the above certificates were, on behalf of his heirs and administrators, presented to Hempstead, as land agent for the district in which the lands embraced in the certificates were situated, with a request that he issue to them, under the provi sions of the Ad of 20Ih January, 1855, patent certificates for such of the lands as had been confirmed to the State; and for such as were not confirmed, that he issue to them certificates, showing the purchase thereof by Underhill, so that the same might vest in them when confirmed, or that they might be paid therefor if not confirmed.
In the application to the land agent for such certificates, it was insisted, on the part of the applicants, that he should issue them, as a matter of course, in the exercise of a ministerial duty, and that so much of the Act of 20th January, 1855, as undertook to confer upon him power to determine the validity of conflicting claims to the lands, or to pass upon the validity of the titles of the applicants, was unconstitutional and void.
They also protested against his treating as conflicting claims, within the meaning of the act, entries alleged to have been made before him, before he was in office, etc., etc.
That the Land .\gent objecting to the form in which the application was made, declined to take cognizance of it, expressing his readiness to act upon a proper application, and to grant to the representatives of Underhill such certificates as they might be entitled to, and as he had authority to issue under the act referred to, etc.
The heirs, etc., of Underhill, upon such refusal, applied to the Circuit Court of Hempstead county for a mandamus against Hempstead, to compel him to grant to them the certificates demanded by them, as above, etc. An alternative writ was awarded, Hempstead responded thereto, a demurrer was sustained to the response, and a peremptory mandamus awarded, etc.
1. The respondent states that after the issuance of the alternative writ, the heirs of Underhill, at his request, filed in his office, the originals of the certificates, etc., recited in the writ, (except the one for 980 acres, dated 14th Dec. 1853,) and that in obedience to the writ, he issued to them patent certificates for all of the lands embraced in the certificates so filed, wffiich appeared by the plats in his office to have been confirmed to the State, except for particular tracts which were specified. But that he had refused to issue certificates of purchase to them for the lands not appearing by the plate in his office to have been confirmed, as commanded by the writ, because he had no authority, under the act of 20th January, 1855, to issue such certificates. (A list of the unconfirmed lands is appended to the response.) Respondent states, however, that he was willing and offered to issue to Underhill's heirs refunding certificates for the lands not confirmed, etc., etc.
The Court below decided that it wrnuld be within the spirit, though not within the letter of the act of 20tk January, 1855, for the Land Agent to issue certificates of purchase to Underhill’s heirs for the unconfirmed lands in lieu of the original certifi cates filed in his office, that they might hold such evidence that their father had purchased the lands, until it was finally ascertained whether the lands were confirmed. That they were not bound to accept refunding certificates until the confirmation of the lands to the State was finally refused.
In order to determine whether the judgment of the Court below was correct or not, on this branch of the case, it is necessary to enquire what title Underhill purchased of the commissioners in the unconfirmed lands, and what were the powers and duties of the Land Agent under the act of 20th January, 1855.
By the terms of the act of Congress of the 28th September, 1850, granting the swamp and overflowed lands to the State, such lands as were embraced by the grant vested in the State immediately on the passage of the act. It only remained to ascertain the particular lands included in the grant, and when the lands are selected, the selections approved, or confirmed, and the patent issued to the State, her title to the particular lands, thus perfected, relates to the date of the act making the grant. Fletcher adm'r et al. vs. Pool, ante.
The practice under the act of Congress has been for the State to select such lands as were supposed to be within the grant, and when the lists of lands selected by her officers, and returned to the General Land Office of the United States, were approved by the Secretary of the Interior, the lands selected were said to be confirmed to the State. Such was the process of ascertaining what particular lands were embraced by the grant, carried on by the mutual consent of the two governments.
At the first session of the General Assembly after the passage of the act of Congress granting the lands to the State, an act was passed (January 6th, 1851,) making provision for the selection and reclamation of the lands by commissioners, and the Legislature treating the lands as belonging to the the State, authorized the commissioners to put them into market and sell them, without waiting for the selections made by •them under the grant, to be confirmed by the Secretary of the Interior, and patented to the State.
Under the provisions of this act, Underhill purchased the lands in question, and obtained certificates of purchase from the commissioners, upon which, by the terms of the act, he was entitled to deeds from the Governor for the lands. (Sec. 5 and 6.) Whatever title the State had to the lands, at the time he so purchased them, passed to and vested in him, by his purchase. If, at the time he purchased, all or any of the lands purchased by him had not been confirmed to the State, he was entitled to the benefit of any subsequent confirmation that might be made. If part of the lands were still unconfirmed at the time his heirs demanded patent certificates therefor of the Land Agent, under the act of 20th January, 1855, they were not bound to abandon the title purchased by him, and accept of the agent refunding certificates, but they had the right to wait for the benefit of any future confirmations that might be made. They were under-no compulsion to take refunding certificates until the lands were ascertained not to be within the grant, and their confirmation to the State finally refused.
But was it the duty of the Land Agent to issue to them any kind of certificates for the unconfirmed lands other than refunding certificates?
Sec. 1 of the act of the 20th January, 1855, provides, in substance, that all persons holding certificates for swamp lands issued by the commissioners, etc.; shall present them to the land agent of the proper district, for examination, and should the agent find, by examination of the records of his office, that the lands designated in the certificates so presented, have been confirmed to the State, as part of the grant of swamp lands, and that the proper number of acres had been paid for, and there is no conflicting claim thereto, he shall issue patent certificates to the holders of the surrendered certificates, their assignees or legal representatives, upon which the Governor shall execute deeds, etc., after the lands shall have been patented to the State, etc.
Section 2 provides that, “ should there be only part of the-land embraced in such original certificate, confirmed to the State, the land agent shall issue a patent certificate for that which has been, or may have been, confirmed to the State, and shall grant to the holder of the orignal certificate a certificate to the auditor, designating the tract or tracts not confirmed, but embraced in such original certificate; and setting forth how-much had been paid for such confirmed lands; and the auditor upon the presentation of such certificate of the land agent, shall issue a warrant to the owner thereof, for the amount so originally paid, and the amount of such warrant shall be paid, as in other cases, out of the swamp land fund.”
Sec. 4 provides, “ that original certificates taken up by the land agent, shall be returned to the auditor when they make settlements, and shall be examined by the auditor, and after adjusting the accounts of the land agents connected therewith, the original certificates shall be canceled and filed in the office of the State Treasurer.” •
It will be observed that the act provides for the issuance of but two kinds of certificates in lieu of the surrendered certificates — patent certificates for confirmed lands, and refunding certificates for lands not confirmed.
At the time the heirs of Underhill presented to the Land Agent the certificates in question, part of the lands embraced therein had been confirmed, and others were unconfirmed, but it does not appear that the confirmation of any of them had been finally refused.
We have seen that the heirs were not bound to abandon their claim to the unconfirmed lands, and accept refunding certificates; and the Land Agent had no authority to issue the patent certificates for any but the confirmed lands. But in order to obtain patent certificates to such of the lands as were confirmed, they were required to surrender to the Land Agent the original certificates to be returned to the auditor and canceled.
Thus they were left without any evidence of their claim to the unconfirmed lands. This was the result of defectiye legislation. But though the Land Agent was not expressly authorized or required so to do, by the act of 20th January, 1855, yet he might, as a matter of practice in his office, have furnished the heirs a certificate, upon their surrendering the original certificates, showing the purchase of the unconfirmed lands by their father, the surrender of the certificates issued to him, and their right to patent certificates, on the final confirmation, or refunding certificates on the rejection of the lands. But this question is now of but little importance, because the Legislature, by act of 17th February, 1859, (Acts of 1858, p. 178,) have supplied the deficiency in the previous legislation above indicated; and inasmuch as this case must be reversed on other points, the Land Agent may be required to conform to the practice established by the new acts, when the cause is remanded.
2d. The appellant further stated in his response to the alternative writ of mandamus, that four tracts of the land embraced in the original certificates filed in his office by the appellees, (south-east quarter and south-west quarter section 9; north-east quarter and east half south-east quarter section 15, township 13 south, range 31.) were, long prior to the passage of the act of Congress granting the swamp lands to the State, selected ■and confirmed as part of the 500,000 acres of land donated to the State by Congress, for internal improvement purposes. For which cause appellant refused to issue to appellees patent certificates for said lands, but offered to issue refunding certificates therefor.
The demurrer admitting this statement tobe true, the Court erred in making the mandamus absolute as to these lands — as conceded by the counsel for the appellees, in his argument. The swamp land commissioners had no power to sell internal improvement lands.
3d. The appellant next proceeds, in his response, to designate several tracts of land embraced in the certificate filed by appellees, and confirmed to the State as swamp lands, but ■for which he refused to issue to them patent certificates, because the lands had been entered in his office by pre-emptions, etc. His statement as to these lands is as follows: “ That the south-west quarter of south-west quarter, section 33, township 12 south, range 32 west, was applied for, and entered by virtue of his pre-emption right, on the 27th day of January, A. D., 1855, by one Edward Fitzgerald.
“ That the west half of the north-west quarter, section 32, in Township 16 South, Range 25 ■west, was applied for and entered by virtue of his pre-emption right, on the 27th day of September, 1854, by one John L. Howard.
“ That the west half of north-west quarter, and east half of north-east quarter of section 22, in township 13 south, range 32 west, was in like manner applied tor and entered by virtue of his pre-emption right, on the 16th day of February, A. D. 1854, by Henry A. Hawkins. And this respondent does refuse to issue patent certificates for said lands, to said heirs, as the pre-emption right of said parties under the 13th section of the act of Gth of January, 1851, is superior and paramount to that of any other person or persons to said lands.”
It seems that Underhill purchased the tract entered by Fitzgerald, on the 1st March, 1853, and the tracts entered by Howard and Hawkins, on the 3d of January, of the same year. His purchases of the Commissioner being prior in time, were paramount, unless the entries wdth the Land Agent, by the persons claiming by pre-emption were prior in right.
Section 13, of the act of 6th January, 1851 — {the first swamp land act passed by the Legislature,) declares that all persons legally entitled, by any act of Congress theretofore passed, etc., to right of pre emption on any of the swamp and overflowed lands; or who shall reside on, or who shall have improved the same, shall have the exclusive right of purchase thereof, to the extent of their claims, for the period of twelve months from and after the date of the patents issued by the United States to the State, at the price previously fixed upon the same, not to exceed $1 25 per acre.
By act of 12th January, 1853, five land agencis were estab 1-ished for the sale, etc., of the swamp and other lands of the State. Each of the Land Agents was to be furnished by the Auditor, with maps and plats of the land in his district, etc.> upon receiving which, he -was immediately and without delay, to proceed to advertise the swamp lands in his district for sale, by hand-bills, and by publication in two newspapers for six weeks, the last insertion to be at least thirty days before the day fixed for the sale, etc., (sec. 8.)
Sec. 10 of this act declares “ that every head of a family, who may hereafter settle upon, or who is now a settler upon any of the undisposed of swamp and overflowed lands, shall have a pre-emption right thereto, in exclusion of all persons whatsoever, up to the day of such sale, and shall have a right to enter any of the legal subdivisions as above recited. Provided, that no right under this section shall vest in any individual, except an actual settler upon a portion of the lands claimed, or whose improvement may extend from his own lands to a portion of the swamp and overflowed lands. But if such settler fail to make such entry before the day set apart for such sale, then the right of entry shall be lost, and the lands offered for sale to the highest bidder; and it is hereby made the duty of the Land Agents in their advertisements to notify pre-emptors of their rights under this act.”
The act of 6th January, 1851, allowed the settler twelve months after the issuance of the patent to the State, to prove his right of pre-emption and enter the land. The act of 12th January, 1853, limited the time, and required the proof and entry to be made before the day fixed by the Land Agent for the public sale of the lands, etc.
The response of the appellant shows that Fitzgerald made his entry on the 27th of Janu°ary, 1855; Howard made his on the 27th of September, 1854; and Hawkins made his on the 16th of February, of the same year; but whether either of these entries was made before the day fixed by the appellant for the sale of the swamp lands in his district, under the act of 12th January, 1853, does not appear from the response.
The petition for mandamus alleges that the appellant did not receive from the Auditor the maps and plats of the land in his district, until after the 14th December, 1853. (The date of Underhill’s last purchase of the Commissioners.) Taking this allegation to be true, if he received the maps, etc., on the next day, and proceeded immediately to advertise the lands for sale, he could not have fixed the day of sale earlier than about the first of March, 1854, and given the notice thereof, required by the act of the 12th January, 1853. Hence, the entry made by Hawkins, on the 16th February, 1854, must have been prior to the day fixed for the sale.
Moreover, neither the petition, nor the mandamus, nor the response, states the time at which the appellant received the maps and plats appertaining to his office, or the day upon which he made his first public sale, under the act of 12th January. 1853, consequently we have nothing before us from which we can determine, with any legal certainty, nor had the court below, that the entries of Fitzgerald and Howard were not made before the day of sale, and within the period limited by the statute in question.
The petition for mandamus shows that the appellees made their application to the appellant for patent certificates for the lands in controversy, on the 13th of April, 1855.
The response shows that prior to that time, the lands had been entered by persons claiming pre-emptions thereon, under the act of 6th January, 1851, which are alleged by the response, to have been superior and paramount to the title purchased of the Commissioners by the father of the appellees.
Upon this state of pleadings, we think the court below erred in making the mandamus absolute as to these tracts of land, and ordering the appellant to disregard the entries made by the persons claiming by pre-emption, and to issue patent certificates to the appellees.
If the appellees desired to contest the truth of the statement in the response, that the pre-emption entries were superior and paramount to the title purchased by their father, they should have taken issue, or replied to this portion of the response, and caused the necessary facts to be put upon the record, to enable the court to pass upon the validity of the conflicting claims, so far as to determine whether the appellant was under legal obligation to issue patent certificates for the lands, in favor of appellees. Though in this proceeding the rights of the persons) claiming the lands by pre-emption, and who were not before the Court, could not be affected further than they might be incidentally affected by the decision of legal questions touching the powers and duties' of the Land Agent in the premises, which are the subjects of the controversy between the parties to this suit.
If it be supposed that the appellant should have set out in his response all the material facts in relation to these pre-emptions, as a matter of certainty,in pleading, it may be responded that the appellees in their application to him for patent certificates to the lands, and in their petition for mandamus, assume that so much of the act of 20th January, 1855, as authorized the appellant to enquire into the validity of conflicting claims, was unconstitutional and void, and there was nothing in the allegations of the petition, or form of the writ, which imposed upon the appellant the duty of setting out with more certainty than he did, the facts in relation to conflicting claims.
4th. The response further states that “ The south-west of north-east quarter, and the north-west of south-east quarter of section 28, township 14 south, range 26 west, were, on the 10th day of May, 1853, entered by Richard H. Finn, before respondent, acting as Land Agent, and also under the authority of the Board of Swamp Land Commissioners. And he herewith exhibits copies of his commission as Land Agent, and said authority from said board, etc. And that James McDaniel, as the administrator of said Finn, did, on the 24th of March, 1855, present the certificates so issued to said Finn, by this respondent, and demand from him, as Land Agent, patent certificates on the same, and which this respondent accordingly issued, as he had no legal notice of any conflict of title.” Wherefore he. refused to issue patent certificates for said lands to Underhill’s heirs.
The commission of appellant, as Land Agent, is dated 7th March, 1853: but he was not in office, and had no power to sell swamp lands until his district was laid off by the Commissioners, and the maps and plats of the lands embraced thereby furnished him by the Auditor. Hempstead vs. The Auditor, 16 Ark. 57. It is alleged in the petition for mandamus that the maps and plats were not furnished to him until after the 14th of December, 1853, which is not controverted. It follows that he had no legal authority, as Land Agent, to sell the lands in question to Finn, or any one else, on the 10th May, 1853.
It seems that on the 7th April, 1853, the Board of Swamp Land Commissioners made the following order: “ Ordered by the Board, that all pre-emption proofs and papers, pertaining to the rights of parties claiming lands by pre-emption, or otherwise, on file in this office of the Board of Swamp Land Commissioners, be turned over to the Land Agent of the district to which they belong, to whom is intrusted the power and duty of receiving applications for swamp lands, and of adjusting the rights of pre-emption to same.”
By act of Qth January, 1851, the Commissioners were empowered to sell the swamp lands. By act of 12th January, 1853, provision was made for transferring this power to the Land Agents. When the appellant received the maps and plats of the lands in his district, his authority to sell the lands commenced, and that of the Commissioners terminated, and not before. Hempstead vs. The Auditor, ubi sup.
If they had the right to make the appellant a deputy to sell lands for them, the above order does not purport to be such a deputation.
If they intended by the order to terminate the power vested in them by law, to sell the lands and transfer it to him as Land Agent, the order was ineffectual for that purpose. Notwithstanding the order, the power to sell the lands remained in them until he received the maps and plats belonging to his office from the Auditor, when the law vested the power of sale in him.
It follows that the portion of the response under consideration was insufficient.
5. The response further states, “ that Daniel E. Williams and James McDaniel, did, on the 20th day of May, 1855, present to respondent, a certificate, issued by W. E. Butts, as Secretary of the Board of Swamp Land Commissioners to them, dated October ‘¿8th, 1853, for the west half of the north-west quarter of section 8, township 14 south, range 26 west; and they demanded on such certificate a patent certificate from respondent for said land, which he issued on said 20th of May, having no official information that there was any conflicting claim to the same.”
It appears that Underhill purchased this tract of land from the Commissioners, prior to the 28th October, 1853, the date of the certificate of purchase issued by the Secretary of the Board to Williams and McDaniel. The application to the appellant for a patent certificate for this land, on the part of Underhill’s heirs, was made on the 13th April, 1855. Williams & McDaniel made their application, and obtained the certificate on the 20th May following. It would seem, therefore, that at the time he issued to them the certificate, he might have had official information that there was a conflicting claim to the land.
This portion of the response was, therefore, insufficient.
6. The response further states: “ That Ezekiel Kinsworthy did, also, on the 7th June, 1855, present two certificates, issued by said W. E. Butts, as such Secretary of the Board of Commissioners, both bearing date the 12th day of February, 1853, calling1 for the north-east of the^ north-east quarter of section 27, the south-west of the south-west quarter of section 26, and the north-east af the north-east quarter of section 34, township 13, south, range 31 west; and, in like manner, demanded patent certificates for said lands, which respondent accordingly issued,” etc.
Jt seems that Underhill did not purchase these lands until the 29th July, 1853, which was subsequent to the time they were purchased by Kinsworthy: and, as conceded by the counsel for appellees, he vras entitled to the patent certificate.
It follows that as to these lands the response was sufficient, and the Court erred in making the mandamus absolute as to them.
6. The appellees claimed a patent certificate for a tract of land, described in the petition for mandamus, and in the writ, as the south-east quarter of the south-east fractional quarter of section 1, township 14 south, range 29 west, 25 34-100 acres; but in the copy of the writ served upon the appellant, and appended to. his response, the tract is described as the south-east quarter of the south-east fractional half of section 1, etc.
The response, as to this tract, as copied in the transcript, is not intelligible. It is supposed, however, that respondent meant to say that there was no such legal subdivision of land, appearing upon the plats of his office, as the south-east quarter of the south-east fractional half of section one, etc., described in the copy of the writ served upon him.
The variance between the original writ and the copy, in the description of this tract, was doubtless a mere clerical error, which might have been cured by amendment upon a proper application to the Court, and the appellant required to respond as to the tract properly designated, etc.
It may be remarked, however, that the sheriff should have handed the original alternative writ of mandamus to the appellant, and made his return upon a copy, and the appellant should have appended his response to the original writ. Such is the proper practice.
8. The appellant further stated, in his response, that he refused to issue certificates of any kind to the appellees for the tracts of land, making 960 acres, embraced in the certificate issued to Underhill on the 14th December, 1853, by the Secre tary of the Board of Commissioners, because the appellees failed, upon request, to file the original certificate in his office, etc.
The writ of mandamus should have commanded the appellant to issue the new certificate upon the appellees filing the original certificates in his office. The law required the originals to be surrendered, and returned by the Land Agent to the Auditor to be canceled; and the new certificates could not legally be issued until the originals were surrendered.
The writ was defective in the matter above indicated.
9. Notwithstanding the conflicting entries which we have above considered, the Court below adjudged it to be the duty of the appellant to issue patent certificates to the appellees for all of the confirmed lands embraced in the certificates issued to their father by the Commissioners, treating as unconstitutional and void so much of the act of the 20th January, 1855, as empowers the Land Agent to pass upon the validity of conflicting claims, etc.
Section 1 provides that the Land Agent shall issue patent certificates in lieu of surrendered certificates, when there is no conflicting claim to the lands, etc.
Section 5 provides: •* That when there are conflicting claims to such lands, the Land Agents may administer oaths, and shall, upon proper notice to the parties, and upon hearing testimony and statements under oath, decide to whom the patent certificate shall be issued, in accordance with the law on the subject, and shall issue the patent certificate accordingly; and should the oth:-r party, whose claim is not allowed, desire a certificate to the Auditor, upon which to have the amount paid by him upon the land, refunded, the Land Agent shall issue the necessary certificate to enable him to do so, upon his surrendering such original certificate to the Land Agent.”
The Court below seems to have been under the impression that this provision of the act was an attempt to confer judicial power upon the Land Agents, and was, therefore, void. If the premises were correct, the conclusion would follow, as a con sequence, for the Land Agents, being executive officers, could not be clothed with judicial power under the constitution. But such, perhaps, was not the intention of the Legislature, and such cannot be the effect of the provision of the act in question. On the contrary, it merely confers upon the Land Agent ministerial power to enquire into the facts in relation to conflicting entries, and to give the patent certificate to the party appearing to be entitled to it by law. But his decision is not conclusive upon the rights of the parties. The partyr to whom he issues the patent certificate, may obtain the deed of the Governor for the land; but the party holding the conflicting certificate, is not bound to surrender it, and take a refunding certificate. He may stand upon his rights, notwithstanding the decision of the Land Agent against his claim, and when the deed is issued to the successful claimant, may file a bill in equity to divest his title, etc.
It seems that conflicting entries had been made before the Commissioners, perhaps many of them, and the Legislature thought proper, as a mere executive regulation in relation to the issuance of patents, to require all persons holding certificates of purchase to surrender them to the Land Agents, and take out new patent certificates, etc., for the purpose of having it determined, as far as it could be done by a ministerial officer, who wore entitled to patents, etc. The act did not, and the Legislature could not, divest any right to lands, which Under-hill or any other person purchased of the Commissioners, before its passage.
But the Land Agent being a mere executive officer, exercising ministerial and not judicial power, in passing upon the validity of conflicting claims, his judgment may be controlled by mandamus; but in this proceeding, as above remarked, the rights of other parties are not to be affected further than they are necessarily incidentally affected in determining the duties of the officer, etc.
It has been shown above, that the Court below should have sustained the demurrer to portions of the response, and overruled it as to other portions.
The judgment is reversed, and the cause remanded for further proceedings.
Absent, Mr. Justice Rector. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
At the September term, 1857, of the Pope Circuit Court, Holmes was indicted for an assault and battery upon Daniel Sullivan. The venue was laid in Pope county. He was tried upon the plea of not guilty, convicted, and appealed to this Court.
From a bill of exceptions taken by the appellant the following facts appear:
On the trial, Napier, a witness for the State, testified, that on the 4th of April, 1857, Holmes, Sullivan, and several other persons were at the house of witness, attending a justice’s court, which was held there at that time. A difficulty commenced. Holmes and Sullivan quarreled, and the former kicked the latter several times. Witness did not know whether the difficulty occurred in Pope county or not. It took place about fifteen yards from his house, which is upwards of half a mile out of Pope county, in Van Burén county, according to the old established lines. But the Legislature passed a law in 1854, (witness believed,) declaring that all persons who lived on the east prong of Illinois Bayou, in Van Burén county, should be citizens of Pope county, and have all the rights and privileges of citizens. Witness was living on the east prong of Illinois bayou, in Van Burén county, at the time the law was passed, and ever since, tie lived on the said east prong-on the territory included in the actof the Legislature. According to the former, or old lines, he lived in Van Burén county, but under the act of 1854, he lived in Pope county. This being all the testimony introduced, the counsel for Holmes moved the court to instruct the jury as follows:
“ If the jury believe from the evidence, that the offence was committed half a mile over the line of Pope county, on the east prong of Illinois bayou, in Van Burén county, they should acquit the defendant.”
Which the Court refused to give, but on the part of the State, gave the following instruction:
“ If the jury believe from the evidence, that the crime was committed on the east prong of Illinois bayou, on the territory included in the act of the Legislature, passed in 1854, the venve is sufficiently proven, and the jury are fully authorized to find that the offence was committed in Pope county.”
In prosecutions by indictment orapresentment, the accused hath a right to a speedy public trial, by an impartial jury of the county or district in which the crime shall have been committed. Bill of Rights, sec. 11.
The indictment in this case alleges that the offence was committed in Pope county, and it was incumbent on the State to prove the allegation.
By act of 12th January, 1853, a part of Van Burén county was attached to Pope county, and the line dividing the two counties distinctly designated. Acts of 1852, p, 193.
By an act supplemental thereto, approved 20th December, 1854, it is declared, “ That all those citizens living on the east fork of the Illinois bayou, in the county oí Van Burén, are declared to be citizens of the county of Pope, with the rights and privileges thereof.” Acts of 1854, p. 61.
According to the testimony of the witness, Napier, the territi-ry on which the offence was committed, was in Van Burén county, unless the act of 20th December, 1854, transferred it to, and made it a part of Pope county. Was such the effect of the act, as supposed by the Court below, in its charge to the jury-
The act does not purport, in its terms, to change the line between the two counties, or to transfer any territory from one to the other. If the Legislature had intended to take from Van Burén county, a part of its territory and add it to Pope county, it is but reasonable to suppose that the territory intended to be thus transferred would have been designated by metes and bounds, so that the dividing line between the two counties would have been distinctly defined, and left in no uncertainty.
If it be supposed that the Legislature intended by the act of 20th December, 1854, to transfer a part of the territory of Van Burén to Pope county, how much territory was thus transferred? Where now is the dividing line between the two counties?
The constitution contemplates a division of the territory of the State into counties, each county to contain not less than 900 square miles; and in order to accomplish, in the administration of government, the various local, political and civil purposes for which the State is thus divided, without confusion, it is of great importance that the boundaries, and the lines dividing them, should be clearly marked and defined.
The constitution guarantees to every citizen certain rights and privileges to be enjoyed, and requires him to perform certain duties in the county in which he resides, and there should be no confusion or uncertainty as to the particular county in which he is to enjoy these rights and privileges, and perform such duties.
As above remarked, the act in question does not purport, in its terms, to transfer a part of the territory of Van Burén county to Pope county, and there are no good reasons or rules of construction to favor the conclusion that it does by implication.
It merely undertakes to declare that persons living on the east fork of Illinois bayou, in Van Burén county, shall be citizens of the county of Pope, with all the rights and privileges thereof. Whether it be constitutionally competent for the Legislature to disregard county lines, and to confer upon persons residing in one county the rights of citizens in another, need' not now be decided. All that need be decided in. this case, an,d which we do decide, is that the act did not have the effect to transfer any part of Van Burén county to Pope county. It follows that the Court below erred in instructing the jury as above set forth, on the part of the State, and that the judgment must be reversed, and the cause remanded, etc. | [
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Mr. Justice Compton
delivered the opinion of the Court.
Appellant was indicted, tried and convicted in the Court below for passing the counterfeit resemblance of a bank note. He moved in arrest of judgment, and for a new trial. Both motions were overruled, and he excepted and appealed.
Two questions are raised upon the record: 1st, whether there is a variance between the bank note as set out in the indictment and as read in evidence on the trial; and 2d, whether the indictment is sufficient to warrant the conviction.
As to the first question, it will be sufficient to say, that whatever may be the apparent discrepancy between the note as set out in the indictment, and as set out in the bill of exceptions, so far as regards the President’s signature, the testimony abundantly shows that his signature to the note was almost, if not entirely illegible. One of the witnesses testified that H. A. Rathborn was President of the Bank at the date of the note read in evidence; and all of the witnesses to whom the note was shown, said it was difficult, if indeed it were possible, to make any name out of the signature; one witness thought it looked as much like “ A. R. Rathborn,” as did the President’s signature to the genuine notes of the bank, and thought it might have been designed as an imitation of it. Owing to the illegibility thus shown by the testimony, the Attorney General, in setting out the note, word for word, in the indictment, doubtless undertook to make a precise imitation of the President’s signature; the cousel -who prepared the bill of exceptions, did the same thing; and the clerk, in making out the transcript, undertook to imitate what both had done.
Any discrepancy, therefore, which may appear to exist, must be attributed to the different degrees of skill possessed by the persons who undertook to copy literally what they probably could not read, and will not be regarded as a material variance.
The note produced in evidence contains the names of the engravers, and their places of abode; and, also, various letters and marks, in cypher, on the back and margin, which are ordinarily employed as a means of more easily detecting forgery. They constitute no part of the note as a particular obligation of the bank; and it might as well be required that the watermarks, and a fac simile of all the engraved ornaments on the note should be inserted in the indictment. Whart. Grim. Law 122.
2d. The indictment is framed on sec. 20, art. 9, chap. 51, Gould’s Dig., and charges, with requisite certainty of time and place, that t- Thomas Mathena, late, etc., etc., willingly, falsely, deceitfully, and unlawfully did utter, pass, and give in payment to one Lewis Bene, one certain false, forged and counterfeit bank note, which said note was made in imitation of, and did then and there purport to be a bank note for the sum of twenty dollars, issued by the New Orleans Canal and Banking Company, a banking company incorporated by, and existing under the authority of the Legislature of the State of Louisiana, one of the United States of America, made payable to bearer on demand, numbered seven hundred and ninety-nine, and dated New Orleans, November 21st, 1855, with the name H. A. Rathborn as President of said Bank, and the name of Sam. C. Bell, countersigned thereon as Cashier of said Bank, and was in the words and figures following, that is to say, etc., he, the said Thomas Mathena, well knowing, then and there, the said note to be false, forged and counterfeited, as aforesaid, with intent to defraud the said Lewis Bene, contrary,” etc.
It is contended that this indictment is insufficient, because it does not aver that the notes of the New Orleans Canal and Banking Company circulate as currency.
Our penal statute touching the currency, is very comprehensive in its provisions, and the 20th section of the act (in connection with other sections on the same subject), was designed by the legislature to guard the public against the passing, or putting into circulation, false and spurious paper of every description which might be imposed upon the public as currency. The 20th section provides that “ Whoever shall be guilty of forgery, counterfeiting, or of paying, or tendering in payment, buying or passing, or attempting to pass, or who shall assist, or be concerned, in paying or tendering in payment, buying, passing, or attempting to pass, the counterfeit resemblance, or imitation, of any bank bill, or any note, check or draft, or bill of exchange, or instrument, which circulates as currency, of any corporation, company, or person, or purporting to be of any corporation, company or person, that really exists, or may exist, or that does not exist, and whether such bill, note, check, draft, bill of exchange, or instrument, be complete and filled up, or otherwise, with intent to deceive and defraud, shall be imprisoned,” etc.
It will be seen upon an examination of this section of the act, that two distinct classes of false and spurious paper are described — the one, embracing the “ counterfeit resemblance, or imitation of bank bills, notes,” etc., “which circulate as currency, of any corporation, etc., or purporting to be of any corporation,” etc., which “ exists;” and the other, embracing the “ counterfeit resemblance, or imitation of bank bills, notes, etc., purporting to be of any corporation,” etc., which “ does not exist.” This distinction appears more manifestly by reference to other sections of the same act. The 21st section provides that “ whoever shall keep in his possession, or conceal the counterfeit resemblance, or imitation of any bank bill, note, check, or draft, or any instrument which circulates as currency, of any corporation, company, or person, that exists or may exist, whether such bill, note, check, draft, or instrument be complete and filled up, or otherwise; or shall fraudulently keep m possession, or conceal any fictitious instrument, purporting to be a bank bill, note, check, or draft of any corporation, company, or person, whether the same be filled up and complete, or not, though no such corporation, company, or person, exist,” etc., “ shall be imprisoned,” etc.
Here the distinction is clearly and broadly made, and is kept up throughout every section of the statute on the same subject. The former class consists of the counterfeit resemblance, or imitation of the genuine instruments enumerated in the statute, and which circulate as currency: and the latter class consists of .mere paper fictions, purporting to be of any corporation, corm pany or person not in existence. The 20th section prohibits the passing, etc., of both classes, and in doing so, creates and defines, in this aspect of the statute, two distinct offences.
Where the indictment, then, charges the offence to be the passing, etc., of the latter class of paper, the phraseology, “ which circulates as currency,” used in the statute, would not apply to or become descriptive of the offence, and should not be alleged, for, as to such paper, there could be nothing genuine to circulate as currency. The Legislature certainly did not suppose that bank bills, notes, etc., purporting to be issued by corporations, companies or persons, having no existence, could, ever constitute any portion of the circulating medium. Such a state of things would be most novel and extraordinary, and a community, thus liable to be imposed upon, would be beyond the protection of any penal code, however comprehensive.
In an indictment, however, like the one in the case before us, which charges the offence to be the passing of paper which comes within the former class (the counterfeit resemblance or imitation of a bank note, purporting to be of a corporation in existence), the phraseology, “ which circulates as currency,” applies, and is essentially descriptive of the offence created by the statute. The indictment, then, should have averred that the genuine notes of the bank circulated as currency. The State vs. Shelton, 7 Humph. 31.
We cannot judicially know that bank notes pass from hand to hand as money — whether they do or do not so pass, depends upon the confidence of the community in the integrity of the institution which issues them, and its ability to redeem them in gold and silver. Whether they circulate as currency, is not a question of law, but is one of fact.
For the error above indicated, the judgment of the Court below must be reversed. | [
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Mr. Justice Compton
delivered the opinion of the Court.
The bill in this case was brought by the legatees, under the will of John Redman, deceased, against John Ringgold and others.
The testator had been engaged for a number of years, in the business of a merchant; and at the time of his death was interested as a partner in two mercantile establishments; the one under the name of Ringgold & Redman, and the other, under that of Ringgold, Redman & Co.; the partners in the former being Ringgold and the testator, and those in the latter, Ring-gold, the testator and Henry R. Hynson. Besides his joint interest in these mercantile establishments, the testator, at the time of his death, was also seized and possessed of a separate estate, both real and personal, consisting chiefly of bonds and promissory notes on divers persons. The testator, after making sundry bequests, appointed Ringgold and Mrs. Redman, his wife, executor and executrix of his will, who qualified as such, and possessed themselves, not only of the separate estate of their testator, but also of the effects of the mercantile establishments (consisting in part of promissory notes and bonds for the payment of money,) and filed in the County Court an inventory of the same.
After making their first annual settlement with the court— which was done at July term, 1834 — Mrs. Redman intermarried with Daniel J. Chapman, and from that time forward, Ringgold acted alone in the settlement of the testator’s estate, making further settlements with the court in 1835, 1836, 1837, 1338, 1839, 1841 and 1845 — the last mentioned being a final settlement. The object of the bill was to impeach these settlements. Ringgold pleaded the settlements and decrees of the County and Probate Courts in bar to the relief sought. The plea was disallowed, and he made the same defence by way of answer. The Chancellor sustained an exception to so much of the answer as set up the subject matter of the plea. This was error. Keatts vs. Rector, 1 Ark. 391, cited by counsel to sustain the ruling of the Chancellor, was, in effect, overruled by the subsequent decision of this court, in Kelly’s Heirs vs. McGuire et al., 15 Ark. 607, where it is held that after a plea has been disallowed, the same defence may be insisted on by way of answer. The erroneous decision of this preliminary question becomes unimportant, however, if it shall appear from the evidence adduced, that the settlements were successfully impeached, even allowing Ringgold the benefit of the defence denied him by the Chancellor.
On the final hearing the Chancellor opened the accounts, and referred them to the Master for re-statement. Ringgold alone appealed, and so much only of the decree as is against him will be examined here.
In order to test the correctness of the decree, we will first ascertain the jurisdiction of the courts which passed upon the matters in controversy, and the nature of their adjudication.
Under our judicial system, the Probate Court has jurisdiction in the settlement and allowance of executors and administrators, and to hear and determine all controversies respecting such accounts, Gould's Dig. chap. 48, sec. 2; and our statute, regulating the administration of the estates of deceased persons, provides that every account presented to the Probate Court by any executor or administrator, for settlement or confirmation, shall be continued, without being acted on, until the next term of the court, the Clerk giving notice by publication in some newspaper, or by advertisement set up in his office, and on the court house door, of the filing of said accounts, to all persons interested in the settlement of the estate, calling on them to appear and file exceptions to the account, if any they have, on- or before the second day of the next term of the court; and the statute further provides that if exceptions are not filed within the time specified, the account shall be examined and confirmed by the court, and when confirmed, shall never thereafter be subject to investigation, unless in a court of chancery, upon the allegation of fraud supported by the affidavit of the party making such allegation. Gould's. Dig. chap. 4, secs. 128, 129, 130. By the same act the right of appeal is secured. The jurisdiction and powers thus conferred on the Probate Court, are ample, and its adjudication upon the matters now drawn in controversy, must be regarded as the judgment of a court having jurisdiction of the subject matter, and the parties, and is binding and conclusive except for fraud.
Under the Territorial Statute, which was in force at the time some of the settlements were made, the County Court had jurisdiction in matters testamentary, with powers essentially similar to those now exercised by the Probate Court; and its adjudication was a judgment likewise conclusive, if not vitiated by fraud, as held in Raysdale vs. Stuart, 3 Eng. 270. So that if mere errors occurred in the settlement of the appellant’s accounts, the only mode of correcting them was by appeal.
The Chancellor was of opinion that the appellant had fraudulently omitted to account for interest which accrued on the bonds, notes, etc., that were solvent, and belonged to the testator, separately and in his individual right, at the time of his death, as also for the testator’s part of the interest which accrued on the bonds, notes, etc., that were solvent, and belonged to the mercantile firms of which the testator was a member; and decreed against the appellant accordingly, with directions to the Master that, in taking an account of the interest, he should deem the bonds and notes as falling due twelve months after the death of the testator, unless the contrary should appear in evidence, and charge the appellant with interest at the rate of six per cent, per annum from that time until they were collected, unless the evidence should show that they bore interest at a different rate.
We agree with the Chancellor that the omission to account for interest was fraudulent. The appellant admits, in his answer, that some of the bonds and notes were probably due, and bearing interest at some legal rate, not exceeding ten per cent., at the time of his testator’s death, and that he collected all such of them as were on solvent persons, and legally collectable, with such interest as was due on them; but what portion of the bonds and notes were due at the time of the testator’s death, or when any of them fell due, or what rate of interest they bore, or when or how much of such interest was paid to him, he had no satisfactory or reliable means of ascertaining; and avers that all the interest which he ever collected on them he fully paid over and accounted for, in his several settlements with the County and Probate Courts, charging himself therewith, from time to time, “ either under the head of interest, cash received, or some other appropriate head,” and referring to an authenticated copy of his settlements, and the inventory of his testator’s estate, made them a part of his answer. The inventory contained an imperfect description of the bonds and notes, omitting to show when they were due, what amount of interest, or whether any, had then accrued, or what rate of interest they bore. The appellant, in the settlement made in 1834, charged himself with the principal sum as set forth in the inventory, and, though the greater part of the bonds and notes continued to remain in his hands, for several years, uncollected, he never, in either of his settlements, charged himself with any of the interest, which, he admits, he collected on them — the only interest accounted for being that which accrued “ on money on hand,” as charged in the settlement of 1836, and that “ on money loaned out,” as charged in the settlements of 1837 and 1839. These facts evince a course of conduct in an executor which it is impossible to reconcile with the absence of fraud.
The directions to the Master, for his guidance in ascertaining the amount of the interest to be accounted for, were erroneous.
As has been remarked, the appellant, as executor, did not make and file in Court a perfect inventory of the bonds and notes, nor did he show, in his accounts, what amount of interest he had received — thus failing to preserve, as it was his duty to do, the evidence necessary to establish the exact amount of interest, which he fraudulently withheld; and when interrogated, under oath, was found ignorant of that which it was his duty to know. Under such circumstances, every presumption is against the appellant, and the law charges him with interest on the bonds at the highest legal rate, from the time they were executed, in the absence of proof to the contrary. Smith's Lead. Cases, vol. 1, pages 470, 474; Finch vs. Ragland, 2 Dev. Eq. R. 143. Although this rule might operate, in some instances, to charge the executor with more interest than he received, yet, in all such eases, the hardship would result from a breach of legal duty on his part; while a rule, less rigidj would encourage executors not to preserve the evidence necessary to fix their liability for interest received and appropriated to their own use. Vide Finch vs. Ragland, 2 Dev. Eq. R. 143. But, inasmuch as this error was against the appellees, who did -not appeal, the decree, under our practice, will not be disturbed, because of the erroneous decision of the Court below, upon this'point. Dooley et al. vs. Dooley et al., 14 Ark. 125.
Whether the Chancellor decreed against the appellant for interest other than he had accounted for, on cash balances in his hands at each settlement, does not distinctly appear. The decree, as copied into the transcript, is far from being clear and explicit as to the fact. Upon a careful examination, however, we have concluded that he did not; and could not have so decreed upon the evidence before him.
The decree against the appellant for the value of sundry articles of personalty, was erroneous. The bill charged, in general terms, that the appellant fraudulently omitted to account for all the property mentioned in the inventory. This allegation was not sufficiently specific. This Court held in Conway vs. Ellison, 14 Ark. 360, that “ when fraud is relied on as a ground of relief, the facts and circumstances constituting the fraud, must be stated in the bill with distinctness and precision, so as to apprise the defendant of the true matter of the' case, and the points to which testimony should be supplied.”
The decree opening the settlements, and directing an investigation before the Master, as to the items of commissions allowed the appellant for his risk and trouble in the settlement of the testator’s estate, and also as to the item of $736 52, allowed for improvements put upon the testator’s real estate, was likewise erroneous. There was no evidence of fraud connected with the allowance of these items; and we have seen that the County Court had jurisdiction of the subject matter, and the parties, and that its judgment was conclusive, except for fraud.
Upon the whole case, we are of opinion that so much of the decree as requires the appellant to account for the interest which accrued on the bonds, notes, etc., that were solvent, and belonged to the testator separately, at the time of his death, as also for the testator’s part of the interest which accrued on solvent bonds, notes, etc., belonging to the mercantile firms of •which the testator was a member, together with the directions of the Chancellor for taking an account in respect thereof, ought to be affirmed; and that so much of the decree as is against the appellant, touching all other matters in the cause, ought to fee reversed — the appellant and the appellees each paying one-half the costs in this Court. | [
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Mr. Justice Compton
delivered the opinion of the Court.
This was a proceeding instituted in the Probate Court of Sebastian county, by Bomford & Shumard against Solomon F. Clark, as executor, etc., for the allowance and classification of an account for medical services, amounting to $526, against the estate of one Aaron Clark, deceased.
The Probate Court allowed Bomford & Shumard the sum of $226, and classed the same against the estate, which, on appeal to the Circuit Court, by the executor, was in all things affirmed, and he brought error.
The account was duly authenticated, and presented to the executor, who, upon examination, refused to allow it. Pending the trial in the Probate Court, it appeared in proof that Bomford & Shumard had presented an account to the testator in his life time for the same services, amounting to $282, and differing in nothing except as to the rates at which the several items were charged — which latter account was not authenticated, and had not been presented to the executor for allowance. The record entry then proceeds as follows:
“ It is, on motion, ordered by the Court, that the said account for $282, which is now produced and shown to the Court here, and herein filed, be and the same is hereby considered to be the proper account to be exhibited by the plaintiff in this case against the defendant, and the Court proceeded to examine said account, and the witnesses adduced, etc.” It is insisted by the counsel for the executor, that this decision of the Probate Court was erroneous, and that the judgment of the Circuit Court, affirming it, should be reversed.
That it was proper for the Probate Court to consider the account for $282, in connection with the testimony showing it to have been presented, for settlement, to the testator in his life time, as evidence tending to establish the fact that the items for the same professional services, were overcharged in the account for $526, no doubt can be entertained. The Court, however, seems to have treated the mere presentation of the account as conclusive evidence of such overcharge, and, in this, erred.
But can the executor take advantage of the error? In subject matter the two accounts were the same, differing only as to the rates charged, and the adoption by the Court of that for $282, as a limit beyond which Bomford & Shumard were not permitted to recover, was not a substitution of one cause of action for another, so as to prejudice the executor; but, on the contrary, was a ruling to his advantage, since the account adopted as a basis for the investigation, was less in amount than that which was originally filed. So that the error being beneficial, rather than to the prejudice of the executor, he cannot complain of it. Ashley vs. May, 5 Ark. 409. And, besides this, although the record does not affirmatively show on whose “motion” this decision of the Court was made, yet, from the circumstances, the inference might be indulged that it was at the instance of the executor himself; but, however this may be, the record does show that both parties were present, and that the decision was made without objection or exception by either of them.
■ It was not necessary that the account for $282 should have been sworn to, because the account originally filed, which we have seen was the same in substance, was duly authenticated, and if it had been necessary, the objection comes too late after final judgment. See Beirne & Burnside vs. Imboden et al. adm. 14 Ark. 237; Walker adm. vs. Byers, Ib. 246; Ryan vs. Lemon adm., 2 Eng. 78.
We have carefully examined the testimony, upon which the judgment was rendered, and, although the evidence is not as satisfactory as might be desired, still we cannot say that there was such a want of evidence as would warrant us in disturbing the finding of the Court below.
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Mr. Justice Compton
delivered the opinion of the Court.
Lindsay, the appellant, established a ferry across Black river, at the town of Powhatan, in Lawrence county, under a license from the County Court for that purpose.
After his ferry had been in operation for a number of years, Lindley, the appellee, applied to the County Court, at January term, 1852, for a license to establish a ferry across the same stream, near Powhatan, and within one mile of the ferry of the appellant.
The appellant voluntarily appeared in the County Court, made himself a party to the proceedings, and contested the grant of license to the appellee. The court, however, granted the license, and the ferry was established. The appellant then exhibited his bill in chancery, allegiug that the establishment of the rival ferry was an illegal interference with his exclusive vested rights, as the owner of the previously established ferry, for the reason that the public convenience did not require its establishment.
On the final hearing, the court below dismissed the bill, and the cause was brought here by appeal.
The 20th section of the statute provides, that the County Court " shall not permit any ferry to be established within one mile above or below any ferry previously established, except at or near cities and towns, where the public convenience may require it, and satisfactory proof of the same shall be first adduced.” Gould’s Dig. chap. 70 Now, whether the public convenience required the establishment of the rival ferry, was a question necessarily passed upon and determined by the County Court. The appellant, though under no legal obligation to appear before that tribunal, (vide Murray vs. Menefee, decided at present term,) nevertheless voluntarily did so, and made himself a party to the proceedings.
If the proceedings were erroneous, he should have pursued his legal remedy for their quashal, which was to put on the record by bill of exceptions, the evidence adduced on the trial, or so much thereof as was necessary to show the errors complained of, and then invoke the appellate jurisdiction of the Circuit Court by writ of certiorari, according to the doctrine laid down by this court in Couch Ex parte, 14 Ark. 337; Carnall vs. Crawford county, 6 Eng. 604.
Having failed to do this, the judgment of the County Court is conclusive, and the appellant cannot now be heard in a court of equity. True, the appellee, subsequent to the establishment of his ferry, and prior to the commencement of the proceedings in equity, by the appellant, to restrain him, obtained his annual license for the years 1853-4, when the appellant was not a party to the proceeding, nor present in the County Court, by voluntary appearance; but this can have no material bearing on the point under consideration — because, after the appellee’s ferry was once established, the question of public convenience was no longer an open one between him and the appellant, subject to investigation on the occasion of each annual grant of license thereafter; nor, in such case, does the statute require the owner of a ferry privilege to make, a further application. It is made the duty of the court to levy a tax on the privilege, annually, whether the owner makes application or not; the Clerk is required to issue the license, deliver it to the sheriff, and the owner is bound to pay for it, vide see 15, et seq. Whether the County Court, from, considerations affecting the general good alone, has the power under the statute to discontinue one or both of the ferries, is a question not before us, and one which we do not decide. We mean to decide merely, that the question of public convenience, for the purposes of this controversy, was put forever at rest by the decision of the court, establishing the appellee’s ferry. When his ferry was once established, and its establishment became binding on the appellant, the ferries were not only rivals, but also equals. The one owner could not afterwards insist that the ferry of the other should be discontinued, because the public convenience did not require both.
On a careful examination of the testimony in the cause, we have not been able to reach the conclusion that the license under which the appellee’s ferry was established, was procured by fraud.
The decree of the court below must be affirmed with costs. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
On the 3d March, 1858, the defendants in error recovered a judgment against the plaintiff in error, in the Chicot Circuit Court; and on the 30th April following the writ, of error was sued out, etc.
The defendants in error have interposed a plea in bar of the writ of error, alleging, in substance, as follows:
That on the 6th of May, 1858, they sued out a ji. fa. upon the judgment, returnable to the October term following of the Chicot Circuit Court, which the sheriff levied upon personal property of the plaintiff in error; she, with securities, executed a bond for the delivery of the property, conditioned according to the statute, etc., which was returned forfeited, and ihefi. fa. unsatisfied, etc., and thereby became a judgment, etc., and merged the original judgment, etc.
The plaintiff in error filed a replication of nul tiel record of the ji. fa., return, etc., etc., to which issue was taken, and submitted to the Court upon a transcript of the execution and return, including the delivery bond, etc.
There appears to be no substantial variance between the facts alleged in the plea, and those proven by the transcript.
The statutory judgment upon the delivery bond merged and extinguished the original judgment, and hence the plaintiff in error is barred from further prosecuting her writ of error thereto, as heretofore held by this Court. Pillips et al. vs. Wills, Pease & Co., 14 Ark. 595; Dougherty vs. McDonald, Ib. 597; Smiser et al. vs. Robertson et at., 16 Ib. 599.
The finding and judgment upon the plea must be in favor of the defendants in error, etc. | [
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Mr. Chief Justice English
delivered the opinion of the Court;
On the 30th, April, 1857, the Mississippi, Ouachita and Red River Railroad Company commenced an action of assumpsit against Daniel T. Witter, in the Hempstead Circuit Court, to recover calls due and in arrear upon shares in the capital stock of the company subscribed by him.
The declaration alleges the organization of the company under and for the purposes designated in its charter, etc.; that on the 10th September, 1852, Witter subscribed for five shares, of $100 each, of the capital stock; that the directors had made six assessments and calls up.on the stockholders, at times which are stated, from the 10th November, 1852, to the 13th of February, 1856, and that the aggregate sum of the calls due upon stock subscribed by Witter, with interest, etc., was $261 40, which he had failed to pay after due notice, etc.
On the 7th June, 1858, the cause was submitted to a jury on the general issue, with leave to give special matter in evidence. Whereupon the following agreement of facts was read in evidence b3r consent of parties.
“ John Dockery, and others, on the 29th of November, 1852, filed in the office of the Secretary of State of Arkansas, the charter of the Mississippi, Ouachita and Red River Railroad Company, under the general corporation law, approved 8th Januar3r, 1851, and became a corporation; and, on said 29th of November, 1852, filed in said office a certificate thereof, for the purpose of constructing a railroad from a point on the bank of the Mississippi river, at or near Gaines’ Landing, in the State of Arkansas, through, or near Camden, on the Ouachita river, thence to some point on Red river, at or near Fulton, to some point on the boundary line, between the State of Arkansas and the State of Texas; that the same charter, in substance, passed the General Assembly, and was approved on the 22d of January, 1855, and declared a public act.
Before the fixing or location of the road, the defendant subscribed for and became the proprietor of the shares of stock mentioned in the declaration, of one hundred dollars each, in said company, for the purpose of aiding in the construction of said railroad, between the points specified in the said charter, and the whole number of shares is 15,000.
On the 20th of October, 1853, and not before, the company commenced opening the road by making an authorized survey of the said road, and fixed, located and established the same by the authority of the company, and which has not since been changed, as follows, namely:
Beginning on the west bank of the Mississippi river, at Ferguson’s point, four miles on an air line, and about eighteen miles by road, north of Gaines’ Landing, thence to Camden, and thence to Red river, and crossing at a point called the cutoff, thence to the boundary line between the State of Arkansas and the State of Texas, and this is the present, fixed, established, and located line of said road, by the authority of the company.
Fulton, on a straight or air line, is twenty miles north of the cut-off, and, by usual traveling wagon-road, forty miles, and both points are on the east bank of Red river.
Dooley’s Ferry is ten miles south of Fulton, on a straight or air line, and twenty miles by the usual traveling wagon road.
The cut-off is ten miles south of Dooley’s Ferry, on Red river, by an air line, and twenty miles by the usual traveling wagon road.
Fulton is the highest of the three points. The hills run in near to Fulton, and the overflow there, east of Red river, is not over two or three hundred yards wide.
The road, as established and located from Camden to the cut-off, does not touch or pass through Hempstead county at all (where defendant resides), and the nearest point is about one mile.
If the line of the road had been fixed and located on a straight line to Dooley’s Ferry, it would have passed through the eastern portion of Hempstead county. If it had been run to Fulton, it would have passed through the entire length and a large part of the southern portion of Hempstead county.
Fulton is the contemplated terminus on Red river of the Cairo and Fulton Railroad, and has been a place of notoriety and business for twenty years, and more.
According to the survey and report of the engineer of the company, made in 1854, and adopted by the company, it appears that the distance from Ferguson’s point, on the Mississippi river, to Fulton, on Red river, by way of Camden, is 163 miles, 2,141 feet, and the estimated cost of construction $436,-268 48.
From Ferguson’s, by way of Camden, to Dooley’s Ferry, on Red river, 155 miles, 2,465 feet, and the estimated cost of construction $421,254 92.
From Ferguson’s, by way of Camden, to the cut-off., on Red river, and which has been made the point of crossing Red river, 154 miles, 3,945 feet, and the cost of construction $436,-692 74.
From Camden to Fulton, on Red river, 68 miles, 3,165 feet, and estimated cost of construction $157,649 98.
From Camden to Dooley’s Ferry, on Red river, 60 miles, 3,200 feet, and estimated cost of construction of the road $142,636 36.
From Camden to the cut-off, on Red river, 59 miles, 4,680 feet, and estimated cost of construction $158,074 18; and of these several routes, the engineer, in the said report, says:
From the result of the experimental survey, it may fairly be assumed that, in point of grade, curvature and general practicability, there is no preference to be given to any one of these routes, until you reach the approaches to Red fiver, when, unquestionably, that by way of Dooley’s Ferry is the best, from the fact that the banks of this stream are reached on an elevated ridge instead of through an overflow. The routes to Red river at Dooley’s Ferry and the cut-off, will, upon a revision of the line, place them upon an equality in respect to distance, with cost in favor of Dooley’s ferry. The crossing of Red river can be easily effected at either place by a bridge of moderate cost. The route then to the Texas terminus, would be about the same, presenting no obstacles to the construction of a cheap and permanent road. I am of the opinion that the requirements of your charter will be fully complied with by crossing the river at Dooley’s ferry. As to whether your road could be removed so far south as the Cut off, without a violation of your charter, is a question which I leave to your superior knowledge in these matters.
Fulton is on section 20, township 13 south, range 26 west, and the cut-off is in section 22, township 16 south, range 23 west; Camden is in section 23, township 13 south, range 17 west.
The road has not been fully constructed, nor are there means in the hands of the company, now sufficient, collected, with which to construct and complete the same, but some grading has been done upon the road between Ferguson’s and Camden.
Not much has been doné on the line of road from Camden to the cut-off, on Red river; but the company is still in existence, and has its officers and agents, and are still prosecuting the work of the eastern division of the road. There is no evidence of any direct assent or dissent, on the part of the defendant, to the establishment and location of said road, only that the defendant refused to pay, after the location thereof at the cutoff, instead of at Fulton.
The calls sued for, were regularly made, and have not been paid by the defendant. The interest on calls is ten per cent, from the time they become due until paid; and, of the calls made, the defendant was duly notified, as required by the charter of said company. The calls have not exceeded 33-J per cent, per annum. The calls sued for, with interest unpaid, amount to the sum stated in the declaration. All of which evidence was admitted by consent, and without objection,”
Witter then proved, “ that John Dockery was President and general agent of the company, and, to obtain subscriptions in questions, stated and represented, in public speeches and private conversations, and as an inducement to so subscribe, that the road contemplated by the charter would fun through Hemp-stead county, to Fulton, and would thus be a great benefit to the people of the county, and would be good stock; and Witter made the subscription under the belief and on the understanding that the road would be fixed, established, located and run to the points indicated in the charter.”
Which testimony, on the motion of plaintiff, the Court excluded, and the defendant excepted.
The defendant also proved that “ at the cut-off the bottom, east of Red river, is six or eight miles wide, and subject to an overflow of four feet in depth; on the west, opposite Fulton, Dooley’s ferry and the cut-off the bottom is subject to an average depth of overflow of about five feet.”
Which evidence was also excluded, on motion of the plaintiff etc.
The Court, at the instance of the plaintiff and against the objection of defendant, instructed the jury as follows: “If the jury believe, from the testimony, that defendant subscribed for and took the number of shares of stock in said company, alleged in the declaration, and that the calls were regularly made thereon, as alleged, and defendant had due notice of such calls, agreeable to the requisitions of the charter of the company, and that none of such calls have exceeded thirty-three and one-third per centum per annum on said stock, and that these calls have not been paid as alleged, then the jury will be bound to find for the plaintiff and they will assess the damages to the amount of such calls, with the interest thereon, severally accrued from the time the same became due and payable up to the present moment, at the rate of ten per centum per annum.”
The defendant moved the Court to instruct the jury as follows, viz:
“1. To entitle the plaintiff to recover in this action, the material allegations in the declaration must have been proved to the satisfaction of the jury.
“ 2. If it appear that a charter was granted for the purpose of constructing a railroad from a point on the bank of the Mississippi river, at or near Gaines’ Landing, in the State of Arkansas, through or near Camden, on the Ouachita river, thence to some point on Red river, at or near Fulton, to some point on the boundary line between the State of Arkansas and the State of Texas, and that the defendant subscribed to the location, building and construction of said road, it is a contract of mutual obligation, requiring a compliance with the charter in that respect, on the part of the company, and payment or compliance, on the part of the defendant, and if it also appears that the plaintiff, after such subscription, fixed, established and located the road, from Camden to Red river, at the cut-off, on Red river, instead of at a point at or near Fulton, and that such deviation is material and substantial, it amounts to anon-compliance of the contract and agreement, on the part of the plaintiff, and deprives it of the right of recovering the calls in question, unless it further appears that the change in the road was assented to by the defendant.
“ 3. Where the line or route of a road, with points of beginning and ending, are specified in a charter, and a person becomes a subscriber for stock in such road, it is a contract that the road shall be fixed, located and constructed on the line or route thus specified, with only such- necessary deviations as the work, in its progress, may require, and a material and a substantial change in the route or location of the road, by the corporation, without the assent of the stockholders, is a violation of the contract on the part of the corporation, and discharges him from liability on his subscription.”
The first was given, but the second and third were objected to by the plaintiff, and the same were refused, to which decision the defendant excepted.
The jury returned a verdict in favor of the plaintiff for the amount of calls, etc., sued for; and the defendant moved for a new trial, on the grounds that the verdict was contrary to law and evidence — that the Court excluded from the jury competent evidence offered by the defendant — misdirected the jury on the motion of the plaintiff, and refused instructions moved by defendant, etc.
The motion was overruled, the defendant excepted, and appealed.
In this Court the parties have made an agreement of record as follows:
“ It is agreed that all the aets of the Legislature, in relation to the Mississippi, Ouachita and Red River Railroad, were referred to as evidence, and treated as public acts, and are to be noticed as such; that they were solicited and accepted by the President and Directors of said company, under the authority of a majority of the stockholders of said company. That this be taken as part of the bill of exceptions, as if actually inserted therein, and be applied to all the cases of said company in this Court brought to January term, 1859, from Hempstead county.”
The corporation was formed, as expressed in the third section of its charter, (Acts of 1844, p. 221,) for the purpose of constructing and maintaining a railroad from a point on the bank of the Mississippi river, at or near Gaines’ Landing, through or near Camden to some point on Red river, at or near Fulton, thence to some point on the boundary line between the State of Arkansas and the State of Texas.
Thus the charter fixed the general course of the road, and definitely designated the point from which it was to start, two points by which it was to pass, and definitely the point where it was to terminate.
These points were doubtless fixed upon by a concurrence of the views of the persons who were concerned in getting up and putting on foot the enterprise of constructing the road, and were inserted in it, and established by the charter. The location of the line of the road between these points, was left to the President and Directors of the corporation, {sec. 17,) aided, of course, by competent engineers, etc. And even as to the fixed points, a reasonable latitude was allowed them, in order to enable them to place the road upon the most advantageous ground at or near those points.
It was to construct a railroad upon the route thus fixed by the charter, that the appellant became a subscriber to the capital stock of the company, and the charter was the law of his contract.
It appears that after the charter of the company was drafted and filed in the office of the Secretary of State, under the general corporation law, and after the appellant became a stockholder, the President and Directors of the company caused an experimental survey to be made of the route, by an engineer, and upon his report, abandoned Fulton as the crossing point on Red river, and located the road so as to cross the river at the cut-off, twenty miles distant from Fulton, on a direct line; giving the cut-off preference also to Dooly’s ferry, a crossing point ten miles nearer to Fulton than the cut-off’, and which, according to the engineer’s report, was equally, if not more, eligible than the cut-off.
After the road had been so located, the act of 14th January, 1857, (Pamph. Acts 1856, p. Ill,) was passed, the 4th section of which is as follows:
“ That said company may, and shall have power to locate the line of said road, between the termini thereof by the way of Camden, and at or near said termini, so as to comply with the true meaning and intention of said act for the construction of said road, in what said company may deem the most practicable manner, and best for its interest; and that such line and location of said road and termini as said company shall have adopted, or may adopt, shall be in all respects valid and binding as if specified at length in the charter of said company.
One of the objects of this section was, doubtless, to sanction the abandonment of Fulton, by the company, as a crossing point, on Red river. The effect of the section manifestly is, that the road shall begin and terminate at or near the points — the termini designated in the charter, and shall pass “ byway of Camden,,” but the line of the road from Camden to the boundary line between Arkansas and Texas, was to be as it had been, or might be adopted by the company. The company was not to be bound, however, to locate or construct the road so as to cross Red river at or near Fulton. This conclusion is inevitable, we think, because Camden is still designated as a passing point between the termini of the road, and Fulton is not — Fulton is evidently ignored.
The 21st section of the original charter of the company is as follows:
“ The said company hereby reserves to itself the right either to accept or reject any act of the General Assembly, altering or amending this charter, which shall be decided by the vote of a majority of all the stock, exclusive of that taken by the State, at a meeting of the stockholders, regularly convened for that purpose.”
If the act of 14th January, 1857, was accepted by stockholders representing a majority of all the stock, etc., as provided by the above section of the charter, its provisions are obligatory upon the appellant, and all other persons who have subscribed for stock in the company; because it was a part of the law of their contract of subscription, that amendments made to the charter by the General Assembly might be accepted by a vote of a majority of all the stock.
The agreement of the parties, made of record in this Court, is, that the act referred to, etc., was accepted by the President and Directors of the company, under the authority of a majority of the stockholders, etc.
But this agreement fails to show an acceptance of the act as provided by the 21st section of the charter, because it does not appear that a majority of all the stock was owned or represented by the majority of the stockholders,, who accepted the act, etc., etc.
The stockholders, however, who solicited or assented to the passage of the act are bound by it; but if the appellant has not assented to it, he is released from his contract of subscription, if the act sanctions or authorizes a material departure from the route prescribed for the location of the road by the provisions of the charter under which he became a stockholder. Such, at least, seems to be the rule established by the current of decisions on the subject. See Middlesex Turnpike Co. vs. Locke, 8 Mass. 268; Same corporation vs. Swan, 10 ib. 385; The Proprietors of the Union Locks and Canals vs. Towne, 1 N. H. 44; Hester vs. Memphis & Charleston R. R. Co. 32 Miss. R. 378; The Hartford & New Haven Railroad Co. vs. Croswell, 5 Hill (N. Y.) 382; Barret vs. The Alton & Sangamon Railroad Co., 13 Ill. 540; Pierce on Am. R. R. L., p. 78 to 100; Winter vs. Muscogee Railroad Co. 11 Geo. R. 438; Mississippi, Ouachita and Red River Railroad Co. vs. Cross, ante.
Mr. Justice Woodbury, in the case cited from 1 N. Hamp., aptly expresses the principles upon which this rule is founded. He says:
“ This is a dispute between a private corporation and one of its members. A recurrence to the nature of the liabilities of members to their own corporation, will, we apprehend, divest the case of many of its difficulties. Every individual owner of shares, etc., expects, and indeed, stipulates with the other owners, as a corporate body, to pay them his proportion of the expense, which a majority may please to incur in the promotion of the particular object of the corporation.
“ To make a valid change in this private contract, as in any other, the assent of both parties is indispensable. The corpotion, on one part, can assent by a vote of the majority; the individual, on the other part, by his own personal act. However the corporation, then, may be bound by the assent to the additional acts, (of the Legislature,) this defendant, in his individual capacity, having never consented to either of them, is under no obligations to the plaintiffs, except what he incurred by becoming a member under the first act. Consequently, the assessments sued for, if raised to advance objects essentially different, or the same objects in methods essentially different from those originally contemplated, are not made in conformity to the defendant’s special contract with the corporation, and this action, sustainable on that contract alone, cannot be supported * * * * Notwithstanding the laudable object and great utility of the additional acts, still, if they effected a material change, he is able to say non hcec in fcederá veniP
In the case of Winter vs. The Muscogee Railroad Company, the Supreme Court of .Georgia said; “We do not pretend to deny that alterations may be made in the chartej of an incorporated company, in furtherance of the design and objects of the company; but in all such cases, due regard must always be had to the inviolability of private contracts. The original contract of the parties cannot be materially or essentially altered by an amendment of the charter, so as to bind the subscribers thereto, without their consent.”
The counsel for the appellee insist, however, that the change of location is not a material one, in the case now before us, in the legal interpretation of the word; and that the appellant cannot avail himself of the change to absolve himself from his contract with the company, because the change is prejudicial to his individual interest, etc. That the change is shown to be advantageous to the company — that there was no change as to the termini, but only as to an intermediate point — no change of corporate object or identity — that the road, as located, will still accommodate the same trade and transportation, and substantially subserve the same general interests which the enterprise contemplated to subserve at its inception, etc.
This is, doubtless, the great question in this case — whether the abandonment of Fulton, as a crossing point, on Red river, and the location of the road so as to cross the river at the cut-off, twenty miles from Fulton, is a material change in the location of the road, in the legal sense of the term.
The case of Barret vs. The Alton & Sangamon Railroad Co., 13 Ill. 506, favors, to some extent, the positions taken by the counsel for the appellee, as above stated. In that case, the charter under which Barret subscribed for stock, provided for the location of the road from Alton, on the Mississippi river, in Madison county, by the way of Carlinville, in Macoupin county, New Berlin, in Sangamon county, to the city of Spring field, in the county of Sangamon. The Legislature passed an amending act, authorizing the company to change the location of the road so as to run the same direct from Carlinville to Springfield.
The board of directors accepted the provisions of the act, and changed the route of the road accordingly. By this change the line of road was shortened about twelve miles, and the aggregate cost of construction considerably lessened; but did not run within twelve miles of New Berlin. Barret actively opposed the passage of the law, and the change in the route of the road'. The alteration was generally desired by the stockholders. Although Barret was a resident of Springfield, he was largely interested in real estate in the immediate vicinity of New Berlin, the value of which would have been much enhanced by the construction of the road through that place. He was sued for assessments upon his stock, and relied upon the alteration in the route of the road under the act amending the charter, as a defence to the action.
The Supreme Court of Illinois held that the change in the route was not such as to release him from his contract of subscription. The judge who delivered the opinion of the Court, said: The special reasons which may have influenced him to become a subscriber to the stock of the company cannot be taken into consideration. * * * * * It is wholly immaterial whether he became a subscriber because he believed that the stock would, of itself, be a profitable investment, or because of the incidental benefit which he might receive from the construction of the road in the immediate vicinity of his lands. *' * * * * The rule in relation to contracts of this character must be general in its operation. What will discharge one stockholder from the payment of his subscription, must be held to have the same effect as to others. * * * * The matter of injury to one, or of benefit to another, cannot affect their respective liabilities. The true question, then, is not whether the defendant was deprived of any incidental benefit by the change in the location of the road, but whether the amendment
of the charter worked such a change in the compaay as releases the subscribers from their engagements, at least, such of them as have not assented to the alteration. * * * * * * An alteration in a charter may be so extensive as to work a dissolution of the contract of subscription. An amendment, which essentially changes the nature or object of a corporation, will not be binding on the stockholders. * *' * * A road intended to secure the advantages of a particular line of travel and transportation, cannot be so changed as to defeat that general object. The corparation must remain substantially the same, and be designed to accorfiplishthe same general purposes, and subserve the same general interests. But such amendments of the charter as may be considered useful to the public, and beneficial to the corporation, and which will not divert its property to new and different purposes, may be made without absolving their subscribers from their engagements. The straightening of the line of the road, the location of a bridge at a different place on a stream, or a deviation in the route from an intermediate point, will not have the effect to destroy or impair the contract between the corporation and the subscribers. * * * * The incidental benefits which a few subscribers may realize from a particular location, ought not to interfere with the general interests of the public, and of the great mass of the corporators. * * * The subscribers are sufficiently protected against any invasion of their legitimate rights. The original location must be pursued, unless a change is sanctioned by the Legislature. The alteration must be accepted by the managers of the company, before it becomes obligatory on the stockholders. And the latter will not even then be bound, if their interests are materially affected by the alteration; and in such case they may not only avoid the payment of their subscriptions, but may recover back such sums as they have advanced thereon. * * * The alteration in the present case (continues the Judge) is not of such a radical character as to exonerate the stockholders from the payment of their sub scriptio'ns. The general features and objects of the corporation continue unchanged. The termini of the road remain the same, the only change consisting in a, deviation from an intermediate point. The work is still designed to accommodate the same line of travel and transportation, and promote the same general interests. The length of the road is reduced, and the cost of construction diminished. The change will be useful to the public,” etc.
In Hester vs. Memphis and Charleston Railroad Co. 32 Miss. Rep. 380, Hester relied upon a change of location of the road to release him from his contract of subscription for stock, etc., and the court said:
“ It appears by the acts of the Legislature in question, etc., that the route of the road was prescribed in the act of 1850, to begin at some point on the northern boundary of this State, and pass through the town of Holly Springs, and thence easterly through this State, to some point on the Alabama line, and it is admitted by the pleadings that the plaintiff in error became a subscriber under that charter, etc. The act of 1854 repealed all parts of the act of 1850 inconsistent wdth it, and gave the company power to enter the State at any point on its northern boundary, and to pass out of it at any point they might desire, on the eastern boundary, and it is averred that by virtue of this act the road has been located upon an entirely different route from that prescribed in the act of 1850. It appears by the geographical position of the country, that if the road had been constructed from Holly Springs to the eastern line of the State, it must have passed through the counties of Tippah and Tishomingo, in the latter of which the plaintiff in error resided; and this may he fairly presumed to have been a consideration to his subscribing for stock. * * * Under these circumstances was he bound to pay his subscription? He had agreed to become a stockholder in the road as located by the charter,of 1850. His contract of subscription had direct reference to that charter, and the road as located by it, and that location was most material to his rights and obligations as a member of the company, in asmuch'as the State had no power without his consent to change it, nor had the corporate authorities, nor a majority of the members the power to bind him to the alteration which the State might make at their instance, without his consent, there being no such power in the charter. He was bound to pay for the purpose of constructing the particular road in which he had agreed to become a stockholder; and when the route which was fixed when he became a subscriber, was materially changed, he had the right to consider the enterprise to which.he had bound himself, as abandoned and his contract at an end. These principles are well sustained by authority * * * * * and are sanctioned by this court in New Orleans, etc. R. R. Co. vs. Harris, 27 Miss. R. 517.”
This case is more in accordance with our views of the law than the case in 13 Illinois. Both cases, however, agree in the general principle, that the change in the location of the road which will release a non-assenting subscriber, must be a material one — and the application of the rule to particular cases, must necessarily be controlled, to some extent, by surrounding circumstances, the character and condition of the country through which the road is to be constructed, the interests to be subserved, and the objects to be accomplished by the enterprise. And the apparent want of harmony in the decisions arises more, perhaps, from the diversity of circumstances under which the rule is applied than from any difference of opinion as to what the rule is.
In Hcster,s case, the charter under which he subscribed required the road to pass through Holly Springs, and upon that route it would have passed through his county. By the amendment of the charter, no change was contemplated in the points where the road was to enter, and depart from the State of Mississippi, but an abandonment of Holly Springs as an intermediate point, was authorized by the amendment, and consequently the road did not pass through the county in which Hester resided, as the route to which he subscribed would have done. This was decided to be a material departure, and an unwarranted invasion of his contract, notwithstanding the new route accommodated, perhaps, the same line of travel and transportation, and substantially subserved the same general interest.
The primary object of the route fixed by the original charter of the appellee, was not, perhaps, so much to accommodate any great line of travel, transportation or channel of commerce as to connect with the Mississippi river the districts of country through which it was to pass, to develop and accommodate the agricultural and other interests along the line of the road, afford facilities for the transportation of the products of the country, and doubtless to enhance the value of real property, etc. Perhaps the subscribers looked ultimately to a connection on the boundary line of the State, beyond Fulton, with a great railroad, to be constructed from thence to the Pacific ocean.
But the primary objects of the enterprise being such as are above indicated, perhaps more consequence was attached by the subscribers to intermediate points than would have been if the primary purpose of the enterprise had been to accommodate some great line of travel, transportation or channel of commerce flowing in at the termini of the route.
Be all this as it may, it was as much a part of the contract of the appellant under the charter, that the road should be so located as to cross Red river at or near Fulton, as it was that it should start from a point on the Mississippi river, at or near Gaines’ Landing, pass through or near Camden, and terminate at a point beyond Fulton, on the boundary line between this State and Texas. The same law which designated the termini of the route, fixed the .intermediate points; and we have no warrant for saying that the Legislature in enacting the charter, or the appellant in becoming a stockholder under it, attached more consequence to one than the other.
If the company could depart twenty miles from Fulton, in fixing a crossing point on Red river, without any violation of the appellant’s contract, they could have departed an equal distance from Camden in fixing the line of the road from one terminus to the other, without any invasion of the contracts, or release of the large body of subscribers who were doubtless induced to take stock in the road in consequence of the provision in the charter that it should pass through or near that place. If the company had desired to keep within the spirit of the charter, and depart from Fulton so far only as was necessary to fix upon the most advantageous point for crossing Red river to be obtained at or near that place, it appears from the report of the engineer that this object might have been accomplished without departing so far from Ful ten as the Cut-off, Dooly’s ferry being, in his judgment, an equally, if not more eligible crossing point, and ten miles nearer to Fulton than the cut-off. Motives of policy rather than necessity, must therefore have induced the selection of the cut-off as the crossing point.
There is no evidence that the appellant assented to this change in the route, or to the passage of the act sanctioning it; on the contrary, the agreement of the parties is that he refused to pay assessments upon his stock after the location of the road at the cut-off instead of Fulton.
No absolute rule can be laid down as to what is a material departure to be applied to all cases, each case depending very much upon its own peculiar circumstances. The materiality of the change is treated in the decisions referred to in the course of this opinion, as a question of law to be determined by the court, upon facts ascertained by the jury, or agreed upon by the parties; and so we have treated the question in this case.
Our conclusion is, that the departure from Fulton was material and unauthorized by the charter under which the appellant became a subscriber for stock in the road, and there being no evidence that he solicited, or assented to the passage of the act sanctioning the departure; or that the act was accepted by a vote of a majority of all the stock, etc., he was released from his contract of subscription, and the verdict of the jury upon the evidence, should have been in his favor.
The judgment of the court below refusing the appellant a new trial, must be reversed, and the cause remanded with in structions to grant him a new trial, etc., etc.
The foregoing opinion applied also to the cases of
Witter vs. Mississippi Ouachita and Red River R. R. Co.
Hannah vs. same same.
same vs. same same.
Smith vs. same same.
same vs. same same.
N. W. Smith vs. same same.
same vs. same same.
Mitchell vs. same same.
same vs. same same.
Phillips vs. same same.
same vs. same same.
Blevins vs. same same.
Collins vs. same same.
Conway vs. same same.
Cross vs. same same.
Ferguson vs. same same.
Purdom vs. same same.
On appeal from the Circuit Court of Hempstead county. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
Calvin Coker was indicted in the Marion Circuit Court for the murder of Matthew Owens; upon his application, the venue was changed to White county, where he was tried, on the plea of not guilty, convicted of murder in the second degree, and sentenced to the penitentiary for seven years. He moved for a new trial, which was refused, and he excepted and appealed to this Court.
The grounds of the motion for a new trial, will be considered in the order in which they appear upon the record:
1. The Court excluded from the jury part of the testimony of Dixon C. Williams.
Williams testified, among other things, that he had a conversation with Owens, on the way to his house, some months before he was killed, in which Owens told him that he believed that Bill Coker, old Jo. Coker, and Calvin Coker had conspired against him, because he would not succumb to them; but if they ever came in collision with him, he would get one or two of them while they were getting him, etc. That after witness and Owens got- to the house, “ Owens showed him a pistol, and asked him if he did not think that would do to take them. He said it loas sure fire: a dead shot.”
It seems that Williams communicated to Calvin Coker, before the killing, what Owens said to him on their way to the house, and the Court permitted that to go to the jury, but excluded so much of Williams’ testimony as related to what Owens said to him about the pistol, etc., after they got to the house; because it was not communicated to Coker, by the witness, before the killing.
The ruling of the Court on this point was in accordance with the decision of this Court in Atkins vs. The State, 16 Ark. 584.
2. The Court permitted an affidavit for continuance, made by the prisoner, to be read in evidence to the jury, on the part of the State, against the objection of the prisoner, etc.
it is supposed that the affidavit was introduced for the purpose of contradicting the testimony of Nolen, a witness for the prisoner.
It appears that, at the term of the Circuit Court of Marion county, at which the indictment was preferred against Coker, (April, 1857), he filed an affidavit for continuance, on the grounds, among others, that Nolen, a material witness for him, was absent. That he expected to prove by him that the deceased made threats against affiant (Coker), a short time before the killing, etc., and that he was not informed and did not know that he could prove such threats by Nolen until after the indictment was preferred, etc.
It also appears that, upon the trial, Coker introduced Nolen as a witness in his behalf, and that he testified that some time before the killing he heard the deceased make threats against Coker, which he communicated to him before the killing, etc.
The voluntary statements of the accused, in a criminal case, in relation to any matter connected with the crime, whether made verbally or in -writing, may be introduced against him by the State. We know of no good reason why the statements, made by him in an affidavit for continuance, should be excepted from this general rule, and excluded. The witness Nolen testified that he communicated the threats to Coker before the killing. The sworn statement of Coker tended to contradict the witness on this point, and it seems to us that it was competent for the State to introduce it for what it might be worth in the estimation of the jury.
3. That the Court erred in the instructions given to the jury of its own motion.
These instructions cover nearly nine pages of fools-cap paper, and are principally made up of extracts from our statute, and from the standard text writers, on the several grades of homicide. No specific objection to any particular feature of them is made in the bill of exceptions, or in the argument for the appellant. They are as favorable to the prisoner as the facts of the case warranted; and manifest a disposition, on the part of the Court, to furnish the jury with such plain and simple rules of evidence, familiar illustrations, etc., as would assist them in making up a just and impartial verdict between the State and the prisoner, etc.
4. On motion of the attorney for the State, the Court instructed the jury as follows, against the objection of the prisoner:
1. “If the jury find from the evidence that the defendant armed himself with a deadly weapon, or being armed with a deadly weapon, provoked the deceased, by insulting words, to resentment, without the use of a deadly weapon, intending to slay him, and did slay him under the pretence of acting in self-defence, the killing is regarded, by law, as murder in the first degree.
2. “If they believe from the evidence that the deceased was unarmed, and that the defendant used a knife, which was a deadly weapon, no threats made by the deceased before the homicide will excuse the offence, or reduce it to manslaughter, if the combat was sought, or willingly entered into by the defendant.”
In connection with these instructions, the Court also gave, at the request of the prisoner, the following:
1. “If the jury find from the evidence, that the defendant was attacked in such manner and under such circumstances as to furnish reasonable ground for apprehending a design to take his life, or to do him some great bodily harm, and that there was reasonable ground for apprehending a design to lake away his life, or do him some great hodily harm, and there was reasonable ground for believing the danger imminent, that such design would be accomplished, they should find for the defendant.
2. “ If the jury find from the evidence, the deceased had made threats against the life of the defendant, and that these threats had been communicated to the defendant before the killing, and that the deceased made a demonstration in such manner, or under such circumstances, as to furnish the belief that there was a design to take away his life, or do him great bodily harm, and that there was reasonable ground to believe the danger imminent that such design would be accomplished, and that the defendant killed Owens, it, in law, would be justifiable homicide, and they should find for the defendant.”
Perhaps a killing under the circumstances supposed in the first special instruction given for the State, might be murder in the first degree, and perhaps there were some features of the testimony that warranted the giving of the instruction; but neither of these points need be positively decided, as the appellant was acquitted of murder in the first degree, and was, therefore, not prejudiced by the instruction.
The second special instruction, given at the instance of the State, is unobjectionable, especially when considered in connection with the second instruction given on behalf of the appellant.
5, 6 & 7. The fifth, sixth and seventh grounds of the motion for a new trial are substantially the same — that the verdict was contrary to law and evidence.
Upon this point, the argument of the counsel for the appellant is silent.
The testimony conduces to show that Coker and Owens differed about some change. Owens insisting that he had given Coker $2 50, by mistake, in making change, which Coker denied. Owens sued Coker for the amount in controversy before a justice of the peace. The parties met at De Buque, on the 7th of February, 1857, for trial. After one witness had given his testimony, it was mutually agreed that the case should be submitted to the justice upon the statements of the parties. Whilst Owens was making his statement, Coker intimated that he was swearing falsely. The parties differing in their versions of the matter, the magistrate stated that he would take the case under advisement. Coker then went out of the justice’s office, and returned with some liquor in a tin dipper, and passed it round to the company, offering it to Owens, perhaps, who declined to drink. Coker then sat down at the fire, by the side of Owens, and said to him that he had sworn what he would not swear for Marion county. Owens replied, that he had sworn it, and would swear it again. To which Coker responded that if he did, he would swear a d — d lie; whereupon, Owens arose, saying he could stand it no longer. Coker arose at the same time, and they caught each other by the hands. A brother of Owens took hold of him, and pushed him back into one corner of the room; the magistrate, at the same time, taking hold of Coker, and shoving him back to the door, some 8 or 10 feet from Owens. Coker then drew a Bowie-knife, broke loose from the magistrate, rushed on Owens, and thrust his knife into his bosom, giving him a mortal wound, of which he very soon died. Some of the witnesses say that whilst the magistrate held Coker back at the door, Owens pulled off his blanket overcoat, and dropped it down by him. None of the witnesses'testify that he made any attempt to use a weapon, if he had any about him. They found none upon his person when he was stripped after he was killed.
One witness swore that he gave him a pistol before the trial, and slipped in and took it out of his overcoat pocket immedi-. ately after he was stabbed.
The above is the substance of the facts connected with the killing, as stated by most of the witnesses. One or two witnesses make a more favorable version of the facts for the prisoner.
Upon all the facts of the case, the conclusion is inevitable that there was no want of testimony to sustain the verdict.
8. The eighth ground of the motion for a new trial is, that the jury separated, after the cause was submitted to them, without leave of the Court, or consent of the counsel, and may-have been subjected to improper influences, etc.
In support of this ground, the following affidavits were filed:
“ We, Samuel Pilkington and Dan. Pilkington, do solemnly swear, that after the jury in the case of the State vs. Coker were charged by the Court, and said case was submitted to them, and before the opening of the Court on the next morning, and before said jury had rendered their verdict in said cause, tn-wit: on Saturday morning, the 9th inst., we saw Wm. Hendrix, David G. Lowell, and three others of said jury, separated from the balance of said jury, at so great a distance that they were entirely out of sight of the other seven of said jury. That the five seen by us were on the commons, east of the office of G. W. McCauley, esq., and that we looked to see where •the others were, but could not see them. January 11th, 1858.”
“ I, W. E. Clayton, do solemnly swear that, after the case of ■the State vs. Coker was submitted to the jmy, and before said jury had rendered their verdict in said case, to-wit: on Saturday morning, the 9th inst., I saw about half of said jury in the ■woods adjoining the north-east portion of .the town of Searcy, and so far separated from the other half as to be entirely out of sight of them. That I looked about to see where the others of said jury were, but could not see them. January 11th, 1858.”
For the general rule as to misconduct of jurors, and its effect upon the verdict, see opinion of this Court in Collier vs. State, present term.
In relation to the separation of the jury in criminal cases, the rule established in Cornelius vs. The State, 7 Eng. 810, recognized in Stanton vs. The State, 13 Ark. 320, and which may be regarded as the settled practice in this State, is, that where it is shown by the accused that one or more of the jurors separated from the panel, without leave of the Court, or consent of parties, and were thereby exposed, under the surrounding circumstances, to improper influences, the presumption is against the purity of the verdict, unless it be affirmatively shown, on the part of the State, that they were not, in point of fact, subjected to such improper influences.
The affidavits in this case fall short of showing a separation of jurors within the meaning of this rule.
All three of the affiants, doubtless, refer to the same separation. It was in the morning of the 9th of January, before the Court met. They saw about half of the jurors on the commons, or in the woods, adjacent to the town of Searcy., and could not see the others — the others were not in view. Where the affiants took their position, how far from the place where the jurors were, or what intervening objects there may have been, the affiants do not state. Nor do they state that the officer who had charge of the jury was not with or near the jurors seen by them upon the common; nor that other persons were about the jurors, who might have approached them, or spoken in their hearing, in reference to the trial.
The record shows that the jury were empanneled on the 4th of January, and the trial progressed from day to day until the 8th, when the cause was finally submitted to them, and they retired, in charge of an officer, and returned into Court with their verdict on the 9th. It has not been the practice in this State to lock up juries in rooms, and keep them in close confinement from the time the cause is submitted to them, until they render their verdict. Suitable rooms for such continuous and exclusive confinement could rarely be furnished in the places where our Courts are holden. It is a very common practice for juries, during the day time, to retire to the woods which are adjacent to most of our court-houses, for the purpose of making up their verdicts, whilst the officer in charge stations himself at a respectful distance from them, so as not to intrude upon their deliberations himself, but to guard them from the approach of others. And where the jury are confined to a room during the night, which is usually the case, they are not unfrequently permitted, by the officer, to retire to the woods in the morning. It fis more than probable that the jury, in this case, after having been left in a room during the night, were allowed, by the officer, to retire to the woods on the morning of the 9th of January for a sufficient reason; and, perhaps, if the affiants had ascertained and stated all the facts, in their affidavits, the cause of some of the jurors being out of sight would have been accounted for.
If verdicts were set aside upon such affidavits of separation as the one now before us, a verdict would rarely be permitted to stand where the accused is found guilty of a grave offence.
9. The ninth ground of the motion for a new trial is, that ■appellant was surprised by the testimony of Noah Stoops, etc.
Sloops testified, on the part of the State, that he saw Coker, when he came out of the justice’s office, immediately after he stabbed Owens: that he had a knife in his hand, which had blood on it: that he appeared to be in a passion, and said “ there was a damned rascal in there who had swoi’n a lie against him, but he would not do it again.”
In support of this ground for a new trial, Coker filed his own affidavit, stating that he made no such declaration as that attributed to him by Stoops, at the time referred to by the witness, or at any other time. That he was surprised by his testimony as to such declaration: that he believed he could prove by several persons, and especially by Isham Stinnett, that Stoops was so much intoxicated at the time of the killing that he was unable to comprehend or recollect such declaration, if ■it had been made. That affiant did not know what Stoops would swear until he was put upon the stand, ete. That he told affiant and others that he did not know what he was summoned for, etc. That the witnesses, by whom affiant expected to prove that Stoops was intoxicated on the day of the killing, resided in Marion county, and it was out of the power of affiant to produce their affidavits, etc. That affiant had been informed by one or more of the jury that it was the testimony of Stoops that induced his conviction, etc.
The affidavit of Benj. Hudson was also filed in support of this ground, who stated that Stoops told him during the progress ■of the trial that he did not know what they wanted him as a witness for; that he knew nothing about the case.
Motions for new trials on the grounds of surprise, are addressed to the sound discretion of the Court, and the judgment of the Court upon them is not to be overruled here, unless it is clearly wrong. Nelson vs. White, 18 Ark. 574.
Stoops was the second witness examined for the State, on the trial. It does not appear that he was cross-examined by the appellant, or asked if he was intoxicated on the day of the killing. A number of witnesses, on both sides, was examined after he was, who professed to have been present when Owens was killed, and it does not appear that appellant attempted to prove by any of them that Stoops was intoxicated on that day. His testimony in relation to the conflict between the parties, and the incidents immediately preceding, is corroborated by most of the other witnesses. Several of the witnesses testified that when Coker went out of the justice’s office, immediately after he stabbed Owens, he had the Bowie-knife in his hand, and was in a rage; though none of them professed to have heard him make the particular declaration testified to by Stoops.
Upon the whole, we think there was no abuse of the sound legal discretion of the Court below in overruling the motion for a new trial on the grounds of surprise.
10. The tenth and last.ground of the motion for a new trial is, that there was no valid indictment against appellant, etc.
This, if true, would be ground for arresting the judgment, rather than granting a new trial; but the objection is unfounded. The indictment appears to be in good form, and was regularly preferred.
The judgment of the Court below is affirmed. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
Assumpsit, by the Mississippi, Ouachita and Red River RailRoad Company against Edward Cross, in the Hempstead Circuit Court, commenced 2d May, 1856.
The object of the suit was to recover the calls due upon ten shares (of $ 100 each) of the capital stock of the company subscribed by the defendant.
The defendant pleaded the general issue, with leave to introduce special matter in evidence. The cause was submitted to a jury at December term, 1856, on an agreement of facts, in substance, as follows:
John Dockery, and others, (the defendant not being one of the number,) on the 29th November, 1852, filed in the office of the Secretary of State, the charter of the Mississippi, Ouachita and Red River Railroad Compart, under the general corporation law of 8th of January, 1851, and became a corporation for the purpose of constructing a railroad from a point on the bank of the Mississippi river, at or near Gaines' Landing, in the State of Arkansas, through or near Camden, on the Ouachita river, thence to some point on Red river, at or near Fulton, to some point on the boundary line between the State of Arkansas and the Slate of Texas.
That the charter of the company was approved and declared to be a public law by an act of 22d Januaiy, 1855, which passed both houses of the General Assembly, was signed by the President of the Senate, and approved by the Governor, but was not signed by the Speaker of the House, etc.
That on the 10th of September, 1852, the defendant subscribed for, and became the proprietor of ten shares of stock of the company, for the purpose of constructing said railroad between the points specified in the character.
That the assessments and calls were made, as alleged in the declaration, and notice thereof given as directed by the act of incorporation, and that they have not been paid by the defendant.
The defendant was never an officer or director in the company; and, of his own accord, has abstained from participating in the proceedings thereof since the location of the road.
The road has been located and fixed by the company, without the assent of the defendant, as follows: Beginning on the Mississippi river at Ferguson’s point, north of Gaines’ Landing, thence to Camden, and thence, crossing at a point on Red river, called the cut-off, to the boundary line between Arkansas and Texas.
The agreement proceeds to set out the survey and report of the engineer, made in 1854, and adopted by the company, showing the relative distances, and costs of construction of the road from Ferguson’s point, and from Camden to Fulton, Dooly’s ferry, and the cut-off, on Red river, which report is fully set out in the case of Witter vs. The Mississippi, Ouachita and Red River Railroad Co.
That the road has actually been fixed, located and established by the authority of the company, acting through their president and directors, or a majority of them, to cross at the cut-off, on Red river, and run thence to the Texas boundary line.
John Dockery was the general agent of the company, for the purpose of receiving subscription of stock, etc.
The defendant, for the purpose of showing that the plaintiff had not located the road agreeably to the terms of the charter, but had materially varied therefrom, proved that the cut-off was, on an air-line, 20 miles south from Fulton, on Red river, and 40 miles by the usually traveled wagon road.
The defendant also introduced evidence as to the comparative advantages of making Fulton, instead of the cut-off, the crossing point, etc.
He also proved that the route from Camden to the cut-off does not touch Hempstead county, and that if the road had been located on a straight line to Fulton, it would have passed through the southern portion of the county, etc. That Fulton is the terminus, on Red river, of the Cairo and Fulton Railroad, and has been a place of notoriety and business for twenty years.
That Ferguson’s point, on the Mississippi, is four miles, on an air line, from Gaines’ Landing.
That Dockery, in his public speeches, in Hempstead county, in order to obtain subscriptions, stated that the road would run through the county.
To all of which testimony the plaintiff objected, but in order to rebut the same, inti’oduced Lloyd Tilghman, the chief engineer of the road, who made the experimental surveys, and scientific explorations necessary for the location thereof, who testified that the cut-off presented the best facilities for a crossing on Red river, anywhere within the region of Fulton; which latter point he found wholly unfit from physical obstacles, and had to condemn it.
Whereupon the plaintiff moved to exclude from the jury all the oral testimony aforesaid, pertaining to the location of the road, contrary to the terms of the charter, and also all testimony relative to the declarations made by Dockery in his public speeches; together with the rebutting testimony introduced by the plaintiff, as incompetent and irrelevant to the issue in the cause. Which motion the court sustained, and defendant excepted.
The jury returned a verdict in favor of the defendant. The plaintiff moved for a new trial on the grounds that the verdict was contrary to law and evidence. The Court overruled the motion; plaintiff excepted, set out the evidence and brought error.
1. By pleading the general issue, the defendant below admitted that the plaintiff was a corporation. Ald. & Conn. vs. Finley, 5 Eng. 423.
2. The plaintiff in error was sued by the corporation for the amount of calls due upon his stock. It is insisted that he had the right to prove, and did prove, by way of defence, that the companj1', in locating the road, violated the provisions of the charter, and the law of the contract with him, and consequently he was released from the contract of subscription, etc. That the charter under which he subscribed for stock, provided for the construction of a railroad from a point on the Mississippi river, at or near Gaines’ Landing, by Camden, to some point on Red river, at or near Fulton, etc., and that the company in locating the road, had made a departure from these points not warranted by the provisions of the charter.
It is doubtless true, that the charter, is the law of the contract between the corporation and a subscriber to its capital stock. That the corporation has no right to depart from the law, or violate the contract of the subscriber. It is equally true, that any material departure from the points designated in the charter for the location of the road, is a violation of the charter, and an invasion of the contract, and that for such abuse of the charter, the franchise of the corporation may be seized upon quo warranto, unless the Legislature has waived the right of the State to seize the franchise, by acts legalizing the violation of the charter. Pierce on Am. R. R. Law, p. 78 to 100; 9 Wend. 351.
But what is the remedy for the subscriber where the corporation has made an unwarranted departure from the terms of the charter in the location of the road? Is he permitted to show such violation of the charter to defeat a suit brought against him by the corporation for assessments upon stock subscribed for by him?
The subject of the forfeiture of corporate franchises by nonuser or misuser (says Mr. Kent, 2 Com. 312,) was fully discussed in the case of the King vs. Amery, 2 Term R. 515; and it was held that though a corporation may be dissolved, and its franchises lost, by non-user or neglect, yet it was assumed as an undeniable proposition, that the default was to be judicially determined in a suit instituted for the purpose. The ancient doubt was, whether a corporation could be dissolved at all for a breach of trust. It is now well settled that it may, but then it must be first called upon to answer. No advantage can be taken of any non-user or mis-uscr, on the part of a corporation, by any defendant in any collateral action.
If as between the corporation and the defendant, (says Mr. Robinson, in his work on Practice, vol. 3, p. 327,) there be a sufficient consideration for a note or contract made to or with the corporation, an action may lie thereon, although for abuse of its powers the corporation may be answerable to the government which created it. For the purpose of collecting its debts, its charter may still, as between the corporation and a debtor to it, be deemed in existence, notwithstanding the charter may have been violated. For such violation cannot be made the subject of judicial investigation in a collateral suit. The only evidence competent to prove the forfeiture of a charter is the judgment of a court directly on the point, and no inferior evidence can be admitted for the purpose, unless it is otherwise directed by the Legislature in express terms.
It cannot be shown in defence to the suit of a corporation (say Angel & Ames on Corp. 507, 2d Ed.) that the plaintiffs have forfeited their corporate rights by mis-user or non-user. Advantage can be taken of such forfeiture only on process on behalf of the State, etc., and individuals cannot avail themselves of it in collateral suits, until it be judicially declared. A plea or answer, therefore, as a general rule, to the suit of a corporation, showing facts upon which in a direct proceeding, the corporate powers might he declared at an end, is not sufficient. It must show that they have ceased. The Brookville and Greenburg Turnpike Company, 8 Ind. Rep. 494.
This general principle was recognized by this court in Booker ex parte, 18 Ark. 338, and Hammett vs. Little Rock and Napoleon R. R. Co., January Term, 1859.
The principle was also applied in the following cases, among others that might be cited. Sewall’s Falls Bridge vs. Fisk & Norcross, 3 Forter, 171; State vs. Fourth, N. H. Turnpike, 15 N. H. R. 166; Conn. & Pass. Rivers R. R. Co. vs. Bailey, 24 Vermont, 476; Harris et al. vs. Nesbit. 24 Ala. 398.
Upon these authorities it may be safely announced as a general rule, that in a suit by a railroad company or other corporation, against a subscriber for assessments upon his stock, he is not permitted to show, by way of defence to the action, that the corporation has, by mis-user, or non-user, violated or failed to comply with the provisions of its charter.
The case of the Central Plank Road Company vs. Clemens, 16 Mo. 359, is similar in all respects to the one now before us. It was an action to recover installments assessed on stock subscribed by Clemens. He set up as a defence that the President and Directors of the company, in locating the road, unnecessarily and improperly departed from the route designated in the articles of association, etc
In passing upon this ground of defence, the court said: “ The third ground of defence is equally unavailing. If the Directors of the company, in locating the road, have departed from the route proposed in the articles of association, so as in fact to make it a different enterprise from that in which the defendant engaged, and different from that which is authorized under the law, they have violated their duty to the company, and to the law, but not more to the defendant than to every other member of the company. If their act stands as the act of the company, and is such a departure from the route proposed in the articles, as to be a different enterprise, then the whole corporate franchise may be taken from the company by the appropriate proceeding. But in the present suit, for an installment due upon the defendant’s stock, this question cannot arise. The authorities cited from New York and Massachusetts, to show that an altei-ation in the charter of an incorporated company, made after the original subscription of stock, materially changing the charter and objects of the company, discharges a subscriber from his obligation to pay upon his original subscription, when he has refused to consent to any such alteration, do not apply to a case like the present.”
If, when a subscriber for stock is sued for calls made upon it, he may defeat the action by showing that the directors of the company have violated the charter by departing from the route or points fixed by it for the location of the road, there is no good reason why he may not defeat the suit by making it appear that they are appropriating the funds of the company to unauthorized purposes; or that they are not constructing the road upon the plan designated by the charter; or that the directors and officers of the company are consuming the funds for their own purposes, and utterly neglecting to progress with the enterprise; or wholly incompetent to prosecute it to a successful termination; or any other abuse of the charter. If the door were once opened for such defences, in every suit brought by a corporation, the conduct of its directors would be canvassed, and collateral issues would become interminable.
As above remarked, the charter is the law of the subscriber’s contract. If the directors undertake to make an unwarrantable departure from the provisions of the charter in the location, or construction of the road, or in the appropriation of the funds of the company, the stockholder has his remedy by injunction. Not to enjoin the collection of calls due upon his stock, (Booker, ex parte, 18 Ark.) but to restrain the corporation from the particular violation or abuse of its charter complained of. Dodge vs. Woolsey, 18 How. U. S. R. 331, 341.
• There are cases in which it has been held, that where one subscribes for stock in a company chartered for the construction of a road upon a particular route, and afterwards a majority' of the stockholders procure the passage of a law amending the charter, and making a radical change in the original route, the subscriber, not consenting to such alteration of the charter, is released from his contract of subscription. (See cases collected in Pierce on Am. R, R. L. 78 to 100.
In such case the enterprise to which he subscribed is abandoned, and the law of the contract being in effect repealed, it is no longer in his power to ask the Court of Chancery to compel the corporation to locate and construct the road npon the original route: nor is it within the power of the State to seize the franchises of the corporation, on account of such departure from the original route, after it is sanctioned by a legislative act. Under such circumstances it is but just to hold that the subscriber, not asking, consenting to, or acquiescing in the amendment of the charter, should be released from his contract of subscription.
But such is not the character of the defence interposed in the case now before.us. The plaintiff in error complains of an alleged violation of the charter under which he became a stockholder, by the company, in locating the road, and not of a Legislative change in the provisions of the charter in reference to its location. In other words, he attempts to set up a mis-user of the charter as a defence to the action, which is a collateral issue.
It is not proper in this case to determine what effect- the 4th section of the act of the 14th January, 1857, (Pamph. Acts, 1856, p. 112,) had upon the rights of subscribers, who did not procure or assent to the passage of the act, because the act has been passed since the trial of this cause.
It was not competent for the defendant in error to prove (his subscription being general and unconditional) declarations made by Dockery in his speeches, etc., as to the location of the road, unless the substance of such declarations had been incorporated in the contract of subscription, and a compliance therewith, by the corporation, made a condition precedent to the payment of assessments upon the stock, etc., Con. & Pass. River R. R. Co., vs. Bailey, 24 Vermont, 477; McMillan vs. Maysville & Lexington Railroad Company, 15 B. Monroe, 218.
It follows that the court below did not err in excluding the evidence introduced by the parties in relation to the violation of the provisions of the charter in the location of the road: that the verdict of the jury was wholly unwarranted by the evidence, and that the court should have sustained the motion for a new trial.
The judgment must therefore be reversed, and the cause remanded with instructions to grant the plaintiff in error a new trial, etc. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
On the 30th of August, 1850, Andrew Estes commenced an action of replevin, in the cepit, against Willis A. J. Clinton, in the Crawford Circuit Court, for the recovery of slaves, named Milly, Bob, Angeline, Sam, Betty, Malissa and Ned.
The defendant pleaded non cepit, and property in himself, to which issues were made up, and upon his application, the venue was changed to the Franklin Circuit Court, where, after several mistrials, the cause was finally tried at the June term, 1856, and verdict and judgment in favor of plaintiff, and the, defendant appealed.
No motion for a new trial was made, but the case was brought here on exceptions taken by the defendant to decisions of the Court, in progress of the trial, in reference to the admissibility of testimony and instructions to tbe jury.
The plaintiff had been the owner of the slaves in controversy for many years prior to July, 1850, and at that time had them in possession, at his residence, on the Osage river, in the State of Missouri, when they were forcibly seized, and taken from him, by the defendant, in company with other persons, and brought to Crawford county, in this State, where this suit was commenced, in the name of the plaintiff, for their recovery, The defendant claims title to the slaves under a bill of sale, alleged to have been executed by the plaintiff, to his son, John G-. Estes, on the 28th July, 1849, and a bill of, sale made by him to the defendant, on the 25th July, 1850, the day before the slaves were taken from the possession of the plaintiff.
On the part of the plaintiff it is insisted that the bill of sale from him to his son, John G., was obtained by fraud, etc., and this was the principal point of contest in the Court below.
1. The first point reserved by the defendant’s bill of exceptions is, that the Court permitted the plaintiff to give in evidence the statement of Trammell, gne of the persons who assisted the defendant in taking the slaves from the possession of the plaintiff, and running them off to Arkansas.
In order to a full understanding of this point, it is proper to state the substance of the testimony introduced by the plaintiff, on the examination in chief, in connection with the declarations of Trammell.
Bejamin Davis testified, in substance, as follows: The plaintiff, an aged man, resided on a farm upon the Osage river. There was no white person upon the place at the time but himself. The defendant, Trammell, witness, and others, got aboard of a flat-boat, lying on the river, some distance above the plaintiff’s residence, on which a cabin had been fitted up a day or two before, and floated down to the upper end of plaintiff’s farm, where they landed about two hours by sun. Some of the company went down to see if they could make any discovery of the negroes, and, on their return, the boat was dropped down opposite to the plaintiff’s house. They found six of the negroes (all of them but old Milly,) on the shore; seized them and put them on board the boat, in the cabin. The defendant and Trammell, in order to get Milly to the boat, went to the house, and told her that one of the boatmen had cut Bob with a knife, and she had better go and see about it. She refused to do so until she went to see the old man, the plaintiff. The defendant, Trammell, plaintiff and Milly, came down to the boat together, bringing a bottle of' camphor with them, and Milly was put on board of the boat. The defendant told the plaintiff that he had purchased the negroes from his son, John G. Estes, and had a clear bill of sale for them. After Milly was taken aboard, the boat was shoved out, run down a mile or so, and landed on a bar, and the negroes taken ashore; and that was the last witness saw of them. It was the calculation of the part}r to take the negroes, whether plaintiff consented or not. When the boat was shoved off, the plaintiff exclaimed, that he would get a company and follow them, and take the negroes. Witness had understood from the defendant, or one, Dodson, that John G. Estes had purchased the negroes, and that they had run away from him, and gone back to the plaintiff.
Thomas W. Cotton — Had lived near the plaintiff for fifteen years; during most of which time, up to July, 1850, he had in his possession and exercised ownership over the slaves in controversy. They were worth $4,000 when they were taken from him.
The plaintiff then introduced a witness by whom he proved, that witness first saw the negroes in controversy in the possession of one Brown & Trammell, in Yan Burén, Ark., in 1850. They had been apprehended as runaways. Witness had a conversation with Trammell, who stated that they wanted to do something about the negroes, or he would go on with them — ■ that he wanted to be stopped legally. He said that he, John G. Estes, Clinton (the defendant), and others, took the negroes from plaintiff’s, on the Osage river, in Missouri; that John G. Estes made a contract with Clinton, by which he sold to Clinton the negroes for $3200 or $3300. That he (Trammell) witnessed the bill of sale. That it was understood by the parties that Clinton was to take the negroes south, if he could get hold of them — John G. had not possession of the negroes at the time of the sale. They were at the plaintiff’s. That it was understood that if Clinton could get hold of the negroes, he was to take them south, sell them to pay the expenses, and return and pay off the note, and divide the profits between them. Trammell said that they got possession of them by going down to a store, fixing up a boat, and going down to where the negroes were. That they found them on the bank of the river, on Sunday evening. The negroes were going across the river to a meeting. That he Trammell, defendant, and others, nabbed six of them and put them in-a room on the boat. That they went up to the house, and got the old woman, and brought her down. It was near night. They had horses below the plaintiff’s house; pushed off the boat, and went down to where the horses were — traveled that night, laid by the next day, and traveled next night, and after that, traveled in the day.”
“ To all of which testimony, the defendant objected at the time, and moved the Court to exclude it from the jury; because the testimony of said witnesses related to the confessions and statements of Trammell, not a party to the suit; and to all that part of the testimony not relating to the taking of the slaves from the possession of the plaintiff, as variant from the w'ritten contract.”
But the Court overruled that objection, and permitted the witness to testify as above, upon the ground that Trammell was a co-conspirator.
Plaintiff also proved, by Rev. Mr. Mitchell, that, in August, 1850, he met defendant near Springfield, Mo., who told him that he had possession of plaintiff’s negroes, and that they were in charge of Brown <$• Trammell, and he had instructed them to take the negroes through Greenfield, Mo., in the direction of the Cherokee nation, and there turn to the left, and cross Arkansas river at Ozark. That witness being then on his way home, in plaintiff’s neighborhood, defendant requested him to say nothing about having seen him there, and that if any persons made any enquiries about him or the negroes, to give them evasive answers; and said that he knew he could not hold the negroes in Missouri, but that if he could succeed in getting them south, he would ask no odds. Witness then enquired of defendant if he would sustain any loss in case the negroes were re-captured, and the defendant answered in the negative, and said that John G. Estes was good to him. Witness then asked defendant if he thought it was right in John G. Estes to take the negroes out of the country; and defendant said yes, that it would be the means of separating plaintiff' and old Milly.
Here the plaintiff rested.
Conspiracy consists of a combination and agreement, by two or more persons, to do some illegal act; or a combination and agreement to effect a legal purpose by illegal means. Regina vs. Vincent, 9 Car. & P. 91; 2 Halstead’s Ev. 177.
Mr. Bouvier (1 Dic. 281) defines it to be an agreement between two or more persons to do an unlawful act, or an apt which may become, by the combination, injurious to others.
Conspiracies are of two kinds: 1st. Against the public, or such as endanger the public health, violate public morals, insult public justice, destroy the public peace, or affect public trade; 2d. Against individuals, such as have a tendency to injure them, in their persons, reputation or property, lb.
At the point where the plaintiff rested in his evidence, he had clearly made out a conspiracy — a combination by the defendant Trammell and others, forcibly to take from him, and carry off, slaves which were in his possession, and of which he was prima facie the owner.
The conspiracy was sufficiently made out to warrant the admission of the declarations of Trammell, as a co-conspirator, if competent in other respects. 1 Greenleaf Ev., sec. 111; Doghead Glory vs. State, 13 Ark. 239.
The connection of individuals in an unlawful enterprise being shown, every act and declaration of each member of the conspiracy, in pursuance of the original concerted plan, and with reference to the common object, is, in contemplation of law, the act and declaration of them all, and is, therefore, original evidence against each of them.
Care must be tak.en that the acts and declarations, thus admitted, be those only which were made and done during the pendency of the criminal enterprise, and in furtherance of its objects. If they took place at a subsequent period, and are, therefore, merely narrative of past occurrences, they are to be rejected'- 1 Greenleaf Ev. 111.
■ Declarations of one conspirator, made after the transaction, and merely reciting the occurrences, are not admissible against another. State vs. Dean, 13 Iredell 63.
Declarations (says Mr. Phillips) or writings explanatory of the nature of the common object, in which the prisoner is engaged, together with others, are receivable in evidence; provided they accompany acts done in the prosecution of such object, arising naturally out of these acts, and not being in the nature of a subsequent statement or confession of them. 1 Phillip’s Ev. 201.
It may be difficult (says Mr. Justice Wells) to determine, at all times, when declarations shall be received as a part of the res gestae. But when they explain and illustrate it, they are clearly admissible. Mere narratives of past events, having no necessary connection with the act done, would not tend to explain it. But the declaration may properly refer to a past event as the true reason of the present conduct. Stuart vs. Hanson, 35 Maine 509.
At what time the declarations of Trammell, admitted by the Court, were made, does not clearly appear from the bill of exceptions. The slaves were taken from the plaintiff on the 26th July, 1850, and replevied in this suit on the 30th August following. It is probable that the declarations were made between these periods. If at the time they were made, Tram mell’s connection with the slaves had ceased — if they had been taken out of his possession, and he spoke merely of past occurrences, his declarations were not competent evidence against the defendant. But if he was in the possession of the slaves at the time, on his way south with them, aiding in attempting to carry out the original purpose of the conspiracy, as is probable from the language used by him, etc., his declarations, explanatory of the purposes for which the slaves were taken, the mode in which he and his co-conspirators obtained possession of them, and the disposition to be made of them, were competent evidence.
There is nothing in the objection that part of Trammell's statements were variant from the written contract (the bill of sale) between John G. Estes and defendant. Plaintiff was not party or privy to the instrument, and was in no w7ay estopped by its provisions or recitals. Hensley vs. Brodie, 16 Ark. 519.
Independent of the declarations of Trammell, however, the fitting up of the boat, the taking of the slaves from the possession of the plaintiff, and the running of them off to this State, by the defendant and his associates, were fully proven by other witnesses in the cause.
2d. After the defendant had introduced the bills of sale relied on by him for title to the slaves, with testimony relative to their execution, the consideration agreed to be paid by John G. Estes to the plaintiff for the slaves, the capacity of the plaintiff to contract, etc., etc., the plaintiff proposed to introduce, by way of rebutting testimony, the depositions of Lucinda Johnson, Jesse R. Johnson, Thomas W. Cotton, John M. Jackson, Jonathan Loveall, Elizabeth Houser, and Robert Putty. To the reading of so much of these depositions as related to the mental capacity of the plaintiff at other and different times than that at which the bill of sale from plaintiff' to John G. Estes was executed, or sometime shortly preceding or following the date of its execution, the defendant objected; but the Court overruled the objection, and permitted the testimony, to which the objection related, to go to the jury, as conducing to prove the state of mind or capacity of the plaintiff to contract, at the time the contract was made.
The bill of exceptions failing to point out definitely the portions of the depositions objected to, it is necessary to state the substance of each of them, in order to determine whether there be any irrelevant matter in them or not:
Lucretia Johnson■ — Had known plaintiff seven or eight years, was at his house on the day the bill of sale from him to his son, John G., was made. (28th July, 1849.) Plaintiff’s turn wras more singular than I ever saw it — did not know what was the matter with him — but he did not seem to be natural. It did not look to me that he could attend to business. Was at his house two or three hours. He did not lie down during the time. Pie was not in his right mind. My husband and myself went to plaintiff’s house to stay all night — got there about 12 o'clock, and left about middle of afternoon. When we made a motion to start,plaintiff said; “are you not going to stay all night?” His strange manner of acting was the reason we left when we did. I thought he was either mad or sick. He did not act as he usually did when I had seen him, and I thought he had been having fits. Did not think he was competent to transact business. Mr. Pully offered him some money, which he said he owed him. Plaintiff told him he did not recollect that he owed him anything, but if he did, he might pay — and when Mr. Pully paid him, he threw it down on the floor.
Jesse R. Johnson — Had known the plaintiff for some years. Was at his house for two or three hours on the day that John G. Estes obtained the bill of sale from him for the slaves, as I have since been informed. The old man had frequently insisted that I should pay him a visit, and stay all night, and I went, on the day referred to, with the calculation of staying all night. But the old man seemed so different in conversation and appearance to what he had formerly been, I concluded I would not stay all night. Cannot tell the cause of his appearing thus. Do not know that he spoke to me or any one else, while I was there, except in answer to questions.
When I got there, John G. Estes, DeverieuxPully and Robert Pully were there. John G. did not take any of the negroes with him when he left, etc.
Thomas W. Cotton — When I saw plaintiff, about Juty, 1849, he was complaining. He was an old man, and in feeble health. Pie told me he had been having fits, and I learned from others it was so. When I saw him, up to the time of his leaving here, he was complaining, and had the appearance of being in bad health. I was at his house directly after the negroes were taken, and he appeared then to be in bad health. Plaintiff had the family of negroes in controversy ever since I knew him. They never belonged to any one else that I knew of.
John M. Jackson — Plave known plaintiff eight or ten years, and for three or four years before the difficulty about the negroes, was intimately acquainted wdth him — frequently at his house— resided about two and a half miles from him. From July, 1849, to July, 1850, frequently saw him, and he was always complaining. He was afflicted with fits, as they were called. I noticed that he failed to recollect things, and on remarking to him about it, he said that soon after having these fits, or spells, he could not recollect things. Before he was so afflicted, he w7as remarkable for a sound mind and good memory. Slaves worth in 1849, $4,500. Frequently saw plaintiff soon after he had fits, and he seemed dull and studid — at some times more than at others. He seemed averse to conversation, unless to answer questions, and was quite different from what he appeared at other times. Plaintiff had five or six children, but none of them living with him at the time his negroes were taken. His wife was with one of her daughters at that time.
Jonathan Loueall — Plaintiff was afflicted with fits, according to reports, some two years before July, 1849. I went to plaintiff’s about 10 o’clock of one day — he had one fit about an hour after I went there, and another after dark. He appeared to be insensible at the time of having the fits, and all night. I sat up with him and tried to give him some medicine. Left him about 8 o’clock next morning — I had been out of the house, and just before starting, went in. He had got up and was sitting by the fire. He spoke to me, and asked me how I'was, and how all were at home. He did not appear, from his manner and actions, to recollect having seen me before. I went to plaintiff’s with the view of trading, but finding him in no fix for trading, I left, and left word that when he got in a condition to trade, to send me word. In about four or five days he sent forme; I went, and he appeared in bad health, though he was smartly recruited from the time I was there before.
Elizabeth Houser — Been acquainted with plaintiff for fifteen or twenty years. Resided about .two and a half miles from him. He had been afflicted with fits some two years before his negroes were taken from him. He sent to my house for me, and had a fit after I arrived there, and I was told he had one before. The fit prostrated him, and he did not appear to know anything while I stayed, which was about two or three hours. He did not appear to be as he was before he had fits — was not as sociable and talkative. This was a short time before the bill of sale was said to have been given to John G. Estes— cannot tell exactly the time. Plaintiff had no white family living with him. His negroes were there. He was quite, an old man, and in feeble health at the time referred to.
Robert Fully — Was sent for to go to plaintiff’s residence, about 28th July, 1849, and went with my father. Plaintiff and John G. Estes were there. Jesse R. Johnson and wife Lucretia came before we left. Father and myself witnessed a bill of sale, on that day, from plaintiff to John G. Estes, for the slaves in controversy. They were all that plaintiff owned at the time. John G. Estes presented the bill of sale to plaintiff, and showed him where to make his mark, and requested me and my father to witness it. Plaintiff appeared to me different from what he was at other times, inducing me to believe that he was not in his proper mind. One circumstance, among others, that induced that belief -was, that we had had a settlement in March, and I told him that I owed him something, and was ready to pay him: He replied that he did not know that I owed him anything, but was satisfied with anything I said about it. I gave him fifty cents, and told him to give me a dime, as forty cents was what I owed him. He gave me the dime, and took the fifty cents and shot it into the house as a boy would shoot a marble. I think I saw one of the negroes pick it up. Plaintiff seemed to be in a gloomy, moping, moody state, not disposed to talk, only to answer questions — more so than I had ever seen him before. When at himself, he was more disposed to be lively, pleasant and talkative than neighbors generally are. John G. Estes did not stay at plaintiff’s more than half an hour. Dinner was on the table, and John G. insisted on father and myself taking dinner, etc. Plaintiff had no white person residing with him at the time. He had been afflicted with fits for two or three years before, as I understood, and had a fit immediately, or a few days before this time, as I learned, which, I understood, was the cause of his illness and being so puny.
In Grant vs. Thompson, 4 Con. 208, Hosmer, Ch. J., said: “ In the investigation of the question of sanity, which often is of great difficulty, it is frequently indispensable to go into the history of the supposed lunatic’s mind, both before and after his contract, in order to ascertain his real condition at the moment of entering into an agreement. Such testimony is undoubtedly admissible, and such has been the invariable practice.
In Kinne vs. Kinne et al., 9 Conn. 102, it was held that the question of capacity relates exclusively to the time when the will was made; and though evidence of the testator’s conduct before and after that time was admitted, it is received only to show the state of his mind at the time.
Mr. Greenleaf says: The state and condition of mind of the party is proved, like other facts, to the jury; and evidence of the state of his mind, both before and after the act done, is admissible. 2 Greenlf. Ev., sec. 371; see also, Inhabitants of Hopkinton vs. Inhabitants of Upton, 3 Metcalf 164.
Facts arising so long after the act as to have little or no tendency to show the actual state of the party’s mind at the time of the act, should be excluded. Dickinson vs. Barber, 9 Mass. 225.
The causes which produce the several species of insanity, are numerous, and their effects are as diversified as the mental, moral and physical organizations of the persons afflicted by them. To determine the mental capacity of an individual ata particular time, it is often necessary to enquire into the state of his health, his appearance, conduct, habits, etc., etc., for some time before and after the period in question. No absolute rule limiting the extent of the examination to fixed periods, to be applied uniformly, can therefore safely be laid down, in consequence of the variety of cases which occur. Much must be left to the sound discretion of the presiding judge, to be governed by the peculiar features uf each particular case.
In the great case of Alice Lispenard’s Will, 26 Wend. 255, the examination took a wide range.
The capacity of Alice to make a will was contested on the grounds of idiocy. She was born in 1781, made her will in 1834, and died in 1836. The examination of witnesses as to her mental capacity, etc., extended from her early, infancy to her death.
In Kelly’s Case, (15 Ark. 598,) the examination extended back twenty years or more, for the purpose of showing that Greenberry Kelly, at the time he executed the deed of gift to his nephew, was laboring under dementia, resulting from palsy, intemperance and old age.
In the case of McDaniel’s Will, 3 J. J. Marsh. 332, the testator was stricken down with paralysis about four years before his death, and some two years prior to the time he made his will; and the examination seems to have gone back to the time he was first stricken with the disease, for the purpose of showing its progress of injury to his body and mind, down to the time of his making his will, etc.
These are but examples of what seems to be the general practice. See, also, Jackson vs. King, 4 Cowen 218; Odell vs. Buck, 21 Wend. 142.
In the case before us, Andrew Estes, the plaintiff, appeared to have been afflicted, for one or more years before the making of the bill of sale to his son, with epilepsy. This disease, it is said, seldom continues for any length of time without destroying the natural soundness of the mind, (the material organs through which it acts) rendering the patient listless and forgetful, indisposed and unable to think for himself, yielding without any will of his own, to every outward influence, and finally sinking into hopeless fatuity, etc. Ray on Insanity, 389. Its fatal effects depend much, however, upon the constitution, etc., of the subject, and the frequency and violence of the paroxysms, It. It appears from the testimony of several witnesses, that the plaintiff had a paroxysm a few days before the bill of sale was executed, and was laboring under its effects at that time. It was important, therefore, to_ show how long he had been afflicted with the disease, and the effects of its paroxysms upon his health, mind, etc., to enable the jury to form a correct judgment of his mental capacity at the time the bill of sale was made.
3d. The Court permitted the plaintiff, against the objection of the defendant, to read in evidence that portion of the deposition of Benjamin Jones, which relates to statements made to him by Morgan, Davis and Trammell, who assisted the defendant in taking the slaves from the plaintiff. The witness states that he heard them say, that they went down with affooat to the plaintiff’s place, and got the negroes. They also said that defendant was along, and participated in getting them. Did not hear them say when the boat was fitted up, but they said they started from near Erie, twenty miles above plaintiff’s by water.
The witness does not state when the declarations were made to him. There is nothing in his deposition, from which it can be inferred that they were made during the time the parties were engaged in taking and running off the negroes, or while they had them in possession, attempting to carry out the purposes of the combination. The Court, therefore, erred in permitting the proof of these declarations to go to the jury. But the defendant could not have been prejudiced by the error, because the same facts were abundantly proven by a number of other witnesses on both sides, who saw or participated in the taking of the slaves, or heard the defendant’s statements in reference to the matter.
These remarks are also applicable to that portion of the deposition of Thompson J. Kelly, which proves similar declarations by Morgan, Davis and Trammell.
The bill of exceptions also states, in this connection, that the defendant objected to the reading of such parts of the deposition of Burnett, as relate to the declarations, conduct and mental capacity of the plaintiff, after the slaves were taken from his possession by the defendant.
• The deposition shows that after the negroes were taken, the plaintiff made efforts to procure assistance to follow the party, and retake the slaves. That he was trying for' a number of days and nights to find out where .the slaves had been taken to, etc., etc. All of which, we think, was competent to show that he did not acquiesce in the taking, and that he was asserting a right to possession of the slaves. The witness says nothing as to his mental capacity. He states that on the next morning after the slaves were taken, the plaintiff went across the river to where some people were camped; and procured a woman to go to his house, and get breakfast for him. After which he was very sick, and about to take a fit, but witness gave him some medicine, and he did not have one.
We think the Court excluded the only material portions of this deposition that were subject to objection — those relating to the declarations of John G. Estes.
4th. The bill of exceptions states that “ the plaintiff called witnesses, by whom he proved that, at a former term of the Court, on the trial of this cause, John G. Estes testified as a witness in the case, before the jury. That, in his testimony,he stated that the $1800 note that he executed to his father, was not the only consideration given for said negroes, but, in addition, he was to take and support plaintiff the balance of his life, build a house for him to live in, set the old negro woman, Milly, free at plaintiff’s death, and relinquish all his interest in plaintiff’s estate; and that the negroes were to remain with plaintiff until he built the house; and that the house was not built at the time the negroes were taken by defendant from plaintiff. That he went to plaintiff’s the day before the bill of sale was excuted, having heard that he was sick; that when he got there, he found him out where the boys were thrashing some wheat, and in better health than he expected to find him. That after they were done thrashing wheat, he and the plaintiff put up some fence, then went to the house and ate some supper. That the next morning the plaintiff proposed to sell him the negroes in controversy, and he and the plaintiff agreed as to the price, which was $1800, in addition to the consideration and the agreement above stated; and he executed the note for $1800, and took a bill of sale from plaintiff for the negroes.
“ To the giving of which evidence to the jury, the defendant objected, on the grounds that the statements of John G. Estes, offered in evidence, were made by him on the examination of the plaintiff; and because he was a competent witness in the case, and his testimony would be the best evidence of the facts sought to be established, and for the further reason that his statements, etc., were inadmissible, because made after the purchase of the slaves by the defendant of him, and tended to prejudice his title to them, and set up a parol contract not embraced in the bill of sale.”
But the Court overruled the objection, and permitted the evidence to go to the jury.
It appears, from the bill of exceptions, that before the plaintiff called the witnesses to prove the testimony given by John G. Estes on a former trial of the cause, he read to the jury the deposition of Thomas J. Kelley, taken 17th January, 1856, who proved, among other things, that John G. Estes was then, and had been for a number of years before, a resident of the State of Missouri.
Being a non-resident of this State, the better opinion seems to be, upon principle, that proof of what he swore on a former trial was admissible, though the decisions on this point are in conflict. 1 Greenleaf Ev., sec. 163; Notes of C. & H. on Phillip’s Ev., vol. 3, part 1, p. 327; Long ad. vs. Davis, 18 Ala. R. 803; Magill vs. Kaufman, 4 Serg. & Raw. 317; 1 La. An. R. 392; 2 Ib. 890.
The learned annotators on Phillips’ Evidence, after reviewing the decisions on this point, say, that those which favor the admission of proof of what a non-resident witness testified on a former trial, etc., come nearest to the liberal principle on which secondary evidence is generally received, are less anomalous, and therefore more scientific than the narrower decisions.
Mr. Greenleaf, after stating in the text that if the witness be out of the jurisdiction, proof of what he swore upon a former trial is admissible, says in a note (vol. 1, sec. 163, note 2), if he is merely out of the jurisdiction, but the place is known, and his testimony can be taken under a commission, it is a proper case for the Judge to decide, in his discretion, and upon all the circumstances, whether the purposes of justice will be best served by issuing such commission, or by admitting the proof of what he formerly testified.
Putting the case before us on this ground, the decision of the Court below must be regarded as conclusive on the point, there being no showing of any gross abuse of such discretion. Bishop vs. Tucker, 4 Rich. L. R. 178.
It is further objected that the testimony of John G. Estes was inadmissible, because given after the sale of the slaves by him. to the defendant, and tended to prejudice his title.
The declarations of a vendor, made after the sale, are not admissible to impeach the title derived from him, but he is a competent witness for that purpose, because he is called to testify against his interest. Porter et al. vs. Rea, 6 Mo. 48; Whitaker vs. Brown, 8 Wend. 490.
It is no objection to the testimony of a witness that it goes to invalidate a title derived by deed from him. Haddock vs. Wilmarth, 5 New Hampshire 181; Wright vs. Nichols, 1 Bibb 298; Title vs. Grevett, 2 Ld. Raymond 1008.
A party who has executed a deed is a competent witness to impeach it, etc. Arnold et al. vs. McNeill, 17 Ark. 179; Caldwell ex. vs. McVicar, 7 Eng. R. 750; Tucker vs. Willamowicz, 3 Eng. 166; Hensley vs. Brodie, 16 Ark. 511.
The remaining objection to the testimony of John G. Estes is that it sets up a parol contract not embraced in the bill of sale from the plaintiff to him for the slaves.
The bill of sale recites merely that Andrew Estes had sold the slaves to John G. Estes, “for the consideration of eighteen hundred dollars.” Was it competent for the plaintiff to prove that John G. Estes was to give him an additional consideration for his slaves, which was not recited in the bill of sale?
The consideration recited in a deed is open to explanation, or contradiction, by parol proof, with the limitation that the operation of the deed, as a grant, is not to be thereby defeated. And this limitation does not prevail where the object of going into the consideration, as in this case, is to show that the deed was procured from the grantor by fraud, etc. See Vaugine et al. vs. Taylor et al., 18 Ark. 65, and the cases there cited; Bottomly vs. United States, 1 Story R. 149; 2 Phil. Ev. 368.
Before the plaintiff introduced the proof of what John G. Estes swore on the former trial, the defendant thought proper to prove the declarations of the plaintiff, made before and after the date of the bill of sale, in reference to the additional considerations to be given him by John G. for the slaves. This the defendant did, perhaps, for the purpose of showing that the transaction was a fair one, and that the plaintiff had the mental capacity to understand the terms and make the sale, etc.
For these purposes, we think that both parties had the right to go fully into proof of what really were the considerations for the sale, regardless of the recitals in the bill of sale. Bottomly vs. United States, 1 Story R. 149; Somes vs. Skinner, 16 Mass. 349; 1 Hatsted Ev., pages 204, 205, 206, 207, 208, 209, and cases cited; 2 Phil. Ev. 368. (The bill of sale was not under seal.)
5th. The instructions to the jury are next to be considered.
The plaintiff moved the following, which were given by the Court, against the objection of the defendant:
1st. That the only questions involved in the issues in this case are: first, was the plaintiff lawfully entitled to the possession of the slaves, mentioned in his declaration, at the time of the commencement of the suit; secondly, did the defendant unlawfully take them out of his possession.
2d. The law presumes property to belong to the possessor, and to sustain the issues, on the part of the plaintiff, it is necessary only to prove his possession, and a subsequent tortious taking by the defendant.
3d. The plaintiff having produced evidence to prove the possession, and the taking by the defendant, the defendant introduced evidence to prove the sale of the property by plaintiff to his son, John G. Estes, and a sale from the latter to himself; and the plaintiff then introduced evidence to prove that the bill of sale from him to his son was obtained by fraud and unfair practices. Thus is presented for the consideration of the jury the question, whether the bill of sale from the plaintiff to John G. Estes is fraudulent.
4th. If the jury are satisfied, from the evidence before them, that the bill of sale from plaintiff to John G. Estes', was obtained through fraud or unfair and improper practices, at the time of the execution of the bill of sale, they should hold it absolutely null and void.
5th. Fraud, like crime, may be made out and presumed from circumstantial testimony.
6th. It is not within the province of the Court to charge the jury as to the sufficiency or insufficiency .of the proof to establish fraud. That is a question of fact for their consideration.
7th. If the jury believe from the evidence that plaintiff was an aged and infirm man, and subject to apoplectic or epileptic fits, at the time he executed the bill of sale to John G. Estes; that the relation of father and son subsisted between the parties to the bill of sale; and that plaintiff was illiterate, and the consideration, for which the bill of sale was executed, was inadequate; and they are satisfied, from these facts and circumstances, that the bill of sale was obtained by fraud or unfair practices, they would be warranted in finding the sale void and of no effect.
8th. That the law watches with jealousy contracts entered into between parent and child, and requires the utmost good faith and circumspection, where it may be reasonably inferred that the one was subject to the influence of the other, and will presume fraud in all cases where the contract is entirely to the disadvantage of the weaker party; and the circumstances under which such contract entered into, are of a suspicious character.
9th. That plaintiff’s advanced age and infirmities, his illiterateness, his state of health, and the condition of mind as indicated by his appearance and conduct, at the time he executed the bill of sale, the inadequacy of the consideration, the improvidence of the act, the confidence reposed in his son, the omission to express in the bill of sale, prepared by his son, the entire consideration, the retention of the slaves for some time after the execution of the bill of sale, the attempt of his son to take the slaves by force, and his subsequent sale at a reduced price to the defendant, whilst plaintiff held them adversely; the expedition put on foot for the seizure and abduction of the slaves, the secrecy with which it was gotten up and conducted, the stratagem adopted to accomplish the object of the expedition; apprehensions expressed by defendant, that he could not hold the negroes in Missouri; the proposition made by John G. Estes, to the son-in-law of plaintiff to effect a purchase of the negroes; the absence of any proof to show that John G. Estes obligated himself to perform the acts constituting a part of the consideration; the absence of satisfactory reason or excuse for not resorting to judicial process to establish the defendant’s title in Missouri, are circumstances tending to prove fraud and un fairness in the sale from the plaintiff to John G. Estes, and the jury should take them or such of them as are proved to their satisfaction, into consideration in determining the question of fraud — and if they are satisfied from such facts and circumstances that the sale was tinctured with fraud, they should find for the plaintiff.
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13th. That although mere weakness of mind is no ground of incapacity, and affords no sufficient reason for setting aside a contract, it nevertheless constitutes a material consideration in finding fraud and unfair practices, when the contract is entirely to the disadvantage of the weaker party, and when taken in connection with other facts or circumstances, tending to show unfair practices, will authorize it.
íí' ~t(<
15th. That, in contracts of sale, when there is no agreement as to the time at which payment is to be made, the presumption is that payment and delivery are to be simultaneous, and the seller is not bound to deliver the property until payment is tendered.
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18th. That if the vendor of property, sold on a credit, retain possession until the credit expires, he has a right to retain them until payment.
19th. That the purchase of personal property in the adverse possession of another claiming it as his own, is the buying of a law-suit, and is not favored in law, and the purchaser takes subject to all outside equities existing between his vendor and those under whom he claims.
20th. That the possession of the plaintiff, after the sale, and the abduction by the defendant, and plaintiff’s acts and declarations at and after the abduction, are circumstances tending to disprove a ratification of the alleged sale to his son.
21st. That if the plaintiff made declarations after the date of the bill of sale from himself to his son, respecting the sale of the negroes, in ignorance of the fact that his son held the bill of sale for the negroes, such declaration would not tend to prove a subsequent ratification of its execution.
22d. That in order to ratify a void or fraudulent contract, it is essential that the party ratifying does it with a full knowledge of all the facts; so that, if plaintiff expressed himself satisfied with the sale in ignorance of the execution of the bill of sale, or any other material fact connected with such contract, such expressions are of no avail.
23d. That if the jury believe from the evidence that there was a verbal contract of sale entered into between plaintiff and his son John, by which John was to build him a house to live in, support him the remainder of his life, and set one of the negroes free at his death, and plaintiff was to remain in possession of the slaves until the house was built, and that the bill of sale to John was fraudulently obtained either before or after the verbal contract was entered into, such verbal contract would not be vitiated by the prior or subsequent fraud, and in that event the jury should find for the plaintiff, unless it be proved that the house was built before the slaves were taken from him by the defendant.
24th. That if the jury find from the evidence that the plaintiff is an old and infirm man, and that the defendant’s vendor, John G. Estes, the plaintiff’s son, obtained a bill of sale from the plaintiff for the property in controversy, which he wrote himself, and that said John G. did not express the entire consideration and condition of said bill of sale in the same, but left out a material condition, which was for the entire benefit of the plaintiff, and to the disadvantage of the said John G., it is a circumstance from which they may infer fraud, and that if they believe, from the evidence, that said condition was intentionally left out of said bill of sale by John G., for his own benefit, it makes said bill of sale absolutely fraudulent; and that if they believe these facts, they should find said bill of sale null and void.”
The defendant moved the following instructions:
1st. That in order to entitle the plaintiff to recover under the issues formed, he must prove that the slaves in controversy are his property, or that he had an immediate right to possession of the slaves, and that the defendant wrongfully took them from his possession.
2d. That if they believe a valid sale from the plaintiff to John G. Estes, and from John G. to the defendant was made, the sales vested an absolute title in the defendant without any formal delivery of said slaves.
3d. That if the jury believe from the evidence that John G. Estes executed and delivered to the plaintiff his promissory note, or writing obligatory, for the payment of $1800, as a consideration for the purchase of said slaves, and that the plaintiff accepted the same, it is a valuable consideration in law, and as binding upon the plaintiff as though the money had been paid him in hand; and although there were other considerations to be performed by the said John G. understood by the parties at the time, still the contract, as evidenced by the bill of sale from the plaintiff to the said John G., passed the absolute title in said slaves to the said John G. Estes.
4th. If the jury believe from the evidence, that the plaintiff, at the time of executing the bill of sale to John G. Estes, was from temporary illness, general mental incapacity from infancy, the infirmity of extreme old age, or other accidental depressions which result from fear, constitutional despondency, or overwhelming calamity, incapable of making a valid contract, still, if afterwards, and when relieved from the temporary disability under which he rested at the time of making such contract, he approved and affirmed the same, the contract thus made and subsequently approved, is valid and binding upon him, as if no such disability had rested upon him at the time such contract was made:
That if the jury believe from the evidence, that after the execution of the bill of sale to John G. Estes, and when in sound mind, the plaintiff recognized the contract made with John G. with regard to the said slaves as valid, such evidence is admissible, and should be received by the jury; and that such recognition makes such contract, to all intents and purposes, valid as if at the time the same was made, he had been of sound mind. And so also evidence that prior to the sale of the slaves to John G. and while in sound mind, the plaintiff expressed a wish and intention to sell said slaves to John G. Estes, should be received by them as conducing to prove that he was competent to contract at the time of the sale of the slaves to John G.
5th. That if the jury believe from the evidence that the contract between John G. Estes and the plaintiff was valid and binding upon him, that the title to the slaves passed to and vested in John G. without any formal delivery, and that he had a right to sell and dispose of the same, and take_ them into possession at any time. And further, that if they believe that John G. Estes made a valid sale of said slaves to said defendant, he succeeded to all the rights of John G. in the slaves, and had a right to take possession of them, and that the manner of doing so in no wise affects the validity of the title.
6th. That if they believe, from the evidence, that alter the execution of a bill of sale from plaintiff to John G. Estes, the slaves or either of them were in the peaceable possession, and employment of the said John G. it raises a presumption that they were delivered in accordance with the contract of sale; and such facts will be sufficient evidence of a delivery of the slaves, unless the plaintiff shall repel the presumption by affir mative evidence, showing that they were in his possession for another and different purpose.
7th. That if they believe from the evidence, that before the execution of the bill of sale by the plaintiff to John G. Estes, he proposed and offered to sell the slaves to him, the said John G., and furnished the said John G. with a form for drawing up the same, in accordance with which the same was drawn up, and that a portion of the said slaves were afterwards in the possession of the said John G. and in his service, and so remained until they ran away from him, and went back to the house of the plaintiff, and the said John G. pursued them to the residence of the plaintiff, and there attempted to reclaim them in the presence of the plaintiff, and without objection on his part, and was only prevented from doing so by the obstinate resistance of said slaves; and that the plaintiff, after said sale, and when in sound mind, recognized his contract with the said John G. and expressed himself satisfied with the same, that these circumstances, and each of them, should be received by the jury as evidence, conducing to prove that the plaintiff was fully competent to contract at the time the same was made, and that the bill of sale fully expressed the terms and conditions of the contract, and was an honest and a fair one.
8th. That if the jury believe from the evidence, that the slaves in controversy were sold by the plaintiff to John G. Estes, on a credit, and a note executed by him to the plaintiff, for the purchase money, such note so accepted, was a sufficient consideration to uphold the contract, and the same being in other respects valid to vest the title of said slaves in John G. Estes, free from any lien for the purchase money, and that having so vested, before the plaintiff can claim the benefit of any lien upon the slaves for the payment of the purchase money, or a right to withhold them from the said John G. Estes, or the defendant holding under him, the plaintiff must prove, unless it otherwise appear in evidence, that the note was due and unpaid at the time the slaves were taken by the defendant from the plaintiff.
9. That if the jury believe from the evidence, that there was a contract in writing, executed by John G. Estes, for the slaves in controversy, in such terms as to import a legal obligation without any ambiguities as to the object or intent of the contract, they will disregard all oral testimony, or conversations, or declarations of the parties, before, or after, or at the time of the contract by them, and that no other words, declarations, or agreements are to be considered by them, to enlarge, diminish or alter the same.
10. That a contract otherwise legal and valid, cannot be rescinded without the consent of both parties, and it is not suf ficient for the vendor to offer to cancel the note given for the purchase money, nor will it avail him anything for that purpose, even if the purchase money has never been paid.
11. When a contract is once reduced to writing by the contracting parties, all oral testimony of a previous understanding, or of conversations, or of declarations, at the time when it was contracted, or afterwards, should be rejected by the jury.
12. That the mere inadequacy of consideration, of itself, is not sufficient to rescind and set aside a contract otherwise legal and valid.
13. That a party, in order to render a contract null and void solely in consequence of any temporary mental disability, must show that the mental disability existed at the time of entering into the contract, and it is not sufficient for the party to show that before or after the time he was deprived of his mental faculties.
14. That if they believe from the evidence, that the plaintiff at any time, ratified and affirmed the contract made with John G. Estes, for the sale of said slaves, and before the sale to the defendant, the inadequacy of consideration cannot be taken into consideration in the contract between John G. Estes and defendant.”
The bill of exceptions states that the Court refused to give the 4th instruction as asked by the defendant, but instructed the jury that: “ the subsequent approval of the contract by the plaintiff would not make the same valid unless accompanied by delivery of the property sold, or receiving the consideration therefor, the plaintiff affirmed the same.”
And the Court also qualified the 5th instruction by telling the jury that “ the defendant would have a right to sell and dispose of the slaves in controversy, and take them into possession at any time after the consummation of the contract between the plaintiff and John G. Estes, and after the sale by John G. to the defendant, unless it appeared that the consideration was due and unpaid; and that the defendant would not have a right to take possession of said slaves unless the said plaintiff held no lien for the price.”
The Court also added to the 9th instruction, the following qualification:
“ Bdt that the jury should consider all evidence tending to show that a further consideration than that expressed in the writing was to be given, as a circumstance tending to establish a fraud in obtaining the bill of sale by John G. Estes from plaintiff.”
It seems that the Court gave all the instructions as moved by the defendant, with the above qualifications to the 4th, 5th and 9 th.
No specific objection has been urged to the plaintiff’s 1st, 2d and 3d instructions.
It is insisted that the Court should have charged the jury, in connection with the 4th instruction, “ that from subsequent recognition, or long acquiescence, they might presume that the fraud was waived, and the sale ratified by the plaintiff.”
It is sufficient to say, in reference to this, that it does not appear that the Court was asked so to charge the jury in connection with, or as a qualification of the 4th instruction. The propositions which the defendant submitted to the Court, on the subject of the ratification of the contract, were given in charge to the jury, with a qualification of one of them, which will be noticed below.
It is objected that the Court told the jury, in several of the instructions, in effect, that fraud might be presumed.
Fraud is a crime, and like crime, it is not to be presumed, but must be proven. But fraud, as well as crime, may be deduced from facts and circumstances established by the proof.
The books abound with cases where men have been convicted and executed, or imprisoned for crime, whose guilt was deduced from circumstances. So there are numerous cases reported where deeds, wills, etc., have been declared null and void for fraud, deduced from circumstances in proof in relation to their execution, etc. No witness is expected or permitted to come into court, and swear in terms, that a bill of sale was obtained by fraud, but he must state the facts and circumstances attending its execution, and the jury, under instructions from the Court, must determine whether or not they establish the fraud.
The rule in courts of equity, and' in courts of law, in reference to proof of fraud, is thus laid down by Judge Story:
“ Courts of equity do not restrict themselves by the same rigid rules as courts of law do, in the investigation of fraud, and in the evidence and proofs required to establish it. It is equally a rule in courts of law, and courts of equity, that fraud is not to be presumed; but it must be established by proofs. Circumstances of mere suspicion, leading to no certain results, will not, in either of these courts, be deemed a sufficient ground to establish fraud. On the other hand, neither of these courts insists upon positive and express proofs of fraud; but each deduces them from circumstances affording strong presumptions. But courts of equity will act upon circumstances as presumptions of fraud, where courts of law would not deem them satisfactory proofs. In other words, courts of equity will grant relief upon the ground of fraud, established by presumptive evidence, which courts of law would not always deem sufficient proof to justify a verdict at law. It is in this sense that the remark of Lord Hardwick is to be understood, when he said, ‘ That fraud may be presumed from the circumstances and condition of the parties contracting; and this goes further than the rule of law, which is, that fraud must be proved and not presumed;’ (2 Ves. 155-6;) and Lord Eldon has illustrated the same proposition, (18 Ves. 483,) by remarking that a court of equity will, as it ought, in many cases, order an instrument to be delivered up, as unduly obtained, which a jury would not be justified in impeaching by the rules of law, which require fraud to be proved, and are not satisfied, though it may be strongly presumed.” 1 Slory Eq. Juris, sec. 190.
Considering the 5th, 6th, 7th, 8th, 9th, 13th, 23d and 24th instructions moved by the plaintiff, on the subject of fraud, in connection with those given at the instance of the defendant, and in reference to the proof in the cause, though some of them contain expressions that are subject to verbal criticism, and taken separately are objectionable, yet taking them together, we find in them no substantial departure from the rules of law in reference'to the proof of fraud, as above stated.
It may be well here to refer to some of the leading facts disclosed by the testimony, conducing to establish fraud on the part of John G. Estes, in obtaining the bill of sale for the slaves from the plaintifF, and upon which the instructions in reference to fraud, etc., seemed to have been based.
Sometime before the date of the bill of sale, John G. Estes, and a witness (Andrew Estes) were at plaintiff’s house together. He was sick, very low, and unable to transact business. John G. proposed to witness that they should purchase the slaves of him, etc. Witness declined, on the ground that plaintiff was not in a condition to make a contract with them or any one else. John G. then expressed his determination to make the trade himself, and if he could not succeed, to take off the negroes, sell them, and risk his father pushing the law against him, etc.
John B. Harris (witness for defendant) testified that about the 1st of June, 1849, he proposed to purchase of the plaintiff one of the negroes — a woman. Plaintiff told him he would not sell her to him — that if he sold any of his negroes,he would sell all together, and that he expected to let his son John G. have them; that he was the only one of his children that was able to buy them all and keep them together. That he had made John G. a proposition that he thought he ought to accept. Plaintiff said he was living a very lonesome life, and expressed a desire to leave the place he then lived on. "Witness saw the plaintiff again in the fall of 1849, and he told him that he had made the trade with his son John G., that he had told him about when he saw witness before — that John G. was to pay him $1,800 or $1,900 (witness did not remember which) in money, furnish him a house to live in near his own, take care of, and support him the balance of his life, free of charge, have no fur ther interest in any part of his estate, and at his death to set old Milly free. Plaintiff expressed himself well pleased with the trade.
Other witnesses, on the part of the defendant, testify to similar declarations made by the plaintiff, before and after the date of the bill of sale, in reference to the terms and conditions of the trade.
It also appears from the testimony of John G. Estes, that the plaintiff was to remain in possession of the slaves until he built the house for him, etc.
The evidence strongly conduces to prove that on the day that the bill of sale was executed, the plaintiff was laboring under the effects of a recent attack of fits, and his mind was not in a condition to consummate a contract of so much importance. In this both of the subscribing witnesses, and the other persons who visited him on that day, concur. John G. Estes wrote the bill of sale, sent for the attesting witnesses, read the instrument, signed the plaintiff’s name to it, and showed him where to make his mark. He had nothing to say to the witnesses, or the visiters about the trade on that day. He seems to have been passive in the transaction. He was silent, listless, stupid and childish in his appearance and conduct. The bill of sale made no mention of the important considerations to be given by its draftsman for the slaves, in addition to the $1,800 in money, and yet the plaintiff, it seems, made no remark, took no notice of the omission. No money was paid him. A note for $1,800, not half the value of the slaves, was handed to him by John G., and he held it in his fingers, says one of the subscribing witnesses, and looked about as though he did not know where to put it. There was no delivery of the slaves at the time. They remained in possession of the plaintiff as before, with the exception that two of them were afterwards at the residence of John G. for a short time. There is no proof that he built the plaintiff a house to live in, or offered to take him and support him. Twelve months after the date of the bill of sale, availing himself of its advantages, he combined with the defendant to sell him the slaves, and assist him to get possession of them by force, and run them off, etc. Whilst the defendant and his co-conspirators captured the slaves and brought them off in a boat fitted up for that purpose, the evidence conduces to prove that John G. Estes, and others, were stationed with horses at the point on the river where the slaves were to be disembarked, for the purpose of carrying them off.
The plaintiff, over seventy years of age, wasted by disease, and subject to fits, was left alone upon his farm without a servant to cook for him, or otherwise supply his wants.' The family of slaves, which he had owned for many years, to which he was doubtless attached, and which were to be kept together, by his son, according to the terms of their trade, were forcibly seized and carried away to the south, to be sold to strangers, and the profits to be divided between his son and the defendant, and all this was to be upheld and legalized by means óf a bill of sale obtained from the plaintiff when he was not in a con-,' dition to transact business, and which did not express the terms of the trade which he had in point of fact made. The defend dant expressed the belief that he could not hold the slaves in Missouri, obtained under such circumstances, and we have yet to learn that the laws of Arkansas sanction the perpetration of fraud.
We repeat, therefore, that taking the instructions of the Court in reference to fraud, together, and considering them in connection with the evidence, we find in them no material and substantial error.
It is objected that the 9th instruction assumes the existence of the facts recited in it, instead of stating them hypothetically. This objection is not true in point of fact. The instruction refers to a series of facts which the testimony conduces to prove, and then tells the jury that they should “ take them, or such of them as were proven to their satisfaction, into consideration in determining the question of fraud,” etc.
It is objected that several of the other instructions given for the plaintiff, are based upon the testimony of John G. Estes, which should have been excluded. We have decided that the Court did not err in admitting the proof of what he swore upon the former trial.
It is also insisted that some of the plaintiff’s instructions were abstract. Perhaps they were, to some extent, but they appear to have been framed with the view of meeting different aspects of the case, like a number of the instructions given for the defendant, and the instructions moved by both parties were unnecessarily numerous.
On the subject of the ratification of the contract, and the instructions moved by both parties in reference to it, we need only remark that we find no satisfactory evidence in the record, that the plaintiff ever spoke of, or referred to the bill of sale, its execution, or its contents, at any time between its date, and the time when the slaves were taken out of his possession. On the contrary, it appears manifest that when he spoke of the sale of the slaves to his son, at the several times mentioned by the witnesses, he referred to the trade made by them, embracing all its terms and conditions, as stated by him. A modification of that agreement or trade would be one thing, and the ratification of the bill of sale, which omitted important stipulations of the trade, would be another. In this view of the evidence, the modifications made by the Court in some of the defendant’s instructions, were not objectionable.
It would be fortunate if a circuit judge, in the haste of a jury trial, could pass upon the numerous instructions moved by the parties, without committing errors. And it would be an unfortunate practice for the administration of substantial justice if this Court were compelled to reverse a case for such errors, regardless of their legal consequence upon the result of the trial. Under such a practice, but few judgments -would be affirmed, however just upon the whole record.
Our conclusion in this case, upon the whole record, is, that the Court, in view of the evidence, in giving the instructions moved by the plaintiff, in connection with those given for the defendant, committed no error by which the defendant was legally prejudiced.
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Mr. Chief Justice English
delivered the opinion of the Court.
It appears from the transcript in this case, that on the 18th July, 1855, Geo. W. Cheek presented to the Probate Court of Crittenden county, for allowance 'against the estate of John W. Lumpkin, deceased, the following account:
“ JOHN W. LUMPKIN,
To George W. Cheek, Dr.
To amount due on two houses and lots............$ 7,000 00
To amount paid in part payment of a tract of land to which the said Lumpkin failed to make title, 5,000 00
$12,000 00
Appended was the affidavit of Cheek, that the sum demanded, with interest from 4th March, 1823, was justly due, etc., and upon the account was the following endorsement:
I acknowledge due and legal exhibition of the within claim, and submit the same to the Probate Court of Crittenden county, Arkansas, for its action.
Q. M. BELLOWS, A&m'r.
June 25th, 1855.
It seems that Bellows (who had shortly before been appointed administrator of Lumpkin by said Probate Court) did not appear to contest the allowance of the claim, and the Court treating the above endorsement as notice to him of the application for the allowance of the claim, proceeded to hear evidence on the part of Cheek, and allowed the demand.
At the same term (on the 25th July,) appeared James Wicker-sham, who_had been appointed administrator of Lumpkin by the County Court of Shelby county, Tennessee, where he resided before and at the time of his death, and moved to set aside the judgment of the Probate Court allowing said demand; representing, on oath, that Cheek had procured the appointment of Bellows as administrator of Lumpkin, by the Probate Court of Crittenden county, without the knowledge or consent of the heirs and distributees of the estate, for the purpose of procuring the allowance of said demand, etc., etc., and that the claim was invalid, etc.
The Court sustained the motion, and set the cause fur hearing anew, on the first day of the next term.
At the next term (15th October, 1855) the parties appeared, and Wickersham, on behalf of the estate, and in the name of Bellows, as administrator, filed a plea in abatement, alleging, in substance, that in November, 1853, Cheek had filed a bill against Lumpkin in the Circuit Court of the United States for the District of West Tennessee, at Jackson, upon the same cause of action, and for the recovery of the same demand, as that filed for allowance in the Probate Court in this case, and that the bill was still pending and undetermined, etc.
On motion of Cheek, the plea was stricken out, and Bellows excepted.
The claim was then submitted to the court, and upon the evidence introduced by the parties, the court allowed the demand, and rendered judgment against Bellows, as administrator of Lumpkin, for $ 12,000, etc.
Bellows excepted and appealed to the Circuit Court of Crittenden county; where, upon inspection of the record, the judgment of the Probate Court was affirmed, and Bellows appealed to this court.
1st. It is insisted by appellant that the Probate Court could not take jurisdiction of the claim until the administrator had allowed or rejected it, and that in this case he did neither.
It is the duty of an administrator, under the statute (Dig. ch. 4, sec. 112, 113,) either to allow or reject a demand when presented to him for allowance.
But if he chooses to disregard his duty, the creditor cannot control his conduct. All that he can do is to present his claim, in proper form, to the administrator, and demand its allowance. If he does not allow it, and so endorse it, the demand must be regarded as rejected, though he may not choose to endorse his disapproval (as in Borden vs. Fowler, adm. 14 Ark. 473,) or though he may refer the matter to the decision of the Probate Court, as in this case. The purpose of the statute was accomplished in affording him an opportunity of allowing or rejecting the claim. Hudson, as adm’r. vs. Breeding et al. 2 Eng. 446.
2d. It is next insisted that the judgment of the Probate Court should have been reversed by the Circuit Court, because the appellant was not given ten day’s notice of the application to the Probate Court, by the appellee, for the allowance of the demand, as required by the statute. (Dig. ch. 4, sec. 114.)
If the case were here on an appeal from the first allowance of the claim, there might be something in this objection, as the endorsement upon the account made by the appellant, referring the claim to the action of the Probate Court, would not, perhaps, be treated as a waiver of notice of the time when the demand was to be presented to the court for its decision. But the first allowance of the claim was set aside, a new hearing ordered on the first day of the next term, when both parties appeared, and after the plea in abatement was stricken out, they submitted the cause to the court upon the merits, the appellant making no objection, for want of notice.
The notice which the statute requires to be given to the administrator of the intended application to the Probate Court for the allowance of a claim, answers the purpose of the writ in the ordinary actions. Its object is to afford the administrator an opportunity of appearing before the court, and contesting the demand. Butin this case the appellant appeared, and depended upon the merits: and thus the object of the notice was accomplished; or, in other words, notice was waived. Pennington ad. vs. Gibson, 1 Eng. R. 447.
3. The grounds assigned in the motion to strike out the plea in abatement, weve,Jirsl, that it was not signed by the defendant, or by an attorney of any court of this state, and second, that it was filed after new trial granted, etc.
The plea was signed “ J. Wickersham,
In the Probate Court formal pleading is not required. Dig. ch. 4, sec. 117. But it has been held that if a party elects to file written pleas, he must conform to the rules of special pleading. Pennington ad. vs. Gibson, 1 Eng. 451.
The statute regulating practice in the Circuit Courts, declares that every declaration, statement, or other pleading, shall be signed by the party filing the same, or his attorney. G. Dig. ch. 133, sec. 52. •
In the King’s Bench, a flea in abatement should be signed by counsel. In the common pleas it is signed by a sergeant. 1 Tidd’s Prac. 640.
A plea not signed by counsel, etc., may be .stricken out. Sillivant et al. vs. Reardon, 5 Ark. 140; Carrington et al. vs. Hamilton, 3 ib. 416.
In this case the plea in abatement was not signed by Bellows, the defendant in the suit. Wickersham was not a party- — -whether he was a licensed attorney in this State, does not appear, but we must presume in favor of the correctness of the judgment of . the Probate Court, and conclude that he was not.
4. On the trial before the Probate Judge, it was proven that on the 6th of March, 1851, Lumpkin and Cheek entered into a sealed contract, containing, in substance, the following stipulation.
“ I, (John W. Lumpkin,) have bargained and sold to George W. Cheek, of Memphis, Tenn., my farm, in Tunica county, Miss., containing 1500 acres, etc. etc., at $10 per acre, embracing the north half of section 11, etc., [Aere the several tracts are described.']
‘‘ In said sale, said Lumpkin sells said Cheek all of his stock of every kind, mules, cattle, hogs, etc., all his farming utensils, wagons, carts, ploughs, hoes, axes, etc., and all the corn, hay and fodder on hand, also the meat, and wood that is cut on the farm, and was on it 1st March, except what belongs to the negroes.
“ Said Cheek is to have the wood-boat, and cotton-gin and ■press; in short, the said Cheek is to have every thing that was on the place except the cotton.
“ Said Cheek is to have the work of the hands from the first March to the 25th December next, except Aleck, Albert and Frank — said Lumpkin is to clotlie the negroes, and said Cheek is to board them and treat them well.
“ The said Cheek is to have full possession of every thing from this date, etc.
“ The said Cheek is to give said Lumpkin the house known as the Farmer's Inn, corner of Poplar and'Market street, and the lot down to the brick mill, and thence a straight line with the brick mill and market street (Memphis,) and is to make said Lumpkin a good and lawful title to the same, clear of all incumbrance, and Lumpkin is to have the fight of possession from this time.
“ The said Cheek has also given up to said Lumpkin the house and lot on Beale street, which Lumpkin sold to Elijah Cheek — the said George W. Cheek, has obtained from said E. Cheek, the said house and lot, and E. Cheek has assigned and delivered to said Lumpkin, the agreement and the deed which he made to him, and which has never been recorded.
“ And the said George W. Cheek has given to said Lumpkin E. Cheek's negotiable note for $1,000, due in four months from the 4th March, 1851, in part pay for said tract of land; and the said George W. Cheek is to give to said Lumphin, his negotiable note for $2,000 payable in four months from the 4th March, 1851; and his negotiable note for $3,000, payable the 1st March, 1852, and his negotiable note for $,3,000 payable 1st March, 1853 — which is in full for said tract of land.
“ Said Lumpkin is to make the said Cheek a good and lawful. title to said tract of land, and clear it of all incumbrances of any kind. Said Lumpkin is to comply with every part of the foregoing, before the last note is paid.
“ Said Cheek is to give said Lumpkin a deed of trust on said tract of land, to secure the payment of the aforesaid notes. C. F. Richardson is to be the trustee, and shall have the right to sell all or such part as may be necessary to pay whatever amount is due on the aforesaid notes, by advertising the same in two newspapers, printed in Memphis, for thirty days; and then sell to the highest bidder for as much cash as is due.
“ And the said George W. Cheek, and the said J. W. Lump- kin bind themselves, their heirs and assigns, to comply with this agreement under the penalty of $3,000,” etc.
It was further proven upon the trial, that on the day upon which the above agreement was made, and in pursuance thereof, Cheek conveyed to Lumpkin the house and lot in Memphis, described as the Farmer's Inn, etc., reciting in the deed that the same was bargained and sold to Lumpkin, in consideration of $4,000, etc., and as part of the price of a tract of land which Lumpkin had sold and conveyed to Cheek on that day, etc.
Also, that Cheek, in accordance with the agreement, executed to.Richardson, a deed of trust upon the lands purchased by him of Lumpkin, to secure the deferred payments, in which he covenanted that he was lawfully seized of the lands and had good right to convey the same, etc., and bound himself, etc., to warrant and defend such title thereto as he had from Lump-kin, etc.
Also, that the note of Cheek for $3,000 due 1st March, 1853, remaining unpaid after maturity, Richardson sold the lands under the deed of trust, Lumpkins purchased them for $216, and obtained Richardson’s deed therefor, dated 1st July, 1853.
That Lumpkin sold and conveyed the lands to George W. Underhill for $3,000, by deed bearing date 14th September, 1853.
Richardson, introduced by Cheek, testified that he heard Cheek and Lumpkin both say that they had made a trade — that Cheek had sold Lumpkin a house and lot on Beale street, and one on Poplar street, in Memphis — thinks the Beale street property was $3,000 — that he heard Lumpkin say that Cheek had paid him all on the land trade except $3,000 — thinks the amount to be given by Cheek to Lumpkin for the land, was $15,000. Witness was trustee in the deed of trust from Cheek to Lumpkin, to secure the purchase money, and as such advertised the land — Cheek notified witness, and Lumpkin, through witness, once orally and once in writing, that Lumpkin had never made a deed to him for said land; and wished witness to notify Lumpkin that if the contract was not complied with, he would abandon the contract or trade — witness considered this substantially an abandonment. This was before the trust sale. * * * Witness further states that he had notified Lumpkin that he had been requested by Cheek to notify him that if he did not comply with his contract, and make said Cheek a deed, that Cheek would abandon the contract, and Lumpkin told witness that he could not comply with Cheek’s requisition.-This was before the sale under the deed of trust, and after the 1st March, 1853. When the last note fell due witness sold the land under the deed of trust. The notice to Lumpkin was, if he would comply with his contract, Cheek was ready to comply with his, but if he did not comply Cheek would abandon the trade. Sometime, either before or after the sale, Lumpkin told witness that he had got the deed which perfected his title to the land.
Busby, witness for Cheek, also testified that in 1851, Lump-kin sold Cheek the land, and Cheek let Lumpkin have the two houses and lots in Memphis, in part payment, both amounting to $7,000. He heard both parties say this — they told him that the whole contract for the land was $15,000, and that Cheek had paid all but $3,000. Lumpkin bought the land at trust sale, and afterwards sold it to Underhill. Cheek notified witness to deliver up the land and every thing to Lumpkin, in April, or the spring of 1853. Witness informed Lumpkin what Cheek had ordered in the premises. Cheek moved off the land all his property, but left witness, who was the overseer, on the place, and he remained there until after the trust sale. Cheek planted but did not cultivate the corn, in 1853 — he was to give one thousand dollars for the stock and the use of the negroes for the balance of the year 1851. The land was kept by him two years, and cultivated, and was worth $3 00 per acre rent, for 180 acres — the amount cultivated' — witness was overseer for Lumpkin before he sold the land to Cheek, and continued on the land as overseer for Cheek, after he purchased the land, in 1851. Had heard Lumpkin say he was fearful he could not get title to part of the land embraced in the tract sold to Cheek. Cheek was put in possession of the land, stock, etc., at the time ■of the sale and kept and cultivated the same'two years, etc.
Elijah Cheek, father, of George W., testified that the $7,000 item in the account in controversy, was for the price the two houses and lots were taken at by Lumpkin, in the trade, being $3,000 for the Beale street property, and $4,000 for the Poplar street property. The item in the account for $5,000 was for cash paid by Cheek to Lumpkin. Witness had examined, and there was no deed from Lumpkin to Cheek for the land. He, as agent-for Cheek, in February, 1853, before the last note fell due, demanded title of Lumpkin; and he said he could not comply with his contract in relation to the land with Cheek. Witness then told him if he did not comply, Cheek would abandon the contract. Cheek did abandon the contract, left the place and gave it up, of all which Lumpkin had notice. -The value of the rent of the Beale street property was $50 per month, or $600 a year.
Cheek abandoned the place in March, 1853, voluntarily, after having possession two years, etc.
Witness further testified, on cross-examination, that Lumpkin never made a title to Cheek for land, so far as he knew. That he said he would give him a deed, as he wanted to take a deed of trust from him to secure the purchase money, and the deed of trust would not be good unless he made to Cheek a deed. Lumpkin did prepare a deed conveying the property to Cheek, before the deed of trust was given, and handed it to witness, who read it, and was not satisfied with it, and wrote his objections on it. Lumpkin took it again, and said he would make ■one to suit, in compliance with contract, and send it to Tunica county, Miss., to be recorded with the deed of trust, but never did, that witness knew of. Could not recollect whether the deed Lumpkin handed to witness did or did not contain all the covenants embraced in the contract, but it did not suit witness, and he would not take it, because he did not think it a compliance with the contract of Lumpkin with Cheek, for whom witness was acting as agent in the matter. There was an endorsement on the note due 1st March, 1853, — the last note — - that there was not a perfect title, and that that was not to be paid until Lumpkin made Cheek a good title, clear of all incumbrance.
It was in February, 1853, witness made a demand upon Lumpkin to comply with his contract. Witness then supposed that he had made a deed, and sent it down to be recorded, as he had previously agreed to do, and at which time Lumpkin told witness he could not comply. Witness did not know of any failure to comply on the part of Cheek, but believed that he did comply with every part of his contract, except the payment of the last note.
The above is the substance of so much of the evidence introduced by the parties, as is material to be stated.
Upon the evidence, the appellant objected to the allowance of the account, or any portion thereof, but the Court overruled the objection, and allowed the account as above stated, and the appellant excepted, etc.
Where the purchaser has paid any part of the purchase money, and the vendor does not complete his engagement, so that the contract is totally unexecuted, he, the purchaser may affirm the agreement, by bringing an action for the non-performance of it, or he may elect to disaffirm the agreement ab initio, and may bring an action for money had and received to his use. Sugden on Vend., p. 256; Dart’s Vend. & Pur. 443; 2 Parsons Cont. 190.
Although the contract is under seal, and the purchaser might, for a breach of the contract, maintain an actionof covenant, yet he may also, if he have a right to rescind the contract, bring an action for money had • and received, to recover back his purchase money. The seller holds the money against conscience, and, therefore, might be compelled to refund by an action for money had and received. 1 Sug. Vend. 257; Weaver vs. Barthy, 1 Caines R. 47.
If the circumstances be such that, by rescinding the contract, the rights of neither party are injured, in that case, if one contracting party will not fulfil his part of the agreement, the other may rescind the contract and maintain his action for money had and received, to recover back what he may have paid upon the faith of it. Hunt vs. Silk, 5 East 449; Desha’s Ex’r vs. Robinson, 17 Ark. 237.
In order to sustain an action in this form, it is necessary that the parties should, by the plaintiff recovering verdict, be placed in the same situation in which they originally were before the contract was entered into. lb.
A contract cannot be rescinded without mutual consent, when circumstances have been so altered, by part execution, that the parties cannot be put in siatu quo; for if it be rescinded at all, it must be rescinded in toto. 2 Ala. 189; 17 Ark. 228.
Where one person is desirous of rescinding a contract by reason of the other’s default, he must do so in toto, and cannot hold on to part, tie must put the other in statu quo, by an entire surrender of possession, and of everything he has obtained under the contract, or he cannot recover the consideration in an action for money had and received. Voohces vs. Young, 2 Hill (N. Y.) R. 298; 17 Ark. 238; Seaborn vs. Sutherland, Ib. 603; Davis vs. Tarwater, 15 Ark. 291.
In the case before us, on an alleged failure, or inability of Lumpkin to make Cheek a complete title to the lands in question, Cheek, after notice of his intention to do so, abandoned the land, etc., and subsequently, after the death of Lumpkin, applied to the Probate Court for the allowance of an account against his estate for that portion of the purchase money, etc., paid to him by Cheek under the contract. This must be regarded as equivalent to an attempt on the part of Cheek to rescind the contract, and bring an action for the purchase money.
It may be remarked, in the first place, that $7,000 of the $12,000 demanded by Cheek, were not paid to Lumpkin in money, but in two houses and lots in'Memphis. Pie does not propose, in the mode adopted by him for the rescission of the contract, to take back these houses and lots, but to affirm so much of the contract as transferred them to Lumpkin, and to treat the price at which he took them in the exchange of property as so much cash in his hands. Thus Cheek would rescind in part the contract, and affirm it in part.
Again, he had possession of the farm for two years, and took the rents and profits thereof, and, in the mode of rescinding adopted by him, he does not account for them.
He also had the benefit of the labor of a part of the slaves of Lumpkin from the 1st of March to the 25lh of December, 1851, under the contract, for which he does not account.
Moreover, what has become of the mules, cattle, hogs, farming implements, corn, hay, fodder, meat, and cut-wood, which he obtained possession of under the contract? Did he consume them during the two years in which he had possession of the farm; and, if so, how does he propose to account for the use or value of them in his mode of rescinding the contract?
It is manifest, from the rules of law above laid down, that upon the facts of this case, Cheek could not rescind the contract, and maintain a suit for the purchase money in the mode attempted by him.
It must be manifest, also, that if he has the right to rescind, under the complicated circumstances of the case, he must do it in a Court of Chancery, where, under the peculiar powers of that Court, an account may be taken, the entire contract rescinded, and the parties placed in statu, quo; and that the Probate Court was not competent to settle and adjust the complicated matters in dispute between the parties.
The judgment of the Circuit Court must be reversed, and the cause remanded, with instructions to the Circuit Court to reverse the judgment of the Probate Court, and grant to the appellant a hearing de novo, and to dispose of the cause in accordance with the law, and not inconsistent -with this opinion. - | [
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Mr. Chief Justice English
delivered the opinion of the Court.
The subject of controversy in this suit (the south-west quarter of section 17, township 4 north, range 9 west,) has been in litigation, in one form and another, between the parties, and the ancestors of some of them, since the year 1845, and has heretofore been several times before this Court. See Blakeney vs. Ferguson et al., 14 Ark. 641, where the character and history of the previous litigation are fully stated. After the dismissal of that case, without prejudice, in obedience to the mandate of this Court, Mary Ferguson, the widow, and the heirs at law of Joseph Ferguson, filed the present bill in the Prairie Circuit Court, against the heirs of Benjamin Blakeney, and the widow and her present husband (Hamilton Reynolds), and the heirs at law of Sampson Gray, deceased.
The objects of the bill were to obtain dower in the land above described for Mary Ferguson, and partition of the remainder between the other complainants, as heirs at law of Benj. Blakeney, and to establish title, etc., as against the widow, etc., and heirs of Sampson Gray.
The representatives of Sampson Gray filed an answer, disclaiming title to the land. The • cause was heard upon the pleadings and evidence between the other parties, a decree in favor of the complainants in accordance with the prayer of the bill, and an appeal by Blakeney’s heirs.
It Was satisfactorily proved upon the hearing, that the appellees were the widow and heirs at law of Joseph Ferguson, under whom they claimed the land in question, and for want of which proof they were defeated in a previous suit (see case in 14 Ark. 641).
It appears that Joseph Ferguson, by a verbal contract, purchased the land of Sampson Gray, obtained possession of, and made valuable improvements upon it, under and by virtue of the contract. This was sufficient part performance to take the contract out of the statute of frauds, and to entitle the appellees to a decree against the widow and heirs of Gray, if they had not disclaimed — as held in Blakeney vs. Ferguson et al., 3 Eng. R. 272.
It remains but to determine: 1st, whether Mrs. Ferguson was properly decreed dower in the land; and, 2d, whether partition of the land was correctly decreed, as between the other appellees and the appellants.
1. The case made for Mrs. Ferguson, by the bill, is, that Sampson Gray purchased the land at tax sale, on the 5th of November, 1827, and obtained the collector’s certificate of purchase. That sometime in the year 1828, Gray sold the land to Joseph Ferguson, the husband of Mrs. Ferguson, transferred the certificate of purchase to him, by delivery, and agreed that the collector should execute to him the tax deed upon the expiration of the time allowed by law to the former owner of the land to redeem. But the deed was never executed on account of the neglect, etc., of the parties. That at the time said Joseph purchased the land of Gray, he took possession of it, afterwards made improvements upon it, and that he, and his son Moses, as his tenant, held possession thereof until he departed this life in April, 183G. The proof read upon the hearing conduces to establish the truth of these allegations.
The dower statute in force at the time Joseph Ferguson died, provides that: “If the intestate leaves a widow, and lawful issue, the widow shall be entitled, as her dower, to one-third part of such lands and tenements of which the husband was seized and possessed during coverture, either by virtue of a deed, patent, entry, warrant or survey, and to which she has not relinquished her right of dower, except lands sold on execution, or where lands have been mortgaged and sold in pursuance of a decree of a court of justice.”
The bill affirmatively shows, upon its face, that Joseph Ferguson was not, at any time before his death, seized and possessed of the land in question by virtue of any of the modes of acquiring title named in the statute.
Nor does the common law afford his widow any support in her claim to dower; for, by it, the husband must have a legal title to the land to entitle the wife to dower. She has no dower in an estate to which the husband has but an equitable title, as in the case now before us. 1 Cruise 182; Crabb vs. Pratt & Wife, 15 Ala. 847; Davenport vs. Farrar, 1 Scam. 315; Hopkins vs. Frey, 2 Gill 364.
But it is insisted, by the solicitor of Mrs. Ferguson, that her husband acquired legal title to the land by lapse of time, under the Territorial statute of limitations.
That statute declares that: “ it shall not be lawful for any claimant to bring or maintain suit for the recovery of land; Provided, said claimant shall have been out of possession of the land sued for seven years, against any person or persons, who'may have enjoyed, for seven years, the uninterrupted possession of said land; and, provided also, that said defendant shall have paid the taxes on said land" during the period aforesaid; saving, however, the right of infants,” etc. Steel McCamp. Dig., p. 382.
Passing over the question whether this was not merely a statute of limitations, and not of title, uninterrupted possession of the land for seven years, and the payment of the taxes charged upon it during that period, were both necessary to entitle Joseph Ferguson to the benefit of the statute. Irving vs. Brownwell, 11 Ill. R. 402.
There is no satisfactory evidence in the record that Joseph Ferguson was in possession of the land for seven years previous to his death. The proof shows that he and his son went upon the land, and commenced making improvements, in the winter of 1832. There is no proof that he was in possession of the land prior to that time. He died in April, 1836, less than seven years after his possession is shown to have commenced.
The bill does not allege that he paid any taxes upon the land at all, and, in the answer of appellants, there is a demurrer to the bill for want of equity. If a material matter, not alleged, could be proven, the evidence fails to prove that Joseph Ferguson paid the taxes upon the land, for the seven years preceding his death.
It appears that the land was assessed to him for the years 1829, 1830, 1831, 1832 and 1833. The collector’s receipts to him for his Territorial and county taxes for the last four years referred to, were produced upon the hearing, but no receipt or other evidence of payment for the year 1829. For the year 1834, it seems that the land was assessed to his son Moses, but there was no proof that the taxes were paid by any one. It does not appear that the land was assessed to any person for the year, 1835. The receipt of the collector to Joseph Ferguson for his taxes for that year was produced, but there is no land or other property described in it.
Joseph Ferguson having no legal title to the land in question, at the time of his death, but an equitable title only, in which his wife was not entitled to dower, if his heirs’ at law have, since bis death, by lapse of time or otherwise, acquired a perfect legal title, this does not enure to her benefit in her claim to dower.
It follows that so much of the decree of the Court below as gave her dower in the land was erroneous.
2. It is next to be determined whether the Court below correctly decreed partition of the land between the heirs of Joseph Ferguson and the heirs of Benjamin Blakeney.
The interest of Moses Ferguson (one of the sons of Joseph) in the land was sold by the sheriff of Pulaski county, under an execution against Moses, in April, 1845, and purchased by Benj. Blakeney, under whom appellants claim. Proclamation was made at the sale, by Alfred H. Ferguson, and his brother Moses, in the presence and hearing of Benjamin Blakeney, that Moses had no interest in the land other than as joint owner with his five brothers and sisters. Whereupon Blakeney remarked that he would risk all their titles if he bought it as the property of Mases. Shortly after this sale,. commenced the litigation between the parties, which has' been kept up until the present time, Blakeney attempting to obtain and hold possession of the whole of the land under his purchase, and the widow and heirs of Joseph Ferguson endeavoring to injoin him, and to procure dower therein for the widow, and partition of the remainder between the other litigants, conceding the right of Blakeney to the interest of Moses, as tenant in common.
It is not pretended in the answer of the heirs of Blakeney (the appellants), that Moses Ferguson ever purchased the land from any one, or obtained a paper title to it from any source; but they allege that at the time their father purchased the land under execution, Moses had acquired a right to hold it by adverse possession and lapse of time. . .
The substance of the proof, as to the possession of Moses, is as follows:
Drury Dobbins deposed that he was the neighbor of Joseph Ferguson and his family, from the year 1830 to the year 1840. During the former year, Moses was single, and lived with his father, who, it seems, resided on a tract of land (160 acres) near the land in question. In 1831, Moses got married, but continued for a while after to live with his father. In the winter of 1832, his father, Moses, and his brothers, laboring together, commenced to improve the land in controversy. They built upon it a house, two stables, a crib, cleared and put in cultivation twelve acres, and Moses lived in the house. Joseph Ferguson seemed to control the place, and he and his sons' worked together on both places. About a year or so before he died, he and Moses, and his other sons, built a horse-mill on the land in dispute, which was used by the family in common, before and after the death of said Joseph. Moses lived on the land from the time the house referred to above was built upon it until the death of his father, and afterwards, etc., but his father claimed to be the owner of the land to the time of his death. Shortly after the cabin was built upon the land, and while Moses was living in it, witness had a conversation with Joseph Ferguson in which he asked him if he designed giving the place to Moses. His answer was: It is my intention for Moses to have and use the place as a home, but I shall make him no title until I find myself able to settle the balance of my children as well.
At the time of his death he had seven children, claimed the land in question, the other tract above referred to, had a good deal of stock, and was a tolerably good liver.
Other witnesses deposed that he claimed to own the land in question, and another 160 acre tract, at the time of his death, and that his stock was worth from $300 to $400, and his household property about $150. He had no other property.
No witness testified that Moses Ferguson ever set up any claim to the land before the death of his father, and it is manifest, from the evidence, that he went into the possession of it as the tenant of his father, and continued there by his permission. It is probable that the old man intended to give him the land, if, in after years, he found himself able to make gifts of equal value to his other children, but he died before he acquired the means of doing so, and there is no proof that he ever made Moses any title to the land, or gave it to him verbally. It is true that it appears that the land was assessed to him for the year 1834, but there is no evidence that he paid the taxes, nolis it shown that his father had any knowledge that the land was assessed in his name.
We think that the appellants failed to produce any evidence that the possession of Moses, from the time he went upon the land, to the death of his father, in April, 1836, was adverse, or that the statute of limitation had commenced to run in favor of Moses and against his father.
Moses being in possession of the land when his father died, -as his tenant, his subsequent possession must be regarded as having been for the benefit of himself and his brothers and sisters, as joint owners, unless it is proved that he held ad. versely.
The possession of one joint tenant, tenant in common, or coparcener is the possession of another, and until the tenant in possession does acts amounting to an ouster, or disseizin of his co-tenant, the statute of limitation does not begin to run in his favor. Angel on Lim. 456-7-8.
Where one tenant enters as sole owner, and his possession is openly and notoriously adverse to his co-tenants, it amounts to a disseizin. Ib.
An ouster or disseizin is not to be presumed from the mere fact of sole possession; but it maybe proved by such possession accompanied with a notorious claim of exclusive right. To make a possession of one tenant in common adverse against the other, it is not necessary that notice should be given of the adverse intent, but the intent must be manifested by outward acts of an unequivocal kind. To. See, also, Ashley et al. vs. Rector, ante.
■ These are some of the familiar general general rules on the subject of limitation, as between tenants in common, etc.
It appears from the evidence that Moses Ferguson continued to live on the land in question, after the death of his father, until January, 1838, when he moved to another place, and remained there until the spring of 1843; and then he moved back on to the land in dispute, and continued to reside there until Blakeney purchased it at execution sale in April, 1845.
Witness, Dobbins, resided on the land after Moses left it, in 1838, until November, 1840. He paid no rent to any person. He was to go on the place and keep it up for the use of it, which he did, and made same little improvement. While he occupied the place, Mary Ferguson and her family, and Moses and witness, purchased a team.to run the mill, which Joseph Ferguson and his sons built upon the land during his lifetime. Witness attended to keeping the-mill, and paid the tolls to the family in common, viz: he retained one-half for his services, and paid the remainder to Mrs. Ferguson, Moses, and his brothers and sisters in common.
Moses put witness in possession of the place when he left it, in 1838, but never heard of his claiming the land as his own.
Wm. Robbins deposed, that he rented the land of Moses in 1843, and paid the rent to him. Moses offered to sell him the land several times dsuring the year, claiming it as his own. When paid the rent corn, Moses and his brother, Alfred FI., hauled it away — none of the appellees were present when witness rented the land- of Moses, nor when he offered to sell it to him.
Jod Evans deposed, that in the fall of 1844 he went to Moses, with one Jones, who wanted to buy the land, and Moses offered to sell it to him, claiming it as his own. None of the appellees were present.
It appears from the abstract from the tax book in the Auditor’s office, that the land in dispute was assessed in the name of Moses, for the years 1838-9-40-42-3-4, but there is no evidence that he paid the taxes for any year.
It does not appear that there was any administration upon the estate of Joseph Ferguson. ■ ,
The above is the substance of all of the evidence introduced by the parties in relation to the possession of the land, etc.
It is manifest that Moses did not acquire the right to hold the land against his brothers and sisters, under the Territorial act of limitation above copied; because, to say nothing of the fact that there is no evidence that he paid any taxes upon the land, we have seen that he held as tenant of his father to the time of his death, in April, 1836, and from that time to the repeal of the act, (20th March, 1839. Rev. Stat., chap. 129, sec. 25,) there is no evidence that Moses asserted any exclusive claim to the land, or did any open and notorious act hostile to the title of his co-tenants.
The ten years act of limitation contained in the Revised Statutes, went into operation by proclamation of the Governor 20th March, 1839.
On the 28th August, 1845, and before the expiration of the ten years from the time that act took effect, the appellees filed their first bill against James Blakeney and others, which was finally dismissed without prejudice, under the mandate of this Court, as above noticed, and the present bill filed within one year from that time.
Moreover, there is no evidence that Moses openly asserted any claim to the land adversely to the title of his co-tenants, until the year 1843, when he offered to sell it to Robbins, claiming it as his own.
The assessment of the land for taxes in his name was, of itself, under the circumstances, no evidence of adverse claim. He being the oldest son, and there being no administrator upon the estate of his father, it was natural that he should see to the payment of taxes upon the land for the family.
The fact that the mill situated upon the land, from the time it was built down to the year 1840, (which is as late as the wit nesses speak of it,) was used by, and employed for the benefit of the family in common, is an item of proof, of some weight, that Moses did not, during that period, assert an exclusive right to the land, etc.
It is insisted for the appellants, that the bill and evidence fail to show a regular sale of the land for taxes, to Sampson Gray, in 1827, and that, consequently, Joseph Ferguson derived no title to the land through him.
It is sufficient to say, in response to this, that Moses Ferguson having gone into possession of the land as the tenant of his father, he, and the appellants claiming under him, are estopped by a familiar general rule to deny his title. Burke vs. Hale, 4 Eng. R. 329; Bettison vs. Budd, 17 Ark. 546. There is no showing that Moses ever entered, or held possession of the land under any other title than that of his father.
So much of the decree of the Court below as awards dower to Mrs. Ferguson must be reversed, and the bill dismissed as to her for want of equity. The decree must be further reformed so as to make partition of the whole of the land between the other appellees and the appellants, giving to the latter one-sixth pai’t, that being the interest of iMoses Ferguson. So much of the decree as directs the master to take an account of rents and profits, and appoints commissioners' to make partition of the land will remain unchanged.
The proper decree must be entered here, and cex-tified to the Court below to be executed.
The costs of this Court must be equally divided between the appellants and the appellees. | [
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Mr. Justice Compton
delivered the opinion of the Court.
This cause was before this court at a former term, when the decree of the Chancellor was affirmed as to the defendant, Trapnall, and reversed as to Watkins. 15 Ark. 89. The cause was then remanded for further proceedings, and is now here again.
After the mandate of this court was entered of record in the court below, Wassell exhibited his bill of supplement and revivor, to which he made the administratrix of Trapnall a party. The allegations in the bill, which have a bearing on the questions involved, are, in substance, that Wassell filed his original bill on the chancery side of the Pulaski Circuit Court, against Trapnall, (since deceased), Watkins, the Bank of the State and others; the object of which was to establish and enforce a lien in favor of Wassell, upon lots 4, 5 and 6, in block 2, east of the Qnapaw line, in the city of Little Rock, and the improvements thereon, for the payment of certain sums due for repairs made upon the premises, by Wassell, under contracts with Richard C. Byrd, William J. Byrd, and the Bank, and to have the rents and profits applied to the payment of such sums as might be found due him for repairs. That after proceedings regularly had, the cause was heard, and the court decreed that Trapnall owned and had title in fee-simple to lot 4, and the east half of lot 5, subject to an equitable lien in favor of Wassell, for repairs, amounting to the sum of $685 32; which was declared paramount to any incumbrance in favor of the other parties to the suit, and that Wassell was entitled to have possession of the property, and receive the rents thereof, past and future, until said sum should be fully paid; and it appearing to the court that Trapnall had then received nett rents to the amount of $500, it was decreed that he pay that amount to Wassell, still leaving a balance of $185 32, to be paid out of future accruing rents.
And that it was further decreed, that Watkins had title in fee simple to lot 6, and twelve feet on the west side of lot 5, and the improvements thereon, subject to a like equitable lien in favor of Wassell, for repairs made upon the premises, amounting to the sum of $2043 71, and that Wassell was entitled to have possession and receive the rents, as well those which had, as those which might thereafter accrue, until the last mentioned sum should be paid — which orders and decrees were submitted to and remained in full force, except as to the defendants, Trapnall and Watkins,who severally, indue form of law, prosecuted an appeal to this court, which resulted in an affirmance of the decree in all things, as to Trapnall; and a reversal as to Watkins, with instruction to the court below to ascertain the value of the work done upon lot 6 and 12 feet of lot 5, and the buildings thereon, purchased by Watkins, after his purchase, and prior to any notification by him to Wassell, that he would not be responsible for repairs, and to render a decree against Watkins, in favor of Wassell, for the same. That the defendant, Trapnall, after his appeal to this court, entered into recognizance, whereby the execution of the decree against him was and still is suspended; that Trapnall, in his life-time, and his administratrix, since his death, had continual possession of lot 4, and east half of lot 5, and the buildings thereon, and received all the rents and profits arising therefrom, which amounted to more than the sum of $185 52, with interest from the date of its ascertainment, being the balance due for repairs after deducting the sum of $500, decreed against Trapnall, as above.
The bill further alleges that there was a'strip of land 13 feet in width, of the whole length of lot 5, lying between the east half of said lot, owned by Trapnall, and the 12 feet on the west side of said lot, owned by Watkins, to which neither of them had ever had title — the title remaining subject to the rights of Wassell, in William J. Byrd, Richard C. Byrd, and the Bank, defendants to the original bill in this cause; that the store house, owned by Watkins, which was supposed to stand upon lot 6, and 12 feet of the west side of lot 5, covered and included 5 feet 2:¡¡ inches in width, of said 13 feet, the whole length of lot 5, on the west; and the warehouse owned by Trapnall, which was supposed to stand on lot 4, and the east half of lot 5, covered and included 7 feet 9 |- inches of said 13 feet, on the east side thereof, and that Watkins and Trapnall, since the date of their several purchases of the tenements above mentioned, received the rents and income from said 13 feet, in the respective proportions above indicated, and refused to pay over or account for the same to Wassell.
The bill prays that Watkins and the administratrix of Trapnall be ordered to pay to Wassell the rents respectively received on the 13 feet, as a general credit on the entire value of the repairs, and not upon the amounts for which they were otherwise liable; and that the original decree, affecting lot 4, and the east half of lot 5, be executed and carried into effect as against the estate of Trapnall, etc.
Watkins and the administratrix answered the bill, and the cause was regularly heard.
In discussing the several questions presented, those involving "Wassell’s right to relief against the estate of Trapnall, will be first considered.
1st. Was there a decree rendered upon the original bill and proceedings, establishing a lien, in favor of Wassell, on lot 4, and the east half of lot 5, and the improvements thereon for the payment of $185 32, balance clue Wassell for repairs upon the premises? The answer denies the existence of such a decree, and an inspection of the record fully sustains the answer. Indeed, there is little room for so wide a difference as to the construction of the decree; and, upon an examination of the facts in the record, upon which it was rendered, it would seem that no difference of opinion could prevail. Wassell sought to establish a lien on that portion of the property under a contract made with him for repairs, and upon no other ground. By the terms of the contract, the application of the rents, in payment for repairs, was carefully limited to $500, and the Court, judging that Trapnall had received nett rents to that amount, decreed that sum against him personalty, (as standing in place of the property), leaving a balance still due Wassell as then ascertained, for the payment of which no decree was made against the property, nor could the Court have so decreed, without violence to the plain terms of the contract. Payment of the $500 was made by Trapnall to Wassell, and forms no part of this controversy.
Although Trapnall was in possession, and received the rents arising from the 7 feet Of inches (parcel of the 13 feet), covered by the warehouse, yet his liability to account to Wassell depends, not upon whether Trapnall had title to the property, but whether Wassell had a right to the rents.
By the contract made with Wassell for repairs, it was agreed, in the language of that instrument, “ that five hundred dollars of the rents, issues and profits, arising from the use and occupation of said building, situated at the lower landing, in Little Rock, and known as William J. Byrd’s warehouse,” etc., should be applied in payment for repairs upon the warehouse. The precise locality or situation of the building is not described, but no one will contend that the seven feet 9f inches were not embracéd in the description here given; and it must be remembered that Wassell did not seek to establish or enforce a mechanic’s lien, under the statute, upon this portion of the property, as he did upon the storehouse, and that the only lien ■which he had against the warehouse grew out of this contract, and attached to the 7 feet 9f inches just as it did to every other part of the building, and was, as we have seen, limited to $500, which have been decreed and paid to him.
. It follows that the decree, denying relief against the estate of Trapnall, and dismissing the- bill as to his administratrix, must be affirmed.
2d. The Court below decreed against Watkins for rents received on the 5 feet 2¶ inches covered by the storehouse, with interest from the date of the original decree in this cause in the Circuit Court; and for work done upon the building situate on lot 6 and 12 feet on the west side of lot 5, after the purchase of Watkins, and before he notified Wassell thathe would not be responsible for repairs, with interest from the first day of the term of this Court, at which the liability of Watkins was ascertained and declared. Both appealed from this decree.
The liability of Watkins for repairs having been declared by this Court, is res adjudicata, 15 Ark. 89, supra; and he does not contest his liability to account for rents received on the 5 feet 2-j- inches, but insists that the entire rents of that portion of the building were expended in necessary repairs. So that the question of law raised upon this branch of the case, is as to the allowance of interest on the several sums decreed against Watkins.
The question of interest, and whether it is or is not recoverable, has been much discussed, both in England and this country. In some respects, the adjudications are in conflict, and no one has ever met with success in the attempt to reconcile them. In Arkansas, however, the rule in regard to many of the points discussed, has been fixed by legislation.
Our statute provides (sec. 1, chap. 92, Dig.) that “ creditors shall be allowed to receive interest at the rate of six per centum per annum, when no other rate of interest is agreed upon, for all moneys, after they become due by an instrument of the debtor in writing, on money lent, on money due on settlement of accounts, from the day of liquidating or ascertaining the balance due thereon, on' money received for the use of another, and retained without the owner’s knowledge of the receipt thereof, on money due and withheld by an unreasonable and vexatious delay of payment or settlement of accounts, and on all other monies due and to become due for the forbearance of payment whereof an express promise to pay interest has been made.” Thus the whole subject is regulated, so far as regards contracts for the payment of money, express or implied, for it is a rule, in the construction of statutes, that the expression of one thing is sometimes the exclusion of another, and when the Legislature has enumerated a variety of cases in which creditors shall be allowed to receive interest, it may be safely assumed that it was not intended to permit them to demand it in the cases not enumerated. Dwarris on Statutes 713; King vs. Cunningham, 5 East. 478; 4 Price 78.
So that, in this State, interest can only be recovered upon contracts for the payment of money, in the cases specified in the statute, leaving the recovery thereof in those cases, where the liability is tortious in its character, to be governed by the general principles of the law applicable to them.
In the case before us, the claim against Watkins stood as an open account, and consisted of two items: the one was the price and value of certain repairs, and the other, the nett balance of money arising from the receipt of the rents of a portion of the premises, after deducting such sums as had been expended in repairs. These items had not been liquidated, and were uncertain in amount. It is not pretended that there was any express promise to pay interest, and the liability of Watkins to pay interest upon them at all, must be derived from that clause of the statute, which allows it on money “ withheld by an unreasonable and vexatious delay of payment,” etc. It is impossible to lay down any definite rule by which to determine, in every case, what shall constitute such an unreasonable and vexatious delay as will entitle the creditor to interest. Each case must necessarily depend, to a great extent, upon its own peculiar circumstances; and in this view, we will proceed to examine each of the items in this case, separately, inasmuch as, in some respects, the circumstances attending them are not the same.
After Wassell had made a contract with Byrd and the Bank to repair the buildings, and had partly executed it, Watkins purchased the property.
For a period of time, after the purchase, Wassell continued to carry on the work, and, upon ceasing, demanded payment from Watkins for the repairs, as well those before, as those made after the purchase, upon the ground that he had a mechanic’s lien therefor, which he contended was paramount to the title of Watkins.
To enforce this lien, the original bill was filed. After several years litigation, it was decided by this Court, that Watkins’ title was paramount to Wassell’s lien; but the Court held that Watkins was liable for such repairs as were made after his purchase and before he notified Wassell that he would not be responsible. This, it would seem, was a result not looked for by either of the parties litigant, as no proof had been taken as to the value of the particular repairs for which Watkins was declared liable. The cause was remanded, and, on reference to the Master, proof was taken, and an account stated. The report of the Master was filed in Court on the 6th February, 1856, showing the value of the repairs to be $925 21, which, as to that item, the Chancellor found correct.
A mere statement of these facts is sufficient to show that the proposition contended for by the counsel of Wassell, that interest should be allowed on the value of the repairs from the time the work was completed, cannot be maintained. The demand was not only not liquidated, but Wassell required the payment of much more than was really due, or which he after- wards recovered; -while Watkins had reason to doubt whether he or his property was bound to him for any thing. Nor should interest have been allowed, as decreed by the Chancellor, from the time the personal liability of Watkins was declared by this Court. The parties were already in litigation, the one endeavoring to enforce a doubtful demand, and the other defending himself against it. No sum was fixed by the decree, nor could be, from the evidence then before the Court. There was, therefore, a necessity for further proceedings, in order to ascertain what was to be paid; and, until the amount was known and fixed, there could be no default. Upon the coming in of the Master’s report, however, the sum to be paid was liquidated, and the report having been confirmed, as to that item, by the Chancellor — and we think he was warranted in doing so upon the evidence adduced — Watkins should be charged with interest upon the value of the repairs, as reported, from the date of the report.
It may be remarked, as to the item of rents received, that there is no testimony in the record showing receipts exceeding the amounts paid out for indispensable repairs since the date of the original decree in this cause in the Circuit Court. At that time, a nett balance was ascertained to have been received upon the whole building, and by calculation, upon the rule adopted by the Chancellor, the nett amount then received on the 5 feet 2& inches was $103 27; and this sum, with interest from the date of the filing of the supplemental bill (and not from the date of the original decree, as held by the Chancellor), must be decreed against Watkins. Because, Watkins was ignorant that the storehouse extended over the 5 feet 2£ inches of ground, and had no information on the subject until the supplemental bill disclosed the fact; and, although this item may be treated as money had and received, yet, in regard to the question of interest, it does not come within the meaning of that clause of the statute, which allows interest “ on money received for the use of another, and retained without the owner’s knowledge of the receipt thereof.” This clause applies to cases where the party receiving the money knows it does not belong to him, and, knowing the owner, retains it from him.
In tins case, the money was received under mistake, Watkins believing it to be his own. The filing of the supplemental bill, however, explained the mistake, and the means of ascertaining what amount of money had been received, and what was due Wassell being peculiarly within the knowledge of Watkins, he should have then made payment, or offered to do so. Until that period, there was no such delay of “ payment, or settlement,” as is contemplated by the statute.
So much of the decree of the Court below as allows interest on the value of the repairs from the first day of the term of this Court at which the liability of Watkins was declared, and on the amount of rents received from the date of the original decree in this cause in the Circuit Court, must be reversed, and a decree be entered in this Court, as indicated in this opinion, and certified to the Court below. | [
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Mr. Chief Justice
English delivered the opinion of the Court.
This is an appeal from a decree of the Chancery Court of Pulaski county.
The bill was brought in the name of Biscoe and others, as Trustees of the Peal Estate Bank under the deed of assignment.
During the progress of the cause, Gordon N. Peay was substituted as complainant, the Trusteeshaving been removed, and he appointed Receiver, by an order of the Chancellor. The defendants were Benjamin J. Borden, Wm. B. Borden, James Lawson, Luther Chase and Philip 1L. Anthony. The object of the bill was to recover the balance due upon two notes executed by the defendants to the Trustees of the Bank. Chase being one of the Trustees, as well as one of the makers of the notes, at the time the bill was filed, the other Trustees had to resort to the Court of Chancery to enforce the collection of the notes as against him.
During the progress of the cause, Chase departed this life, and his administrator, Wm. W. Adams, was substituted as defendant.
Lawson also died, and his administrator, John O. Peay, was made a party.
On the hearing, Anthony was discharged on the plea of limitation.
A decree was rendered against the other defendants, and Wm. B. Borden and the administrators of Chase and Lawson appealed.
All of the defendants in the Court below (except Benjamin J. Borden, the principal debtor,) interposed the statute of limitations as a bar to the relief sought against them by the bill; but the Chancellor decided that the statute was displaced by means of payments made by the principal debtor within the period of limitation, and the correctness of this decision is the main question to be determined here.
The original bill was filed on the 9th July, 1851.
The two notes, for $2,500 each, are dated 1st January, 1843, and payable 1st January, 1844, with eight per cent, interest from date. Interest paid in advance to maturity.
In a supplemental and amended bill filed by the complainants, it was alleged that, after the maturity of the notes, a payment was made upon them, and they were renewed; but the renewal of the notes was denied by the defendants; the alleged new notes were not exhibited nor produced upon the hearing, nor was there any competent evidence of their execution.
By the statute in force at the time of the execution and maturity of the notes, three years was the period of limitation to suits upon them. Rev. Stat., chap. 91, sec. 6; Couch vs. McKee, 1 Eng. R. 484; Hawkins ve. Campbell, Ib. 513.
To avoid the statute of limitations, the complainants, in the supplemental and amended bill, make, in substance, the following allegations:
In March, 1843, Benj. J. Borden purchased of Wm. E. Wood-ruff the Arkansas State Gazette newspaper and printing office, and in part payment therefor, agreed to assume $5,000 of Woodruff’s indebtedness to the Real Estate Bank; and in pursuance of the agreement, the notes in question were executed to the Trustees of the Bank, bearing date 1st January, 1843, and accepted by them in substitution for so much of Woodruff’s debt.
That it was agreed at the time, and before the notes were executed, that Borden should be employed to do part of the printing and advertising of the Trustees, and that the price of all work so done by him should go towards paying off the notes; which arrangement was not only known to the securities of Borden, {Chase, Lawson, Anthony and Wm. B. Borden) but it was the chief reason why they consented to sign the notes.
That upon the execution of the notes, Borden’s purchase of the Gazette, etc., was consummated, aud he became the editor and proprietor thereof, and so continued for several years: and he was, in accordance with said agreement, so made by the Trustees, through their attorney, with him and his securities, constantly employed, until he disposed of the said newspaper and printing office, in doing printing and advertising for the Trustees. That Chase, Lawson and Wm. B. Borden well knew that he was paying off his indebtedness; and they all expected, and had the right to expect,, that as long as he continued to do such work, no suit should be brought on said notes. That they all looked to his accounts for work to extinguish the notes and relieve them from liability; and Benjamin J. Borden could not, in good faith, appropriate, nor could said Trustees, in good faith, allow him to appropriate the moneys so earned by him from day to day, in any other way, it being the direct understanding with all the parties, that the notes were to be so paid by him; and the extension of time given him, and the de lay to sue, were with the fullest assent and concurrence, and for the benefit of the sureties.
That about the 1st of May, 1844,Borden rendered an account for printing and advertising up to that time, for $888 of which $714 28 were appropriated as a payment upon the two notes as of the 1st January, 1844, ($357 14 to each note,) and the remainder to the payment of advance interest upon the notes to the 1st January, 1845.
That on the 15th day of September, 1848, Borden presented to the Attorney of the Trustees, his account for printing and advertising, from the 5th day of June, 1844, up to that date, made out at Arkansas paper prices, estimating such paper to be worth about 30 cents in the dollar, and amounting in the aggregate to $1,715 29, that the same might be certified by the attorney so as to obtain credits for it on said notes: — and the account was accordingly certified by said attorney; and on the same day Borden directed the Cashier and Secretary of the Trustees to credit the amount of the account on said notes; which he did as of the 3d February, 1848; and Borden then receipted the account in the following words:
“ Received of Thomas W. Newton, Cashier and Secretary, seventeen hundred and fifteen 29-100 dollars, the amount of the within accouut, by a credit on my notes to the Trustees of the Real Estate Bank, as of the 3d of February, 1848, which was signed by him and delivered to the Cashier and Secretary, and his printing and advertising account thus finally appropriated by him without any condition, limitation or reservation.
That Borden sold the Gazette office to Hayden about the 3d of February, 1848, who agreed to assume and pay the balance due on Borden’s notes, after deducting the amount of the above account, but failed to do so, etc.
It may be stated in general terms that Wm. B. Borden, in his answer, denies any participation in, or knowledge of the alleged agreement between Benj. J. Borden and the Trustees, about the payment of the notes in printing, and submits that his right to insist upon the statute of limitations could in no way be affected by any such agreement, etc.
Chase and Lawson died before the supplemental and amended bill was filed. The answer of the administrator of Chase may be regarded as putting in issue the truth of the allegations of the bill in relation to the agreement, etc., about the printing, etc., so far as they affect the rights of Chase; and it was agreed between the parties that the administrator of Lawson should abide the event of the suit as to the administrator of Chase, etc.
The only deposition read upon the hearing, by the complainant, was that of Mr. Pike, the attorney of the Trustees, so much of which as relates to the printing, etc., is in substance, as follows:
“ The notes sued on were given under the following circumstances: Benj. J. Borden, about the 1st March, 1843, wished to purchase the Arkansas State Gazette newspaper, goodwill and printing office, and change it into a whig paper. Woodruff, the proprietor, owed the Trustees of the Real Estate Bank, whose attorney I was, a large debt, and was willing to sell for $1,000 in money, and $5,01)0 paid on that debt. Ten or twelve persons, of whom I was one, loaned Borden $1,000 to make the cash payment; and I agreed with him that he might renew $5,000 of Woodruff’s debt to the Trustees under the circumstances. I was more particular in regard to the security than I would have been in any other case, and required Borden to furnish two notes, each for one half of the sum, one to be executed by himself as principal, and the other by his friend and relation, Lawson, as principal. The notes sued on were accordingly furnished, and accepted first by me, and afterwards by the Trustees. The whole debt was one debt, and the debt of Borden alone, although Lawson was principal in one of the notes; all the parties to the notes knew this perfectly well.
It was distinctly understood that I -would not only give Borden all my own advertising patronage, but all that I could control in the way of printing and advertising of the Trustees of the Real Estate Estate Bank. In giving this work I neither apprehended or met with any difficulty, the Trustees allowing me to have it done where I pleased. At and before, and always after the,time of the execution of the notes,' it was distinctly agreed that the price of all work done by Borden, for the Trustees, should go to pay off the two notes. The arrangement was perfectly known to Lawson, Chase and Wm. B. Borden, when they signed the notes, and it was no inconsiderable inducement to them to go into the transaction. It was contemplated that Borden would, before the trust ended, entirely pay off the notes with his work, and so he would have done at the prices he charged, if he had not, against my remonstrance, etc., sold the printing office, etc.
On the payment of the one thousand dollars and substitution of the notes in question, Borden wras put in possession of the office. From that time until he sold it again, he was, every few weeks, employed in doing some work, either printing or advertising, for the Trustees.
About the 23d of April, 1844, he made out and presented an account, amounting at Arkansas money prices to $888. The notes were credited, $357 14 each, and advance interest to 1st January, 1845, etc.
On the 15th of September, 1848, he made out and presented another account for printing and advertising, at Arkansas money prices, at about three for one, amounting to $1,715 29. Each of these accounts, I certified as correct, and ordered their payment by the Cashier and Secretary.
Accordingly he received credit against the notes for $1715 29, and endorsed on the last account a receipt accordingly, etc. On the first account he endorsed a general receipt, etc. I annex the two receipts to this deposition.
I repeat that both of these accounts were made out at Arkansas money prices, etc., and the appropriation of the latter towards said notes was unconditional and absolute, and the amount was meant and intended to be equally divided, one half on each note.
I cannot recollect the precise language of any conversation which took place between myself and any one of Borden’s securities after he gave the notes. Chase I saw almost every day, and on the 22d June, 1849, he became one of the Trustees. Lawson I also saw very often. He was the brother-in-law, and Wm. B. Borden was the brother of Benj. J. Borden. I well recollect inquiries being made of me by one and another of them, at different times, as to how Benj. J. Borden came on in regard to paying his debt. They were all aware how he was expected to pay it, and that no suit was to be brought while he continued to work for the Trustees. They looked to his accounts to extinguish the notes, and relieve them from liability. He could not, in good faith, appropriate them in any other way; nor could I, in good faith to them, allow him to do so. They all expected and required, and had the right to expect and require, that he should pay off the notes in that way; and they had a right to claim that they should not be sued, so long as he continued to do so. The extension of time was given with their full assent and concurrence, in conformity to the express understanding on which they became securities, and the indulgence granted was made for their benefit more than it was for his. As to Lawson, it was understood all the time that he was only nominally principal, and that Borden was to pay off that note with his work. There was little said about the appropriation of payments, because the securities were the same on both debts, which in fact were but one debt due by Borden; and whenever applied, the payment equally benefited all the parties.”
It seems that the first account of Borden for printing, though rendered in May, was, by agreement between him and the attorney of the Trustees, allowed and appropriated as a payment upon the notes as of the 1st of January, 1844, the time when they fell due. The second account of Borden was rendered in September, and, by a like agreement between him and the attorney of the Trustees, allowed and appropriated as a payment upon the notes as of the 3d of February, 1848, at which time more than three years had elapsed from the maturity of the notes, and an action upon them was barred by the statute of limitations then in force. The notes being at that time barred, the payment made by Borden, as of that date, revived the debts as to him, and formed a new point from which the statute began to run again, but did not revive the debts as against the other joint makers of the notes — the sureties. Biscoe et al. vs. Jenkins et al., 5 Eng. R. 108.
Such being the case made by the bill and evidence, here the controversy would terminate in a court of law; and here this opinion might conclude, but for the fact that we are disposed, through respect to the judgment and learning of the Chancellor, to consider the particular grounds upon which he denied to the appellants the benefit of the statute of limitations.
It may be remarked, that it must be borne in mind that this suit was cognizable in a court of chancery on no other ground than for the technical reason that Chase, one of the makers of the notes, could not be both plaintiff and defendant in a court of law; but that the demand is strictly a legal one, and the rules of limitation applicable to an action at law upon the notes must govern the remedy in equity. Faulkner et al. vs. Thompson et al., 14 Ark. 479.
The Chancellor held, first, that the Trustees, having delayed to sue upon the notes, in consequence of the agreement with Borden about the printing, with the knowledge and implied assent of the sureties, it was bad faith in them to attempt to avail themselves of such delay to defeat the suit finally brought upon the notes, and that in equity they would not be permitted to do so.
And this leads to the enquiry, how far it was competent fot the Trustees to prove the agreement about the printing, and for what purpose.
The notes, upon their faces, were payable twelve months from their date in money. This was the written contract between the parties, and it is a well established rule that evidence of a parol contemporaneous agreement contradicting or vary ing the written contract of the parties, is inadmissible. 1 Greenl. Ev., sec. 275, etc. And this rule of evidence is applicable to suits in equity as well as at law. Jordan ad. vs. Fenno, 13 Ark. 593; 4 Eng. R. 501.
If the Trustees had sued upon the notes immediately after their maturit3r, neither the principal debtor nor the sureties would have been permitted to introduce evidence of a parol agreement or understanding between the parties at the time the notes were executed, that they were to be paid in whole or in part b3r printing, and that the Trustees were to delay the collection of the notes, in order that the principal debtor might have the full benefit of such agreement. Joyner vs. Turner, 19 Ark, 690.
It is but reasonable that the rule should work both ways, and that the Trustees should not be permitted to prove such parol agreement to avoid the consequences of their delay to sue upon the notes.
If makers of notes were permitted, when sued upon them» to introduce evidence of parol, contemporaneous agreements as to the time and mode of payment, contradictory of their written contracts, to defeat the suits, it would open a wide door to mischief, which the rule of evidence in question was designed to close. So, if creditors could introduce evidence of such parol agreements; to account for delay in suing, and thus avoid the statute of limitations, a similar source of mischief would be opened. ■ The policy of the law is, that the written contract entered into between the parties is to be looked to for the purpose of determining the time and mode of pa3rment agreed upon by them.
The error of the Chancellor’s opinion, under consideration, was in admitting incompetent evidence to ascertain if the sureties of Borden were acting in bad faith in pleading the statute of limitations, and then, upon such incompetent evidence, den3ring to them the benefit of the statute.
It was competent, however, for the Trustees to prove that Borden did printing for them, the time when done, and the amount and price thereof, and that, by agreement of parties, the price of the work so done was appropriated as a payment upon the notes; because such evidence relates to the discharge of the notes, and in no way affects the terms of the written contracts.
The second ground upon which the Chancellor denied to the appellants the benefit of the statute of limitations, was, that euch item in the accounts rendered by Borden for printing was to be treated as a payment upon the notes pro tanto, as of the date of the item, and there being no period of three years between the payments so made, the bar never attached in favor of any of the parties.
The items in the first account rendered by Borden, as dated in the account, begin 12th July, 1843, and end April 25th, 1844. The items in the second account run, at short intervals, from the 5th June, 1844, to the 20th January, 1848. If each item in the accounts is to be treated as a payment upon the notes as of it3 date, as stated in the accounts, the notes were not barred on the 20th of January, 1848, the date of the last item in the second account, and the statute began to run anew as to all of the parties from that date. On the 30th of January, 1850, Borden made a payment of $1,000 upon the notes, in the note of Woodruff. He was also allowed a credit of $350, as of the 1st January, 1850, for printing done by Hayden, for the Trustees, after he purchased the printing press. The suit was commenced, as above stated, 9th of July, 1851: hence the cause of action was not barred as to the appellants, if each item of the accounts is to be treated as a payment as of its date, as held by the Chancellor. The two accounts rendered by Borden for printing, were not made exhibits to the bill, nor, strictly speaking, were they made exhibits to Mr. Pike’s deposition. The receipts given by Borden for the accounts were made exhibits to the deposition, for the purpose of proving that the’ amount of each account was appropriated, by Borden, as a payment upon the notes, as alleged in the bill; and the receipts being written upon the accounts, the latter were incidently brought into the record.
It was not alleged in the bill, nor proven, that it was at any time agreed or understood between Borden and the Trustees, or their attorney, that each item in the accounts was to be treated as a payment pro tanto as of its date, or that the price of each job of work done by Borden was to be a payment of so much of his debt to the Trustees, as of the time the labor was performed. Nor is there any thing in the pleadings or evidence from which such an agreement or understanding may be inferred; and such an inference would not harmonize with the conduct of the parties in relation to the accounts. The agreement was made between Borden and the attorney of the Trustees. They, of course, well understood its terms. The bill alleges, and the deposition of the attorney proves, that the first account of Borden was rendered in April, 1844, and that by agreement between him and the attorney, part of the aggregate amount of the account was then appropriated to the payment of advance interest upon the notes to the 1st January, 1845, and the remainder was appropriated as a payment upon the principal of the notes, as of the 1st January, 1844. That the second account was rendered in September, 1848, and after the price charged was adjusted and agreed upon, the amount of the account was, by an agreement between the same parties, appropriated as a single payment as of the 3d of February, 1848.
It seems to us, therefore, that we cannot, without doing violence to the allegations of the bill, the deposition of Mr. Pike, and the conduct of the parties, hold that each item in the accounts was a payment, as of its date, upon the notes; but that we must treat the aggregate amount of each account as a payment as of the date it was stated, allowed and appropriated, as such, by agreement of the parties to the transaction.
Moreover, the decree was entered February 12th, 1856, for $5,105 5G, and it is manifest from the amount of the decree (that the theory of the Chancellor’s opinion, that each item in the accounts was to to be treated as a payment pro tanto upon the notes, was departed from in drafting the decree; and interest calculated in reference to the times when the amounts of the accounts were allowed, appropriated and credited as payments, without regard to the dates of the several items in the accounts.
The Chancellor was inclined to the opinion that Chase should not be allowed the benefit of the statute of limitations, in consequence of his having been one of the Trustees, etc.
He was appointed a Trustee in June, 1849; at which time an action upon the notes was barred by the statute. The debt, according to the limitation law, as settled in this State, was then presumed to have been paid. It has been held by this Court, in a similar case, that the acceptance of the trust did not revive the barred debt: Faulkner et al. vs. Thompson, 14 Ark. 479. It was, perhaps, the duty of the administrators of both Chase and Lawson to interpose the statute of limitations as a defence to the suit. Rogers et al. vs. Wilson et al., 13 Ark. 507; Rector vs. Conway et al., present term.
If there was a moral obligation resting upon the sureties of Borden not to avail themselves of the benefit of the statute, under the peculiar circumstances disclosed in this case, they must answer to a higher tribunal for that. Our province does not extend beyond the settlement of the legal rights and duties of the parties.
The decree of the Court below is reversed, and the cause, remanded, with instructions to dismiss the bill as to appellants. | [
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English, Ch. J.:
In November, 1874, C. C. Scott & Co., a mercantile firm of Arkadelphia, sued Phillip Mann before a justice of the peace of Clark County, on an open account for $70.94. The account is made up of a good many items .for merchandise, charged as sold at various dates ranging from the 21st of April to the 11th of December, 1871, and a coffee mill is charged as of the last named date. The only credit upon the account is for one pair of pants returned June 24th.
The plaintiffs filed with the account an affidavit that the account was just and correct; that each article charged therein was purchased by defendant, that he agreed to pay the prices annexed, and that all just credits were entered thereon, and that the sum of $70.94 was justly due plaintiffs, with interest thereon at . 10 per cent, from the 11th December, 1871.
The defendant filed a counter affidavit, stating that the account was not just, that he was entitled to'credit for a bale of cotton, not credited thereon, which he expected to prove at the trial.
There were three mis-trials before the justice of the peace, the juries failing to agree; and on the fourth trial the verdict and judgment were in favor of the defendant, and the plaintiff appealed to the Circuit Court.
The cause was tried in the Circuit Court at the April Term, 1877, and a verdict returned by the jury in favor of the plaintiffs for $70.94 debt and $22.67 damages.
The defendant filed a motion for a new trial on the grounds (with others that need not be noticed):
“First — That when the defendant admitted the account on which plaintiffs sued, and when in consequence of said admission, the plaintiffs introduced no proof to sustain their suit, and when the defendant plead but one plea of payment of said account (there being no other plea in the case), and the burden of proof rested on the defendant, the court erred in refusing to his counsel the opening and concluding of the argument before the jury. „
“Second — That the verdict was contrary to law and the evidence.”
The court overruled the motion, and the defendant took a bill of exceptions, setting out the evidence, etc. Final judgment was rendered upon the verdict, and defendant appealed to this court.
The bill of exceptions shows thht upon the trial, the sole defense of the defendant was the plea of payment which he had relied on before the justice of the peace, and hence the plaintiffs introduced no evidence to prove the account sued on.
The testimony of the defendant, and witnesses introduced by him, conduced to prove that in December, 1871, and after he purchased the coffee mill of plaintiffs, he delivered to one of the plaintiffs in Arkadelphia a bale of cotton in payment of the account sued on.
On the contrary, the evidence introduced by the plaintiffs conduced to prove that defendant owed them an account for the year 1870, and delivered them a bale of cotton, in that year, in Settlement of that account, and had delivered to them no other bale of cotton.
No objection was made to the charge of the court to the jury.
The court instructed the jury: “That the correctness of plaintiffs’ account being admitted, if the jury believe from the evidence, that the bale of cotton received from defendant was in payment of the account of the year 1870, and was not received in satisfaction of the account of 1871, they might find for plaintiffs, etc.”
Also instructed them in regard to the impeachment of witnesses, their credibility as affected by their appearance, manner of testifying, relationship, etc., and as to the weight to be given to the prevailing number of witnesses, etc.
After setting out the instructions given by the court, the bill óf exceptions further states: “ That the defendant moved the court that he having admitted plaintiffs’ account, and having plead payment in satisfaction thereof, and the burden of the proof óf payment being on the defendant, he was entitled to claim the opening and the conclusion of the argument; which motion the court refused to grant, and the defendant at the time excepted; whereupon the court permitted the counsel of the plaintiffs to open and conclude the argument in the cause, to which defendant at the time excepted.”
Before the adoption of the Civil Code, the party on whom was the burden of proof, had the right to open and conclude the argument. Pogue v. Joyner, 7 Ark., 466. It was said in this case, that the question as to which party should open and conclude the argument, was one within the discretion of the court below, and not subject to the control of this court, unless the discretion should be abused to the prejudice of the parties ; but that under the issue made up between the parties, the onus probandi was upon the defendant, and he was entitled to begin, etc.
In Rogers et al. v. Diamond, 13 Ark., 480, the £ourt said the verdict must have been against the petitioner, in case no evidence had been offered, and the burthen of proof being upon him, he had the right to open and conclude.
By the Civil Code ,it was provided that the party having the burden of proof should have the conclusion, and the adverse party the opening, etc. Gantt’s Dig., sec. 4668, sixth clause.
This statute was in force when the case of Tobin et al. v. Jenkins et al., 29 Ark., 153, was before this court; and it was held that it was error in the court below to deny to the party who held the affirmative of the issue, the right to conclude the argument before the jury. That there is a decided advantage before a jury in having the concluding argument. That it was hard to estimate the extent of the wrong, where the light was. denied; but it was sufficient to say that it was a right and a privilege to which the party holding the affirmative was entitled.
By the act of 15th December, 1875 (Acts of 1874-5), the Code rule was amended and the former practice.restored. The act provides that the parties may submit or argue the case to the jury • and in the argument, the party having the burden of proof shall have the opening and conclusion, and if, upon the demand of his adversary he shall refuse to open and fully state the grounds upon which he claims a verdict, he shall be refused the conclusion. By Act of March 6th, 1877 (Acts of 1877, p. 31), the same rule was adopted for criminal cases.
The court must of course determine, if there is any controversy on- the subject, on which party the burden of proof rests, and when that is settled, the statute gives him the right to open and conclude the argument.
In this case the bill of exceptions shows that appellant relied for defense solely upon the plea of payment. This was a plea in confession and avoidance. If no proof payment had been introduced at the trial, appellees (plaintiffs below), would have been entitled to a verdict, and the onus probandi wals, therefore, most clearly, upon the appellant, and he had the right to open and conclude the argument before the jury.
The erroneous denial of this right, might not, in all cases, be ground of reversal. But in this case, the testimony of the witness as to the payment of the account sued on by the delivery of the bale of cotton being in conflict, the argument before the jury may have been prejudicial to him.
The litigation has doubtless been unprofitable to both parties, and we would willingly terminate it, if we could affirm that the judgment of the court below was right upon the whole record. But as appellant may have been prejudiced by the refusal of the court below to permit him to open and conclude the argument, we feel constrained to reverse the judgment and remand the cause for a new trial. | [
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English, Ch. J.:
•On the second day of the May Term of the Circuit Court of Jefferson County, 1877, John H. Talbot presented to the court the following petition:
“ To the IJon. John A. Williams, Judge, etc.:
“Your petitioner, John H. Talbot, would very respectfully represent and show unto your Honor that he, on the 25th day of October, 1875, made and entered into a bond in the sum of ten thousand dollars, as surety for Alexander T. Moon, as Treasurer of the County of Jefferson, and that said bond is now on the files of this court, awaiting approval. Your petitioner would very respectfully show unto your Honor that being on said bond as surety is incompatable with his commercial business, your petitioner being a merchant at the City of Pine Bluff; and he says that for these reasons he very respectfully petitions your Honor to release him from said bond, by appropriate order; and that a new bond may be given, and he will ever pray,” etc.
The petition was sworn to before a justice of the peace, 24th November, 1876.
At the foot of the petition, and below the affidavit, is the following :
“We covenant and agree to the granting of the foregoing petition. W. L. Packard.
C. H. Rice.
A. T. Moon.
Maegabet Rice.”
On Monday, June 4th, the .following record entry was made :.
“■■On this day comes the petition of John H. Talbot, to be released from the bond of A. T. Moon, as County Treasurer of the County of Jefferson, to be heard, and after argument it is by the eourt ordered, considered and adjudged that said -petition be denied on account of insufficiency of the reasons set forth therein for the relief asked for.”
On the 20th of June, there was a record entry that the petitioner excepted to the ruling of the court in refusing to grant said petition, and prayed an appeal to the Supreme Court, which was granted.
There was no bill of exceptions bringing any facts upon the record. The petition, and the above record entries are all that appear in the transcript before us.
The statute requires the County Treasurer, twenty days from the receipt of his commission, to enter into bond, with good and sufficient security to the State, etc., etc. Gantt’s Dig., sec. 1028. (Acts of 1877, p. 10.)
The bond is required to be approved by the Circuit Court; but the Judge of the court, or the County Judge, may approve the bond in vacation, subject to confirmation or rejection by the Circuit Court, in term. Acts of 1874-5, p. 192.
We may suppose that Alexander T. Moon was elected Treasurer of Jefferson County, at the general election in the fall of 1876, and entered into bond, with appellant as one of his sureties i that his bond was appoved by the Circuit Judge or County Judge, in vacation, and was on file and awaiting confirmation by the Circuit Court in term, at the time appellant filed his petition to be released from the bond. Moon, doubtless, had acted as Treasurer under the bond from the time of its approval, in vacation, to the time of the application of appellant to be released.
It was not in the power of the court to release him from any liability which had already accrued upon the bond.
Counsel for appellant say that Moon, the principal in the bond, and the other sureties, consented, in writing, for appellant to-be released.
We find no evidence in the transcript that such was the fact.
The bond is not in the transcript, nor does it appear who the other securities are.
We find written at the foot of the petition, as above shown: “ Yfe covenant and agree to the granting of the foregoing petition,” which purports to have been signed by W. L. Packard, C. H. Rice, A. S. Moon and Margaret Rice, but whether these persons in fact signed this writing, or whether any of them are sureties in the bond, or the only sureties, does not appear in the transcript.
But the court had no power to release appellant from any liability he may have incurred as surety on the bond, if a-11 his co-securities and Moon consented to his release, because the bond was made to the State, and the public had an interest in it.
The court had the discretion, however, upon the application of appellant, and upon a satisfactory showing, to require Moon “to give a new bond and security for the performance of his official duties,” and upon the execution and approval, etc., of such new bond, appellant would be discharged from future, but not past liabilities. Gantt’s Dig., sec. 5705-5711.
Such, perhaps, was the intention of appellant’s application, but the court below deemed the showing insufficient, and refused to make an order upon Moon to execute a new bond.
There was no showing in the petition that Moon was incompetent, insolvent, or guilty of any official misconduct, or that he was in any manner failing to discharge, with fidelity, the duties of his office. Dempsey v. Fenno, 16 Ark., 491.
The only showing made was, that appellant was a merchant, and it was incompatible with his commercial business to remain as surety upon the bond of Moon.
We cannot undertake to say that the court below abused its discretion in refusing the prayer of appellant upon such a showing. Affirmed. | [
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CLIFF HOOFMAN, Judge.
| ,This appeal returns after we ordered rebriefing. Metro Empire Land Ass’n, LLC v. Arlands, LLC, 2012 Ark. App. 132, 2012 WL 386757. Appellants Metro Empire Land Association, LLC, Garland Trice, and Leoma Lambert bring this appeal from the order of the Jefferson County Circuit Court that granted summary judgment in favor of appellee Ar-lands, LLC, on its suit to quiet title to property purchased at a tax sale conducted by appellee Mark Wilcox, the commissioner of state lands. They assert that the circuit court erred in granting summary | ¡judgment and argue that Arlands failed to establish the absence of genuinely disputed facts or that it was entitled to judgment as a matter of law.
The property involved in this litigation is located at 1414 W. 6th, Pine Bluff, Arkansas, and was acquired by Metro in December 2000. The property was certified to the commissioner for nonpayment of taxes in May 2003. In August 2003, a Notice of Delinquent Real Estate Taxes was mailed, via certified mail, return receipt requested, to Metro at its business address, 901 Belmont Drive, Pine Bluff, Arkansas. The notice was returned to the commissioner unclaimed.
Two notices were mailed, via certified mail, on January 10, 2005. The first was addressed to Metro in care of Leoma Lambert at 901 Belmont Drive, Pine Bluff, Arkansas. According to the records of the Arkansas Secretary of State, Lambert was Metro’s agent for service. This notice was also returned to the commissioner unclaimed. The other notice was mailed to the current residents of the subject property. This letter was received, but the signature on the receipt returned to the commissioner was illegible.
On April 25, 2005, the commissioner published a Notice of Public Sale informing the public that the property would be sold at auction on May 24, 2005. Arlands purchased the property at the tax sale. The commissioner issued a limited warranty deed to Arlands on June 28, 2005, and it was recorded in the Jefferson County Circuit Clerk’s Office on July 6, 2005.
Arlands filed the present action to quiet title to the property on October 13, 2005. Metro filed an answer, a counterclaim, and a third-party complaint in response to the |scomplaint. In its answer, Metro asserted that the commissioner failed to conduct the sale in accordance with the law; that it did not receive actual or constructive notice of the offer to sell the property; and that it failed to receive actual or constructive notice of its right to redeem the property. Both the counterclaim and the third-party complaint alleged that the fair-market value of the property was in excess of $60,000, but sold for $21,000. Metro also asserted that it was never given actual notice that the property was being forfeited, notice of the sale, or notice of its right to redeem. Metro later amended its counterclaim to assert claims for damages under the Betterment Statute and for unjust enrichment.
On April 3, 2006, a partial decree quieting title to the subject property was entered by the circuit court. The order indicated that “[t]he issues which have been raised by [Metro] as set forth in its Answer to the complaint and its Third Party complaint against [the commissioner] shall be reserved and subject to further adjudication before this Court at a subsequent hearing.”
Arlands filed a motion for summary judgment on August 31, 2006. Metro asserted in response that the United States Supreme Court, in a case arising in Arkansas, held that due process required that actual notice be given to a property owner before his property could be sold for delinquent taxes. Arlands later withdrew the motion when it appeared that the receipt J^for the certified-mail notice was for a different parcel of land.
On September 27, 2007, Arlands amended its motion for summary judgment. Metro again relied on Jones v. Flowers to contend that actual notice was required. Metro also submitted affidavits from Trice and Lambert in which they denied receiving notice that the property was being forfeited for nonpayment of taxes or that they had the right to redeem the property.
A hearing on the motion for summary judgment was held on November 12, 2010. Following the hearing, the circuit court issued a letter opinion dated November 15, 2010, that granted the motion for summary judgment and quieted title in Arlands “[f]or the reasons stated in [Arlands’s] Motions and Brief.” The court declined to address the issues of whether Metro was entitled to a post-sale notice or the adequacy of the legal description because they were not raised in a timely fashion. The court’s decree was entered on December 1, 2010. Metro filed a timely notice of appeal.
Our supreme court has set forth the following standard of review with regard to motions for summary judgment:
Our standard of review for summary judgment cases is well established. Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. We no longer refer to summary judgment as a drastic remedy and now simply regard it as one of the tools in a trial court’s efficiency arsenal. Once the moving party has established a prima facie ^entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Moreover, if a moving party-fails to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the non-moving party presents the court with any countervailing evidence.
Harvest Rice, Inc. v. Fritz & Mertice Lehman Elevator & Dryer, Inc., 365 Ark. 573, 575-76, 231 S.W.3d 720, 723 (2006) (citations omitted). The standard is whether the evidence is sufficient to raise a fact issue, not whether the evidence is sufficient to compel a conclusion. Wagner v. General Motors Corp., 370 Ark. 268, 258 S.W.3d 749 (2007). A fact issue exists, even if the facts are not in dispute, if the facts may result in differing conclusions as to whether the moving party is entitled to judgment as a matter of law. Id. In such an instance, summary judgment is inappropriate. Id. The issue of notice given to a party with an interest in tax-delinquent land is a matter of statutory interpretation, which we review de novo on the record. Esterosto, LLC v. Kinsey, 2010 Ark. App. 429, 374 S.W.3d 907; Jarsew, LLC v. Green Tree Servicing, LLC, 2009 Ark. App. 324, 308 S.W.3d 161.
For reversal, Metro argues three points, all addressing the proposition that the circuit court erred in granting summary judgment to Arlands. The three specific points are (1) that Arlands failed to establish the absence of disputed facts so as to justify summary judgment; (2) that Ar-lands failed to establish that it was entitled to summary judgment as a matter of law; and (3) that the evidence was insufficient to support any judgment in favor of Ar-lands.
Metro first argues that Arlands’s motion for summary judgment should be denied | Rbecause Arlands failed to set forth the facts that it considered to be undisputed. Metro relies on Arkansas Rule of Civil Procedure 56(c)(1), which provides in pertinent part that the motion “shall specify the issue or issues on which summary judgment is sought.” However, this court has held that there is no requirement that a statement of undisputed facts accompany the motion. Davis v. Little Rock Sch. Dist., 92 Ark.App. 174, 211 S.W.3d 587 (2005). Metro has, therefore, shown no basis for reversal on this point.
In its brief, Metro also raises several issues that it contends are disputed, including whether the legal description contained in the notice was proper and the lack of a post-sale notice that Metro was entitled to redeem the property. The circuit court asked Metro whether it had raised these issues in its pleadings. Metro admitted that it had not raised the property-description issue, and the court specifically declined to address those issues because they were not properly raised. The failure to obtain a ruling precludes appellate review because there is no order of a lower court on the issue for this court to review on appeal. Hendrix v. Black, 373 Ark. 266, 283 S.W.3d 590 (2008); Baker v. Rogers, 368 Ark. 134, 243 S.W.3d 911 (2006). Moreover, the requirement of post-sale notice of the right to redeem tax-delinquent property was added in 2007, long after the property in the present case was sold by the commissioner to Arlands, and the pre-sale notices that were sent in this case did advise that the property could be redeemed prior to the sale date by payment of all taxes, interest, penalties, and costs prior to the scheduled May 24, 2005 sale date.
The primary defense Metro asserted in its response to the motions for summary judgment was whether due process required actual notice to the property owners prior to taxjdelinquent7 property being sold by the commissioner.
Under Arkansas law, the commissioner was required to “notify the owner, at the owner’s last known address as certified by the county, by certified mail, of the owner’s right to redeem by paying all taxes, penalties, interest, and costs, including the cost of the notice.” Ark.Code Ann. § 26-37-301(a)(l) (Supp.2011). In this case, the commissioner mailed notice to Metro at its business address by certified mail. The commissioner also mailed notice to Metro in care of Lambert at that same address. Both notices stated that the property would be sold on May 24, 2005, and that the property could be redeemed prior to the sale date by payment of all taxes, penalties, interest, and costs. Both notices were returned to the commissioner. Metro argues that the commissioner was required to take additional steps once the notices were returned. However, the commissioner did take additional steps by sending a third notice addressed to the current residents of the property. Metro ignores this fact in its brief and, in fact, states that no further action was taken by the commissioner. This third notice was received, and a receipt was returned to the commissioner. The signature on the receipt was not clearly legible, and although Arlands contends that Trice signed for this third notice, Metro disputes that allegation. Metro does not argue that this creates an issue of fact that precludes summary judgment.
Arlands contends that this case is controlled by our decision in Esterosto, supra. In that case, the appellees owned real property that was certified as tax delinquent, and the commissioner sent notice of the delinquency by certified mail to the appellees’ home address. The return receipt card was signed, illegibly, and returned to the commissioner. Thereafter, |sa second notice was sent by certified mail to the actual address of the delinquent property. This notice was returned with the notation, “no such number.” The appellant bought the property several years later in a negotiated sale with the commissioner and filed suit to quiet title to the property. The circuit court denied the petition, finding the appellees’ testimony that they did not receive actual notice of the tax sale to be credible. This court then reversed the circuit court’s decision, holding that there was no dispute that the commissioner had fully complied with the statutory requirements by mailing notice to the appellees’ residence and that, although the statute in effect at that time did not require a return receipt, a receipt was signed and returned to the commissioner, albeit illegibly. Esterosto at 4-5, 374 S.W.3d at 909-10. We held that the Due Process Clause did not require the commissioner to investigate every signature to insure that it is in fact the signature of the property owner. Id. at 7, 374 S.W.3d at 911.
Metro argues that Esterosto is at odds with the United States Supreme Court’s decision in Jones v. Flowers, supra, which, according to Metro, requires actual notice to property owners. However, we have rejected that argument in several cases, including Esterosto, each citing to the language in Jones itself that due process does not require that a property owner receive actual notice. See Esterosto, 2010 Ark. App. 429, at 6, 374 S.W.3d at 910-11; Morris v. LandNPulaski, LLC, 2009 Ark. App. 356, at 6, 309 S.W.3d 212, 216; Jarsew, 2009 Ark. App. 324, at 5-6, 308 S.W.3d at 164. Metro also argues that Esterosto is distinguishable in that there were no unclaimed notices in that case as there were in the present case. This distinction is irrelevant because, once the notices were returned in the present case, the commissioner 19complied with due-process requirements and took the further step of sending notice, which was received, to the current resident of the property.
Metro further contends that Ark.Code Ann. § 26-37-301(e)(l) (Supp.2011) requires actual personal service of notice. Section 26-37-801(e)(1) provides as follows:
If the Commissioner of State Lands fails to receive proof that the notice sent by certified mail under this section was received by the owner of a homestead that is tax-delinquent land, then the Commissioner of State Lands or his or her designee shall provide actual notice to the owner of a homestead by personal service of process at least sixty (60) days before the date of sale.
Metro’s contention is without merit for two reasons. First, there was no evidence that the property at issue in this case was a “homestead,” a term that is defined in Ark.Code Ann. § 26 — 26—1122(a)(1) (Supp. 2011). Second, the situation under which actual notice is required pursuant to this subsection is where the commissioner fails to receive proof that the certified-mail notice was received. In the present case, a signed receipt, indicating that the notice was received, was returned to the commissioner. Therefore, the trigger requiring actual notice was not met.
Affirmed.
GLOVER and ABRAMSON, JJ., agree.
. Trice and Lambert were the members of Metro. They were allowed to intervene when, subsequent to the sale to Arlands, Metro lost its charter for failure to pay corporate franchise taxes. Trice and Lambert adopted by reference the pleadings Metro had filed.
. Wilcox was commissioner of state lands until January 2011, when he was succeeded by the current commissioner, John Thurston. Pursuant to Rule 25(d) of the Arkansas Rules of Civil Procedure, when a public officer is a party to an action in his official capacity and during its pendency ceases to hold office, the action does not abate and his successor is automatically substituted as a party. Ark. R. Civ. P. 25(d); Fisher v. Chavers, 351 Ark. 318, 92 S.W.3d 30 (2002).
.Although Metro raised these issues in its pleadings, it did not argue them before the circuit court. The circuit court’s decree denied the counterclaim and all other pending motions with prejudice. Moreover, Metro does not argue the issue on appeal, other than briefly mentioning the claims in its statement of the case and conclusion, resulting in the abandonment of those issues. See Turnbough v. Mammoth Spring Sch., 74 Ark.App. 107, 45 S.W.3d 430 (2001).
. Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006).
. It appears that Metro submitted the same affidavits, dated September 18, 2006, from Trice and Lambert in response to Arlands’s original and amended motion for summary judgment. | [
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English, Ch. J.:
Elias Nelson was indicted for perjury in the 'Circuit Court of Drew County, the indictment charging the offense in the manner following:
“ Said Elias Nelson, in the county aforesaid, on or about the 9th day of August, 1876, did, on his examination as a witness, duly sworn by R. C. Knox, a duly commissioned and acting justice of the peace, in and for Clear Creek Township in said county and State, to testify the truth, the whole truth and nothing but the truth, on an examination before a jury of inquest over the dead body of one Adam Pippin, in said county, and before said R. C. Knox, a justice of the peace as aforesaid, which justice of the peace had authority to administer such oath, falsely and corruptly testify that one Henry Harris was at his (the said Elias Nelson’s) house on Wednesday evening, August 9th, 1876, that he'ate supper there at his house, that he,-the said Henry Harris, was there from that time until bedtime, and then went to bed there, the matters so testified being material in this, that he swore Henry Harris was at his (said Elias Nelson’s) house, when the said Henry Harris at the said time was not at said Elias Nelson’s house, and the testimony being wilfully and corruptly false, contrary to the statute and against the peace and dignity of the State,” etc.
On the trial, R. C. Knox, witness for the State, testified, that he was a justice of the peace.' That on the 10th of August, 1876, he held an inquest over the dead body of Adam Pippin; had a regular jury empanelled and acted as coroner. The prisoner, Elias Nelson, was examined as a witness at the inquest, and swore .that Henry Harris ate supper at his house on the evening of the 9th of August, was there at sundown, at bed time, and staid there all night. That they ate supper about dark, and went to bed about 8 or 9 o’clock, and that Henry Harris was there at the times above stated. The inquest was held in Drew County.
Defendant objected to oral testimony as to what he swore at the inquest.
The State then proved that no record of the testimony before the coroner’s jury was kept, and the court admitted oral testimony and defendant excepted.
Neely King, witness for the State, testified that he was on the jury that held the inquest. That defendant was sworn as a witness, and stated that Henry Harris was at his house at sundown, and ate supper there on the 9th of August, 1876, and went to bed and staid there all night. That they ate supper between sundown and dark.
Evi Pippin, witness for the State, testified that she was at defendant’s house on the evening and night of August 9th, 1876, there at sundown, at dark, ate supper there, and went to bed there; and that Henry Harris was not there at sundown, did not eat supper there, was not there at dark, nor at bed time, but came there late in the night, and staid there the balance of the night.
Andrew McNeely, witness for the State, testified, that he lived at defendant’s on the 9th of August, 1876. Not in the same house, but in the yard. Was at his house at sundown, at dark and at supper time, and Henry Harris was not there at bed time, or at any of the times above stated.
The above was all the evidence introduced on the trial:
On behalf of the 'State, the court instructed the jury as follows :
“ First. — Perjury is the wilful and corrupt swearing, testifying or affirming falsely to any material matter in any court, matter or proceeding before any court, tribunal, body corporate or other officer having by law authority to administer oaths.
“Second. — If the jury believe from the evidence that the defendant Elias Nelson swore falsely to a material fact, as charged in the indictment, they must find him guilty as charged, and assess his punishment at not less than five nor more than fifteen years in the State penitentiary.”
The defendant moved the court to give the following instructions :
“ First. — Under the testimony in the case it does not appear that the statements made by the defendant before the coroner were material, and the jury must acquit.
“ Second. — It was not material where Henry Harris was at supper time on the 9th day of August, 1876, and a false statement as to this, is not sufficient to convict the defendant.
“Third. — The defendant is entitled to the benefit of all reasonable doubts.”
The court gave the third, refused the second, and refused to give the first instruction as asked, but modified it to read as follows:
Under the testimony in this case, if it does not appear from the testimony, that the statements made by the defendant before the coroner were material, then the jury must acquit.
After the jury had been out for some time, they returned into court, and announced that they could not agree, and being asked by the court as to the difficulty, the foreman stated that it was as to the materiality of the testimony (of defendant before the coroner).
The court then, by consent of counsel, read to the jury sec. 1415 of Gantt’s Digest. [The first instruction given by the court at the instance of the State, and copied above, is in the language of this section of the Digest.]
After reading this section, the court remarked to the j ury that: “A man can be convicted for swearing falsely before a coroner as well as before any other officer, if the proof justifies it.”
The jury again retired, and returned a verdict. finding the defendant guilty as charged in the indictment, and fixed his punishment at imprisonment in the penitentiary for five years.
He filed motions for a new trial and in arrest of judgment, which were overruled, and he took a bill of exceptions, setting out the evidence, instructions, etc.
He was sentenced in accordance with the verdict, and prayed an appeal, which was allowed by one of the judges of this court.
I. In the absence of the coroner, or if he reside more than twenty miles from the place where any person is found dead, etc., an inquisition may be taken by the nearest justice of the peace, who is invested with full power and authority to do and perform all things required of a coroner. Gantt’s Dig., sec. 907.
The coroner has power to hold inquests over dead bodies, empanel juries, swear and examine witnesses, inquire into the'cause and manner of death, cause suspected persons to be arrested, inquire'as to their guilt, make committals, etc. Gantt’s Dig., ch. 30.
The testimony of each witness, examined at such inquest, is required to be reduced to writing, if material, read to and signed by the witness. Sec. 885-6.
It seems that the testimony given by the appellant before the justice of the peace, who acted as coroner in holding the inquest over the dead body of Adam Pippin, was not reduced to writing. The court below did not therefore err in admitting oral evidence to prove what he swore at the inquest. It was the best evidence that could be produced. 3 Arch. Cr. Prac. and Plea., 603.
II. The object of the coroner’s inquest was no doubt to ascertain when, where and by what means Adam Pippin came to his death, whether he died a natural death, or by some criminal agency ; and if any person was suspected or arrested for criminal agency in his death, fto enquire as to the guilt or innocence of such person.
It was proven by the State, on the trial, that an inquest 'was held over his dead body, in Drew County, on the 10th of August, 1876, and this is all that was proven in relation to his death.
It was not proven that Henry Harris was arrested for or suspected of any criminal connection with the death of Pippin, or that his guilt or innocence was in any manner the subject of inquiry before the coroner’s inquest.
It was proven that appellant swore at the inquest, that Henry Harris was at his house on the evening of the 9th of August, 1876, ate supper, and remained there during the night, and there was evidence conducing to prove that this statement was false, but there was no evidence to prove that the whereabouts of Henry Harris during that particular evening and night, was material to any matter that was the proper subject of inquiry by the coroner or his jury.
The materiality of the testimony on which perjury is assigned, must be established by evidence, and cannot be left to presumption or inference. The State v. Aikins, 32 Iowa, 403.
Proof that the testimony on which the perjury is assigned in this case, was admitted before the coroner’s inquest, was not sufficient to warrant the jury to infer that such testimony was material. It often happens that immaterial testimony is admitted on trials and inquests. Commonwealth v. Pollard, 12 Metcalf, 225; 3 Wharton Cr. L., sec. 2232, (6th ed.)
We can imagine a state of case made before the coroner in which appellant’s testimony might have been material. If Henry Harris was suspected of killing Adam Pippin, and the coroner’s jury was making inquiry as to the matter, and it was. proven that Pippin was killed on the evening, or early in the night of the 9th of August, 1876, then testimony that Henry Harris was at the house of appellant at the time Pippin was. killed, would have been material to exculpate Harris.
But we are not at liberty, neither was the jury on the trial below, to imagine such a case made before a coroner, in order to. show the materiality of appellant’s testimony and warrant his conviction of perjury.
III. The first instruction given to the jury, at the instance of the State, is in the language of the statute defining perjury,, and of course is unobjectionable.
The second, when taken in connection with the first, is well enough; but, as a separate proposition, it is not good law. A man may “ swear falsely to a material fact,” and not be guilty of perjury. The false oath must be taken wilfully and corruptly. Green v. State, 41 Ala., 422. 1 Bishop Cr. L., sec. 233.
The refusal of the second instruction moved for appellant, and the modification made to the first, indicate that the court below was of the opinion that whether the testimony proven to have-been given by appellant before the coroner’s inquest was material,, was a question of fact for the jury, and not of law for the court to determine.
When there is no dispute about the facts sworn to, the question whether the testimony on which perjury is assigned is material, is a question of law to be decided by the court, and not of fact to be passed on by the jury. Power v. Price, 16 Wend., 450; 12 Id., 500; Stinman v. McWilliams, 6 Barr., 177.
If the jury were in doubt whether perjury might be assigned upon a false oath taken before a coroner, as well as any other officer, the remark made to them by the court after reading to them the statute defining perjury, was not objectionable.
IV. As to the sufficiency of the indictment:
Perjury is a felony, and the crime is not charged to have been feloniously committed. Milan v. State, 24 Ark., 348; Edwards v. State, 25 Ark., 446; Mott v. State, 29 Ark., 149.
The indictment sets out the matter of the false oath, but does not directly allege that it was material to the issue, or to any matter that was the subject of inquiry by the coroner’s inquest.
Either from the facts alleged, or by direct averment, the evidence, which is charged as having been false, must appear to have been material to the issue. But it is sufficient that this appears in one of these modes; it need not be made so to appear by both, 2 Bishop Cr. Pro., sec. 854.
It does not appear from the facts alleged that the testimony of appellant before the inquest was material. The indictment undertook to show how it was material, but failed in the effort, thus : “ The matters so testified being material in this, that he swore Henry Harris was at his (said Elias Nelson’s) house, when the said Henry Harris, at said times, was not at said Elias Nelson’s house.” This was a non sequiter. It did not follow that it was material because false.
The State failed to prove the materiality of the testimony on which the perjury was assigned, and the indictment was not good in substance.
The judgment must be reversed and the cause remanded, and appellant may be held for a new indictment, if the State desires to prosecute further. | [
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English, Ch. J.:
On the 17th of March, 1877, Clifford L. Summers, assignee, sued James R. Pettigrew, George H. Pettigrew and Zebulon M. Pettigrew, obligors, and George W. Barnett, assignor, in the Circuit Court of Washington County, on,the following writing obligatory.
"Thirty days after date we or either of us promise to pay George W. Barnett, four hundred and fifty three dollars and sixty cents for value received, negotiable and payable without defalcation or discount in United States Currency, with interest at ten per cent, per annum from date. This 12th day of October, 1876. J. R. Pettigrew. [seal.]
Geo. H. Pettigrew, [seal.]
Z. M. Pettigrew. [seal.]”
Endorsed: "For value received, I assign the within note to C. L.. Summers. George M. Barnett.”
The defendants pleaded in abatement a variance between the writ and complaint as to the Christian names, or initials, of some of the parties; the court permitted the plaintiff to amend the complaint so as to correspond with the writ, and then overruled the plea.
Motions were also filed to quash the writ because it was directed to and served by the Coroner, which were heard and overruled by the court.
The defendants making no further defense, the court, on the 11th day of May, 1877, rendered the following judgment :
“It is therefore considered by the com’t that said plaintiff have and recover of said defendants the of sum four hundred and fifty three dollars and sixty-one cents for his debt, and the sum of twenty six dollars and forty-six cents, for his damages by way of interest, and that this judgment draw interest at the rate of ten per cent, per annum from this date, and that said plaintiff recover from said defendants all his costs herein.”
Defendants appealed.
The legal effect of the contract sued on is, that the obligors agreed to pay interest on the debt at the rate of 10 per cent, per annum from the date ©f the obligation for thirty days, the time of its maturity, and the contract being silent as to the rate of interest to be paid on the debt after due, the words “until paid” being omitted in the interest clause, the debt bore the legal rate of interest only after maturity, as held in Newton v. Kennerly, 31 Ark., 626; and Rogan v. Bell et al., ante.
This judgment should have been for the debt $453.61, and for damages $17.38, made up of 10 per cent, interest upon the debt for thirty days from the date of the note (to the 11th November,) and of 6 per cent, upon the debt from that day until the day of the entering of the judgment.
Inasmuch as the note bore but 6 per cent, interest at the time the judgment was rendered, the debt and damages should have been made to bear that rate of interest, instead of 10 per cent, from the date of the judgment until paid.
Error appearing upon the face of the judgment, it must be reversed to the extent of the excess of interest allowed, as above indicated, with a mandate to the court below to modify its judgment accordingly. Badgett v. Jordan, ante. | [
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WH. “Dub” Arnold, Chief Justice.
Appellant Denise Kaye Chapman brings this appeal from Baxter County, Arkansas, Circuit Court alleging that the trial court erred in sustaining a motion by Wal-Mart Stores, Inc., for summary judgment, that the trial court erred in holding that placing a children’s horse carousel next to an area determined to pose a pedestrian hazard from intruding vehicles and not extending a protective barrier to include the carousel did not create a question of fact for the jury on the issues of foreseeability and negligence, and that the trial court erred as a matter of law and abused its discretion in failing to certify the case pursuant to Rule 54(b). However, we do not reach the merits of this case because the appeal is not from a final, appealable order as required by Ark. R. Civ. P. 54(b) (2002). We therefore dismiss this appeal for lack of finality.
Because we do not address the merits of this case, we only recite the facts as they pertain to the issue of finality. This case arose from an action involving the wrongful death of six-month-old Nathaniel Chapman and the amputation of two-year-old Jonathan Chapman’s leg, which occurred from a store-front collision on June 7, 1995 at the Mountain Home Wal-Mart Store. The children were riding a small horse carousel in front of WalMart when a car accelerated out of control of its driver, an elderly store patron, Marlene Fett. The vehicle sped across the parking lot and struck the carousel, killing Nathaniel and severing Jonathan’s right leg.
Chapman brought suit against Marlene Fett and Wal-Mart Stores, Inc., alleging Fett was negligent in failing to maintain control of her vehicle, and that Wal-Mart was negligent in placing a horse carousel for children in an exposed and unprotected area adjacent to a parking lot. Chapman later filed a second amended complaint adding Ford Motor Company alleging Ford was negligent in a variety of areas concerning the vehicle Fett was driving. Prior to trial, Chapman settled with Fett out of court. Wal-Mart moved for summary judgment on the ground that, as a matter of law, it owed no duty to install barriers between the sidewalk and the parking lot.
The trial court granted Wal-Mart’s motion for summary judgment on the ground that the event which killed and crippled Chapman’s children was unforeseeable per se. Chapman moved for reconsideration or, in the alternative, for certification of an interlocutory appeal pursuant to Rule 54(b). The trial court denied the motion and refused to certify the judgment as final. Chapman has not dismissed her claims against Ford Motor Company, nor has any final judgment been entered on those claims.
Rule 54(b)
Arkansas Rule of Civil Procedure 54(b) states:
(1) Certification of Final Judgment. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination, supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment. In the event the court so finds, it shall execute the following certificate, which shall appear immediately after the court’s signature on the judgment, and which shall set forth the factual findings upon which the determination to enter the judgment as final is based. . .
(2) Lack of Certification. Absent the executed certificate required by paragraph (1) of this subdivision, any judgment, order, or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the judgment, order, or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all of the parties.
Ark. R. Civ. P. 54(b).
This court has held that, without certification, this court lacks jurisdiction and the order is not appealable. Dodge v. Lee, 350 Ark. 480, 88 S.W.3d 843 (2002); Eason v. Flannigan; 349 Ark. 1, 75 S.W.3d 702(2002); Norman v. Norman, 342 Ark. 493, 30 S.W.3d 83 (2000); Stockton v. Century Ins., 332 Ark. 417, 965 S.W.2d 762 (1998). The policy reason behind the rule is to avoid piecemeal appeals. Eason, supra. Even though an issue might be an important one, if the decision does not conclude the merits of a case, then an appeal would be premature, Id. As this court stated in Dodge, “although Rule 54(b) provides a method by which the trial court may direct entry of final judgment as to fewer than all of the claims or parties, where there is no attempt to comply with Rule 54(b), the order is not final and we must dismiss the appeal.” Id.
Chapman argues that this court has jurisdiction under Rule 2 of the Arkansas Rules of Appellate Procedure — Civil, which states in part:
(a) An appeal may be taken from a circuit court to the Arkansas Supreme Court from:
1. A final judgment or decree entered by the circuit court
2. An order which in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action
11. An order or other form of decision which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties in a case involving multiple claims, multiple parties, or both, if the circuit court has directed entry of a final judgment as to one or more but fewer than all of the claims or parties and has made an express determination, supported by specifc factual findings, that there is no just reason for delay, and has executed the certificate required by Rule 54(b) of the Rules of Civil Procedure
Italics added. Ark. R. App. P. — Civ. 2. However, the execution of the certificate as required by 54(b) is lacking in this case. Therefore, under the plain language of Rule 2, the lack of certification bars an appeal of the order.
In the instant case, Chapman brought action against WalMart, Fett, and Ford Motor Company. The trial court granted Wal-Mart’s motion for summary judgment, and Chapman has settled her claim against Fett. The claim against Ford Motor Company has not been resolved, and therefore the trial court refused to certify its order that dismissed the case against Wal-Mart with prejudice because the case against Ford Motor Company has not been adjudicated and the claims are still pending. Without the trial court’s certification of its judgment, there is no final judgment, and without a final and appealable order, this court lacks jurisdiction pursuant to Rule 54(b).
Appeal dismissed.
Corbin and Imber, JJ., not participating. | [
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English, Ch. J.:
A. J. Wheat sued W. P. Hughes before a justice of the peace of Jefferson County on an open account for $40.
The cause was tried (on change of venue) before Justice Benjamin F. Fall on the 20th December, 1875; a set off for $10 was ■ allowed defendant, and judgment rendered in favor of plaintiff 'for $30.
On the 24th of December, 1875, the defendant prayed an appeal to the Circuit Court, and, upon filing an affidavit, and executing a stay bond, the appeal was granted.
The stay bond appears to have been approved by the justice on the day of the granting of the appeal, but was not marked filed by him.
The term of the Circuit Court next after the appeal commenced, it appears, on the 8th of May, 1876.
At what time the justice filed his transcript, and the original papers of the case, in the clerk’s office, does not appear, as the clerk seems not to have marked them filed.
It appears, however, that the cause was placed on the docket as early as the 25th of May, 1876, seventeen days after the commencement of the term, for, on that day, the court made an order continuing it.
On the next day, on the motion of the plaintiff, the order of continuance was set aside; and, on the 31st of May, 1876, he filed a motion to dismiss the appeal on the following grounds:
“First — The papers in this case were not filed on or before the first day of this term of this court as required by law.
“Second — There have been no papers filed in this case in this court.
“Third — There has been no perfect bond filed, or attempted to be filed, in this case, in the court below or in this court.”
On the 9th of June, same term, a rule was made upon Justice Fall, commanding him to transmit, at once, a complete transcript of all docket entries shown on his docket in the case, if he had not already done so, and to report the facts in regard to the case.
On the same day the justice made the following response to the rule:
“To his honor, etc. Your orator says that having carefully examined the transcript of proceedings herein, he cannot find any change or amendment necessary to be made in order to conform to the truth as to the proceedings had, except the transcript fails to show that the appeal bond was approved and filed as required bylaw. ' Your orator asks that the appeal bond be admitted to the files approved nunc pro tunc.”
On the next day the motion to dismiss was heard, and the court sustained the motion, and dismissed the appeal.
Defendant filed a motion to set aside the order of dismissal on the grounds:
“First — That he filed an affidavit and appeal bond before, the justice, etc.
“Second — He had a good defense to the action.
“Third — It was not his fault that the papers were not filed in ' the office of the clerk on or before the first day of the term.”
The court overruled the motion, and defendant appealed to-this court. No bill of exceptions.
We cannot suppose that the court below dismissed the appeal because of the failure of the justice to mark the stay bond filed.. A docket entry made by the justice, and copied in his transcript, shows that the bond was entered into by appellant and his sureties before the appeal was granted, and the justice wrote upon the bond: “Approved,'December 24, ’75” (the date of the appeal), and signed it officially. Had the bond been essential to the appeal, the court coidd, and no doubt would, if deemed necessary, have ordered the justice to amend by marking the bond filed as of the day on which it was approved by the justice, which was suggested by him in his response to the rule. But the appellant had the right to appeal from the judgment of the justice without giving any bond, the object of the bond being merely to stay execution of the judgment pending the appeal, • and this no doubt the court below knew, being plainly so provided by the statute. Gantt’s Digest, sec. 3822.
Nor can we suppose that the court below dismissed the appeal because of the failure of the clerk to mark filed the transcript, and papers in the case returned to his office by the justice. No doubt if appellant had so moved, the court would have directed the clerk to cure such omission, by endorsing the transcript and papers filed as of the day on which they w'ere in fact lodged in his office by the justice. But no such motion appears to have been made by appellant.
The court doubtless dismissed the appeal becauso*’the transcript and papers were not filed in the' office of the clerk on or before the first day of the next term of the court after the appeal was taken, as required by the statute (Gantt’s Dig., 3825), and no showing vras made by appellant why that was not done.
True, the statute makes it the duty of the justice to file the transcript, etc., in the clerk’s office within the time prescribed, but it is incumbent on the appellant to see that this is done — he must prosecute his appeal. Smith et al. v. Allen, 31 Ark., 268.; MeGehee v Carroll & Jones, Ib., 550.
The justice failing to file the transcript and papers on or before the first day of the term, appellant had the right, after the expiration of the first day, to compel him to make his return by rule and attachment. But no application appears to have been made to the court, by appellant, for such rule, etc., see Gantt’s Dig., sec. 3829.
There is no showing in the record before us that the transcript of the justice and papers were filed in the clerk’s office earlier than the 25th of May, which was the 17th day of the term, and the day on which the first order was made in the cause above stated.
• It affirmatively' appears from the record before us that the transcript of the justice could not have been filed in the clerk’s office earlier than the 15th of May, because his certificate of authentication attached to the transcript bears that date.
The justice was before the court upon a rule relating to the filing of the appeal bond, and appellant had an opportunity of causing him to make a showing why he had not made his return within the time prescribed by the statute; but he seems to have required him to make no excuse for his delinquency, and to have made none himself.
In his motion to set aside the order of dismissal (not sworn to) he states that he had a good defense to the action, but does not state .what the defense was. He also states that it was not his fault that the papers were not filed in the office of the clerk on or before the first day of the term, but does not state w'hose fault it was..
When the motion to dismiss was made, and before it was heard, the appellant should have made some showing why the transcript and papers were not filed in the clerk’s office within the time prescribed by the statute, and brought such showing on to the record, by bill of exceptions, if held by the court insufficient, and the appeal dismissed, and then this court could pass upon the sufficiency of the showing.
But in the absence of any showing whatever, we cannot say that the court below abused its discretion in dismissing the appeal because the transcript, etc., was not filed within the time prescribed by the statute. To do so would be to disregard the statute.
If a transcript is filed here out of time, and without a showing, we dismiss the appeal.
Such statutes may be directory, but they are not to be disregarded.
Affirmed. | [
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Jim Hannah, Justice.
Appellants John T. Chandler; Square Deal Auto Sales, Inc.; Cloverdale Liquor, LLC; Mega Fireworks, Inc.; Baseline Chicot Mini-Storage; Budget Tax Service; Corn Insurance Agency, Inc.; John P. Corn, Meramec Specialty Co., and T.E.A. Enterprises, challenged the City of Little Rock’s (“City”) annexation of unincorporated areas or “islands” surrounded by the Little Rock city limits. The trial court found that the City (“Appellee”) met the statutory requirements for annexation. Appellants argue that Appellee did not meet the statutory requirements for annexation because the disputed area was not needed for proper municipal purposes and because the disputed area was not adaptable for prospective municipal uses. We find no error in the trial court’s findings and, accordingly, we affirm.
Facts
On December 7, 1999, the City of Little Rock passed Ordinance No. 18155, which provided for the annexation of eleven unincorporated areas or “islands” surrounded by the Little Rock city limits. The eleven parcels were identified as islands “A” through “K”. On December 17, 1999, Appellants John T. Chandler; Square Deal Auto Sales, Inc.; Cloverdale Liquor, LLC; Mega Fireworks, Inc.; Baseline Chicot Mini-Storage; Budget Tax Service; Corn Insurance Agency, Inc.; and John P. Corn filed suit to set aside the annexation. Appellants Meramec Specialty Co., and T.E.A. Enterprises filed a motion to intervene on May 1, 2000. On June 13, 2001, the trial court entered an order denying and dismissing Appellants’ complaints to set aside the annexation.
Though several issues were raised at trial, Appellants limit their appeal to the issue of the annexation of the “Coleman property,” which is located within Island “D.” The Coleman family has used the property for agricultural purposes. The Coleman property is within the floodway, although a small portion of the northwest corner is designated in the floodplain in a revised, but yet unapproved, map. Mabelvale Pike runs along the eastern boundary of Island D. Part of Mabelvale Pike is in the City, and part is in Pulaski County. Appellants argue that the trial court erred in finding that the Coleman property met the statutory requirements for annexation.
Standard of Review
In annexation cases, there is a wide latitude for divergence of opinion, and consequently, a high degree of reliance must be placed upon the findings of the trial judge. Holmes v. City of Little Rock, 285 Ark. 296, 686 S.W.2d 425 (1985); Faucett v. City of Atkins, 248 Ark. 633, 453 S.W.2d 64 (1970). Our task is not to decide where the preponderance of the evidence lies, but to ascertain whether the trial court’s findings of fact are clearly erroneous. Ark. R. Civ. P. 52; Town of Houston v. Carden, 332 Ark. 340, 965 S.W.2d 131 (1998); Chappell v. City of Russellville, 288 Ark. 261, 704 S.W.2d 166 (1986); Holmes, supra.
Statutory Requirements for Annexation
A city may annex lands which are either (1) platted and held for sale or use as municipal lots; (2) whether platted or not, if the lands are to be sold as suburban property; (3) when the lands furnish the abode for a densely settled community or represent the actual growth of the municipality beyond its legal boundary; (4) when the lands are needed for any proper municipal purposes such as for the extension of needed police regulation; or (5) when they are valuable by reason of their adaptability for prospective municipal uses. Ark. Code Ann. § 14-40-302(a) (Repl. 1998). The five criteria of Ark. Code Ann. § 14-40-302(a) are to be considered in the disjunctive, and the annexation of the land is proper when the proof sufficiently complies with any one of the conditions. Holmes, supra; Faucett, supra. If a part of the proposed area does not meet one of the five requirements, the annexation of the entire area is void in toto. Carden, supra; Gay v. City of Springdale, 298 Ark. 554, 769 S.W.2d 740 (1989) (Gay II); Chappell, supra. The burden of proof in an action to prevent annexation is placed on the remonstrants to prove that the area should not be annexed. Carden, supra; Gay II, supra.
Appellants argue that the Coleman property does not meet any of the five criteria of Ark. Code Ann. § 14-40-302(a). Further, Appellants argue that the highest and best use of the Coleman property is for agricultural purposes. Both Appellants and the Appellee agree that the first three criteria, as set out in Ark. Code Ann. § 14-40-302(a), are inapplicable to the present case. At issue are the fourth and fifth requirements of Ark. Code Ann. § 14-40-302(a). Accordingly, we will limit our discussion to the disputed statutory requirements.
Lands Needed for Proper Municipal Purposes
Appellants argue that there is no need for police and fire regulation of the Coleman property. Appellants cite testimony from Stuart Thomas, Assistant Police Chief of the Little Rock Police Department, who testified that he had worked for the City for twenty-two years, and that as of December 21, 2000, he knew of no incidents where the Little Rock Police Department was called to the Coleman property. Buddy Coleman, owner of the Coleman property, testified that he had called the sheriff once after he discovered that children were shooting BB guns at his cows.
Fire Marshal Lane Kinder of the Little Rock Fire Department testified that he had worked for the fire department for thirty-one years and knew of only one incident where the fire department went to the Coleman property. He stated that the fire department was called to the Coleman property after a hay barn had caught on fire. Appellants pointed out that the portion of the property where the barn was located was within the city limits of Little Rock.
Further, Appellants argue that there is no need for the extension of any other municipal purposes, i.e., water and sewer service, to the Coleman property. Jim McClelland, a civil engineer and expert witness for Appellants, testified that he knew'of no municipal services necessary for the Coleman property.
Appellee argues that the testimony of Assistant Chief Thomas and Fire Marshal Kinder, as well as the testimony of county officials, shows that the Coleman property meets the requirements for annexation. Appellee states that, according to the testimony of Assistant Chief Thomas, the annexation of the Coleman property would improve police call response time. Thomas explained that 911 calls are identified and routed by caller location. He testified that if a call were made about an incident occurring on the Coleman property, the call would register as a county address, and thus, the call would be routed to the Pulaski County Sheriff’s Department.
On the other hand, Thomas testified that if a call were made from a City address about an incident occurring in the county, the call would be routed to the Little Rock police, which would then transfer the case to the county sheriff. Thomas also testified that Little Rock police units frequently drive past the Coleman property, and that it would cost the City no more to serve that area upon annexation.
Appellee states that the uncertainty concerning the City boundary around the Coleman property creates a confusing situation for the fire department. Kinder testified that whether the fire department from the City or the fire department from the county responded to a fire on the Coleman property would depend on the exact location of the fire on the property. In addition, Coleman testified that if there were a fire on his property that his employees could not handle, then he would call the Little Rock Fire Department.
The trial court found, through the testimony of city and county fire and police officials, that the City satisfied the fourth requirement of Ark. Code Ann. § 14-40-302(a), that the lands would be “needed for any proper municipal purposes such as for the extension of needed police regulation.” The trial court noted that the City pointed out in its brief that the emergency clause of Act 314 of 1979, which was codified as Ark. Code Ann. § 14-40-501 (Repl. 1998), states that small, unincorporated islands within city limits cause “great confusion to the public and also great expense to municipalities in having to run vital services around these islands.”
The trial court also noted that the sale of fireworks within the city limits is prohibited by ordinance; however, due to the fact that the Coleman family leases the northwest corner of their property for the sale of fireworks, fireworks can be sold in the center of the City.
The trial court found that the extension of needed police regulation to the Coleman property, as well as the sale of fireworks on the Coleman property, justified the annexation under Ark. Code Ann. § 14-40-302(a)(4) (Repl. 1998). The trial court’s findings regarding Appellee’s need to annex the Coleman property for proper municipal purposes are not clearly erroneous.
Adaptability for Prospective Municipal Uses
Appellants argue that Appellee has not met the fifth statutory requirement of Ark. Code Ann. § 14-40-302(a), that the property is adaptable for prospective municipal uses, because annexation of the Coleman property is prohibited pursuant to Ark. Code Ann. § 14-40-302(b)(l) (Repl. 1998). Ark. Code Ann. § 14-40-302(b)(1) provides, in part:
(b)(1) Contiguous lands shall not be annexed when they . . .:
(A) Have a fair market value at the time of the adoption of the ordinance of lands used only for agricultural or horticultural purposes and the highest and best use of the lands is for agricultural or horticultural purposes ....
Ark. Code Ann. § 14-40-302(b)(l) (Repl. 1998).
At the time of the adoption of the ordinance, the Coleman property was being used for agricultural purposes. Appellants argue that the highest and best use of the Coleman property is for agricultural purposes. Appellants and Appellee agree that the City plans to use the Coleman property for open space or parks.
Appellants argue that the testimony of county and city officials, as well as the testimony of expert witnesses, indicates that the Coleman property can be used only for agricultural purposes. Jim Narey, Flood Plain Manager for Pulaski County, testified that the Coleman property is currently located entirely in the floodway. In deposition testimony read for the record, Jim Lawson, Director of Planning and Development for the City, testified that City policy provides that permanent structures cannot be built in the floodway. Bryan Day, Director of Parks and Recreation, testified that the City had no money to buy park property. Tom Ferstl and Bob McCarley, Appellants’ expert witnesses in real estate, testified that it would not be economically feasible to use the Coleman property for anything other than agricultural purposes. Jim McClelland, a licensed engineer testifying for Appellants, stated that it would not be economically feasible to do anything with the property other than leave it as pastureland. Buddy Coleman testified that, in his opinion, the highest and best use of the property was for agricultural purposes. Coleman also testified that he had made efforts to develop the property in the past, but none of his efforts had been successful due to restrictions placed on developing the property.
Appellee argues that the trial court made specific findings that the Coleman property is more valuable for its prospective use as a city park than for its current use as a cow pasture. Day testified that the Coleman property has been included in the City’s Fourche Bottoms Natural Project as an extension of the 1400 acres immediately to the east across Mabelvale Pike, which was annexed in 1996, and is now owned by the City for a proposed chain of parks. The Project will eventually feature natural areas, canoe rentals, and hiking trails through the Coleman property. Dwight Pattison, an independent fee appraiser and city planning consultant, testified that the Coleman property would be best used for industrial and recreational purposes. Pattison testified that soil samples taken from the Coleman property reveal a relatively low quality soil for agricultural purposes. He also testified that many city parks are encumbered with floodplain and floodway designation. Pattison further testified that the soccer fields at Burns Park in North Little Rock were constructed at elevations in the flood-way, which were virtually identical to the floodway elevations of the Coleman property.
After hearing expert testimony from both sides, the trial court determined that the best use of the Coleman property was industrial and recreational, not agricultural. In its findings, the trial court noted that the property is surrounded by the most populous city in the state. The trial court also noted that the property is within walking distance of the University of Arkansas at Little Rock, and that two major shopping centers and other businesses are nearby. The trial court found that the Coleman property was the only parcel in the annexation which is presently used for agricultural purposes. The trial court stated: “It is somewhat ludicrous to state that the highest and best use of any property located where the Coleman property is located - in the geographic center of the City - is agricultural.”
The trial court acknowledged that the Coleman property is used for agricultural purposes by the present owners. However, the trial court noted that in Gay II, we stated that “[t]he fact that land is agricultural and the owner does not want it developed does not determine its fate as to annexation.” Gay II, 298 Ark. at 558. We also stated that “[i]t is proper for a city to annex property if it is needed for the purpose of making improvements and if the value of the land is derived from actual and prospective use for city purposes.” Id.
The trial court acknowledged that much of the Coleman property is in the floodway, and strict federal guidelines apply to any development of floodway land because of flood control. The trial court further acknowledged that structures cannot be built on property located in the floodway, and that property located in the floodway is not suitable for much development. In light of this, the trial court found that many of the City’s parks, i.e., Boyle Park, and North Little Rock’s parks, i.e., Burns Park are located within the floodway.
The trial court also pointed out that the Coleman property has been on the City’s park plan for nearly a century. In Lee v. City of Pine Bluff, 289 Ark. 204, 710 S.W.2d 205 (1986), we stated that “[s]imply because land is in a flood plain does not exclude it from consideration for annexation.” Lee, supra. Further, we stated that “[i]f a city could not encompass a flood plain, it would mean its legal boundary could not be extended beyond a low lying area, creek or swampland, although the growth of the urban area continued on the other side; or it would mean the city limits would somehow have to jump or go through the flood plain.” Id.
We note that part of the Coleman property is in the floodplain, and part is in the floodway. Though Lee discussed property located only in the floodplain, we believe that the reasoning in Lee applies to the present case. The trial court found that many of the City’s parks, i.e., Boyle Park, and North Little Rock’s parks, i.e., Burns Parks are located within the floodway. We find it persuasive that parts of Burns Park were constructed at elevations in the floodway, which were virtually identical to the elevations in the floodway of the Coleman property. Land should not automatically be excluded from consideration for annexation simply because it is located in the floodway.
The trial court heard testimony and viewed exhibits regarding the use of the Coleman property and determined that the best use of the property would be industrial and recreational, not agricultural. The trial court’s findings regarding the best use of the property are not clearly erroneous.
As stated previously, if a part of the proposed area for annexation does not meet one of the five statutory requirements for annexation, the annexation of the entire area is void in toto. See Carden, supra; Gay II, supra; Chappell, supra. In the present case, Appellants argued that the trial court erred when it found that a portion of Islands A through K, specifically, the Coleman property within Island D, failed to meet the statutory requirements for annexation. The order of the trial court in annexation cases will be upheld unless it is clearly erroneous. Ark. R. Civ. P. 52; Carden, supra; Chappell, supra; Holmes, supra. We cannot say that the findings by the trial court in the present case are clearly erroneous. Accordingly, we affirm the trial court’s order dismissing Appellants’ complaints to set aside the annexation of Islands A through K.
Affirmed.
Imber, J., not participating.
Jim Narey, Flood Plain Manager for Pulaski County, testified that “[t]he floodway is a channel of the river or stream that is used to help displace the base flood, sometimes called the hundred-year flood, so as not to affect a designated amount of rise in the surface elevation of the water.” The floodplain, Narey testified “are lands generally adjacent ... to streams, rivers, creeks that are subject to be inundated by water from any source.”
Island D consists of small parcels of property containing several buildings which house retail businesses on the eastern boundary, as well as approximately 100 acres of property which belong to the Coleman family. Since the dispute is based primarily on the Coleman property, and not the other small parcels of land located within Island D, for convenience, we will refer to the property as the “Coleman property.”
At the time the complaint was filed in the present case, Ark. Code Ann. § 14-40-302(a) (Repl. 1998), applied. The 2001 amendment to Ark. Code Ann. § 14-40-302(a) did not alter the statutory requirements for annexation. | [
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English, Ch. J.:
Graham, an owner of lots in Forrest City, and a tax-payer of St. Francis County, tendered to John Parham, collector, county warrants, or scrip, issued in 1873, in payment of a tax of five mills embraced in the warrant of the collector for the year 1876, and styled “judgment tax.” The warrants were refused by the-collector, and Graham applied to the Circuit Court of St. Francis-County, at the April Term, 1877, for a mandamus to compel him to receive them.
Parham entered his appearance, admitted the tender, and answered the petition. The cause -was heard upon the pleadings, and transcripts of records made exhibits, and the court refuesd the mandamus, and Graham appealed.
It appears from a transcript of the record of the County Court exhibited with the petition, that on Monday, 9th of October, 1876, the court met pursuant to adjournment, present the County Judge, and a majority of the justices of the peace of the county, and made the following order:
“In conformity with section 1, of an Act of the General Assembly, etc., etc., approved December 14th, 1875 (Acts of 1875,. p. 141). It is therefore ordered that the following rates per centum be and the same are hereby levied as a tax upon the real, estate and personal property of the county, to-wit:
“For county general purposes one half of one per centum.
“For principal and interest on the county indebtedness, one half of one per centum.
“And it is further ordered that the amounts so collected By-reason of such levy be and the same are hereby appropriated for the payment of the current expenses of the county generally;; and the principal and interest of the indebtedness of the county existing at the time of the ratification of the Constitution, say October 30th, A. D., 1874.
“And it is ordered by the court that the clerk extend the tax as levied 6n the tax books of this county.”
The following further order also appears in the transcript:
“County Court, October Term, 1876.
“Monday morning 10 o’clock, November 6th, 1876. - Court met pursuant to adjournment, present and presiding, Hon. L.. Finley, judge, and the following justices of the peace of St. Francis County, viz: (here follow the names, thirteen in number), being a majority of all of the justices of the peace in the said county, etc., the following among other proceedings were had:
Stewart, Gwynne & Co. v. County of St. Francis,
Mandamus.
“Now, on this day, in obedience to a writ of mandamus issued from the United States District Court exercising jurisdiction for the Western District of Arkansas, at Helena, on the 14th day of October, A. D. 1876, and directed to and commanding this court to convene in session in the place appointed by law, and then and there levy a tax of one half of one per centum upon the assessed value of all the taxable property in this county for the year 1876, expressly for the purpose and to be applied towards the payment of a judgment rendered in said United States District Court in favor of Andrew Stewart and Andrew D. Gwynne, partners as Stewart, Gwynne & Co., against St. Francis County for the sum of §18,lll0.18, with interest at the rate of six per cent, per annum from the rendition thereof until paid, and the further sum of §240, costs of their suit. And it appearing to the court that there had been already a levy of one half of one per cent., made by this court for the year 1876, as provided by law, to pay principal and interest of the indebtedness of the county existing at the time of the adoption of the Constitution of the State, etc., and that the said levy had been so appropriated for the purpose indicated ; it is considered and ordered by the court that the said order of this court so levying and appropriating said one half of one per cent., etc., be and the same is hereby altered and amended so as to appropriate said levy of one half of one per cent, so made by this court in pursuance of law, expressly for the purpose and to be applied towards the payment and satisfaction of said judgment, principal and interest, of Stewart, Gwynne & Co., as commanded in the aforesaid writ.”
This tax was extended upon the tax book, and went into the warrant of the collection as “judgment tax, 50c.,” and this is the tax which appellant offered to pay to the collector in warrants of the county issued before the adoption of the Constitution, and renewed on call, etc.
The petition questions the validity of the order of the County Court, made on the 6th of November, 1876, appropriating the whole of the levy made on the 9th of October, to pay indebtedness, etc., to the Federal judgment.
It appears from the answer to the petition, and transcripts exhibited therewith, that on the 11th day of October, 1876, Stewart, Gwynne ■& Co. recovered a judgment, by default, against St. Francis County, in the District Court of the United States for the Western District of Arkansas, sitting at Helena, for principal and interest due upon the instruments sued on, the sum of $18,110.18, the judgment to bear interest, etc., and for costs, etc.
It is recited in the judgment entry that inasmuch as it appeared to the court that all but a small fraction of the principal debt was due and payable prior to the 31st day of October, 1874, and that no execution could issue against the county, etc., and that a writ of mandamus directed to the County Court, etc., directing the levy of a tax upon the taxable property of the county was the only legal process which plaintiffs could have for the satisfaction of theijr judgment, etc., it was therefore ordered by the court that the County of St. Francis be required, on or before 2 o’clock in the afternoon of the 14th of the present October to show cause why a mandamus should not be issued commanding the County Court of said county forthwith to levy a tax upon the taxable property in said county sufficient to satisfy the judgment, and that the clerk of the court at once make out, under the seal of the court, a transcript of the judgment and order in duplicate, one of which to be served by the marshal upon the presiding judge of said County Court, and to make his return upon the other, etc.
How or where a copy of this judgment and order was served on the presiding judge of the County Court does not appear, nor does the final order of the United States.Court awarding the peremptory mandamus appear in the transcript before us.
A copy of the first writ, however, appears to have been made an exhibit'to the answep to the petition. It recites the judgment and that the costs, including the issuing of the writ, had been taxed at $240.80, and then proceeds thus : “And whereas it hath appeared to our said court, in answer by the said county to a rule served upon it in that regard, that no sufficient cause hath been shown why a peremptory mandamus should not be issued from our said court requiring you, the said County Court, to-levy a tax of one-half of one per cent, upon all the taxable property in said county to be paid when other taxes are to be paid in said county in the year 1877, and for the purpose and to. be applied toward the payment of said judgment as appéars to us of record in our said court; these-are therefore to command you that putting aside all excuse and matters of delay whatsoever, you do on the first Monday in November, 1876, convene in session in the place appointed by law for you to hold sessions of your court, and being then and there so convened in session, you do levy a tax of one-half of one per cent, upon the assessed value of all the taxable property in said county for said year, expressly for the purpose, and to be applied toward the payment of the judgment of our said court, principal, interest and costs.”
The writ bears date 14th October, 1876, and is directed to the County Court of St. Francis County.
I. Two days before the judgment of the District Court was rendered, and four days before the peremptory mandamus was awarded, the County Court had levied one-half of one per cent, to pay indebtedness existing at the time of the adoption of the Constitution, and appropriated the amount to be collected from the tax for the payment of such indebtedness; yet the District Court imperatively ordered the County Court to make a special levy of one-half of one per cent, expressly for the purpose of paying its judgment. Had the County Court obeyed the mandate, the two levies would have amounted to one per cent, upon the assessed value of the taxable property of the county, for one year, to pay indebtedness existing before the adoption of the Constitution.
The counsel of the parties are agreed that the judgment of Stewart, Gwynne & Co., was recovered upon the warrants, or scrip, of the county, issued before the adoption of the Constitution, and appellant being the holder of like scrip, the debts were of the same grade, both ordinary indebtedness.
We have the impression, there being nothing in the record to the contrary, that the presiding judge of the County Court, failed to inform the District Court, in response to the alternative writ of mandamus, that the County Court had already levied a tax of one-half of one per cent, to pay indebtedness existing at the time of the adoption of the Constitution, and appropriated it accordingly, and' thereby exhausted its constitutional levying power for such purpose. We cannot believe that if the District Judge of the United States had been properly advised of the existing facts in the premises, he would have made an order with which it was legally impossible for the County Conrt to comply.
We stated in Vance v. The City of Little Rock, 30 Ark., 450, that the Supreme Court of the United States had decided that a Circuit Court of the United States had jurisdiction to compel officers of a State, by mandamus, to levy a tax to pay its judgments; but the Supreme Court did not reach this conclusion with unanimity ; on the contrary in Riggs v. Johnson County, 6 Wallace, 200, there was an able dissenting opinion by Justice Miller, in which Chief Justice Chase and Justice Grier concurred. The majority of the court, however, have adhered to this ruling, and so long as such shall be the opinion of that Supreme National Tribunal, wc are bound to respect it, unless Congress shall think proper to intervene, and, by appropriate legislation, prohibit the Circuit Courts from exercising this jurisdiction.
But while such has been the ruling of the Supreme Court, not one case can be found in which that court has decided that a Circuit Court, or a District Court exercising Circuit Court jurisdiction, can compel a State County Court, by mandamus, to levy a tax, or do any other act, which it is not empowered by the Constitution and laws of the State to do.
“ It is very plain,” (said Justice Strong in Supervisors v. United States, 18 Wallace, 77), “that a mandamus will not be awarded to compel County officers of a State to do any act which they are not authorized to do by the laws of the State from which they derive their powers. Such officers are creatures of the statute law, brought into existence for public purposes, and having no authority beyond that conferred upon them by the author of their being. And it may be observed that the office of a writ of mandamus is not to create duties, but to compel the discharge of those already existing.”
In United States v. County of Clark, 5 Otto, 773, which is the latest decision of the Supreme Court of the United States on this subject, which has come to our notice, Justice Strong, delivering the opinion of the court, said: “ It need not be said that no court will by mandamus compel county officers of a State to do what they are not authorized to do by the laws of the State* A mandamus does not confer power upon those to whom it is directed. It only enforces the exercise of power already existing, when its exercise is a duty.”
We disclaim any right, as we did in Vance v. The City of Little Rock, to review, as a court of errors, the judgments of the Circuit or District Courts of the United States; beyond the right to enquire whether the court rendering such judgment, 'coming before us incidentally, had jurisdiction of the subject matter. The province of reviewing the judgments and correcting the errors of the inferior courts of the United States, appertain to the Supreme Federal Tribunal, and not to this court.
But we claim it to be a right and a' duty to interpret our own Constitution and laws; and in local concerns, so long as they do not conflict with the Constitution and laws of the United States, they are supreme; and the courts of the United States have no power, nor can we think they have the disposition to disregard or trample upon them.
We should deplore any conflict between the State and Federal courts, and discountenance any attempt to prejudice the people of the States against the national courts. They are not foreign courts, but tribunals of justice provided for by the Constitution and laws of our country, and necessary and useful in their spheres. And from the organization of the Federal Government down to the present time, the judges of the national courts (with a very few recent exceptions), have been men of learning, profound judgment, and uprightness of conduct. And in the exceptional cases the men who‘soiled their judicial robes' were driven from the bench, by public sentiment, to avoid impeachment.
Sec. 9, art. xvi., of the Constitution provides that: “No county shall levy a tax to exceed one-half of one per cent, for all purposes; but may levy an additional one-half of one per cent, to pay indebtedness existing at the time of the ratification of this Constitution.”
This section of the Constitution furnishes the measure of, and the limitation upon the taxing power of the counties, and neither the legislature, nor the State courts; nor the Federal courts, can direct or force a County Court to make a valid levy in excess of the limitations here prescribed.
There may be an exceptional case, as we indicated in Vance v. City of Little Rock, arising under the provision of the Constitution of the United States, which declares that no State shall pass any law impairing the obligation of contracts, but the case now before us is not shown to be of that character.
The County Court did not obey the mandamus of the District Court by making a special levy of one-half of one per cent, for the.express purpose of paying its judgment as commanded, but in order to avoid punishment for contempt on the one hand, and to keep within its constitutional limits on the other, resorted to-the ingenious devise of appropriating the whole, of the half per cent, levy which it had previously made to pay debts of the county generally, to the satisfaction of the judgment mentioned in the mandamus.
Had the court made an additional levy of one-half of one per cent., making the whole levy one per cent, to pay debts, the collector would have 'been a trespasser in attempting to collect it, and no valid tax sale could have been made under his warrants.
It was the official duty of the prosecuting attorney of the judicial circuit embracing St. Francis County, to defend the suit of Stewart, Gwynne & Co. against the county in the United States District Court (Gantt’s Dig., sec. 4839); and perhaps if he had done so, he might have shown that the scrip on which the suit was founded, had been issued greatly in excess of the value of the claims on which it was based, such having been a prevalent illegal habit during the period in which it appears the scrip was issued.
It was also the duty of the presiding judge of the County ■Court, in response to the alternative writ of mandamus, to advise the District Court that a levy of one-half of one per cent, had been made before the service of the writ, to pay the indebtedness existing at the time of the adoption of the Constitution; .and then if the court had (but we cannot believe it would) insisted on awarding a peremptory mandamus to compel an additional levy for that year, the prosecuting attorney should have .applied to the Supreme Court of the United States for a writ of prohibition, or taken an appeal or writ of error, according to the proper practice in such cases.
But if a Circuit or District Court.of the United States, award .a peremptory writ of mandamus to compel a County Court to levy a tax not only unauthorized by law, but forbidden by the Constitution of the State, and no one on behalf of the county takes a writ of error or appeal to the Supreme Court of the United States from the order of the Inferior Court awarding the writ, or otherwise obtains prohibition against its issuance or exe■cution, and the members of the County Court levy the tax in obedience to the mandate of the writ, in order to avoid punishment for contempt, can it be true that because the writ is issued by a court of the United States, its effect is not only to deprive the tax-payers of the right of appeal from the order of the County Court making the levy, but to paralyze the Superior Courts of the State, so that they are powerless to review the order and pass upon its validity in any of the modes provided by the Constitution and laws of the State? We do not deem it necessary to do more in this case than to state the proposition, in order that it may become the subject oí judicial thought.
II. The mandamus peremptorily commanded the County Court of St. Francis County, to convene in session, on the first Monday of November, 1876, in the place appointed by law, and being then so Convened, to levy a tax of one-half of one per ■cent. etc.
If the court was not authorized by law to convene on the day named in this writ, it could not legally convene on that day by virtue of the mandate, because it was not the office of the writ to impart power to the court, but to enforce the exercise of power conferred upon it by the laws of the State.
If the writ could empower the court to convene at a time not authorized by law, it could also empower it to meet at a place not appointed by law. We think the writ was impotent to do either.
The meeting together of the judge and officers of a court, at • the place, but not at the time fixed by law for holding the court, is not a court, under our Constitution and laws, but is a mere collection of officers, whose acts must be regarded as coram non judice and void. Brumley v. State, 20 Ark., 77 ; Dunn v. State, 2 Ark., 229.
“The terms of the County Courts shall be held at the times now prescribed for .holding the Supervisor’s Courts, or may hereafter be prescribed by law.” Sec. 31^ art vii., Constitution.
Sec. 79 of an Act approved 5th February, 1875, (Acts of 1874-5), provides: “That the regular terms of the County Courts in the several counties in this State, shall commence on the first Mondays in January, April, July and Octobei, of each year, and shall continue as long as the business shall require,” etc.
Sec. 28 art. 7, of the Constitution prescribes the jurisdiction of the County Courts; and the last clause of the section provides that: “The County Courts shall be held by one judge, except in cases otherwise herein provided.”
Sec. 29 of the same article prescribes the qualifications and mode of electing the jndge of the County Court; and sec. 30 provides that:
“The justices of the peace of each county shall sit with and assistthe County Judge in levying the county taxes, and in making appropriations for the expenses of the county, in the manner to be prescribed by law; and the County Judge, together with a majority of said justices, shall constitute a quorum for such purposes; and in the absence of the County Judge a majority of the justices of the peace may constitute the court, who shall elect one of their number to preside. The General Assembly shall regulate by law the manner of compelling the attendance of such quorum.”
The Act of 14th December; 1875 (Acts of 1875, p. 142), provides that: “The County Judge, with a majority of the justices of the peace of each county, shall constitute a court in levying the taxes and making appropriations for the expenses of the county; and the first and subsequent days of the fourth annual term of each court, as established by law, shall be the time fixed for such levying, and shall be constructive notice to each justice of the peace, etc., etc.
The time, therefore, fixed by law for the County Court of St. Francis County, composed of the County Judge and a majority of justices of the peace of the county, to convene and levy taxes and make appropriations for the year 1876, was on the first Monday of October of that year, and it had power to remain in session and adjourn from day to day until the business for which it convened was completed.
When any court of this State, whose terms are fixed by law, finally closes a term and adjourns until the next term, it cannot legally convene again until its next term, in the absence of a statute authorizing it so to do. Dunn v. State, 2 Ark., 252.
If, therefore, the County Court'of St. Francis County, as composed of the County Judge and justices of the peace, had completed the business for which it convened at the October Term, 1876, and finally adjourned for the term, before the service of the writ of mandamus upon the members of the court, it could not legally convene again until the time prescribed by law, and there was no virtue or force in the writ to empower it sooner to convene. No power on earth but the legislature of the State could authorize it to convene.
This court may, by mandamus, compel a Circuit Judge to hold a term of his court, at the timé prescribed by law, but certainly not at a different time. Trapnall, ex parte, 6 Ark., 9.
When this court finally closes a term, and adjourns to-the next term, it has never claimed the power to convene again until the time prescribed by law, though it exercises the power common to all courts (when not forbidden by law) of adjourning from one day to another distant day during a term. Mechanic's Bank v. Withers, 6 Wheaton, 106.
Moreover, if the County Court, as composed of the judge and justices of the peace, had completed its business and finally dissolved for the term, before the service of the writ of mandamus, it had no power, on reconvening on the 6th of November, to reverse its order of 9th of October appropriating the half per cent, levy to the payment of debts generally, and apply the whole tax to the satisfaction of the judgment of the United States Court, to the exclusion of all other creditors. The County Court, like the- other courts of the State, has no power to vacate, or change its judgments or orders after the lapse of the term at which they are rendered. Reiff et al. v. Conner et al., 10 Ark., 241.
We have been referred to United States v. Vernon County, 3 Dillon, 283, as an adjudication that a County Court may be compelled by mandamus, to meet' at any time, out of term, and make a special levy to pay a judgment of a United States Court.
In that case Judge Dillon said: “Our ordinary course is not to require a special assessment, and levy at a special and arbitrary time, but to have the tax levied and collected with the general annual levy. Such special levy can then be made on the books and collected without much additional expense or trouble, and in the exercise of its discretion the court aims to avoid all unnecessary severity and useless costs. Some delay may thereby be occasioned to the creditor, but in theory of law, he is compensated therefor - by interest. This is the method we have taken and carried out in all cases.
“When we have the right to order a special levy, we do not hesitate to do so, if it becomes necessary; but if the respondent appears and gives satisfactory assurance that the requisite amount will be embraced in the general levy, and that sufficient will be appropriated therefrom by a proper order to pay the particular debt, in such case a special levy maybe dispensed with. ‘ We are governed by the circumstances of each case.”
At the conclusion of the opinion, the following order was made: “Lét an order go for a peremptory writ on respondent to levy at the next April Term, a special tax, at the time when the general .annual levy is made for county purposes, to pay the judgment.”
With the greatest respect for the opinion of this eminent jurist, we prefer to treat what the court ordered in the case as the judicial precedent, rather than what the learned judge said the court might do.
We do not know whether the laws of Missouri authorize the County Courts of that State to meet at any time, out of term, to make tax levies or not, but we do know that the County Courts of this State are powerless to make such levies except at and during the term prescribed by law. Chaplin v. Holmes, 27 Ark., 414.
If the court had finally closed its term, and dissolved before the 6th of November, 1876, the judge and justices of the peace then ■convened were as powerless to make a valid tax levy or appropriation as so many dead men would have been, and a galvanic . battery would.jiave been more effectual to quicken and empower them to utter an order than a writ of mandamus, whether issued by a State or Federal Court.
We cannot, however, positively affirm from the record before us in this case, that the County Court, as composed of the judge and justices of the peace, had closed its sittings at the October Term, 1876, and finally dissolved, before the writ of mandamus was served, and that it did not convene on the 6th of November upon its own adjournment to that day.
The first entry in the transcript of the record before us is that of Monday, 9th of October, 1876, and it shows that the court met pursuant to adjournment, present the County Judge, and a majority of the justices of thé peace, and that the court made the levies and appropriation first above copied.
In the absence of any showing, in the record to the contrary, we must presume, in favor of the regularity of the proceedings of the court (Borden v. State, 11 Ark., 519), that it convened on the first Monday of October, the time prescribed by law, and adjourned to the second, or that there not being a quorum present on the first day of the term, there was an adjournment from day to day until a quorum was present, as provided by law. Acts of 1875, p. 142.
The entry of the 6th of November, above copied, also shows that the court met pursuant to adjournment, present the County Judge and a majority of the justices of the peace, and then the matter of the mandamos was taken up, and acted on.
An amendment to the transcript filed since the submission of the cause, by agreement of the parties, shows some meetings and adjournments of the court intermediate to the 9th of October and the 6th of November, when the County Judge only was present, but what was done at such meetings, other than to meet and adjourn, does not appear, and there is an absence of any showing that the court, as composed of the County Judge and justices of the peace, had finally dissolved before the 6th of November, and that the justices of the peace, as members of the court were functus officio.
III. No doubt the County Court felt constrained by the mandamus, in order to'avoid being in ^contempt, to appropriate the whole of the levy of one-half of one per cent, which it had! made at a previous day of the term, to the payment of the judgment of the United States Court, to the exclusion of all other creditors.
Is it right or just for a Federal court to invade the financial policy of the State, and by mandamus compel a County Court to levy and appropriate the whole tax which it has power to levy for any one year to pay debts existing at the time of the adoption of the Constitution, to the satisfaction of a judgment which it has rendered in favor of a non-resident creditor, to the exclution and postponement of the claims of all resident creditors ?
Why is it that a county can be sued in a Federal court at all ? It is because a statute of the States makes counties corporations, and empowers them to sue and be sued in any court. Gantt’s Dig., ch. 285.
But for this statute a county could not be sued’at all, because by the common law a county can no more be sued than an unincorporated town, township, or judicial district. Lyell v. The Board of Supervisors of St. Clair County, 3 McLean, 580 ; 2 Term Rep., 667 ; 7 Mass., 187 ; 2 Serg. & Rawle, 371.
Why is it that an execution cannot be issued upon a judgment of a United States Court, against a county, and the court house, jail, poor house and gallows (which is about all the property our counties own), be levied on and sold ? It is because a statute of the State forbids an execution against the lands and other property belonging to a county. Gantt’s Dig., sec. 950.
Perhaps in the absence of a statute forbidding it, such property could not be sold upon execution; being devoted to public uses, the sale of it would interfere with the administration of the government of the State. City of Chicago v. Harley, 25 Ill., 595; 31 New York, 164, 193.
Why is it that when a judgment is recovered in a court of the United States against the administrator or executor of a deceased ■debtor, an execution cannot be issued upon it, and his estate sold to satisfy it, regardless of the claims of local creditors ? It is because the policy of the State requires all claims against the estate of deceased persons to be probated, allowed and classed in the Probate Courts, and paid by the administrators or executors out of the assets of such estates, in the order of their classes, and if there are not sufficient assets to pay the whole of any class ■of claims, they are to be paid pro rata, and no creditor is permitted to have an execution against an estate. Gantt’s Dig., ch. 1. And the Supreme Court of the United States has decided that this policy cannot be invaded by the issuance of an execution upon the judgment of a Federal court. Yonley v. Lavender, 21 Wallace, 279.
Mr. Justice Davis, who delivered the opinion of the court, ¡said: “To sustain it (the sale under execution), would be in effect to nullify the administration laws of the State, by giving ■to creditors out of the State greater privileges in the distribution of estateslhan creditors in the State enjoy. It is easy to see, if the non-resident creditor, by suing in the Federal courts of Arkansas, acquires a right to subject the assets of the estate to seizure and sale for the satisfaction of his debts, which he could not do by suing in the State courts, that the whole estate, in case there were foreign creditors, might be swept away. 'Such a result would place the judgments of the Federal courts on a higher-grade than the judgments of the State courts, necessarily produce conflict, and render the State, powerless in a matter over which she has confessedly full control. Besides this, it would: give to the contract of a foreign creditor, made in Arkansas, a wider scope than a similar contract made in the same State by the same debtor with the home creditor. The home creditor would have to await the doe course of administration for the payment of his debt, while the foreign creditor could, as soon as he got his judgment, seize and sell the estate of his debtor to' satisfy it, and this, too, when the laws of the State in force when, both contracts were made, pi’ovided another mode for the compulsory payment of the debt. Such a difference is manifestly unjust, arid cannot be supported.”
The appellant and Stewart, Gwynne & Co. were holders of warrants,- or scrip as they are commonly called, issued upon the Treasurer of St. Francis County, upon claims audited and allowed by the County Court before the adoption of the present Constitution. We say audited and allowed by the County Court, because it is the appropriate province of the County Court to audit all claims payable out of the county treasury, except in, cases where the legislature has made special provision for the: auditing of particular demands by other officers. Jefferson County v. Hudson, 22 Ark., 595.
County warrants shall be redeemed and paid by the County Treasurer in the order of their number and date, and no warrant shall be thus paid until all of a prior date are paid, provided the County Treasurer upon whom the warrants are drawn, shall not be able to meet all demands upon the treasury. Acts Dec. 17, 1846, sec. 2; Gantt’s Dig., sec. 1042.
If appellant could have sued upon his warrants at all (which the statutes do not seem to contemplate), he could.not have sued in a Federal court, because he was a citizen of this State, and so was St. Francis County, according to the interpretation by the Federal courts of the word “ citizen ” as used in the Constitution of the United States.
If he had sued upon his warrants in. a State court, and obtained a judgment, he simply would have marched up the hill and then marched down again, for the statute provides that: “ When judgment shall be rendered against any county, it shall be the duty of the County Court to order a warrant to be drawn on the County Treasurer for the amount of the judgment and costs, which warrant shall be paid as other county debts.” Gantt’s Dig., sec., 949.
No State court would have compelled the County Court, by mandamus, to exhaust its levying power for any one year, and appropriate the whole levy, if required, to pay his judgment, to the exclusion of all other creditors.
But Stewart, Gwynne & Co., being citizens of Tennessee, obtained judgment in the District Court of the United. States, sitting at Helena, against the county, and a mandamus was awarded them to compel the County Court to make a special levy of one-half of one per cent., all the court had poAver to levy for that year, to pay debts, to be applied in satisfaction of their judgment, to the exclusion of all other creditors of the county,
We repeat, is it right or just for a Federal court so to invade, by mandamus, the financial policy of the State, in reference to which all the creditors of counties have contracted ? We leave the Supreme Court of the United States to answer the question.
The view that we take of this case is, that the County Court, on one day of its October Term, 1876, levied a tax of one-half of one per cent, to pay debts existing at the time of the adoption of the Constitution, but appropriated the tax to the payment of no particular debt. On a subsequent day of the term, the court modified its order, and appropriated the whole tax to the payment of a judgment rendered in the District Court of the United States, after the first order was made. Conceding this to have been an error, the order was not void for want of jurisdiction of the subject matter, and no appeal having been taken from the order by appellant, or any other creditor of the county, the Circuit Court could not review the order, and reverse it for error in this proceeding.
But we come finally to the question, whether appellant had the legal right, notwithstanding the order, to pay so much of the tax as was- charged upon his property, in warrants issued before the adoption of the Constitution, and which he tendered to appellee, and he refused to accept?
Upon any claim allowed against a county, the clerk of the County Court is required to issue to the claimant a warrant upon the County Treasurer. Sec. 505, Gantt’s Dig.; Acts of 1874-5, p. 144.
All warrants drawn upon the treasurer must be paid out of any money in the treasury not otherwise appropriated, or out of the particular fund expressed therein, “and shall be received irrespective of their number and date, in payment of all taxes and debts accruing to the county.” Gantt’s Dig., sec. 610.
If the order made by the County Court on the 9th of October, 1876, appropriating the tax of one-half of one per cent., on that day levied, to the payment of the indebtedness of the county existing at the time of the adoption of the Constitution generally, had not been modified by the order of 6th of November appropriating the whole of the levy to the satisfaction of the judgment of Stewart, Gwynne & Co., the appellant would have had the right to pay so much of the tax as was charged upon his property in the warrants issued before the adoption of the Constitution, which he tendered to appellee, as collector. Acts of 1875, p.151; Loftin v. Watson, ante.
But sec. 11, art. 16, of the Constitution, provides that “no moneys arising from a tax levied for one purpose shall be used for any other purpose.”
The judgment of Stewart, Gwynne & Co. was necessarily payable in currency, and though the order of 6th of November invaded the legal right of appellant to pay the tax in his warrants, yet we cannot see how the collector could receive them while the order stood unreversed, and, as we have seen, could not be treated as null and void.
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WH. “Dub” Arnold, Chief Justice.
Appellant Gene McWhorter appeals to this court, asserting that the trial court’s finding that he had not proven his gambling losses was clearly erroneous and an abuse of discretion. We disagree and affirm the trial court. On cross-appeal, Appellee Bernice McWhorter asserts three points on appeal: 1) the trial court erred in allowing Appellant’s 1998 income tax return admitted into evidence; 2) the trial court erred in recalculating Appellant’s income for child-support purposes based on 1998 income tax return; and 3) the trial court erred by deviating from the child-support guideline chart. We affirm the trial court on the cross-appeal.
This is the third appeal of this child-support case. In the first appeal, the court of appeals reversed and remanded the case because the trial court had failed to comply with Rule 52(a) of the Arkansas Rules of Civil Procedure. McWhorter v. McWhorter, 70 Ark. App. 41, 14 S.W.3d 528 (2000). In the second appeal, the case was certified to this court as a case of first impression and of substantial public interest. McWhorter v. McWhorter,346 Ark. 475, 58 S.W.3d 840 (2001). This court reversed the trial court because it had included gambling winnings in computing income for child-support purposes, but failed to allow gambling losses to be deducted up to the amount of winnings. The case was also remanded for further proceedings to prove gambling losses and to recalculate disposable income based in previous years federal and state income tax returns and the quarterly estimates of the current year. On remand, the trial court found that Appellant failed to carry his burden of gambling losses for the period in question and refused to adjust Appellant’s income to give him credit for his losses.
In 1993, Appellant Gene McWhorter and Appellee Bernice McWhorter were divorced. Under the divorce decree, custody of the couples two children , Warren Jeffrey and Kimberly Jean, was awarded to Appellee, and Appellant was ordered to pay child support. In 1995, the trial court modified its order for child support and ordered Appellant to pay child support in the amount of $465.00 per month. On February 15, 1996, Appellee filed a motion for increase in child support. Two years later, a trial was held in April 1998, and on August 18, 1998, the trial court issued a letter opinion, including gambling winnings but not his gambling losses in the calculation of child support.
After a hearing on reversal and remand from this court, the trial court found that the Appellant “failed to carry his burden of his gambling losses for the period in question,” and did not allow for any losses. It is from that finding that Appellant brings this appeal and Appellee brings her cross-appeal. At the hearing, only two witnesses were heard, Appellant and his accountant, Deborah Norwood.
Appellee called Appellant as her only witness and offered no documentary evidence other than an excerpt from Appellant’s previous testimony.
Appellant testified as to the documents provided to his accountant to satisfy the Internal Revenue Service (IRS). His accountant, Norwood, testified as to the documents required to prove gambling winnings and losses. Appellant offered into evidence the W-2G for 1997 and 1998 (an IRS form required if a threshold amount of winnings was reached) to prove his winnings. Appellant also offered into evidence his ATM withdrawal slips for 1997 and 1998 to prove his gambling losses. Appellant also offered his federal and state income tax returns for 1998 and testified from his federal and state income tax returns for 1997. Appellant’s 1997 income tax return shows under line 21 — other income — his gambling income in the sum of $20,900.00, and as an itemized deduction — Schedule A — line 27 — his gambling losses in the sum of $20,900.00. Appellants 1998 income tax return shows under line 21 — other income — his gambling income in the sum of $12,040.00, and as an itemized deduction — Schedule A —■ line 27, his gambling losses in the sum of $12,040.00.
Norwood confirmed the documents that Appellant provided her regarding gambling winnings and losses, and stated Appellant gave her the W-2G forms and the ATM withdrawal slips. She further testified that the IRS will take wager tickets, cancelled checks, credit cards, bank withdrawals, statement of actual winnings, payment slips provided to the taxpayer by the gambling casino, and that the IRS would also accept an accurate diary to calculate losses. The trial court found that the ATM withdrawal slips were not sufficient to prove Appellant’s gambling losses, and entered its order that Appellant failed to carry his burden of proving his gambling losses.
We most recently set out our standard of review in child-support cases in McWhorter v. McWhorter, 346 Ark. 475, 58 S.W.3d 840 (2001):
We review chancery cases de novo on the record, and we will not reverse a finding of fact by the chancery court unless it is clearly erroneous. Ark. R. Civ. P. 52(a); Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999). In reviewing a chancery court’s findings, we give due deference to that court’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Hunt v. Hunt, 341 Ark. 173, [15 S.W.3d 334]. As a rule, when the amount of child support is at issue, we will not reverse the chancellor absent an abuse of discretion. Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990). However, a chancellor’s conclusion of law is given no deference on appeal. City of Lowell v. M & N Mobile Home Park Inc., 323 Ark. 332, 916 S.W.2d 95 (1996).
McWhorter, 346 Ark. at 480, 58 S.W.3d at 843 (quoting Kelly v. Kelly, 341 Ark. 596, 599, 19 S.W.3d 1, 3 (2000)). The trial court did not abuse its discretion in this case, and its findings were not clearly erroneous; we, therefore, affirm.
Appellant contends that this case raises the question as to what rules of evidence are to be used in the proof of gambling losses, Arkansas Rules of Evidence or the requirements of the Internal Revenue Code and Regulations. Rule 102 of the Arkansas Rules of Evidence provides as follows:
These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence, to the end that the truth may be ascertained and proceedings justly determined.
Ark. R. Evid. 102. Rule 803(6) of the Arkansas Rules of Evidence provides:
(6) Records of Regularly Conducted Business Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses [sic], made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
Ark. R. Evid 803(6). Appellant argues that the ATM withdrawal slips show his gambling losses being a record made at or near the time by a person with knowledge and kept in the course of a regularly conducted business activity, and it was the regular practice to make the record.
Appellant further asserts that from Arkansas cases, as well as Administrative Order No. 10, it appears that the appellate courts rely on the IRS Code where a determination of income is involved in a child-support case, at least where a self-employed person is involved. Administrative Order No. 10, and Section 111(c) of this Order provides:
For self-employed payors, support shall be calculated based on last years federal and state income tax returns and the quarterly estimates for the current year.
Administrative Order No. 10, Sec. III(c).
The trial court’s letter opinion stated that the evidence of the ATM withdrawals demonstrates only that Appellant withdrew cash while at the casino. Appellant argues that by restricting evidence to prove gambling losses so severely the trial court arbitrarily ruled that the “best evidence” to prove gambling losses was a statement from the casino. Appellant contends that this “best evidence” standard is not mentioned in the IRS Code. Appellant states that the trial court’s ruling is grossly unfair and inequitable because it requires the child support obligor to pay child support based on money he never had. Appellant contends that the proof was undisputed that all of his winnings came from slot machines and it is manifest that a person does not win on every pull of the handle. Appellant cites a U.S. Tax Court case that recognized that in engaging in a gambling endeavor, a gambler always loses. Cohan v. Commissioner, 39 F.2d 540 (2d Cir. 1930). However, the trial court did not abuse its discretion. According to IRS Regulation 77-29, a gambler “must keep an accurate diary or similar record of your losses and winnings. Your diary should contain at least the following information: 1) the date and type of your specific wager or wagering activity; 2) the name and address or location of the gaming establishment; 3) the names of other person(s) (if any) present with you at the gaming establishment; and 4) the amount you won or lost. . . In addition to your diary, you should also have other documentation. Such as, but not limited to, wagering tickers. . . bank withdrawals, etc. ...” Also, for specific wagering transactions, such as slot machines, the IRS states, “[y]ou should have a record of the machine numbers and all winnings by date and time the machine was played.” Revenue Procedure 77-29.
Therefore, the trial court did not abuse its discretion because Appellant did not prove all of the above. Appellant did not maintain a diary, only ATM withdrawal slips, which are not sufficient alone to constitute a diary under the IRS Code. Further, these ATM withdrawal slips are not “records of regularly conducted business activity” under the Arkansas Rules of Evidence. The ATM withdrawal slips are simply proof that money was withdrawn from an account. They do not prove that the money was spent at a casino, or any exact location.
Appellant argues that as an alternative, the case should be reversed and remanded with directions to the trial court to take additional evidence regarding his gambling losses. This alternative was already taken when this court remanded the case back to the trial court. The trial court held a hearing on such matters and a ruling was made with no abuse of discretion.
Appellee contends in her cross-appeal that the trial court erred when it allowed Appellant’s 1998 income tax return into evidence over her objection. Appellee states that Appellant was mandated to return to court and bring documentary evidence of gambling losses for the years in question; therefore Appellee states that 1998 should not have been at issue. Appellee states that the expendable income of Appellant had already been determined by the trial court and affirmed on appeal by this Court and cannot be changed. Appellee asserts that the only years in question were 1995, 1996, and 1997, to the extent that Appellant could prove any such losses.
However, the previous mandate ordered that Appellant’s income for child-support purposes be recalculated using the previous year’s disposable income and quarterly estimates for the current year. The purpose of the child-support guidelines is to use the most current income information because it more accurately portrays the payor’s expendable income. The child-support guidelines direct the use of the previous year’s income and the quarterly estimates for the current year. This case was tried in April 1998, therefore the previous year’s income must refer to the 1997 and the current year refers to 1998.
Appellee’s argument regarding whether the trial court erred in deviating from the child-support guidelines cannot be considered because she did not preserve the point for appeal. The trial court made a finding in a letter opinion that Appellant had earnings of $53,317.66 in 1997 (without any adjustment from gambling losses) and $33,986.00 for 1998 (without any adjustment for gambling losses) in the final order. The trial court adjusted'the 1998 figure by allowing as deductions pursuant to Administrative Order 10 federal taxes in the sum of $3,581.00 and Arkansas taxes in the sum of $609.00, and arrived at the sum of $29,796.00 as Appellant’s income for 1998.
Appellee argues for the first time on appeal that the trial court should have added back into Appellant’s 1998 income the depreciation for a truck that was purchased in 1998, and that by not doing so, the trial court deviated from the child-support chart without making any written findings. It is well settled that this court will not consider arguments raised for the first time on appeal. Laird v. Shelnut, 348 Ark. 632, 74 S.W.3d 206 (2002).
Therefore, the trial court did not abuse its discretion in finding that Appellant had not proven his gambling losses. The only evidence Appellant produced were ATM withdrawals from casinos, and this evidence was not enough. Regarding the cross-appeal, we affirm the trial court. The trial court did not abuse its discretion in using the 1998 income tax return for child-support purposes. Further, the point regarding whether the trial court erred by deviating from the child-support chart guidelines was not preserved on appeal.
For these reasons, we affirm.
The children involved in this case are no longer eligible for child support. Jeffrey graduated from high school in May 1998 and Kimberly reached age 18 on August 16, 2001. Appellant has had no legally required support obligation for more than 14 months. | [
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English, Ch. J.:
The bill in this case was filed in the Circuit Court of Ashley County, by Thomas M. Whittingtou against John G. Simmons and the heirs at law of John Smith, deceased.
The purposes of the bill were to obtain a decree against the heirs of Smith for the legal title to an undivided half of certain lands known as the Quindley Place, to cancel a sheriff’s deed which Simmons had obtained for the lands, and to enjoin him from prosecuting certain proceedings at law, etc.
The heirs of Smith did not answer. The cause was heard upon the bill and exhibits, the answer of Simmons (which contained a demurrer) and exhibits, and depositions. The bill was dismissed for Avant of equity, and the complainant appealed.
There is no dispute about some of the leading facts of the case, the parties agreeing in their pleadings, etc,, as to them. They disagree about other facts, and out of this disagreement grows the only trouble in ascertaining and deciding the legal and equitable rights of the litigants, so far as they can be settled on this appeal.
The bill alleges and the answer admits that on the 28th day of December, 1861, John Smith, then the OAvner in fee simple, and in possession of the lands in controversy (several tracts containing about 426 acres, situate in Ashley County), sold them to John Quindley for $15,000, of which $9460 Avere paid at the time, and for the remaining $5540 Quindley made to Smith a note of that date, payable 1st of March, 1864, Avith 6 per cent, interest, and Smith executed to him a bond covenanting to make him a good and sufficient deed to the lands on payment of the note, and delivered to him possession of the lands.
The leading effect of this transaction is that Smith, by means of the bond for title, conveyed to Quindley an equitable title to the lands, and retained the legal title as a' security for the payment of the balance of the purchase money. Moore & Cail, adm’r, v. Anders, 14 Ark., 628; Harris v. King, 16 Ark., 122.
It is also averred in the bill, and admitted by the answer, that on the 4th day of January, 1866, Quindley sold the lands to L. H. Belser, and assigned to him by written endorsement, Smith’s bond for title, and put him in possession of the lands.
By this sale and assignment of the bond for title, Quindley transferred his equitable estate in the lands to Belser. Holman v. Patterson heirs, 29 Ark., 364.
On the 8th of December, 1863, John Smith died intestate, in Drew County, and on the 30th of December, 1864, letters of administration upon his estate were granted, by the Probate Court of said county, to his widow, Sarah A. Smith, and appellee, John G. Simmons, who married one of his daughters.
On the 2d of April, 1867, Sarah A. Smith, as administratrix, and John G. Simmons, as administrator, of John Smith, deceased,recovered a judgment in the Circuit Court of Drew County, against John Quindley, upon the note given by him to their intestate, for balance of purchase money of the lands, for $6,757.40, being the principal and interest on the note.
On the 16th of November, 1867, an execution was issued upon-the judgment against Quindley to the sheriff of Ashley County, which was levied on the lands in controversy (except one tract) and they were sold by the sheriff on the 24th day of February, 1868, and purchased by Simmons for $500. It is alleged in the bill, and not denied in the answer, that the sheriff made him a deed for the lands, and the bill professes to exhibit a certified copy of the deed, but we do not find it in the transcript.
The bill alleges that he purchased the land in fraud of Smith’s heirs, but this he denies, and avers that he purchased for their benefit. It seems that in his third and final settlement as administrator of Smith, he credited himself with amount paid the sheriff upon his bid for the lands, etc.
It is manifest that Simmons acquired no title to the land by this purchase. On the death of Smith, the legal title which he held in trust for his vendee, Quindley, descended to his heirs at law. The judgment was no lien upon the lands, and before the execution was issued, Quindley, the only defendant in the execution, had sold and transferred his equitable estate in the lands to Belser.
After Quindley had parted with his interest in the lands to Belser, the legal representatives of Smith could enforce the vendor’s lien for purchase money, and sell the lands so as to convey title as against Belser, or his assigns, by bill in chancery only.-
It further appears from the pleadings and exhibits, that at the January Term, 1868, Sarah A. Smith applied, by petition, to the Probate Court of Drew County, to have dower assigned to her in the notes, accounts, bills, bonds, books and evidences of debt of the estate of John Smith, her deceased husband, and the court appointed three commissioners to assign to her such dower. On the 21st of April, 1868, the commissioners reported that they assigned the amount of $5535.19 in a note against John Quindley for $5540, dated December 28th, 1861, due on the 1st of March, 1864, at 6 per cent, interest from date, belonging to said estate, as the amount of dower due Sarah A. Smith in said estate. The court approved and confirmed the report, and adjudged that the widow have absolute control of said dower.
Simmons, as one of the administrators of the estate, filed exceptions to the report, before its confirmation, but the exceptions were overruled, and he prosecuted no appeal.
• The grounds of exceptions were, that he, as a co-administrator and the heirs had no notice of the filing of the petition, and that all the dower in the personal property and choses in action which the widow was entitled, by law, to receive out of said estate, had already been assigned to her.
There is no showing in the transcript that such dower had been previously assigned the widow; and Simmons, whose duty it was as co-administrator, to assign her dower in the personal property, certainly had notice of her application for dower, for he appeared and contested it.
He admits that he attended to all of the business of the estate, at her request, and at the same term of the Probate Court he filed his account for settlement, and resigned his administration.
It is remarkable that the commissioners assigned $5535.19 of +he Quindley note, nearly equal to the original principal of the note, to the widow as her dower share of the choses in action of the estate, when Belser had previously made large payments to Simmons, as administrator, upon the debt.
It further appears that on the 2d of April, 1869, Mrs. Smith took out an alias execution upon the judgment against Quindley, directed to the sheriff of Ashley County, who levied upon the lands in controversy, as the property of Quindley, offered them for sale on the 28th of March, 1869, and Mrs. Smith purchased them for $25, and on the 13th of May following, the sheriff executed to her a deed therefor.
Quindley having no estate in the lands at the time this execution was levied, Mrs. Smith acquired no title by the sheriff’s sale and deed.
The allegations of the bill by which appellant, Whittington, makes out his claim of an equitable title to an undivided half of the lands, in addition to the facts shown above, are in substance as follows:
That on the 1st day of June, 1868, Belser, for valuable consideration, sold said lands to appellant and I. L. Brooks, to have ■and to hold as co-tenants, and, by an instrument in writing, transferred said title bond (the bond executed by John Smith to. 'Quindley and by him assigned to -Belser), and all his interest therein, to appellant and Brooks; and they took possession of the lands, and held- the same- in possession, by their tenants, until the 25th day of April, 1872, when Brooks sold and conveyed his half interest in the lands to appellee Simmons.
That said instrument of writing signed by Belser had been lost or mislaid and could’not be found.
That the balance of purchase money due from Quindley to 'Smith, with all interest thereon, had been fully paid off and satisfied.
That the administration of the estate of Smith-had been finally ■settled and closed by Sarah A. Smith in 1873.
That on the 14th of August, 1867, Belser thou being the real •owner and in possession of the lands, paid to appellee Simmons, .as one of the administrators of the estate of Smith, the sum of -$2346.07 in part satisfaction of the judgment against Quindley, recovered as above shown on the purchase money note, (Simmons admits this and other payments by Belser). That after said note had been assigned to Mrs. Smith as dower, and after she had purchased the lands at execution sale, as above shown,' ■she, in the .year 1872, executed to appellant and Brooks a deed for said lands.
That in June, 1869, appellant and Brooks paid to Mrs. Smith in full the amount due upon the judgment of Quindley, and she-being the administratrix of said estate, and the owner of said judgment in her own right, acknowledged full satisfaction' Thereof.
That- the legal title to the lands descended to the heirs of Smith, on his death, and was still in them.
That the judgment against Quindley having been fully satisfied by appellant and Brooks, and the administration of the estate of Smith closed, appellant was entitled to a deed from the heirs for an undivided half of the lands. Brooks having, as before shown, conveyed to appellee Simmons his undivided half of the lands, who thereby'became the co-tenant of appellant.
The counsel for appellant does not rely for title on the conveyance made by the sheriff to Mrs. Smith, and her conveyance to him and Brooks; on the contrary, he concedes that she acquired no title by her purchase at the sheriff’s sale, and insists that Simmons obtained none by his purchase at the previous sale by the sheriff, and in this we think he is right as above indicated.
Appellant’s claim to an equitable title to an undivided half of the lands rests upon the alleged purchase by him and Brooks of the equitable estate of Belser in the lands; and he asks a. decree against the heirs at law of Smith for the legal title to an undivided half of the lands, on the ground that they have no claim for unpaid purchase money, Quindley’s note to their father having been satisfied, as shown in the bill.
As against the heirs of Smith, who it seems were of age when the bill was brought, appellant was entitled to a decree for the want of an answer.
It appears that after the alleged sale of the lands by Belser to appellant and Brooks, he was adjuged a bankrupt on his own petition, obtained a discharge, and afterwards died. He did not put the lands in his schedule.
Simmons denies, in his answer, the sale of the lands by Belser to appellant and Brooks.
The only depositions read upon the hearing were those of Brooks and Simmons.
Brooks was a disinterested witness, having conveyed, his interest in the lands to Simmons. Pie proves the sale by Belser of his interest in the lands to him and appellant, substantially as alleged in the bill. He states that they paid Belser about f 500 in legal services, and the advancement of fees, etc., and took his written assignment of Smith’s bond for title, which had been lost or mislaid. Belser was to have until an agreed time to -redeem the lands, but failed to do so. He delivered to them the bond for title. ,
In these statements Brooks is not contradicted by the deposition of Simmons.
Brooks also proves that after the Quindloy note had been assigned to Mrs. Smith for dower, he and appellant purchased it of her, and took her written assignment of it, and the judgment recovered upon it in the Circuit Court of Drew County, which he appends to his deposition, and which bears date January. 15th, 1870.
Simmons states in his answer: “ That some time in January, 1868, Belser agreed to give defendant possession of said Quindley Place for a valuable consideration, and that afterwards, in the latter part of February, 1868, he did deliver possession of said place to this defendant, and also agreed to deliver up the title bond of said Smith to Quindley, and that such possession was delivered to this defendant after his purchase of said lands at the sale by the sheriff of Ashley County. That at the time this agreement was' made with said Belser, he did not have said bond for title with him, but proposed to defendant to go with him to his house and he would deliver him up the bond. This defendant believing that the whole matter was settled, and that said Belser would not, or could not make any improper use of' said bond, did not think it worth while to go to his house for it. All this occurred before the pretended bargain and sale of said lands by Belser to said plaintiff and Brooks.”
Conceding that Simmons proved in his deposition all that is so ■as above alleged, he fails to make out any valid purchase by him of Belser’s equitable title to the lands. He alleges, in substance, that in January, 1868, Belser agreed to give him possession of the lands, for a valuable consideration, and afterwards in the latter part of February, 1868, and after he had purchased the lands at sheriff’s sale, such possession was delivered to him.
He does not aver that he purchased the lands of Belser for a valuable consideration, and that possession Avas delivered to him under such purchase. McNeill v. Jones, 21 Ark., 277.
If appellant and Brooks did not acquire Belser’s title, Simmons got none by the conveyance of Brooks to him, and his purchase at the sheriff’s sale, on which he relies, being Avorthless, he has no title.
True, he exhibits with his answer a paper bearing date-•day of-, 1869, purporting to be an agreement betAveen him and the'heirs of Smith to compromise some matters in litigation between them,, by Avhich they agreed to make to him a quitclaim deed to all their right, title and interest in and to the Quindley lands, in consideration of Iris releasing certain claims against the estate of Smith, etc., but the execution of the instrument is acknowledged before no officer, and some of the heirs, who seem to have signed the paper, Avere married Avomen, and it was signed for others, who Avere at the time infants, by a guardian ad litem.
"Whether Simmons can enforce this agreement as to the undivided half of the lands not claimed by appellant, whether, regardless of this agreement, he would not, as vendee of Brooks, be entitle-d to a decree against the heirs of Smith for the legal title to an undivided half of the lands, we are not called upon to decide on this appeal, as he did not make his answer a cross bill, or in any mode ask relief.
The counsel for Simmons submits that the sale by Belser of his interest in the lands to appellant and Brooks, made not long before he went into bankruptcy, and perhaps in consideration of legal services and fees advanced in the bankrupt case, was a fraud on the creditors of Belser.
It is sufficient to say of this that Simmons does not claim to have been a creditor of Belser, and if he was, he should have made this plea of fraud in the Bankrupt Court while the proceedings in bankruptcy were pending.
Upon the facts appearing in the record before us, the heirs of Smith hold the naked legal title to an undivided half of the lands in controversy in trust for appellant, and the court below, instead of dismissing the bill for want of equity, should have rendered a decree in accordance with the prayer of the bill.
The decree must be reversed, and the cause remanded with instructions to the court below to render a decree in favor of appellant for an undivided half of the lands as against Simmons and the heirs at law of Smith, and to make such further orders in the cause as may be in accordance with equitable principles and practice, and not inconsistent with this opinion.
As the heirs of Smith did not contest appellant’s claim to relief, the costs of this appeal will be taxed against appellee / Simmons. | [
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Annabelle Clinton Imber, Justice.
This case raises the question of whether service on a court-appointed attorney for an absent military person is sufficient service of process in a case of continuing jurisdiction on the issues of custody and guardianship. Based on the arguments briefed by the petitioner, we deny the petition for a writ.
Tamra and Jeffrey Finney, grandparents of Je’son and Tristin, filed a family-in-need-of-services petition in the Garland County Chancery Court, juvenile division, on September 3, 1999, contending that petitioner Patricia Finney, the children’s mother, and Jason Finney, the father, were not providing a stable home environment. The juvenile court entered a disposition order on September 21, 1999, finding the parents to be in need of services and ordering that (1) the Department of Human Services conduct a home assessment; (2) the parents complete parenting classes and attend counseling; (3) temporary custody of the children be awarded to the paternal grandparents, Tamra and Jeffrey Finney; (4) an attorney ad litem be appointed for the minors; and (5) a review hearing be scheduled. At the review hearing in November 1999, the chancellor ordered DF1S to provide support services, with custody to remain with the grandparents and the parents to pay child support and complete counseling and parenting classes. Prior to another review hearing scheduled in January 2000, the grandparents filed a petition for guardianship of the children, and temporary guardianship was granted on January 6, 2000. The court also appointed an attorney to represent Patricia. On April 11, 2000, the temporary guardianship was terminated, and the children were returned to the sole custody of their mother, Patricia. However, the trial court declared in the April 11, .2000 order that all previous orders not in conflict with the custody order remained in full force and effect.
Patricia joined the Army and was stationed in Hawaii. The grandparents filed another petition for guardianship and emergency relief on September 29, 2000, and temporary guardianship was granted immediately. The juvenile court conducted hearings in October and December 2000, at which Patricia was represented by her court-appointed attorney, but she did not attend in person. The court heard testimony from the grandparents and received affidavits and other evidence from Patricia’s commanding officers and the military daycare facility. In its January 10, 2001 order, the juvenile court denied Patricia’s motions to dismiss for lack of subject-matter and personal jurisdiction and found that it had contin uing jurisdiction based on its April 2000 order and personal jurisdiction based on Patricia’s permanent residence and/or domicile. The court found that it was not in the best interest of the children to remain in the custody of Patricia, granted guardianship of the children to the grandparents, and ordered Patricia not to pay child support, but to use the funds for visitation travel expenses.
On October 26, 2001, the grandparents filed a petition for contempt alleging that Patricia had removed the children from Piawaii and taken them to Pennsylvania in September, 2001. According to the petition, she was eventually arrested and extradited to Arkansas on a charge of interference with custody. The circuit court ordered Patricia to appear and show cause why she should not be held in contempt. Patricia petitioned this court for a writ of prohibition, and the circuit court stayed the proceeding pending this court’s ruling on her petition. We have jurisdiction pursuant to Ark. Sup. Ct. R. 1-2(a) (3) (2002). Even though the petition is incorrectly filed against the judge rather than the circuit court, we will treat the petition as one against the circuit court. Pike v. Benton Circuit Court, 340 Ark. 311, 10 S.W.3d 447 (2000).
Patricia’s sole argument is that the trial court was without jurisdiction to enter the guardianship order due to a lack of personal jurisdiction because neither she nor her children lived in Arkansas, and she was never properly served with notice. She further argues that because both the arrest warrant for interference with custody and the subsequent order to show cause were based on the guardianship order, the proper remedy is a writ of prohibition.
A writ of prohibition is extraordinary relief that is appropriate only when the trial court is wholly without jurisdiction. St. Paul Mercury Ins. v. Circuit Court, Craighead, 348 Ark. 197, 73 S.W.3d 584 (2002). The writ is appropriate only when there is no other remedy, such as an appeal, available. Id. Prohibition is a proper remedy when the jurisdiction of the trial court depends upon a legal rather than a factual question. Id. We confine our review to the pleadings in the case. Id.
Patricia first contends that the trial court did not have personal jurisdiction over her at the time it granted guardianship to the grandparents because she and the children lived in Hawaii. The resolution of this issue would require us to consider whether Arkansas remained the “home state” as defined by the Uniform Child Custody Jurisdiction and Enforcement Act, codified at Ark. Code Ann. §§ 9-19-101 et seq. (Repl. 2002) and the federal Parental Kidnapping Prevention Act, codified at 28 U.S.C. § 1738A (West 2002). Because such an analysis necessarily turns upon some fact to be determined by the trial court, prohibition is not the proper remedy. Fausett v. Host, 315 Ark. 527, 868 S.W.2d 472 (1994). The related issue of the trial court’s continuing jurisdiction under Ark. Code Ann. § 9-19-202 (Repl. 2002) also involves a similar factual determination.
A writ is the appropriate vehicle to challenge a show-cause order where the petitioner alleges that the contempt proceedings are based on a void order. In Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980), we granted a petition for a writ of prohibition where the petitioner alleged that the inferior court was wholly without jurisdiction to hold him in contempt for an order that was void because the court’s ruling was based on an unconstitutional statute. Id. The county judge for Pulaski County was ordered by a circuit court to pay certain county employees’ salaries. Id. Instead of appealing the circuit court’s ruling, the county judge asked the quorum court on two separate occasions to appropriate funds to pay the salaries. Id. After the quorum court rejected his requests, the circuit court ordered the county judge to appear and show cause why he should not be held in contempt. Id. We held as follows:
Since the Act is void, it follows that the respondent court had no jurisdiction to issue its order. In the case of Mears v. Adkisson, 262 Ark. 636, 560 S.W.2d 222 (1978), we held that where a court order was based on an invalid act, the court had no jurisdiction to act and, therefore, its order was void and subject to a writ of prohibition.
Id. at 514, 593 S.W.2d at 13; Duncan v. Kirby, 228 Ark. 917, 311 S.W.2d 157 (1958). Therefore, where the petitioner alleges that the underlying order is void, a writ of prohibition is the appropriate vehicle to challenge a subsequent order for the petitioner to show cause why he or she should not be held in contempt.
The instant case, however, differs from the Beaumont case. Here, Patricia alleges that the underlying order is void for lack of personal jurisdiction, as opposed to alleging that the order is based on an unconstitutional statute.
Generally, matters of personal jurisdiction are not proper subjects for a petition for writ of prohibition. Helm v. Mid-America Industries, Inc., 301 Ark. 521, 785 S.W.2d 209 (1990). This is so because personal jurisdiction generally turns on a fact-intensive question, such as, did the defendant have sufficient contacts with the forum state, or did the defendant purposely avail himself of the protections of the forum state. Id. However, where personal jurisdiction turns on the legal sufficiency of notice, it is no longer a factual question, but is a question of whether service complied with the law. Green v. Mills, 339 Ark. 200, 4 S.W.3d 493 (1999); Fausett & Co., Inc. v. Bogard, 285 Ark. 124, 685 S.W.2d 153 (1985). In this limited area, a writ remains an appropriate remedy because the question is whether the court was wholly without jurisdiction over the person as a matter of law rather than as a question of fact. Green v. Mills, supra. In this case, the question is whether Patricia was served in the manner required by law; therefore, a writ is the appropriate remedy.
Likewise, under similar circumstances, we have concluded that the remedy of appeal would be inadequate. Beaumont v. Adkisson, supra. Similarly, this court has rejected the suggestion by the concurrence thai Patricia should wait until after the contempt proceeding and then appeal:
When it appears to the court having jurisdiction to issue the writ of prohibition, that the lower court, under any conditions, is without jurisdiction to try the accused upon the alleged information filed, to require him to invoke the remedy of appeal, occasioning delay and necessitating a supersedeas bond, or resulting in his being confined in jail pending the determination of his appeal, would work an unnecessary and unreasonable hardship upon the accused.
Duncan v, Kirby, Judge, 228 Ark. at 921, 311 S.W.2d at 160.
Patricia contends that her court-appointed attorney was not empowered to receive notice in her behalf. Patricia argues that she did not receive the notice required by Ark. Code Ann. § 28-65-207(b)(2) in the manner prescribed in Ark. Code Ann. § 28-1-112. The State counters that under section 28-1-112(e) notice may be served upon the party’s attorney of record. Section 28-65-207 (b) (2) provides that notice of a hearing for the appointment of guardianship is to be served upon “[t]he parents of the alleged incapacitated person, if the alleged incapacitated person is a minor . . . .” Ark. Code Ann. § 28-65-207(b)(2) (Supp. 2001). Section 28-l-112(e) of the Probate Code provides as follows:
Service on Attorney. If there is an attorney of record for a party in a proceeding or matter pending in the court, all notices required to be served on the party in the proceeding or matter shall be served on the attorney, and this service shall be in lieu of service upon the party for whom the attorney appears.
Ark. Code Ann. § 28-1-112(e) (Supp. 2001). It is undisputed that service was made on Patricia’s attorney of record. Thus, the service of notice was in compliance with Ark. Code Ann. § 28-1-112(e).
Based on the arguments presented in support of the petition, we conclude it is not apparent on the face of the pleadings that the trial court is wholly without jurisdiction. Accordingly, we deny the writ.
Writ of prohibition denied.
Corbin, Thornton, and Hannah, JJ., concurring.
Arnold, C.J., not participating.
By virtue of Amendment 80 to the Arkansas Constitution, which became effective on July 1, 2001, our state courts are no longer chancery and circuit courts. These courts have merged and now carry the designation of “circuit court.”
The State also contends that service was in compliance with Ark. R. Civ. P. 5 (2002). However, there may be a conflict between the provisions of Rule 5 and section 28-l-112(e). Rule 5(b) requires service on the party, not the attorney, “in a case where there is a final judgment but the court has continuing jurisdiction.” Office of Child Support Enforcement v. Ragland, 330 Ark. 280, 286, 954 S.W.2d 218, 221 (1997) (superseded in part by amendments to Rule 5). The resolution of this potential conflict depends on whether this is a civil action or a special proceeding that would be exempted from our rules of civil procedure under Ark. R. Civ. P. 81(a) (2002). We decline to address the issue because it was neither raised nor briefed by the petitioner. | [
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English; Ch. J.:
The appellant, Isaac Cohen, was indicted in the Circuit Court •'of Garland County for gaming, the indictment charging:
“That said Isaac Cohen, on the 10th day of January, 1877, in the county aforesaid, did then and there unlawfully bet money •on a certain gaming table or device commonly called ‘ Faro Bank/ which said Faro Bank was adapted, devised and designed for the purpose of playing a game of chance, at which said game money could have been won and lost, contrary to the form of the statute, etc., and against the peace, etc.”
The defendant was tried on a plea of not guilty.
Wm. Sumpter, a witness for the State, testified in substance, that he lived in the City of Hot Springs, and knew defendant. Some time in the month of January, 1877, he saw defendant betting at. a gaming table, commonly called “ Faro Bank,” at Malen & Lamis’ saloon. Henry Hecox was dealing the game ¡at the time. He did not see defendant betting money at said game, but saw him betting checks, which he supposed represented money. He saw defendant hand over the money for the checks, ¡and then bet them off at the game. Witness had never bet at a Faro Bank, but he understood the game. Hecox had a Faro box in which he placed a deck of cards, also had a number of cards pasted on a table. The checks used in carrying on the game were made of ivory, bone or some kind of composition. In Faro Bank games, they usually represent money. Defendant bet his checks on the cards on the table, and then Mr. Hecox would draw the cards from the Faro box one by one, and if the card came up like the one the checks were bet on, then defendant would win; if not, he would lose. Witness did not remain long, and did not know whether defendant won or lost money on the game. This occurred in Garland County in January, 1877.
On cross-examination, he stated that he knew the chips defendant bet on the game represented money, because he saw him pay money for them. He did not know that the game upon which the checks were bet, by defendant, was a game of Faro Bank, but it was so commonly called.
•Here the State closed.
Dr. Sturn, witness for defendant, testified, that defendant was sick in bed on the'10th of January, 1877, the day charged in the indictment. That he attended him as physician, and knew that he was not out of his room on that day or night.
Frank Flynn, witness for defendant, testified : “lam familiar with the rules of gaming at a Faro Bank. Chips do not necessarily represent money or any thing of value. Money and chips are frequently bet simply for the purpose of keeping the game running, to induce others to bet, and are often bet for fun.”
Martin Hoack, witness for defendant, testified: “ I am familiar with the rules of the game of Faro Bank; and know that chips do not always represent money or a thing of value. I know that money or chips bet for fun do not win or lose.”
On cross-examination : “ that in his country (Germany) when a person pays money for chips, he means business, and would not buy chips and pay money for them to bet off for amusement.”
The above was all the evidence, as set out in the bill of exceptions signed by the judge.
At the instance of the State, the court gave two instructions to the jury, which, it seems were not objected to by the defendant, and need not be set out.
The defendant moved the following instructions, which were given by the court:
• “First — The jury are instructed by the court, that it is incumbent on the State to prove every material allegation in the indictment, and unless the jury believe from the evidence, that the defendant did bet money upon the game, as charged in the indictment, they must acquit.
“Second — That if they had, from the evidence, a reasonable doubt as to the guilt of the defendant, they, must acquit.
“Third — That unless they are satisfied beyond a reasonable doubt, from the evidence, first, that defendant.bet .money, and second, that he bet it upon a game of chance. called Faro Bank, as charged in the indictment, they must acquit.”
The defendant further asked the court to instruct the jury :
“Fourth — That every material allegation of the indictment must be proved as therein alleged, and unless the same is so proven to their satisfaction beyond all reasonable doubt, they must acquit.
• “Fifth — That it devolves on the State to make strict proof of every material allegation in the indictment as laid, in order to convict the defendant, and unless such proof is so made, and unless the same excludes every other hypothesis but the guilt of the defendant, they must acquit.”
The court refused these two instructions and gave the following general charge:
“The indictment in this case is for betting money upon a gaming table commonly called Faro Bank, and the charge ’so> made must be proven as alleged; and that money was bét. But if the jury believe from the evidence, that in carrying on the game, chips were used instead of money, and that these chips represented money paid into the bank, and in that way money was bet, this would be sufficient proof of betting money., If the jury are satisfied from the evidence, that money was bet, it is immaterial how it was done, whether by betting the money directly, or through chips, Avhich represented the same.
“ The jury will take the case, and if from the testimony in the Avhole case, they believe, beyond a reasonable doubt, that defendant is guilty, they Avill return a verdict of guilty, and assess his punishment at not less than fifty, nor more than .one hundred dollars ; on the other hand, if from the testimony in the whole case', they have a reasonable doubt of his guilt, they will return a verdict of not guilty.”
To this general charge the defendant objected.
The jury found the defendant guilty, and assessed his punishment at a fine of $50.
He made a motion for a new trial, Avhich Avas overruled, and he presented a bill of exceptions, which the court signed after, making corrections in it. Defendant attempted to sustain the bill of exceptions originally drafted, by affidavits, but failed. Judgment in accordance Avith the \Terdict, and defendant appealed.
I. The evidence was sufficient to support the verdict. There was no conflict between the testimony of ¥m. Sumpter and the testimony of Dr. Sturn. The former stated that he saw appellant betting at a Faro Bank sometime in the month of Januaiy, 1877. The latter stated that appellant Avas sick and confined to his bed, and not out of his room, during the day and night of the 10th of January, 18.77,- the day laid in the indictment as the time, of the offense. .The': indictment was found at., the, May: Term, 1877. It was sufficient for the State to prove the offense to have been committed on any day-before the finding of the indictment, and within the period of limitation. The particular day laid in the indictment was not material. Scoggin v. The State, ante.
The witness, William Sumpter, saw appellant pay to the keeper of the Faro Bank money for checks, and bet them off on the game. The checks represented the money. The Faro box, the cards, the table and the checks, were manifestly the machinery of the game, and the betting on the game was for money represented by the checks.
It seems from the testimony of appellant’s witnesses that there are sometimes sham betters at Faro; men who seemingly bet to induce others to bet at the game; drummers for the concern; like sham bidders at a mock auction. But there was no evidence that appellant was a sham better. If this had been proven, perhaps the jury might have been disposed to double the fine they put upon him.
Nor was there any evidence that appellaut merely went through the form of betting for amusement, but in fact wagered nothing. Fagan v. State, 21 Ark., 390. The jury no doubt believed from the proof that he paid money for the checks, and bet them off on the game, that he “ meant business,” to use the expression of the German witness.-
II. The rule as to doubts, in misdemeanors as well as in felonies, is that the jury are not to find the defendant guilty upon the mere preponderance of evidence, but that they must be satisfied, beyond a reasonable doubt, ■ that the proof sustains the-material allegations of the indictment, otherwise they should acquit. State v. King, 20 Ark., 166.
In the first, second and third instructions moved for appellant' and given by the -court, the - jury were told that it devolved upbii" the State to prove the material allegations of the indictment beyond a reasonable doubt; and this was sufficient on the subject of doubts, which has become a hobby in all criminal cases, without repeating the rule in the language proposed by appellant’s-fourth instruction.
The rule that the guilt of the accused must be established to the exclusion of any other hypothesis, applies in cases depending on circumstantial evidence, and not to a case like this, where the evidence was direct, and the case well enough made out if the jury believed the testimony of the witness ¥m. Sumpter, and he was not impeached, nor his evidence contradicted.
There was nothing objectionable in the general charge of the court.
Affirmed. | [
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Per Curiam.
Appellant Edward Henry Buie filed a motion for rule on the clerk. We previously denied the motion because Appellant’s attorney, John C. Goodson, did not admit fault in failing to timely file the notice of appeal. See Buie v. State, 351 Ark. 198, 89 S.W.3d 929 (2002) (per curiam). We indicated, however, that we would grant the motion if Appellant’s counsel filed an affidavit accepting responsibility for failing to timely file the notice of appeal. Appellant’s counsel has accepted responsibility for the error in an affidavit filed on December 19, 2002.
This court has held that we will grant a motion for rule on the clerk, which we will treat as a motion for belated appeal, when the attorney admits that the notice of appeal was not timely filed due to an error on his part. See, e.g., Brazil v. State, 332 Ark. 74, 959 S.W.2d 55 (1998) (per curiam); Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986) (per curiam). A copy of this opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). | [
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English, Ch. J.:
At the April Term, 1877, of the Circuit Court of Benton County, James H. Bradley, the plaintiff in error, was indicted for an assault and battery upon W. A. Plotner. The offense is alleged to have been committed on the 17th January, 1877.
The defendant pleaded what is called in the record a plea to the jurisdiction of the court, to which the State demurred, and the court sustained the demurrer. Whereupon the cause was submitted to the court, sitting as a jury, and upon the evidence, the court found the defendant guilty, and fined him $10. He filed motions for new trial and in arrest of judgment, which were overruled, and he took a bill of exceptions. Judgment was rendered against him for the fine and costs, and he brought ■error.
Under the present, practice there is no assignment of errors ; no brief has been filed for plaintiff, and we do not really know upon what particular ground a reversal of the judgment is hoped for.
What is termed in the record a plea of jurisdiction, is an attempt to plead two defenses, first, a former prosecution for the same offense pending before a justice of the peace, and seeond, a former conviction of the same offense before a justice of the peace.
The first plea alleges, in substance, that on the 25th day of January, 1877, and before the indictment in this case was found, the State instituted proceedings against the defendant for the identical offense alleged in the indictment in this cause, before one Samuel Box, a' justice of the peace of Hico Township in Benton County, upon the affidavit and written complaint of one Conrad Plotner, then and there filed in behalf of the State, against defendant, charging that he had assaulted the party alleged in the indictment to have been assaulted by the name of W. A. Plotner; upon which affidavit said justice of the peace issued his warrant for the arrest of defendant to answer said 'charge. That said prosecution before said justice of the peace had never been dismissed or otherwise disposed of, but was still pending, etc.-
A copy of the record entries of the justice of the peace in said cause is filed with- and made part of the plea, and it is alleged that the prosecution before the justice was for the same offense alleged against defendant in the indictment.
The transcript of the docket entries of the justice of the peace filed with the plea, shows that on the 25th of January, 1877, Conrad Plotner made affidavit before Samuel Box, a justice of the peace of Hico Township, Benton County, charging that James H. Bradley did on the 23d day of January, 1877, in said county, commit an assault upon W. A. Plotner, minor son of affiant, with an unlawful weapon (a certain stick); and that a warrant was issued by the justice for the arrest of the accused, directed to the constable of the township, returnable fprthwith ; and that on the 25th of the same month, the constable returned the writ not executed, because said Bradley could not be found. The transcript shows no further prosecution before the justice of the peace.
Sec. 11, art. vii., of the Constitution provides that: “ The Circuit Court shall have jurisdiction in all civil and criminal cases, the exclusive jurisdiction of which .may not be vested in some other court provided for by this Constitution.”
Sec. 40, of the same article provides that justices of the peace shall have “ such jurisdiction of misdemeanors as is now or maybe prescribed by law.”
The fifth clause of sec. 1642 of Gantt’s Digest, provides that: <e In criminal causes, the jurisdiction of justices of the peace shall extend to all matters less than felony, for final determination and judgment; Provided, that Circuit Courts shall have jurisdiction concurrent with justices’ courts in all such cases.”
In a case of concurrent jurisdiction in different tribunals, the one first exercising jurisdiction rightfully acquires the control, to the exclusion of the other. 1 Wharton Cr. L. (6th Ed.), 541; Burdett v. The State, 9 Texas, 43.
But in this case, the affidavit was made before the justice óf the peace and the warrant for the arrest of the plaintiff in error issued on the 25th of January, 1877, and on the same day the warrant was returned by the constable not found. The justice ■of the peace acquired no jurisdiction of the person of the defendant for want of service, and no alias writ was issued. There appears to have been no further prosecution of the case before the justice of the peace. The indictment was found in the Circuit Court at the April Term following, when no doubt the prosecution before the justice had been abandoned, and was not pending.
The court did not err in sustaining the demurrer to this plea.
The second plea alleges, “ that on or about the-■ day of February, 1877, defendant appeared in pérson before one John Comer, an acting and duly qualified justice of the peace of said Township of Hico, Benton County, and entered his plea of guilty for the same offense alleged in the indictment of this •cause; upon which plea said justice rendered judgment against him in favor of said State for the sum of five dollars fine, and cost, which fine and cost was by this defendant paid to the proper officer; wherefore he prays judgment.”
The plea does not verify the alleged former conviction by any record, and was bad on demurrer. Atkins v. State, 16 Ark., 568 Wilson v. State, Ib., 610; Johnson v. State, 29 Ark., 34; 1 Wharton, 541.
A justices’ court is not strictly a court of record, but the docket entries, etc., of the justice are quasi records.
Moreover, to render the plea of former conviction availing, the court must not only have jurisdiction, but the proceedings must be regular. Thus, a conviction of breach of the peace before a magistrate, on the confession or information of the offender himself, is no bar to an indictment by the grand jury for the same offense. 1 Wharton Cr. L., 541.
In Commonwealth v. Alderman, 4 Mass., 478, the defendant being arraigned on an indictment for an assault and battery, and being inquired of by the clerk, •whether he was guilty or not guilty, said that he was guilty, but added that he had himself informed a justice of the peace of the county of his offense, by whom he had been sentenced to pay a fine.'
“ The court directed the clerk to enter a plea of guilty alone, observing that it had heretofore been solemnly determined that a conviction of a breach of the peace before a magistrate, on the confession or information of the offender himself, was no bar to an indictment by a grand jury for the same offense.”
We think this good law. It would be an evil practice to permit a man who has committed an assault and battery upon another, to go to a magistrate, tell his own story, and hand him $5 as an atonement for the offense.
The grounds of the motion for a new trial were, that the court-sustained the demurrer to defendant’s plea to the jurisdiction, and required him to plead to the indictment; and that the verdict of the court, sitting as a jury, was contrary to law and evidence.
The sustaining of the demurrer to the plea was not properly assigned as cause for a new trial. The pleas, the demurrer, and judgment of tlie court upon it, were matters of record, and preceded the trial. "VVe have seen, however, that the court did not err in sustaining the demurrer to the pleas.
Whether the court found contrary to the evidence or not, we do not know, as the plaintiff in error failed to set out the evidence introduced on the trial in his bill of exceptions.
The cause assigned in the motion for arrest of judgment, is that the court overruled the plea to the jurisdiction. We have ábove decided that the plea was bad.
Before the adoption of the Criminal Code, though the defendant might be willing to waive his right to trial by jury, there was no statute authorizing the court to try a criminal case. Wilson v. State, 16 Ark., 601; Bond v. State, 17 Ib., 290; Oliver v. State, 17 Ib., 510; Cooper v. State, 21 Ib., 228; Cason v. State, 22 Ib., 214.
But by sec. 1857, Gantt’s Dig., in all cases of misdemeanors the parties may by consent, waive a jury, and submit the law and facts to the court, etc.-
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-126,
85,
73,
-104,
12,
98,
102,
33,
109,
-49,
-32,
-119,
46,
127,
-99,
-89,
17,
64,
11,
12,
-98,
-99,
118,
16,
2,
-12,
109,
-59,
16,
120,
1,
-57,
-76,
-79,
-49,
96,
-36,
51,
-13,
39,
52,
116,
-51,
102,
93,
73,
121,
59,
-98,
-36
] |
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