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PER CURIAM.
Calvin J. Leavy was found guilty by a jury in 1992 of participating in a continuing criminal enterprise, public servant bribery, delivery of cocaine, and use of a communication facility in furtherance of a drug felony. He was sentenced respectively to terms of imprisonment of life, six years, twenty-five years, and ten years. We affirmed. Leavy v. State, 314 Ark. 231, 862 S.W.2d 832 (1993).
In 1995, Mr. Leavy filed a pro se petition for writ of habeas corpus in the circuit court in the county in which he was incarcerated. An order was entered denying the petition on September 19, 1995. An appeal of the order was not perfected, and petitioner Leavy now seeks to proceed with a belated appeal.
Petitioner contends that he forwarded a notice of appeal to the circuit clerk on September 26, 1995, which was not filed by the clerk. He argues that it can be determined from an affidavit attached to the motion for belated appeal that he filed the notice, but the affidavit is merely petitioner’s notarized statement that he had the notice of appeal notarized on September 26, 1995, and mailed it on September 27, 1995. There is nothing in the record or the motion to show that the circuit clerk received a notice of appeal from the petitioner within the thirty days allowed for filing a timely notice of appeal pursuant to Rule 4 (a) of the Rules of Appellate Procedure. We take judicial notice that petitioner forwarded a copy of a notice of appeal to this court which pertains to the September 19, 1995, order, but the filing date on the notice was November 28, 1995, making it untimely.
A petitioner has the right to appeal an adverse ruling on a petition for postconviction relief. See Scott v. State, 281 Ark. 436, 664 S.W.2d 475 (1984). With that right, however, goes the responsibility to file a timely notice of appeal within thirty days of the date the order was entered in accordance with Rule 4(a). If the petitioner fails to file a timely notice of appeal, a belated appeal will not be allowed absent a showing by the petitioner of good cause for the failure to comply with proper procedure. Garner v. State, 293 Ark. 309, 737 S.W.2d 637 (1987). The fact that a petitioner is proceeding pro se does not in itself constitute good cause for the failure to conform to the prevailing rules of procedure. Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984); Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983).
This court has specifically held that the litigant who claims to have mailed an item has the burden of proving that he mailed it, and the bare allegation that a notice of appeal was mailed is not good cause to grant a belated appeal. Skaggs v. State, 287 Ark. 259, 697 S.W.2d 913 (1985). As we said in Skaggs,
If it [the allegation that a notice was mailed] were [sufficient], there would be no point in setting up rules of procedure since the procedural requirements could be circumvented by a simple claim that the petitioner’s failure to comply with the rules was caused by the post office.
The petitioner here appears to blame the circuit clerk rather than the post office for the fact that a notice of appeal was not filed in a timely manner, but the fact remains that he has presented nothing to show that he mailed it in a timely manner. It must be assumed that if the petitioner had mailed the notice to the clerk, it would have been delivered. As petitioner has not established that the clerk received the notice within thirty days of the order appealed from, did not file it, and has stated no good cause for his failure to file a timely notice of appeal, the motion for belated appeal is denied.
Motion denied.
Dudley, J., not participating. | [
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English, Ch. J.:
On the 22d day of August, 1876, Edgar McLendon filed a bill on the chancery side of the Circuit Court of Dorsey County, agairist ¥m. Breathwit, alleging in substance as follows :
That on the-day of May, 1876, plaintiff executed and delivered to defendant a promissory note for $200, payable on the first day of January, 1877; and to secure the payment of the note gave him a mortgage upon four bales of cotton. That the note was in possession of the defendant; and a certified copy of the mortgage made an exhibit to the bill.
That the note and mortgage were executed under the following circumstances: At the Fall Term, 1875, of the Dorsey Circuit Court, plaintiff was summoned to appear before the grand jury as a witness, and did appear and testify, by answering questions propounded to him, touching a charge of perjury against defendant then under examination before said grand jury, other witnesses being also examined. Afterwards plaintiff’ was summoned as a witness on behalf of the State, to appear before said Circuit Court to testify in the case of the State against William Breathwit,-defendant herein, on an indictment for perjury, and at the Spring Term, 1876, the venue in the case being changed to Bradley Circuit Court, on motion of defendant, plaintiff was required to enter into recognizance to appear as a witness for the State before said court at the Spring Term, 1876, where defendant was tried on the charge of perjury, and acquitted, plaintiff not being called to testify. That after the acquittal and discharge of defendant, he threatened plaintiff with two criminal prosecutions, one for slander and the other for perjury, growing out of and based upon the evidence given by plaintiff as a witness before the grand jury of Dorsey County as above stated. But proposed and offered to plaintiff that he would not prosecute said two criminal charges if plaintiff would execute a note to him for the sum of $200, payable on the 1st of January, 1877, and secure the payment thereof by a mortgage on the property of plaintiff.
Upon this threat, and the proposition offered defendant not to prosecute him as aforesaid, and for no other motive, consideration or purpose, and fearing ■ that defendant would put him to great expense to defend said prosecutions, although based upon false charges, and that said prosecutions would be injurious to his character, although wholly innocent of the false charges threatened, plaintiff was induced to execute the said note and mortgage, and did so execute and deliver them, without any other or further consideration whatever than above stated.
That said note and mortgage were executed without any consideration ; that the supposed consideration for which they were given, above stated, was illegal, fraudulent and void.
That said mortgage being duly recorded appeared on its face as a lien on four bales of plaintiff’s crop of cotton, and as an incumbrance upon so much of his personal property, and was a hindrance to the free and absolute use and control of the same.
Prayer, for a decree cancelling the note and mortgage, and that they be declared fraudulent and void, etc.
Defendant answered the bill, admitting the execution of the note and mortgage, but denying that they, or either of them, were executed for the consideration set forth in the complaint, and avers the truth to be that at the Eall Term, 1875, of the Dorsey Circuit Court, plaintiff maliciously and without probable caus'e instituted and prosecuted before the grand jury of said county a ceatain inquiry against defendant, and procured an indictment to be found against him, being the indictment mentioned in the complaint. And that plaintiff maliciously and without probable cause prosecuted said indictment against defendant ; and by means of such prosecution became liable to him in a large amount for damages, annoyance and expense in defending said indictment; and defendant was intending to report plaintiff to the Grange, and to institute a civil suit against him for damages aforesaid ; and in satisfaction of said damages and expenses, and to prevent any suit for damages and the exposure of plaintiff's misconduct before the Grange, and for no other or different consideration, plaintiff executed and delivered said note and mortgage to defendant.
That since the commencement of this suit the property mortgaged, or intended to be mortgaged, had been sold by plaintiff, and removed beyond the limits of the State.
The answer also contained a demurrer to the bill for want of equity.
The plaintiff demurred to the answer on the ground that it did not set forth facts sufficient to constitute a defense to the bill.
The court sustained the demurrer to the answer, and rendered a decree declaring the note and mortgage fraudulent and void; that defendant be forever enjoined from attempting to collect or assign the same, and that the mortgage be cancelled and held for ■nought, etc.
Since the case was brought here, the death of appellee, McLendon, was suggested, and his administrator, Abner D. Rogers substituted.
I. It is insisted for appellant that the demurrer to the answer reached back to the bill, and that the bill was bad for want of equity.
Any contract which can prevent or impede the due course of public justice, is invalid.
And the rule on this subject would appear to be, that in all cases of offenses which involve damages,to an injured party, for which he may maintain an action, it is competent for him, notwithstanding they are-also of a public nature, to compromise or settle his private damage in any way he may think fit; but that an agreement for suppressing evidence, or for stifling or compounding a criminal prosecution, or proceeding for a felony, or for a misdemeanor of a public nature, for example, perjury or the like, is void. 2 Chitty on Contracts (11 Am. Ed. by Perkins), p. 991.
A bond, note, or other promise, is void, if it be given in consideration of compounding a prosecution for felony, treason or a public misdemeanor. 1 Story on Contracts, sec. 569; Shaw v. Reed, 30 Maine, 105.
Taking the allegations of the bill to be true, as if upon demurrer, the note being for an illegal consideration, was void in the hands of the payee, but being negotiable paper, he might, if not restrained, assign it for value, before maturity to a person without knowledge of its illegality, and thereby cut off the defense of the maker. Plence a court of equity has jurisdiction to compel the payee of the note to surrender it up to be cancelled. Darst v. Brockway et al., 11 Ohio, 471.
In cases where agreements or other transactions are repudiated on account of their being against public policy, the circumstance, that the relief is asked by a party who is perhaps partieeps eriminis, is not in equity material. The reason is, that the public interest requires that relief should be given ; and it is given to the public through the party. Story Eq., sec. 208.
II. Does the answer set up a good defense to the bill ?
The answer denies that the note and mortgage were given to compound or stifle prosecutions for public offenses as alleged in the bill, but avers that they were given in consideration of appellant’s agreement not to bring a civil suit against McLendon for a malicious prosecution, etc.
This was a sufficient consideration for the note. 1 Parsons on Contracts, p. 438.
If the agreement of appellant not to expose the conduct of McLendon before the Grange, entered also into the consideration for the note, as it seems it did from the answer, this did not-vitiate the note, for he was under no legal duty to the public, that we are aware of, to expose or prosecute him before the Grange, which we suppose to be a moral and agricultural institution. It' is certainly not a court recognized by law, wherein offenses against the public may be prosecuted and punished.
"We think the answer, if true, set up a valid defense to the bill, and that the court erred in sustaining the demurrer to it.
Decree reversed, and cause remanded for further proceedings, etc. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
This was a bill to foreclose a mortgage, determined in the Yell Circuit Court.
The bill was filed by Joseph Loupe against Joseph Atchison, the mortgager, and his wife, and Benjamin J. Jacoway, a subsequent purchaser. A decree of foreclosure and sale of the mortgaged premises was rendered against Atchison and Jacoway, and the latter appealed.
The contest here is between Loupe, the mortgagee, and Jacoway.
The mortgage (upon a tract of land situated in Yell county) bears date 2d December, 1851, and is signed by Atchison and wife, Molcy J. Attached to it is the following certificate:
“ THE STATE OF ARKANSAS, j County or Yell. j
This day personally appeared before me, N. S. Jennings, an acting justice of the peace, in and for said county, Robert Atchison and Molcy J. Atchison, both personally known to me, and acknowleded that they signed, sealed and delivered the same in my presants.
Given under my hand this 2d December, 1851.
N. S. JENNINGS, /. P.”
There is also appended to the mortgage, a certificate of the clerk and recorder of Yell county, that it was filed for record in his office, on the 15th day of December, 1851, and duly recorded.
Jacoway purchased the land embraced in the mortgage, of Atchison, for a valuable consideration, and obtained a deed of himself and wife therefor, on the 18th day of December, 1851.
He states in his answer, that he purchased in good faith, without notice of the mortgage, and submits that the certificate of acknowledgment attached to the mortgage was informal, and insufficient to authorize its registration, and that the filing of it in the recorder’s office did not operate as a legal constructive notice to him of the existence of the mortgage when he purchased the land.
The case was heard upon the pleadings and exhibits, and an agreement of parties, that the mortgager remained in possession of the land until Jacoway purchased, when he took possession of it.
There is no question before us as to the validity of the exetion and acknowledgment of the mortgage by Mrs. Atchison, and no decree appears to have been rendered against her, and there was no appeal by her, or her husband.
Was the certificate of the justice of the peace of the acknowledgment of the mortgage by the mortgager, sufficient?
A mortgage not acknowledged, or proven, and recorded, as required by the statute, though good between the parties to it, is not valid as against subsequent purchasers or incumbrancers of the mortgaged premises, though they may have actual notice of the existence of the mortgage. Gould’s Dig. ch. 117,sec. 2; Main et al. vs. Alexander, 4 Eng. R. 112; Hannah ad. vs. Carrington, 18 Ark. 105.
Mortgages must be acknowledged before some person authorized by law to take the acknowledgment of deeds, etc. Gould’s Dig., ch. 117, sec. 1.
The acknowledgments of deeds and instruments of writing for the conveyance of real estate, or whereby such real estate is to be affected in law or equity, shall be by the grantor appearing in person before the court or officer having the authority by law to take such acknowledgment, and stating that he had “ executed the same for the consideration and purposes therein set forth.” Ib. ch. 37, sec. 18.
Every court or officer that shall take the proof or acknowledgment of any deed of conveyance of real estate, etc., shall grant a certificate thereof, and cause such certificate to be endorsed on said deed, etc., etc. Ib. sec. 16.
All deeds and other instruments in writing, for the conveyance of any real estate, or by which any real estate may be affected, in law or equity, shall be proven or duly acknowledged in conformity with the provisions of this act, before they, or any of them shall be admitted to record. Ib. 22.
A substantial compliance with what the statute requires to be done, ought affirmatively, to appear from the certificate. Trammell vs, Thurmond, 13 Ark. 217; Blagg vs. Hunter, 15 Ark. 246. A literal compliance with the statute is not required — the words of the statute need not be used — words of similar import may be employed, but the Courts cannot dispense with a substantial compliance with the statute. 13 Ala. 376; 5 Port. 413; 11 Wheat. 208; 9 Mo. 510.
Courts'cannot, by intendment, supply important words omitted in the certificate, 11 Cow. 131; Cow. & Hill’s notes on Phil. Ev., part 2, 402.
In the certificate before us, the word “ same ” has no antecedent, but the certificate' being attached to the deed, perhaps the word deed, mortgage or instrument might be supplied by intendment, if this were the only defect in the certificate. So the words, “ signed, sealed and delivered,” employed in the certificate, are equivalent to the word “ executed,” used in the statute. But the words “for the consideration and purposes therein set forth,” used in the statute, are wholly omitted in the certificate, and no words of similar import substituted therefor. We must suppose that these words were inserted in the statute for some useful purpose, and we have been able to find no authority to warrant their omission.
If they are to be disregarded, why not disregard any other provision of the statute? Where is the line to be drawn between what is essential, and that which is not essential?
The certificate, taken altogether, is exceedingly informal and defective, and to sustain it, would be to disregard the plain provisions of the statute.
The decree of the Court below must be reversed, and the cause remanded, with instructions to dismiss the bill for want of equity, as to appellant. | [
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Mr. Justice Compton
delivered the opinion of the Court.
Joshua Goff was indicted in the Crawford Circuit Court, for laboring on the Sabbath, etc. The trial resulted in his acquittal, and the State appealed.
The facts as set out in the bill of exceptions, are briefly these: Goff was engaged in cutting and binding wheat — a negro man cutting and Goff binding after him — on Sunday; for a week previous to the cutting, Goff wras swapping work in harvest, with his neighbors, who were afterwards to help him; Goff was a poor man and had no cradle of his own, and waited to get one from his neighbor; when his neighbor quit cutting on Saturday evening, Goff got the cradle and hired the negro to cut for him the Sunday following; the weather wras rather unsettled; rained the next day; Goffs wheat was very ripe and wasting, and from its appearance then, hadbeen ripe enough to cut four or five days before that time. This was all the evidence adduced on the trial.
The Court, on motion of the Attorney for the State, charged the jury—
1. That if they believed from the evidence, that Goff was laboring in and about, tying up wheat on Sunday, etc., within one year next before the finding of the indictment, and that said labor was other services than customary household duties, of daily necessity, comfort or charity, they should find him guilty.
2. That the mere fact of Goff being a poor man, and having no cradle of his own,wTould not justify him in having his wheat cut, and tying it up on Sunday.
On motion of Goff, and against the objection of the Attorney for the State, the Court further charged the jury:
1. That Goff had a right to preserve his property from waste on the Sabbath day, and if his property was going to waste, and likely to be lost by any unforeseen or unavoidable circumr stance, he was justifiable in laboring to preserve it.
2. That if the jury believe Goff could not have saved his wheat on any other day, and it was necessary, either to do so on Sunday, or suffer it to be lost, they must acquit.
The statute provides that every person who shall be found laboring on the Sabbath day, or shall compelí his apprentice, servant or slave to labor or perform other services than customary household duties of daily necessity, comfort or charity, shall be deemed guilty of a misdemeanor, etc. Gould’s Dig. p. 373, sec. 1.
From an examination of the testimony, it is manifest that there was no evidence whatever conducing to prove such a necessity for laboring on the Sabbath, as is contemplated by the Statute; nor of such necessity as is contemplated by the instructions given the jury at the instance of Goff. It was not shown that he even tried to procure a cradle, and from poverty or any other cause, did not succeed — he was laboring for others when he should have been at work for himself, and “ waited ” until Satut'day night to get a cradle.
The husbandman should look forward to the ripening of his grain as an event which must happen, and should make such timely provision for the harvest as not to violate the Sabbath. This is a duty enjoined alike upon the poor and the rich.
The instructions given by the court for Goff, if correct, were abstract, and under the circumstances were well calculated to mislead the jury.
The judgment must be reversed, and the cause remanded with instructions to grant the State a new trial. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
This was a bill for specific performance, etc., filed by Henry Walthall, in the Ashley Circuit Court, against Samuel Meek, John Fogle ,Battice Fogle, Nancy Fogle, John C. Gillis, and wife Jane, formerly Fogle. Decree in favor of Walthall, for a part of the relief prayed by the bill, and an appeal by Meek.
It appears from the pleadings and evidence, that on the 22d August', 1853, John Fogle, Battice Fogle, Nancy Fogle, Francis Fogle and Jane Gillis, were the owners in fee of a tract of land, situated in Ashley county, containing about seventy-three acres, subject to the dower right of their mother, Sylvia Fogle. That on the day referred to, all of the persons named, except Jane Gillis, entered into a written contract with Walthall, by which they bound themselves to execute and deliver to him, on or before the 1st January, 1854, a good and sufficient deed, with covenants of warranty, release of dower, etc., for the said land; in consideration whereof he covenanted that he would, on such deed being tendered to him by them, on or before the time stipulated, pay to them $700, being the amount of purchase money agreed upon by the parties.
The bill alleges that the grantors, who signed the contract, acted also for Gillis and wife, in making the sale, etc.
It appears, also, that under the contract, Walthall was put into possession of the land; after which, in the latter part of the year 1853, Sylvia Jogle and Frances Fogle, departed this life.
At the time the contract was signed, Nancy Fogle was an infant, which fact she avers in her answer, and expressly dis-affirms the contract.
It seems that on the death of Frances Fogle, the legal title to the land was held by the other parties, in the following proportions: Battice Fogle, three sevenths; John Fogle, two sevenths; Nancy Fogle, one seventh, and Jane Gillis the remaining seventh.
That, on the 13th day of November, 1854, John C. Gillis and wife Jane, John Fogle-and Battice Fogle, sold and conveyed the land by deed, with covenants of warranty (except the one seventh interest of Nancy Fogle,) to appellant, Meek, for $600, who purchased with full notice of'the contract between Walt- hall and the Fogles, and entered upon the land, dispossessing Walthall, etc.
The Court dismissed the bill for want of equity, as to Gillis and wife, and Nancy Fogle, and decreed that appellant, upon the payment to him of $500, by Walthall, should convey to him an undivided five sevenths of the land, etc.
1. On the hearing, the deposition of John C. Gillis, taken under an order of Court by appellant, was excluded on the ground .of interest, etc., and this is assigned as error.
The object of the deposition seems to have been to prove that Walthall had abandoned his contract with the Fogles before Meek purchased the land.
Gillis was an incompetent witness, because he had joined John Fogle and Battice Fogle, in a conveyance to Meek of six sevenths of the land, with covenants of warranty, and was liable upon the covenant if Walthall succeeded in recovering the land of Meek.
The rule is, that where the title to property is in controversy, a person who is bound to make it good to one of the litigating parties, against the claim of the other, is identified in interest with that party, and therefore cannot testify in his favor. Arnold et al. vs. McNeill, 17 Ark. 184; McCarron vs. Cassady, 18 ib. 47.
2. It is insisted by the counsel for the appellant, that appellee having sought specific performance of the contract, as to the whale of the land, and failed in that, he was not entitled to performance as to part. In other words, that he must recover the whole of the land, or none; and in support of this position Going vs. Nash, et al. 3 Atk. 190, is cited.
In that case Lord Hardwick said: “ there is no instance of decreeing a partial performance of articles, the Court must decree all or none; and where some parts have appeared very unreasonable, the Court have said, we will not do that, and therefore, as we must decree all or none, the bill has been dismissed. ***** No body can tell what it is that parties who are dead have laid the greatest weight upon, in com ing to agreements, and therefore it would be attended with bad consequences, if agreements were to be split, and one part to be decreed and not another.”
It is manifest that the rule as to splitting articles of agreement, and decreeing performance of part, etc., as laid down by Lord Hardwick, has no application to the case now before us.
Here the appellee asked the performance of the entire contract, and not a part of it. It is true that he sought to recover the whole of the land, and failed as to the seventh part, owned by Nancy Fogle, because she was an infant when she signed the contract; and as to the seventh part owned by Gillis and wife, because they were not bound by the contract; but this was no good reason why he should not recover the five sevenths of the land owned by Battice Fogle and John Fogle, upon whom the contract for the conveyance was binding. As to them he, sought and obtained the enforcement of the entire contract, and not a part of it. They were the owners of five sevenths of the land. They contracted to sell and convey their interest in the land to him. They afterwards sold and conveyed it to appellant, who had notice of their contract with appellee. As against them, and the appellant who purchased with notice, the appellee was clearly entitled to a specific performance of the contract.
Other objections are made to the decree by the counsel for appellant, but the decree,upon the facts of the case, is so manifestly just and proper, that we deem it an unnecessary consumption of time, to follow up the remaining objections and respond to them.
The decree is affirmed.
Mr. Justice Rector, absent. | [
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Per Curiam.
Appellant Mark Barnett, by his attorney, Dale W. Finley, has filed for a rule on the clerk. Barnett was found guilty in Yell County Municipal Court, Dardanelle Division, of speeding, minor in possession of alcohol, and driving while intoxicated — first offense. He appealed these convictions to the Yell County Circuit Court. On January 10, 1996, the circuit court dismissed the appeal and remanded the matter to the Dardanelle Municipal Court for disposition.
On January 30, 1996, Barnett timely filed his notice of appeal to this court from the circuit court’s January 10, 1996 order dismissing his appeal. The ninety-day period for filing the record expired on April 30, 1996. However, the record was not filed by that date but rather was tendered on May 6, 1996. Barnett’s attorney admits that the failure to file the record in time was due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In re: Belated Appeals in Criminal Cases, 265 Ark. 964; see also Martin v. City of Searcy, 322 Ark. 562, 909 S.W.2d 652 (1995). A copy of this opinion -will be forwarded to the Committee on Professional Conduct.
Dudley, J., not participating. | [
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Harrison, J.:
This was an action of replevin by appellant, J. W. Miller, against appellee, J. M. Callaway, for a stock of goods.
The answer of the defendant was: That the goods were levied on and seized by him as constable of Caddo township as the property of Dan. E. Jones, in whose possession he found them, to satisfy an execution in his hands, issued by James A. Calla-way, a justice of the peace of said township, upon a judgment recovered by R. Beauchamp against said Jones.
The plaintiff proved that the goods were sold and conveyed to him by Jones, by a deed in trust for said Jones’ creditors on the 18th day of April, 1876, and that the deed was recorded on the 13th day of May, 1876..
The defendant read in evidence the execution, which bore date the 18th' of April, 1876, and the return and other indorsements, thereon, by which it appeared that the execution came to the defendant’s hands on the day of its date; that it was returned for renewal on the 18th day of May, 1876, and was the same day renewed by the justice for twelve months, and that it was on the 19th day of May, 1876, levied by him on the stock of goods as Jones’ property, and he testified that the goods mentioned in the return were the goods in controversy.
The plaintiff then offered to prove that the defendant had never been elected or appointed to the office of constable of said township, and therefore had no authority to make the levy, but the court refused to suffer him to do so, and it is upon this ruling of the court the only question for our consideration arises.
Thát the acts of an officer de facto only, when they concern the public or third persons having an interest in the acts done, are valid and cannot be collaterally called in question, is a recognized and well settled doctrine of the law; yet it is also as well settled that a mere color of title to the office does not avail as a protection to him in actions against him for trespasses on person or property, and that his acts, so far as he is himself concerned, are invalid. Patterson v. Miller, 2 Met. (Ky.), 493; Rodman v. Harcourt, 4 B. Mon., 229; The People v. Hopson, 1 Denio, 574; Green v. Burke, 23 Wend., 490; Riddle v. Commissioners, etc., 7 Serg. & Rawle, 386; Keyser v. Commissioners, etc., 2 Rawle, 139; Fowler v. Beebe, 9 Mass., 231.
The distinction is very clearly exemplified in the case of Patterson v. Miller, above cited, the following statement of which is taken at length from the report of the same :
“The plaintiff stated in his petition that the defendant Miller, pretending to be the sheriff of Russell County, when in reality he was not the constitutional sheriff of that county, unlawfully and without authority took into his possession, and sold a sorrel mare, the property of the plaintiff, and that the defendant ^Haynes purchased said marc at the aforesaid illegal sale, and converted her to his own use.
The defendant Miller averred in his answer that he was the sheriff of-Russell County duly elected and qualified accordingto law; and as such seized the property in the petition mentioned, and made sale thereof, under and by virtue of two executions which issued from the office of the presiding judge of the Russell County Court, and were placed in his hands for collection.
And the defendant Haynes in his answer admitted that he had purchased the property as sold, and insisted he had a right to make the purchase, as the property was sold under execution by a person who was acting as sheriff of the county.
The defendant Miller-read as evidence upon the trial the certificate of his election as the sheriff of Russell County, and the records of the County Court, by which it appeared that he had qualified and executed an official bond as sheriff according to law.
The plaintiff then offered to prove that Miller was not a resident of Russell County at the time he was elected; but was then and still was a resident of Adair County.
The testimony was rejected by the court on the ground that the certificate of the examining board was conclusive evidence, not only of Miller’s election as sheriff, but also of his eligibility to the office.”
The Court of Appeals held that the rule was sufficient to protect Haynes, the purchaser of the mare; but that the testimony offered by the plaintiff was admissible against Miller to show that he was a trespasser.
The court below should have permitted the plaintiff to make the proof he offered, and for its error in refusing to allow him te do so, the judgment is reversed and the cause remanded to it, with instructions to grant the plaintiff a new trial. | [
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í-ÍÁlUÍISON, J.:
At a former day of the term, William S. Giboney presented to the court a petition, stating that an indictment for robbery is pending against him in the Circuit Court of Sebastian County, for the Greenwood District, to which it has been transferred by a change of venue from the Circuit Court of Logan County; that James R. Waddle, John McGregor, A. J. West and J. C. Dodson, of the County of Green, and Lizzie MeKnight, John McKnight, Brook Winn and Lizzie Winn, of the County of Christian, in the State of Missouri, and E. L. Mitchell, who is confined in the jail of Crawford County, but not under sentence for felony, are material witnesses for him, by whony he expects to prove, that when the alleged robbery was committed he was not in Logan County, but was, at the time, in the State of Missouri; that he had applied to the Hon. John H. Rodgers, Judge of the said Circuit Court, for an order authorizing him to take the depositions-of said witnesses, to be read in his behalf upon the trial; but that the said Judge had refused to make such order, and praying for a writ of mandamus to compel him to make the same. An alternative writ was issued, to which the Judge has made return and answer, that the law has made no provision for the taking depositions of witnesses out of the State, or under the circumstances shown in the petition, in criminal cases, and he has no authority to order the depositions of the witnesses named therein to be taken; and to the return the petitioner has demurred.
It is provided by sec. 1819, Gantt’s Dig., that “the court or Judge, in vacation, * * * * * may authorize a defendant to take the deposition of a material witness when there are reasonable grounds to apprehend, that' before the trial, the witness will die, or become mentally incapable of giving testimony, or physically incapable of attending the trial, or of becoming a non-resident of the State.”
In civil cases, provision is expressly made for taking depositions out of the State, and the section we have just quoted does not, in words, prohibit it, but, we think, inqxliedly admits and authorizes its being done in criminal cases. The power there given to take the deposition of witnesses, rvho there is reasonable cause to apprehend, may, before the trial die, or become mentally incapable of giving testimony, or who arc physically incapable of attending, is not restricted by the words of the statute, and we are of the opinion that it would be giving the statute a very narrow construction, and such as would be incon'sistent and at variance with its spirit and general purposes, so to limit it; for^ccrtainly the necessity is as great, and the reason as obvious for taking the depositions of a witness who has already moved from the State, or has never resided in it, as of one who is about to remove from it.
It was not, we presume, the intention of the legislature, when it enacted the section in question, as a part of the Code of Criminal Practice, to so alter or amend the law as it then stood in Gould’s Dig., sec. 130, ch. 52, which expressly provided for its being done, as to prohibit the taking of depositions out of the State, in criminal cases, and to make a distinction in that x’egard between them and civil cases. “It has been held ixxmany eases,”, says Sedgwick, “ that the inere change in the phraseology of a statute will not be deemed to alter the law, unless it evidently appears that such was the intention of the legislature”— Sedg. on Stat. and Const. Law, 197. In the matter of Brown, 21 Wend., 316, Yates’case; 4 John. 359; Theriat v. Hart, 2 Hill, 380. And Kent says . “ When the expression in a statute is special or particular, but the reason is general, the expression should be deemed general,” and again, “ when the words are not explicit, the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt, and the objects and the remedy in view ; and the intention is to be taken or presumed according to what is consonant to reason and good discretion.” 1 Kent’s Com., 462.
As it is within the power of the Circuit Court to have the witness who is confined in jail, if not indicted with the petitioner, or otherwise incompetent, brought before it by habeas corpus, to testify in the case, it is within its discretion either to do so, or to authorize his deposition to be taken'; and its discretion in the matter' cannot be controlled by this court; but the demurrer must be sustained so far as the return relates to the taking of the deposition of the witnesses who reside in the State of Missouri —and as to the order therefor, a peremptory mandamus will be issued. | [
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Harrison, J.:
Brier Mason the appellant, and Mid Jones and Riley Beavers, were indicted for larceny in breaking and entering the house of Nathan Dixon, and also for grand larceny in stealing therefrom a keg of beer, the property of said Dixon.
The appellant was separately tried, and acquitted of the charge of burglary, but convicted on the second count, of petit larceny.
He filed a motion for a new trial upon the ground that the evidence did not sustain the verdict, which was refused.
Nathan Dixon, a colored man, the only witness for the State, testified, that on the second Saturday in April, 1876, the defendant, and the said Jones and Beavers, came to his house in Cincinnati, in Washington County, after eleven o’clock at night, and called for some beer. He had then gone to bed, and refused to get up and let them have it. They insisted, and told him if he did not let them have it they would steal- all he had. He did n'ot get up and they left. The witness was sleeping in the house in which he kept his beer for sale. The next morning he discovered that a window of the room in which he kept the beer had been prized up, and a keg of beer which set on the opposite side of the room, had been taken out, and was setting by the window on the porch, and about a gallon of the beer, worth about 30 cents, had been taken. He suspected the defendant and Jones and Beavers of the act but said nothing about it that day to any one except Mr. Scoy, a justice of the peace, who lived about two miles from town ; Mr. Scoy told him it was a gr’and jury case. On the following Monday morning and before he had mentioned the matter to any other person, the defendant and Jones and Beavers came to him, and told him that they had taken the beer, and offered to pay him for it. They offered $3, which he refused to received, but offered to take $30, and give them a full receipt against the grand jury. They refused to pay $30.
The witness had been selling cakes; and beer and cider as a business in Cincinnati ten years, and had been long intimately acquainted with all the said parties, and had known the defendant, who was raised there since he was ten years old, and from the time the witness came there and engaged in said business. That all had been, for years, customers of his, and the defendant ever since he commenced selling cakes, and beer and cider, and that he lived about a hundred yards from him, and Jones near by.
A felonious or criminal intent, is an essential constituent of larceny. It must always be averred in the charge, and is as necessary to be proven as the taking and carrying away. Proof of one without the other will not suffice.
The mere fact of the taking and carrying away, does not raise a presumption of guilt, or that the taking was to steal, or lueri causa, for the sake of profit or gain; but such felonious or criminal intent must be shown by circumstances connected with the taking. 1 Lead. Cr. Cases, 354 ; 1 Green. Ev., sces. 33-35-87b; 2 Ib., sec. 157; 2 Whar. Cr. Law, sec. 1769 ; Commonwealth v. McKie, 1 Gray, 61; Smith v. Shultz, 1 Scam. (2 Ill.,) 490; State v. Gresser, 19 Mo., 247.
Webster defines profit to be: 1. acquisition beyond expenditure ; excess of value received for keeping of selling over cost: emolument. 2. Accssion of good ; valuable results; useful consequences; benefit; avail and gain; as that which is gained, obtained or acquired, as profit or advantage : profits; benefits; winning; opposed to loss.
. The beer was taken on Saturday night; on Monday mornirig, before any complaint was made, the parties went to the owner and told, him they had taken the beer, and offered to pay him for it. No one had seen them take it; it was not found in their possession, and the fact that they took it was known only to themselves. Dixon kept beer for sale; they applied to him as they had often before done for some; they had been his customers for years; the defendant for ten years ever since he was ten years old ; and he was intimately acquainted with all of them; there is no proof that they did not intend to pay for it, and the only reason for not letting them have it, so far as the evidence discloses any, was that he had retired to bed, and did not wish to get up.
Where is the evidence of a design to fraudulently deprive Dixon of his property, or of an intention to take it without giving him a quid pro quo of equal value? If they intended to pay for the beer, Iaoav did they intend to defraud him, or Avhat gain to themselves did they contemplate?
The laAV presumes in favor of innocence, and of a good motive rather than a bad one, and the burden Avas not upon the defendant to sIioav that he had no criminal intent in taking the beer, but it devolved upon the State to prove that ho had.
The presumption in favor of an innocent intent was not encountered, that Ave can see,, by the slightest proof, nor the act of the parties.
.The judgment of the court beloAV is reversed and the cause: remanded to it, that the appellant may have a new trial.-' - | [
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TOM GLAZE, Justice.
The Pulaski County Judge and Quorum Court and fifty-one other county officials initiated this suit against the Governor, asking the Pulaski County Chancery Court, Sixth Division, to declare unconstitutional certain statutes dealing with the funding of the administration of justice in Arkansas. As background information, the state appropriates money for salaries of trial court judges, prosecuting attorneys, and also partially pays court reporters and some court bailiffs. However, the General Assembly requires the respective counties to fund the other expenses of the trial court system under Ark. Code Ann. § 14-14-802(a)(1) (1987). These other expenses include the costs of courthouse space, operating expenses for the office of the judge and prosecutor, court and prosecuting attorney personnel, public defender staffs, and court clerk staffs and operating expenses. In order to pay these expenses, counties have been statutorily authorized to assess and collect certain costs, fees and fines, but in some instances, these revenues have been insufficient to underwrite all administration-of-justice expenses. As a consequence, some counties have had to resort to the use of general county revenues from property and sales taxes and state turnback funds to pay the balance of such expenses. Because they have been required to utilize county revenues to subsidize the costs of the trial court system in the state, the counties claim the court funding mechanism is unconstitutional. In their complaint, the counties alleged the funding system was unconstitutional in the following three ways:
(1) It allows the state legislature to usurp county legislative authority that violates Ark. Const, amend. 55, §§ 1(a) and 4, and Ark. Const, art. 16, § 40;
(2) the payment of county locally generated funds for the state court system constitutes an illegal exaction that violates Article 16, §§11 and 13; and
(3) it creates a system of local and special legislation that violates Amendment 14 to the state constitution.
After an extensive trial, the trial judge rejected the counties’ constitutional claims. Only the Pulaski County officials appeal the chancellor’s order.
In framing its first point for reversal, Pulaski County combines the above three legal claims made at trial, and states the chancellor erred in holding that the General Assembly can require counties to expend county funds on the state judicial system and in so holding, she also erred in deciding such expenditures are not illegal exac-tions. Pulaski County’s arguments run counter to Arkansas’s settled law.
First, we point to an enabling statutory provision of Amendment 55, § 14-14-802(a)(l), which imposes the duty upon the respective counties to provide for the necessary services of the administration of justice. While Pulaski County contends this statute is unconstitutional and contravenes Amendment 55, § 1(a) because it requires the expenditure of county funds for state and not county purposes, the county is mistaken in characterizing the administration of justice as being only a state purpose or responsibility. In Mears v. Hall, 263 Ark. 827, 569 S.W.2d 91 (1978), this court clearly explained, as follows, the role of the respective counties in providing services for the administration of justice:
In Burrow v. Batchelor, 193 Ark. 229, 98 S.W.2d 946, we held that the salaries of the duly appointed reporter and stenographer for the grand jury and of the duly appointed and acting court reporter in the Fifteenth Judicial Circuit were a part of the necessary expenses of the operation of county government of Franklin County, which was part of the Fifteenth Judicial District. This, of course, was based upon the fact that the services of these reporters were essential to the administration of justice. Counties are civil divisions of the state for political and judicial purposes and are its auxiliaries and instrumentalities in the administration of its government. Lake v. Tatum,, 175 Ark. 90, 1 S.W.2d 554. They are a political subdivision of the state for the administration of justice and local government. Pulaski County v. Reeve, 42 Ark. 54. The very word “county” signifies a circuit or portion of the state resulting from a division of the state into such areas for the better government thereof and the easier administration of justice. 56 Am. Jur. 2d 74, Municipal Corporations, etc. § 5. Nothing in Amendment 55 changes the status of the county insofar as its primary purposes and functions are concerned. The administration of justice within the county is one of the primary reasons for its existence. (Emphasis added.)
See also Mears v. Ark. State Hospital, 265 Ark. 844, 581 S.W.2d 339 (1979) (counties are obligated to pay for costs of the administration of justice where required to do so by the legislature); Venhaus v. State, 285 Ark. 23, 684 S.W.2d 252 (1985); Mackey v. McDonald, 255 Ark. 978, 508 S.W.2d 726 (1974).
By the foregoing authority, this court has made itself clear that our respective counties are responsible for the administration of justice. However, that does not end the inquiry, because when the General Assembly enacts legislation relating to the administration of justice, that law must meet the dictates of Amendment 14 to the Arkansas Constitution prohibiting special and local acts. In this respect, Arkansas’s earlier cases state the rule that laws relating to the administration of justice were to be neither local nor special within the meaning of Amendment 14. However, this court in Littleton v. Blanton, 281 Ark. 395, 665 S.W.2d 239 (1984), modified that rule somewhat. There, the court announced that statutes relating to the administration of justice would no longer be held per se to be neither local nor special within the meaning of Amendment 14. The Littleton court stated that, while the General Assembly has the authority to establish courts within the limits prescribed by the Constitution, it should strive to create a judicial system which would be as uniform as practical throughout the state. The court explained the General Assembly’s responsibilities in this regard as follows:
A densely-populated metropolitan area requires more judges, court personnel and different procedures than does a thinly-populated area. The Legislature has traditionally met the growing judicial needs of an area by statutes which apply only to individual counties, judicial districts or even divisions within districts. But these statutes have not been held to be “local or special” within the meaning of Amendment 14, since they were a part of a judicial system for the entire state and were based upon reasonable considerations such as population, case load, transportation and other nondiscriminatory factors or classifications.
Id. at 405.
In arguing the judicial system is not uniform throughout the state, Pulaski County points to various court personnel and expense statutes enacted by the General Assembly that apply only to specified districts and counties. However, in deciding whether statutes relating to the administration of justice are local or special legislation, the court in Littleton established the following test:
We will continue to hold that statutes designed to meet the judicial needs of an area on a non-discriminatory basis are a part of a judicial system for the entire state and are not local or special within the meaning of Amendment 14, even though such statutes may apply only to individual counties, judicial districts or divisions within districts .... The limited application of the statute must be non-discriminatory and bear a reasonable relation to the subject matter of the legislation. (Emphasis added.)
Id. at 406.
Recognizing the foregoing rule in Littleton, Pulaski County expands its argument by contending the General Assembly’s enactments relating to the administration of justice are discriminatory, and those laws place an unequal burden on the respective counties. In support of its argument, the County points to state audit reports of thirty-one counties that, it asserts, show the administration of justice is a substantial cost to some counties, but in others, no costs are underwritten by general county funds. As an example, Pulaski County argues this evidence reflects that in 1991, it was required to spend $3,373,493.38 of its general funds since the amount of court-related revenues it was authorized to collect was insufficient to pay for the court-related services. On the other hand, Pulaski County claims that, for the same period, Madison County funded its judicial system without using county funds because it had accumulated a surplus of court-related revenues which were more than enough to cover court services. In other terms, Pulaski County says it spent more than $10.00 in per capita costs to deliver services to the judicial system, but Madison County actually accrued over $10.00 per cap-ita income after its court services were delivered.
Pulaski County’s argument fails for at least two reasons. One, as previously discussed above, this court in Littleton emphasized that, in its enactments, the General Assembly should strive for a uniform judicial system. In meeting this objective, however, the General Assembly is not relegated solely to a cost-per-capita test as Pulaski County puts forth in its argument here. Instead, this court in Littleton said that, in providing for a judicial system for the entire state, the General Assembly should consider such matters as population, case load, transportation and other non-discriminatory classifications. Along this same vein, the court also opined that a densely populated metropolitan area requires more judges, court personnel and different procedures than does a thinly populated area. Id. 281 Ark. at 405, 665 S.W.2d at 243.
The County’s proof tends to ignore those factors set out in Littleton, and instead its evidence is limited almost exclusively to the net costs or per capita amount each county has borne in providing services for the court system. A second reason for rejecting Pulaski County’s argument is that, even if we accepted the County’s unequal burden-of-costs analysis, the county’s proof would still be lacking. For instance, the state audit reports do not cover circuit court revenues, yet they did include inapposite information pertaining to municipal revenues. In sum, we hold the chancellor was correct in deciding Pulaski County failed to prove the administration of justice in each county is not uniform across the state.
In conclusion, we address two additional points. The first deals with the chancellor’s conclusion of law that the state can constitutionally require counties to pay the expenses associated with the administration of justice and the counties must appropriate money to meet the state’s requirements. Again, while this rule is generally true, we reiterate that any legislative enactment concerning the administration of justice must ensure fairness, and the factors or classification used by the General Assembly must be nondiscriminatory and free from arbitrariness. Second, we note Pulaski County’s mention of equal protection when discussing its local/ special legislation argument, even though the County never raised any equal protection claim at trial. Pulaski County cites Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983), as its authority for raising this constitutional argument for the first time on appeal. We dispose of this point summarily, by stating that this court must presume legislation is constitutional and rationally related to achieving a legitimate governmental objective. Id. As we have already thoroughly discussed above, the county’s proof simply falls short in showing arbitrariness or an irrational basis in providing for the administration of justice throughout the state.
For the reasons above, we affirm.
The origin of this exception is discussed in the Littleton case, and the Littleton court, citing Waterman v. Hawkins, 75 Ark. 120, 86 S.W. 844 (1905), called the exception the “Waterman rule.”
Those cited by the County include Ark. Code Ann. §§ 16-13-1004, 1204, 1404— 1414, 1416, 1418 — 1419, 1504 — 1505, 1905 — 1906, 2605 — 2606, 2704, 2805; Ark. Code Ann. §§ 16-21-119, 145 — 146, 901, 2202, 1201, 1301, 1602 — 1603, 1701, 2202 — 2203; and Act 1193 of 1993.
While the County contends on appeal that affidavits from the county treasurers should have been admitted pursuant to Ark. R. Evid. 102, we note that when the County preferred the affidavits below, the state put forth a hearsay objection, and the County failed to counter with a legally supportable argument. Because the County failed to raise this Rule 102 argument below, we do not consider it on appeal. Even if such affidavits were admissible, however, the affidavits, as preferred, contain information similar to that contained in the state audit reports and would therefore have little probative value. | [
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Robert H. Dudley, Justice.
Appellant Deangelo Allen, Earnest Phillips, Jr., and Quincy Wright were charged with the capital murder of Otto Jeter. Appellant was tried separately, convicted of capital murder, and sentenced to life imprisonment without parole. We affirm the judgment of conviction.
Because appellant contends that the evidence is insufficient to sustain the conviction, we set out the evidence with all inferences favorable to appellee. See Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). Tony McKenzie, a friend of appellant, testified that on the afternoon of the murder, Phillips, Wright, and appellant came to his house. Sometime after dark, the four of them got into Phillips’s car. McKenzie drove appellant, Phillips, and Wright to the intersection of Seventh and Broadway Streets in West Memphis where Phillips asked McKenzie to let them out so he could “sting a fool,” or rob someone. McKenzie testified that he told Phillips he wanted no part of a robbery. He stated that when Phillips made the statement, Phillips was in the passenger side of the front seat and appellant and Wright were in the back seat. After letting the three of them out, McKenzie drove to his girlfriend’s house. He stayed there until 11:35 p.m., got back into Phillips’s car, and started back to his house. On the way back he saw appellant, Phillips, and Wright at a four-way intersection. McKenzie said that, as he stopped to let them in the car, he saw that Phillips’s shirt was ripped and that he was throwing something away. In addition, it looked like Phillips had plastic wrapped around his hand. When they got into the car, Wright had his hands tucked up under his shirt and appellant was sweating. McKenzie drove to his home, and Phillips drove the car away with Wright and appellant as passengers.
McKenzie additionally testified that Phillips later told him that he had killed a man and that he “couldn’t take it,” but gave no other details of the murder. Phillips had a pistol in his possession when he made the statement.
Eric Marshall, another acquaintance, testified that appellant told him that the three defendants heard that Jeter had won some money gambling. Appellant told him they went to Jeter’s house, told Jeter that they had car trouble, and Jeter opened the door and let them in. He said Phillips took a potholder from the wall and used it to cover a pistol. Phillips pulled the trigger, the pistol snapped, and Jeter asked them if they were playing trick or treat. Marshall said that appellant told him that Phillips pulled the trigger a second time, the pistol fired, they searched the house and took some guns, and McKenzie picked them up. Marshall testified that appellant was shaky and had tears in his eyes when he talked about the crime.
Appellant made an incriminating statement that was videotaped and shown to the jury. This statement contained details that were inconsistent with other witnesses’ testimony. Appellant stated that he, McKenzie, Phillips, and Wright got into Phillips’s car. McKenzie was driving. He said the car blew out a tire just before they reached Ninth Street. Phillips told McKenzie, the driver, to stay with the car while the rest of them went for help. He said that he asked Phillips where they were going and Phillips told him that he would “see when they got there.” They went to Jeter’s house, and Jeter let them in because he knew Phillips. Appellant said that he went to the bathroom when they first entered the house, and while still in the bathroom, he heard a gunshot. He came out of the bathroom and saw Jeter was bleeding. He said Phillips told him to search Jeter, but he declined.
Appellant said that he saw Phillips and Wright search the house and watched them find a Crown Royal sack filled with fifty-cent pieces. He said they offered him some of the money, but he declined to take it. He said Phillips and Wright found three or four twenty-two caliber revolvers in another room. One of the pistols was found under a bed. In a third room, they found more money. He said that he had been unaware of the plan to rob Jeter before they went into the house.
Quincy Wright also gave an incriminating statement which was videotaped and shown to the jury. In it, Wright said appellant was sitting on the couch immediately before the shooting.
Jeter’s corpse was found lying face down in the living room by Beulah Weatherspoon, a neighbor. Ms. Weatherspoon’s son, Rodney Weatherspoon, checked Jeter’s pulse but found none, and saw that there was dried blood on his head, his back, and the back of his pants. He testified that the house had been ransacked, as though someone had been looking for something. Drawers had been opened and were on the floor, clothing was strewn all over the floor, mattresses had been thrown off the bed, and closet doors were open.
West Memphis police detective Bryn Ridge testified that when he arrived at the scene, he noticed that there did not appear to have been a forced entry. The key was in the lock on the inside of the security door. The television was on. He said that he found Jeter lying in the floor, apparently shot in the head. He said the entire house was ransacked except for the kitchen. The medical examiner’s report showed that Jeter died from a gunshot wound to the head.
Jeter’s widow testified that when she returned home, the money Jeter had won gambling was missing. His empty billfold was found away from his body. She testified that forty dollars’ worth of half dollars contained in a Crown Royal bag and some pistols were missing.
The State sought to prove that appellant aided in the robbery and is liable for capital murder because the person for whom he was an accomplice, Phillips, killed Jeter in the course of the felony. The relevant statute provides that one commits capital murder if:
(1) Acting alone or with one (1) or more other persons, he commits or attempts to commit. . . robbery . . . and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life [.]
Ark. Code Ann. § 5 — 10—101 (a)(1) (Repl. 1993 & Supp. 1995).
To prove that appellant was an accomplice to capital murder, the State had to prove that “with the purpose of promoting or facilitating the commission of an offense,” appellant “solicited], advise [ed], encourage [ed], or coerce[d]” another person to commit capital murder or “aid[ed], agree[d] to aid, or attempted] to aid the other person in planning or committing” capital murder, or “having a legal duty to prevent the commission of” capital murder, “failfed] to make proper effort to do so.” Ark. Code Ann. § 5-2-403(a).
There was substantial evidence from which the jury could have found a motive from the testimony that the three codefendants knew Jeter had won money gambling, and could have concluded that appellant aided or attempted to aid in the commission of the robbery from the proof of his actions in getting in the car, voluntarily getting out near Jeter’s house, walking up to Jeter’s house, and then going inside. There was substantial evidence from his statements to others that he was more than an innocent bystander and that he knew, in detail, the items taken. The jury was not required to believe appellant’s version of the event because credibility of witnesses is the exclusive province of the trier of fact. Bryant v. State, 314 Ark. 130, 862 S.W.2d 215 (1993).
Appellant next argues that the trial court erred by allowing Phillips to assert his Fifth Amendment right against self-incrimination. We do not reach the issue. Appellant made no objection in the trial court to Phillips’s assertion of the Fifth Amendment, and we do not address arguments made for the first time on appeal. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). Even in cases where life without parole is imposed, this court’s duty is only to examine the record for error in objections made at trial and decided adversely to an appellant. Ark. Sup. Ct. R. 4-3(h); Spears v. State, 321 Ark. 504, 905 S.W.2d 828 (1995). In addition, appellant made no proffer of Phillips’s testimony, and we have no way of knowing “the nature of the statement and the exposure it invites,” which is the prerequisite for determining whether a Fifth Amendment privilege exists. See In re Gault, 387 U.S. 1, 49 (1967). Further, in Orr v. State, 288 Ark. 118, 703 S.W.2d 438 (1986), we said “ ‘where error is assigned in the refusal of the court to hear the testimony of a witness, the record must disclose the substance or purport of the offered testimony, so that this court may determine whether or not its rejection was prejudicial.’ ” Id. at 125, 703 S.W.2d at 441 (quoting Latourette v. State, 91 Ark. 65, 67, 120 S.W 411, 411 (1909)).
An examination of the record has been made in accordance with Ark. Sup. Ct. R. 4-3 (f), and we have determined that there were no rulings adverse to appellant that constituted prejudicial error.
Affirmed. | [
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DONALD L. Corbin, Justice.
Appellant, Bobby Forrest, appeals the judgment of the Pulaski County Circuit Court in favor of separate appellees, Milton Ford, Andrew Jefferies, and Andrew Jef-feries Realty and Bail Bonding Company, on appellant’s complaint for negligent, intentional, and reckless conduct. For reversal, appellant contends the trial court erred in instructing the jury on the defense of justification. This case presents a question about the law of torts. Jurisdiction is therefore properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(16).
Evidence presented at trial revealed the following facts. Appellant entered into a bail-bond agreement with appellees Milton Ford and Andrew Jefferies Realty and Bail Bonding Company under which bond was posted on appellant’s behalf with the Jacksonville Municipal Court. After receiving notice that appellant failed to appear in circuit court, appellee Ford, a licensed bail bondsman and agent of Andrew Jefferies Realty and Bail Bonding Company, began to search for appellant. Appellant ran from Ford, and a chase ensued through a residential neighborhood. Ford fired one or two warning shots into the air and then fired at appellant’s shoulder. While running from Ford, appellant felt pain in his shoulder from the gunshot and then fell and injured his ankle. Appellant sought recovery for medical expenses, pain and suffering, and punitive damages associated with the ankle and shoulder injuries he sustained in the chase.
The subject of this appeal is a jury instruction that appellant describes as stating the justification defense. The challenged instruction was given to the jury over appellant’s objection and stated as follows:
The defendant in this case claims his actions were justified and had the burden of proving each of four essential propositions:
First, that the defendant was a law enforcement officer;
Second, that the defendant reasonably believed that the use of such force was necessary to effect an arrest of the plaintiff or to prevent the escape from custody of the plaintiff;
Third, at the time the defendant used such force, he was making an arrest of the plaintiff or preventing the escape from custody of the plaintiff; and
Four, the defendant reasonably believed the plaintiff had committed or attempted to commit a felony.
A felony is a criminal offense which has been defined by law to be a felony.
A law enforcement officer is a person vested by law with duty to maintain public order or to make an arrest for an offense.
(Arkansas Code Annotated 5-2-610(b)(l), Arkansas Code Annotated 5-1-102(12) and (16)(b), Arkansas Code Annotated 5-l-106(a), A.R.Cr.P. 1.6(a), Ark. Attorney General Opinion Number 78-42)
Appellant does not challenge the content or the applicability of this instruction to this case. Rather, he argued below and now argues on appeal that, because Ford pleaded guilty to third-degree battery in the criminal proceeding that arose from the chase and shooting incident and did not raise the justification defense in the criminal proceeding, he is estopped from raising the justification defense in this subsequent civil proceeding. None of the appellees filed a brief in this appeal.
The premise of appellant’s argument is that Ford could have but did not raise the justification defense in a previous criminal proceeding. While the record indicates the trial court granted a motion in limine to exclude references to the fact that Ford was charged or convicted of a crime, and while the record also indicates there was a bench discussion during this civil trial about Ford’s guilty plea, the record also indicates that an order of expungement, which was entered of record in the criminal proceeding, was proffered by the defense at this civil trial and states that, under Act 346 of 1975, Ford was discharged without court adjudication of guilt and was exonerated of any criminal purpose. The order of expungement states further that Ford may reply in the negative to questions pertaining to past criminal convictions in instances wherein his civil right or liberty may be affected. Thus, it is not clear without further research, and appellant does not address, what effect, if any, the order of expungement entered pursuant to Act 346 of 1975 has on the premise of appellant’s argument. We will not do appellant’s research for him. Firstbank of Arkansas v. Keeling, 312 Ark. 441, 850 S.W.2d 310 (1993).
We find no error on the argument presented and affirm the judgment. | [
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DAVID Newbern, Justice.
Michael Clay was convicted of capital murder and sentenced to life imprisonment without parole. We reversed the conviction and remanded the case. Clay v. State, 318 Ark. 122, 883 S.W.2d 822 (1994). He was retried, convicted, and sentenced to life imprisonment without parole for capital felony murder. Mr. Clay argues two points of appeal. He first contends the evidence was insufficient to establish the allegation that he murdered Glynda Wallace in the course of committing a felony as required for conviction pursuant to Ark. Code Ann. § 5-10-101. We hold the evidence was sufficient. His second point is that it was error for the Trial Court to admit evidence of a ballistics test because the State had not properly proved the weapon to which the testimony related belonged to him and because the weapon could not be produced at the trial. We hold the evidence connecting the weapon to Mr. Clay was sufficient. We affirm the judgment.
The State’s evidence in the second trial showed these facts. On August 14, 1990, the body of Glynda Wallace was found near Macedonia Road in Gilmore. Ms. Wallace died as the result of a gunshot wound. On August 20, 1990, the burned shell of Ms. Wallace’s Pontiac was located in a rice field.
The Crittenden County Sheriffs Department received an anonymous tip that Michael Clay was seen driving the victim’s car. On Thursday, August 23, 1990, Officer John Murray of the Crit-tenden County Sheriff’s Department asked Mr. Clay to come in for questioning concerning the theft of the victim’s vehicle. Mr. Clay voluntarily accompanied Officer Murray to the Sheriff’s Department. He waived his rights and said the car belonged to his friend, Leslie Shaw. Later that evening Mr. Clay was detained again by the Sheriff’s Department. He again waived his rights and made a taped statement in which he claimed that he bought the car from his uncle. At that point, Mr. Clay was charged with theft by receiving of Ms. Wallace’s vehicle.
After being charged, Mr. Clay escaped from the jail and was not apprehended until Saturday, August 25, 1990. On that date, he was questioned further regarding his possession of the vehicle and the murder of Ms. Wallace. He waived his rights and made another taped statement in which he claimed he was in the car when Ms. Wallace was murdered by his friend Robert who later gave him the car.
In his first two taped statements, Mr. Clay stated that he attempted to have the vehicle inspected at a service station in Turrell, Arkansas. Dale Doss, a service-station attendant, later testified that he remembered conducting an inspection of a Pontiac Grand Am at Mr. Clay’s request on August 18, 1990.
Mr. Clay was held overnight and was questioned again on the following evening, Sunday, August 26, 1990. At that time, Mr. Clay waived his rights again and gave a taped statement in which he stated:
I was walking down to Gilmore. I seen this lady had a flat. She needed some help. I helped her. I asked her to give me a ride. She said no. I got my gun out, and I asked her to give me a ride. She gave me a ride. We went on down the road. She said I would have to jump out before she stopped, because she ain’t stopping, she ain’t going to Gilmore. I went to jump out, and next thing I know my gun went off.
Mr. Clay then stated that his friend, Robert Turner, burned the car.
1. Evidence of underlying felony
Mr. Clay made timely motions for a directed verdict on the ground that the prosecution failed to prove capital felony murder because there was no substantial evidence that Ms. Wallace was murdered in the course of and in furtherance of a felony. He contends the motions should have been granted because the State’s proof indicated only that the robbery was an “afterthought” to the murder, and not its motivating purpose.
In support of his argument, Mr. Clay relies on the fact that the statements that were introduced during his second trial, while contradictory, indicate only that the shooting was accidental, and not in the furtherance of a robbery. He argues, citing Grigsby v. State, 260 Ark. 499, 542 S.W.2d 275 (1976), that his possession of Ms. Wallace’s vehicle cfter the homicide does not necessarily indicate that he is guilty of capital felony murder. We rejected a similar claim in the Grigsby case and said:
Appellant argues that his motion for directed verdict and reduction of his charge to one of first degree murder should have been granted. This argument is based upon his contention that the only evidence about what happened at the time of the killing showed that he took Childers’ property after the killing, and that there is no evidence that this taking was anything other than an afterthought. For us to rule as a matter of law that the robbery was an afterthought would require that portions of Grigsby’s statement, which was mostly exculpatory, be taken at face value. If indeed Grigsby murdered Childers, and the killing was not accidental, it would be difficult to believe that anything other than robbery motivated the killing. Suffice it to say that the circumstantial evidence here furnishes adequate support for the jury’s finding that Childers was killed in the perpetration of a robbery. See Upton v. State, 257 Ark. 424, 516 S.W.2d 904.
See also Pomerleau v. State, 303 Ark. 275, 795 S.W.2d 929 (1990), and Owens v. State, 283 Ark. 327, 675 S.W.2d 834 (1984), in which we said the State need only prove that the robbery and the murder were parts of the same transaction, or occurred' within the same brief interval, to support a conviction of capital felony murder. In such cases, we do not, in the language of the Grigsby decision, require the State to show a “strict causal relationship between the felony and the homicide.” Mr. Clay’s statement, when combined with his subsequent conduct with respect to the Ms. Wallace’s automobile, was sufficient to show the murder and robbery occurred together.
2. Ballistics evidence
James Funderburg, a drug task force officer who assisted in the investigation of Ms. Wallace’s death, testified he went to the home of Mr. Clay’s father’s, Ishmael Clay. He advised Ishmael Clay that “if he had any knowledge of where his son was and had any knowledge of the weapon that was used” it would be to his son’s benefit to surrender. John Murray, a sheriff’s department investigator, testified that Ishmael Clay brought to the sheriff’s department a .25 caliber automatic pistol with the serial number MK18579.
Robert Turner, the friend Mr. Clay at one point accused of having participated in the murder, testified he saw Mr. Clay with a .25 caliber pistol a few days after the murder.
Officer Murray said he gave the weapon he had received from Ishmael Clay to Officer Mickey Strayhorn, who testified that he received a .25 caliber, semi-automatic, Excam pistol, model GT27, serial number MK18579, and that he locked it in an evidence locker until he could deliver it to the State Crime Lab in Litde Rock.
Ron Andrejack, a ballistics examiner with the State Crime Laboratory, testified the gun he received from the Sheriff’s Department was an Excam, Model GT27, blue semi-automatic pistol bearing the serial number MK18579. Mr. Andrejack stated, based upon tests he conducted, that weapon fired a bullet that was recovered from Ms. Wallace’s body.
Although Ishmael Clay did not testify as to his acquisition of the pistol, the fact that he brought the pistol to the sheriff’s department apparently after having been asked about his son, the killing, and “a weapon,” was sufficient to allow the jury to consider it. In view of the solid chain of evidence between Ishmael Clay and Mr. Andrejack, it was insignificant that the State was unable to produce the pistol at the trial. The issue is whether the Trial Court abused its discretion in admitting the evidence. Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991). No abuse occurred.
The record of the trial has been reviewed in accordance with Arkansas Supreme Court Rule 4-3 (h). No errors resulting in rulings prejudicial to Mr. Clay have been found.
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AndrEE LAYTON Roaf, Justice.
This case arises from an automobile collision. Appellee Lindel Kay Cash filed an action for personal injury against the appellants, Diamond State Towing Company, Inc. (Diamond State Towing), and James Ingram. A jury returned a verdict in favor of Diamond State Towing and Ingram. Subsequendy, Cash filed a motion for new trial pursuant to ARCP Rule 59(a)(6), asserting that the verdict was clearly contrary to the preponderance of the evidence; the trial court granted the motion. The sole issue on appeal is whether the trial court abused its discretion in granting a new trial. We affirm.
At approximately 4:30 a.m. on June 24, 1989, Lindel Cash was traveling east on Interstate 30 east of Texarkana. Ms. Cash testified that she could see something in the road as she approached an overpass; she was in the left lane. Subsequently, she recognized that there was an accident and stopped her car. Ms. Cash testified that she was sitting with her foot on the brake when one of her passengers, Floyd Waites, yelled, “[H]e’s going to hit us.” Ms. Cash looked in the rear-view mirror and saw lights. James Ingram, a shareholder in Diamond State Towing, was driving a 1966 Hendrixson heavy-duty wrecker. Mr. Ingram’s vehicle struck the rear of Ms. Cash’s vehicle.
Ingram testified that he was returning to Hope, Arkansas, from Nash, Texas, where he had spent four or five hours pulling a truck and trailer out of a ditch. He testified that he was not sleepy, had not been drinking any alcohol, and had taken no drugs other than his blood pressure medication. Ingram stated that he saw the headlights flash from the first accident, thought it might have been a lightning flash, and did not “hit the brakes or let off the accelerator”; he kept going, then he saw taillights. Ingram testified that he “did not think much, then I got closer and noticed the taillights were not moving.” When he realized that Cash’s car was stopped, Ingram slammed on his brakes. Ingram also testified that he was traveling fifty miles per hour, which he thought was a reasonable speed.
Ingram stated that there was a barricade on the left and a van stopped on the right. He testified that he was not tailgating the Cash vehicle and the first time he saw her was when he “came on her.” In addition, Ingram stated that he saw Cash’s taillights, but he did not see any hazard lights, signal lights, or brake lights. Ingram further testified that no one else hit anyone, but the driver of the eighteen wheel truck behind Ingram stated “it was a miracle he got it stopped” without hitting Ingram.
Corporal Robert Lavender of the Arkansas State Police testified that a one-car accident occurred at the apex of the overpass. He stated that the vehicle swerved and hit the concrete wall; the left lane of the interstate was completely blocked and part of the outside lane was blocked. Corporal Lavender testified that the accident involving Ms. Cash occurred within 100 yards of the single vehicle accident. Lavender stated that there was aluminum railing on the shoulder of the highway and there was not enough room for Ingram to pass on the right of Ms. Cash’s vehicle. Lavender testified that “failed to yield” was marked on the accident report, but he meant following too closely. In addition, Lavender testified that there was a 282-foot skid mark from the left front of the wrecker; he did not find any skid marks which led from Ms. Cash’s vehicle. Finally, Lavender stated that it was not normal for a car to come to a complete stop on the interstate.
Floyd Waites, Ms. Cash’s son-in-law, testified that Ms. Cash took a quarter- to a half-mile to brake easily, and she stopped without skidding or losing control. He testified that Ingram’s wrecker struck the Cash vehicle approximately 15 to 20 seconds later.
The jury returned a verdict in favor of the defendants; however, the trial court concluded the verdict was against the clear preponderance of the evidence and granted a new trial. In making its ruling, the trial court observed that the key testimony was that of Mr. Ingram. Ingram stated the first thing that he saw was “white lights” flashing; he thought it was when the first car hit the bridge. Ingram testified that “I got a glimpse of something up there, you know, a flash and I figured that’s what it was.” Ingram stated that he did not slow down; he testified that he “kept going and then I seen some taiUights and I didn’t think nothing much of it right then and then as I got closer I noticed the taillights wasn’t moving.”
The trial court found that Ingram could not take evasive action to the right because of another vehicle nor could he take evasive action to the left because of the barricade. However, the trial judge also recognized that Ms. Cash was confined to the lane in which she had stopped. The trial court concluded the issue was whether Ingram was negligent in not recognizing the danger earlier. The trial court stated that Ingram was put on notice by the flash of lights, which he thought were from an accident, but he did not slow down. Further, the trial court concluded Ingram’s inability to keep a proper lookout may have been affected by his long workday without any sleep. The trial judge also found Ms. Cash was not negligent. He stated that Ms. Cash’s failure to activate her hazard lights was of little consequence; Ms. Cash’s brake lights would have been clearly visible to following traffic.
Appellants, Diamond State Towing and James Ingram, bring this appeal from the trial court’s order granting Cash’s motion for a new trial. Arkansas Rule of Civil Procedure 59(a)(6) provides that a new trial may be granted to all or any of the parties on all or part of the issues on the application of the party aggrieved when the verdict or decision is clearly against the preponderance of the evidence or is contrary to the law. Bristow v. Flurry, 320 Ark. 51, 894 S.W.2d 894 (1995). Although the trial court is granted some discretion in the matter, that discretion is limited, and the trial court may not substitute its view of the evidence for the jury’s except when the verdict is clearly against the preponderance of the evidence. Id.; Richardson v. Flanery, 316 Ark. 310, 871 S.W.2d 589 (1994). The test we apply in reviewing the trial court’s granting of the motion is whether the trial court abused its discretion. Bristow, supra. A showing of abuse of discretion is more difficult when a new trial has been granted because the party opposing the motion will have another opportunity to prevail. Id.
On appeal, the appellants cite three cases in which this Court has found an abuse of discretion where a trial court granted a new trial, Razorback Cab of Ft. Smith, Inc. v. Martin, 313 Ark. 445, 856 S.W.2d 2 (1993), Schrader v. Bell, 301 Ark. 38, 781 S.W.2d 466, (1989), Wilson v. Kobera, 295 Ark. 201, 748 S.W.2d 30 (1988), and three cases in which this Court has upheld the trial court’s decision granting a new trial, Bristow v. Flurry, 320 Ark. 51, 894 S.W.2d 894 (1995), Richardson v. Flanery, 316 Ark. 310, 871 S.W.2d 589 (1994), Turrise v. Crane, 303 Ark. 576, 798 S.W.2d 684 (1990). In addition, the appellants note that the jury was instructed in accordance with AMI Civil 3rd, 2102 (1989)(comparative negligence), AMI Civil 3rd, 603 (1989) (occurrence of accident is not, of itself, evidence of negligence), AMI Civil 3rd, 614 (1989)(sudden emergency), and AMI Civil 3rd, 902 (1989) (superior right of forward vehicle does not relieve driver of forward vehicle of the duty to use ordinary care). The appellants submit that in considering the facts in the record and the jury instructions, it is apparent that the trial court abused its discretion and entered into the province of the jury. The appellants, however, do not contest that Ms. Cash sustained an injury; they simply appeal the trial court’s decision regarding the issue of negligence.
The appellants first submit that the trial court invaded the province of the jury regarding whether Ingram should have perceived the danger of the first accident. The appellants submit Ingram saw a swirl of light that he initially believed to be lightening; therefore, there was no danger for him to perceive. Second, the appellants contend that the trial court invaded the province of the jury on the issue of keeping a proper lookout. On this point, the appellants submit there was no evidence that Ingram was fatigued. Next, the appellants contend that the trial court invaded the province of the jury in concluding that Cash’s negligence did not equal or exceed the negligence of Ingram. The appellants submit that Ingram specifically stated he saw taillights, but not brake lights, and it is for the jury to determine the credibility of the witnesses. Finally, the appellants submit the trial court ignored the fact that the sudden emergency instruction was given and it was for the jury to decide whether Cash should have activated her hazard lights.
In the instant case, the jury was instructed regarding the duty to keep a proper lookout that a reasonably careful driver would keep under circumstances similar to those shown by the evidence, the duty to keep a vehicle under control, and the duty to drive at a speed no greater than is reasonable and prudent under the circumstances. See AMI Civil 3rd, 901 (1989). Ingram admits he was traveling fifty miles per hour and his wrecker struck the rear of Ms. Cash’s vehicle. By his own testimony, Ingram saw the headlights from the first accident, but he did not do anything; he kept going, then he saw taillights.
The appellants find it significant that Ingram never saw Ms. Cash’s brake lights and that cars are not normally stopped on the interstate. Ingram, however, testified that he saw the lights from the first accident and Ms. Cash’s taillights; he just did not realize the taillights were not moving. In addition, the driver of the truck behind Mr. Ingram was able to stop, and no other accidents occurred.
In Bristow v. Flurry, 320 Ark. 51, 894 S.W.2d 894 (1995), we upheld the trial court’s granting of a motion for new trial where the defendant, by his own testimony, conceded he was not paying attention to the road as he entered the intersection prior to the collision. We noted that the only significant testimony favoring the defendants came as a result of the testimony of one of the defendants. Similarly, in the instant case, Ingram testified he saw the headlights from the first accident but he did not take any precautionary measures.
In Richardson v. Flanery, 316 Ark. 310, 871 S.W.2d 589 (1994), Richardson was traveling in a feed-on lane to the highway and the Flanerys were traveling on the highway. According to her testimony, Ms. Richardson looked, but when she did not see anyone on the highway, she proceeded forward. Ms. Richardson’s car collided with the car driven by Mr. Flanery. The Flanerys filed an action against Ms. Richardson, but the jury returned a verdict in favor of Ms. Richardson. We held that the trial court did not abuse its discretion in granting the Flanerys’s motion for new trial because the overwhelming weight of evidence was that Ms. Richardson had negligendy caused the accident. We noted that it was unrefiated that the Flanerys had the right-of-way when the accident occurred. Similarly, it is undisputed that Ms. Cash had the superior right as the forward vehicle.
In Turrise v. Crane, 303 Ark. 576, 798 S.W.2d 684 (1990), this Court also upheld a trial court’s granting of a new trial. Mr. Turrise was the driver of a van that was involved in a one-vehicle accident. The passengers filed an action against Mr. Turrise; the jury returned a verdict in favor of the defendant. Mr. Turrise testified that a blue car shot out in front of him which caused him to drive off the road. In affirming the granting of a new trial, this Court noted that the only evidence tending to excuse Turrise’s failure to keep the van on the road was his sudden emergency testimony. This Court also noted that the physical evidence showed a course of conduct contrary to that which an ordinary person would have undertaken when confronted with such an emergency. In the instant case, the physical evidence also shows a course of conduct contrary to that which an ordinary person would have undertaken when confronted with such an emergency. Ingram admits that he did not take any action after observing the lights from the initial accident.
Granted, the jury was instructed that a person who is suddenly and unexpectedly confronted with danger is required to use only the care that a reasonably careful person would use in the same situation. See AMI Civil 3rd, 614 (1989). Further, the jury was instructed on comparative fault. See AMI Civil 3rd, 2102 (1989). However, Ingram admitted he saw the headlights from the first accident and took no action. He further admitted that he saw Ms. Cash’s taillights, but he did not realize they were not moving. Under these circumstances, we cannot say that the trial court abused its discretion in granting a new trial on the basis that Ingram failed to keep a proper lookout and that Ms. Cash’s negligence, if any, did not equal or exceed that of Ingram.
Affirmed.
Glaze and Dudley, JJ., dissent. | [
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DONALD L. Corbin, Justice.
Appellant, Sandra Colleen Roberts, appeals the order of the Washington County Circuit Court finding her guilty of driving without a license, of violating Arkansas Code Annotated § 5-65-303 (Repl. 1993) of the “Underage Driving Under the Influence Law” codified at Arkansas Code Annotated §§ 5-65-301 to -311 (Repl. 1993 & Supp. 1995) (“Underage DUI Law”), and of direct contempt of court. Appellant raises four arguments for reversal. Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(l) and (3). We affirm the trial court’s judgment as modified.
The parties stipulated below to the following facts. On September 25, 1993, appellant was arrested at a roadblock for driving under the influence and having no driver’s license. At that time, appellant was aged sixteen years, unemployed, and a high-school student. Approximately fifty-six minutes after the traffic stop, appellant registered 0.05% blood alcohol after taking a certified BAC DataMaster test. Appellant does not contest the legality of the traffic stop or the results of the blood-alcohol test.
1. Public-service work
Appellant’s first argument assails the constitutionality of section 5-65-306, the public-service work provision of the Underage DUI Law. Section 5-65-306 provides as follows:
Any underage person who pleads guilty or nolo con-tendere or is found guilty of violating § 5-65-303 shall be ordered by the court to perform public service work of the type and for the duration as deemed appropriate by the court.
Appellant summarily argues, without citation to authority, that section 5-65-306 violates our state constitutional due-process guarantee, Ark. Const, art. 2, § 8, because it authorizes a trial court to pronounce a penalty of indefinite duration, and violates our state constitutional equal-protection guarantee, Ark. Const, art. 2, § 18, because it applies only to underage persons. The trial court sentenced appellant to perform thirty hours of public service for the substance-abuse program of the Salvation Army in Fayetteville.
We do not reach the merits of this argument. We do not consider an argument, even a constitutional one, when the appellant presents no citation to authority or convincing argument in its support and it is not apparent without further research that the argument is well taken. E.g., Cook v. State, 321 Ark. 641, 906 S.W.2d 681 (1995); Stevens v. State, 319 Ark. 640, 893 S.W.2d 773 (1995). This rule is consistent with the well-established principle that statutes are presumed to be constitutional and the burden of proving otherwise rests with the party challenging the statute. E.g., Dougan v. State, 322 Ark. 384, 912 S.W.2d 400 (1995); Cook, 321 Ark. 641, 906 S.W.2d 681. Appellant does not explain how the General Assembly’s failure to express a statutory maximum duration for community service pursuant to section 5-65-306 offends her due-process right, or how the statute’s underage classification offends her equal-protection right. We do not consider such deficient contentions on appeal. Cook, 321 Ark. 641, 906 S.W.2d 681; Stevens, 319 Ark. 640, 893 S.W.2d 773.
2. Blood-alcohol test
Without reference to any statute, appellant’s second argument is that she refused a second blood-alcohol test due to indigence, and that the state should have paid for the additional test and later taxed its cost to her because it is a violation of Arkansas Constitution, Article 2, section 18, and the United States Constitution, Amendment 14, to allow “people of means to get a second test, but to deny that right to an indigent person[.]” We are aware that the implied-consent provision of the Underage DUI Law, section 5- 65-309(a), provides that an underage driver shall be deemed to have consented, subject to the provisions of Arkansas Code Annotated § 5-65-203 (Repl. 1993), to a chemical test or tests of her blood, breath, or urine for the purpose of determining its alcohol or controlled-substance content. Section 5-65-203 (b)(1), in turn, provides that, if a person whose blood alcohol is tested by a law enforcement officer requests an additional test, the cost of the second test shall be borne by the person tested.
We do not reach the merits of this argument. First, the record does not establish that appellant refused an additional test because she lacked the funds to pay for it. As appellant’s counsel conceded in oral argument before this court, appellant did not tell anyone at the time of her arrest that she wanted an additional blood-alcohol test or that she could not afford to pay for one. Further, the record fails to establish that appellant was indigent at the time of her arrest. Appellant contends that she was at least “temporarily indigent” on the basis of the stipulated fact that she was an unemployed minor student at the time of the arrest. This contention is not persuasive. Indigent status is a mixed question of fact and law to be determined upon consideration of such factors as the individual’s total income, including income from unemployment benefits, total assets, total indebtedness, able-bodiedness, and level of education. Hill v. State, 305 Ark. 193, 805 S.W.2d 651 (1991). No finding of indigence was made by the trial court in this case, nor did the parties stipulate that appellant was indigent at the time of the arrest.
Second, appellant fails to establish that she was prejudiced by the absence of an additional test. Appellant stipulated that her blood alcohol registered 0.05% as a result of the test that was administered by the law enforcement officer after the traffic stop. The Underage DUI Law proscribes the operation or actual physical control of a motor vehicle by an underage person if, at that time, there was 0.02% but less than 0.10% by weight of alcohol in the person’s blood as determined by chemical test. Section 5-65-303(b). Below, appellant stipulated that she did not contest the legality of the 0.05% blood-alcohol test result or the traffic stop, and raised no argument demonstrating that a second test was necessary to an adequate defense.
Appellant also argues that the state’s failure to pay for an additional test violated her state and federal constitutional rights to gather exculpatory evidence. Ark. Const, art. 2, § 10; U.S. Const, amend. 6. This argument is without merit on the facts of this case in which, as we have noted, appellant stipulated to the accuracy of the 0.05% blood-alcohol test result and raised no argument demonstrating the necessity of a second test to an adequate defense. Appellant’s counsel contended in oral argument before this court, that had a higher second-test result been obtained, it would have shown that appellant’s blood-alcohol level was rising with the passage of time and therefore was less than 0.02% at the time she was operating her vehicle. The record, however, fails to reveal that this speculative contention was raised before the trial court, thus, we do not consider it for the first time on appeal. Parnell v. State, 323 Ark. 34, 912 S.W.2d 422 (1996).
Finally, appellant contends that due to the aforementioned alleged constitutional violations, her consent to take the test that was administered by the law enforcement officer was involuntarily given. This argument, which is based upon a false premise, is without merit. Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995).
3. Contempt
Appellant’s third argument is that the trial court erred in finding her in contempt of court for her refusal to attend a presentencing screening at Ozark Guidance Center. Appellant argues that the contempt ruling was erroneous because her participation in the screening would violate her constitutional right against self-incrimination and because she did not waive her right to a jury trial on the contempt charge. We have recently considered and rejected both of these arguments in Watson v. City of Fayetteville, 322 Ark. 324, 909 S.W.2d 637 (1995), which controls this case.
4. Jail sentence
The trial court sentenced appellant to a suspended sentence of thirty days in jail, with credit for one day served. Appellant’s fourth argument is that a jail sentence for violating section 5-65-303 is illegal on its face because the trial court lacked authority to impose it. See sections 5-65-304 (suspension of driver’s license), -305 (monetary fine), -306 (public-service work), -307 (alcohol and driving-education program), and -311 (relationship to other laws). Although appellant did not raise this issue below, she is not precluded from raising it on appeal because we treat an allegation of an illegal sentence as a problem of subject-matter jurisdiction that we may review whether or not an objection was made in the trial court. Bilderback v. State, 319 Ark. 643, 893 S.W.2d 780 (1995); Howard v. State, 289 Ark. 587, 715 S.W.2d 440 (1986).
The state concedes the jail sentence was not authorized by statute and we agree. The jail sentence is illegal on its face because the trial court lacked authority to impose it. Richards v. State, 309 Ark. 133, 827 S.W.2d 155 (1992). Where the trial court’s error has nothing to do with the issue of culpability and relates only to punishment, we may correct the error in lieu of reversing and remanding the case. Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992); Richards, 309 Ark. 133, 827 S.W.2d 155. Thus we modify appellant’s sentence for violating section 5-65-303 by deleting the suspended sentence of thirty days in jail with credit for one day served.
The trial court’s judgment of conviction and sentence is affirmed as modified. | [
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Per Curiam.
Appellant’s counsel, George Stone, has been the object of our attention in this case on several occasions. On April 24, 1995, we gave Stone thirty days to accept responsibility for the late filing of the transcript in this cause. When he failed to do so, we ordered him to appear on February 26, 1996, at 9:00 a.m., to show cause why he should not be held in contempt for his failure to comply with our April 24 order. While Stone appeared late at the February 26 hearing, Stone did respond and said that he would have the record and brief tendered in this case by March 23, 1996. Because of this assurance, the court, on March 18, 1996, denied appellant’s pro se motion to dismiss counsel and for reappointment of new counsel. On March 25, 1996, Stone moved for additional time to file a brief because his law license was suspended on March 8, 1996, for a deficiency in continuing legal education. We granted that continuance when he stated his CLE deficiency would be satisfied on March 29, 1996. Fie was ordered to have his brief filed on May 6, 1996. He has failed yet again to meet his deadline. Appellant’s motion disqualifying counsel George Stone is now granted and John F. Greenhaw is appointed as new counsel in this appeal, and the clerk of the court shall set a briefing schedule.
By the same order, George Stone is directed to appear before this court on Tuesday, May 28, 1996, at 9:00 a.m., and show cause why he should not be held in contempt of this court for failure to comply with this court’s prior orders as set forth hereinabove.
A copy of this opinion shall be forwarded forthwith to the Committee on Professional Conduct.
DUDLEY, J., not participating. | [
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ROBERT H. Dudley, Justice.
Appellant Donald Ewing filed this defamation suit against Cargill, Inc., and, upon trial, the jury found that Ewing was not defamed. The trial court entered a judgment accordingly, and Ewing appeals. We affirm the judgment.
The facts leading to the alleged defamation are as follows. Donald Ewing and his brother, Dr. Douglass Ewing, entered the poultry business in 1979, as the operators of Ewing Farms, a partnership, and Ewing Enterprises, Inc. They purchased feed grain from Cargill, Inc. In 1980 and 1981, the Ewing brothers failed to pay Cargill for the feed. Cargill, Inc., subsequendy filed suit against “Douglass Ewing, Donald Ewing, and Ewing Enterprises, Inc.” Donald Ewing filed a counterclaim. The parties reached an agreement by which Cargill would take a judgment against Dr. Douglass Ewing, but would dismiss its suit against Donald Ewing and Ewing Enterprises, Inc., and Donald Ewing would dismiss his counterclaim against Cargill. On April 14, 1981, Cargill took a judgment against Dr. Douglass Ewing for a litde over $63,000. However, the judgment did not mention Cargill’s claim against Donald Ewing or Ewing Enterprises, Inc., and it said nothing about Donald Ewing’s counterclaim against Cargill. It was not until June 15, 1988, or seven years later, that these claims were actually dismissed. The judgment against Dr. Douglass Ewing was not satisfied. Cargill’s attorneys wanted the judgment to survive as long as possible.
On February 2, 1989, Cargill sued out a scire facias to revive the judgment. See Ark. Code Ann. §§ 16-65-501 — 505 (1987). A scire facias is in the nature of a summons. Alexander v. Steel, 13 Ark. 392 (1853). The style of the scire facias is “Cargill, Inc. v. Douglass E. Ewing, et al.,” but the body incorrectly states that the judgment to be revived was “against Douglass E. Ewing, Donald Ewing and Ewing Enterprises, Inc.” The crux of this defamation suit is that the foregoing erroneous statement constituted defamation of Donald Ewing. Other parties were brought in, including Cargill’s attorneys, but they were dismissed prior to trial.
Donald Ewing’s first assignment is that the trial court erred in refusing to instruct the jury that Cargill committed defamation per se. Appellant Ewing cites no case by this court holding that a statement that a judgment exists against a plaintiff, without more, constitutes defamation per se, and we are not aware of any such case. The statement that Cargill had a judgment against Ewing, without more, did not amount to words that “on their face and without the aid of extrinsic proof are recognized as injurious.” See Dun & Bradstreet, Inc. v. Robinson, 233 Ark. 168, 178-179, 345 S.W.2d 34, 40 (1961).
One writer has explained libel per se at early common law as follows:
Libel, on the other hand, was divided into the per se and per quod categories on bases different than those used for slander. When defamatory meaning was apparent on the face of a communication, it was classified as libel per se. When extrinsic evidence was introduced to establish the defamatory character of the statement, it was called libel per quod.
Comment, The Law of Defamation: An Arkansas Primer, 42 Ark. Law Rev. 915, 923 (1989); see also Ransopher v. Chapman, 302 Ark. 480, 791 S.W.2d 686 (1990) (citing comment with approval). Arkansas has interchanged terminology when discussing slander per se, libel per se, defamation per se, and words that are actionable per se. 42 Ark. Law Rev. at 922-25. The comment states as follows:
Under Arkansas law, several types of statements are deemed defamatory per se not only in very old cases, but also in some relatively recent decisions. These include charges of criminal activity, adultery, “contagious distemper,” or dishonesty, as well as any charge which injures the plaintiff in his or her trade, business, or profession.
42 Ark. Law Rev. at 925 (citations omitted).
We have explained the distinction between words that are actionable per se and those that are not:
“Where the natural consequence of the words is a damage, as if they import a charge of having been guilty of a crime, or of having a contagious distemper, or if they are prejudicial to a person in office, or to a person of a profession or trade, they are in themselves actionable; in other cases, the party who brings an action for words, must show the damage which was received from them.”
Reese v. Haywood, 235 Ark. 442, 443, 360 S.W.2d 488, 489 (1962) (quoting Studdard v. Trucks, 31 Ark. 726, 727 (1877)). In Reese, a comparable case, we went on to explain:
Damage is not necessarily a natural consequence of the publication of the bare statement that a farmer owes a past-due account to an implement company, with no suggestion of a dishonest or fraudulent refusal to pay. While such a publication might be defamatory in itself in the case of a trader or one in whose business credit is an important asset, the contrary rule prevails where the plaintiff is not a trader. Harper & James, The Law of Torts, § 5.2. In the same vein we have said that an imputation of insolvency is not actionable per se. Rachels v. Deener, 182 Ark. 931, 33 S.W.2d 39; see also Honea v. King, 154 Ark. 462, 243 S.W. 74.
Id. at 443-44, 360 S.W.2d at 489 (emphasis added).
In Rachels v. Deener, 182 Ark. 931, 33 S.W.2d 39 (1930), this court considered whether a letter was libelous per se. The letter, which referred to the plaintiff attorney, stated in pertinent part, “We have found it necessary to charge off some notes that he owed this bank as they were uncollectible. Would suggest rather conservative dealings with him.” Id. at 933, 33 S.W.2d at 39. We held, “This is the most damaging statement contained in the letter, and it is not libelous per se, as, when analyzed, it amounts only to a statement that his credit at the bank is not so good as it once was.” Id. The opinion concludes:
The most that can be said is that there is an imputation of insolvency which is not actionable per se.
The words used not being libelous per se, and there being no allegation of special damages, the complaint failed to state a cause of action, and the demurrer was properly sustained.
Id. at 933-34, 33 S.W.2d at 40 (citation omitted).
In Dun & Bradstreet, Inc. v. Robinson, 233 Ark. 168, 345 S.W.2d 34 (1961), we considered a case in which the defamatory statement was a report that stated the plaintiff reportedly had discontinued his business operations. We recognized the importance of credit to a business, id. at 186, but held that the trial court correctly ruled that the publication in issue was not libelous per se. We quoted from 53 C.J.S., Libel and Slander § 8, at 41 as follows:
“In general, defamatory words may be divided into those that are actionable per se, which on their face and without the aid of extrinsic proof are recognized as injurious, and those that are actionable per quod, as to which the injurious character appears only in consequence of extrinsic facts.”
Id. at 178-79, 345 S.W.2d at 40.
Further, because we affirm the trial court’s ruling that the statement did not constitute defamation per se, we need not consider whether we could affirm for a different reason. Without deciding the issue, we note that the statement in the pleading may have been absolutely privileged. See Pogue v. Cooper, 284 Ark. 202, 680 S.W.2d 698 (1984); see also Comment, The Law of Defamation: An Arkansas Primer, 42 Ark. Law Rev. 915, 997-1000 (1989); Rodney Smolla, Law of Defamation, § 8.03 (Release #9, Nov. 1995).
Donald Ewing next argues that the trial court erred in failing to give the following instruction on republication:
You are instructed that under Arkansas law, one who publishes a defamatory statement is liable for any unauthorized republication, if such republication was foreseeable as a natural and probable consequence of the original publication.
We have never decided whether one is liable for republication of a defamatory statement, see Luster v. Retail Credit Co., 575 F.2d 609 (8th Cir. 1978), and we need not decide the issue in this case. Because there was a finding that the original statement did not defame Ewing, the jury could not have concluded that Cargill was liable for a republication of the statement. Since the appellant was not possibly prejudiced by the failure of the trial court to give the instruction, we will not reverse. Mikel v. Hubbard, 317 Ark. 125, 876 S.W.2d 558 (1994).
Donald Ewing next argues that the trial court erred in granting Cargill’s motion for directed verdicts on the issues of loss of credit and injury to reputation. He argues that he was not required to present proof of actual loss because his action was one for defamation per se. We have already given the reasons that the statement did not constitute defamation per se. In addition, since the jury determined that Ewing was not defamed, he could not have been prejudiced by the trial court granting the motion for directed verdict as to damages for loss of credit and damage to reputation. Therefore, we will not reverse the trial court on this point. Mikel v. Hubbard, 317 Ark. 125, 876 S.W.2d 558 (1994).
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ROBERT L. Brown, Justice.
This is the second appeal by appellant Casey Meadows. On February 22, 1993, Meadows entered a plea of nolo contendere to the charge of first-degree battery, which stemmed from his shooting Freddy Boozer, who was left paralyzed from the waist down. The trial court initially pronounced a sentence of 20 years, the execution of which was suspended conditioned upon Meadows (1) living a law-abiding life; (2) paying $200 per month toward the victim’s medical bills; (3) reporting monthly to a probation officer and paying $15 per month as a supervision fee; and (4) paying court costs in the sum of $78.25. In Meadows v. State, 320 Ark. 686, 899 S.W.2d 72 (1995) (.Meadows I), we reversed the sentence because it was illegal in that the trial court had no authority to suspend the execution of the sentence as opposed to the imposition of the sentence. We remanded the case for resentencing.
On June 27, 1995, the trial court conducted a resentencing hearing. At the outset of the hearing, this record was made:
BY THE COURT: It’s my understanding of the opinion, and I agree with what the Court said, that you don’t suspend the execution of sentence, and I wasn’t aware that had been done. So this as I understand it will be a re-sentencing.
BY DEFENSE COUNSEL: That’s exactly what it is, re-sentencing.
BY THE COURT: As though it never happened.
BY DEFENSE COUNSEL: That’s exactly —
BY THE COURT: And, at this point in time I have the same range of punishment available to me that I had back then; and the question of restitution, if there’s going to be a question about that, we can hear that.
BY DEFENSE COUNSEL: That’s exactly right.
BY THE COURT: As far as — this Court is not bound by any idea that I can suspend the imposition of sentence.
BY DEFENSE COUNSEL: I understand you’re not bound by anything.
BY THE COURT: And, if the evidence, whatever I hear in this hearing, convinces this Court that this man needs to go to prison, he’s got a class “B” felony and there’s twenty years available for him to go to the Department of Correction or a fine or any combination of the things that I have available.
BY DEFENSE COUNSEL: I understand all that, Your Honor.
The trial court then proceeded to hear testimony from the victim, Freddy Boozer, about the extent of his injuries and his medical expenses, which exceeded $300,000. Following that, Mike Briscoe, Meadows’s probation officer, testified. At the beginning of Briscoe’s testimony, this colloquy occurred among the trial court, defense counsel, and the prosecutor:
BY DEFENSE COUNSEL: Now, I’m going to object, Your Honor. That hasn’t go (sic) anything to do with the re-sentencing.
BY THE PROSECUTOR: Sure it does, Judge. It shows his compliance with —
BY THE COURT: Well, if I’m going to re-sentence it would be as though there had never been a sentence originally. I’d have the same range of punishment.
BY DEFENSE COUNSEL: Yes, sir.
BY THE COURT: I’d have the pre-sentence report and I’d have comments from people that would give what he has been doing since he was back in this Court a year or two ago. I think that would be beneficial to the Court to decide what to do with him. I don’t think I’m frozen in time to what happened back at that point in time.
BY DEFENSE COUNSEL: Well, —
BY THE COURT: How am I going to know how to sentence him if I don’t have some input from people?
BY DEFENSE COUNSEL: AH right. I think I agree with you.
BY THE COURT: Go ahead.
Briscoe next testified that after December 1993, Meadows’s monthly reports to him became sporadic and that twelve reports were not received at all. Briscoe added that Meadows moved away once without telling him and failed to pay supervision fees for approximately five months preceding the sentencing hearing. Finally, Meadows testified that he now was required to pay $40 a week in child support due to his divorce and that because of living expenses, remarriage, and unavailable construction work, he was unable to make the $200-per-month payments. He offered no explanation of why he had not made the probation reports.
Following a second hearing on July 11, 1995, in which a presentence report was offered, the trial court made the observation that the presumptive sentence for first-degree battery under the new sentencing grid was ten years. See Ark. Code Ann. § 16-90-801 to 804 (Supp. 1995). The trial court ordered a sentence of five years imprisonment with an additional ten years suspended, conditioned upon Meadows leading a law-abiding life, paying restitution as previously ordered by the court, reporting to a probation officer, and paying a $15 per month supervision fee.
Meadows urges in this appeal that the trial court should have merely corrected the original judgment from a suspension of the execution of the sentence to a suspension of the imposition of the sentence. We disagree for several reasons. We initially observe that defense counsel acknowledged at the commencement of the resentencing hearing and during Briscoe’s testimony that the trial court could sentence Meadows to a prison term based on the evidence at the hearing. It is well-settled that a party cannot agree with a ruling by the trial court and then attack it on appeal. Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995); Magar v. State, 308 Ark. 380, 826 S.W.2d 221 (1992).
But, in addition, this court has stated the law regarding correction of a sentence by the trial court when part of a sentence is erroneous:
However, when there is an error in one portion of an individual sentence, as here, the courts view the sentence as an indivisible totality and if modification is required, the court may on resentencing impose any sentence it could have lawfully imposed at the outset. People v. Wilson, 315 N.W.2d 423 (Misc. App. 1981); Herring v. State, 411 So.2d 966 (Fla. 1982); People v. Gillette, 304 N.Y.S.2d 296 (1969).
Campbell v. State, 288 Ark. 213, 217, 703 S.W.2d 855, 857-858 (1986).
Ordinarily, once a valid sentence has been placed in execution, the trial court has no authority to change it. Hodge v. State, 320 Ark. 31, 894 S.W.2d 927 (1995); Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987). But with respect to an illegal sentence, the trial court has the authority to correct it even after it has been placed in execution. Hodge v. State, supra; Chenowith v. State, 26 Ark. App. 256, 763 S.W.2d 103 (1989). In Chenowith, eight sentences were originally imposed to be served concurrently, but each sentence exceeded the maximum permissible range of punishment. Thus, the sentences were invalid. Because modification of the sentences was required, the Court of Appeals held that the trial court had the authority on resentencing to impose any sentence it could have imposed at the outset.
The same holds true in the instant case. We remanded the case in Meadows I for resentencing and not for the limited purpose of changing the language of the suspension from “execution” to “imposition.” We remarked in Meadows I that our cases held that resentencing was appropriate for an illegal sentence, even after the sentence had been partially executed. Furthermore, at the resentencing hearing, Meadows’s counsel acknowledged that the trial court could consider all punishments which the court originally had available to it. The trial court then took note of Meadows’s failure to comply with the conditions of the first sentence, which led to a sentence of a term of years. For all of these reasons, we find no fault in the trial court’s assessed punishment.
The State raises a final point. According to the State, the new judgment prescribes a prison term and then a ten-year suspension conditioned on restitution, law-abiding conduct, and his reporting to a probation officer and paying a supervision fee. The State contends that this smacks of probation rather than a suspended sentence and that this court has stated that a period of probation may not follow a term of imprisonment. See Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992). We decline to address the issue of whether the State’s interpretation of the Bangs decision is correct because Meadows did not raise the argument to the trial court and has not raised it on appeal. See Bilderback v. State, 319 Ark. 643, 893 S.W.2d 780 (1995). Of course, Meadows has the option of challenging any portion of his sentence which he contests as illegal in a post-conviction proceeding. Id.
Affirmed.
Dudley, J., not participating.
The 1993 judgment is not contained in the record but is described in Meadows v. State, 320 Ark. 686, 899 S.W.2d 72 (1995), and in the testimony of Mike Briscoe, probation officer, at the resentencing hearing.
The trial court acknowledged, as we do, that Meadows’s offense occurred before the effective date of Act 532 of 1993, which established the sentencing guidelines, and was, therefore, not controlling. | [
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PER CURIAM.
Appellant files a motion to supplement the record, requesting the record to include a copy of a federal district court order entered on June 9, 1995, suggesting a postconviction hearing be conducted in state court or a writ of habeas corpus would issue within 120 days. We grant appellant’s motion, but, in addition, direct the state to supplement the record with any additional and relevant information on how and when this cause was decided in federal court and referred to state court, resulting in this appeal. | [
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Donald L. CORBIN, Justice.
Appellant, Louis Ricardo Butler, appeals the order of the Pulaski County Circuit Court, denying transfer of his case to juvenile court. This interlocutory appeal is provided in Ark. Code Ann. § 9-27-318(h) (Repl. 1993). Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(12).
A felony information was filed in circuit court charging appellant and Myron Antonio McClendon with three counts of aggravated robbery, Class Y felony, in violation of Ark. Code Ann. § 5-12-103 (Repl. 1993), and three counts of theft of property, two being Class A misdemeanors and the other being a Class B felony, in violation of Ark. Code Ann. § 5-36-103 (Repl. 1993). The information reflects that the charges stem from three separate instances, taking place on July 7, 1994, July 10, 1994, and August 11, 1994, involving appellant and McClendon robbing three different pizza delivery personnel at gun point with the purpose of committing a theft. Appellant was born April 23, 1979, and was thus fifteen years of age at the time of the alleged offenses.
After the state filed the felony information, a delinquency petition was filed against appellant in juvenile court concerning the robbery which occurred on August 11, 1994. The record reflects that the state mistakenly filed the last aggravated-robbery incident in juvenile court, not realizing that charges arising out of all three robberies had already been filed in circuit court. The state had also filed an unrelated delinquency petition alleging that appellant had committed the offenses of residential burglary, Class B felony, and theft of property, Class A misdemeanor, on July 13, 1994.
Appellant moved to transfer the charges pending in circuit court to juvenile court. The circuit court conducted a hearing on appellant’s motion, during which hearing testimony was heard from appellant’s parents, Mr. Louis Butler Sr. and Mrs. Lady Williams, appellant’s counselor, Mr. Sanford Toilette, and the police officer who investigated the three robberies, Detective Todd Armstrong, of the Litde Rock Police Department.
Mr. Butler testified that his son began having trouble when he and his mother were divorced in 1988, and that before the divorce, appellant had been in advanced classes at school. Mr. Buder stated that after the divorce, appellant had been placed in alternative schooling at the Joseph Pfeifer Kiwanis Camp, and that he had begun to show progress within three or four weeks. Mr. Buder stated that his son was a good kid and that he knew right from wrong. Mr. Buder expressed concerns for appellant’s safety should he be sentenced to prison, and stated that sentencing appellant to prison would not help to rehabilitate him.
Mrs. Williams also testified that appellant had only begun to have trouble since the divorce of his parents, and that because of his troubles, she had put appellant in a program at Pinnacle Point Hospital, in addition to the Pfeifer camp, and she had attempted to place him in the New Futures program. Mrs. Williams stated that prison would not be a good place for appellant because he needs rehabilitation. Mrs. Williams concluded by saying that appellant was not a violent person, but when he consumes alcohol, his personality changes completely.
Sanford Toilette, director of the alternative classroom program for kids at risk at the Pfeifer camp, took the stand next on behalf of appellant. Mr. Toilette stated that appellant had been assigned to his program in November 1988, and that he had completed the thirty-day program. Mr. Toilette stated that appellant had continued to come back to the program over the next three years as part of the summer camp, and that he eventually became an honor camper. Mr. Toilette stated that he felt appellant was a good kid with a good heart, and that the seriousness of the offenses had made an impression on him.
The last witness to testify at the hearing was Detective Armstrong, who described each of the robberies for the court. Detective Armstrong stated that on July 7, 1994, pizza was ordered from Pizza 4 Less and upon the driver’s arrival, two black males — one armed with a shotgun and the other with a handgun — robbed the deliveryman of two pizzas and cash. Detective Armstrong stated that on July 10, 1994, pizza was again ordered from Pizza 4 Less and when the driver arrived, he was asked to come inside. The detective noted that on this occasion the robbery had taken place at appellant’s father’s residence. Once the driver was inside the residence, Detective Armstrong continued, the deliveryman was robbed of his pizzas with the use of a sawed-off shotgun. Regarding the third and last robbery, which occurred on August 11, 1994, Detective Armstrong stated that pizza was ordered from Pizza Hut and upon the driver’s arrival, he was approached by two black males, one of whom was armed with a rock or brick and threatened the deliveryman. Upon the threat being made with the weapon, Detective Armstrong stated, the deliveryman fled his vehicle, while one of the suspects got into the vehicle and left. Detective Armstrong further testified that he had interviewed appellant concerning the crimes, and that appellant had confessed his participation in two of the three robberies. Before leaving the witness stand, Detective Armstrong identified appellant for the record.
At the conclusion of Detective Armstrong’s testimony, the state submitted the two previously mentioned juvenile delinquency petitions against appellant as evidence, and the court received them into the record. The circuit court subsequently denied appellant’s motion to transfer his case to juvenile court at a later hearing. Appellant now brings this interlocutory appeal.
In support of this appeal, appellant raises three points: First, that the circuit court erred in not dismissing the three counts of theft of property charged in the felony information, as they are not listed among those offenses enumerated in section 9-27-318(b)(l); second, that the circuit court erred in denying the motion to transfer the case to juvenile court as there was not clear and convincing evidence that appellant should be tried as an adult; and third, that the circuit court erred by failing to provide a sufficient statement of the court’s findings to demonstrate that each of the elements set out in section 9-27-318(e) was considered. We affirm the circuit court’s ruling denying transfer to juvenile court as to the three counts of aggravated robbery, but we reverse the denial as to the three counts of theft of property.
I. Jurisdiction of Non-enumerated Offenses
Appellant argues that because he was only fifteen years old at the time the offenses were allegedly committed, the circuit court did not have jurisdiction over the three counts of theft charged in the information because theft of property is not among those charges enumerated in section 9-27-318(b)(l). Appellee concedes this error. We agree that the denial of transfer as to the three charges of theft of property was error.
Section 9-27-318 specifically provides, and this court has consistendy held, that the circuit court has jurisdiction over a juvenile aged fourteen or fifteen only when the juvenile is charged with one or more of the offenses enumerated in section 9-27-318 (b)(1). Any other charges against the juvenile must be dismissed by the circuit court for lack of jurisdiction. See, e.g., State v. Gray, 319 Ark. 356, 891 S.W.2d 376 (1995); Banks v. State, 306 Ark. 273, 813 S.W.2d 256 (1991).
Appellant relies on Banks, 306 Ark. 273, 813 S.W.2d 256, in support of his argument. In Banks, the appellant, who was fourteen years of age at the time of the crimes, was charged with the offenses of aggravated robbery, attempted capital murder, theft of property valued at less than $200.00, and fleeing from arrest. We held that, given the juvenile’s age, the circuit court only had jurisdiction over the appellant as to the charge of aggravated robbery, as it was the only one of the four charges facing appellant which was among those enumerated in section 9-27-318(b)(l). Because the circuit court did not have jurisdiction over the remaining three charges, we held that the charges should have been dismissed. In the case at hand, appellant is charged with three counts of aggravated robbery and three counts of theft of property. While aggravated robbery is one of the offenses enumerated in section 9-27-318(b)(l), theft of property is not. Our inquiry does not, however, end here.
Section 9-27-318(a) provides that if the prosecutor can file charges against a juvenile in circuit court, the prosecutor “may file any other criminal charges that arise out of the same act or course of conduct in the same circuit court case if after a hearing before the juvenile court a motion to transfer is so orderedf.]” (Emphasis added.) Pursuant to this provision, the prosecutor in this case could have filed the theft charges in juvenile court and then moved the juvenile court to transfer the charges to circuit court, where they would be joined with the aggravated robbery charges. That, however, was not done.
Since the three theft charges are not among those enumerated in subsection (b)(1) of 9-27-318, and since the prosecutor in this case did not file the charges in juvenile court and then move to transfer them to circuit court, the circuit court never had jurisdiction of those charges. Based on our prior holdings, the three counts of theft of property filed against appellant in circuit court must therefore be dismissed.
II. Sufficiency of the Evidence
Appellant argues that there was not sufficient evidence produced at the hearing for the court to find by clear and convincing evidence that appellant should be tried as an adult. We find no merit to this argument.
A circuit court’s decision to deny transfer of an appellant’s case to juvenile court will not be reversed unless it is “clearly erroneous.” See, e.g., Williams v. State, 313 Ark. 451, 856 S.W.2d 4 (1993); Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991). Furthermore, it is the movant’s burden to prove the transfer to juvenile court was warranted. Williams, 313 Ark. 451, 856 S.W.2d 4; Pennington v. State, 305 Ark. 312, 807 S.W.2d 660 (1991). This is a burden appellant has not met.
We recognize that pursuant to section 9-27-318(f), the determination that a juvenile should be tried as an adult must be supported by clear and convincing evidence. See, e.g., Davis v. State, 319 Ark. 613, 893 S.W.2d 768 (1995); Sebastian v. State, 318 Ark. 494, 885 S.W.2d 882 (1994). Clear and convincing evidence is defined as “that degree of proof which will produce in the trier of fact a firm conviction as to the allegation sought to be established.” Cole v. State, 323 Ark. 136, 140, 913 S.W.2d 779, 781 (1996) (quoting Cobbins v. State, 306 Ark. 447, 450, 816 S.W.2d 161, 163 (1991)).
Section 9-27-318(e) provides that the circuit court shall consider the following factors when making the decision to retain jurisdiction or transfer the case to juvenile court:
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.
In this case, the circuit court announced its decision by stating that:
I’ve gone back and reviewed the evidence in this matter, listened to the Court Reporter’s matters, and reviewed the law on it. And after reviewing the facts of this case, there’s no question in my mind but this case should not be in juvenile, based upon the circumstances of it, the Defendant’s participation, et cetera.
From this statement, it appears that the circuit court took into consideration all the testimony and evidence presented at the hearing concerning the three factors listed in section 9-27-318(e), and found that the case should be heard in circuit court. It is of no consequence to appellant’s argument concerning the circuit court’s alleged failure to consider the second and third factors that the circuit court did not methodically list out each piece of evidence as it related to each specified factor. It is enough that the circuit court stated that it took into consideration all the evidence presented at the hearing in making its decision to deny transfer.
We have stated that although a circuit court must consider all the factors listed in section 9-27-318(e), the circuit court need not give each of the factors equal weight, and it is permissible to give substantial weight to the criminal information. Walker v. State, 304 Ark. 393, 803 S.W.2d 502, reh’g denied, 304 Ark. 402-A, 805 S.W.2d 80 (1991). In fact, the criminal information, on its own, is sufficient to establish that the offense charged is of a violent and
serious nature, thus satisfying the first element listed in section 9-27-318(e). Davis, 319 Ark. 613, 893 S.W.2d 768; Vickers, 307 Ark. 298, 819 S.W.2d 13. Moreover, proof of each factor need not be introduced against the juvenile in order for the circuit court to retain jurisdiction. Davis, 319 Ark. 613, 893 S.W.2d 768; Hogan v. State, 311 Ark. 262, 843 S.W.2d 830 (1992). The fact that the offenses charged were serious in nature and committed with the use of violence is sufficient to warrant a denial of transfer of appellant’s case to juvenile court.
Similarly, the use of violence in the commission of a serious offense is a factor sufficient in and of itself for a circuit court to retain jurisdiction of a juvenile’s case. Sebastian, 318 Ark. 494, 885 S.W.2d 882; Blevins v. State, 308 Ark. 613, 826 S.W.2d 265 (1992). Although we have previously recognized that it is possible to commit the offense of aggravated robbery without the actual employment of violence, we find that was not the case in these three incidents. See, e.g., Johnson v. State, 307 Ark. 525, 823 S.W.2d 440 (1992). The circuit court in this case could easily have found that the evidence presented satisfied the first factor provided in section 9-27-318(e), and this factor alone would have been sufficient reason for the circuit court’s denial of transfer.
Moreover, the fact that appellant may not have held a gun in each of the robberies is of little consolation to appellant as it does not change the nature of the charges pending against him. In fact, in Guy v. State, 323 Ark. 649, 916 S.W.2d 760 (1996), we stated that, “[i]t is of no consequence that appellant may or may not have personally used a weapon, as his association with the use of a weapon in the course of the crimes is sufficient to satisfy the violence criterion.” Id. at 654, 916 S.W.2d at 763 (citing Collins v. State, 322 Ark. 161, 908 S.W.2d 80 (1995)). Detective Armstrong’s testimony coupled with the factual basis set out in the felony information provided sufficient grounds for the circuit court to find that the offenses committed were serious and that violence was employed by the appellant during their commission.
We find that there is ample evidence from the record with which to affirm the circuit court’s denial of transfer. Because the remaining charges against appellant consist of three counts of aggravated robbery, Class Y felony, the most serious level of offense in the State of Arkansas, and because violence was employed via appellant’s use of deadly weapons to cause a threat of death or serious physical injury to the victims, we cannot say that the denial of transfer as to the three counts of aggravated robbery was clearly erroneous.
III. Factual Findings
Lastly, appellant argues that because the circuit court did not make specific findings of fact in its order, it is impossible to tell whether the court considered each of the factors set out in section 9-27-318(e), and because of this impossibility the circuit court erred in denying transfer. Appellant asserts that, due to the omission of factual findings, he has been denied a meaningful review of the circuit court’s decision in violation of his rights under the Due Process Clause of the United States Constitution.
Appellant cites no Arkansas case law in favor of his position and relies solely on Kent v. United States, 383 U.S. 541 (1966) for this argument. Appellee asserts that appellant is precluded from raising this point on appeal because he did not raise this argument below. Appellant concedes that this issue was not ever brought to the attention of the circuit court and was thus not properly preserved below.
From our review of the record provided, it is clear that appellant did not raise this issue in the circuit court, nor did he at any time move the circuit court to detail its reasons for denying his motion to transfer. We have consistently held, and appellant agrees, that even constitutional issues will not be heard for the first time on appeal. Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994).
IV Conclusion
We affirm the circuit court’s denial of transfer as to the three charges of aggravated robbery, but we reverse as to the three counts of theft of property. We dismiss without prejudice the three charges of theft of property, as proper procedure was not followed in filing the charges and the circuit court was without jurisdiction to hear the charges.
Affirmed in part; reversed and dismissed in part.
ROAF, J., dissents.
DUDLEY, J., not participating. | [
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Per Curiam.
This motion is filed by Christopher Carter of the Baxter County Public Defender’s Office. He was appointed to represent Thomas James Lovelady on a charge of rape. On September 18, 1995, Lovelady was convicted and sentenced to forty years imprisonment. A timely notice of appeal was filed.
On January 8, 1996, the Baxter County Circuit Court set Lovelady’s appeal bond at $50,000. The next day, Lovelady posted the bond, which he had obtained through First Arkansas Bail Bonds, Inc. On February 28, 1996, Christopher Carter filed a partial record with this court, and filed his motion asking to be relieved as counsel. He asserts that Lovelady’s posting of a $50,000 bond indicates that he is not indigent and therefore not entitled to the services of the public defender’s office.
Arkansas Code Annotated § 16-87-113(a)(l) (Supp. 1995) provides as follows:
Any person charged with a criminal offense desiring to obtain the services of a public defender shall affirm in writing that he is without funds or assets with which to employ private counsel and that he has not been released on money bail in an amount greater than fifteen thousand dollars ($15,000) pursuant to the execution of an unsecured or secured bond.
The movant contends that, because Lovelady has been released on bail in an amount greater than $15,000, he can no longer utilize the services of the public defender. Arkansas Code Annotated § 16-87-113(b) (Supp. 1995) contemplates the situation in which an accused posts a bond in an amount greater than $15,000 after the public defender has been appointed:
If a public defender is appointed and the indigent person is later released on money bail in an amount greater than fifteen thousand dollars ($15,000) pursuant to the execution of an unsecured or secured bond, then the court may hold a hearing to determine if the person is still eligible and entitled to the services of a public defender.
If the court determines that the person is ineligible and not entitled to the services of a public defender, then the court may release the public defender as attorney of record.
Pursuant to this statute, we remand the case to the trial court for a hearing to determine if Lovelady is still eligible and entitled to the services of the public defender. | [
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Tom Glaze, Justice.
Appellant Larry Baxter was charged with possession of a controlled substance with intent to deliver, criminal conspiracy to deliver a controlled substance, and with being a habitual offender. A jury found Baxter guilty of the criminal conspiracy charge, and he was sentenced as a habitual offender to fifty years’ imprisonment.
Baxter first argues his conviction should be overturned because his arrest was illegal and his statements given law enforcement officers were poisonous fruits of the unlawful arrest and should have been suppressed by the trial court. See Wong Sun v. United States, 371 U.S. 471 (1963).
In reviewing the trial court’s denial of a suppression motion, this court makes an independent examination based on the totality of the circumstances, and reverses only if the trial court’s ruling was clearly against the preponderance of the evidence. Hudson v. State, 316 Ark. 360, 872 S.W.2d 68 (1994). All presumptions are favorable to the trial court’s ruling on the legality of the arrest, and the burden is on the appellant to demonstrate error. Id. In assessing the existence of probable cause, our review is liberal rather than strict, and is guided by the rule that probable cause to arrest without a warrant does not require the degree of proof sufficient to sustain a conviction. Id. And finally, we must look to the officers’ knowledge at the moment of arrest to determine whether probable cause exists. Friend v. State, 315 Ark. 143, 865 S.W.2d 275 (1993).
Under Ark. R. Crim. P. 4.1, a law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that person has committed a felony. In the present case, an informant told Officer Mike Davis that William Mumford would be returning to Little Rock from Texas on the evening of January 29, 1992, with a quantity of cocaine in his vehicle. Davis and other officers set up surveillance at Mumford’s residence, and when Mumford arrived, the officers confronted him with the information they had received. After advising Mumford of his rights, Mumford admitted he was carrying cocaine, and the officers found three ounces in his car.
The same informant who had told the officers about Mumford also related that Mumford and Baxter had sold cocaine at a nightclub located in a certain Little Rock shopping center. Upon the officers’ relating that information to Mumford, Mumford admitted he and Baxter had been involved in the purchasing of cocaine from a Texas man named Chip Diffenbacher. Mumford said that he had purchased the cocaine for Baxter, and had paid $800.00 an ounce.
On the same evening of his arrest, Mumford agreed to call Baxter, and in doing so, Mumford arranged to meet Baxter at the Little Rock shopping center where the two had allegedly sold cocaine. Prior to meeting Baxter, Mumford was wired with a microphone, but the microphone only conveyed static during Mumford’s meeting and conversation with Baxter. The officers arrested Baxter after Baxter acquired some plastic sandwich bags at a K-Mart store, and, with Mumford, had entered a video store in the center. Although later denied by Baxter, the officers testified that, both before and after his arrest, Baxter expressed he wanted to turn state’s evidence and provide information on cocaine trafficking between Texas and Little Rock. Baxter stated that, while he knew why he was being arrested, he could not be charged because he had not picked up any cocaine. Baxter later provided names of persons who were selling cocaine in the Litde Rock area, and admitted that he and Mumford had worked together since 1990. He said that he and Mumford would pick up cocaine in Texas from Chip Dif-fenbacher, but Mumford had picked up most of the cocaine. These were the statements Baxter sought to suppress.
Taking a liberal view of the circumstances in this case and giving all favorable presumptions to the trial court’s ruling on the legality of Baxter’s arrest, we hold the officers had, under the terms of Ark. R. Crim. P. 4.1, reasonable cause to believe that, at the time of his arrest, Baxter had committed a felony. The officers had informant information implicating both Mumford and Baxter in the trafficking of cocaine. Acting on that information, the officers arrested Mumford, who then admitted to all the allegations that had been made by the informant, including Mumford’s having worked with Baxter in the purchase and sale of cocaine.
Armed with what proved to be recent, trustworthy information from an informant plus Mumford’s statements, the officers asked Mumford to contact and arrange a meeting with Baxter. Mumford had no problem doing so, and in fact, Baxter met with Mumford the day after Mumford returned from Texas. We conclude these facts and circumstances were trustworthy and sufficient enough to permit a person of reasonable caution to believe Baxter and Mumford had worked together in the trafficking of drugs. See Hudson v. State, 316 Ark. 360, 872 S.W.2d 68 (1994); Friend v. State, 315 Ark. 143, 865 S.W.2d 275 (1993). Consequently, we uphold the trial court’s ruling denying Baxter’s suppression motion.
In his second point for reversal, Baxter argues his conviction for conspiracy to possess cocaine with intent to deliver is not supported by sufficient evidence. The state points out that Baxter failed to preserve this issue for review. We must agree.
At the end of the state’s case, Baxter moved for a directed verdict. Defense counsel stated as follows:
“Your Honor, at this time, I want to renew all previous motions I’ve made. In particular, I want to also move for a directed verdict of acquittal, particularly as to — number one, as to count one. You’ve now heard the testimony of Mr. Mumford and this — we’ve got two counts: count one, possession with intent to deliver, and then we have count two is the conspiracy.”
Counsel then argued the first count. If there was any doubt as to what defense counsel intended to encompass within his directed verdict motion, that doubt was resolved by his cautionary remarks to the trial court, “Your Honor, they’ve (the state) got the conspiracy case. Let’s go — let’s keep this case clean and go to the jury on a conspiracy. . . .”
We note that, at the close of all evidence, Baxter did move for a directed verdict on the conspiracy count, but this court has held that, to preserve the sufficiency of evidence issue, Baxter was required to move for a directed verdict at both the close of the state’s case and at the end of the whole case. Hayes v. State, 312 Ark. 349, 849 S.W.2d 501 (1993). This court has stated that the movant of a directed-verdict motion must apprise the trial court of the specific basis on which the motion is made. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). Here, Baxter failed to include the conspiracy count in his directed verdict motion at the close of the state’s case, and his attempt to include that basis at the end of all evidence was untimely.
Baxter’s next argument is that the trial court erred in allowing the enhancement of his sentence under the Habitual Offenders Act, Ark. Code Ann. § § 5-4-501-504 (1987 and Supp. 1995). He asserts his two prior criminal cases were expunged under Act 346 of 1975, and because no adjudication of guilt is had under that Act, his two prior cases should not have been for enhancement purposes. Under § 5-4-501, a defendant who has previously been convicted or found guilty of other felonies may have his sentence enhanced upon conviction.
Baxter’s argument is meritless because the record reflects he was found guilty by a jury to the crimes of aggravated robbery and theft. He was sentenced to terms of imprisonment of five and three years respectively. In addition, the record shows that, after his adjudication of guilt, the trial court entered a conviction judgment committing Baxter to the Arkansas Department of Correction. After Baxter completed his sentence and was discharged by the Board of Pardons and Paroles, the trial court then entered an order expunging his conviction and sealed the robbery and theft crimes, making them only available to law enforcement and judicial officials.
Although Baxter points to the earlier judgment of convictions which notes he was sentenced under the provisions of Act 346 of 1975, those provisions were not followed or utilized. Under Act 346, codified at § 16-93-303(a)(l), an accused enters a plea of guilty or nolo contendere prior to an adjudication of guilt, the circuit court, without entering a judgment of guilt and with the consent of the defendant, may defer further proceedings and place him on probation for a period of not less than one year, under such terms and conditions as may be set by the court. Obviously, Act 346 was not utilized in Baxter’s prior cases even though the convic tion judgment entered made passing reference to that Act. In sum, Baxter’s argument here simply is not supported by the record, and therefore we affirm on this point.
Baxter next contends the trial court erred in submitting to the jury a verdict form containing the wrong sentence range. The sentencing range given was that for a habitual offender convicted of a Class A felony — a term of not less than six years nor more than fifty years. See Ark. Code Ann. § 5-4-501(a)(2) (Repl. 1993 and Supp. 1995). Baxter asserts the object of his crime of conspiracy was an unclassified felony, and under Ark. Code Ann. § 5-3-404(5), he should have been punished for a Class A misdemeanor, which requires a sentence not to exceed one year. Ark. Code Ann. § 5-4-401(b)(1) (Repl. 1993 and Supp. 1995). Baxter is mistaken in classifying his criminal conspiracy.
Under Ark. Code Ann. § 5-3-404(1) (Repl. 1993), a criminal conspiracy is a Class A felony if an object of the conspiracy is commission of capital murder, treason, or a Class Y felony. (Emphasis added.) Here, the object of Baxter’s and Mumford’s conspiracy was to purchase and possess cocaine with the intent to deliver it — a Class Y felony under the penalty section of the Uniform Controlled Substances Act. See Ark. Code Ann. § 5-64-401 (Repl. 1993 and Supp. 1995). Accordingly, the verdict containing the habitual sentencing range for a Class A felony was correct.
Finally, Baxter argues his sentence compared to Mumford’s is disproportional and constitutes cruel and unusual punishment. We first point out that the record fails to reflect Mumford’s sentence, and this court may not take judicial notice of the record in a separate case. Smith v. State, 307 Ark. 223, 818 S.W.2d 945 (1991). We also note that, in rejecting this argument below, the trial court explained that the evidence supported the theory that Baxter was the main perpetrator of the crime, and Baxter used Mumford to commit it. In any event, this court has clearly held that the sentence received by a codefendant is not relevant to the appellant’s guilt, innocence, or punishment. Robinson v. State, 278 Ark. 516, 648 S.W.2d 444 (1983).
Because we find no merit in Baxter’s five points on appeal, we affirm.
Dudley, J., not participating. | [
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PER CURIAM.
Petitioner Steve Sinatra Moore was found guilty by a jury of engaging in a continuing criminal enterprise (CCE) and sentenced to forty years’ imprisonment. A fine of $5,000.00 was also imposed. We affirmed the judgment on direct appeal and reversed and remanded the case on cross-appeal, directing that the trial court reinstate the jury’s verdict and sentence for the five predicate offenses of the CCE conviction which it had set aside. Moore v. State, 321 Ark. 249, 903 S.W.2d 154 (1995).
Petitioner Moore, who contends that he is indigent, now seeks pursuant to the Freedom of Information Act a photocopy at public expense of the briefs filed on direct appeal. He gives no reason for the request.
We first note that Ark. Code Ann. § 25-19-101 et seq, the Freedom of Information Act, does not require a court to provide free-of-charge a copy of material on file with the court. A petitioner is not entitled to photocopying at public expense unless he demonstrates some compelling need for specific documentary evidence to support an allegation contained in a petition for post-conviction relief. See Austin v. State, 287 Ark. 256, 697 S.W.2d 914 (1985); see Chavez v. Sigler, 438 F.2d 890 (8th Cir.1971); see also United States v. Losing, 601 F.2d 351 (8th Cir. 1979). Indigency alone does not entide a petitioner to photocopying at public public expense. Washington v. State, 270 Ark. 840, 606 S.W.2d 365 (1980). The petitioner here has offered nothing to demonstrate that photocopies of material on file with this court should be provided to him at no cost.
It should be noted that when an appeal has been lodged in this court, the appeal transcript and other material filed on appeal remain permanendy on file with the clerk of the supreme court. Persons may review a transcript and other material in the clerk’s office and photocopy all or portions of it. An incarcerated person desiring a photocopy of an item on file may write this court and request that the copy be mailed to the prison. All persons, including prisoners, must bear the cost of photocopying. Austin v. State, supra.
Motion denied.
Dudley, J., not participating. | [
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ANDREE LAYTON Roaf, Justice.
Lawrence Stanley was convicted of escape from the Department of Correction, and aggravated robbery. He was sentenced to ten years and forty-five years respectively, to be served concurrently. On appeal, he argues that the trial court erred 1) in ordering him to appear in the courtroom wearing handcuffs, and 2) in denying his motion for mistrial after the prosecutor, during opening statements, commented on other possible offenses committed by Stanley in another county. We affirm.
Stanley, along with two other inmates, escaped from a construction crew that was building a security tower at the Pine Bluff diagnostic unit by running into a wooded area. They first attempted to steal a car from a nearby residence, but fled when an elderly woman pulled a gun on them. The three subsequently entered another house after they observed a woman leave there in a pickup truck; inside the home they encountered the owner, Madison Jackson, talking on the telephone. Mr. Jackson testified that one of the inmates held a knife to his throat and that Stanley removed a rifle from the wall. The three inmates took Mr. Jackson’s wallet, two rifles and his car keys, and fled in Jackson’s car; Stanley drove the car. The three were later apprehended in Ouachita County.
Stanley filed a motion to sever, and was tried separately from the other two inmates. At his trial, Stanley was dressed in white prison garb and was shackled with arm and hand restraints. The trial court denied Stanley’s request to have leg restraints substituted for the arm and hand restraints.
Stanley first argues that the trial court erred in ordering him to appear in the courtroom wearing handcufrs. Stanley’s counsel objected to Stanley wearing handcufrs in front of the jury, and a hearing was convened in chambers concerning this matter. After the hearing, the trial court pronounced the following reasons for requiring Stanley to wear handcufrs:
[S]ince this is an escape case and since part of the State’s proof would be the fact that Mr. Stanley was an inmate in the Department of Correction, certainly his prison garb would not be prejudicial. That would be an element of proof anyway. And, also, since it was an escape case, Sergeant Coleman indicated that he — being the correctional officer in charge of security of delivering Mr. Stanley back — he felt like being in restraints were appropriate. Mr. Stanley, of course, didn’t have any real problem with it. He would have preferred, as I recall he stated to the Court, that he be in leg irons as opposed to arm and hand restraints. Officer Goldman indicated that the particular restraints that they had him fitted with this morning were inconspicuous and not readily discernable to the casual observer. So, for those reasons, the Court was not persuaded that Mr. Stanley would be prejudiced in any way by that procedure.
During voir dire, Stanley’s counsel asked potential jurors whether they would treat Stanley differently than any other citizen of Jefferson County because he was an inmate and wearing a white prison uniform and handcuffs. The abstract and record do not indicate any response from the jurors to this inquiry.
The trial court has discretion to use physical restraints on a defendant for security purposes and to maintain order in the courtroom. Terry v. State, 303 Ark. 270, 796 S.W.2d 332 (1990). At the time of Stanley’s trial, Ark. R. Crim. P. 33.1 provided:
Defendants and witnesses shall not be subjected to physical restraint while in court unless the trial judge has found such restraint reasonably necessary to maintain order. If the trial judge orders such restraint, he shall enter into record of the case the reasons therefor. Whenever physical restraint of a defendant or witness occurs in the presence of jurors trying the case, the judge shall upon request of the defendant or his attorney instruct the jury that such restraint is not to be considered in assessing the proof and determining guilt.
(Effective July 10, 1995, until January 1, 1996, this rule was numbered A.R.Cr.P. Rule 33.2; after January 1, 1996, the rule shall be numbered 33.4.)
It is not prejudicial, per se, when the defendant is brought into a courtroom handcuffed. Townsend v. State, 308 Ark. 266, 824 S.W.2d 821 (1992). The United States Supreme Court has said that where it is essential to maintain dignity, order, and decorum in the courtroom, restraints may be used. Illinois v. Allen, 397 U.S. 337 (1970). This court has upheld the use of restraints where the defendant has been charged with violent offenses, engaged in disruptive behavior, or attempted escape. See Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985) (rape, aggravated robbery, and kidnapping); Terry, supra (aggravated robbery); Johnson v. State, 261 Ark. 183, 546 S.W.2d 719 (1977) (escape). Stanley clearly falls into the above categories because he was charged with escape in the second degree, and also with aggravated robbery. Moreover, the trial court complied with then A.R.Cr.P. Rule 33.1 by stating on the record its reasons requiring Stanley to wear handcuff.
In Johnson, this court stated that the fact that Johnson was an inmate charged with escaping from the penitentiary would become known to the jury during trial; since there was nothing in the record to indicate what impression this might have made on the jurors, this court determined that it could not presume prejudice. Johnson, supra.
In this instance, Stanley has not presented any proof of prejudice, and the abstract and record of the voir dire do not substantiate Stanley’s allegations that prejudice resulted from the use of handcuff. See Woods v. State, 40 Ark. App. 204, 846 S.W.2d 186 (1993).
Further, under Rule 33.1 of the Arkansas Rules of Criminal Procedure, “the judge shall upon request of the defendant or his attorney instruct the jury that such restraint is not to be considered in assessing the proof and determining guilt.” It does not appear from the abstract or the record that Stanley requested this instruction; the failure to do so will not inure to his benefit. Consequently, we cannot say that the trial court abused its discretion in requiring Stanley to wear handcuffs.
Stanley also contends that the trial court erred in denying his motion for mistrial because of certain comments made in the State’s opening statement. Stanley argues that it was improper and prejudicial for the state to suggest that he had committed other offenses outside of Jefferson County. The prosecutor’s remarks which Stanley finds objectionable are as follows:
Now, that day they ran on out of Jefferson County and they drove to some other counties and they were eventually captured in Ouachita County and returned. But we cannot today concern ourselves with the offenses that occurred in another county. We’re just going to be talking about Jefferson County.
(Emphasis added.) Stanley’s counsel moved for a mistrial; the trial court denied the motion, but offered to admonish the jury to disregard the State’s comment. Stanley declined the offer of an admonition so as not to further call the jury’s attention to the remark.
We have said that declaring a mistrial is a drastic remedy and proper only where the error is beyond repair and cannot be corrected by any curative relief. Cupples v. State, 318 Ark. 28, 883 S.W.2d 458 (1994). The trial court has wide discretion in granting or denying a motion for mistrial, and should resort to mistrial only where the error complained of is so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been manifestly affected. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995).
We have consistently upheld the trial court’s denial of mistrial where, by chance remark, it was brought out that the defendant had prior arrests, prior convictions, or committed other unspecified crimes, or where the remark is invited by the defense. Cleveland v. State, 315 Ark. 91, 865 S.W.2d 285 (1993) (venireperson remarked that her husband, a police officer, had arrested Cleveland several times); Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985) (police officer on the jury panel stated that he had arrested Novak several times in the past); McFarland v. State, 284 Ark. 533, 684 S.W.2d 233 (1985) (witness remarked that appellant was still facing criminal charges in another county); Sanders v. State, 277 Ark. 159, 639 S.W.2d 733 (1982) (police officers mentioned seeing controlled substances in the defendant’s bedroom and collecting evidence on another charge); Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982) (psychiatrist for the prosecution stated that he had access to defendant’s prison records). Hogan v. State, 281 Ark. 250, 663 S.W.2d 726 (1984) (testimony as to other offenses invited by the defense).
However, in this instance the prosecutor, not a witness, commented on other crimes during the guilt phase of Stanley’s trial. Such remarks can hardly be characterized as inadvertent when uttered by a prosecutor. Nor was the comment, coming during opening statements, invited by the defendant.
In Allard v. State, 283 Ark. 317, 675 S.W.2d 829 (1984), this court reversed the conviction where the court clerk read at the beginning of trial on a robbery charge, the original indictment which contained two counts of theft. We said that an admonishment to the jury was not sufficient to cure the error and that the defendant was not afforded a fair and impartial jury. Id.
However, in Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995), we upheld the trial court’s denial of a mistrial where the prosecutor asked a defense witness whether he had been at the same penitentiary with Heard. The question was not answered, and Heard did not request that the jury be admonished to disregard the comment. We concluded that an admonishment would have been sufficient to cure the error and that Heard could not benefit from the failure to request a curative instruction. Id.
In the instant case, despite the prosecutor’s reference to “other offenses,” there is no evidence in the abstract or record that Stanley was charged with or committed any other offenses before he was recaptured in Ouachita County. During the trial, the State presented no evidence of any of the events which transpired after Stanley drove away from the Jackson home. Although a statement given by Stanley was introduced into evidence, that portion of the statement which covered Stanley’s actions after leaving the Jackson residence was excised.
However, Stanley testified during his trial, and admitted to the escape and to most of the events that took place at the Jackson home. He also testified that he “jumped out of the car and ran” and was arrested “down in Ouachita County.” He further testified that he had not been charged with any crimes other than the escape and aggravated robbery.
In this instance, the reference by the prosecutor to “other offenses,” although improper, did not result in prejudice to Stanley. The offenses were not specified. See Novak and McFarland, supra. There was overwhelming evidence of Stanley’s guilt, from both the state’s case and Stanley’s testimony. As in Heard, supra, an admonition would have been sufficient to cure the reference to other offenses. Stanley’s failure to request such relief will not inure to his benefit on appeal.
Affirmed.
JESSON, C.J., and GLAZE, J., concur in part. | [
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DONALD L. Corbin, Justice.
Appellant, Joe McCaskill, appeals the letter order of the Sebastian County Circuit Court granting summary judgment to appellee, Fort Smith Public School District, on appellant’s complaint under The Teacher Fair Dismissal Act of 1983, Ark. Code Ann. §§ 6-17-1501 to -1510 (1987 & Supp. 1995). The interpretation and construction of The Teacher Fair Dismissal Act is at issue in this case. Jurisdiction of this appeal is therefore properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(3).
Appellant filed a complaint and request for reinstatement with appellee, relying on his 1989-90 contract for employment as secondary-education teacher and seventh-grade coach. Appellant alleged he had been employed as a teacher and coach with appellee since 1977 when he was “reassigned away” from his coaching responsibilities beginning with his 1990-91 contract. According to the complaint, the reason for his 1990 reassignment from coaching duties was intentionally concealed from him and made without notice to him. Appellant alleged in his complaint that it was not until August 23, 1993, while attending an unrelated school board meeting, that he discovered that the reason for his reassignment from coaching duties in 1990 was disciplinary in nature.
Appellee moved for summary judgment. The trial court granted the motion, ruling that appellant entered into a new contract with appellee for the 1990-91 school year and that, having received the benefits of the new contract, he was estopped from asserting his right to lack of notice from appellee. The trial court also ruled that appellant was precluded from recovering against appellee for his failure to file a prompt claim within seventy-five days after notice of the reassignment as required by section 6-17-1510.
The standard for review of a summary judgment is whether the evidentiary items presented by the moving party in support of the motion left a question of material fact unanswered and, if not, whether the moving party is entitled to judgment as a matter of law. National Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996); Baker v. Milam, 321 Ark. 234, 900 S.W.2d 209 (1995). This court views all proof in the light most favorable to the party opposing the motion, resolving all doubts and inferences against the moving party. Id. However, when the movant makes a prima facie showing of entitlement to summary judgment, the respondent must meet that proof with proof showing a genuine issue for trial. Id.
Attached to appellee’s motion for summary judgment was the 1989-90 contract for employment between appellant and appellee at a rate of approximately $30,260.00, showing appellant’s duties as teacher — secondary education and seventh-grade coach. Also attached to appellee’s motion was the contract for the 1990-91 school year at a rate of approximately $27,200.00, showing appellant’s duties as teacher — secondary education. Finally, attached to the motion was a determination from the EEOC concluding there was no evidence that appellant’s February 1990 application for head coach of the ninth-grade football team was denied because of his race.
In his response to appellee’s motion for summary judgment, appellant argued there was a genuine issue of material fact involving the intentional concealment of information which would have led appellant to avail himself of the grievance procedure under The Teacher Fair Dismissal Act. Attached to appellant’s response were two exhibits: the deposition of Dr. Benny Gooden, superintendent of appellee school district, and appellant’s affidavit. In his affidavit, appellant stated that he was not aware that the reason for his reassignment was disciplinary in nature until it was revealed during the August 23, 1993 school board meeting. In his deposition, Dr. Gooden stated that appellant was reassigned from his seventh-grade coaching responsibilities because the then director of athletics was attempting to improve and balance the junior high athletic program. Dr. Gooden explained that, at that point, the athletic director made several reassignments involving several other people. Dr. Gooden stated that he had previously observed appellant in a coaching capacity and witnessed some behavior he considered to be inappropriate. However, Dr. Gooden stated that there was no reason for appellant’s reassignment other than the overall changes to the junior high program and that he was not aware whether appellant was given any reason other than the foregoing for his reassignment. Dr. Gooden admitted signing a letter in which he stated that appellant was reassigned from his coaching responsibilities because the overall junior high program would be better served. Dr. Gooden also stated that appellant filed a grievance about his reassignment in September 1993 and was afforded every step in the policy even though he was technically outside the parameters of the policy. Finally, Dr. Gooden stated that he was aware that if the district was terminating a teacher, the statute requires that the teacher be counseled or confronted with the reason for termination.
Appellee replied to appellant’s response to the motion for summary judgment and attached the deposition of school board member Michael D. Helm. Mr. Helm was a member of the school board in 1989-90 when appellant’s reassignment was made. In his deposition, Mr. Helm discussed the August 23, 1993 school board meeting at which an unrelated discussion between Mr. Helm and appellant turned to appellant’s prior coaching behavior. Mr. Helm specifically recalled witnessing appellant drag a ninety-pound child across the football field by his face-mask. Mr. Helm explained that he brought up the incident during the meeting, although he had never previously mentioned it to appellant, as a reaction to some very pointed accusations about the school board’s integrity. Mr. Helm admitted he overreacted.
For reversal, appellant first contends there is a genuine issue of material fact involving intentional concealment of information which would have led him to avail himself of the grievance procedure. We disagree and conclude no fraudulent concealment occurred. As the moving party, appellee has demonstrated there were no disputed factual issues as to appellant’s 1990-91 contract. While Dr. Gooden indicated he discussed appellant’s behavior with the athletic director, he stated the discussion occurred within the context of the proposal to restructure the overall coaching program. Moreover, Dr. Gooden stated unequivocally that the sole reason for appellant’s reassignment was the overall change to the junior high program. On this record, appellee has therefore met its burden of showing entitlement to judgment as a matter of law. Appellant has not met his burden of rebutting appellee’s proof with proof of a disputed issue of material fact. Appellant has offered no proof whatsoever that the reason for his reassignment was anything other than the restructuring of the overall program. Even Mr. Helm’s deposition confirms this, wherein he admitted having personal knowledge of appellant’s behavior, but denied having knowledge that the behavior had any connection to the reassignment. In short, appellant has not proved anything was fraudulendy concealed from him. His first argument for reversal is without merit.
For his second point for reversal, appellant contends he is entitled to a trial because appellee did not stricdy comply with The Teacher Fair Dismissal Act. Appellant argues that appellee did not provide the requisite notice of the 1990 nonrenewal and carried out the reassignment as a nonrenewal thus avoiding the hearing requirements of the Act. Appellant relies heavily on Western Grove Sch. Dist. v. Terry, 318 Ark. 316, 885 S.W.2d 300 (1994), wherein this court held that a school district’s actions in reducing a teacher-coach’s compensation and coaching duties amounted to a nonre-newal triggering the Act’s prior notice requirement. In Terry, this court stated that, “what took place was not a reassignment of duties but a nonrenewal of Terry’s contract.” Id. at 321, 885 S.W.2d at 302. This court went on to frame the issue as whether the notice requirements of the Act, specifically section 6-17-1506, had been satisfied. Noting that strict compliance is the standard, this court concluded no prior notice of the nonrenewal had been given to Terry and held the school board’s actions consequently void.
In the present case, appellee distinguishes Terry by pointing out that, unlike Terry, appellant signed a superseding contract after the reassignment or nonrenewal in 1990. This is an accurate distinction. When presented with the reassignment or nonrenewal, Terry refused to sign the contract. See Terry, 318 Ark. 316, 885 S.W.2d 300. However, in the present case, appellant elected to sign the 1990-91 contract which reassigned his coaching duties. Citing section 6-17-1506(a), appellee contends the 1990-91 contract signed by appellant is a superseding contract that relieves appellee of complying with The Teacher Fair Dismissal Act. We agree.
Section 6-17-1506(a) provides as follows:
6-17-1506. Automatic contract renewal — Notice of nonrenewal.
(a) Every contract of employment made between a teacher and the board of directors of a school district shall be renewed in writing on the same terms and for the same salary, unless increased or decreased by law, for the next school year succeeding the date of termination fixed therein, which renewal may be made by an endorsement on the existing contract instrument, unless by May 1 of the contract year, the teacher is notified by the school superintendent that the superintendent is recommending that the teacher’s contract not be renewed or, unless during the period of the contract or within ten (10) days after the end of the school year, the teacher shall deliver or mail by registered mail to the board of directors his or her resignation as a teacher, or unless such contract is superseded by another contract between the parties. [Emphasis added.]
This is the first time this court has been called upon to interpret the superseding contract portion of The Teacher Fair Dismissal Act. The plain language of the Act clearly indicates a legislative intent that the parties be allowed a mechanism to renegotiate an existing contract or to negotiate a new contract. There is no question that, according to Terry, the 1990-91 contract between appellant and appellee would have constituted a nonrenewal of the 1989-90 contract due to the reduction in coaching duties and compensation. However, pursuant to the very terms of section 6-17-1506(a), by appellant’s signing the 1990-91 contract, the 1989-90 contract was superseded and the notice requirements of The Teacher Fair Dismissal Act no longer applied.
Appellant argues in his brief that he did not receive any benefit from signing the new contract, and therefore the doctrine of equitable estoppel cannot be applied to him. That allegation is entirely without merit, primarily because we are not concerned with equitable estoppel; rather, we are concerned with the application of The Teacher Fair Dismissal Act. Appellant simply cannot sign a superseding contract and then claim the protection of the notice and renewal requirements of the Act. Moreover, he cannot sign a superseding contract and then wait well past the Act’s limitation period for contesting the nonrenewal. Mis second argument for reversal is without merit.
The order granting summary judgment to appellee is affirmed.
ROAF, J., concurs.
Glaze, J., dissents.
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Harrison, J.:
This was an aption of ejectment by Robert J. Rogers against Henderson Blevins. Rogers recovered judgment, and Blevins appealed.
Blevins purchased the land in controversy, a quarter section, .from James Á. Neavill, and gave his note for the purchase money and took a bond for title. A balance on the note ($363.10) remaining unpaid. J. N. Cypert, upon the request of Blevins, on the 28th day of December, 1869, paid the same to Neavill, who thereupon made Blevins a deed for the land. At the same time and as part of the same transaction, Blevins gave Cypert his note for the money so paid by him, payable one day after date with 10 per cent, compound interest until paid, and executed a deed of trust, with a power of sale, on the land, to John G. Holland, to secure its payment. Blevins, when the deed of trust was given, was a resident of the State, and a married man and the land was his homestead. The note to Cypert, not being paid, Holland, the trustee, on the 31st day of July, 1876, in pursuance of the power in the deed sold the land at public auction, for cash to the plaintiff, at the price of $558.70, and executed a deed for the same to him.
The appellant contends that the deed of trust was not á security for the purchase money of the land, that the purchase money Avas paid Avith the money advanced for that purpose by Cypert, Avhen the note given for it Avas taken un; and that it AAras only a security for money loaned, and as such vóid under the provision of sec. 2 of art. xii of the Constitution of 1868.
It cannot be questioned that if Cypert, when he advanced the money for BleAÚns, had, instead of having Neavill to make the title, and Blevins to gi\’e him the note and execute the deed of trust, taken an assignment of BleAÚns’ note for the purchase money, Neavill’s lien Avould have passed with it to him: and he got nothing moie by the deed of trust. No new lien or incumbrance was created: there was merely a transfer of the old, and a change in the form of the security.
,, At no instant of time before the execution of the deed of trust did Blevins, hold the land free from the lien. “A transitory seizin for an instant” says Chancellor Kent, “when the same act that gives the estate to the husband conveys it out of him, as in the case of a conusee of a fine, is not sufficient to give the wife dower. The land must rest in the husband beneficially for his own use, and then if it be so vested, but for a moment, provided the husband be not the mere conduit for passing it, the right of dower attaches. Nor is the husband's seizin sufficient when the husband takes a conveyance in fee, and at the same time mort gage the land back to the grantor, or to a third person to secure the purchase money in whole or in part.” 4 Kent Com., 37; Mayburry v. Brien, 15 Pet., 35; Holbrook v. Finney, 4 Mass., 565; Clark v. Munroe, 14 Ib., 350.
In the case Lassen v. Vance, 8 Cal., 271, the defendant purchased the lot on which he and his wife had been for some time residing, and on the day of the purchase borrowed from the plaintiff the money with which he paid for it, and executed to him a note, and a mortgage upon the lot, and at the same time taking a conveyance to himself, the Supreme Court of California held, that the defendant had no homestead right against the mortgage and say: “The money of the plaintiff paid for the lot, and it certainly would be an exceedingly hard rule of law that would defeat his mortgage upon the very lot purchased with the money furnished by himself.” In Illinois, when a party owning and residing upon a homestead, purchased and obtained a conveyance of land adjoining thereto, to be used as a part of the homestead, and procured the purchase money of-the land so added'to the homestead, to be paid by a third person as a loan to the purchaser, the Supreme Court of that State held, that the money so paid by the lender was purchase money, and the owner of the land so acquired had no homestead right against the person lending the money. Austin v. Underwood, 37 Ill., 438; and also see Stevens v. Stevens, 10 Allen, 146.
It is clear to our mind, that Blevins’ debt for the balance of the purchase money was not extinguished, but was transferred in equity, together with its lien, as was the obvious intention of the parties, to Cypert, who paid the money for him.
Judgment affirmed. | [
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Harrison, J.:
This was an action by Plenry R. Fielding against James T. Key, on a promissory note, made by the latter to William C. Petty, for $700, payable January 1st, 1873, drawing ten per cent, interest from maturity, and which was assigned to the plaintiff before maturity; and the complaint averred that, after the note fell due, the defendant agreed with the plaintiff to pay him, in consideration of forbearance to sue on the note for three months from its maturity, interest thereon at the rate of three per cent, per month until paid, which agreement was endorsed on the note, and signed by the defendant, and that the plaintiff did forbear to sue for that time; and demanded with the principal, interest according to the tenor of said agreement.
The defendant in his answer alleged, that the note was assigned to the plaintiff, as collateral security for the debt that Petty owed him, and that since the arrangement, Petty had died, and his administrator had paid the plaintiff the debt, and taken back the note; and that the defendant had thereafter paid the same to the said administrator.
The case was tried by the court sitting as a jury, upon the following agreed statement of facts; Petty, before the note fell due, assigned it to the plaintiff as a collateral security for a debt of $850. After it became due, the defendent agreed with the plaintiff to pay interest on it, at the rate of three per cent, per month, from maturity until paid, in consideration, that he would forbear to sue for three months from the time of its maturity; which agreement was endorsed on the note, and was signed by the defendant; and that the plaintiff did forbear to sue for the time agreed on. That after the suit was commenced, (on the 10th day of January, 1874), the administrator of Petty, paid the plaintiff the debt for which the note had been assigned to him, as a collateral security, and it was delivered back to him, and the defendant then paid the administrator the note and took it up; and he afterwards tendered the plaintiff the costs in the suit, which the plaintiff refused to receive.
The court made the following declaration, which was excepted to by the defendant:
“ The agreement between the plaintiff and the defendant, was upon a valid consideration; and it is an independent contract, in no manner affected by the terms of the note, or the relation of the plaintiff to Petty — the payer thereof, or his administrator, and the plaintiff is entitled to recover interest on the principal of the note, -at the rate specified in the said agreement, from the maturity of the note up to the time of the payment of the debt to the plaintiff by Petty’s administrator, and at six per cent, thereafter; ” and thereupon found for the plaintiff $282.24.
The defendant moved for a new trial, on the grounds, that the declaration of the court was contrary to law, and its finding against the evidence. The motion was overruled, and he appealed.
The note being assigned to the plaintiff merely as a collateral security, he bad no power to deal with it, except in the accomplishment of the purpose for which he held it. The relation between the assignor and himself being analogous to that of principal and agent, and as the assignor might at any time pay the debt for which it was held as security, the plaintiff could not bind him by a contract with the defendant for forbearance. Inasmuch, therefore, as the plaintiff’s ability to perform on his part, the agreement with the defendant, depended upon the will of the assignor, who was in no wise bound, whether he would sooner pay the debt or not, and he had no authority from him to make such agreement, the promise of the defendant to pay the increased interest, was without consideration, and not obligatory upon him.
Again, a trustee, and such was the plaintiff, can make no profit to himself, by dealing with the trust property, and the cestui que trust, is entitled to whatever benefit or advantage, he makes by speculating with it in his own name. Perry on Trusts, secs. 128, 196, 428-432; Hill on Trustees, 534.
The interest stipulated for, in the agreement between the' plaintiff and the defendant, if the same had been collected before the plaintiff’s debt on Petty was paid, must have been applied towards the satisfaction of that debt, and if the proceeds of the-note including such interest were more than sufficient to pay the debt, the surplus would have belonged to Petty, or his estate, and not to the plaintiff. The fact that the debt was not paid with the note, could not, certainly, make any possible difference.
The court erred in its declaration of law, and its finding was clearly unsupported by the evidence, and the defendant’s motion for a new trial ought to have been sustained.
The judgment is reversed, and the cause remanded, with instructions to grant the defendant a new trial, and to proceed according to law. | [
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English, Ch. J.:
This was an.action for malicious prosecution commenced in the Circuit Court of Lincoln County, by William Hudgens against William D. Lavender and Zenas L. Wise.
The complaint alleges, in substance, that defendants falsely and maliciously and without any reasonable or probable cause whatever, charged the plaintiff before a justice of the peace with having feloniously passed a five dollar counterfeit bill in imitation of the currency of the United States, and caused the justice to issue a warrant for his arrest, and cause him to be arrested and taken before the justice and committed to answer the charge, and, with like malice and want of probable cause, prosecuted him before the grand jury, by whom an indictment for the charge was ignored.
The defendants filed a joint and several answer: First — Denying that they or either of them, falsely, maliciously and without probable cause, caused the plaintiff to be arrested, as alleged in the complaint; and, Second — Alleging probable cause, stating the facts and circumstances under which plaintiff was arrested.
The cause was submitted to a jury, and they returned the following verdict:
“We, the jury, find for plaintiff, and assess his damages at twenty-five hundred dollars, to be recovered from W. D. Lavender, and clearly exonerate and acquit Z. L. Wise, as he was performing his duty as an officer.”
Judgment was therefore rendered for the plaintiff against. Lavender for the amount of the damages assessed by the jury,, and for costs.
The plaintiff moved for no new trial as to defendant Wise.
The defendant Lavender moved for a new trial, which the-court granted, and upon his application for change of venue,, ordered ihe venue changed to the Circuit Court of Jefferson County.
In the Jefferson Circuit Court (November Term, 1876) the court required both the defendants to be put upon trial, and the-jury returned the following verdict:
“We, the jury, find for the plaintiff and assess his damages at three thousand dollars, to be recovered from W. D. Lavender.”
Lavender moved for a new trial, which the court refused, final judgment was entered against him on the verdict, and he took a bill of exceptions and appealed :
First — It appears from the bill of exceptions that during the formation of the jury, and after both parties had exhausted their peremptory challenges, “the court asked a juror, Sunenshine, if he had formed or expressed an opinion in this cause? The juror answered that he had heard Mr. Lavender speak of the case the day before on the cars, but did not know that he had formed an opinion. The attorney for Lavender asked said juror if he could give the parties to this suit a fair and impartial trial as though he had never heard of the case ? The juror answered: (I am a good friend of Mr. Lavender, but I think I can give the the parties a fair and impartial trial according to the testimony, but I say I am a good friend of Mr. Lavender.’ And therefore the court excused said juror for cause.”
Lavender excepted to this ruling of the court, and made it the seventh ground of the motion for a new trial.
The statute provides that no person who has formed and expressed an opinion concerning the matter in controversy in .any civil suit, which may influence the judgment of such person, shall be sworn in the cause as a juror. Gantt’s Dig., sec. 3656.
The fact that the juror was a friend of appellant did not disqualify him to serve as a juror. Jurors, like the court, are expected to forget their personal friendship for the parties on the trial of a cause, and upon their solemn oaths, render an impartial verdict according to the evidence. If the court excluded the juror merely because he was a friend to appellant, it was an error. But in addition to the fact that the juror had heard appellant speak of the case in the cars, on the day before, his frank avowal of his friendship for appellant, and the manner of this avowal, may have made the impression upon the court that he was biased, and would not be an impartial juror. The judge who presides at a trial, and who observes the appearance and manner of jurors, when upon voir dire, must necessarily exercise a judicial discretion in passing upon their qualifications. Benton v. State, 30 Ark., 343.
Second — The bill of exceptions further shows that appellant “asked the court to direct the jury and the parties that a judgment having been rendered for Z. L. Wise on a former trial of this cause, and that not having been disturbed, the said Z. L. Wise was not on trial in this cause, which the court refused to do, but on the contrary, instructed the jury that according to the pleadings and proceedings in this cause, the said Z. L. Wise was-to be tried with W. D. Lavender,” to which ruling of the court Lavender excepted, and made it the ninth ground of the motion for a new trial.
In the instructions given by the court to the jury, on the motion of plaintiff, the court treated both defendants as upon trial, and the third instruction (appellant objecting to each) is as follows: “In this case, if the evidence justifies it, the jury can find one of the defendants not guilty, and guilty as to the other, añd assess the damages against the one found guilty.”
It was not necessary for the defendant Wise to plead his acquittal on the former trial. The whole record was before the court, which was bound to take notice that he had been acquitted, and that the plaintiff had neither moved for nor obtained the grant of a new trial, and the court should not have required him to be put upon the second trial, but should have informed the jury that he was not on trial. Atkins v. State, 16 Ark., 574; Johnson v. State, 29 Ib., 34.
No verdict was rendered against "Wise on the second trial, and he is not complaining on this appeal, but may not appellant have been prejudiced by his being put upon trial?
He was examined as a witness by both parties, first by the plaintiff, then for the defense. If he had been legally on trial as a defendant, the plaintiff could not have compelled him to be a witness, against his consent. 1 Greenleaf Ev., sec. 353, etc.
On his examination by the plaintiff he testified, in substance, that on the 21st March, 1S72, he was clerking for Lavender, and William Kitch was his bookkeeper and cashier. Witness was also at the time County Attorney for Lincoln County. Plaintiff, on the day named, whom witness had never seen before, came to the store of Lavender. During the day Lavender spoke of the plaintiff, and said plaintiff had approached him to buy counterfeit money. Kitch had just changed a five dollar bill for plaintiff, and, hearing this, he went to the safe, got the five dollar bill out, examined it, pronounced it a counterfeit, showed it to witness and General Garrett, and they pronounced it a counterfeit, and Lavender said to witnesss, you being a County Attorney, ought to look after such cases, and, witness having fully satisfied himself that it was a counterfeit five dollar bill, he made an affidavit, and had plaintiff arrested, and the justice bound him over.
Here the affidavit made by witness was produced, and read to the jury.
Witness further stated that upon his affidavit, a warrant was issued by the justice of the peace (which was produced and read in evidence to the jury) upon which plaintiff was regularly, and according to the forms of law, arrested. The plaintiff was regularly tried by the justice of the peace, and bound over in the sum of $1000. The five dollar bill was sent to several banks at Little Rock, Pine Bluff and Memphis, and pronounced genuine. When the case came up before the grand jury, for examination, the five dollar note having been shown to be genuine, the grand jury ignored the bill.
On cross examination, for defense, witness stated that there was no bank near Auburn, where Lavender’s store was situated. That Kitch was quite an experienced business man, and witness regarded him as a good judge of money. From the statement of Kitch to witness, his own opinion of the bill, and the opinion of General Garrett, he would have had plaintiff arrested without any suggestion from Lavender. ■ Witness did not think that Lavender influenced him in the matter. He, witness, had plaintiff arrested because he was a stranger, and had, as he believed, passed a counterfeit bill, and he believed it to be his duty to arrest him. He was at the time boarding at Lavender’s house; had been in Lincoln County more than a year.
After the plaintiff had testified in his own behalf, and Lavender and Garrett had been examined for the defense, Wise was recalled on behalf of the defense, and testified in substance: That he was influenced in making the affidavit by the statement of Kitch particularly, and by his own judgment in the matter. Lavender did not urge the arrest. He did not say anything particularly about it. Witness was about the store all the evening except about half an hour. Did not remember of Lavender saying anything harsh to plaintiff. Witness was present during the whole trial before the magistrate. Lavender did not say anything to the magistrate, except to give in his testimony, that witness heard.
The testimony of Wise conduced to prove probable cause for the institution of the prosecution, which is such a suspicion as would induce a reasonable man to commence a prosecution, and it also tended to contradict some of the statements made by plaintiff on his examination.
The Constitution removed the incompetency of parties to a civil suit to be witnesses, but it did not affect the question of their credibility. This is a question for the jury.
The court below placed Wise on trial as a defendant, and thereby put him in the attitude of an interested witness. The jury were instructed to treat him as a defendant, and it must be presumed that they so regarded him. If he had not been placed in this attitude the jury might have attached more weight to his evidence than they seem by their verdict to have done. It cannot be affirmed that appellant was not prejudiced by'the ruling of the court in putting Wise upon trial.
Third — The appellee (plaintiff below) asked nine instructions to the jury, all of which the court gave except the seventh and eighth.
The first merely stated the character of the action, and is not objectionable, except that it indicated that there was more than one defendant on trial.
The second relates to the measure of damages in the action, and is as follows:
“If the jury should find for the plaintiff, they can fix any amount in damages which they deem proper from the evidence under $10,000 (the amount laid in the complaint). The plaintiff in this action is not required to prove any vindictive damages, but only the actual cost and expenses he was put to in defending the prosecution.”
When it is proven that the plaintiff has been prosecuted by the defendant maliciously and without probable cause (and malice may be inferred where want of probable cause is shown) the plaintiff is entitled to indemnity for the peril occasioned him in regard to his life and liberty, for the injury to his reputation, his feelings and his person, and for all the expenses to which he necessarily has been subjected. 2 Greenleaf Ev., sec. 456.
The second instruction is not, in its substance, objectionable, when considered in connection with instructions given for appellant.
The third we have above copied and remarked upon.
The fourth follows: “If the jury should find from the evidence that defendants, or either of them, was actuated by malice in prosecuting the arrest of plaintiff, the fact that he was arrested upon a warrant issued regularly is no justification to the defendants.”
If, says Mr. Starkie, a party prosecute another on a criminal charge, it is a rule of law, which seems to be founded upon principles of policy and convenience, that the prosecutor shall be protected in so doing, however malicious his private motives may have been, provided he had probable cause for preferring the charge. 2 Starkie on Evidence, 680.
If it was proven that the prosecution was actuated by malice and without probable cause, the fact that the plaintiff was arrested upon a warrant, issued regularly, was no justification; and, with this qualification, the fonrth instruction would have been correct.
In connection with this instruction, may be considered the" first moved for the defense, which the court refused, giving all of the others asked. It follows: “If the proceedings under which Hudgens was arrested, and of which he complains in this action, were regular, that is, issued by a competent officer upon a proper affidavit, and the writ upon such affidavit was regular and formal the plaintiff cannot recover in this action, and the jury will find for the defendant.”
The court properly refused this instruction. The writ being regular upon its face, and the justice of the peace having jurisdiction to issue it, was a justification to the officer making the arrest. But if appellant instigated the prosecution, with malice and without probable cause, he could not justify under the writ.
The fifth instruction given for plaintiff is that; “Every man is supposed to be of good fair character until the contrary is proven.”
As men do not generally violate the penal code (says Mr. Greenleaf) the law presumes every man innocent, but some men do transgress it, and therefore evidence is received to repel this presumption. The legal presumption of innocence is to be regarded by the jury, in every case, as matter of evidence, to the benefit of which the party is entitled. 1 Greenleaf Ev., sec. 34.
It was admitted on the trial that the plaintiff was of good character among his neighbors, but unfortunately he went down to Auburn, twenty miles from his home, where he was unknown, and the evidence conduces to prove, privately applied to Lavender, a stranger to him, to procure counterfeit money, failing to make his motive, if innocent, understood, which led Lavender and his clerks to suspect him of being dishonest, and under this suspicion the five dollar bill, which he had procured one of the clerks to change, was examined and pronounced counterfeit, and hence his arrest as stated by Wise, who was at the time County Attorney. It turned out that the bill was genuine, and the arrest was unfortunate for both parties. Had the plaintiff been as well known at Auburn as he was among his neighbors, it is probable the arrest would not have occurred.
The sixth instruction is: “If the jury believe from the evidence that under all the facts and circumstances as proven by the evidence, the defendants had no reasonable or probable cause to believe that the plaintiff had committed a felony, and still they procured his arrest, they are guilty.”
The want of probable cause is a material averment, and though negative in its form and character, it must be proved by the plaintiff, when put in issue, by some affirmative evidence. Probable cause for a criminal prosecution is understood to be such conduct on the part of the accused - as may induce the court to infer that the prosecution was undertaken from public motives. *. * The question of probable cause is composed of law and fact, it being the province of the jury to' determine whether the circumstances alleged are true or not, and of .the court to determine whether they amount to probable cause. Regularly, the facts material to this question are first to be found by the jury, and the judge is then to decide, as a point of law, whether the facts, as found, establish probable cause- or not. But if the matter of fact and matter of law, of which the probable cause consists, are intimately blended together, the judge will be warranted in leaving the question to the jury. Greenleaf Ev., sec. 454; 2 Starkie Ev., p. 567, etc., and notes.
The sixth instruction given for plaintiff, taken in connection with several of those given for the defense, in which the court, in effect, indicated the meaning of probable cause, is not objectionable.
■ The ninth follows: “If the jury find from the evidence that the plaintiff was arrested at the instance of the defendants upon the charge of passing a counterfeit five dollar bill, that prior to such arrest being made, no examination of said bill had been made by a judge of money, and that the plaintiff was imprisoned without any examination by such judge of money, these are circumstances the jury may consider in making up their verdict.”
What the jury understood from the language “judge of money,” as employed in this instruction, we do not know.
The testimony conduced to prove that a large amount of money was handled in Lavender’s store in the purchase of cotton, etc., and that Kitch, the cashier, Wise and General Garrett, who was at the store at the time, examined the bill, and believed it to be counterfeit. Kitch, whose deposition was read on the trial, states that he examined the bill, after being informed that the plaintiff had approached Lavender to obtain counterfeit or bogus money, and he was of the opinion that it was a counterfeit. That the judgment of the witness may have been influenced by the suspicion which the plaintiff labored under at the-time is probable. It was not necessary, however, to send the bill to a distant bank to be examined, before plaintiff could be arrested at a country store.
If Wise and appellant believed under the circumstances that the bill was counterfeit, and that plaintiff had knowingly passed it, and they acted upon that belief, in the discharge of what they deemed a duty to the public, there was probable cause for the-arrest, though the bill was afterwards ascertained to be genuine, and so, in effect, the court said to the jury in some of the instructions for the defense.
Fourth — The only remaining ground assigned in the motion, for the new trial, which we deem it material to notice, is that the-damages assessed by the jury were excessive.
The plaintiff was the only witness who placed any estimate on the damages which he had sustained by the prosecution.
The plaintiff, according to his testimony, was about fifty years of age, a poor man and unlettered. A Dutch peddler had told him that there were New York houses which sent out counterfeit money, and that Lavender was a good judge of money. He went down to Lavender’s store to purchase some seed potatoes,, and Lavender being pointed out to him, he took him aside and said something to him about counterfeit money, at which Lavender flew into a passion and abused him, etc.
He was under arrest about forty-eight hours, and had to travel' about thirty miles to get bail. Pie went to the court house three or four times between then and court to look around and see how his case was coming on. When court met, he went over and staid at court a week or so, and the case was thrown out by the grand jury, and lie went home. He thought he lost about a month about the case; thought his “expenses, horse hire and time and damages would amount to full $2500 for injury to feelings,” etc.
Lavender’s account of their first interview is as follows:
“The first time I ever saw or heard of plaintiff was about the 20th of March, 1872, when he came to my store at Auburn. He called for me, and said he wanted to see me privately. I went with him into the front room, no other person being in there. He then asked me if I was not an agent for a New York house ? I told him I was, for Cochrane, McLean & Co. He said he did not mean that ,• that he understood I was an' agent for some New York house to put out a lot of money. I said, oh yes! I have disbursed a good deal of money for cotton for my house, some $60,000. He said, I understood you was an agent for some New York house to sell counterfeit money, and I wanted to get some. I asked him sharply, who told you that? It vexed me to be so approached. He said a Dutch peddler had told him that I was the agent for that kind of a New York house. I said if you do not bring him to me in three days, I shall hold you personally responsible for thus approaching me. I told Mr. Wise, the County Attorney, and my clerks what plaintiff said to me, and told them they had better notice him; that from his approaching me about bogus money, he was probably a bad character,” etc.
The jury were liberal to the plaintiff in fixing his damages. They allowed him $500 more than he estimated his damages at in his testimony.
They no doubt looked at the fact that he was a man of good character among his neighbors, and had been prosecuted for passing counterfeit money, when he was in fact innocent. They perhaps did not attach sufficient consequence to the facts shown on the other side, that he was a stranger at Auburn, where his good character was not known. That he had placed himself under suspicion by an unfortunate approach to Lavender on the subject of counterfeit money. That if his motive in the approach was not' criminal, he had not so impressed Lavender, and that the witnesses present believed the bill which he had passed to the house to be counterfeit, and hence he was arrested.
We have above stated the general rule of law as to damages in suits for malicious prosecution; and this court would not be inclined to disturb a verdict on the ground of excessive damages, unless the record disclosed some evidence that it was the result of passion, prejudice, or corruption on the part of the jury. Sexton v. Brock, 15 Ark., 356.
But upon the whole record, we are of the opinion that the judgment should be reversed and the cause remanded for a new trial. | [
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PlNDALL, SP. J.:
The Merchants National Bank at Little Rock, commenced its suit 27th May, 1873, against appellants and six others, to enforce the collection of a note executed July 1st, 1872, by O. S. Dillon •to Thos. M. Bowen, and endorsed by Bowen and nine others, including the appellants.
Summons dated on said 27th May, 1873, returnable to the first day of the June Term, 1873, of the Pulaski Circuit Court, was served on ten of the eleven parties. One of the defendants, ~W. J. Hynes, is not mentioned in the return. The return is not •dated, nor is there any filing noted on the writ.
. On February 10th, 1874, the plaintiff suggested the disqualification of Hon. John Whytock, to try the cause, he being one of the parties defendant, a special judge was elected, qualified and took the bench, and the cause was by consent of parties, set for hearing on the 13th of March.
The order recites, “thereupon comes the plaintiff by attorneys, Messes. Benjamin & Barnes, and come the said defendants by Messrs. Gallagher & Newton, their attorneys.”
Nothing seems to have been done on the 13th, but on the 19th March, 1874, it is recited “come the parties by attorneys and by •consent the cause is set for hearing 27th March, 1874.
March 25th, 1874, John Whytock, T. D. W. Yonley and John D. Adams, by their attorneys filed answers.
An entry on' March 27th, 1874, is; “come said plaintiff by Messrs. Benjamin & Barnes, her attorneys, and come the defendants, by Messrs. Gallagher & Newton, their attorneys, and by consent the cause is set for hearing on Wednesday the 1st day of April, 1874,”
An entry of March 30th, 1874, is “comes the plaintiff by Messrs. Benjamin & Barnes, her attorneys and Orin S. Dillon, Thos. M. Bowen, Patrick Eaieigh, Wm. J. Hynes, Nicholas Kupferle, Henry T. Gibb, Thomas Lafferty and Francis M. Crisman, eight of the defendants herein come not, and wholly make default,” judgment by default is taken : The cause was continued until the next term, as to Whytock, Adams and Yonley.
April 2nd, 1874, Patrick Eaieigh, moved to set aside the default, on account of surprise, and for leave to answer.
The grounds of his motion were:
First — That he supposed his name was included in the number of those for whom a defense had been put in.
Second — That the cause was set for trial 27th March, that the business of the court was behind, and that the docket for 27th March had not yet been reached, April 1st, and the default was taken several days before the cause was reached on the regular call.
Third — That the default was taken before the action stood for trial.
Fourth — That he had a valid defense to the action in this, that he was an endorser without consideration, on the note sued upon, and that notice of protest and dishonor had not been given him as required by law.
This motion was sworn to, on 1st April, 1874.
April 9th, 1874, Gibbs and Crisman filed their separate motions to set aside default and for leave to answer, upon same grounds of surprise, accompanied by separate answers, showing same defense. Crisman, as an additional ground shows, that at the time of the service of the summons on him, he was lying ill Avith the small-pox; as soon as he recovered, he made enquiry about the suit and he Avas informed by his co-defendants, that the suit was being defended.
April 11th, 1874, The defendants, Thomas Lafferty and Nicholas Kupferle, filed separate motions and ansAvers, making similar excuses, and shoAving same defenses.
On June 18th, 1875, these motions wore argued and submitted to the court.
June 29th, 1875, the motions Avere overruled and the defendants, Kupferle, Lafferty, Gibb, Raleigh and Crisman, excepted, and have aj>pealed to this court.
The answers tendered Avith the motions show a good defense to the action if true, and they were regularly sworn to.
Is there any excuse shoAvn for the omission to file them in time? The movers all SAvear they believed their defenses Avere being made by the attorneys representing their co-defendants, this if true seems to be a reasonable excuse, and the record entries show, that in the preliminary stages of the case, the attorneys did appear, for “the defendants” generally, no separate appearance is shown until the answers of Whytock, Yonley and Adams were filed, March 25th, 1874; previous to this time the entries must be construed to include the defendants who had been summoned. Neal v. Singleton, 26 Ark., 494.
We think those motions show sufficient reason why said default should have been set aside, and if they had been called up at that term they would have been sustained.
The court had the power to set aside the judgment at a subsequent term, for the cause stated in said motions — misprision of the clerk in entering judgment before the action stood for trial, Dig. 3596 ; and this power could have been invoked by motion filed in the first three days of the succeeding term. Dig., 3597.
These motions were filed at the same term at which the default was taken, and remained undisposed of until the determination of the cause. The only effect of this was to dispense with the reasonable notice required by the statute.
Was the delay in calling up the motions such as that the appellants should be denied the right to defend the suit.
The motions were filed before a special judge, not on the bench, or present in court at all times, but only when required for the purposes of the suit. It is the experience of most lawyers, that this inconvenience alone frequently begets delay without fault on the part of either party.
A few days after the motions were filed the political disturbances occurred at the Capitol which deranged the business of the court and practically suspended its functions, and the motions were necessarily continued until the first term after the re-organization of the court. This delay was not caused by the defendants, and does not evidence a want of diligence on their part; ■ their motions were filed in apt time, and we think there was no delay attributable to these appellants which should deprive them of their right to plead their defenses to this suit.
We think it probable that the Circuit Court overruled the motions upon the ground that it had no power over its judgments after the adjournment of the court, which was the well settled rule previous to the Code Practice, but which has been changed by that practice, in cases mentioned in secs. 3596-7-8, and that one of the grounds of the motion bring them within those sections.
Whatever may have been the effect of the former orders setting the case for trial, they were all rescinded by the order of the 27th March, and at the time^the defaults were taken, the action stood for trial on the first day of April, and the judgments were taken before that day, and in this the Code differs from Du Valcourt v. Bergman, heretofore decided by this court: in which it was held, that the grounds for a new trial then presented did not fall within the Code provisions.
The cause will be reversed with instructions to set aside the judgment by default, as to these five appellants, permit them to file their answers, and proceed with the cause in accordance with law.
Hon. E. H. English, Ch. J., did not sit in this case. | [
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English, Ch. J.:
This was an action of ejectment for possession of lands, brought by Richardson & May against John G. B. Simms and Charles E. Sessions in the Circuit Court of Chicot County.
The plaintiffs set out an exhibit with the complaint, as evidence of their right to recover possession of the lands, a mortgage executed to them upon the lands, by Walter Sessions, 12th January, 1872, to secure the payment of a note therein described, and allege the condition of the mortgage broken, etc., and defendants in possession of the lands, etc.
The defendants were duly served with process, and on the 12th of July, 1876, being the third day of the return term, defendant Sessions filed a motion in substance-as follows:
“Defendant Charles E. Sessions states that said Walter Sessions, under whom plaintiffs claim title, departed this life in 1872, and that one Alexander DeValcourt shortly afterwards t-ook out letters of administration on the estate of said intestate, and is still acting as such administrator; and that this defendant is in possession of a part of said lands under authority derived through said administrator, and is advised that said DeValcourt, as such administrator, is a proper party to this suit as defendant. Whereupon this defendant moves the court that said DeValcourt, as such administrator, be made a party defendant in this suit, and that he be notified of the pendency thereof, that he may take the necessary and proper steps to defend the same.”
This motion appears to have been overruled on the 17th of July.
On the 20th of July, Sessions seems to have renewed the motion, stating that on the argument of the former motion it was brought to the notice of the court that DeValcourt, as such administratorj had sold said lands for part cash, and part on time, and that the deferred payments, amounting to about $10,000; were secured by liens on said lands, and if plaintiffs succeeded in recovering the lands of defendants, and DeValcourt, as such administrator, was not made a party, and permitted to defend for the interest of the said estate, the heirs and creditors of said estate might lose said purchase money remaining unpaid, or be put to expense and delay in securing their rights; and defendants put to expense in protecting their rights under the sale made by De-Valcourt as such administrator.
The court again overruled the motion on the day of the filing of this paper.
On the 21st of July, the defendants filed the following motion:
“Come defendants, Sessions and Simms, and move the court to make Nelson W. Bunker a party defendant herein; and state to the court that said Bunker has purchased a portion of said lands and is in possession of the same, and that these defendants are not in such possession as alleged in said complaint; and they are advised that said Bunker is a necessary party to this suit as defendant. Whereupon they move the court that said Bunker be made co-defendant with them, and that he be notified of the same, that he may protect his interest, and that of these defendants.”
This motion was heard and overruled by the court on the day it was filed.
There is some confusion in the record as to the day on which the final judgment was rendered. It seems, however, from the judgment entry, that on the twefth day of the term, the motion to make Bunker a party having been overruled, defendants asked leave to file other defenses, and tendered a demurrer, but the court held that they were too late in offering to -file other defenses, the cause having been set for trial on the tenth day of the term, and they having failed to answer or demur within the time prescribed by law, and plaintiffs waiving damages, judgment was rendered in their favor for possession of the lands, etc.
Defendants moved to set aside the judgment, on the ground that it was entered without their knowledge, and while the court had under advisement the question of their right to file other defenses, with leave to submit an argument in favor of such right, etc.
The court overruled the motion, and without taking any bill ■of exceptions bringing upon the record the other defenses and demurrer which they offered to file, or showing any facts other than such as appears of record, they appealed to this court.
I. In a bill to foreclose a mortgage, the mortgager is a necessary party, and if he be dead, and died owning the equity of redemption, his heirs or devisees, are necessary parties, because his estate in the land descends or is devised to them, and the object of the bill is to bar the right of redemption, and sell the land to pay the debt secured by the mortgage. Simms et al. v. Richardson & May, ante. And our practice is to make the administrator or executor of the deceased mortgagor a party, because lands are assets in his hands for the payment of debts.
But in an action of ejectment by the mortgagee to obtain possession of mortgaged premises, and take the rents and profits in satisfaction of the debt, he is not obliged to make the legal representatives of the deceased mortgagor (or the mortgagor himself if living) defendants, because a judgment of recovery in such action action does not bar, and in no manner affects the right of redemption.
Appellees had the right to bring this suit against persons in possession of the lands at the time the suit was commenced, and' they were not obliged to make the administrator of Walter Sessions, a defendant, though they might have done so. Gantt’s Dig., sec. 2258.
The statute provides that the action may be brought against the person in possession of premises claimed, or his lessor, or both lb., sec. 2251.
Sec. 2252 provides that: “The person from or through whom the defendant claims title to the premises may, on his motion, be made a co-defendant.”
It was under this section, no doubt, that appellants moved the court below to make DeYalcourt, the administrator of Walter Sessions, a defendant.
If appellants held the lands as tenants of DeYalcourt, it was their duty, on being sued for possession, to give him notice of the suit (Gantt’s Digest, sec. 4016), and he might have been made defendant on his own motion. Jackson et al. v. Allen, 30 Ark., 110.
If they purchased the lands of DeYalcourt, as administrator, as indicated in the second motion, they must have purchased under an order of sale made by the Probate Court, and without warranty,-and they had no right to burthen him or the estate which he represented with the expenses of the suit.
The court did not err in overruling the motion to make De-Yalcourt a defendant.
II. Nor did the court err in overruling the motion of appel- • lants to make Bunker a defendant.
The motion does not state that he was in possession of any part of the lands at the time the suit was commenced.
The complaint alleged that the appellants were in possession of the lands. Had they put this allegation in issue by answer, either as to the whole, or part of the lands, appellees could have recovered of them such of the lands only as they proved them to have been in possession of at the time of commencement of the suit. Gantt’s Dig., sec. 2255.
Appellants had no right to compel appellees to make Bunker a defendant on the showing made by them.
III. The appellants having failed to answer or demur on the day of the term on which the case was set for trial (Gantt’s Dig., sec. 4584), as it appears from the judgment entry they did, their offer to plead after that day was addressed to the sound legal discretion of the court (Digest, sec. 4617), and the judgment of the court pronounced in the exercise of such discretion, is not to be overruled by this court unless it appears to be palpably erroneous and unjust. , Carroll v. Harris, 19 Ark., 239, and other cases cited.
What other defenses the appellants offered to file, or on what grounds they proposed to demur to the complaint, we do not know. They should have taken a bill of exceptions, and brought on the record the pleadings which they offered to file, so that we might see whether there was merit in them.
In their motion to set aside the judgment they do not state that they had any meritorious defense to the action.
They ■ state that the' judgment was rendered without their knowledge, and while tire court had under advisement the question of their right to file other defenses, with leave to submit an argument in favor of such right. If such were the facts they should have made them appear by bill of exceptions. Mere statements in a motion, overruled by the court below, and in no mode authenticated, cannot be assumed to be true against the judgment of the court overruling the motion. Hurley v. State, 29 Ark., 23.
Affirmed. | [
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English, Ce. J.:
This case was determined in the Circuit Court of Howard County, on appeal from the j'udgment of a justice of the peace.
It appears from the transcript of the justice filed in the Circuit Court, that on the 16th of October, 1876, George T. Epperson, by affidavit, charged John Floyd, before C. M. Stanford, a justice of the peace of Muddy Fork Township, Howard County, with the offense of wilfully and maliciously wounding a white bull, the property of affiant. Whereupon the justice issued a warrant in the name of the State, to H. P. Epperson, constable, for the arrest of Floyd. He was on the same day arrested, taken before the justice, tried by a jury, found guilty, his punishment assessed at a fine of twenty dollars, and the damage of Epperson, the owner of the animal, assessed at $50: and the justice rendered the following judgment upon the verdict of the jury.
“It is therefore adjudged by the court that the State of Arkansas have and recover of the defendant, John Floyd, the sum of twenty dollars, the fine assessed : and that the State of Arkansas, for the use of George T. Epperson-, have and recover of the defendant, John Floyd, the sum of one hundred and fifty dollars, the three fold amount of- damage assessed by the jury in favor of said Epperson, the owner of the animal; also all the costs in this behalf expended.”
Below the judgment, the costs are taxed in items, aggregating $13.70: then follows this entry :
“This judgment for costs is paid to constable in full: The fine and damages are settled by mortgage to the amount ,of $57, mortgage being given in favor of R. G. Shaver: The remainder of the damages is marked paid by order of George T. Epperson, the party whose animal was damaged.” •
(Signed) “C. M. Stanfoed, J. P.”
After the above entry, the defendant took an appeal to the Circuit Court, executing a stay bond, with sureties. He appeared at the return term, was ordered to stand upon his appeal bond for his appearance at the next term, the witnesses for the State were recognized, and the cause continued.
At the next term (September, 1877,) the prosecuting attorney moved to dismiss the appeal, on the ground that the defendant had paid and satisfied the judgment prior to the taking of the appeal.
The motion came on to be heard, the record states, and was argued by counsel, and the court being sufficiently advised as to the law relating thereto, etc., and being of the opinion that the ground of the motion was well taken, sustained the same, and dismissed the appeal at the defendant’s costs. The defendant excepted, and appealed to this court.
There is no bill of exceptions, and no indication in the record •entries that any evidence was introduced on the hearing of the motion. The court below seems to have treated the entry made by the justice of the peace upon his docket, above copied, as sufficient evidence that the defendant had paid and satisfied the judgment before he took the appeal.
Section 2103, Gantt’s Digest, (criminal procedure) provides that: “No appeals shall be taken from the judgment of a Justice’s Court after it has been paid or collected, nor after sixty days from the rendition of the judgment.”
The judgment was in favor of the State for a fine of $20, and costs, and in favor of Epperson, the owner of the animal, for $150, damages. Gantt’s Digest, seos. 1380-1.
It seems that before the appeal the costs were paid : the fine and damages settled by mortgage given to R. G. Shaver, to the amount of $57, and the remainder of the damage awarded to Epperson, marked paid by his direction.
It appears that in the $57, secured by the mortgage, were included the fine of $20, adjudged to the State, and $37 of the damage adjudged to Epperson.
Who Shaver is, or in what capacity he acted in taking the mortgage, does not appear. But neither the constable, nor the justice of the peace, nor Shaver, no matter what office he held, had any legal authority to take a mortgage for the fine adjudged to the State in a criminal prosecution, and treat the judgment as “paid or collected.” Epperson was at liberty to accept a mortgage, note', or to remit the whole or any part of the sum adjudged to him, for the damage done to his property by appellant. It was a compensation for a personal wrong which he could settle as he pleased. Baldwin et al. v. Scoggin, use, etc., 15 Ark., 435.
There is no showing in the transcript before us that the fine of $20, adjudged to the State against the appellant for the public offense which he was charged with committing, has been “paid or collected” before he took an appeal from the judgment of the justice, and as to that he had the right of appeal. It follows that the court erred in dismissing the appeal.
The judgment must be reversed, and the cause remanded for further proceedings. | [
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Harrison, J.: ■
F. H. Govan and J. M. Jackson were opposing candidates at the general election on the first Monday in September, 1876, for the office of Circuit Clerk of Lee County.
Govan received the certificate of election and, in accordance therewith, the commission from the Governor.
Jackson gave Govan notice that he would contest the election before the County Court at the next or October Term, 1876, upon the ground that the votes cast in Hardy township, in which he received sixty-four and Govan eighteen votes, were not counted upon the examination and canvass of the returns, which, if counted, would have given him in the county 1127, the highest number of votes cast for the office, Govan 1089, and that he was elected by a majority of thirty-eight votes.
To the contestation Govan filed a response, and to the response Jackson filed a demurrer. The court overruled the demurrer, and Jackson electing to rest thereon, his contest Avas dismissed, and he appealed to the Circuit Court.
In the Circuit Court he again demurred to the response, and his demurrer was there sustained.
Govan, upon leave granted, filed an amended response consisting of four paragraphs.
The first denied that any return Avas made to the County Clerk from Hardy toAvnship.
The second averred that the ballots in said township AArere not numbered, and, therefore, void.
The third denied that the contestant received 1127 legal votes, or a majority of the legal votes, but averred that the respondent received 1089 legal votes, which Avas the highest number of legal votes cast, and especially charged that certain persons named, not qualified electors, Avho had not resided in the toAvnship thirty days, in the county six months, nor in the State one year, voted for the contestant in the following townships :
In Hardy...........I.............'............................. 42
In St. Francis.................... 38
In Dennis..................................................... 6
In Texas.........................................'............. 3
In Union........................... 2
and that the contestant, who did not reside therein, voted for himself in Independence townshij).
And .the fourth averred that in St. Francis township the ballot box, after the poles wore closed, was opened and the ballots taken out and the votes counted in the absence of the judges and one of the clerks; and that the said judges made their certificate and return, the day after the election, without any examination and verification of the ballots, and solely upon the information of the persons who had so illegally opened the ballot-box and counted the votes; and that the polls were not signed by the judges and attested by the clerks, nor the names counted and the numbers-set down at the foot .of the poll books, and also that one of the judges was not a resident of the township.
The contestant demurred to the last three paragraphs as containing no answer to his ground of contest, but as. setting up a cross-contest, without notice to him, and the court sustained the demurrer and ordered said paragraphs stricken out.
The respondent asked for a jury, which the court refused to allow to be called, and proceeded to hear and determine the case without one; and it found that the contestant was elected, and not the respondent, and entitled to the office.
The respondent moved for a new trial, which was refused ; and an order annuling his election, and declaring the election of the contestant, was thereupon entered.
The defendant appealed to this court.
The motion for a new trial was upon these- grounds : First— That the court should have allowed the trial to be by jury as requested by the respondent. Second — That the court erred in its declaration of law; and, Third — That the finding was against the law and evidence.
The Constitution, sec. 24, art. xix, makes it the duty of the General Assembly to provide by law the mode of contesting elections in cases not therein specially provided for, and, in compliance with that requirement, such provision is made in the general election law of 1875.
It is the evident intention of the act that such contests shall, as the public interests demand, be speedily and summarily determined.
Sec. 71 of the act is as follows : “ When the election of any clerk of the Circuit Court, sheriff!, coroner, county surveyor, county treasurer, county assessor, justice of the peace, constable, or any other county or township officer, the contest of which is not .otherwise provided for, shall -be contested, it shall be before the County Court, and the person contesting any such election shall give to the opposite party notice in writing ten days before the term of the court at which such election shall be contested, specifying the grounds on which ho intends to rely, and if objections be made to the qualifications of voters, the names of such voters, with the objection, shall be stated in the notice, and the parties shall be allowed process for witnesses.”
Sec. 72 says : “ Either party may, on giving notice thereof to the other, take depositions to be read in evidence on the trial, and the court shall, at the first term (if fifteen days have elapsed after such election, and if less than fifteen, then at the second term), in a summary way determiné the same according to evidence.”
There is nothing.in the Constitution, that we can see, which requires that the contest should be made before the County Court or that restrains the legislature from erecting some other tribunul or board for its determination; on the contrary, the power of the legislature to establish such, if not distinctly expressed, is plainly implied in sec. 52 of art. vii., which is as follows : “ Sec. 52. That in all cases of contest for any county, township or municpal office, an appeal shall lie at the instance of the party aggrieved, from any inferior board, council or tribunal to the Circuit Court, on the same terms and conditions on which appeals may be granted to the Circuit Court in other cases, and on such appeals the case shall be tried de novo.”
The law has made no provision for juries in the County Court, and we can see no greater expediency for a trial by jury in the Circuit Court when the case is carried there by appeal, than in the first instance in the County Court, or why it should not be determined in as summary manner in the former as in the latter..
The requirement that it shall be determined in a summary way, is that it shall be tried without a jury. Mr. Bouvier defines a summary uroceeding to be “ a form of trial in which the ancient established course of a legal proceeding is disregarded, especially in the matter of trial by -jury, and in the case of the heavier crimes, presentment by a grand jury.” Bouv. L. Diet.
But it is contended by the appellant that trial by jury is a right guaranteed .by the Constitution, and that it was not within the power of the legislature to deprive him of it.
It seems well settled by the authorities that it is only in cases at common law, and perhaps such as are of similar or analogous nature that the guarantee relied upon by the appellant applies, and that statutory proceedings and rights which did not exist at common law, are not within it. Boring v. Williams, 17 Ala., 510 : Tims v. The State, 26 Ala., 165; Creighton v. Johnson, 6 Litt., 241; Watts v. Griffin, Ib., 244; Harrison v. Chiles, 3 Litt., 200; Harris v. Wood, 6 Monroe, 642; Murphy v. The People, 2 Cow., 819; Wynehamer v. The People, 3 Kernan, 378; Mountfort v. Hall, 1 Mass., 443; Wells v. Caldwell, 1 A. K. Marsh 328 ; Inhabitants of Shirley v. Lunenburgh, 11 Mass., 379; In re Powers, 25 Vermont, 261; Emerick v. Harris, 1 Binn., 416; Van Swartow v. The Commonwealth, 24 Penn. St., 131; Ewing v. Filley et al., 43 Penn. St. 384; Kneass’s case, Lead. Cases on Elections, 360.
Mr. Sedgwick says : “ It is also to be understood that when the Constitution guarantees the right of trial by jury it does not mean to secure the right in all possible instances, but only in those' cases in which it existed when our Constitutions were framed. Sedgw. Stat. and Con. Law, 496. ■
In the case of Ewing v. Filley et al., cited above, which was a case of contested election, the Supreme Court of Pennsylvania says: “ It is not in the act of organization of the State, nor in the perpetuation of its organic succession, but in the administration of rights under the organization, that the Constitution •secures'the right of trial by jury. The jury is the popular element in the determinatio'n of rights which need enforcement by means of the State organization; but there is a much larger popular element in our elections; the votes of all the people and all our political practice shows that we have not considered a jury an essential means of deciding contested elections of public officers.”
The returns before the court, including that from Hardy Township, showed that the contestant’s entire vote in the county was 1127, and the respondent’s 1089.
It was proven that both poll-books of the election in Hardy Township, upon one of which the judges had made their returns, were, together with the ballots, the latter not numbered and also loose, placed by the judges in the ballot box, which was then locked and á piece of paper pasted over the orifice through which the ballots, were deposited, across which the names of the judges were written, and another piece pasted over the key-hole, across which also the name of a deputy sheriff was written, and the box was placed in the hands of one deputy sheriff and the key in those of another, to bo carried and delivered to the County Clerk who was the respondent, which was done on the day after the election, and he deposited the same in his office. At the time the box was delivered to the clerk, he was told that the ballots were loose and unenvelpped in it.
On the next day, the third day after the election, the judges learning that they had not made their return according to law, applied to the respondent for the ballot box, that they might get out the poll-books and make a proper return. The respondent declined to let thém have the box, or to allow it to be opened, and on the fourth day after the election he despatched a messenger to bring up the poll-book and returns as required by the statute, which for the reason shown, could not be done; and the votes of said township were not entered in the abstracts made by the clerk and the two justices upon the examination and canvass of the returns.
The court declares as a proposition of law, that the votes in each township returned to the clerk, should have been stated in the abstracts of the returns made by him and the two justices, and that the votes in Hardy Township should have been stated therein.
The court seems to have assumed, that the judges of election in- Hardy Township did make a return, but in this we think i^ was mistaken. The poll book and return, were, in fact, delivered tq the clerk, but in such a manner as defeated the end intended, by the statute. Sec. 41 of the act says: “After canvassing the votes as aforesaid, the judges before they disperse, shall put under cover one of the poll books, seal the same and direct it to the clerk of the County Court of their respective couhtiesand sec. 45 reads as follows: “ It shall be the duty of the judges of the elections in the respective townships throughout the State, after such election shall have been closed, as provided for in the foregoing section, securely to envelope all ballots which may have been received in accordance with the provisions of this act, under seal, and return the same to the clerk of the proper county, which shall in no event be opened, except in case of contested election. Now in this case, the poll book with the- return upon it, was locked up in the ballot box, with the ballots unenveloped and loose therein. To have opened the box was to have broken the seals, or what was intended by the judges for such, and to open the ballots, in direct violation of the law. The application of the judges to the clerk for the box, was no doubt made in good faith; but it had then passed from their charge to his, and it was his duty to preserve it as containing the ballots, and in the same state in which he received it, and he had no such discretion as to permit it to be opened by any person, or for any puspose, except in case of contest.
But the declaration was inapplicable to the case before the court. The question it was considering was: Should the votes then be counted ? Not, ought they to have been counted upon the examination and canvass of the returns? Sec. 11 of art. iv., of the Constitution, is as follows :
Sec. 11. “ If the officers of any election shall unlawfully refuse or fail to receive, count or return the vote or ballot of any qualified election, such vote or ballot shall, nevertheless, be counted upon the trial of any contest arising out of said election.” And it is apparent that the duty to count them, did not depend - upon the obligation to count them upon the canvass of the returns.
This provision of the Constitution requires all legal votes which have been cast or offered, no matter whether returned or not, or what irregularities have attended the election, upon a contest to be counted. The illegal proceedings and irregularities in the townships of Hardy and St. Francis, did not, therefore, haye the effect to make void the votes of the qualified electors of those townships, and the court very properly declined to go into any inquiry concerning them, and sustained the demurrer to the second and fourth paragraphs in which they were charged.
The finding of the court in favor of the contestant was in accordance with the evidence before it: but we think the respondent should have been permitted to prove, if he could have done so, that illegal votes were given for the contestant in the townships named and as charged in the third paragraph of his answer.
The real inquiry was as to which, the contestant or respondent, received the highest number of legal votes, and was not confined, as the court in effect held in sustaining the demurrer to the third paragraph, to the ground specified in the contestant’s notice of contest, or whether the votes cast in Hardy Township should be counted. Nor was there any cross-contest by the respondent as assumed in the demurrer. The statute does not contemplate any thing of the kind, and in the nature of such a controversy it seems to - be inadmissible. The contest puts in question the validity of the election of the person holding the certificate of election and having a prima facie title to the office; and though the contestant may be able to prove the grounds specified in his notice, the person declared elected ought certainly to be admitted to show, if he can, in support of his title to the office from which the contestant seeks to oust him, that the contestant was, notwithstanding, not elected.
The judgment of the court below is reversed, and the cause remanded to it, with instructions to grant the appellant á new trial, and to allow him to produce evidence to prove the illegal votes charged or facts set up in the third paragraph of his response. | [
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Walker, J.:
On the 1st day of March,11873, the Merchants’ National Bank of Memphis, Tenn., filed a bill in the Chancery Court of the County of Mississippi, to subject a tract of land there situate, containing about 3000 acres, known as the Nodina Place, to the payment of debts due and owing the bank, by the firms of Wormley, Joy & Co. and Wormley, Pickett & Co., under a deed of trust, executed by Saffarans, to Smith, as trustee, to be sold upon the non-payment of the debts upon the terms in said deed specified.
The original bill and cross-bills present complications which it may be best to consider separately.
The firm of Wormley, Pickett & Co. was composed of the same parties as that of Wormley, Joy & Co., with the exception that Joy had withdrawn from the firm.
Harden, of Nashville, Tenn., was the original owner of the Nodina tract, sold it to McGavock, and held a mortgage lien upon the land for the payment of the balance of the purchase money; to foreclose which, suit was commenced in the Chancery Court of Mississippi County; pending the suit, Harden sold his debt to "Wormley, Pickett & Co., whereby they became subrogated to the legal and equitable rights of Harden, and proceeded to have the mortgaged foreclosed, and the land subjected to sale.
By the terms of the decree of sale, the commissioner was required to sell the land to the highest bidder, on a credit of four months, .taking from the purchaser notes for the payment of the purchase money. The sale was made January 4th, 1870, at which Saffarans became the purchaser, for the price of $26,100,
At the April Term of the Chancery Court, by an agreement between Saffarans and Wormley, Pickett & Co., the terms of the sale were so modified so as to allow Saffarans one and two years to pay his bid, he to pay $10,000 of the debts then pressing the firm.
The sale thus modified was confirmed by the Chancery Court, on the 5th of April, 1870, the commissioner executed to Saffarans a deed to the land. On the 28th of May, 1870, a little more than a month after, an agreement was entered into between the firm of Wormley, Pickett & Co. and Saffarans, reduced to writing, and evidenced by the. following instrument: “ Memorandum of agreement for the full settlement of partnership affairs of Pickett, Wormley & Co., Wormley, Joy & Co. and Wormley, Pickett & Co.: First — Wormley and Ussery are each to receive two notes for $2500 each, due at six and eight months from date, with interest, secured by mortgage on the Nodina Place, notes to be signed by Isaac Saffarans. Second — William S. Pickett to give his note to Wormley for $6100, also an old, claim due Pickett, Wormley & Co., for $1000. Third — William :S. Pickett to give his note to J. D. Ussery, for $3000, due 25th ■ of December next, with interest, secured satisfactorily to Thomas R. Smith. Fourth — Isaac Saffarans is to take the assets of the firm of Wormley, Joy & Co. and Wormley, Pickett & Co., and to pay the outstanding debts of said firm, said debts to be secured by mortgage on the Nodina Plantation. In witness of all which -the several parties to this agreement have hereunto sot their hands and seals, this 28th of May, 1870.”
Isaac Saffarans. [Seal.'
W. S. Pickett. [Seal.]
Ralph Wormley. Seal.]
J. D. Ussery. [Seal.’
Thus it appears that in consideration of the purchase of the assets of the two firms, and of his indebtedness in the purchase of the Nodina Place, Saffarans undertook to pay Wormley and Ussery, at stated periods and amounts, $10,000, and fui’ther, to pay the debts of the two firms; to secure the payment of which he executed a mortgage on the Nodina Place.
Afterwards, on the 2d of January, 1871, (no mortgage having been executed,) in compliance with this agreement, Saffarans • conveyed the Nodina Place to Thomas R. Smith, in trust to secure the payment of $600 to Merger & Co., $900 to J. F. Pickett, .$438.75 to Mrs. M, C. Wormley, and to the Merchants’ National Bank at Memphis an amount to be ascertained. These were preferred claims, to b.e first satisfied under the trust, and the sum ■ of $5000 to Wormley, and a like sum to Ussery, as second-class payments, given in consideration of the assets and lands of Wormley, Pickett ,& Co,
After which, is recited in the deed, the • following reference -to the agreement of May 28th, 1870:
“And whereas, the said Saffarans, by his contract of purchase, May 28th, 1870, agreed to secure the payment of the aforesaid . debts,” and also this further recital:
“ It is also to be observed that the debt of the Merchants’ National Bank is not now ascertained, because it involves a settlement to be made, because the amount secured by the deed is indefinite and uncertain, it is further agreed that in no event shall it exceed the sum of $17,000, principal, and in case said debts, or any of them, shall be paid in any other way, out of the assets of Wormley, Pickett & Co., such payment is not to be ■considered to affect the rights of the beneficiaries herein.”
Nine days after the execution of the deed of trust, Saffarans ■conveyed the Nodina Place to the wife and daughter of Pickett, in which deed was recited the trust and its provisions, making it, for all necessary legal purposes, part of the deed which he had executed to them; in effect, substituting Mrs. Pickett and her daughter in his stead, and imposing upon them all the obligations imposed, and the rights secured to him under said deed.
Under the state of ease thus presented, it becomes necessary to consider the legal and equitable rights of the claimants to an interest in the land conveyed in trust.
It is not questioned but that the legal title of the Nodina Place vested in Saffarans by purchase at the commissioner’s sale, •and confirmed as modified by the parties; it was so recognized by Wormley, Pickett & Co., on the 28th of May, 1870, subject, however, to their lien right to satisfaction out of the land for the unpaid purchase money. Nor can they attack the validity of the deed of trust, and at the same time assert their claim to ■satisfaction under it. This question was discussed at length and settled in the case of Frierson et al. v. Branch, ex’r, reported in 30 Ark., 453.
We do not understand counsel for Wormley and Ussery as ■contending that the deed of trust is absolutely void for fraud, although the allegations in their cross bills would seem to go t;hat far, but tthey do -not contend that the contract of the 28th of May, 1870, truly expressed the terms of the undertakings of Saffarans, and was the basis upon which the deed of trust was intended to be made, but was inadvertently, or by misapprehension of its true meaning, so departed from, as to defeat its purpose and object. If such is shown to be the case, the power of a Court of Equity to re-model the contract, so as to make it conform to the true understanding and agreement of the parties contracting, is beyond question; the right to do which, rests upon well recognized rules of equity, too clearly established to need a reference to authorities.
The agreement of 28th of May, 1870, provided that Saffarans should execute notes to Wormley and Ussery, to be secured by mortgage on the Nodina Place, an absolute obligation on his part to pay that sum, an unlimited mortgage upon the property for its payment.
It is true that a mortgage was also to be executed upon the same property, to secure the payment of the debts of the firm. The Nodina Place was a common security for the payment of all, without preference to any, but, by the terms, of the deed of trust, preferred debts of $1938.75, together with a deed due the Merchants’ National Bank, of unascertained value, were to be first satisfied, leaving tlie $10,000 tobe paid Wormley and Ussery unsecured, unless upon the contingency that the property mortgaged was sufficient to pay all of the debts.
At the time when Wormley and Ussery contracted with Saffarans for a lien upon this property for the payment of their debts, they held a vendor’s lien upon the property, and it is supposed that they gave up this lien, or postponed their right to satisfaction until other large claims of undefined amount were settled; nor was there any such stipulation in the contract of May, 1870, as that contained in the deed of trust,, by which the lien upon the land was not to exceed $17,000.
This departure in the deed, from the terms of agreement of May, 1870, unless waived by some after agreement, very clearly shows that the deed should .be so reformed as to give effect to the contract. The deed does not profess to depart from the contract, but, on the contrary, in express terms, recites that it was given by Saffarans, in full compliance with the agreement of May 28th, 1870, from which we may infer that Saffarans, at the time he executed the deed, supposed it to be a compliance with the terms of his contract of May, 1870. In addition to which, Saffarans, in his answer, says that he did comply with the terms of his agreement, by the execution of the deed of trust. Wormley and Ussery were not present when the deed was executed, nor is there evidence that they ever saw or read it, or if read, may have supposed that it was, as it professed to be, a compliance, on the part of Saffarans, with his contract of May, 1870.
Saffarans, in his deposition, says that all of the negotiations and settlements which I made in carrying out the contract of May, 1870, were with Thomas R. Smith, the attorney representing Wormley and Ussery, and the Merchants’ National Bank. * * * I cannot say, positively, who was present at the execution of the deed, besides those -who represented Wormley, Ussery and the bank.
Under this state of case, the question arises whether Wormley and Ussery were represented by any one when the deed was executed; it seems that Smith, who claimed to be their attorney as well as the attorney for the bank, assumed to act for them; it appears that he did so act when the contract of May was entered into, but it does not appear that he was authorized to change the terms of the arrangement, or to act as their attorney in doing so; on the contrary, it appears from the testimony of Saffarans that Smith suggested the propriety of taking a deed of trust instead of a mortgage, as a matter of convenience to himself, which, with other stipulations,.particularly that limiting the amount of the lien upon the Nodina Place to $17,000, was then agreed upon and the deed executed accordingly; Smith, it appears, was also the attorney for the bank, and the provision made in the deed placing the bank’s debt as a preferred claim in violation of the terms of the contract, is so totally adverse to the interests of Wormley and Ussery, as to repel the presumption that in doing so, he acted by authority from them, or that he could under the circumstances act in the double capacity of attorney for both, and do justice to them; a general retainer would not suffice to confer power to compromise, settle or adjust claims, or to alter the terms of a contract. It is, however, contended for the bank that by joining with Mrs. Mary E. Wormley in receipt for $1867.68, Wormley accepted the provisions of the deed. The debt so secured was not his, we may presume was his wife’s, and he joined as a nominal party in the execution of the receipt, a circumstance which with other evidence, might tend to prove an acceptance of its provisions, but of itself insufficient for that purpose.
There is also evidence that Smith received for Ussery $1000, ■ but whether received by Ussery under the impression that the payment was made under the provisions of the contract of May, carried into effect by the deed of trust or with a knowledge of the provisions of the deed, does not appear. There is no evidence that either Wormley or Ussery was ever apprised of the provisions of the deed, or of the departure from the contract provided for in it.
Looking at the whole transaction connected with the execution of the deed, the fact that Pickett was the active and managing partner of the concern, and the confidence reposed in him, and the express declarations in the deed of trust, that it was . made in accordance with the contract of May, 1<J70, wc do not think the acceptance of these two sums sufficient to show an affirmance of the deed of trust in its several provisions, and that it should be so reformed as to express the true intention of the parties under the contract of May, 1870, the power to do which, is expressly recognized by this court in the case of Allen v. McGaughey, 31 Ark., 252.
It appears from the evidence that for some time prior to the 4th of February, 1868, the firm Wormley, Joy & Co., of whom Pickett, Wormley and Ussery were members, had opened a bank account with the Merchants’ National Bank of Memphis, with whom they liad a running account for moneys loaned and checks paid, and credits for deposits and payments.
The bank made a monthly statement of accounts, and struck the balance due each month, which was carried forward and charged against the firm with 12 per cent, interest; and finally on the 4th of February, 1868, the firm was found to be due the bank $19,353.48, for the payment of- which four notes of that date were executed, each for the sum of $4838.37.
Counsel for the Bank contend, that these notes were executed for the sum found to . be due upon final settlement, purged of usurious interest, by payment at the time the monthly accounts were rendered, which, in fact, constituted so many distinct settlements. True, there is evidence that the accounts were stated monthly, and a balance struck, but whether the usurious interest was, or not paid, is not shown ; nor can avc, upon a fair consideration of the transaction between the parties, admit these monthly estimates to be separate and distinct settlements, or indeed settlements at all, but, intended to show how the accounts stood between the parties. It was in fact a running account between the bank and its customer, Wormley, Joy & Co., commenced in 1866, and continued to 1868, the time when the accounts were closed by note, and in fact constituted but one transaction.
So held under like circumstances by the Supreme Court of Tennessee, in the cases of Weatherhead v. Boyers, 7 Yerger, 545, and Boyers v. Boddie, 3 Hum., 666. In the first mentioned case Mr. Justice Peck said: “The transaction was a continued one, new dealings, new advances, new securities for money, * * * when taken, make a case where neither time nor the statute of limitation can have effect.” The defense was usury, the precise question, as to .the time when the statute bar commenced, the transaction of advancements, payments and settlements, extended for'several years and was held to be one transaction.
In the case reported in 3d Humphries: The question arose out of a usurious transaction, consisting of a series of settlements, payments and securities, from 1823 to 1840, and was held by the court to be one usurious transaction. Mr. Justice Reese, said: “As a Court of Chancery wo cannot but see that all of these notes, all of these payments and renewals, incorporate themselves into one continuing contract and transaction.”
Under this state of case, the question presented is, was this an usurious transaction; sec. 5198, Rev. Stat. of United States, provides “that the taking, receiving, reserving, or charging a rate of interest greater than is allowed by the State where the bank is located, when knowingly done, shall be a forfeiture of the entire interest, which the note, bill or other evidence of debt carries with it, or, which has been agreed to be paid thereon.” Six per cent, interest is that allowed by the Statute of Tennessee.
It is contended for the bank, that, conceding a greater amount of interest to have been charged than was permissible, it was not carried into the note, but was taken and paid in the monthly accounts, and the notes executed were for a balance of debt actually due, purged of usurious interest.
In support of this position we have been referred to several decisions of courts of high authority, which assert the general proposition, that if usurious interest is in fact paid, and notes taken for valid consideration, not tainted with usury, a plea of usury could not be sustained ; but in the case before us, the evidence failed to make such a ease as those reported. It is true, that a monthly account was taken of the debts and credits between the parties, and a balance struck, but whether the deposits made with the bank were in fact applied to the payment of usurious interest, or as a general credit, is not shown'. The rule with regard to the application of credits, is most frequently governed by statute; a credit in this State, unless otherwise directed, goes first to the payment of interest; in others, as in Louisiana, to the extinguishment of the most onerous debts; perhaps, in others, to be applied (in the absence of special instruction), at the discretion of the creditor; but whether the one, or the other, unless by special direction, we think the payment should be applied to the liquidation of lawful interest, and not to such as the creditor could interpose a valid defense to.
The usurious interest in this instance, having been carried into the general account, and made part of the sum found due upon final settlement, taints the whole contract with usury, the fact that the account was closed by note amounts to nothing; it matters not whether .the usury was charged and taken by any tacit assent of the firm by the bank in stating the monthly account, or by note substituted for the one first given; the question is not how the contract was closed, or renewed, but whether any part of the sum charged, and for which the note was executed, . was for the use or forbearance of money at a greater rate of interest than allowed by law to be taken. Such is clearly the rule as laid down by the elementary writers, and accords with numerous decisions, to some of which we will refer.
In Tuthill v. Davis, 20 John., 285, the Supreme Court of New York says : “As it appears that the note now in question was given to renew one taken up, the former usurious note then in the hands of the plaintiff, the original party to the usurious contract, without new consideration, but including the extortionate interest of the original loan, this last note is equally infected and of the same illegitimate progeny as the first notes.”
In Read v. Smith, 9 Cow., 647, the court says: “ The note upon which the suit was brought, is a continuance of the original note * * * If that note was given upon an usurious consideration, the taint which it imbibed, attached to each of the securities subsequently taken, and affects and destroys the one in question.”
' In Thomas v. Catheral, 5 Gill. & John., 25, the Supreme Court of Maryland says. “ If the note was made and endorsed in execution of a usurious agreement, it was tainted-with usury.”
In Holden v. Cosgrove, 12 Gray, 217, it was held that the same1 defense may be made to a renewal, as to the original notes.
It is next contended for the bank that, conceding the notes to be usurious, the defense of usury is personal and cannot be pleaded by a third party, who has contracted to pay it, nor can Wormley and Ussery, the debtors who have contracted to have this debt paid, interpose such plea. The numerous decisions referred to by counsel will sustain the proposition, that the plea of usury is personal, and wrhen a third party assumes the payment of a usurious debt, and gives the creditor an assurance of payment, he can neither dispute with the creditor, the validity of the debt, nor the amount due, because, at the time of making the contract to pay, the validity of the debt is conceded, and the amount to be paid ascertained; the agreement to pay upon a consideration passing from the debtor to the party undertaking to pay is presumed to be adequate: in effect, he has received from the debtor money with which to pay his creditor, and, if permitted to plead usury or other defense and avoid the debt, the effect would be to permit him to retain the money, or consideration given by the debtor with which to make payment; clearly he should not be permitted to do this. Nor do we understand the counsel for Wormley and Ussery as controverting the correctness of this position, but they insist that, under the peculiar circumstances of the case here presented, the rule does not apply. There was no stipulated sum agreed to be paid to the bank, the amount due was to depend upon a settlement thereafter to be made. Wormley and Ussery were personally interested in this settlement, because, as part of the same contract, Saffarans, who contracted to pay the bank debt, also contracted to pay the notes of Wormley and Ussery upon the same security. It was not intended by the parties, but would defeat such intention, to permit Saffarans to pay more than -was justly due the bank, which, if •done, might exhaust the whole security given in payment of the bank debt, and leave the debts of Wormley and Ussery without security upon which alone they must rely for payment.
Saffarans, Wormley and Ussery were all made parties defendant. Saffarans does not interpose the defense of usury, because, by the terms of the deed of trust, the lien given upon the Nodina Place is limited to $17,000, and he cares not whether the bank or Wormley and Ussery get it; but Wormley and Ussery, who are interested in seeing that the bank debt should be reduced to the sum that by lawr they are bound to pay, do interpose the defense of usury by cross-bill; they charge that the land wras originally bound for the payment of their own debt, due by Saffarans to Wormley, Pickett & Co. for the payment of the purchase money for the same land conveyed in trust, and should not be charged with the amount of usurious interest claimed by the bank, and secured as a preferred claim by the deed of trust. •
Let us look at the facts disclosed in the case, and see whether they sustain Wormley and Ussery in this proposition.
Wormley, Pickett & Co. were the owners of a debt on McGa-' vock, the payment of which was secured by a lien on the Nodina Place. Under a decree for a sale of the land for the payment of this debt, Saffarans became the purchaser at the price of $26,100; he paid nearly $10,000, and gave to Wormley, Pickett & Co. his note for the balance of the purchase money; the payment of these notes was secured by a lien upon the land. A short time after this, Wormley, Pickett & Co. made a settlement of their partnership affairs as between themselves, in which the firm was found to be indebted to Wormley and Ussery. An estimate was made of the assets of the firm, and the debts they owed, from estimates furnished by Pickett, to whom had been assigned the duty of liquidating and settling the debts of this, and preceding firms, of w'hich they were members.
With this showing of the assets and the debts to be paid, of which the notes for the purchase money on Saffarans were a part, Wormley, Pickett & Co. proposed to Saffarans that they would give up the notes which they held for balance of purchase money, if he, Saffarans, would give to Wormley and Ussery each two notes for $2,500 at six and eighteen months, making a total of $10,000, the payment of which ho was to secure by mortgage on the Nodina Place.
By the delivery of the notes for the purchase money, and the new undertaking of Saffarans, the contract was substantially this: Saffarans was to take the land and the assets of the firms of Wormley, Joy & Co. and Wormley, Pickett & Co., and assume the payment of the debts of the firm, and the $10,000 found to be due on settlement to Wormley and Ussery, two of the members of the firm, to be secured by a mortgage lien upon theNodina Place.
This, with other stipulations which need not be noticed in this connection, was the contract of 28th May, 1870.
The terms of the contract were to pay the outstanding indebtedness of the firm, including the $10,000 to Wormley and Ussery,. with the exception of which no particular debts or amounts were-named, nor any preference to be given to any in payment; it was. to carry out this contract of May, .1870,- that the deed of trust was executed, and which in express terms states, that it is made in accordance with such agreement, but, upon examination, is found to depart from the terms of such agreement in several important particulars; instead of creating a general lien in favor of Wormley, Ussery and the creditors of the firm, the deed classifies the debts, making part of them, including the bank debt,, preferred, or first to be satisfied, and those of Wormley and Ussery of the second class for payment.
The amount of the debt due by the firm to the bank, was not ascertained, and, by express terms, made to depend upon an after settlement.
At the time Saffarans assumed to pay the bank debt, no settlement had been made, and consequently the ascertainment of the sum to be paid was confided to him, which was in its nature a. trust or agency imposing upon him. a duty to see that the sum claimed by the bank was not more than it was legally entitled to-ft was certainly not intended that he should silently submit to-pay any amount the bank might choose to present for payment, and particularly so after he had departed from the terms of the agreement of May, 1870, by having inserted in the deed of trust a clause exempting the land from the payment of more than $17,000, because the firm debt being placed in the deed as of the-first class, might, by an enhanced charge upon the trust fund, leave the debt of Wormley and Ussery unsatisfied.
Under the state of case thus presented we must consider Saffarans as having imposed upon himself a trust and duty to see that in the settlement of the bank debt, no greater amount was charged than the firm was legally bound to pay; it was, therefore, the duty of Saffarans to interpose every lawful defense which the firm, had no such undertaking by Saffarans been made, might have interposed. Having failed to do which, Wormley and TJssery, when sued by the hank, in an action which put in issue the amount which they owed, and which, when reduced to judgment, was to become a charge upon the trust fund, were directly interested in reducing the amount to be recovered to the sum actually due; not alone on this account hut also because they were personally charged with the payment of any balance which might remain unpaid after exhausting the trust funds; such being the case, they had not divested themselves of all personal interest in the payment of the debt.
When summoned to answer, they say, that part of the sum charged against them by the hank is for usurious interest.
Counsel deny the right of Wormley and Ussery to interpose this defense, because it is personal, and they having parted with all personal interest in the payment of the debt, by contracting with Saffarans to pay it, have lost all right to interpose the defense of usury, and that Saffarans has no right to do so, because, having for an adequate consideration undertaken to pay an ascertained debt, lie is estopped by his contract from denying the validity of the debt, or, of interposing a defense which is personal to the debtor. Thus it will be seen that the defense is technical and rests upon the ground that the debtor has parted with his personal interest in making payment, and has thereby lost his right to interpose the defense; but when such is not the case, when by the terms of the contract there are rights and interests reserved, which can only be protected by the party who has contracted to pay the debt, or by the debtor himself, a very different question is presented.
These defendants are brought before the court; Saffarans declines to interpose the defense; Wormley and Usseiy do interpose it; they are charged as parties in interest by the complainant, in the language of the complaint: “For reason that defendants Wormley and Ussery, as members of the firm of Wormley, Pickett & Co., were, and still are individually liable, and responsible for the payment of the first-class debts.”
The bill sets out these debts, of which the bank debt is one. The bank alleges that the debt is unsettled, that the sum due is to be ascertained, and pray a sale of the land conveyed in trust, for its payment; under the same contract by which Saffarans was to take the lands as a consideration for paying the debt to the bank, and to secure the payment of it by a mortgage upon the land, it was stipulated that the debts of these defendants should bo paid. The equitable and legal rights contracted for, and reserved by these defendants, carry with them by necessary implication, the rights to avail themselves of all the legal remedies to which, by law, they were entitled, to carry them into effect.
Without questioning the correctness of the decisions cited by counsel, which deny to the debtor the right to interpose the personal defense of usury, when the debtor has parted with his interest in the debt, making a contract for its payment in ordinary cases, we think that the facts before us, in this case, make it clearly an exception. In order to the better understanding of which we should’'keep in mind the fact that this is not a suit to recover money paid upon a usurious contract, nor to enjoin the payment of money, for the payment of which a judgment has been rendered; but it is interposed as a defense against the recovery of usurious interest; making a much stronger case than many in which the plea has been sustained.
To several of which we will refer: In Tiffany v. Boatman’s Institution, 18 Wallace, 375. One Darby borrowed from the institution at usurious interest, a sum of money, became involved in debt, and upon petition was adjudged a bankrupt. Tiffany was appointed trustee, and filed a bill against the Boatman’s Institute to recover money which Darby had paid upon such usurious transaction. The complaint was for more than the usurious interest paid.
Upon this state of case Mr. 'Justice Davis, who delivered the opinion of the court, said: “ If more than legal interest is taken, and suit is brought to enforce the contract, and the plea of usury is interposed, the whole interest is forfeited. * * * The debtor is not released from his obligation to pay, but the interest is diverted from the parties to school purposes. If, however, the borrower suffers judgment to go against him without pleading usury, or if, without suit, he pays the usurious interest, he cannot, either at law or in equity, maintain an action for its repayment. * * * But it does not follow, in cases of usury, if the contract be executed, that a Court of Chancery on application of the debtor, will assist him in recovering back the principal and interest; to do this would be to aid one party to an illegal transaction, and deny redress to another. Courts of Equity have a discretion on this subject, and have prescribed the terms on which their powers can be brought into activity ; they will give no relief to the borrower if the contract is executory, except on the condition that he pay to the lender the money lent with legal interest; nor, if the contract be executed, will they enable him to recover more than the excess he has paid over the legal interest.”
If such is the rule, when the contract of usury is executed by the payment of money usuriously exacted, with still greater force it should be applied where nothing has been paid, and when the debtor is called upon to answer in a Court of Equity, what amount he should be required to pay, and to what extent it should become a charge upon the trust fund. ,
The debtors do not, in this instance, seek to recover back money which has been paid, nor do they ask to have returned to them the money which they borrowed; nor the legal interest which has accrued, but only that the debt be purged of the ■ usurious interest charged against them; such being the case, it comes within the rule recognized by Judge Davis, when he says: “ Courts of Equity have a discretion on the subject, and have prescribed the terms on which the power can.be brought into activity. ”
Why, in good conscience, should the rule not be applied in this case ? That these defendants contracted with Saffarans to pay this debt, does not make it the less usurious, or iniquitous on that account. The bank is not asked to abate one cent of the principal or legal interest; it gets it all, and under the state of the pleadings has its debt preferred for payment, over the debts of these defendants.
Limited in its extent and purpose, as we have indicated, we think the defense of usury properly interposed. In thus holding, we do but affirm our previous decision, Ruddell et al. v. Ambler, 18 Ark., 369.
It is contended by counsel that conceding the defense of usury to be good, if interposed within two years, as such was not the case, the action, or, more properly, the defense, was barred by limitation. Sec. 5198, Revised Statutes of the United States, provides that “ The knowingly receiving, reserving or charging a rate of interest greater than that fixed by the laws of the State or Territory in which the bank is located, shall be held and adjudged a forfeiture of the interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon,” and, if a greater amount of interest has been paid than is lawful, twice the amount so paid may be recovered back, “ Provided, suit bo brought within two years from the time the usurious transaction occurred.”
It will be seen that the first clause gives the right to defend against the recovery of interest; the second the right to sue for and recover money which has been paid on such usurious contract, provided, etc.
We think the limitation relates, exclusively, to actions brought to recover money paid, and not to a defense against a recovery; because, if intended to apply to the defense against usury, it would give to the party holding a usurious contract the advantage of cutting off the defense by postponing his suit until after the two years had expired.
If we do not mistake the position of counsel for the bank, they question the right of the State Courts to determine this question of usury, because the defense is set up under an act of Congress, to a violation of which a penalty is imposed, and of which the Courts of the United States, alone, have jurisdiction.
We do not understand the decisions referred to as sustaining this position; they do hold, however, that when suit is brought in a State Court, to avoid the usurious interest prohibited by the Act of Congress, that the Act of Congress, and not the Statutes of the State in which the suit is brought, must be interposed.
Thus, in the case of The First National Bank of White Hall v. Lamb et al., 57 Barbour, N. Y., 429; it was held that the Statutes of New York, against usury, do not apply to loans made by a national bank. See, also, 64 Penn., 563. The jurisdiction of the State Courts to try the case is not questioned in either of these, or any other case.
There are also credits claimed, growing out of the sale 'of the warehouse property, and of taxes, to be taken into account in the settlement of the bank debt, which we must consider in connection with the claim to credits and abatement of the debt on account of usury in order to a proper understanding of the amount, actually due.
It seems that the firm were the owners of a warehouse in Memphis, Tennessee, and to secure the payment of the notes executed by Wormley, Pickett & Co., amounting, in the aggregate, as wre have seen, to the sum of $19,354.80, they executed to the bank a mortgage on the 'warehouse property, which they had previously encumbered by a conveyance in trust to Phillips, to secure the payment of a debt due Lewis, Daniels & Co. Eliza Proudfit had, also, at the time levied an attachment upon Pickett’s interest in the property; in addition to this, a city tax had been levied upon it, the validity of which was then being litigated. Phillips, under the deed of trust to him, sold the warehouse property, which was bought by White, for the bank, at $18,000, out of which Lewis, Daniels & Co.’s debt was paid/ On the same day the sale was made, an agreement was entered into between Wormley, Pickett & Co. and the bank, by its agent, Wm. II. Cherry, President, as follows: First — The $18,000 by White, for the property, is appropriated as follows: $176.75 commission'to trustees, and for stamps; $1910.19 to pay Lewis, Daniels & Co.’s debt; $8,113.06 to the extinguishment of the Pickett and Wormley, Joy & Co. debt due the bank ; and $7,800 are reserved to pay off attachment levied on Pickett’s interest in the warehouse property, at the suit of Eliza Proudfit, then pending in the Supreme Court, and if said amount of $7,800, or any part of it, shall not be needed to pay off said attachment or judgment in order to release the property of the same, then the bank agrees to apply said sum, or whatever amount might not be needed for that purpose, to tho satisfaction of so much of the notes of Wormley, Pickett & Co.; and it was further agreed that if the Nicholson pavement tax should be held invalid, then the sum needed for the payment of the same should also be credited on the Wormley, Pickett & Co. notes.
Such was the agreement of the parties, with regard to further •credits out of the sum of $7,800, reserved as aforesaid. About the credit of $8,100.06, there is no contest — leaving the question as to how much of the $7,800 should be applied to the payment ■of these debts.
The bank contends that at the time of its purchase of the warehouse property, it was encumbered with $2473 taxes, which it was required to pay, and this sum should be deducted from its bid of $18,000.
It will be seen that in the agreement between the parties, after tlie property was bid off, no deduction or reservation was to be made for the payment of back taxes ; in the absence of which, the $7800, of the sum for which the warehouse property was .sold, and withheld to meet certain contingent liabilities, should be applied according to the terms of the agreement, after paying which, the balance to be applied as a credit upon the notes due to the bank.
The bank as purchaser at the trust sale, took the property •cum cmere, got just such a title as the trustee had, with all its •encumbraces. A trustee only sells such title as he received from his grantor, and can convey none greater. His rights are derived from the instrument creating the trust. 2d Washburn Real Pro., 482 ; Balis v. Perry, 51 Mo., 449.
If a trustee takes property encumbered with prior liabilities, he sells the property with these resting upon it, unless removed before sale.
It- is the English Chancery Practice, when a sale of property is decreed to be made, to require that prior encumbrances be paid, so as to expose the property to an unencumbered sale, at its full value. The same practice has been adopted in several of the states, and perhaps in all of them may be required, in the exercise of the sound discretion of a court of Chancery.
Where property is levied upon and sold under execution, the rule caiw.it emptor applies, the purchaser takes the property, subject to all encumbrances, gets only such title1 as the defendant in execution had. Allen v. McGaughey, 31 Ark., 252.
A junior mortgagee may sell subject to the payment of a prior encumbrance. Willard’s Equity, 448.
In Scott et al. v. Shy, 53 Mo., 478, it was held, that taxes are a legal charge upon the estate, which might, and should have been paid before the sale ; but as this was not done, the purchaser at the trust sale took the land subject to this encumbrance.
When the warehouse property was sold, it was encumbered with unpaid taxes, and as we presume, was purchased for less on that account.
It follows therefore, that there is no charge upon the sum bid for the property on account’of taxes then due. The fact that in the mortgage given by Wormley, Pickett & Co. to the bank, the firm did agree to pay taxes, imposes no obligation upon them under this sale, because not made under their deed, but under one containing no such covenants.
It is next contended for the bank that the sum of $1984, reserved to pay Nicholson pavement tax, should not be applied as a credit on the notes given by Wormley, Pickett & Co. to the bank, but upon what ground we are at a loss to conceive; the pavement tax was held by the Supreme Court of Tennessee to be illegal, not a proper charge upon the lot, and it was expressly agreed that if 'held to be invalid, Wormley, Pickett & Co. were to have a credit for the amount upon their notes.
But for these contingent liabilities the whole amount for which the warehouse property was sold, would have been credited upon the notes; the only contingency that did arise was the payment-of the attachment suit for $2200, which taken from the $7800, leaves a balance of $5600 to the credit of Wormley, Pickett & Go., making a total credit of $13,713.06.
In addition to tliis it is contended for Wormley and Ussery, that because of the usurious interest charged, they are not bound to pay any interest whatever, under the statute which declares such to be the penalty for a violation of its provisions. Such-would certainly have been the case if the defense had been intei*posed in a suit at law; but this suit is brought in equity, to. subject the lands conveyed in trust to the payment of these debts; and although it is true, that the bank is required to establish their debt as a basis of relief in equity, the plea of usury is interposed by Wormley and Ussery in the cross-bill; they appeal to the Court of Chancery to do them justice, to relieve them from the imposition of an usurious and unjust charge of interest and a penalty for violating the statute, also, all the legal interest.
It must be remembered that in this appeal to the court for equitable relief, they invoke another rule, which requires of them to do justice to their opponents. Thus in the case of Parsons v. Barclay, 23 Ala., 537, it was held that if the borrower comes into equity for relief against an usurious contract, he will be compelled to pay the amount of principal and legal interest thereon, and if the debt is secured by mortgage, the mortgage ; will stand as security for the principal and legal trust. 22 Wallace, 127; 18 Ark., 368; 18 Wallace, 385.
That usurious interest was charged from time to time and added to the principal debt whereby the transaction became usurious, we have held to be sufficiently established, the excess of interest should be abated, and the firm of Wormley, Pickett & Co. charged with balance of principal (if any), and 6 per cent, interest thereon, which sum is a proper charge upon the assets of Wormley, Pickett & Co., placed in the hands of Safiarans, and a charge upon the trust fund created for its payment according to the equities of the parties under the deed of trust, so reformed as to appropriate the assets, including the lauds, according to the contract of May, 1870, without reference to the limitation of $17,000 upon the land.
As between the parties, it appears under the settlement of May, 1870, thát independent of the sum of $10,000, assumed by Saffarans to be paid to Wormley and Ussery, Pickett was to give his note to Wormley for $6100, and also an old claim due Pickett, Wormley & Co. for $1000. For the payment of this sum Pickett was to become personally responsible ; no provision was made for their payment by mortgage or otherwise. It. is contended for Wormley that Safiarans is only a nominal party acting for and in the interest of Pickett, who in fact is the real owner of the assets of the firm, covered under transactions made at his instance and procurement, and that the lands purchased by Saffarans, and by him conveyed to Mrs. Pickett and her daughter, arc in fact the property of Pickett, and should be held responsible for his debt to "Wormley. .
If these allegations were sustained in proof, such might be the ■equitable rights of Wormley as to entitle him to satisfaction out of the land. There are evidently many facts and circumstances •connected with this transaction which conduce to show that the lands were bought for the benefit of Pickett and his family; he was the principal book-keeper of the firm of which Wormley and Ussery were members, charged with the liquidation of the firm affairs; he procured Saffarans, who was without capital, to bid for the Nodina Plantation, and urged Wormley and Ussery, who were present, not to bid against him. At the time of the settlement in May, 1870, he prepared and presented an exhibit of the debts of the firm upon which the settlement was made; after the assets were turned over .to Saffarans, he was the active agent and counsellor in the collection and disbursements of the assets. At the time the deed of trust Avas executed, he alone of the firm was present, participated in procuring the deed Avhich professed to be made under and in accordance with the agreement of May, 1870, but Avhich departed from it by making certain parties preferred creditors, and postponing those of Wormley and Ussery until such preferred debts, including that of the bank, Avere satisfied out of the trust fund, and by limiting-the extent of the trust liabilities on the land to $17,000; nine days after which Saffarans conveyed the same land to Mrs. Pickett and her daughter, making the consideration of the purchase on their part an ássumpsit to carry out and perform the obligations assumed by Saffarans.
These are all circumstances Avhich tend to show that Pickett was the real party in interest; but on the other hand, Ave have sworn statements of both Pickett and Saffarans that the purchase was made by Saffarans for himself, and that the first payment of $10,000 was funds procured by him.
This evidence stands uncontradicted by any direct evidence, and is entitled to a controlling influence in the determination of the question of purchase.
In addition to this, Wormley and Ussery are estopped from questioning Saffarans’ purchase by their subsequent contract with him, in which he is recognized as the legal owner of the property.
So far as the note of $6,100, and the $1,000 note, are concerned, Wormley must look to Pickett alone for settlement.
It is shown that Wormley has taken up and paid several small amounts which Saffarans had assumed to pay, as follows, one to Warren for $262.92, cost $39.39; to. Hill and Lowe, $50; to Cole, $9.40; and-to F. M. Harden part- of original purchase of Nodina Place, $708.12. These were all proper charges against the firm, for the payment of which its assets were chargeable. Wormley having paid them will be subrogated to all the rights of these creditors.
It is claimed for Ussery that, in addition to the sum of $5,000 to be secured by a mortgage on the Nodina Place, there was due to him the sum of $3,000, for which a note by Pickett was to be given, secured satisfactorily to Thomas R. Smith; this debt was not to be secured by a lien upon the land or partnership assets conveyed to Saffarans. No provisions for its payment were made other than that approved by Smith. This stipulation, if not-complied with, might have been insisted upon by Ussery in avoidance of the contract of May, 1870, but created no lien upon the assets conveyed to Saffarans, or individual liability upon him.
In addition to these sums Ussery claims to have paid $14,000 of the firm debts which Saffarans contracted to pay, and for the payment of which a lien was given on the Nodina Place, which, if sustained by proof, entitle him to be subrogated to the rights of such creditor.
Counsel for Mrs. Pickett and her daughter claim that they are innocent purchasers, who have at all times been willing to comply with the terms of the trust deed, and, as far as practicable, have done so, and are now ready under the directions of the court to comply with its directions.
There is no view in which their claim to the property can be presented which entitles them to protection as innocent purchasers for a valuable consideration paid; at most, Saffarans did but turn over his liabilities and purchase to them with all the responsibilities, which, by the terms of his undertaking, rested' upon him.
As between Mrs. Pickett and her daughter, and the beneficiaries in the trust deed, the property acquired by them from Saffarans under his contract of May, 1870, with all the liabilities attached to it, if complied with, may stand; they have held the lands, received the rents and profits, and may continue to do so subject to the liabilities incurred under the deed of trust, so-modified as to conform to the contract of May, 1870.
Under this view of the case we think the decree of the Chancery Court of Mississippi County should be reversed and set aside and a decree rendered in accordance with the equities of the parties as already indicated.
- Let the deed of trust executed by Saffarans which purports to be made in compliance with the contract of May, 1870, be so-reformed as to make it conform to said contract; so far as may be necessary to fix a liability upon Saffarans, or Mrs. Pickett and her daughter as his successors in interest, to pay the debts.
'Wormley and Ussery have attempted, by their pleadings, to go-behind their settlement and transfer of the assets of the firm toSaffarans, on the 28th of May, 1870, and bring him to account for the amount of the assets of the firm collected by him, and the manner in which he has appropriated them. And a large-amount of testimony has been taken to establish these allegations ; but from the view which we take of the rights and liabilities of the parties, no such issue can be raised, because, the entire outstanding debts' of the firm were absolutely transferred to Saffarans, as well as the land. They were to be his, unincumbered, only that the lands were charged by mortgage with the payment of the debts which the firm owed, and the $10,000 to Wormley and Ussery. It was a matter of no concern to-them, whether Saffarans collected the debts, or not, whether he paid the debts of the firm with the money collected out of the •assetspurchased, or out of other means.
It was a sufficient performance of his undertaking, that the debts of the firm were paid, and the $10,000 to Wormley and Ussery; such payments were not to lessen the liabilities of the lands, if necessary to be sold for that purpose. Every debt which the firm owed, paid by him, to that extent removed the lien on the land, and could not, because taken up, become a charge upon it. Mrs. Pickett and her daughter, who assumed the liabilities of Saffarans, and took the Nodina Place thus encumbered, became bound to discharge and pay these debts, as fully and to the same extent as Saffarans was, and could no more charge the trust fund with repayment than Saffarans could have done.
The proposition of Mrs. Pickett, to subrogate her to the rights of the creditors, whose debts she had paid, cannot be entertained; if so, she or Saffarans could have at once taken up all of the debts of the firm, and charged them as debts, for Avhich they Avere entitled to satisfaction, out of the lands which had been encumbered for their payment, and Avhich they had paid as a.part consideration for the land itself. According to the contract of Saffarans, he Avas bound to take up and extinguish these debts; Avhen taken up, they became extinguished, and ceased to be a charge upon the lands; not. so, however, Avhen a third party, who Avas under an obligation to pay, does so, and takes the debt; as to Saffarans, it is still a debt, one Avhich he undertook to pay, and having failed to do so, it became a charge upon the land for payment.
Mrs. Pickett could occupy no better position; she has no right to charge the trust estate with the debts which she bound herself, as the representative of Saffarans, to pay.
Having disposed of this branch of the case, the only question to be settled is, the true amount of the debt of the firm, and $10,000 due the defendants Wormley and Ussery. In determining which, the most material matter to be settled is the amount of usurious interest charged by the bank, and constituting in part the amount claimed by it for the payment of which a lien was created upon the Nodina tract.
And because that, as well as the amount due to Wormley and Ussery, should be ascertained and computed. It is ordered that the clerk and master of this court, from the records, pleadings, evidence and exhibits, do make an estimate and calculation of the amount of interest charged, exceeding 6 per cent., upon the loans and advancements made by the bank to the firm, and what amount is now actually due to the bank, purged of such usurious interest, and after allowing all the credits to which the firm is entitled according to the evidence, calculating interest on the sum found to be due the bank, purged of usurious interest, from the time it became due, at 6 per cent, interest, until the first payment, then apply the payment to the extinguishment of the interest, and the excess, if any, to the payment of the principal debt, and so with regard to each payment. In regard to the time when the $7800, reserved to pay contingent liabilities, is to be credited, the amount will be considered as a payment less $2200 paid on the Proudfit claim.
The debts due to Wormley and Ussery will be calculated separately, allowing each of them interest on their debts of $5000 from due. That of Wormley until the present time, and Ussery;s up to the time he was paid $1000 from which that sum is to -be deducted, and the balance with interest until this date.
The Master will also allow to each of them interest on the debts of the firm, paid by them, which were a charge upon the trust fund, at the rate of 6 per cent., and report the amount due them, and the amount of interest thereon, and if upon reference to the records, pleadings, evidence and exhibits it should be found that the evidence is not sufficient to enable him to report fully, he will report the particular facts, not established by evidence, to the court; otherwise, report to this court the estimates made by him, at his earliest convenience. | [
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English, Ch. J.:
On the 19th of August, 1876, Charles P. Frits filed a bill on the Chancery side of the Circuit Cou'rt of Madison County, against Jane Frits, to foreclose a mortgage upon lands.
The substance of the material allegations of the bill is, that on the 5th of August, 1869, the defendant being justly indebted to plaintiff, and for a valuable consideration, executed and delivered to him, a note of that date, by which she promised, for value received, to pay him six years after date §200, with interest from the 5th of August, 1872, payable yearly in advance, both principal and interest to become due on default of the payment of interest at any time due th'ereon. A copy of the note is exhibited.
That on the same day, to secure the payment of said note, she executed to him a mortgage conveying all the right, title, claim and interest which she had in and to certain lands which had been devised to her by her deceased husband, for and during the time she remained a widow, etc., and which are described in the bill and mortgage made an exhibit, as follows: the north half of the northeast quarter of section one, township fifteen north, range twenty-eight west, 12.54 acres off of the west side of the northwest quarter of the northwest quarter of section six, township fifteen north, range twenty-seven west; 9.96 acres off of the west side of the southwest quarter of the southwest quarter of section thirty-one, township sixteen north, range twenty-seven west. And the south half of the northeast quarter of section one, township fifteen north, range twenty-seven west.
All in said County of Madison, and known as the lands formerly owned by John Frits, deceased, and willed by him to Jane Frits to be held by her during the time she remained his widow.
The bill further alleges that but $30.62J (which was credited as paid in corn 5th November, 1870), had been paid upon the note secured by the mortgage, and that defendant remained a widow.
Prayer for foreclosure and sale, etc.
The defendant filed the following answer to the bill:
“ Defendant reserving, etc., for answer, etc., saith: that on the 5th day of August, 1869, she was not justly indebted to said plaintiff, and that she cannot read or write, and that if she, on the 5th of August, 1869, executed a note to the said plaintiff for two hundred dollars, she did not know that it was a n'ote, and that she has no knowledge or remembrance of executing but one paper, and that she was informed that that was a mortgage.
“This defendant further answering saith, that she is the widow of John Frits, Sr., deceased, and that he, the said John Frits, Sr., made and executed the will recited in said plaintiff’s complaint.
“ Defendant further saith, that the said plaintiff did not advance to her two hundred dollars upon condition that she would secure the same by mortgage on lands specified in plaintiff’s complaint.
“ Defendant further saith, that she was residing upon the lands described in said mortgage, on the 5th day of August, 1869, and was then, and still is, the widow of said deceased, and the head-of a family, and claimed and held the same as and for a homestead (except the south half of the northeast quarter of section one, township fifteen north, range twenty-seven), and now resides upon the said lands so mortgaged to said plaintiff, and claims and holds the same as and for a homestead.
“All which matters and things she is ready and willing to aver,, maintain and prove, etc., etc.”
Plaintiff demurred to the answer on the following grounds:
“First — Said answer does not contain facts which constitute a. defense to plaintiff’s action.
“Second — Said answer admits plaintiff’s cause of action and does not set up any valid defense.
“Ihird — Defendant admits that she executed a good and valid mortgage to'plaintiff, for a valuable consideration, and she cannot thereafter claim and hold said lands as a homestead.
“Fourth — The defendant shows by her answer (admitting the allegations in the complaint), that she was not the legal owner of said real estate, but she only held a conditional estate, which she had accepted in lieu of dower, and that she deeded away for her own individual debt, and she cannot hold a homestead in such estate after such conveyance.
“Fifth — The claim of homestead can only be set up against incumbrances created by law, such as judgment liens, etc., and she cannot set up such right against a valid deed of her own.” The court sustained the demurrer to the answer, and defendant electing to stand on her answer, a final decree was rendered against her for the debt, foreclosing the mortgage, and directing the lands to be sold by a commissioner, ’etc., and she appealed.
I. In Fenter et al. v. Obaugh et al., 17 Ark., 78, it was held that when a bond was misread, or its character misrepresented to an unlettered man, who was thereby induced to sign it, he was not bound by it.
No doubt appellant is illiterate, for besides the averment in the answer that she could neither read nor write, the note and mortgage, as exhibited with the bill, purport to have been executed by her by making her mark.
She was, however, aided by her solicitor in preparing her answer, and it is not alleged that the note was misread or misrepresented to her. The substance of so much of the answer as relates to the note is, that if she executed a note to plaintiff, on the 5th of August, 1869, for $200, she did not know that it was a note, and she had no knowledge or remembrance of executing’ but one paper, and that she was informed that it was a mortgage.
These allegations were not sufficient to make a case of fraud or imposition in obtaining the execution of the note within the rule as declared in Fenter et al. v. Obaugh et al.; nor, though the answer was sworn to, does it sufficiently deny the execution of the note to require appellee tobe put upon proof of its execution.
The answer, in effect, admits the execution of the' mortgage, and the making of the note is recited in the mortgage, and the body of it copied.
The court did not err in sustaining the demurrer to so much of the answer as relates to the execution of the note.
II. In Greenwood & Sons v. Maddox & Toms, 27 Ark., 657, this court decided, in effect, that under the exemption provisions of the Constitution of 1868, a married ’man or head of a family,, could not incumber the homestead by mortgage (except for taxes,, laborer’s and mechanics’ liens, purchase money, etc.), and directly so decided in Harbison v. Vaughan, not reported, but noted among the unreported cases on p. 15, 31 Ark.
Appellant in her answer states she was residing on the lands-described in the mortgage at the time of its execution, and continued to reside thereon, that she was a widow and the head of a family, etc., and claimed the lands as a homestead, except one of the tracts, which she designates, and which is not adjacent to the other tracts. The lands, as described in the bill and mortgage, Avhich she claims as a homestead, are contiguous, and contain less than 160 acres.
Counsel for appellee submits that the answer is defective in not alleging that appellant had scheduled the Lands claimed by her as a homestead, citing Norris et al. v. Kidd, 28 Ark., 486.
That case is unlike the one now before us. In that the claimant .permitted the land to be sold under an execution issued upon a judgment, without scheduling the property as required by the statute (Gantt’s Dig., sec. 263, etc.), and afterwards the homestead claim was set up 'as a defense to an action of ejectment by the purchaser, and was held to be too late.
Here the homestead claim was properly interposed in the answer to the bill to foreclose the mortgage, and condemn the lands to be sold to satisfy the debt.
The court erred in sustaining the demurrer to so much of the answer as sets up the homestead claim.
Admitting the answer to be true, as the demurrer did, appellee was only entitled to a decree of foreclosure and sale of the tract not claimed as part of the homestead.
So much of the decree as is for the debt and for foreclosure •and sale of the tract not claimed as a part of the homestead is affirmed, and the remainder of the decree reversed, at the costs •of appellee, and the cause remanded for further proceedings. | [
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English, Ch. J.:
Daniel Lester, Jackson Taylor and Frank Holmes were jointly indicted in the Circuit Court of Jefferson County for grand larceny. They were charged with stealing, 11th July, 1877, one pair of black pants of the value of $5, one pair of grey pants of the value of $5, and one pair of brown corded pants of the value of $5, of the goods and chattels of Gabe Meyer.
They severed, Lester was tried on the plea of not guilty, convicted, sentenced to the Penitentiary for one year, and brought error.
The evidence introduced on the trial, questions of law reserved, etc., are set out in a bill of exceptions taken .upon the overruling of a motion for a new trial.
Robert Lee, the first witness introduced by the State, testified in substance that he lived at Rob Roy, on Gabe Meyer’s place. That one Sunday night, in June, 1877, after he had returned from church, Jackson Taylor came to his house, and wanted him to go to Gabe Meyer’s store at Rob Roy. He told him he would not go, and Taylor went away. He waited about an hour, and then he went down to the store, where he found defendant Lester standing by the well, about forty yards from the store, holding four shot guns in his arms, and by his side was a sack of clothing. There was a brown suit and one black suit, and a grey suit of clothes. One suit was kerseymere, worth $15; one was worth $18. There was also a linen suit, one pair of brown jeans pants, and one pair of black cloth pants, worth $5. These were goods that witness had seen in Gabe Meyer’s store, and knew they were his goods. There was a light burning in the store at the back window, and Jackson Taylor and Frank Holmes were in the store. They asked Lester if he did not want more goods, and Lester said he had all he could carry off. Lester wanted witness to take a suit of clothes, but he refused. He stayed there about half an hour. Lester showed him a piece of iron bent up at the end, and said that it was what they pried open the window with. Witness left, and started for home, but Lester overtook him, and had the sack of clothes with him. Witness saw the clothes at his house next morning. About three or four weeks after this, witness was arrested on a charge of breaking into the store. He had on a pair of pants that he got from Frank Holmes. He then told Thad. Phillips about Lester, Taylor and Holmes breaking into the store. Never told anybody of it until after he was charged with it. Bought the pants of Holmes; thought they were stolen with the rest, but Holmes said he bought them of Eosenbury, a clerk in the store.
Thad. Phillips, clerk for Meyer, testified that the store was broken open on a Sunday night in June, 1877; found next morning that the'window had been broken open, etc. Hid not miss any goods at the time. Some time after heard that Lester, Taylor and Plolmes had goods belonging to the store. Found a pair of pants on witness Lee, and charged him with breaking into the the store, and then he told on the parties indicted, and they were arrested. “When I had Lester under arrest (witness said) taking him over to the justice’s office, he said he Avas engaged in taking the goods, and Avas willing to pay for taking all he had. We found none of the goods, said to have been stolen, on Lester, or on his premises. We found one pair of pants on Bob Lee, two pairs of pants on Holmes, and a shirt on Taylor; thought they were the property of Meyer; they were like goods in his store. Lester did not say what things he took; did not say he took any of the things described in the indictment; he merely said he and the others took the goods.”
“Defendant offered to prove by this witness that at the time the alleged confession was made, he was in such a state of intoxication as to be irresponsible for anything he said, and not in his right mind.”
Objected to by the State, and objection sustained by the court.
Joseph Robinson, a witness for defendant, after testifying as to other matters not material to be stated, said he saAv Lester, Taylor and Holmes on the day of their arrest.
For defense: “What Avas the condition of Lester, as to being intoxicated, and being in a rational condition of mind Avhen under arrest, and in charge of Thad. Phillips ?”
Objected to on the part of the State, and objection sustained by the court.
First — The refusal of the court to permit plaintiff in error to prove that he Avas intoxicated when he made the confession proven by Avitness Thad. Phillips, AA'as assigned as cause for a new trial.
In Rex v. Spilsburg, Ferrall et al., 7 Carrington & Payne, 187, the prisoners AA'ere indicted for the wilfull murder of Joseph Johnson. It appeared that the prisoner Ferrall had made a statement to a constable, in Avhose custody he was, but tnat he was drunk at the time, and it Avas imputed that the constable had given him liquor to cause him to do so. Ludlow, Serjt., objected that Avhat a prisoner said under snch circumstances was not receivable in evidence.
Coleridge, J.: “I am of opinion that a statement being made by a prisoner Avhen he Avas drunk is not therefore inadmissible as evidence against him; and that, to render a confession inadmissible, it must either be obtained by hope or fear. This is matter of observation for me, upon the weight that ought to-attach to this statement when it is considered by the jury.”
The statement was received. See also 1 Greenleaf Ev., sec. 229.
In Jefferds v. The People, 5 Parker’s Crim. Rep., 547, the Recorder said : “I have been asked to say to you (the jury) substantially, that confessions, made by a man when drunk, are not entitled to be received. That, in my opinion, is not good law. I have never, in all my reading, found a case which would countenance the doctrine that a confession, made when a man was drunk, was not entitled to be received as evidence. * * * *' Where a man voluntarily, .whether sober or drunk, makes a confession or admission, etc., the confession is entitled to be received in evidence, and the only question for the jury is, as to the weight to be given to it, and that is more or less affected by the state of the mind of the party making it, and the probability of the truth of the confession.”
A man drunk may, and no doubt often does, let out the truth, but he make statements which are the mere vageries of a disordered mind.
If the plaintiff in error was intoxicated at the time he made the confession to witness Phillips, though the confession was admissible in evidence, the court should have permitted him to-prove his condition at the time, which the jury might have taken into consideration in determining what weight they would attach to his confession.
Second — The court, at the instance of the State, instructed the j^7:
I. “If you believe from the evidence that the defendant,. Daniel Lester, did either by himself or in connection with others,, steal, take and carry away the property of Gabe Meyer of the-value of two dollars, as alleged in the indictment, they will find him guilty of grand larceny, and assess his punishment in the State Penitentiary for a term of not less than one nor more than five years.
II. “The admissions of the defendant are entitled to the same •weight as other evidence.”
The Act approved 23d January, 1875 (Acts of 1874-5, p. 112), provides that: “Whoever shall be guilty of larceny, when the value of the property stolen exceeds the sum of two dollars, upon conviction thereof, shall be punished by imprisonment in the Penitentiary not less than one nor more than five years, and when .the value of the property stolen does not exceed the sum of two dollars, by imprisonment in the county jail not more than one year, and by fine not exceeding three hundred dollars.”
The court below no doubt very well understood the difference between grand and petit larceny, under this statute, but inadvertently used the words “of the value of two dollars,” omitting the word, exceeding.
The admissions or confessions of a party are entitled to more or less weight accordirig to the circumstances under which they are made. The rule on the subject is to be found in any text book on evidence.
Had the court below permitted plaintiff in error to prove that he wTas intoxicated when he made the confession to Phillips, it might or might not have detracted from its weight with the jury.
Third — The court gave all of the instructions moved for plaintiff in error, but the fifth, which was as follows:
“The property alleged to have been stolen must be clearly identified as the property described in the indictment; that it was the property of Gabe Meyer, and was stolen by the defendant, and the property must be traced to the possession of the defendant, and.unless the jury find these facts proven clearly, beyond a reasonable doubt, they must acquit the defendant.”
If plaintiff in error was present, aiding and abetting, when Taylor and Holmes entered the store, he was guilty of the larceny, whether any of the stolen goods were traced to his possession or not.
The court properly refused to .give the instruction as framed..
"Whether the jury could have convicted plaintiff error in upon the testimony of Robert Lee alone, who seems to have rested under suspicion of being connected -with the theft, we do not know. No doubt the confession of plaintiff, as proven by Thad. Phillips, had weight with the jury in making up their verdict.. How far the weight of the confession might have been lessened,, in the minds of the jurors, had it been proven that he was more or less drunk when the confession was made, is matter of conjecture. We cannot undertake to affirm that the prisoner was. not prejudiced by the exclusion of the proposed evidence as to his condition at the time the confession was made. We therefore think it better and safer to reverse the judgment and remand the cause for a new trial. ' | [
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DAVID NewberN, Justice.
This is a medical malpractice case. Dorothy L. Howard sued Northwest Arkansas Surgical Clinic, P.A. (“the Clinic”), Robert Petrino, M.D., and Barbara A. Sandefur, M.D., seeking damages because a portion of a needle was allegedly left in her breast after an excisional biopsy. The Howards’ complaint alleged that Ms. Howard consulted Dr. Petrino and the Clinic after a mammogram revealed abnormal calcifications in her left breast. Dr. Sandefur, a radiologist, inserted a Kopan needle in Ms. Howard’s breast to “localize” the tissue to be excised. Dr. Petrino excised the tissue which was sent to Dr. Sandefur for examination. Dr. Sandefur noted in her radiology report that, while the wire portion of the needle appeared in the tissue, the barbed tip of the needle was “not seen.” The tip of the needle, consisting of a wire one centimeter long had remained in Ms. Howard’s body. It was later removed surgically.
It was alleged that Ms. Howard suffered damages including pain and suffering, medical expenses from the subsequent surgery to remove the foreign object from her body, disfigurement, and loss of earnings. The claim of her husband, Johny M. Howard was for loss of consortium. Summary judgment was entered in favor of Dr. Petrino and the Clinic on the basis of the two-year medical malpractice statute of limitations, Ark. Code Ann. § 16-114-203 (Supp. 1995), although the Howards contended the statute was tolled due to fraudulent concealment of malpractice. Summary judgment was entered in favor of Dr. Sandefur on the basis of the same statute of limitations as well as on the ground that, as stated in the Trial Court’s order, “there are no genuine issues of material fact.” We affirm the judgment in favor of Dr. Sandefur and reverse the judgment in favor of Dr. Petrino and the Northwest Arkansas Surgical Clinic.
The Howards state three points of appeal. They contend the statute of limitations is unconstitutional in that it deprives them of property without due process of law contrary to the Fourteenth Amendment. We decline to consider that point because they failed to obtain a ruling on it from the Trial Court. Technical Services of Arkansas v. Pledger, 320 Ark. 333, 896 S.W.2d 433 (1995). We also must reject their argument that the statute of limitations was tolled, according to the exception found in § 16-114-203(b), during the time they were unaware of the presence of the foreign object. That is so because the object was discovered during the two-year limitations period. We reverse as to Dr. Petrino and the Clinic because a genuine issue of material fact remained as to whether the presence of the foreign object in Ms. Howard’s body was fraudulendy concealed from her and the statute of limitations thus tolled until she learned of it.
The biopsy was performed on November 5, 1992. Dr. Sandefur’s radiology report was also dated November 5, 1992. A subsequent routine mammogram revealed that the tip of the needle remained in Ms. Howard’s breast. Dr. Petrino so informed her on December 30, 1993. The needle tip was removed on January 31, 1994. The Howards filed their action against the doctors and the Clinic on December 21, 1994.
In their complaint, the Howards alleged that Dr. Petrino was negligent in failing to exercise reasonable and ordinary care in his treatment of Ms. Howard by failing to discover and remove the barbed tip of the Kopan needle. It alleged that Dr. Sandefur was negligent in failing to discover that the tip of the needle was in Ms. Howard’s breast because she noted in her report that “the barb is not seen, but the localizing wire is in the specimen.”
Section 16-114-203 provides, in relevant part:
(a) Except as otherwise provided in this section, all actions for medical injury shall be commenced within two (2) years after the cause of action accrues.
(b) The date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time. However, where the action is based upon the discovery of a foreign object in the body of the injured person which is not discovered and could not reasonably have been discovered within such two-year period, the action may be commenced within one (1) year from the date of discovery or the date the foreign object reasonably should have been discovered, whichever is earlier.
Dr. Petrino moved to dismiss the complaint on the ground that the action was not brought within two years of the negligent act and was, therefore, barred by the statute of limitations. Dr. Sandefur moved for summary judgment on the same ground. The Howards amended their complaint to allege fraudulent concealment.
i. The foreign-object exception
At the hearing on the motions, the Trial Court treated the motion to dismiss by Dr. Petrino and the Clinic as a motion for summary judgment. The Trial Court ruled that the Howards were not entitled to the one-year discovery rule extension because the barbed tip was found within two years of the negligent act. That ruling was in accordance with our decision in Thompson v. Dunn, 319 Ark. 6, 889 S.W.2d 31 (1994), where we held the language of the statute limits the one-year extension for foreign-object discovery cases to instances in which the discovery is made outside the two-year period.
2. Fraudulent concealment
a. Dr. Petrino and the Clinic
There is in the common law of this State with respect to tort cases a rule that a statute of limitations will apply when “there was no fraudulent concealment of the cause or extent of the injury.” Burton v. Tribble, 189 Ark. 58, 70 S.W.2d 503 (1934), citing Field v. Gazette Publishing Co., 187 Ark. 253, 59 S.W.2d 19 (1933). The Burton case was decided years before there was a separate statute of limitations for medical negligence. After the applicable three-year tort statute of limitations had run, Ms. Burton alleged that Dr. Tribble had negligently allowed a roll of gauze to remain in her abdomen after performing surgery. There was no direct allegation that the physician knew the gauze remained in her, but the complaint did allege that he had “carelessly and negligently withheld” from Ms. Burton “information or knowledge” of the situation. We held the Trial Court erred in overruling Dr. Tribble’s demurrer. Our opinion stated:
Appellee’s acts of leaving the ball of gauze in appellant’s abdominal cavity and his failure to apprise appellant thereof were such fraudulent concealments and continuing acts of negligence as toll the statute of limitation until appellee performed his duty of removing the foreign substance or appellant learned or should have learned of its presence.
The implication was that, because a surgeon should know whether he had left an item in the patient, there was no need to allege or prove knowledge or active concealment in order to toll the statute of limitations.
In Faulkner v. Huie, 205 Ark. 332, 168 S.W.2d 839 (1943), we upheld a demurrer to a complaint which alleged that the extent of an injury did not become known until after the limitations period had run. We distinguished the Burton case by describing its holding as follows:
The court found that the negligent act had been fraudulently concealed from the plaintiff by the doctor, that there was a continuous duty on the part of the doctor to make known what he had done and that there was a daily breach of this duty, and that these fraudulent concealments and continuing acts of negligence tolled the statute until such time as the defendant should remove the foreign body or until the plaintiff knew or should have known of its presence.
Again, the reader was left with an implication that the failure to disclose the presence of a foreign object in the patient’s body constituted “fraudulent concealment” regardless of knowledge on the part of the physician.
In McEntire v. Mallow, 288 Ark. 582, 707 S.W.2d 773 (1986), the plaintiff was severely beaten by the defendant. Silicone implants in her breasts burst, and after the statutory limitation period had run she brought an action for battery for injuries resulting from that situation. Our decision was to the effect that the statute of limitations began to run when the battery occurred rather than later when the extent of injury was learned. We cited the Faulkner case and wrote:
[W]e distinguished the medical malpractice case [Burton] in which a foreign object is left in the surgical patient’s body, pointing out that a physician has a duty to disclose such misconduct and each day it continues constitutes a “fraudulent concealment.” The latter situation is now governed by a statutory limitations exception. Ark. Stat. Ann. § 34-2616 (Supp. 1985)
Ark. Stat. Ann. § 34-2616 is now codified, with some revisions not relevant here, as Ark. Code Ann. § 16-114-203.
In his remarks with respect to the order now before us, the Trial Court concluded from the obiter dictum uttered in the McEntire case, quoted above, that any time a foreign object is left by a physician in a patient, the only exception to the two-year statute of limitations is the one year from discovery provision contained in the statute. Not so.
The point of the statement in the McEntire opinion was that there is no longer a need in foreign-object cases to equate the mere existence of a foreign object in the patient to fraudulent concealment, as there is a specific provision extending the statute of limitations when such an object is discovered after the limitations period has run. The opinion made no statement about an instance in which there is an allegation and, in the summary judgment context, some evidence, to support concealment of the fact that a surgeon has allowed a foreign object to remain in the patient’s body with knowledge that it is there.
In other cases we have held knowledge of the wrong done on the part of the physician is a necessary prerequisite to a tolling of the statute. Williamson v. Edmondson & Ward, 257 Ark. 837, 520 S.W.2d 260 (1975); Crossett Health Center v. Croswell, 221 Ark. 874, 256 S.W.2d 548 (1953).
Our current medical malpractice statute of limitations appeared in Act 709 of 1979 and included this language which remains in § 16-114-203 (b): “The date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time.” A general provision found in § 16-114-202 states that the Medical Malpractice Act “shall supersede any inconsistent provision of law.” Dr. Petrino and the Clinic contend these statements obviate the common-law exception for fraudulent concealment. We hold they do not.
To begin, we have referred to the fraudulent-concealment exception in several instances since the enactment of Act 709. See, e.g., Norris v. Bakker, 320 Ark. 629, 889 S.W.2d 70 (1995); Ford’s, Inc. v. Russell Brown & Co., 299 Ark. 426, 773 S.W.2d 90 (1989); Treat v. Kreutzer, 290 Ark. 532, 720 S.W.2d 716 (1986); Jones v. Central Arkansas Radiation Therapy Inst., Inc., 270 Ark. 988, 607 S.W.2d 334 (1980) (referring to post-1979 cases concerning professional negligence of attorneys and physicians).
Norris v. Bakker, supra, bears some discussion here. A dentist was alleged to have touched the plaintiff’s breasts using the pretext of necessity for a lymph node examination. The complaint was filed after the two-year medical malpractice statute of limitatations had run as had the three-year tort claim statute of limitations. Ark. Code Ann. § 16-56-105 (Supp. 1995). We discussed the fraudulent concealment exception but declined to apply it because the plaintiff knew the act had occurred and the defendant did nothing to prevent her from learning of its wrongfulness. We cited this language from Wilson v. General Elec. Cap. Auto Lease, Inc., 311 Ark. 84, 841 S.W.2d 619 (1992):
No mere ignorance on the part of the plaintiff of his rights, nor the mere silence of one who is under no obligation to speak, will prevent the statute bar. There must be some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiff’s cause of action concealed, or perpetrated in a way that it conceals itself. And if the plaintiff, by reasonable diligence, might have detected the fraud, he is presumed to have had reasonable knowledge of it.
In the case now before us there is an allegation of an act perpetrated in a way that it conceals itself. We have a defendant who had an obvious professional, positive duty to speak if he knew he had negligently left a foreign object in his patient, we have evidence that he was informed that the foreign object remained in the patient, and we have a plaintiff who could not, if the facts were as stated, have detected the fraud.
While we are sensitive to the language of the statute that the cause of action for medical malpractice accrues “the date of the wrongful act complained of and no other time,” it does not preclude this action. The alleged act of concealment is part and parcel of the wrongful act complained of. Until the concealment ends, the wrongful act continues. We cannot imagine that the General Assembly intended to allow physicians to evade responsibility for negligent acts by knowingly concealing them from their patients until after the statute of limitations had run.
It was error to grant summary judgment in favor of Dr. Petrino and the Clinic.
b. Dr. Sandefur
In a supplement to her motion for summary judgment Dr. Sandefur submitted an affidavit in which she stated her “findings” were telephoned to Dr. Petrino’s office. The radiological report she thereafter dictated stated that the barbed tip of the Kopan needle was not seen in the specimen. She also stated it was the practice of the hospital in which the report was filed to mail a copy to the treating physician. She said she did not see the patient after her insertion of the needle, and as far as she knew Ms. Howard left the hospital where Dr. Sandefur performed the insertion procedure and did not return.
Although their complaint alleged Dr. Sandefur was negligent in her failure to ascertain the presence of the barbed tip of the Kopan needle in Ms. Howard’s breast, they have given us nothing in the way of law or facts in support of their allegation that she had a duty to do so in the circumstances presented. At any rate, the two-year statute of limitations had run by the time the Howards filed their complaint against Dr. Sandefur. The Howards have presented no proof to counter Dr. Sandefur’s affidavit in which she presents facts tending to show she did nothing to conceal the fact that the foreign object remained in Ms. Howard’s breast.
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”
Ark. R. Civ. P. 56(e). See Dillard v. Resolution Trust Corp., 308 Ark. 357, 824 S.W.2d 387 (1992); Pruitt v. Cargill, Inc., 284 Ark. 474, 683 S.W.2d 906 (1985).
The judgment in favor of Dr. Sandefur is affirmed. The judgment in favor of Dr. Petrino and the Clinic is reversed and remanded for further proceedings.
GLAZE, J., dissents in part.
Dudley, J., not participating. | [
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Per Curiam.
Appellant requests an extension of time to supplement the transcript and file a brief. He has filed a partial transcript, but seeks to complete the record which he states omits the following:
(1) The February 7, 1995 suppression hearing, the court’s ruling, and the testimony or evidence bearing on the alleged coercive nature of the police in obtaining appellant’s confession.
(2) The court’s side-bar conference regarding the appellant’s objection to the state’s question to Officer William Setterman, “[W]ere you or did you recover anything of an evidentiary value in the investigation of Shorty Williamson’s Service Station in Hamburg?”
We grant appellant’s motion and remand this matter to settle the record, but in doing so, we point out that the foregoing omissions appear to be matters that can be easily resolved. First, if no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best means available, including his recollection. The statement shall be served on the appellee (here the state), who may serve objections or proposed amendments thereto within ten days after service upon it. Thereupon the statement and any objections or proposed amendments shall be submitted to the trial court for settlement and approval and as settled and approved shall be included by the clerk of the court in the record on appeal. Ark. R. App. P. 6(d); see also Crafton v. State, 274 Ark. 319, 624 S.W.2d 440 (1981); Fountain v. State, 269 Ark. 454, 601 S.W.2d 862 (1980).
Second, if any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the trial court, either before or after the record is transmitted to the appellate court, or the appellate court on proper suggestion, or on its own initiative, may direct that the omission or misstatement shall be corrected, and if necessary, that a supplemental record be certified and transmitted. All other questions as to form and content of the record shall be presented to the appellate court. Ark. R. App. P. 6(e).
Keeping the foregoing rules in mind, the parties should be able to reconstruct the witnesses’ testimony given at the February 7 suppression hearing. In addition, appellant’s concern over the trial bench conference seems to be resolvable, since from appellant’s own motion, it appears Officer Setterman apparently was permitted to testify to finding a .357 handgun and five shells, and Setterman’s testimony was confirmed by Officer Tommy Breedlove. Appellant objected, stating the state was heading into the same direction which appellant objected to earlier. The record reveals no hint of a bench conference, but only the court’s on-record remarks, “Would the attorneys approach, momentarily. Until I know where he’s going, I’m going to overrule your objection.”
From our reading of the existing record, what, if anything, might be missing should be easily provided and setded upon remand. Therefore, we remand this cause with the foregoing instructions and direct that the record, as reconstructed and settled, be filed with this court’s clerk within thirty-five days, at which time the clerk will set the briefing schedule.
Dudley, J., not participating.
We note witnesses were thoroughly questioned at trial, and testified to suppression-related matters. | [
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ROBERT H. Dudley, Justice.
The question in this case is whether two counties can concurrently have venue of a divorce action. The parties, Pam and Tony Tortorich, were married in 1979 and have three children. They separated on September 17, 1992, and, at that time, both were residents of Pulaski County. Pam Tortorich filed an action for a divorce from bed and board, or a limited divorce, in the Chancery Court of Pulaski County. Pulaski County was the county of proper venue. See Ark. Code Ann. § 9-12-303 (Repl. 1993). Tony Tortorich filed a counterclaim for an absolute divorce. On December 15, 1993, the Pulaski County Chancery Court awarded Pam a divorce from bed and board, divided the marital property, and awarded alimony, child support, witness fees, and attorney’s fees. The chancery court denied and dismissed Tony’s counterclaim for absolute divorce. The chancery court retained jurisdiction for further orders. Tony appealed and argued that the chancellor erred in dividing the marital property and setting alimony, child support, and fees. He did not appeal from the dismissal of his counterclaim for absolute divorce. On June 28, 1995, the court of appeals affirmed in part and reversed and remanded in part. It reversed a major part of the valuation of marital property which, in turn, substantially reduced the amount Pam would receive, and, as a consequence, it remanded for the Pulaski County Chancery Court to reconsider the amount of alimony Pam should receive. Tortorich v. Tortorich, 50 Ark. App. 114, 902 S.W.2d 247 (1995). The court of appeals also held that the award of the marital home to appellant was not ripe for review. Id. at 123, 902 S.W.2d at 252. The mandate from the court of appeals was issued on July 18, 1995.
Meanwhile, on March 19, 1994, Tony moved to Saline County. Two days later, on March 21, 1994, which was a year and four months before the court of appeals mandate was issued, Tony filed a complaint for absolute divorce in the Chancery Court of Saline County. The grounds, eighteen months separation, had not been available to him in the earlier action. A week later, on March 28, Pam filed a complaint for absolute divorce in Pulaski County Chancery Court.
On April 8, 1994, Pam filed a motion to dismiss the Saline County action because of pendency of the Pulaski County action between the same parties arising out of the same occurrence, and want of proper venue, pursuant to Ark. Code Ann. § 9-12-330(c). The Saline County Chancery Court denied Pam’s motion to dismiss, heard the case on August 19, 1994, granted Tony an absolute divorce, ordered Tony to pay child support in an amount different from the support set by the Pulaski County court, ordered the marital home sold and the proceeds divided, and denied appellant alimony. The Saline County court based its decision to deny alimony, in part, upon the assets awarded to appellant under the limited divorce decree, and these assets were subsequently reduced by the court of appeals.
As a result of the Saline County Chancery Court’s rulings, there are now two conflicting judgments. On the one hand, the court of appeals has remanded the case between these parties to the Pulaski County Chancery Court and ordered the Pulaski County chancellor to consider increasing the amount of alimony because the value of the marital property has been reduced, affirmed the amount of child support, and held that the award of the marital home is not yet ripe for review. On the other hand, the Saline County Chancery Court has ruled that Tony does not have to pay alimony and has ordered the marital home sold and the proceeds divided.
Pam appeals and argues that the Saline County chancellor erred in denying her motion to dismiss. The assignment of error is well taken for two reasons.
Rule 12(b)(8) of the Arkansas Rules of Civil Procedure provides that a cause may be dismissed because of “pendency of another action between the same parties arising out of the same transaction or occurrence.” Id. When Tony filed his complaint in Saline County, there was pending in the court of appeals an appeal from Pulaski County, initiated by Tony, concerning not only the “same transaction or occurrence” but three issues that were identical. These issues involved alimony, child support, and disposition of the marital home.
We have held “[i]n case of concurrent jurisdiction in different tribunals, the first exercising jurisdiction rightfully acquires control to the exclusion of, and without the interference of, the other.” Doss v. Taylor, 244 Ark. 252, 257, 424 S.W.2d 541, 544-45 (1968). When a case is brought in a court of competent jurisdiction, the authority and control of that court over the case continues until the matter is disposed of in the appellate court. Vaughan v. Hill, 154 Ark. 528, 242 S.W. 826 (1922); McCarther v. Green, 49 Ark. App. 42, 895 S.W.2d 562 (1995); Cotton v. Cotton, 3 Ark. App. 158, 623 S.W.2d 540 (1981); see also Jones v. Garratt, 199 Ark. 737, 135 S.W.2d 859 (1940).
In Moore v. Price, 189 Ark. 117, 70 S.W.2d 563 (1934), the appellant brought a suit to foreclose on property in chancery court, while at the same time bringing an action in replevin in circuit court; two separate “causes of action” on the same subject matter. Id. at 119, 70 S.W.2d at 564. We held that the chancery court, being the first to acquire jurisdiction, had jurisdiction to bring adequate and complete relief, and the appellant could not bring an action for replevin in circuit court. Our reasoning was as follows:
[“]This rule rests upon 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.” 15 C.J. 1134.
Bailey on Jurisdiction, page 61, states: “In the distribution of powers among courts it frequently happens that jurisdiction of the same subject-matter is given to different courts. Conflict and confusion would inevitably result unless some rule was adopted to prevent or avoid it. Therefore it has been wisely and uniformly determined that whichever court, of those having such jurisdiction, first obtains jurisdiction, or, as is sometimes said, possession of the cause, will retain it throughout to the exclusion of another.” The same rule is announced in “Courts and Their Jurisdiction” by Works, pages 68 and 69.
Id. at 121-22, 70 S.W.2d at 565.
This case illustrates “confusion, conflict, and collision.” It is an example of the “calamitous” result envisioned in Moore v. Price. Here, the two rulings by the two different chancellors have resulted in one order allowing alimony and one denying it, child support has been set in two different amounts, and one order gives the marital home to Pam until the youngest child reaches eighteen while the other orders the home sold and the proceeds divided.
In addition, Ark. Code Ann. § 9-12-303(c) (Repl. 1993) provides:
(c) When a spouse initiates an action against the other spouse for an absolute divorce, divorce from bed and board, or separate maintenance, then the venue for the initial action shall also be the venue for any of the three (3) named actions filed by the other spouse, regardless of the residency of the other spouse.
This statute could be interpreted in either of two ways: It could be interpreted to mean that any claim available to the other spouse must be filed in the same venue as long as the initial action is still pending, or it might mean that any claim available to the other spouse must be filed in the same venue, without regard to whether the initial action is still pending. We need not decide which interpretation we will ultimately apply because, under either interpretation, the initial action filed in Pulaski County was still pending on appeal when the second suit was filed in Saline County. Thus Pulaski County was the county of proper venue, and the Saline County court erred in refusing to dismiss the action filed in that court.
Reversed and dismissed.
Glaze, J., concurs.
CORBIN and Brown, JJ., not participating. | [
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DONALD L. Corbin, Justice.
Appellant, Farm Bureau Mutual Insurance Company of Arkansas, Inc., appeals the order of the Saline County Circuit Court entered in favor of its insured, appel-lee Romeal K. David, awarding twelve percent penalty of $9,240.00 and attorney’s fees of $23,100.00, in addition to prejudgment and postjudgment interest on a confessed judgment of $77,000.00. Appellant raises two points for reversal. We find no merit and affirm.
Procedural History
Appellee was insured under a homeowner’s policy issued by appellant when his house and personal property burned on September 9, 1994. Appellee filed a complaint against appellant on December 1, 1994, claiming an amount due under the policy of $77,000.00 and stating that appellee had unsuccessfully made demand on appellant for the claim. In the complaint, appellee requested the twelve percent penalty, costs, and attorney’s fees provided for in Ark. Code Ann. § 23-79-208 (Repl. 1992). Appellant answered on December 15, 1994, alleging it had not had adequate time to complete its investigation due to appellee’s dilatory nature in providing information and authorizations to appellant. On January 5, 1995, appellant filed an offer of judgment for the policy limits of $77,000.00. That same day, appellee filed a response to the offer of judgment in which appellee accepted the $77,000.00 and moved the court for penalty and fees pursuant to section 23-79-208. Appellant responded, arguing that appellee’s motion for penalty and attorney’s fees varied the terms of appellant’s offer of judgment and therefore did not amount to an acceptance. Appellant also filed a motion to dismiss for failure to state a cause of action, arguing appellee’s delays in returning requested information left a condition precedent of the policy unsatisfied.
The trial court entered a letter opinion on February 14, 1995, identifying the issues before the court as ones of attorney’s fees and penalties. The trial court found as follows:
Proof of loss was received on September 19, 1994; a general authorization was signed in September, shortly after the proof of loss; the [appellee] was deposed on November 8th; on November 10th a demand for payment in full on or before December 1st was made; the complaint was filed on December 1st; an answer denying liability was filed on December 15th; and, judgment was confessed on January 5, 1995.
The trial court then concluded that appellant had received all the pertinent information within a few days of the proof of loss, or at least within the sixty-day period as stated in the policy, and that the period of time from the filing of the proof of loss to confession of judgment was unreasonable. The trial court ruled appellee was therefore entitled to the penalty and attorney’s fees under section 23-79-208.
On March 8, 1995, appellant filed a motion to reconsider the trial court’s letter opinion, again arguing the delaying tactics of appellee, as well as the policy’s lack of a sixty-day deadline for investigating the loss. The next day, appellee filed a response to the motion to reconsider and attached to it the one-third contingent fee agreement between appellee and his counsel.
The trial court entered a letter opinion denying the motion to reconsider on April 9, 1995. Consistent with its previous letter opinions, the trial court entered judgment for appellee on May 1, 1995. The judgment reflected that all exhibits attached to the pleadings and motions were made a part of the record. This appeal followed.
Reasonable Opportunity to Investigate
Appellant’s first point for reversal is that the trial court erred in assessing the penalty, attorney’s fees, and prejudgment and postjudgment interest before appellant had an opportunity to complete its investigation. First, we consider the award of penalty and attorney’s fees made pursuant to section 23-79-208. Then, we consider the award of prejudgment and postjudgment interest.
Section 23-79-208, as applied to the facts of this case, states as follows:
(a) In all cases where loss occurs and the . . . fire . . . insurance company . . liable therefor shall fail to pay the losses within the time specified in the policy, after demand made therefor, the person, firm, corporation, or association shall be liable to pay the holder of the policy or his assigns, in addition to the amount of the loss, twelve percent (12%) damages upon the amount of the loss, together with all reasonable attorneys’ fees for the prosecution and collection of the loss.
Appellant contends that its investigation was not completed at the time suit was filed and that this failure to complete the investigation was directly attributable to appellee’s own delays in providing requested information and authorizations. Specifically, appellant points to appellee’s delay in giving a sworn statement and in supplying specific business-records authorizations.
Appellant argues that appellee unreasonably delayed his compliance with the policy’s requirement of giving a statement under oath until such a late date that the investigation could not be completed prior to appellee’s own deadline for filing suit. The cases from other jurisdictions cited by appellant in support of this argument are not binding on this court, are not applicable on these facts, and therefore are not persuasive. Appellant acknowledges that it obtained an unsworn statement from appellee a few days after the loss, but contends appellee was unreasonable in waiting until November 8, 1994, to give a sworn statement that appellant had requested on October 11, 1994.
Appellant argues it did not receive the specific business-records authorizations it needed from appellee until three days before he filed suit. Appellant maintains that, upon completion of its investigation, it promptly tendered its policy limits to appellee, and therefore should not be assessed the statutory penalty and attorney’s fees. Appellant’s reliance on McKee v. Federal Kemper Life Assurance Co., 927 F.2d 326 (8th Cir. 1991), is misplaced because that holding was based on the narrow and undisputed facts of that case, which are not similar to the facts of this case.
Appellee responds that, as the trial court found in its letter opinion, appellant was authorized to gather information on this claim on September 16, 1994, and that the fact that appellant waited until November 16, 1994, to begin examining appellant’s records and requesting additional information from him illustrates that appellant was dilatory in investigating this claim. Appellee cites Silvey Companies v. Riley, 318 Ark. 788, 888 S.W.2d 636 (1994), as authority for the proposition that the penalty and attorney’s fees are allowed, even though the insurer confesses judgment prior to trial, when the insurer cannot demonstrate that its delay was reasonable.
In Silvey Companies, 318 Ark. 788, 790, 888 S.W.2d 636, 637-38, this court quoted section 23-79-208 and stated:
Our construction of this section is straightforward: “Where an insured loss occurs and an insurance company fails to pay the loss within the time specified in the policy, then the insurance company is required to pay, in addition to the loss, a 12% penalty plus reasonable attorneys’ fees.” Miller’s Mut. Ins. Co. v. Smith Co., 284 Ark. 124, 126, 680 S.W.2d 102, 103 (1984). The fact that the insurance company later paid the claim does not defeat the award of penalty and attorney’s fees for “ [i] t is well setded that attorney’s fees and penalty attach if the insured is required to file suit, even though judgment is confessed before trial.” Federal Life & Casualty Co. v. Weyer, 239 Ark. 663, 666, 391 S.W.2d 22, 23 (1965).
Silvey argues that there is an exception to the above stated general rule and that this exception applies where it is reasonably necessary for the insurance company to continue to investigate the loss even after payment is due under terms of the policy. See Clark v. New York Life Ins. Co., 245 Ark. 763, 434 S.W.2d 611 (1968). The argument does not prevail in this case because it was not reasonably necessary for the insurance company to continue to investigate the case for more than sixty days after the proof of loss was submitted. Here, the insurance company was notified of the fire the day after it occurred and assigned an adjusting firm to investigate the loss. By June 22, 1992, it had concluded the fire was of incendiary origin, and within thirty days after the fire Silvey had set up its arson defense. Silvey took sworn statements from both of the Rileys, and, within sixty days of the fire, it was in position to either admit or deny the claim. Silvey did not show a reasonable need for investigation past the sixty day period.
In the present case, the trial court stated that insurers have a reasonable time in which to investigate a claim before payment despite the two-month limitation set by the policy and by the statute. Here, we note parenthetically that appellant does not contest the sixty-day limitation in the policy, except in its reply brief and in oral argument, and that this court does not consider arguments raised for the first time in reply briefs, Partin v. Bar, 320 Ark. 37, 894 S.W.2d 906 (1995), or in oral argument, State Farm Mut. Auto. Ins. Co. v. LaSage, 262 Ark. 631, 559 S.W.2d 702 (1978). The trial court found that appellant had all the pertinent information within a few days of receipt of the proof of loss, noting that even the sworn statement was taken within the sixty-day period, and that the delay was not due to the fault or inaction of appellee. Thus, the trial court concluded that the period of time from the filing of the proof of loss to confession of judgment was unreasonable. We will not reverse the trial court’s findings unless they are clearly erroneous. Ark. R. Civ. P. 52(a); Blaylock v. Staley, 293 Ark. 26, 732 S.W.2d 152 (1987).
It is clear that, in the present case, appellee was forced to file suit. According to Silvey Companies, 318 Ark. 788, 888 S.W.2d 636, the fact that appellant confessed judgment before trial does not affect the attachment of the penalty and attorney’s fees. As was the case in Silvey Companies, appellant was in a position to pay or deny the claim at the expiration of the sixty-day period. Also, as was the case in Silvey Companies, appellant has not demonstrated a need to continue to investigate the claim past the expiration of the sixty-day period set by the policy and statute. Consistent with Silvey Companies and on the record before us, we cannot say the trial court’s findings were clearly erroneous.
Alternatively, appellant argues the award of $23,100.00 in attorney’s fees is excessive. Appellant contends that the only evidence submitted to the trial court from which it could determine the amount of the fee was the one-third contingent-fee agreement between appellee and his counsel. Appellant cites Southall v. Farm Bureau Mut. Ins. Co. of Arkansas, Inc., 283 Ark. 335, 676 S.W.2d 228 (1984), for the proposition that automatic acceptance of a lawyer’s contract with a client is not a valid means to determine the prevailing party’s attorney’s fees.
Appellee responds that appellant has waived this argument on appeal because it did not contest below the amount or evidence of the fee. In short, appellee contends appellant raises this argument for the first time on appeal. We agree.
This court has recently stated that objections to the trial court’s award of costs must be raised in the trial court, perhaps via a motion to amend the judgment pursuant to Ark. R. Civ. P. 52(b). Zhan v. Sherman, 323 Ark. 172, 913 S.W.2d 776 (1996). Similar to costs, the award of attorney’s fees is a matter for the trial court to determine. Southall, 283 Ark. 335, 676 S.W.2d 228. Therefore, to preserve this argument for appellate review, appellant was required to raise this issue in the trial court, at least by filing a motion to amend the judgment pursuant to Rule 52(b).
With respect to the award of prejudgment interest, appellant argues the award is flawed because it ignores the fact that appellant has a reasonable time to investigate the claim and makes no allowance for such time. The judgment is silent as to the date the prejudgment interest begins. With respect to the award of postjudgment interest, appellant argues the award of it is also flawed because appellant’s confession of judgment “cuts off the running of interest.” Appellant cites no authority to support these arguments.
Appellee responds that appellant did not raise these arguments below and has therefore waived them on appeal. We agree, for the same reason stated with respect to the award of attorney’s fees. Because the awarding of interest is a matter of law for the trial court, Hopper v. Denham, 281 Ark. 84, 661 S.W.2d 379 (1983), appellant was required to raise this issue in the trial court, at least by way of a motion to amend the judgment pursuant to Rule 52(b).
Confession of Judgment
Appellant’s second point for reversal is that the trial court erred in awarding the penalty, attorney’s fees, and interest because the appellant offered to confess judgment. Appellant argues that, by prompdy confessing judgment, an insurance company should be able to avoid the statutory penalty and attorney’s fees.
In support of this argument, appellant cites cases in which this court has held that, when a plaintiff amends his complaint to reduce the amount demanded, the insurance company’s liability for the penalty and attorney’s fees will be determined by whether it continues to dispute the claim or promptly confesses judgment. See, e.g., Progressive Life Ins. Co. v. Hulbert, 196 Ark. 352, 118 S.W.2d 268 (1938). If the insurance company confesses judgment, it can avoid the penalty and attorney’s fees in that situation. Id; see also Jones Excavating Contractor, Inc. v. Firemen’s Ins. Co., 324 Ark. 282, 920 S.W.2d 483 (1996), and cases cited therein. Those cases are simply not applicable to the present case, where no reduction in the amount demanded is made, because the basis upon which the insurance company presumably contested payment in those cases — a dispute relating to the amount of the loss — does not exist in the present case.
Appellant relies heavily on Ark. R. Civ. P. 68 and argues that the statutory penalty and attorney’s fees defeat the salutary purpose of Rule 68, which is to encourage prompt settlement. Appellant’s argument is entirely without merit and overlooks the purpose of the statute providing for the penalty and attorney’s fees, which is to punish the unwarranted delaying tactics of insurance companies. See Silvey Companies, 318 Ark. 788, 888 S.W.2d 636. The statute and the rule are not in conflict. If we were to adopt appellant’s argument, an insurance company could delay paying a claim thereby forcing the insured to file suit and then confess judgment, all without ever being at risk for the penalty and attorney’s fees. To adopt appellant’s argument would render the statute almost worthless. Besides, this court has clearly decided this issue against appellant when it stated, as we reiterated in addressing appellant’s first argument, “[i]t is well-settled that attorney’s fees and penalty attach if the insured is required to file suit, even though judgment is confessed before trial.” Id. at 792, 888 S.W.2d at 638.
Appellee has requested an additional attorney’s fee for services rendered on appeal. Although section 23-79-208(b) allows for such an award in our discretion, we do not think an additional fee is warranted on the facts of this case.
The judgment is affirmed.
Special Justices Barbara P. Bonds and Roderick H. Weaver join in this opinion.
Jesson, C.J., Dudley and Glaze, JJ., not participating. | [
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English, Ch. J.:
On tbe 26th, April, 1873, Edward H. Chaffin filed a complaint against David C. White, in the Circuit Court of Jefferson County, alleging in substance:
That on the 24th of October, 1875, plaintiff sold and delivered to defendant, at his special instance and request, two fifty-saw gin stands, of the value of $200 each, and one extra idler of the value of $3, (articles and value set forth in bill of particulars-filed, etc.) as part of the machinery of the defendant’s gin house, on the premises hereinafter mentioned; and by agreement, plaintiff set.up in running order said gin stands and idler in said gin house on said land, etc. That plaintiff so set up and put in running order said gin stands and idler according to such agreement on the 28th day of October, 1875, and the same then became a part and parcel of the machinery, and fixtures in said gin house on said land, and so remained.
That said machinery and fixtures were placed in, and set in running order, in the gin house, on the south-west quarter of the south-west quarter of the north-east quarter of section twenty-one, town four south, range nine west, in Jefferson County, etc., which was the property of defendant at the time of such sale and until and after the filing of the lien hereinafter mentioned.
That on the 22d day of January, 1876, and within ninety days after the performance of said contract, plaintiff duly filed with the clerk of the Circuit Court of the said county, a just and true accouut of the demand aforesaid due him, with a correct description of the property to be charged with his lien, verified by his affidavit, and had the same entered, on the judgment docket for the purpose of establishing his lien, all as the law requires: a copy made an exhibit, the original remaining on file in the clerk’s office, etc.
That by the terms of said contract and sale, said sum of $403 became due and payable on the 1st of November, 1875, but though demanded of defendant, he has not paid the same, or any part thereof.
Prayer for judgment, directing a sale of the interest of defendant in said premises, or such portion as provided by law, with the buildings and appurtenances above described, and that the proceeds of sale be applied to the payment of the costs of the suit, and the plaintiff’s claim, etc.
The defendant demurred to the complaint, on the grounds:
First — That it did not show that plaintiff filed a just and true account of his demand, with the clerk of the Circuit Court, within the time prescribed by law.
Second — That it did not state facts sufficient to constitute a cause of action under the amended mechanic’s lien law.
The demurrer was overruled, and the defendant filed an answer in substance as follows:
. That he purchased the said two gin stands on the 25th day of October, 1875, on a credit, payable out of the cotton crop that year, and the same were delivered to him on that day.
That said gin stands and idler were not placed and erected in said gin house and saw mill by plaintiff, or any one for him, but on the contrary were delivered to defendant, or his agent, in Pine Bluff, and the said machinery was not placed, set up, and put in running order by the plaintiff, on the 28th’ day of October, or on any other day.
That defendant is not the owner of the land described in the complaint, but the same was purchased on the 29th day of December, 1875, by Mary P. White, wife of defendant, and Bichard S. and Joel B. White, their children, under the age of eighteen years, who then became invested with the title.
That said schedule was not filed in the clerk’s office, within the time prescribed by law.
That the purchase and delivery of said machinery, was long after the erection and completion of said gin house, and was a separate and independent contract, on credit payable at no specified time.
On the trial, the plaintiff testified, that he was the builder and manufacturer of what is known -as the “ Chaffin Gin,” and his factory was in the City of Pine Bluff. That he manufactured at the instance and request of defendant, to be placed in his gin house, on the land mentioned in the complaint, two fifty-saw gins, one right and the other left handed, at $4 per saw, and delivered the same to him on the 24th day of October, 1875, in the City of Pine Bluff; also sold the idler mentioned in the account, and delivered it to the defendant about two months prior to the 24th day of October, 1875. That he did not erect and place the gin stands in position in the gin house of the defendant, but that he had spoken to one Foster to do the work for him,. and he promised to do it. He had never paid Foster anything for erecting and placing the gin stands in order in the gin house of defendant, and had never been on the land described in the complaint himself. That the account sued on was correct.
The son of plaintiff testified, that his father sold the gin stands at the price mentioned, and delivered them to defendant in Pine Bluff, but he knew nothing of the arrangement for their erection in the gin house of defendant, nor did he know who placed them in order.
Plaintiff read in evidence the account filed in the clerk’s office, which appears to have been filed, and entered on the judgment docket, 22d January, 1876. ■
The defendant testified, that he purchased the gin stands and idler mentioned in the account of plaintiff ; that he purchased the gin stands on the 23d October, 1875, which was Saturday, for the price mentioned; that he contracted for the gin stands sometime before, and they were delivered to him on the 23d of October, 1875; that he purchased the idler for his saw mill, some two months prior to that time; that he was to pay for the gin stands out of the proceeds of the first cotton ginned; that he was unable to do so, on account of attachment suits on his crops, though the attachment suits did affect the cotton ginned on said gins, except that he was driven to expense and costs in defending the suits; that he ginned during the season about two. hundred bales of cotton, on said gins, at about $4 per bale; that the gin stands were delivered to him in Pine Bluff, on Saturday, the 23d of October, 1875, without reference to any building in which they were to be placed; that being a mechanic himself, he and E. Foster erected and placed the gin stands in position; that Foster was in his employ at that time, and he paid for the erection of the gin stands; when he purchased the gin stands, nothing was said about placing them in position; he never heard anything about plaintiff employing Foster to erect the gin stands; Foster was in his employ during that year. The gin stands were not delivered on the 24th, but on the 23d of October, as above stated. He did not own the land, but bought the gin stands on his own account.
E. Foster testified, that he was in Pine Bluff when the cotton gins were delivered to defendant, which was on the 23d of Octo*, ber, 1875; that he was a mechanic, and in the employ of defendant for that year, and paid by him. He assisted the defendant in erecting and placing in position the cotton gins in question. Plaintiff never employed him to erect the gin stands, nor was he ever on the place while witness was there. The gin stands had been placed in position when the plaintiff spoke to him about them, the first and only time, at Potterfield’s shop, and then he only inquired if they were in position, and how they worked ; he never did say anything to witness about erecting them.
Henderson testified, that he was in the employ of defendant, and drove his wagon when they came for the gin stands; that they were delivered and placed in defendant’s wagon on the 23d October, 1875, which was Saturday, at McKenny’s shop, in Pine Bluff; that defendant and Foster put them in the gin house, and fixed them up; that plaintiff had nothing to do in putting them up; that witness helped Foster most of the time.
Plaintiff, recalled, testified that he was not certain that the Foster who had testified, was the man he had spoken to about placing the gin stands; that he looked like him.
There is copied in the bill of exceptions, a deed from Wm. P. Grace and wife to Mary P. White, wife of David C. White, Richard S. White and Joe B. White, but by which of the parties it was offered in evidence, or whether it was read in evidence at all, does not appear from the bill of exceptions. It was, perhaps, offered on the-part of the defendant.
The deed bears date December 29th, 1875, and the vendors, in consideration of $1, paid them by Isaac Moone, convey to vendees all their right, title, claim and interest in and to ten acres of land in a square, to be laid off in the southwest corner of the northeast quarter of section twenty-one, town four south., range nine west. .The. defendant moved the court to give to the jury eight instructions, all of which the court gave, except the fourth, fifth, and senventh, which follow:
“Fourth — If the jury believe from the evidence, that the said cotton gins were sold and delivered to the defendant with the understanding, and upon an agreement, that the plaintiff was to look to the profits made in ginning the crop of 1875, for his pay, it was an ordinary sale on credit, ánd a waiver of his lien, and the jury will find for defendant.”
“Fifth — If the jury believe from the evidence, that the extra idler was purchased two months prior to the sale and delivery of the cotton gins, it was wrongfully included in the account filed, and no lien attached as to that.”
“Seventh — If the jury believe from the evidence, that plaintiff sold and delivered to defendant the two gin stands in controversy, and that the sale and delivery was independent of the erection of the building, and had nothing to do with it under the contract, it was a sale beyond the contemplation and meaning of the mechanics’ lien law, and as much so as if it had been a coffee mill or sausage grinder, and the jury will find for the defendant as to the lien.”
The court gave three instructions, moved by the plaintiff, the defendant objected to the first and third.
The plaintiff’s instructions follow :
“First — If the jury believe frqpi the evidence, that the defendant purchased the machinery specified in the complaint, from the plaintiff, and for the price therein stated, and that it was the understanding, that said machinery was to be used in the gin house of which defendant was in possession and proprietor, and that the same, afterwards, became a part of the machinery of such building, and that said machinery has not been paid for, and that the mechanic’s lien herein sought to be enforced, was filed in the clerk’s office, within ninety days from the time the said machinery was set up in said gin house, if set up by or for the plaintiff, they will find for the plaintiff.”
“Second — The ninety days mentioned in the law, as the time in which a mechanic’s lien shall be filed, in cases of machinery furnished for any building, means ninety days from the time such machinery is set up in such building, or on the land upon which the lien is claimed.”
“Third — Where a certain number of days is required to intervene between two acts, the day of one of the acts only can be counted.”
The jury returned the following verdict:
“We, the jury, find for the plaintiff, with lien on the building and land in complaint for the gin stands, and assess the damages at $400, with interest at the rate of six per cent., from October 24th, 1875, up to this date, and judgment for the idler without any lien, and assess the damages thereupon at $3, with interest at the rate of six per cent., from August 24th, 1875, up to this date.”
The defendant moved for a new trial, on the grounds:
First — Verdict not sustained by evidence.
Second — Contrary to law.
Third — The court erred in refusing to permit defendant to give in evidence, a deed for the land described in the complaint. ^
Fourth — In overruling the fourth, fifth and seventh instructions asked for defendant.
Fifth — In giving the first and third instructions, moved for plaintiff.
The court overruled the motion, and judgment was entered in accordance with the verdict, condemning the gin stands, gin house, and the land, as described in the complaint, to be sold in satisfaction of so much of the demand as was for the value of the gin stands, interest and costs, etc.
The defendant took a bill of exceptions, and appealed to this court.
I. The court did not err in refusing the fourth instruction moved for appellant. There was no evidence that the appellee sold and delivered the cotton gins to appellant, “ with the understanding, and upon agreement, that he was to look to the profits made in ginning the crop of 1875, for his pay.” The appellant testified, “ that he was to pay for the gin stands, out of the proceeds of the first cotton ginned,-but was unable to do so, on account of attachment suits on his crops, etc.”
This was evidence conducing to show the time of payment, but it did not prove, or tend to prove, that appellee was to look alone to the profits, made in ginning the crop of 1875, for his pay. The suit was not commenced until the 26th of April, 1876, when the usual ginning season for the crop of 1875, was over, and the appellant, by his own admission, failed to pay for the gin stands out of the proceeds of the first cotton ginned, or any other.
II. As the jury found no lien for the item in appellee V account for the idler, appellant was not prejudiced by the refusal of the court to give the fifth instruction moved for him.
III. The seventh instruction assumes it to be law, that if the sale and delivery of the gin stands were independent of, and had nothing to do with the erection of the building, appellee was not entitled to a lien, any more than if he had sold appellant a coffee mill or a sausage grinder.
When, or by whom, the gin house in which the gin stands were placed, was erected, docs not appear from the evidence. Appellee testified, that he manufactured them at the request of appellant, to be placed in his gin house, on the land described in the complaint, and it seems they were placed in the house soon after their delivery. It may, or may not, have been in process of construction, at the time the appellant contracted for the gin-stands.
The mechanic’s lien law, as contained in Gould’s Digest, ch. 112, gave all artisans, builders, and mechanics who performed work and labor on any building, edifice, or tenement for the owner or proprietor, etc., a lien on such building, edifice or tenement for such work and labor, as well as for all material furnished by them in and about such work and labor, and for money paid fop such materials, etc. The lien was also given upon the land on which the building, edifice or tenement was erected, etc. Sec. 1, 19.
No lien was given to a person, other than the artisan, builder, or mechanic, who furnished materials, etc. Duncan v. Bateman, 23 Ark., 327.
By act of 12th April, 1869, the lien was extended in favor "of all persons furnishing materials for aery building, edifice or tenement. Cohen v. Hager, 30 Ark., 28.
But neither the original nor amended statute, gave any lien for machinery placed in a. building, o,r otherwise, on land.
The act of 25th April, 1873, to secure liens to mechanics and others, made important changes and enlargements oí the lien law.
Sec. 1, provides: “ That every mechanic, builder, artisan, workman, laborer, or other person who shall do or perform any work or labor upon, or furnish any materials, machinery or fixtures for any building, erection, or other improvement upon land, including contractors, sub-contractors, material furnishers, mechanics and laborers, under or by virtue of any contract, ex- ■ press or implied, with the owner or proprietor thereof, or his agent, trustee, contractor or sub-contractor, upon complying with the provisions of this act, shall have for his work or labor done, or materials, machinery or fixtures furnished, a lien upon such building, erection or improvement, and upon the land belonging to such owner or proprietor on which the same is situated, to secure the payment of such work or labor done, or materials, machinery or fixtures furnished.” Gantt’s Digest, sec. 4056.
The theory, that the mechanics’ lien act is in derogation of the common law, and should, therefore, be construed strictly against those seeking to avail themselves of its benefits, is not supported by the better decisions, which hold that its provisions should be so interpreted as to secure the classes of persons named in the act, on their complying substantially and in good faith with its provisions. Putnam, et al. v. Ross, et al., 46 Mo., 337 ; Oster, et al. v. Rabeneau, Ib., 595.
It would be a narrow construction of the statute, to hold that a person who has a building in process of erection, in which he intends to use machinery, may purchase such machinery on credit upon faith of a lien upon the building and land on which it is located, while one who has a house or shed completed, and ready to receive machinery, cannot make such purchase. The machinery is often more costly, and enhances the value of the estate, more than the building or shelter in, or under which it is placed.
The owner or proprietor of the land, may construct the building or shelter himself, or employ another to do it, and the man who furnishes the machinery may have no connection with the erection of the structure, or he may furnish machinery and it may be placed upon and become attached to the soil, before any shelter is built for it, and why should he not have a lien.
If appellee had furnished appellant with an 'ordinary sausage grinder or coffee mill, such as are used in families, he would probably have put it in his kitchen, and not in his gin house, but whether put in one or the other, there would be no lien upon the building and land for the price of it, because not machinery within the manifest meaning of the statute.
But, if a man has fitted up a house for grinding sausage meat, or parching and grinding coffee, in large quantities for market, and desires a mill and steam engine for such purpose, there is no good reason why a person who furnishes such machinery should not have a lien under the statute.
Under a similar statute-of Missouri, it was held in Reilly v. Hudson, et al., 62 Mo., 383, that where a man had furnished and fitted up a cooking range in the basement of a building, so as to make it a fixture, he was entitled to a lien, though the building had been erected four or five years before the range was fitted up in it.
So a boiler in a brew-house, is a fixture, and subject to the mechanic’s lien. Gay v. Holdship, 17 Serg. & R. (Pa.), 413.
So burr-mill stones, like any other machinery. Wademan v. Thorp, 5 Watts, 115.
So a cotton gin placed by the owner of land in a gin house, and fastened to the floor in any manner, held to be a fixture passing with the land as between vendor and vendee, or mortgagor and mortgagee: Ewell on Fixtures, p. 296, notes and cases cited. Bond v. Cole, 71 North Carolina R., 97; Latham v. Blakely, 70 Ib., 368; McDaniel v. Moody, 3 Stewart (Ala.), 314.
IV. The appellee testified, that he manufactured the gin stands at the request of appellant, and delivered them to him at Pine Bluff, on the 24th of October, 1875.
Appellant testified, that he contracted for them some time before, and they were delivered to him at Pine Bluff, on the 23d of October, and as to the time he is corroborated by the witnesses, Foster and Henderson.
This was a disputed fact to be determined by the jury, on the credibility of the witnesses.
The account was filed in the clerk’s office, on the 22d of January, 1876.
Sec. 5, of act of the 25th April, 1873, provides that: “It shall be the duty of every person, except as has been provided for sub-contractors, who wishes to avail himself of this act, to file with the clerk of the Circuit Court of the county in which the building, erection, or other improvement to be charged with the lien is situated, and within ninety days after all'the things aforesaid shall have been furnished, or the work or labor done or performed, a just and true account of the demand due or owing to him; after allowing all credits, and containing a correct description of the property to be charged yrith said lien, verified by the affidavit.” Gantt’s Digest, sec. 4060.
We think the better rule is, that the account should be filed within ninety days from the time machinery is placed upon the premises to be charged with the lien. Cohen v. Hager, 30 Ark., 29; Hunter, et al. v. Blanchard, 18 Ib., 322; Simmons, Garth & Co. v. Carrier, et al., 60 Mo., 581; Fitzpatrick v. Thomas, 61 Ib., 512; Strigelman, et al. v. McBride, 17 Ib., 301.
The first and second instructions given by the court below, at the instance of the appellee, are in harmony with this rule. To the second, appellant did not object.
It was not necessary, however, for the appellee to prove that he fixed the machinery upon the premises, or that he procured Foster to do it, or paid him for it. There was no charge in the account for placing the gin stands, the value of the machines only was charged. It was sufficient for the appellee to prove that he furnished the machines, and that they were placed upon the premises, and that he filed his account in the clerk’s office within ninety days thereafter. One man may furnish machinery, and the others may do the labor of fitting it up upon the premises. So one man may furnish the lumber for a house, and another may construct the house of the materials so furnished.. Each of them contribute to the improvement, and each may establish a lien upon the premises.
Whether the account was filed in the clerk’s office within ninety days from the time the gin stands were placed upon the premises, was a question of fact to be determined by the jury upon the evidence. The appellee swore that he delivered the gin stands to appellant at Pine Bluff, on the 24th of October, 1875, and the evidence introduced by appellant, proves that they were afterwards fitted up upon the premises. Even if taken to the premises, and placed in the gin house on that day, though bad morals to do such labor on Sunday, yet the account having been filed on the 22d of Jauuary, 1876, was filed within" ninety days from the time the machines were placed upon the premises, omitting the 24th of October, and counting the day of the filing (Gant’s Digest, sec. 5648). The jury seem to have believed the statement of the appellee as to the time of the delivery of the gin stands, for they allowed him interest on the sum charged for them, in the account from the 24th of October.
The complaint alleged that plaintiff set up and put the gin stands in running ordei’, on the premises, on the 28th of October. The answer denied that they were placed, set up, and put in running order on the premises, by plaintiff) on the 28th of October, or any other day. This made an issue, not as to the time when they were so placed upon the premises, but as to the person by whom placed, which, as we have above stated, was. not material.
The appellee and two of his witnesses swore, that the gin stands were delivered to him, at Pine Bluff, on the 23d of October, but they did not swear that they were' taken to, and placed upon the premises on that day.
V. The rule for the computation of time, as given to the jury.by the court on the third instruction moved for appellee, and objected to by appellant, is that prescribed by the statute. Gantt’s Digest, sec. 5648.
VI. It is stated in the motion for a new trial, that the court excluded from the jury, a deed offered in evidence by appellant. This, perhaps, refers to the deed from Grace and wife to Mrs. White, and her two sons, which is copied in the bill of exceptions, and which we have above mentioned. The bill of exceptions does not state that it was offered in evidence by appellant, and excluded by the court, which it should have done if appelant wished to reserve any question of law ruled by the court in relation to the admissibility of the deed.
Mrs. White, and her sons, were not made defendants to the suit, nor did they interplead for the property, and if they in fact owned the land at the time the machinery was placed upon it, the judgment or sale of the land under it, will not effect their title. Gantt’s Digest, secs. 4063-4-5-8.
But if they had interpleaded for the property, and had read in evidence the deed from Grace and wife to them, it would have availed them nothing, because it bore date on the 29th December, 1875, which -was after the machinery furnished by appellee was placed upon the premises; and when his lien was fixed by filing his account in the clerk’s office, it related back to the time when the machinery was placed upon the premises, and was superior to intervening incumbrandes or conveyances. Xb., secs. 4062-3.
On the trial, appellant stated in general terms, that he did not own the land; but it appears from the evidence, that he had a gin house and mill on it, and purchased machinery for them. Though he may not have been the owner in fee of the land, yet he may have had an interest in it, which was subject to appellee’s lien. McCullough v. Caldwell, 5 Ark., 238.
VII. The court below erred in condemning the whole tract of ten acres to be sold in satisfaction of the lien debt. The statute limits the extent of the lien to all the right and title of the defendant to the land on which the building, etc., may be erected, as well as to a convenient space around the same, not exceeding two acres clear of the building, etc. Gantt’s Digest, sec. 4068.
So much of the judgment as is in personam for .the whole demand, is affirmed.
So much of the judgment in rem as condemns the quantity of land authorized by the* statute, is affirmed, but so much as is in excess of the statute limit, is reversed, and the cause remanded with instrutions to the court below to so modify its judgment. | [
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Harrison, J.:
• This was a suit brought by John McGuire & Bro. against Peter Brugman, Phillip E. Brugman and Dick Brugman, as partners under the name of Peter Brugman & Sons, to recover the sum of $570 on an account for work done and materials furmished by them as machinists upon and for a steam grist mill, •and to enforce a mechanic’s lien therefor.
The defendants filed separate answers, after which the action ■was dismissed as to Dick Brugman.
The answers of Peter Brugman and Phillip E. Brugman were .substantially alike and may be taken as one.
They denied that any such firm as Peter Brugman & Sons had -ever existed; that they have been partners or jointly interested •in the mill, or that Peter Brugman had any interest in the same, ■or any work had been done or materials furnished for him by the plaintiffs, and they denied that either of them owed the debt .sued for, but averred that the work was done and materials furnished at the instance and for Phillip E. Brugman alone; and that the debt for the same was paid on the 19th day of June, 1874, by Peter Brugman making and delivering to the plaintiffs .his two promissory notes, each for $285, payable with 10 per ■cent, interest from date, respectively, in four and six months, which the plaintiffs accepted in payment and discharge of the debt; and they further averred that the mill sought to be charged with the lien was upon the land of Isabella T. Brugman, the wife of said Peter Brugman, and which was her separate property, and the said Phillip E. Brugman, when the work was done and materials furnished, had but a lease thereof, for one year, and which had expired before the suit was brought, and they disclaimed any interest in the mill.
After the suit was commenced, garnishments were sued out against the Life Insurance Company of North America, and the Citizens’ Insurance Company of New Jersey, and an indebtedness to Peter Brugman of $871.50 was admitted by the former company, and an indebtedness to Phillip E. Brugman of $712 by the latter company; whereupon the bond of Phillip E.Brugman, with J. E. Geyer and "VY. Roland as sureties, for the dissolution of the attachment was filed, and the same was discharged.
The jury returned a verdict for the plaintiffs for $623.86, the •debt and damages, but fonnd against the lien.
The defendants moved for a new trial; their motion was overruled and judgment for the amount of the verdict was rendered against them and their sureties. The defendants appealed.
The evidence was as follows :
For the plaintiffs:
William McGuire, one'of the plaintiffs, and their bookkeeper, testified to the' correctness of the charges in the account filed with the complaint. The dealings he said were with his brother •and co-plaintiff, and he did not know of his personal knowledge ■on whose orders the work was done and materials furnished, but he saw both Peter and Phillip E. Brugman frequently at their
'William Green testified: That sometime in the spring of 1874, he was asked by Peter Brugman if he knew of an engine and boiler for sale, and he told him where he could buy them. Shortly afterwards Phillip E. Brugman called upon him, and they went to the place, and Philip E. Brugman bought them and employed the witness to haul them to the plaintiff’s shop to be repaired, which he did, and after they were repaired, he, at the instance of Philip E. Brugman, hauled them to the mill, on what he supposed was Dr. Peter Brugman’s place. He did not see Dr. Brugman when he hauled the engine and boiler to the mill, and Philip E. Brugman seemed to have the entire control of the mill.
Mr. Hughes testified that he was in 1874 sent by the plaintiff, in whose employment he was, to Brugman’s mill to repair the machinery. The repairs were made under the directions of Philip E. Brugman, and he did not see Dr. Brugman there.
John McGuire, the other plaintiff, testified:
That both Dr. Peter Brugman and Philip E. Brugman applied to him to do the work and furnish the materials, each, at several and different times, and sometimes one and sometimes the other made payments to him on the account, and he supposed them to be partners in the mill. The job was to be paid for when finished ,• and, when it was done, he called upon Dr. Brugman and presented the account, which was made out against Philip E. Brugman. He told the witness he was out of money, and could, not then pay it. Sometime afterwards he presented the account to him again, when he offered to give the notes. He said to the witness: “I want to give you my notes for that account to keep your brother from dunning me on it. I would rather have the seven years’ itch than to have him after me. Let me give you my notes, so that I can tell him it is settled, and he told the wit- . ness they could be used in bank and money raised on them.
Witness consented to take the notes, two, each for $285, bearing 10 per cent, interest and at four and six months, but at the time told him, they would not release any one from the debt, and would still hold their mechanic’s lien on the mill for it. The notes were accordingly given, and he indorsed on the account a receipt in full of it.. That notes were not taken in payment and discharge of the debt, and they afterwards filed their account of the work and materials to secure their lien. That after the notes fell due, he presented them for payment, which was refused, and that neither they nor the account had ever been paid.
The account and the affidavit thereto attached filed in the office of the Circuit Clerk to secure the mechanic’s-lien, which was made out against “Peter Brugman' & Son,” was then read, and the plaintiff’s produced and offered to surrender to the defendants the notes.
And for the defendants:
The defendant, Philip E. Brugman, testified : That there had been no such firm as “Peter Brugman & Sonsthat the work was done and the materials furnished upon orders given by himself in person and sometimes by his father Dr. Peter Brugman, and that neither Dr. Brugman nor Dick Brugman had any interest in the mill or machinery, and the engine, boiler and machinery was his, the witness’ sole and individual property: that the land on which the mill stood belonged to his mother, Mrs. Isabella T. Brugman, from whom he rented the land and mill, and his lease of the same had expired. That sometimes he made the plaintiffs payments on the account in person, and sometimes sent them money by his father. That he directed them to make the account out against himself individually, which was done, and he requested his father to settle it, which his father did by giving the notes mentioned in his answer, and taking the receipt indorsed upon the account. He considered his debt to the plaintiffs paid by his father’s notes, and did not owe them anything.
The mill building, he said, was erected by Dr. Brugman and cost him about $1600. Since the suit had been pending, the mill and machinery had been destroyed by fire, and he, the wit--, ness, had received on account of insurance on the building, machinery, stock of goods and cotton, $2200, of which he paid Dr*. Brugman on account of his assumption of the debt to the plaintiffs, and other matters, $1600.
That he knew of no property his father owned, out of which the notes could be paid, and he was, when he paid him the insurance money so far as he knew, insolvent.
And Peter Brugman testified: That no partnership ever existed between him and his son Philip E. Brugman, and that the engine and boiler was purchased by Philip E. Brugman alone and for his own use, and that he had never employed the plaintiffs to repair the engine and boiler or to do any work for himself, and they had never furnished him any materials, and that the work was done for, and the materials furnished to Philip E. Brugman alone.
That the land on which the mill was situated was the separate property of his wife, and was rented by her to Philip E. Brugman, who put the engine and boiler in the mill at his own expense, and owned the entire machinery.
He paid the plaintiffs some money on the account, all of which was his own, but did not intend when the account was being made to become liable therefor.
Pie said that being dunned upon the account, by John McGuire, he told him he had no money, but offered to give him the notes mentioned in his answer, which he consented to accept, and they were accordingly executed, and a receipt was indorsed by* McGuire on the account. He had no recollection of McGuire say ing lie would retain tlie mechanic’s lien, and considered the notes as payment and satisfaction of the account, and that by giving the notes, he alone, Avhich Avas his intention, became liable for the debt.
The receipt Avas read, which was as folloAvs :
“Received payment by notes of Peter Brugman, at four and six months, in full of account to date.
John McGuire & Bro.
June 19th, 1874.”
And the defendants then read a deed of conveyance from Frank T. Vaughan and Myra Vaughan his wife, to Isabella T. Brugman, for the land mentioned in the complaint on Avhich the mill Avas situated, but which did not convey the same to her as her separate property.
The following instructions given for the plaintiffs were excepted to by the defendants:
First — It was not necessary to entitle the plaintiffs to recover, to prove that the defendants Avere partners or jointly interested in the mill, but if their acts and conduct Avas such as to induce the plaintiffs to believe them to be partners or jointly interested, and, under that impression and belief so created, the work was done and the materials furnished, both were liable to the plaintiffs. therefor, although Peter Brugman was not, and Philip E. Brugman was alone interested in having the work done and materials furnished, and the same was for his sole use and benefit.
Second — But if they engaged in the enterprise of- building a mill to be OAvned and jointly run by them for their mutual benefit and profit, that constituted them partners as to all matters connected with the' building and running of the mill, and they Avould be jointly liable for materials furnished and work done, in the carrying out of that common object.
Third — That the debt for which the notes were given was not paid and extinguished by the notes of Peter Brugman unless it was the intention and understanding of the parties at the time the same were given, that they were in payment and discharge of it and so received.
“It is undoubted law,” says Judge Parsons in his work on partnership, “that one held out as a partner with his own consent is liable as such whether he be a partner in fact or not.” Par. on Part., 87, 123; Sto. on Part., sec. 64; Humphries v. McGraw, 5 Ark., 61; Olmstead v. Hill, 2 Ib., 346.
The first two instructions were clearly unobjectionable. The third was equally so.
“The giving of his bill of exchange, promissory note, or other negotiable security, by the debtor, only operates as a conditional payment, unless the parties expressly or impliedly agree to consider it as an absolute payment.” Sto. on Con., sec. 979 ; Carlton v. Buckner, 28 Ark., 66; Costar v. Davies, 8 Ark., 213; Sheehy v. Mandeville, 6 Cranch, 264.
But it is contended by the appellants that as the action was upon an alleged joint contract of theirs and Dick Brugman, and there was no evidence whatever tending to prove that Dick Brugman was a party to the contract, the verdict was not sustained by the evidence.
The statute explicitly says: “Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants.” Gantt’s Dig., sec. 4701.
We think the plain reasoning of this section is to allow, where several persons are made defendants as upon a joint contract, but the proof shows that only some of them contracted, the plaintiff to recover against those who were in fact liable. Zink v. Attenburg, 18 How. Pr., 108; Witherhead v. Allen, 28 Barb., 661; Claflin v. Butterly, 2 Abb., 446; Brumskill v. James, 1 Ker., 294.
It is also objected, that the action could not be in rem and also in personam, and, as the plaintiffs failed in the proof of the lien, there could be no judgment for the debt against the defendants personally.
But it is expi’essly provided that “in an action on a mortgage or lien, the judgment may be rendered for the sale of the property, and for the recovery of the debt against the defendants personally.” Gantt’s Dig., sec. 4707, and in sec. 4550 it is provided, also, that several causes of action, which belong to •certain classes named, may be united in the salme complaint, where each affects all the parties to the action, may be brought in the same county and be prosecuted by the same kind of proceedings, of which classes, claims arising out of contracts express or implied, is first mentioned, and sec. 4553 says all objections to the misjoinder of causes of action shall be deemed waived, if not taken by the defendant before he makes his defense.
The complaint, besides setting out the facts in relation to the mechanic’s lien, also alleged such as constituted a cause of action against the defendants personally for their debt, and prayed a personal judgment. White v. Chaffin, m. s. Op.; Arkansas Central R. R. Co. v. McKay, 30 Ark., 682.
In the case of White v. Chaffin, which was a case very similar to the present, there was a judgment in rem and also a personal judgment for the debt. The judgment in rem condemned more land than is allowed by the statute. The personal judgment was affirmed, and that in rem held erroneous only as to the quantity of land ordered to be sold for the satisfaction of the debt.
A remaining objection is that judgment was rendered against ¡the sureties in the bond for the discharge of the .attachment. ■Such judgment against the sureties is expressly authorized and directed by the Act of November 10th, 1875, amendatory of the attachment laws.
Finding no error the judgment of the court below is affirmed. | [
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English, Ch. J.:
On the 25th May, 1873, Edwin G. Rea filed a complaint, in the Saline Circuit Court, against the Cairo and Fulton Railroad Company, alleging :
“That the said railroad company did, by, and through their agents, and employees, commit trespass on the plaintiff's land, in the County of Saline, State of Arkansas, in township two south, fourteen west, and section five, being the northeast of the northwest quarter, and the northwest of the northeast quarter of said section, by cutting down and using timber and earth from the same, and building a road bed through the same, to his damage five hundred dollars.”
On the next day a writ was issued, commanding the sheriff “ to summon the Cairo and Fulton Railroad Company to answer on the third (3d) day of the next June Term of the Saline Circuit Court, a complaint filed against them in said court by Edwin G. Rea, and warning them that upon their failure to answer the complaint will be taken for confessed,” etc.
Upon which writ, the sheriff endorsed the following* return :
“I have, this first day of June, A. D. 1873, duly served the within, by delivering a copy of the same to each of the within named defendants, as therein commanded.”
No order appears to have been made in the cause at the return.
There is an entry dated October 8th, 1873, showing that the plaintiff appeared, by attorney, and “ the court continued the cause without prejudice to any of the parties.”
It appears that on the 12th of February, 1874, Ransom Thompson was appointed by the court, and sworn “as a commissioner, to hear proof and report the amount of damages sustained by the plaintiff, by reason of the alleged misconduct of the defendants in taking the land of the plaintiff for the bed of said railroad, and use of his timber, etc., in the construction of said railroad,” etc.
On the same day the commissioner reported to the court, that he had examined witnesses, etc., and -was satisfied'that the plaintiff's damages amounted to $250; and final judgment was thereupon entered against the defendant for that sum, and for costs.
On the 3d of August, 1874, defendant obtained the allowance of an appeal from the judgment before the clerk of this court.
I. The return of the sheriff shows no legal service of the writ upon appellant.
There was but one defendant sued and named in the writ— the Cairo and Fulton Railroad Company — a corporation and not a natural person.
The manner of serving process on such a corporation, and making the return of service, was sufficiently indicated in Cairo and Fulton Railroad Co. v. Trout, ante.
II. The action is in trespass, and not founded upon contract, and in such action the statute does not authorize the court to appoint a commissioner to assess plaintiff’s damages on failure of defendant to answer. Gantt’s Digest, sec. 4712.
Judgment reversed, and cause remanded for further proceedings, appellant to be regarded as in court, by reason of the prosecution of this appeal, with leave to plead to the complaint, etc. | [
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Turnee, J.:
The record in this cause shows that at the May Term, 1873, of the Board of Supervisors of Chicot County, the appellant presented his petition to the board, stating in substance that he was the holder of a certain bund of Chicot County issued to .the Mississippi, Ouachita and Red River Railroad Company, under an order of the County Court passed at the April Term, I860, bearing date May the 1st, 1860, for the sum of $1000, bearing 8 per cent, interest, payable annually, and which was by said railroad company, by its secretary and treasurer endorsed in blank, and praying for an order directing said bond to be paid.
It further appears, that at the same term of the court, the petition was overruled, and the said claim disallowed, whereupon the appellant appealed to the Circuit Court.
That at the September Term, 1873, of the Circuit Court, the appellee filed its answer to the petition, stating, in substance,, that the appellee does not owe to the said appellant the said sum of $1000, with the interest thereon, and that the alleged paper purporting to be a bond of Chicot County, is not the bond of ■appellee, that there is no consideration therefore, and that the appellee did not promise to pay the same.
That at the January Term, 1874, of said Circuit Court, the appellee filed an amended answer to the said petition, alleging that the appellee is not bound to pay said bond, or any part of it.
First — Because the County Court of Chicot County was not authorized by law, at the time said bond was issued, to use the credit of the county in payment of the subscription to the capital stock of a railroad company, or to issue the bonds of said county in payment thereof.
Seeond — That said bond is not obligatory upon Chicot County, in its political character, but, if paid at all, must be paid out of. the internal improvement fund of said county. That the internal improvement fund is a fund set apart by the laws of the State for specific purposes, that the County Court of Chicot County was authorized by law to use and subscribe to the capital stock of a railroad company, out of the internal improvement fund of said county, but said county was not authorized and had no authority of law to subscribe to the" capital stock of a railroad company, or to make said county responsible in her political character for bonds issued for the payment of subscription to the capital stock of any railroad company. That'said bond was issued for the payment of the subscription to the capital stock of the Mississippi, Ouachita and Red River. Railroad Company, and that if said bond is payable at all, it is payable out the internal improvement fund, and out of no other fund.
The answer was demurred to, and at the June Term, 1875, this cause came on to be tried by the court sitting as a jury, whereupon the' court found for the appellee, and affirmed the judgment of the court below. Appellant excepted, and filed his motion for a new trial, assigning the following causes:
First — That the finding and the decision of the court is contrary to the evidence.
Seeond — That the finding and judgment of the court is contrary to law.
Which motion was overruled by the ooui't, appellant excepted and appealed to this court.
The bill of exceptions shows, that on the trial of this cause, the appellant introduced as evidence the bond of appellee sued upon, which is in words and figures as follows:
“ No.-. State of Arkansas.
“ Bond of the County of Chicot. Issued by the order of the County Court at the April adjourned term, 1860.
“ 1000 dollars. The County of Chicot acknowledges to be indebted to the Mississippi, Ouachita and Red River Railroad Company in the sum of one thousand dollars, which sum the said County of Chicot promises to pay to the order of said railroad company, five years after date, with interest thereon at the rate of eight per cent, per annum, payable annually.
“ In testimony whereof, I hereunto set my hand as Judge of the County Court of said County of Chicot, and cause the seal of said county to be hereunto affixed, at Lake .Village, the first-day of May, 1860.
“A. H. Davis, as Judge. [seal]
“Attest: B. F. Stevenson, Clerk.
“ Endorsed: Ed. C. Wilson, Secretary and Treasurer,
“M., O. & R. R. R. R. Co A
It further appears from the record, that divers citizens of Chi-cot County presented their petition to the County Court-, praying for an order that the County Court subscribe the internal improvement fund of said county in the capital stock of the Mississippi, Ouachita and Red River Railroad Company, the object being the early completion of the road through the whole extent of said county, and to a point west of the Mississippi overflow, on the highland of Drew County. Whereupon the County Court on granting the prayers of the petitioners, ordered, adjudged, and decreed, that the said county do subscribe to the capital stock of said railroad company, the sum of $10,000, for the payment of which the internal improvement fund of said county, not already appropriated, was thereby appropriated.
And it was further ordered, adjudged, and decreed, that said County of Chicot shall issue under the hand and seal of the pre ■siding judge, attested by the clerk of the court under his official seal, ten bonds of $1000, payable in five or ten years from date, •as the County Attorney shall deem most proper*, bearing 8 per cent, interest, payable annually.
And it' was further ordered, adjudged, and decreed by the ■court, that all of the internal improvement fund of said county, now in the hands of the internal improvement commissioner, •and not already appropriated by the court, or that may hereafter ■come to the hands of said commissioner, with all interest that may accrue on the same, is hereby set apart and appropriated as :a fund to meet and liquidate the principal and interest of said bonds, as the same may become due.
And it is further ordered, adjudged, and decreed, that this •subscription is ordered upon the condition that said railroad ■company will receive said bonds at par, in payment for stock in said railroad company.
Other orders were made, but not material to the decision in this cause.
The record shows settlements made by the County Court with the internal improvement commissioner, on the 5th of November, 1861, and on the 1st of November, 1865, when balances were found in his hands of the internal improvement fund of Chicot County, amounting to $1,185,151.30.
It appears from the record in this cause, that on the 1st of May, 1860, the County of Chicot, in pursuance of the order of the County Court, issued ten $1000 bonds to the Mississippi, Ouachita and Red River Railroad Company, payable five years after ■date, with interest payable annually, at the rate of 8 per cent, per annum.
The bond sued upon, is one of this issue.
The question which the record presents for our decision, is : Was the County Court of Chicot County authorized by law to issue the bonds of the county in payment of stock in the Mississippi, Ouachita and Red River Railroad Company ?
It is contended by the appellant, that sec. 52, of ch. 101, of Gould’s Digest, taken in connection with the orders of the County Court, conferred upon the County of Chicot the authority in question. That section of the act of January, 22d 1855, reads as follows : “ It shall be lawful for the County Court of any county, to subscribe to the capital stock of any valid and duly organized railroad company, incorporated under any act of this State, having or controlling internal improvement funds, or credits granted to it by the State, by any existing law, or any law that may hereafter be enacted, and to appoint an agent to represent its interest, give its note, and receive its dividends, and may take proper steps to guard and protect the interests of such county.”
By a long and uniform train of decisions, it is fairly settled, that a county or other municipal corporation, has no implied power to subscribe for stock in a railroad company, nor to incur debts or borrow money to enable such corporation to become a subscriber to the stock of a railway company. Such a power must be conferred by express legislative grant. These special grants of authority to municipal corporatoins have multiplied and been frequent during the last quarter of a century, and it is believed great abuses have resulted from improvident grants of special powers to the corporations; and while the courts have been compelled to recognize the validity of these special grants,' they have not been slow to condemn 'the policy of such legislation, and have uniformly held corporations to a strict observance of the limitations of the authority specially granted. Cooley’s Con. Dim., 215 ; Dillon on Mun., Cor. 147, and authorities there referred to.
It will be observed, that the power conferred on the County Courts by sec. 52, of ch. 101, of Gould’s Digest, although special, is of limited scope.
The County Court of any county, having or controlling internal improvement funds, or credits, granted to it by the State, may subscribe to the capitabstock of any valid and duly organized railroad company.
All the counties in the State were entitled to proportionate .shares of the internal improvement fund. But, possibly, in some instances, the fund may have been otherwise appropriated and unavailable, and if so, would a county so circumstanced be entitled to subscribe at all, for stock in a railroad company.
If it was the purpose of the General Assembly to confer upon the counties of the State, by special legislation, the power to subscribe for stock in railroad companies generally, without restriction, and to issue bonds in payment thereof, it- would hardly have prescribed conditions of subscription dependent on the county’s having internal improvement funds or other credits granted to it by the State.
The petition of certain citizens of Chicot County was an appeal to the County Court in so many words, to subscribe the internal .improvement fund of the county to the capital stock of the Mississippi, Ouachita and Red River Railroad Company. The purpose of the petition cannot be mistaken.
The County Court, in granting the prayer of the petition, ordered that the county subscribe to the capital stock of said railroad company, $10,000, for the payment of which the internal improvement fund of the county not already appropriated, was thereby pledged and appropriated. The bonds issued in pursuance of the further order of the court, in payment for stock in said railroad company, are general in their terms and make no express provision for their payment out of the internal improvement fund.
This may have been an oversight on the part of the county officials, or the pledge and appropriation of the internal improvement fund may have been regarded as a sufficient guaranty of their payment out of that fund.
The internal improvement fund of Chicot ■ County was set apart and specially appropriated to the payment of these bonds,, and should have been sacredly applied to that purpose. "Whether the holders of these bonds have a remedy against the defaulting officials of Chicot County, is a question we are not called upon, to decide.
In deciding upon the liability of Chicot County in her corporate capacity for the payment of the bonds, we are brought back to the question, was their issuance authorized by law? We have seen from the whole history of the subscription of Chicot County to the capital stock of the Mississippi, Ouachita and Red River Railroad Company, that the intention of the citizens of Chicot County, who petitioned the County Court; and of the court which made the order for the subscription, was to subscribe the internal improvement fund of that county, and nothing more.
In the light of this history, as shown by the record, we can only regard these'bonds as issued on the credit of the internal improvement fund of Chicot County, which was specially pledged and set apart for their payment. But then in view of the failure-of the authorities of Chicot County to pay these bonds out of her internal improvement fund, is the county in her corporate-capacity in any event bound for the payment of these bonds?
The appellant insists that the power of a county to subscribe for stock in a railroad company was independent of and not restricted by the limitation contained in sec. 52, ch. 101, of Gould’s Digest, and we are referred to many authorities. These authorities would be entitled to great weight, were it first shown that Chicot County was authorized to' subscribe for stock in the ■Mississippi, Ouachita and Red River Railroad Company, and issue bonds therefor .payable out of the general funds of the county.
But this power depends upon an express grant of authority, for we have shown that a county or other municipal corporation has no implied power to subscribe for stock in a railroad company, and of course no authority to issue bonds in payment for such stock. But if the authority to subscribe for such stock is expressly given, the right to issue bonds would necessarily follow, for the grant of the authority carries Avith it by implication the necessary and appropriate means to make it effective.
In the case of Seybert v. City of Pittsburg, 1 Wall., 272, Avhere the legislature of Pennsylvania had incorporated a railAvay company, one section of Avhich enacted “ that any incorporated city should have authority to subscribe to the stock as fully as any individual.” But the act gave no express power to issue bonds in payment of their subscriptions.
It Avas decided that the power to subscribe authorized the city to issue negotiable bonds in payment of the stock. See also R. R. Co. v. County of Ottoe, 16 Wal., 667; and The Evansville, etc. R. R. Co. v. The City of Evansville, 15 Ind. R., 395, to the same effect.
So these and all other authorities referred to by the appellant shoAv most clearly that a county or other municipal corporation has no poAver, independently of an express grant of authority, to subscribe for stock in a railway company, upon the. existence of Avhich alone -depend the further authority to issue bonds.
Hoav these authorities benefit the appellant’s cause we cannot perceive; for there- is no express general authority given by the act of the General Assembly to the counties to subscribe for stock in railroad companies, but the poAver given is to subscribe the internal improvement fund, and the bonds Avhen issued, are issued on the credit of that fund, to which the holders of the bonds could alone look for payment.
The power of the counties to subscribe for stock being thus limited and restricted, the County Court had no authority to subscribe for stock and issue bonds payable out of the general funds of the county.
And if said subscription for stock was made upon the unwarranted assumption that the county was authorized to make such subscription and issue stock therefor, independently of the limitations contained in the act of the General Assembly, then these bonds are simply void, having been issued without authority of law and the action of the county officers in issuing them is ultra vires and imposes no liability on the county, not even in the hands of a holder for a valuable consideration.
It is true bonds issued by a county or other municipal corporation under express authority are negotiable with all the qualities and incidents of negotiability.
But if issued without authority, although in the form of negotiable bonds, the.holder acquires no right to enforce payment of ■ such bonds, because invalid even in the hands of innocent holders. Having been issued without authority of law and void in their inception, the original vice of their creation adheres to them wherever they may go, and this want of power to issue them can always be set up as a defense against a recovery on them. Dil. Mun. Bonds, 15.
The holders of these bonds have no cause to complain, for they were bound to take notice of the action and proceedings of the County Court, and the conditions under which they were issued.
This caso is like that of English & Wilshire v. Chicot County, 26 Ark., 454, and wo have reached conclusions similar to those of the court in that case; we are therefore of opinion:
First — That the bond sued upon was issued solely on the credit of the internal improvement fund' of Chicot County, to which fund the holder of the bond can alone look for payment.
Second — But if treated as a bond payable out of the general funds of the couuty, then it is absolutely void, and imposes no obligation on the county to pay it.
Let the judgment of the Circuit Court be affirmed. | [
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'Engeisi-i, Ci-x. J.:
Hugh McMurray sued John Parham, Sheriff of St. Francis County, in trespass, for selling personal property under execution, which he had scheduled and claimed to be exempt from sale under the Constitution of 1868.
Parham, in his answer, admitted that he had levied upon and sold the property described in the complaint, but justified on the ground that the clerk of the court who issued the execution, had revoked the supersedeas granted on the filing of plaintiff’s schedule, and left the execution in force in his hands as sheriff.
On the trial some of the facts were agreed on by the parties, and evidence introduced as to the value of the property, the damages of plaintiff, etc., and the jury returned the following verdict:
“ We, the jury, find the following as the facts in this case: In and during the year 1871 and 1872, one John O’Brien performed work and labor for the plaintiff, Hugh McMurray, as a common laborer. In 1872, O’Brien sued McMurray before a justice of the peace upon an account for such work and labor; in this suit he claimed no special lien on any particular property ; the justice rendered judgment in favor of O’Brien against plaintiff on such account for the sum of $250. Execution issued from the justice, and was returned nulla bona. O’Brien after-wards filed a transcript of judgment in the office of the clerk of the Circuit Court of St. Francis County, and by said clerk it was entered on the judgment docket of said court. Afterwards execution issued from said court directed to the defendant, as sheriff of said county, who levied the same upon the property described in the complaint. Plaintiff filed a schedule in the office of the clerk of said Circuit Court, claiming said property as exempt from execution, under the provisions of sec. 2635, Gantt’s Digest; the clerk then issued a supersedeas of the execution. O’Brien applied to the clerk for the appointment of appraisers under the provisions of the same act; appraisers were appointed, who did not find the value of the property, but found as a fact, and so reported to said clerk, 'Thatthe judgment being for work and labor performed by O’Brien for McMurray, that no property was exempt from execution upon said judgment;’ the clerk then issued and delivered to the defendant an order revoking the supersedeas, and defendant as such sheriff proceeded to sell and did sell the property in the complaint described, by virtue of such execution; the property was purchased by H. W. Winthrop. We further find, that at all the times mentioned, plaintiff was a citizen and resident of St. Francis County, was the head of a family, and that his whole personal property did not amount to the value of $2000. We further find that the property so seized and sold was of the value of $480. If upon the above facts, the court should be of the opinion that the law is with the plaintiff, we find for the plaintiff, and assess damages at $240. If the court is of the opinion that the law is with the defendant, wre find for the defendant.”
Whereupon the court found the law of the case for plaintiff, and rendered judgment in his favor against defendant for $240.
The defendant moved for a new trial on the ground:
First — The court erred in instructing the jury, etc.
Second — The court erred in finding the law for the plaintiff upon the special verdict of the jury.
Third — The verdict of the jury is contrary to law.
Fourth — The verdict is contrary to the evidence, aud the damages assessed are excessive.
The court overruled the motion for a new trial, and the defendant took a bill of exceptions and appealed.
I. The following is the only instruction given by the court to the jury:
“If the jury find from the evidence that defendant Parham, levied upon the goods of plaintiff, then, noth withstanding ho may have loft them in the hands and possession of plaintiff" (plaintiff in that case being simply the bailee of said Parham), the measure of damages will be the value of the goods as proven herein ; unless the jury also find that plaintiff procured them to> be purchased for himself at the sale and redeemed the same from the purchaser or purchasers at the price for which they sold at said sale, in which case the jury will find as the measure of damages the amount the goods brought at such sale.”
If appellant had done nothing more than levy on the goods, and leave them in the hands of appellee as his bailee, the)first clause of this instruction would have been wrong, because in such case the measure of appellee’s damages would not have been the-value of the goods.
But the instruction taken as an entire proposition, and considered in connection with the pleading and evidence before the-court, is not subject to such criticism.
The complaint alleges that appellant seized and sold the goods; and he admits in his answer, that he did levy upon, and sell them, but justifies under the process. Under the issue so made, appellee need have proven nothing but the value of the goods, the levy and sale being admitted. Norris et al. v. Norton, 19 Ark., 319.
On the trial, appellee, on his own examination in chief, gave-evidence conducing to prove that the goods wore of the value found by the jury in their special verdict. Upon cross-examination he testified that appellant did not take any of the property levied on, out of his possession, except the horse mentioned in the complaint, which was very soon returned to him, but that he agreed with the appellant, to turn the property over to him on demand. It was no doubt upon this feature of the evidence-that the court charged the jury, in effect, that from the time of' the levy until the sale, appellee was the bailee of appellant, and there was nothing wrong in this. Had appellant demanded a delivery bond, and had appellee given it, this would have been no waiver of his right to claim the property levied e.n as exempt from execution. Atkinson et al. v. Gatcher, 23 Ark., 101. But instead of demanding a delivery bond, appellant thought proper to entrust the property to the custody of appellee until the day of sale; and if no sale had been made, the measure of damages, of appellee would not have been, as above remarked, the value-of the goods.
Appellee further testified on his cross-examination, that the-whole of the goods levied on brought at the sale the sum of $240,. and that the purchasers did not take the property out of his. possession; and it may be assumed, from testimony of other-witnesses of appellant, conducing to prove the fact, that appellee arranged with bidders to buy in the property for him, and to. permit him to redeem it, by refunding to them the amount bid by them, and paid to appellant; and it was upon this feature of' the evidence that the court charged the jury, in effect, that if they believed such to have been the case, the measure of appellee’s damages would not be the value of the goods, but the amount which they brought at the sale, and Avhich appellee had to refund to the bidders, to protect himself in the possession of the goods.
The case may be put in a still stronger view for appellant. It may be supposed that appellee bid directly for the goods at the sale, and paid to the appellant $240, the amount of his bids ; was this a waiver of his right of exemption ? We think not.
The property described in the complaint, and proven to have been levied on and sold, was one horse, five head of cows and calves, five yearlings, four sheep, five head of stock hogs, and twenty-two bee hives, which the jury found from the evidence to be of the value of $480. • Appellee had scheduled this property, and claimed it to be exempt from - execution under the Constitution of 1868, and exemption laws then in force. He had done all the law required of him to prevent its sale, but appellant, under a misapprehension, no doubt, of his official duty in the premises, persisted in selling the property. From its character and usefulness in domestic life, it may have been a very great inconvenience to appellee and his family to be deprived of its use, and to have no remedy but an action against appellant for damages, or action against a number of purchasers of the property. Under such circumstances he thought proper, it may be assumed, to bid in the property at the sale, and pay appellant the money on his bids, to prevent being deprived of the use of the property by permitting others to purchase and remove it.
On principle, Crump et al. v. Starke, 23 Ark., 131, is in point do show that by such bidding and purchase of the property, appellee was not estopped from setting up his right of exemption.
Nor does the fact that the amount bid by him may have gone to pay his debt to O’Brien, the plaintiff in the execution, lessen his right of recovery against appellant for the wrongful sale. O’Brien had no legal right to make his debt out of exempted property. Appellant was forced to pay $240 to protect himself .against the consequences of an illegal sale, which was less than the value of the property as found by the jury • and wc think think the court did not err in instructing the jury that he could recover of appellant damages to that extent in this action.
II. Did the court below err in finding the law of the case for appellee on the special verdict of the jury ?
Sec. 1, art. xii, Constitution of 1868, exempted the personal property of any resident of the State, to the value of $2000, to be selected by such resident, from sale on execution, etc., issued for the collection of any debts contracted after its adoption.
It was the duty of the appraisers to ascertain the value of the property scheduled by appellee, in order that it might appear whether it was in excess of the sum limited by the Constitution. It was not their province to determine whether the property scheduled.was subject to, or exempt from sale under O’Brien’s judgment. Their report that the judgment being for work and labor, no property was exempt from execution upon it, was not such a report as they were required by law to make; it was a mere nullity; and the clerk had no authority to revoke the supersedeas upon such report; nor did his revoking the supersedeas furnish any justification to appellant to sell the scheduled and exempted property under the execution. See Gantt’s Dig., secs. 2635-42.
O’Brien’s judgment did not purport on its face to be a lien on any personal property; the debt was for common labor, and the judgment an ordinary one for money. The scheduled property was not the product of his labor, nor was it real estate improved by his labor. See Gantt’s Digest, title Laborer’s Lien, p. 74. Taylor, Radford & Co. v. Hathaway, 29 Ark., 597.
It is insisted by the learned counsel for appellant that under the provision of the Constitution of 1868, no property is exempt from sale on execution issued upon a judgment recovered upon a debt for labor, and this argument is based upon a clause in sec. 3 of the Article on Exemptions, which will be copied below.
Sec. 1, relates to the exemption of personal property; and provides, as above shown, for the exemption of such property to the value of $2000 from sale on execution, etc., for the collection of any debt contracted after the adoption of the Constitution. In this section no exception is made in favor of debts contracted for labor.
Sec. 2, declare that the homestead of a married man, or head of a family, shall not be incumbered in any manner, etc., except, for taxes, laborers’ and mechanics’ liens, and securities for the purchase money thereof.
Sec. 3, defines the homestead and declares that it shall be exempt from sale on execution, etc., “ but no property shall be exempt from sale for taxes, for the payment of obligations con- ' tracted for the purchase of said premises, for the erection of improvements thereon, or for labor performed for the owner thereof; Provided, that the benefit of the homestead herein provided for shall not be extended to persons who may be indebted for dues to the State, county, township, school or other trust funds.”
It is manifest that the exception in favor of the laborer, like that in favor of the mechanic, in the homestead sections, relates-to labor upon the homestead, and has no application to personal property.
It is further insisted for appellant that appellee should have appealed from the decisions of the appraisers under sec. 2642, Gantt’s Digest.
It was the duty of the appraisers, appointed on the application of O’Brien, to appraise the property scheduled, and to decide whether its value was above or below the constitutional limit. Instead of discharging this duty, they undertook to decide, as a matter of law, and which they had no legal power to .decide, that the judgment being for labor, no property was exempt from sale under execution upon the judgment. This decision amounted in law to nothing; and if O’Brien wished the benefit of the appraisement provided for by the statute, it was incumbent on him to take the proper steps to compel the appraisers to discharge the duties imposed on them by law. The appellee was not bound to move in the matter. Pie had selected and scheduled the property which he claimed as exempt from sale under the execution, and nothing more was required of him.
The appraisers having been appointed by the clerk of the Circuit Court, the statute undertakes to give either party an appeal to the Supreme Court from their decision — that is, if the scheduled property be over-valued, the defendant in the execution may appeal, and if under-valued the plaintiff may appeal. To say nothing of the novelty of an appeal to the Supreme Court from the. decision of a board of appraisers exercising no judicial, but merely ministerial power, it is sufficient to say in this case that they made no appraisement at all, and there was no decision within the meaning of the statute, to appeal from.
The clerk is required to issue the supersedeas on the filing of the schedule. He had no power to revoke it on such a report as that made by the appraisers, as above stated.
Sec. 2638, Gantt’s Digest, provides that: “ If the decision (of the appraisers) shall be that the property described exceeds in value the amount exempted by the Constitution, then * * * the clerk shall revoke the supersedeas so far as concerns such items of the property described as the appraisers may designate ■as in excess of the amount of exemption by the Constitution provided for.”
The sheriff was bound to know the law in the premises, and cannot protect himself by a void decision of the appraisers, and an illegal act of the clerk in revoking the supersedeas.
There is nothing in the other grounds of the motion for a new trial, and the judgment of the court below must be affirmed. | [
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ROBERT L. Brown, Justice.
This case is an appeal from a defendant’s verdict in favor of appellee United States Fidelity & Guaranty Insurance Company (USF&G), the insurance carrier for the Van Burén School District. The appellant, Joyce Primm (formerly Joyce Suggs), argues that the trial court erred in refusing to give two instructions and further erred in permitting the school principal to sit at the counsel table with USF&G’s counsel. Because we find merit in the failure to give an instruction on the existing condition of Primm’s son, we reverse and remand for a new trial.
Jerrod Suggs, a six-year old at the time of his accident, was diagnosed with spina bifida at birth. As a result of his condition, he is paralyzed from the waist down and is confined to a wheel-chair. His bones are osteoporotic and brittle, thereby making them susceptible to breakage. In 1993, he attended his second year in kindergarten at J.J. Izard Elementary School, which is part of the Van Burén public school system. At the time of the accident in question, Jerrod’s kindergarten teacher, Jean Perkins, knew of his need for special treatment. She was told that he was to be given the same supervision as her other students. Among other things, his condition made him susceptible to colds, and on cold days, he stayed indoors during recess.
On November 1, 1993, Jerrod was forced to stay inside during the afternoon recess due to cold weather. Jean Perkins stayed inside with him. When recess was over, she left the classroom and entered the hallway to supervise the return of her other students, a procedure that normally took her about five minutes. On this particular day, she left the door to the classroom open. A few minutes after Ms. Perkins left the classroom, one of Jerrod’s classmates began pushing him around the room in his wheelchair. The chair tipped over, and Jerrod fell to the floor. A school janitor was in the restroom connected to the classroom at the time of the accident and notified Ms. Perkins. When she examined him, Jerrod was discombobulated and had a red mark on his face, but he appeared not to be hurt. Jerrod’s bus driver arrived moments later, and it was decided that the bus driver would take Jerrod home and tell Jerrod’s mother, Joyce Primm, about the accident. This was done. Jerrod was absent from school for three days following the accident and returned to school on November 5, 1993.
On November 7, 1993, Jerrod’s mother noticed a deformity in Jerrod’s left thigh and took him to the emergency room of Sparks Regional Medical Center in Fort Smith. X-rays were taken, and it developed that Jerrod had a fracture of his left femur. In the ensuing operation, a traction pin was surgically inserted into the bone just above the knee so that weights could be attached to the pin to keep the bones aligned during the healing process. Jerrod was then placed in a “spica cast,” which started at his waist and extended down both legs.
Joyce Primm subsequently filed a direct action lawsuit against USF&G as the liability insurance carrier for the Van Burén School District #42 pursuant to Ark. Code Ann. § 23-79-210 (Repl. 1992). The complaint alleged that Jerrod’s injuries were caused by the negligence of the agents and employees of the school district (1) in failing to provide a proper, safe environment for an elementary student, (2) in allowing elementary school age children to remain unattended in a classroom, (3) in failing to provide reasonable supervision and precautions for the safety of elementary students, and (4) in failing to provide reasonable supervision and precautions for the safety of handicapped students while on the premises of J.J. Izard Elementary School. A trial was held, and the jury returned a verdict in favor of USF&G.
Joyce Primm’s first argument pertains to the trial court’s refusal to give a jury instruction on the effect ofjerrod’s preexisting condition on his injuries. In arguing her case to the trial court, Primm’s counsel made the following record before closing arguments on the court’s refusal to give certain instructions:
Judge, we tendered Instructions that the Court refused. Particularly, the Court refused a tendered Instruction instructing the jury that, in essence, you take the plaintiff as you find them, and that because a plaintiff is more predisposed to injury than another plaintiff, that they cannot basically, they have to take the plaintiff as they find them. Clearly, A.M.I. on the damages, accounts for that. There was the A.M.I. damages Instruction I tendered with three (3) elements; first, the nature, extent and duration of any injury, and then the added paragraph, “Because ofjerrod’s condition, in this regard you should consider [the] full extent of any injury sustained, even though the degree of injury is found by you to have proximately resulted from the aggravation of the condition that already existed and predisposed Jerrod to injury to a greater extent than another person,” and then the reasonable expenses, and Third, “Pain and suffering and mental anguish.” The Court allowed the Second and Third, and it disallowed the First, and I think clearly that was established by the evidence, it should have been granted.
The quoted language to the trial court was taken from AMI 2203 entided “Measure of Damages — Aggravation of Preexisting Condition.”
There is, initially, the procedural argument raised by USF&G. Though Primm abstracts a requested instruction on this point with the three elements described above and shows it marked “refused,” a proffered instruction in writing with these three elements is not contained in the record. What is contained in the record is an instruction on two of the elements — reasonable expense of medical care and pain and suffering — which was given. The quoted language above regarding the aggravation of a preexisting condition, which is Arkansas Model Instruction 2203, was refused by the trial court.
We conclude that the record evidences a proffer of AMI 2203. It is clear from the statement of Primm’s counsel quoted above that he had tendered an instruction to the court which was refused. When he made his record on the rejection, he read into the record the rejected instruction — AMI 2203. Under these circumstances, that was sufficient.
Turning to the merits, there was ample testimony before the jury that Jerrod Suggs qualified as an “eggshell plaintiff,” that is, one who was susceptible to enhanced injury by virtue of an existing condition. Dr. William Sherrill, Jr., was the treating orthopaedic surgeon for Jerrod and testified by evidentiary deposition. Dr. Sher-rill described Jerrod’s spina bifida and osteoporosis and stated that the reason no bruising occurred on Jerrod’s leg was that “it .takes very minor trauma to cause fractures in these children with these very soft bones.” Later, he added:
The bones, because they are not exercised, do not bear weight and cannot be used ... are smaller ... much thinner and [have] osteoporosis in them from essentially the waist down_The osteoporotic bones are very easy to break ... because of the thing.
As already set forth, Primm requested AMI 2203 setting forth the law that she should be compensated to the full extent of her son’s injury even though the degree and extent of the injury were caused by his existing osteoporosis.
USF&G contends that because the jury found in its favor, this amounted to a finding of no liability. Hence, it argues, failure to give a damage instruction like AMI 2203 was at worst harmless error. Though the argument has some surface appeal, we are not convinced that AMI 2203 is merely a damage instruction. Rather, it embraces definite aspects of proximate causation when it discusses aggravation of an existing condition and predisposition of the plaintiff to injury to a greater extent than another person.
The precept at issue here is known as the “eggshell plaintiff” rule. Simply stated, the rule embraces the principles that a tortfeasor must accept a plaintiff as he finds him and may not escape or reduce damages by highlighting the injured party’s susceptibility to injury. See Benn v. Thomas, 512 N.W.2d 537 (Iowa 1994); Hoffman v. Schafer, 815 P.2d 971 (Colo. App. 1991) aff’d Schafer v. Hoffman, 831 P.2d 897 (1992); Casey v. Fredrickson Motor Express Corp., 99 N.C. App. 49, 387 S.E.2d 177 (1990); see also Prosser and Keeton on the Law of Torts § 43, p. 292 (5th ed. 1984).
In Benn v. Thomas, supra, the Iowa Supreme Court confronted the same issue before this court. The plaintiff’s decedent had a prior heart condition and suffered a bruised chest and fractured ankle in a car accident. He died of a heart attack following the accident. The plaintiff sought an instruction based on the “eggshell plaintiff” rule, which the trial court refused on the basis that the jury had been given the general instruction on proximate causation. The Supreme Court reversed the trial court and commented on whether the proposed instruction was one involving damages or proximate cause:
Defendant contends that plaintiff’s proposed instruction was inappropriate because it concerned damages, not proximate cause. Although the eggshell plaintiff rule has been incorporated into the Damages section of the Iowa Uniform Civil Jury Instructions, we believe it is equally a rule of proximate cause.
Benn, 512 N.W.2d at 539; see also Sumpter v. City of Moulton, 519 N.W.2d 427 (Iowa App. 1994). The same holds true in Arkansas.
We have had occasion to review the failure to give AMI 2203 as alleged error following a defendant’s verdict. See Simpson v. Hurt, 294 Ark. 41, 740 S.W.2d 618 (1987). In Simpson, we concluded that it was not error to refuse the instruction, but we did so on the basis of failure of proof that a previous condition had been aggravated and not because AMI 2203 was a damage instruction which rendered the issue moot.
We conclude that it was error not to give AMI 2203 in this case. Jerrod had a prior bone condition that made him susceptible to injury as Dr. Sherrill testified. Predisposed to injury as he was, he readily qualified as an “eggshell plaintiff.” His susceptibility to injury is precisely what AMI 2203 contemplates, and the instruction requires compensation for the full injury sustained. Without AMI 2203, the inference or, indeed, the overt argument might prevail that the injured party’s predisposition to injury was a defense for the defendant. Indeed, it was emphasized throughout this trial how brittle and susceptible to broken bones Jerrod was. Because of this, we do not agree with the trial court that the evidence supports USF&G’s theory that what occurred was a new break that had nothing to do with Jerrod’s osteoporosis.
We further note that a general verdict was rendered in this case which reads: “We the jury find for the defendant.” That verdict could have been based on a finding of no liability or no damages or both. We observe that special interrogatories concerning liability or damages were not requested by USF&G. That leaves this court in the position of not knowing the basis for the jury’s verdict. See Smith v. Babin, 317 Ark. 1, 875 S.W.2d 500 (1994); Harding v. Smith, 312 Ark. 537, 851 S.W.2d 427 (1993); see also Mikel v. Hubbard, 317 Ark. 125, 876 S.W.2d 558 (1994). We will not speculate on what the jury found. See Barnes, Quinn, Flake & Anderson v. Rankins, 312 Ark. 240, 848 S.W.2d 924 (1993).
Since this matter is remanded, we comment on the two remaining issues raised by Primm that are likely to reoccur on retrial. We find no error in the trial court’s refusal to give the Presumption Instruction. This issue arose because the handwritten statement by Ms. Perkins following the accident was not made available to Primm; only a typewritten statement was. Primm contended that because the handwritten statement was not provided, all presumptions concerning what the statement contained must be made in her favor and that the jury should be instructed accordingly. While Primm correctly states the presumption principle on failure to produce discoverable material [see Thomas v. Farm Bureau Ins. Co. of Arkansas, 287 Ark. 313, 698 S.W.2d 508 (1985)], the principal of the school, Phil Hays, testified that the handwritten statement was not available and that the typewritten statement was taken from it, which was normal procedure. As we held in the Thomas case, the presumption only arises where the party relying on a document has possession of it and does not produce it. The proof does not support the fact that the handwritten statement was withheld from Primm.
Primm also urges that the trial court erred in permitting Principal Hays to sit at the counsel table as USF&G s representative. The trial court permitted this under the exception to Rule 615 regarding exclusion of witnesses for “a person whose presence is shown by a party to be essential to the presentation of his cause.” Ark. R. Evid. 615(3). Primm was upset by this turn of events because of the principal’s popularity in the community, and she contended, among other things, that the superintendent of the school district might have been the more appropriate representative. Primm, however, presents us with no authority to shore up her theory that the trial court abused its discretion. Accordingly, we decline to research the point or to reach the issue. Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).
Reversed and remanded. | [
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ANDREE LAYTON Roaf, Justice.
This case presents the issue of a bank’s liability for a criminal attack at an automated teller machine (“ATM”). Appellants Stephanie M. Boren and Kimberly J. Vanbib-ber were shot by a robber while Boren, accompanied by Vanbibber, was transacting business at an ATM owned and operated by appel-lees Worthen National Bank of Arkansas and Worthen Banking Corporation (“Worthen”). Boren and Vanbibber sued Worthen for negligence. They appeal from the trial court’s award to the bank of summary judgment as a matter of law. We affirm.
On July 21, 1993, at approximately 9:00 p.m., Boren, a customer of Worthen, drove to an outdoor, drive-through type ATM at a Worthen branch on Baseline Road in Little Rock to make a cash withdrawal. Vanbibber was a passenger in her car. As they were leaving the bank’s premises, two young men who had been hiding behind shrubs and foliage across the street from the ATM approached. One of the men began firing a pistol into the car, wounding both Boren and Vanbibber. At the direction of the gunman, one woman dropped her wallet and the other her purse out the car window and drove away.
Boren sued Worthen for negligence in (1) failing to install the ATM in a secure manner with proper protective devices against robbers; (2) installing the ATM adjacent to a heavily shrubbed area and housing project; (3) failing to remove or to get permission to remove foliage from the danger of robbery at night and during non-business hours; (4) failing to warn banking customers of the danger of robbery at night and during non-business hours; (5) failing to install adequate cameras to monitor the area; (6) failing to illuminate the area with proper lighting; (7) failing to provide security guards; and (8) operating an ATM in an area where the Bank knew or should have known its ATM customers were vulnerable. Other defendants were named, but were dismissed from the action.
Apparently, Vanbibber filed a similar suit, but that complaint is not part of the record for this appeal. On Worthen’s motion, and by agreement of the parties, the Boren and Vanbibber lawsuits were consolidated by the trial court.
Worthen moved for summary judgment and contended that it owed no duty to protect its customers against criminal activity perpetrated by third parties. Worthen admitted during discovery that the Baseline ATM was the first such equipment purchased by the bank, and that it had experienced three incidents of theft, robbery, murder, or attempted murder involving its ATM units since January 1, 1986. One of the three incidents had occurred at the Baseline ATM on May 2, 1993 — less than three months before the occurrence at issue; another incident occurred on November 6, 1993, after the robbery involving Boren.
It appears from the briefs that the trial court first denied the motion; no order of denial is abstracted or in the record. Worthen then filed a motion to reconsider the denial. Boren responded and attached two affidavits in opposition to the motion to reconsider. In the first affidavit, James Baker, who was president of a security firm and a former Dallas, Texas, policeman, opined that the ATM unit in question was not properly installed or monitored to address danger to the bank’s customers and concluded that the bank was negligent. In the second affidavit, Michael Nyberg, State Crime Prevention Coordinator for the Arkansas Crime Information center and Executive Director of the Arkansas Crime Prevention Association, gave his opinion that Baseline Road in Little Rock is the highest violent-crime commercial area in the city. He averred that the danger posed to bank customers was clearly foreseeable.
On reconsideration of the motion, the trial court granted summary judgment. In its letter opinion to counsel, the trial court stated:
Primarily I am most persuaded by the rationale in the cases set forth in Worthen’s original brief and by the Bartley case set out in Worthen’s supplemental brief. It seems that jurisdictions across the country share the same reluctance to reassign the duty of protecting our citizens from violent, non-foreseeable, third-party, criminal acts, from the government to the private sector. While the Bartley case is a landlord-tenant case, the reasoning of Professor Schoskinski, adopted by the court, is equally applicable in the ATM cases.
The language cited by Worthen in its original brief in Page, Cornpropst, and Goldberg, is persuasive. While Mr. McMath has suggested that Worthen had reason to foresee that crime might take place, the language of the brief in that regard is sensible. Crime is everywhere! One is subject to be a victim of violence at virtually every locale, public or private. While some areas are hit more often, there is still no standard to set in place by which the merchant can abide with confidence that the measures taken will ensure the safety of patrons. Certainly, the most capable of police forces in America have not been able to stop crime, or even slow it down, in “high crime” areas.
On appeal, Boren and Vanbibber contend that the trial court erred in two respects. They first assert that the trial court erred in granting the summary judgment in reliance on a landlord-tenant case which is not applicable to a business-premises case where the business invitee, unlike a tenant, never assumes control of the premises. They further assert that the trial court erred in failing to hold Worthen subject to the standard rule of ordinary care, and that the bank failed to take reasonable steps to assure the safety of its patrons.
I. Record and Abstract
We first note certain deficiencies in the record and abstract. Because Vanbibber’s complaint is not included in either the record or the abstract, we are unable to determine whether she was a customer of Worthen, and thus an invitee, or the basis for her cause of action. When essential pleadings are not before us, we affirm the trial court pursuant to Supreme Court Rule 4-2(a)(6). See In Re Estate of Brumley, 323 Ark. 431, 914 S.W.2d 735 (1996). We thus will not consider her appeal.
Moreover, although we reach the merits of Boren’s appeal, the appellants’ failure to abstract any portion of some eleven depositions taken in this lawsuit and referenced only by captions in appellants’ abstract renders them unusable by this court in our analysis of her issues. Although the depositions are part of the record, we have said many times that there is only one record and seven justices. We will not require seven justices to scour one record for material that should have been abstracted. See, e.g., In Re Estate of Brumley, supra; Stroud Corp., Inc. v. Hagler, 317 Ark. 139, 875 S.W.2d 851 (1994).
II. Reliance on Landlord-Tenant Law
Boren first contends that the trial court erred by relying on a landlord-tenant case, Bartley v. Sweetser, 319 Ark. 117, 890 S.W.2d 250 (1994), which upheld the common-law principle that a landlord owes no duty of care to tenants for the criminal acts of other persons. While we agree with Boren that reliance solely on the Bartley v. Sweetser decision would be misplaced, the trial court stated further reasons for his decision to grant summary judgment, including the rationale employed in similar ATM cases from other jurisdictions cited by Worthen in its initial summary-judgment brief. Moreover, the trial court acknowledged that Bartley v. Sweetser was a landlord-tenant case, but stated that it found the following reasoning employed in this case to be equally applicable in an ATM case:
[T]he notion that the act of a third person in committing an intentional tort or crime is a superseding cause of harm to another . . the often times difficult problem of determining foreseeability of criminal acts; the vagueness of the standard which the landlord must meet; the economic consequences of the imposition of the duty; and the conflict with public policy allocating the duty of protecting citizens from criminal acts to the government rather than the private sector.
Although we cannot say that the trial court relied primarily on Bartley v. Sweetser in reconsidering its early denial of summary judgment, Worthen certainly urged that the trial court do so. And, while some of the policy considerations articulated in Bartley v. Sweetser may also be applicable in determining the liability of a business owner for criminal acts committed on its premises by a third party, the analysis will not be. In Bartley v. Sweetser, we in essence recognized and adhered to our long-standing general rule that a landlord is under no legal obligation to a tenant for injuries sustained in common areas, absent a statute or agreement. We held that a landlord likewise had no duty to protect a tenant from criminal acts. This underlying general rule does not apply to injuries sustained by business invitees on business premises, and we agree that the Bartley v. Sweetser decision does not serve as precedent for this case.
III. Duty of Care
Boren next argues that the trial court further erred in failing to hold Worthen subject to the standard negligence rule of ordinary care. She asserts that had the proper standard been applied, there was sufficient evidence that Worthen (1) knew or should have known that the Baseline ATM was extremely dangerous in that it was “conducive to robbery” and (2) refused to adopt accepted industry standards which would have corrected the danger.
She contends that the two criminal attacks at Worthen ATMs between January 1, 1986 and July 21, 1993, including one at the same Baseline ATM three months prior to the attack on her, are evidence of extreme danger, along with the evidence that the Baseline ATM was in a high crime area. The affidavit of Nyberg opined that the Baseline Road commercial strip is the “highest violent crime commercial area in the city of Little Rock,” and that the hazard of an attack by robbers at the Baseline ATM was clearly foreseeable.
As to the failure to take corrective measures, the affidavit of Baker, Boren’s security expert, stated that the Baseline ATM “was not properly installed, monitored, or protected according to accepted safety standards in the banking industry so as to address the foreseeable danger of customers being attacked by robbers.” He further specified that the ATM was in a violent area of the city, virtually isolated on a dark side street, beyond the visibility of motorists, that the lighting was inadequate, and that Worthen had declined to use an instructional video made available to it on ATM safety measures.
For the appropriate standard of care, Boren relies on the Restatement (Second) of Torts concerning premises liability and acts of third persons committed against invitees:
A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.
Restatement (Second) of Torts, § 344, pp. 223-224 (1965) (emphasis added). Under comment f to this section, the following commentary is given:
f. Duty to police premises. Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.
Section 344 and comment f base liability of a business for the intentional acts of third persons on whether that business had reason to know, from past experience or from the character of the business, that there was a likelihood of danger to the safety of any visitor. Criminal acts by third persons against invitees would appear to be included within this standard.
Boren also submits, as precedent, this court’s holding in Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983). She asserts that Keck is authority for the proposition that where a crime victim can show that a defendant breached a duty of care and could reasonably have foreseen that a crime might result from the breach, a jury question of negligence is created. However, Keck is as readily distinguishable from the present case as is Bartley v. Sweetser. Keck was abducted and raped by a person pretending to be a prospective employer. She sued the defendant employment agency which had referred her to the attacker for employment. Keck had been placed with him on the same day he had come to the agency’s office appearing unkempt, and claiming to be an employer. No background check was done even though the agency’s counselors stated that his appearance was bad and that they were shocked by his attire. This court recognized that one is ordinarily not liable for the acts of another unless a special relationship exists between the two, such as master and servant, and that a cause of action for negligence against the employment agency was properly stated because here, such a special relationship was present. We held that the agency had a duty of care arising from its contractual relationship with the prospective employer, its ability to foresee some danger to Keck, and because it had some degree of control over the employers it made available. Clearly, no such special relationship can be shown to exist between a business owner, such as Worthen, and the criminal element at large in any community.
Although the issue before us is one of first impression in Arkansas, we have previously considered the question of liability of business owners for criminal acts committed against their patrons by third parties. Also, other jurisdictions have decided the precise issue presented by Boren — the liability of a bank for an attack on its ATM customer — and this issue has in recent years been the subject of numerous law review articles and other writings.
As a starting point in determining if Worthen has a duty of care in this instance, we first consider whether our earlier holdings dealing with business-premises liability for criminal acts have any application to the instant case. We have previously considered the duty of care owed in this context to patrons of saloons, hotels, places of amusement, and common carriers. In Ind. Park Bus. Club v. Buck, 252 Ark. 513, 479 S.W.2d 842 (1972), a damage award was upheld for a patron shot in an altercation on the premises of a saloon. This court stated that “the weight of authority supports the view that while a tavern keeper is not an insurer of the safety of its patrons, he is under the duty to use reasonable care and vigilance to protect guests or patrons from reasonably foreseeable injury, mistreatment or annoyance at the hands of others.”
In Catlett v. Stewart, 304 Ark. 637, 804 S.W.2d 699 (1991), a damage award was upheld for a guest shot by a hotel employee’s husband. The employee failed to call the police during a dispute on the premises with her husband, whom she knew to be violent. This court recognized that while a hotel is not an insurer of the safety of its guests, it is charged with the duty to take all precautions for their protection that reasonable prudence and ordinary care would suggest, and found that there was evidence to support a finding of negligence. In Twin City Amusement Co. Inc. v. Salater, 237 Ark. 206, 372 S.W.2d 224 (1963), an award of damages was reversed where a patron was struck by a rock thrown at him as he was leaving the grounds of Barton Coliseum after a rock-and-roll concert. The opinion stated that while a proprietor of a theater or other place of amusement has a duty to police the premises and employ enough servants to afford reasonable protection, he is not an insurer of the safety of its patrons. The court characterized the rock-throwing incident as a “sudden, unexpected and unforeseeable affray.”
Finally, we have twice considered the duty of care owed to passengers of common carriers. In Black and White Cab Co. v. Doville, 221 Ark. 66, 251 S.W.2d 1005 (1952), an award of damages to a taxicab passenger was upheld when he was assaulted and beaten by another passenger. The driver of the cab continued on to several destinations during the assault and did not protest, call the police, or do anything to stop the attack. However, in Arkansas Power and Light Co. v. Steinheil, 190 Ark. 470, 80 S.W.2d 921 (1935), this court reversed an award of damages for injuries suffered by a passenger assaulted on a crowded streetcar where the motorman was not informed of the assault until after it took place and the evidence failed to show the motorman could have prevented the assault even if he had observed it. In Doville, supra, the following duty of care was articulated:
[A] carrier owes to its passengers the duty of protection from violence and assaults of other passengers or strangers, so far as this can be done by the exercise of a high degree of care, and will be held responsible for its own or its servant’s negligence when, by the exercise of proper care, the act of violence might have been foreseen and prevented.
(Emphasis added.)
Although we do not consider these cases precedent in the instant case, it is clear that while this court has on several occasions recognized the duty of a business owner to protect its patrons from criminal attacks, we have done so only where the owner or its agent was aware of the danger presented by a particular individual or failed to exercise proper care after an assault had commenced. We must therefore look further for guidance in determining whether Worthen had a duty to protect Boren from criminal attack under the particular circumstances involved in the operation of an unattended ATM facility.
We thus turn to consideration of the cases in which other jurisdictions have decided the issue presented by the attack on Boren. Both Boren and Worthen have cited foreign case law in support of their respective arguments. It is generally recognized that from these and other cases involving criminal attacks on business invitees in general, three tests have evolved for determining whether a duty of care is owed by financial institutions to protect ATM users against the criminal acts of third parties. See generally 3 Premises Liability, Second Edition, § 49:3 et seq. (1995); Gregory W Hoskins, Violent Crimes at ATMs: Analysis of the Liability of Banks and the regulation of Protective Measures, 14 N. Ill. U.L.Rev. 829 (1994). In all three tests, the foreseeability of the criminal act is a crucial element in determining whether a duty is owed.
The first and most basic approach is referred to as the Specific Harm Test. In this approach, foreseeability, and thus liability, is limited to situations where the business owner is aware of the imminent probability of specific harm to its customer. See e.g. Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn. 1975); Page v. American Nat’l Bank & Trust Co., 850 S.W.2d 133 (Tenn. App. 1991); Fuga v. Comerica Bank-Detroit, 509 N.W.2d 778 (Mich. App. 1993). Worthen relies on these cases to support its argument that no duty is owed to a business invitee in the circumstances presented by the attack on Boren. This rule as articulated in Page, supra, provides that there will be no duty upon business owners to guard against criminal acts of a third party unless they “know or have reason to know that acts are occurring or about to occur on the premises that pose imminent probability of harm to an invitee.” Using this approach, it would be virtually impossible to ever hold a financial institution liable for a criminal act occurring at an ATM. Since ATMs are almost always unmanned, the owner would consequendy never be aware of a specific “imminent probability of harm” to an invitee.
The second test is the Prior Similar Incidents Test. Courts that have employed this approach have focused on the existence of prior similar incidents to determine whether a particular crime was foreseeable. The duty to police premises found in the Restatement (Second) of Torts is the underpinning of this approach, See § 344, cmt. f, supra; See also Williams v. First Alabama Bank, 545 So.2d 26 (Ala. 1989); Dyer v. Norstar Bank, N.A., 588 N.Y.S.2d 499 (1992). In this analysis, the similarity, frequency, location, and proximity in time of the prior incidents are the key elements to be considered. Here, Boren has shown that there was an attack at the same ATM three months before she was attacked. However, courts that have employed this approach have required that the prior similar incidents be more numerous. See Golombek v. Marine Midland Bank, N.A., 598 N.Y.2d 891 (1993) (two prior incidents not sufficient to render robbery at night deposit box reasonably foreseeable); Williams, supra, (knowledge of two prior robberies at same bank insufficient to determine that robbery of ATM customer was foreseeable); Nallan v. Helmsley-Spear, Inc., 407 N.E.2d 451 (N.Y. 1980) (notice of 107 reported crimes on the premises in 21 months preceding assault sufficient to establish breach of duty); Taco Bell v. Lannon, 744 P.2d 43 (Colo. 1987) (10 armed robberies in three years preceding incident established that harm to customers was reasonably foreseeable). The rationale of this test is perhaps best expressed in Dyer, supra:
The fact that a person using an ATM might be subject to robbery is conceivable, but conceivability is not the equivalent of foreseeability. To hold defendant liable for plaintiff’s injury [would be] to stretch the concept of foreseeability beyond acceptable limits. (Citations omitted.)
Thus, even if the prior-similar-incidents test is employed, we are not persuaded that one prior incident at the Baseline ATM is sufficient to establish foreseeability. The requirement of numerosity is discussed in Premises Liability, § 49, supra:
For a duty to protect invitees from criminal acts by third persons to arise from prior criminal conduct, the prior crimes must be violent and sufficiently numerous and recent to put the landowner on notice that there is a likelihood of danger. . . .
This treatise further provides: “The foreseeability of criminal liability on premises cannot be predicated on a single previous act of violence.” Id. at § 49.10.
The third and final test is the Totality of the Circumstances Test. This approach to foreseeability is also based on the Restatement (Second) of Torts, however it expands the determination of foreseeability beyond the prior-similar-incidents standard to a consideration of all circumstances surrounding the event. This standard emphasizes the “places or character of the business” language found in the Restatement. See § 344, cmt. f, supra. The analysis thus includes the nature, condition, and location of the premises, in addition to any prior similar incidents, and a duty can be found where no prior criminal attacks have occurred. See Torres v. United States National Bank, 670 P.2d 230 (Or. App. 1983); Isaacs v. Huntington Memorial Hospital, 695 P.2d 653 (Cal. 1985). Courts that employ this standard have found an inherent risk involved in transacting after-hours banking and have painted foreseeability with especially broad strokes, in one instance holding that the robbery of a person using the services of a bank, including an automatic money machine, is clearly foreseeable even where no prior robberies have occurred at that branch. Richard E. Vogel, Institutional Liability For Attacks On ATM Patrons, 4 U. Ill. L. Rev. 1009, 1023 n.141 (1994).
This, in our view, is the only test that would allow Boren to establish that Worthen owed her a duty of care. However, we decline to adopt this approach, as have the majority of jurisdictions that have considered this issue. To do so would result in the imposition of a duty to guard against random criminal acts by third parties, a duty we have heretofore not imposed on any other businesses. We are further persuaded that the policy considerations articulated by the trial court, especially the reluctance to shift responsibility for violent, nonforeseeable, third-party criminal conduct from the government to the private sector, militate against the imposition of this standard. We also cannot say that it would be appropriate as a matter of policy to impose a higher duty on business owners who are willing to provide their services in “high-crime areas” or “near a housing project” — most commonly the areas in which low- and moderate-income residents are to be found.
We hold that two incidents of robbery at Worthen ATMs in the nearly eight years prior to the attack on Boren are not sufficient to impose a duty on Worthen to guard against the criminal acts of a third party.
Affirmed.
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ROBERT L. Brown, Justice.
Appellant Hardy Construction Company, Inc., appeals the chancery court’s dismissal of its petition for the appointment of an arbitrator and raises four points for reversal: (1) the chancery court was required by statute to appoint an arbitrator; (2) the arbitrators decide procedural matters, not the courts; (3) the chancery court has jurisdiction to enforce the arbitration clauses at issue; and (4) sovereign immunity is no defense to the petition by Hardy Construction. We agree with Hardy Construction that the chancery court had subject-matter jurisdiction, but we affirm the decision of that court because of the insufficiency of the abstract.
In 1987, Hardy Construction entered into a contract with appellee Arkansas State Highway and Transportation Department to construct a project designated as Missouri Street overpass in West Memphis. In 1989, the same parties contracted for Hardy Construction to construct a second project, also in West Memphis, designated as the West Memphis Interchange at Interstate Highway 55. Both contracts provided that any disputes would be setded by arbitration.
The two contracts provided with respect to arbitration that each party would appoint a member to serve on the arbitration panel. Those two arbitrators would then select a third member. The provision further states:
If such arbitrators are unable to agree upon the third member of the Board of Arbitration within ten (10) calendar days after their appointment, application may be made by either party to the Chancery Court of Pulaski County within ten (10) calendar days for such purpose, and the court shall, on or before ten (10) calendar days thereafter[,] appoint a disinterested party to serve as the third member of said Board of Arbitration.
The contracts further provided that prefatory to arbitration any disputes must be submitted to the resident engineer and, if unsuccessful, then appealed to the Chief Engineer of the Highway Department for final decision. Within 20 days of an unfavorable decision, a party could request arbitration. Thus, according to the contracts, the party requesting arbitration first had to exhaust all remedies within the Highway Department.
Disputes arose over the final estimates of compensation due Hardy Construction on both projects. On June 21, 1995, Hardy Construction gave notice of arbitration and designated its arbitrator for the arbitration process. On August 4, 1995, Hardy Construction filed its Petition for Appointment of Arbitrator. In that petition, Hardy Construction asserted that the Highway Department had refused to select its arbitrator and was frustrating the arbitration process under both contracts. Hardy Construction further prayed that the chancery court appoint the third arbitrator in accordance with the contracts so as to move the process along.
On August 28, 1995, the Highway Department moved to dismiss the petition in separate motions for each job. (Both motions are substantially the same and are treated as one for purposes of this opinion.) The Department urged in its motion that the petition failed to show that the chancery court had jurisdiction over the subject matter and further that Hardy Construction had failed to allege that it had exhausted administrative remedies under the contracts by submitting the dispute to the Department’s engineers. Finally, the Department cited sovereign immunity as grounds for dismissal. On September 5, 1995, Hardy Construction amended its petition to add a paragraph to state “that all conditions precedent have been performed ...” On October 16, 1995, the chancery court concluded in part:
Plaintiff has appointed an arbitrator; however, the defendant has not appointed an arbitrator, because it contends plaintiff has not followed the administrative procedures under the contract. Therefore, there is no situation where the two arbitrators appointed by the parties are unable to agree on a third arbitrator, and, under the terms of the contract, that is the only provision for court intervention.
Plaintiff amended its petition on September 5, 1995; however, it still does not request any relief in this court that is cognizable in equity. It is simply trying to get this court to appoint a third arbitrator, and the provisions for that contingency have not occurred. Since plaintiff is asking this court to perform a duty that is not provided for in the contract, it is attempting to modify the terms of the arbitration provisions. At the hearing, plaintiff contended that it was asking for specific performance; however, its pleadings have not been amended, nor have any additional parties been named. It is axiomatic that the State cannot “be made a defendant in any of her courts.” Article 5, Section 20, Constitution of Arkansas.
The chancery court ordered that the petition be dismissed under Ark. R. Civ. P. 12(b)(6).
I. Jurisdiction
The issue of subject-matter jurisdiction raised by the Highway Department is paramount and must be addressed first. Under the Uniform Arbitration Act, codified at Ark. Code Ann. § 16-108-201 et seq. (1987), the following section is found:
The term “court” means any circuit or chancery court of this state. The making of an agreement described in § 16-108-201 providing for arbitration in this state confers jurisdiction on the court to enforce the agreement under this subchapter and to enter judgment on an award thereunder.
Ark. Code Ann. § 16-108-217 (1987). The contract provision set forth above in this opinion alludes to jurisdiction in Pulaski County Chancery Court. While it is true that the parties may by agreement consent to personal jurisdiction in a given court, subject-matter jurisdiction cannot be conferred merely by agreement of the parties. See, eg., Flemens v. Harris, 319 Ark. 659, 893 S.W.2d 783 (1995); Arkansas Dep’t of Human Servs. v. Estate of Hogan, 314 Ark. 19, 858 S.W.2d 105 (1993); Nelms v. Morgan Portable Bldg. Corp., 305 Ark. 284, 808 S.W.2d 314 (1991). Thus, if subject-matter jurisdiction is appropriate, the parties may agree on the appropriate court in which to resolve disputes.
Hardy Construction argues that subject-matter jurisdiction is appropriate in chancery court because the relief requested is akin to a mandatory injunction to enforce the contract or, alternatively, to specific performance of the contract provision relating to court appointment of an arbitrator. Specific performance is an equitable remedy cognizable only in equity. Arkansas State Employees Ins. Advisory Comm. v. Estate of Manning, 316 Ark. 143, 870 S.W.2d 748 (1994). Although there is no case in Arkansas that specifically addresses whether the chancery court has jurisdiction to act to enforce an arbitration agreement pursuant to statutory authority, foreign jurisdictions have treated these actions as ones for specific performance of a contract to arbitrate. See Annapolis Professional Firefighters Local 1926, IAFF, AFL-CIO v. City of Annapolis, 100 Md. App. 714, 642 A2d 889 (1994) (dictum); Trubowitch v. Riverbank Canning Co., 30 Cal. 2d 335, 182 P.2d 182 (1947); see also 4 Am. Jur. 2d Alternative Dispute Resolution § 113, p. 158 (1995).
For example, in Annapolis Professional Firefighters Local 1926, IAFF, AFL-CIO, supra, the Maryland Court of Special Appeals addressed by way of dictum the power of a court of equity to appoint an arbitrator under the Uniform Arbitration Act when the agreed method failed or otherwise could not be followed:
Although this power, under the Act, is a statutory one, it is not foreign to or inconsistent with the general equitable jurisdiction of a circuit court. Equity courts have long had the power, for example, when specifically enforcing agreements, to appoint trustees to carry out their decrees when a party proves recalcitrant or when otherwise necessary to implement the agreement.
Annapolis Firefighters, 642 A.2d at 895.
To support its argument that the chancery court did not have subject-matter jurisdiction, the Highway Department directs our attention to Bates v. Bates, 303 Ark. 89, 793 S.W.2d 788 (1990). In that case, this court reiterated that the General Assembly is without authority to expand the jurisdiction of chancery courts beyond that granted by the 1874 Arkansas Constitution. Bates, 303 Ark. at 91, 793 S.W.2d at 790. In Bates, we held specifically that the General Assembly could not expand the chancery court’s jurisdiction to include areas of criminal law. The Bates case, though, is distinguishable from Annapolis Firefighters and the instant case because the latter situations add nothing to a court of equity’s traditional responsibilities to specifically enforce agreements to arbitrate under certain circumstances.
Though Arkansas does not have a precise case in point, an analogous situation arose in Arkansas Cotton Growers Coop. Ass’n v. Brown, 168 Ark. 504, 270 S.W. 946 (1925). In Brown, we interpreted the Cooperative Marketing Act, including a provision of the Act which gave the Association the right to seek an injunction in equity against a member “to prevent the further breach of the contract and to a decree of specific performance thereof.” see 1921 Ark. Acts 116, § 17, codified at Ark. Code Ann. § 2-2-419 (a)(1) (Repl. 1996). We stated in Brown:
It is contended that the chancery court does not possess jurisdiction to prevent a breach by injunction and thereby compel specific performance of the contract. The statute creating the association contains an express provision for such relief, but it is contended that this statute constitutes an attempt to enlarge the jurisdiction of the court, which is beyond the power of the lawmakers. We do not agree to this view, for it has always been within the jurisdiction of courts of equity to grant relief where legal remedies are inadequate, and it is evident that, by reason of the peculiarity of the cooperative marketing plan, any legal remedy would be wholly inadequate. The only remedy at law would be a suit to recover damages, but this remedy is inadequate, for the reason that the recovery of damages for a failure to deliver cotton would not repair the injury done if a substantial number of the members should refuse to deliver cotton.
168 Ark. at 521-522, 270 S.W. at 953.
It is clear that the chancery court had jurisdiction to enforce the contracts in this case pursuant to the Uniform Arbitration Act.
II. Abstract
We turn then to a consideration of the abstract presented by Hardy Construction and whether it presents us with enough information to enable us to decide the points raised on appeal. We conclude that it does not.
Hardy Construction’s first point is that the Uniform Arbitration Act, as codified in part at § 16-108-203, authorizes a party to petition the court to appoint one or more arbitrators “if the agreed method fails or for any reason cannot be followed.” Here, according to Hardy Construction, that is exactly what transpired because the agreed method has failed. Our problem with this argument is that there is nothing in the abstract to indicate § 16-108-203 was argued to the chancery court or that a ruling was obtained with respect to that argument. See Edwards v. Neuse, 312 Ark. 302, 849 S.W.2d 479 (1993). The response by Hardy Construction to the motion to dismiss is not abstracted, and there is nothing in the chancery court’s order otherwise reflecting that § 16-108-203 was considered by the chancery court.
This court has been adamant in refusing to consider arguments raised for the first time on appeal, where that argument has not been first presented to the trial court for resolution. See, e.g., Stacks v. Jones, 323 Ark. 643, 916 S.W.2d 120 (1996); Thompson v. Perkins, 322 Ark. 720, 911 S.W.2d 582 (1995). While the issue or argument may be contained in a pleading or brief in the record, we have said many times that there are seven justices of the Supreme Court and one record, and we will not be placed in the position of having seven justices scour one record for pertinent information. Kearney v. Committee on Prof. Conduct, 320 Ark. 581, 897 S.W.2d 573 (1995); Stroud Crop, Inc. v. Hagler, 317 Ark. 139, 875 S.W.2d 851 (1994). We, accordingly, affirm due to lack of sufficient information in the appellant’s abstract to enable us to decide this point. See Ark. Sup. Ct. R. 4-2 (b)(2).
The same holds true for the remaining points raised by Hardy Construction. Its abstract does not reveal that the issue of procedural arbitrability and whether that is a matter for the arbitration panel to decide or the courts was ever brought to the chancery court’s attention. Nor does the abstract reveal whether Hardy Construction’s arguments in opposition to the doctrine of sovereign immunity were brought to the attention of the chancery court. The chancery court did proclaim in its order that the State cannot “be made a defendant in any of her courts,” but the court’s order, as abstracted, does not evidence that Hardy Construction raised the same arguments in opposition to the sovereign immunity doctrine at the trial court level that it now makes on appeal. What is clear from the chancery court’s order is that it made its decision based on the failure of the two contracts to contemplate an appointment of a third arbitrator by the chancery court under the circumstances presented by Hardy Construction. The chancery court further appears to have decided that the Highway Department cannot be estopped from raising a sovereign immunity defense when it did not agree to a judicial appointment of an arbitrator under these conditions. Cf. Foote’s Dixie Dandy v. McHenry, 270 Ark. 816, 607 S.W.2d 623 (1980).
Hardy Construction contends that there was no need to abstract the hearing before the chancery court or its response to the Highway Department’s motion to dismiss because the arguments it made are merely duplicative of those made in its brief on appeal. But showing this court in the appellant’s abstract that an argument has been raised and considered by the trial court is an absolute prerequisite to our review on appeal. Because the abstract is deficient in that regard, we affirm the chancery court’s order. See Ark. Sup. Ct. R. 4-2(b)(2).
Affirmed.
Dudley, J., not participating.
Glaze, J., concurs.
Circuit courts in Maryland sit as courts of law and courts of equity. Md. Courts & Judicial Proceedings Code Ann. § 1-501 (Repl. 1995). | [
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ROBERT H. Dudley, Justice.
Appellant, an inmate in the penitentiary, filed this suit against the Board of Correction and Community Punishment, the Governor, and the Attorney General. He sought a declaratory judgment that two 1993 acts, as applied to him, would constitute a violation of the ex post facto doctrine. He additionally sought mandamus, class certification, and damages. The trial court ruled on the merits and denied relief. We remand for the trial court to dismiss.
Appellant committed the crime of rape in 1989. He contends that his sentence is governed by the law in effect at the time of the offense, and, under that law, the period to be served in the penitentiary could be shortened with “meritorious good time.” See Ark. Code Ann. §§ 12-29-201 and -202 (1987). He next contends that the statutes providing for meritorious good time were repealed by Acts 536 and 558 of 1993, codified as Ark. Code Ann. §§ 12-29-201 and -202 (Repl. 1995), and that in August 1993, Larry Norris, Acting Director of the Arkansas Department of Correction, wrote a memorandum which provided that under the provisions of Act 536 of 1993, some good time will be phased out. He concludes that the effect of the 1993 acts will be to lengthen the period of time he must serve in the penitentiary because “meritorious good time” has been eliminated, and, consequently, the 1993 acts are prohibited as ex post facto laws. The trial court held that statutes which take away appellant’s ability to earn meritorious good time are not ex post facto laws.
Appellant offered no proof at trial that he has been denied meritorious good time. He offered a copy of a memorandum by the Acting Director that provides that some “good time” will be phased out, but, on December 30, 1993, which was after the memorandum was written and before the effective date of the 1993 acts, the Board of Correction and Community Punishment approved a regulation on the express subject of “meritorious good time.” In the material part, it provides:
G. Effective Date
1. Inmates whose offense date is prior to January 1, 1994, shall earn good time (including good time applied to the length of sentence) in accordance with the good time law in effect on the date of the offense.
2. Inmates whose offense date is on or after January 1, 1994, shall earn good time in accordance with Act 549 and Act 536 of 1993, Regular Session.
Arkansas Department of Correction and Community Punishment Regulation DOC 826, DCP 7.9 (approved Dec. 30, 1993, effective Jan. 1, 1994) (superseding Ark. 826, dated July 17, 1991).
By the unmistakable wording of the regulation, the Department does not intend to retroactively apply the 1993 acts to deprive appellant of meritorious good time. Appellant offered no proof to show that the Acting Director’s memorandum has deprived him of meritorious good time. He presented no evidence to show that he has earned meritorious good time which has not been allowed. Under the clear language of the regulation, appellant still has the opportunity to earn meritorious good time in accord with the law in effect on the date of his offense. He does not contend that the Department has erroneously calculated his good time by failing to follow this regulation. There is simply no case or controversy involving the application of the 1993 acts to appellant. A holding by this court would have no practical legal effect on an existing case.
A case is moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. Arkansas Intercollegiate Conf. v. Parnham, 309 Ark. 170, 174, 828 S.W.2d 828, 831 (1992). As a general rule, this court does not address moot issues. A.P. Leonards v. E.A. Martin Mach. Co., 321 Ark. 239, 900 S.W.2d 546 (1995); Johnson v. State, 319 Ark. 3, 888 S.W.2d 661 (1994). There are some exceptions to the general rule, such as cases which are capable of repetition yet evade review, see Nathaniel v. Forrest City Sch. Dist., 300 Ark. 513, 780 S.W.2d 539 (1989), and cases involving the consideration of public interest and prevention of future litigation, see Duhon v. Gravett, 302 Ark. 358, 790 S.W.2d 155 (1990), but these exceptions do not apply to the present case. Accordingly, we remand for dismissal.
Remanded. | [
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DONALD L. Corbin, Justice.
Appellant, Jeffrey Lee Collins, appeals the judgment of the Drew County Circuit Court denying his petition for postconviction relief under Ark. R. Crim. P. 37.1. Jurisdiction of this appeal is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(5). Appellant raises four points for reversal. We find merit to the first point concerning appellant’s right to be tried by a twelve-member jury, and therefore reverse and remand for a new trial.
Appellant was charged by information filed January 31, 1992, with rape and two counts of third-degree carnal abuse. The information charged that appellant had engaged in sexual intercourse or deviate sexual activity with D.D., who was aged fourteen years at the time, and that appellant had engaged in sexual intercourse with A.T., who was aged eleven years at the time. Following trial, the jury convicted appellant of two counts of third-degree carnal abuse and sentenced him on each count to one year in the county jail and fined him $1,000.00. The jury also convicted appellant of rape and sentenced him to twenty years’ imprisonment. Appellant appealed, and the convictions were affirmed in a nonpublished opinion by the Arkansas Court of Appeals (CACR 93-578, June 15, 1994).
Appellant obtained new counsel and filed his petition for post-conviction relief pursuant to Rule 37. The trial court held a hearing on the petition, but the record was destroyed when the storage room where it was kept was vandalized. In accordance with Ark. R. App. P. Rule 6(d), appellant’s counsel filed a statement of the proceedings from the Rule 37 hearing; the state did not file any objections. According to the statement of the proceedings, appellant raised three points at the hearing: that his conviction was unconstitutional because it was rendered by a jury of eleven, that his conviction was unconstitutional because his trial counsel was ineffective, and that he was entitled to relief because the victim repudiated her trial testimony.
The trial court denied the petition for postconviction relief by order filed April 12, 1995. Appellant filed a motion for reconsideration on April 20, 1995, which the trial court denied on May 26, 1995. Appellant filed his notice of appeal to this court on May 31, 1995.
Prior to considering appellant’s arguments for reversal of the judgment denying his petition for postconviction relief, we address a jurisdictional question raised by appellee. The state contends that appellant filed his notice of appeal late, and therefore, this court is without jurisdiction to hear this appeal. The state argues that appellant’s motion for reconsideration of the order denying his postcon-viction relief did not extend the time appellant had to file his notice of appeal. The state bases its argument on the fact that a motion for reconsideration is not one of the three post-trial motions listed in Ark. R. App. P. 4(b). The state recognizes and appellant argues that Ark. R. Crim. P. 36.22 establishes a broad rule as to what motions will extend the time in which to file a notice of appeal. However, the state argues that Rule 36.22 only applies to true post-trial motions and not to postconviction proceedings. The state concedes that if Ark. R. Crim. P. 36.22 is controlling, the notice of appeal was timely.
Rule 36.9 of the Arkansas Rules of Criminal Procedure provides that appeals may be taken within thirty days of the date of entry of an order denying a “a post-trial motion under Rule 36.22” or “the date of entry of an order denying a petition for postconviction relief under Rule 37.” Ark. R. Crim. P. 36.9(a)(2) and (a)(4). As outlined earlier in this opinion, the trial court entered the order denying appellant’s petition for postconviction relief on April 12, 1995, making appellant’s notice of appeal due May 12,1995, pursuant to Rule 36.9. However, appellant filed a motion for reconsideration on April 20, 1995, and the trial court did not deny this motion until May 26, 1995. Appellant filed his notice of appeal five days later on May 31, 1995.
Arkansas Rule of Criminal Procedure 36.22 provides:
A person convicted of either a felony or misdemeanor may file a motion for new trial, a motion in arrest of judgment, or any other application for relief, but all motions or applications must be filed prior to the time fixed to file a notice of appeal. . . . Upon the filing of any motion or other application for relief in the trial court, the time to file a notice of appeal shall not expire until thirty (30) days after the disposition of all motions or applications. [Emphasis added.]
The terms of Rule 36.22 are broad and include a motion for reconsideration of the denial of postconviction relief in the category of “other application for relief.” Thus, the last sentence of Rule 36.22 makes it clear that, because he filed the motion for reconsideration prior to the time fixed to file a notice of appeal, appellant had thirty days from the disposition of his motion for reconsideration in which to file a notice of appeal. Appellant’s notice of appeal was therefore timely filed on May 31, 1995, five days after the denial of the motion for reconsideration, and does not create a jurisdictional problem for this court.
Appellant’s first argument for reversal is that the trial court erred in denying his petition for postconviction relief because he was denied his right under the Arkansas Constitution to be tried by a twelve-member jury. This court will reverse a trial court’s denial of postconviction relief only if its findings are clearly erroneous or clearly against the preponderance of the evidence. Vickers v. State, 320 Ark. 437, 441, 898 S.W.2d 26, 28 (1995).
The pertinent underlying facts are these. After twelve jurors were seated in appellant’s trial, the trial court inquired as to whether counsel wanted alternate jurors or whether it was agreed by counsel that the case would be tried to the twelve jurors already chosen or their survivors. The prosecuting attorney answered yes, and appellant and his trial counsel did not respond. The jury was then sworn, and the trial proceeded. During the trial, the court received a note that the daughter of one of the jurors was being hospitalized. The juror was excused. The trial resumed with no discussion concerning the now eleven-member jury.
Appellant asserts that he had a constitutional right to be tried by a jury of twelve members and that he did not expressly waive that right. The state responds that appellant is barred from raising this point on appeal because he did not raise it as a “free-standing” issue before the trial court; rather, he made his eleven-person-jury argument as one of several bases for his ineffective-assistance-of-counsel claim. The state further responds that even if this point were properly before the trial court, it would not have erred in denying the postconviction relief because, pursuant to Finley v. State, 295 Ark. 357, 748 S.W.2d 643 (1988), a defendant cannot obtain postconviction relief on the basis of mere errors, even constitutional errors.
On the record presented to us, we conclude this issue was properly before the trial court. The state is correct in citing Finley, for the proposition that even constitutional issues must be raised in the trial court and on direct appeal, rather than in Rule 37 proceedings. However, this court has made an exception for errors that are so fundamental as to render the judgment of conviction void and subject to collateral attack. Finley, 295 Ark. 357, 748 S.W.2d 643; Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934 (1980). We have limited this exception to cases that comply with the time requirements of Rule 37. Prince v. State, 315 Ark. 492, 868 S.W.2d 77, cert. denied, 114 S. Ct. 1857 (1994). As applied to this case, Rule 37.2(c) provides that the Rule 37 petition must be filed within sixty days of the date the court of appeals issued the mandate, July 6, 1994. Appellant satisfied this requirement by filing his petition in circuit court on September 2, 1994.
We must determine then whether the denial of the right to a twelve-person jury is an error so fundamental as to render the judgment of conviction void and subject to collateral attack. The answer to that question, in turn, answers the question of whether appellant can raise this argument for the first time in post-conviction proceedings.
In Grinning v. City of Pine Bluff, 322 Ark. 45, 907 S.W.2d 690 (1995), this court cited Williams v. Florida, 399 U.S. 78 (1970), and recognized that a twelve-member jury is not a necessary ingredient of the Sixth Amendment right to trial by jury, made applicable to the states through the Fourteenth Amendment. However, we referred to Byrd v. State, 317 Ark. 609, 879 S.W.2d 435 (1994), in concluding that the guarantee in Ark. Const, art. 2, § 7 of a defendant’s right to a jury trial meant the right to. be tried by a twelve-member jury and that such right must be waived in the manner prescribed by law. See also, Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992). We referred to Rules 31.1 through 31.5 of the Rules of Criminal Procedure as establishing the process for waiver and explained that:
[E]xcept in misdemeanor cases where only á fine is imposed by the court, a defendant must waive his right personally either in writing or in open court and the waiver must be assented to by the prosecutor and approved by the court; a verbatim record of the waiver is required. . . . [I]t is the court’s burden to ensure that, if there is to be a waiver, the defendant waives her right to trial by jury in accordance with the Arkansas Constitution and Rules of Criminal Procedure.
Grinning, 322 Ark. at 48-49, 907 S.W.2d at 691-92. We fiirther explained that the denial of the right to a jury trial is a serious error for which the trial court should intervene and is an exception to the contemporaneous-objection rule. 322 Ark. at 49, 907 S.W.2d at 692. See also Calnan, 310 Ark. 744, 841 S.W.2d 593. We quoted the Arkansas Court of Appeals in referring to the right to trial by jury as a “fundamental constitutional right.” Grinning, 322 Ark. at 50, 907 S.W.2d at 692. Consistent with Calnan and Grinning, we conclude that the right to trial by a twelve-member jury is a fundamental right, the violation of which renders the judgment void and subject to collateral attack. Therefore, we conclude that appellant may raise this issue for the first time in Rule 37 proceedings.
The facts as recited previously clearly reflect that appellant was convicted by an eleven-member jury. Appellant did not waive his right to trial by a twelve-member jury personally in writing or in open court. Thus, the facts are equally clear that no waiver “in the manner prescribed by law” occurred in this case.
The violation of appellant’s jury-trial right requires that appellant receive a new trial. We must therefore reverse the judgment and remand for a new trial. Having granted the requested relief of a new trial, we need not address appellant’s remaining arguments for reversal of the denial of his postconviction petition.
Reversed and remanded.
DUDLEY, J., not participating. | [
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PER Curiam.
Johnny Charles Henley petitions for certiorari and mandamus contending the Lincoln Circuit Court improperly denied his motion for pretrial release. Certiorari is the proper remedy to review a circuit court’s determination of the availability of bail. Thomas v. State, 260 Ark. 512, 542 S.W.2d 284 (1976).
Mr. Henley was charged with attempted murder and aggravated assault on February 14, 1996. On February 16, 1996, Circuit Judge Fred Davis, without conducting a pre-trial release inquiry, ordered Mr. Henley held without bond. Mr. Henley moved to set bond. The motion was heard by Judge H.A. Taylor.
Shordy after Mr. Henley filed his motion to set bond, the State moved the Circuit Court to commit Mr. Henley to the Southeast Arkansas Mental Health Center for a mental examination. The examination was to be “for the purpose of determining whether or not the Defendant is a clear and present danger to himself, to others, or both, as defined in Ark. Code Ann. § 20-47-207(c).” Judge Taylor granted the motion.
In a report filed in the Circuit Court, Dr. Malik of the Southeast Arkansas Mental Health Center observed that Mr. Henley has a long history of violence and he tends to become violent when he uses drugs and alcohol. For those reasons, Dr. Malik concluded Mr. Henley was a danger to others.
Mr. Henley’s petition states that based on Dr. Malik’s opinion, Judge Taylor refused to set any conditions for his pretrial release, and in doing so stated, “I am familiar with Rule 9.3 of the Arkansas Rules of Criminal Procedure, but if any judge is going to release Mr. Henley, it’s not going to be this judge.” Mr. Henley argues that under A.R.Cr.P. 9.3, Judge Taylor did not have the option to refuse his pretrial release. We agree.
Article 2, § 8, of the Arkansas Constitution provides that “All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when proof is evident or the presumption great.” Stated another way, a criminal defendant has an absolute right before conviction, except in capital cases, to a reasonable bail. Reeves v. State, 261 Ark. 385, 548 S.W.2d 822 (1977), See also Duncan v. State, 308 Ark. 205, 823 S.W.2d 886 (1992). If the defendant is determined to be dangerous, Rule 9.3 sets forth the conditions a judicial officer may place upon a defendant’s bail if he is determined to be dangerous:
Prohibition of Wrongful Acts Pending Trial.
If it appears that there exists a danger that the defendant will commit a serious crime or will seek to intimidate witnesses, or will otherwise unlawfully interfere with the orderly administration of justice, the judicial officer, upon the release of the defendant, may enter an order:
(a) prohibiting the defendant from approaching or communicating with particular persons or classes of persons, except that no such order shall be deemed to prohibit any lawful and ethical activity of defendant’s counsel;
(b) prohibiting the defendant from going to certain described geographical areas or premises;
(c) prohibiting the defendant from possessing any dangerous weapon, or engaging in certain described activities or indulging in intoxicating liquors or in certain drugs;
(d) requiring the defendant to report regularly to and remain under the supervision of an officer of the court.
As can be seen from the constitutional provision and the criminal procedure rule, a non-capital defendant’s absolute right to bail may only be curbed by the setting of certain conditions upon his release, and not its complete denial. Although the mental examination provided Judge Taylor with a basis for setting stringent conditions on Mr. Henley’s release, it did not give him the option of refusing to release him from incarceration.
Although a probate court may in some instances, after appropriate hearings, involuntarily commit for an extended period a mentally ill person who is dangerous to himself or herself or others, Ark. Code Ann. §§ 20-47-201 through 20-47-228 (Repl. 1991 and Supp. 1995), the jurisdiction of a circuit court with respect to criminal defendants thought to be mentally ill is limited. See Schock v. Thomas 274 Ark. 493, 625 S.W.2d 521 (1981).
We grant the writ of certiorari and remand to the Circuit Court for further hearing and orders consistent with this opinion.
Glaze and Corbin, JJ, dissent. | [
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BRADLEY D. Jesson, Chief Justice.
The issue on appeal is whether the appellant was denied his right to a speedy trial under the Arkansas Rules of Criminal Procedure. We conclude that he was, and reverse and dismiss his convictions.
The appellant was arrested on January 12, 1994. No informa tion was filed against him until August 17, 1994. In that information, and in an amended information filed December 22, 1994, he was charged with twelve drug-related counts. On March 21, 1995, he was tried and convicted on eleven of those counts: five counts of delivery of cocaine, three counts of delivery of marijuana, one count of possession of cocaine with intent to deliver, one count of possession of marijuana with intent to deliver, and one count of operating a “drug house” within 1,000 feet of a drug-free zone. His sentence was forty-seven years imprisonment.
Although the appellant was tried on March 21, 1995, he was originally scheduled to be tried on December 13, 1994, approximately eleven months after his arrest. However, at a December 12, 1994 pretrial hearing, the court, on its own motion, reset the appellant’s trial for February 15, 1995. There is nothing in the record to reflect that appellant or his counsel were present at the hearing. On December 14, 1994, the court filed an order which purported to exclude the period of December 13, 1994, to February 15, 1995, from speedy-trial computation. The court stated the following as the reason for the exclusion of time:
trial set for 12/13/94 had to be rescheduled due to commencement of capital murder trial of Frederick Jacobs, Drew [County] CR93-138-1 on 12/13-16/94.
The order indicated that the prosecutor and appellant’s counsel were notified of the continuance by mail.
On February 13, 1995, two days before trial was scheduled, the appellant appeared at a pretrial hearing and requested a continuance. The trial was rescheduled for March 21, 1995. On March 20, 1995, the day before trial, the appellant made an oral motion to dismiss, saying he had been denied his right to a speedy trial. He argued that the court had erred in excluding the period of December 13, 1994, to February 15, 1995, from speedy-trial computation because the law allows exclusion for “docket congestion” only in exceptional circumstances. He presented docket records from the Frederick Jacobs case — the case which had “bumped” his — showing that, although Jacobs had been arrested on October 16, 1993, approximately ten of the fourteen elapsed months had been properly excluded from speedy-trial computation. Therefore, he said, there was no pressing need to try Jacobs and no exceptional circumstances were present.
The court denied the motion to dismiss. The essence of the ruling was that the appellant had waited too long to contest the December 14, 1994 order.
It is undisputed that, under Ark. R. Crim. P. 28.1(c) and 28.2(a), the appellant is entitled to have the charges against him dismissed if he was not brought to trial within twelve months from January 12, 1994, excluding such periods allowed by Ark. R. Crim. P. 28.3. The appellant was tried one year and sixty-eight days after his arrest. There is no dispute that the forty-four days between February 15, 1995, and March 21, 1995, are properly excludable since they can be attributed to the appellant’s own motion for continuance. Ark. R. Crim. P. 28.3(c). It is the remaining twenty-four days, attributable to the court-ordered continuance of December 12, 1994, that we are concerned with in this appeal. The question we are faced with is twofold: 1) was the period from December 13, 1994, to February 15, 1995, excludable from speedy-trial computation, and 2) if it was not, did the appellant waive his right to challenge the excludability of that period?
Once it is shown that a trial is held outside the applicable speedy-trial period, the state has the burden of showing that the delay was the result of the defendant’s conduct or was otherwise justified. Novak v. State, 294 Ark. 120, 741 S.W.2d 243 (1987). Ark. R. Crim. P. 28.3 contains two sections which could serve to justify the delay in this case:
The following periods shall be excluded in computing time for trial:
(b) The period of delay resulting from congestion of the trial docket when the delay is attributable to exceptional circumstances. When such a delay results, the court shall state the exceptional circumstances in its order continuing the case.
(h) Other periods of delay for good cause.
In Hicks v. State, 305 Ark. 393, 808 S.W.2d 348 (1991), the court, on its own motion, continued the appellant’s trial to a date which was outside the speedy-trial period. A docket entry read that, “due to the crowded court trial docket” it was necessary to move the appellant’s trial. At a later hearing, the court explained that the trial in another matter, State of Arkansas vs. Charles Moore, would be tried over a two day period, thus necessitating a continuance in Hicks’s case. We stated that “the law is well settled that congestion of the trial docket, alone, is not just cause for breaching the speedy trial rule.” We found that the circumstances set out in the docket entry were not exceptional:
No explanation was offered as to why the case could not have been tried during the week immediately following the Moore trial, and before the last week in the month when the trial court was required to travel to other counties.
In Stanley v. State, 297 Ark. 586, 764 S.W.2d 426 (1989), we also addressed the issue of what exceptional circumstances justify exclusion of time for a crowded trial docket. There, Stanley’s trial was scheduled for Monday, June 9, 1986. A capital murder trial had begun on June 2 in the only courtroom available for jury trials. On Friday, June 6, it appeared to the judge that the murder trial would run over until June 9. So, the judge entered an order continuing Stanley’s trial and explaining the circumstances. We held that “this constitutes the type of order contemplated by Rule 28.3(b).”
The case at bar falls somewhere in between the well-explained need for a continuance in Stanley and the simple, unsatisfactory notation of a “crowded court trial docket” in Hicks. In the order excluding time, the trial court expressed its desire to try the Drew County murder case of Frederick Jacobs on a date originally scheduled for Desha County trials, such as the appellant’s. However, the fact that a murder trial is pending in an adjacent county does not, without more, constitute an exceptional circumstance. This case is more like Hicks in that regard, because we are only told that the appellant’s trial has been rescheduled due to the trial of another matter.
We realize that trial courts may, for a variety of reasons, wish to give priority to pending murder cases. However, when that desire infringes on another defendant’s constitutional right to a speedy trial, and on our Rules of Criminal Procedure, it must yield, unless there are exceptional circumstances. In those situations, the trial court must note the exceptional circumstances in its order continuing the case. Ark. R. Crim. P. 28.3(b). We hold that the commencement of a capital murder trial on the appellant’s scheduled trial date, does not, standing alone, constitute an exceptional circumstance justifying exclusion of time for docket congestion. Likewise, in the absence of any explanation other than that the court preferred to try another case, we hold that the time period in question cannot be excluded for “good cause” pursuant to Rule 28.3(h). See generally Novak v. State, supra.
We now turn to the question of whether the appellant, by waiting until March 20, 1995, to question the court’s December 14, 1994 order, waived his right to a speedy trial. It is generally recognized that a defendant does not have to bring himself to trial and is not required to bang on the courthouse door in order to preserve his right to a speedy trial. The burden is on the courts and the prosecutors to see that trials are held in a timely fashion. Novak v. State, supra. In Arkansas, the speedy-trial period commences to run “without demand by the defendant.” Ark. R. Crim. P. 28.2. Furthermore, the Rules of Criminal Procedure do not mention waiver of the right to a speedy trial unless the defendant fails to move for dismissal prior to a plea of guilty or a trial. Ark. R. Crim. P. 28.1(f).
With these considerations in mind, we hold that the appellant did not waive his right to move for dismissal based on a speedy-trial violation. In Hicks v. State, supra, the state argued that, by waiting until the day after the speedy-trial time ran to file his motion to dismiss, Hicks had waived his rights. We stated that Hicks’s motion was made in advance of trial and was, thus, timely. In Raglin v. State, 35 Ark. App. 181, 816 S.W.2d 618 (1991), the court of appeals held that a defendant need not affirmatively protest a court-ordered continuance at the time the continuance is granted because to do so would “place the burden on the accused to demand a speedy trial at every stage of the proceedings” in spite of the clear dictate of Rule 28.2. In this case, the appellant’s motion to dismiss was made before trial, and, under the circumstances of this case, he was not required to challenge the court-ordered exclusion of time immediately upon issuance of the court’s order. As we stated earlier, it is the burden of the prosecution and the courts to see that a defendant is brought to trial on time.
The state refers to our recent case of Mack v. State, 321 Ark. 547, 905 S.W.2d 842 (1995), in support of its waiver argument. In Mack, we said that “the time to raise the issue” of whether a certain period was excludable was at the hearing where the excludability was discussed. The time at issue was the period needed for a second mental evaluation. There are substantial differences between Mack and this case. It is clear from the record in Mack that appellant’s counsel was actually in attendance at the hearing where the exclud-ability of time was discussed. That is not the case here. Additionally, appellant’s counsel in Mack took part in the request for the second mental evaluation. So, the continuance was attributed, in part, to Mack, unlike the situation here.
Based upon the foregoing, the appellant’s convictions are reversed and the case dismissed.
Reversed and dismissed.
Brown and Roaf, JJ., concur.
Glaze, J., dissents.
The appellant made the argument that the reason Jacobs was tried was so that the prosecutor, who was leaving office in January, would have “one last opportunity” to get the death penalty in a capital murder case. The prosecution responded that there was nothing in the record to reflect that the continuance was anything other than the court’s own decision.
The state does not argue that the appellant’s request for a continuance after the speedy trial period expired amounts to waiver. Indeed, we said in Duncan v. State, 294 Ark. 105, 740 S.W.2d 923 (1987), that such a request does not constitute acquiescence in the delay. | [
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Tom Glaze, Justice.
This is a legal malpractice action based on a question involving vacation of an arbitration decision. Following his termination as a partner at KPMG Peat Marwick (KPMG), appellant Robert Anthony employed the legal services of appellees Phil Kaplan and his firm, Kaplan, Brewer & Maxey, P.A. On Anthony’s behalf, Kaplan filed a complaint against KPMG in federal district court, alleging wrongful termination, and breach of contract based on a partnership agreement and a 1984 contract. The federal court dismissed Anthony’s complaint and ordered the parties to arbitrate their dispute. Subsequently, Anthony and KPMG entered an arbitration agreement wherein they agreed the arbitration was to be conducted under the law of New York state, but that the circuit court in Jackson County, Missouri, was to have exclusive jurisdiction.
An arbitration hearing was held in December, 1992, at which time, the arbitration panel, by a two-to-one vote, held in KPMG’s favor. Finding KPMG’s partners had complied with the partnership agreement in terminating Anthony by a two-thirds vote, the majority panel held the partnership vote was the deciding factor and the 1984 contract was irrelevant to that issue.
Anthony filed a motion to vacate the panel’s decision in the federal district court, and KPMG filed a motion to dismiss based on the forum selection clause in the arbitration agreement. On April 15, 1993, the district court dismissed Anthony’s motion to vacate. The dismissal order was entered after the time had lapsed preventing Anthony from filing a motion to vacate the arbitration decision in the correct forum, the Missouri circuit court.
After obtaining his file from Kaplan, Anthony filed suit in the Pulaski County Circuit Court against Kaplan and his firm, alleging (1) legal malpractice and (2) breach of an oral contract for legal services. Thereafter, Kaplan filed a motion for summary judgment, asserting Anthony had failed to show proximate cause by establishing that a timely and properly filed motion to vacate the decision of the arbitration panel would have been granted by the Missouri court. Following a hearing, the Pulaski County Circuit Court granted Kaplan’s summary-judgment motion.
On appeal, Anthony argues two points which we do not reach. First, Anthony contends Kaplan’s signature on the improperly filed motion is evidence of Kaplan’s belief that the motion to vacate was tenable pursuant to Ark. R. Civ. P. 11. Therefore, Anthony argues Kaplan is estopped from now taking a position inconsistent to the one expressed earlier in his motion before the federal district court. This estoppel argument, however, was not raised below, and we will not consider it for the first time on appeal. See Collins v. Heitman, 225 Ark. 666, 284 S.W.2d 628 (1955). Second, Anthony failed to cite any supporting legal authority for his contention that the trial court improperly dismissed his claim for breach of the oral contract for legal services. As this court has held many times, we will not consider unsupported arguments that require further research. Fayetteville Sch. Dist. v. Ark. State Bd. of Ed., 313 Ark. 1, 852 S.W.2d 122 (1993).
For his third and final point on appeal, Anthony argues the trial court erred in granting summary judgment on his malpractice claim because issues of fact remained as to whether the decision of the arbitration panel would have been vacated, even if a timely appeal in the proper court had been filed. For support, Anthony cites the dissenting panel member’s opinion as evidence that a properly filed motion to vacate the panel’s decision would have been granted. Additionally, Anthony points out that, under his 1984 contract with KPMG, he had a monetary claim for compensation and retirement benefits, and claims his continuation with KPMG was to depend on maintaining a satisfactory level of performance. In sum, Anthony argues that, because his claims pursuant to the 1984 contract were totally ignored by the panel, the panel exceeded its powers in violation of the Uniform Arbitration Act.
An attorney is negligent if he or she fails to exercise reasonable diligence and skill on behalf of the client. In order to prevail under a claim of legal malpractice, a plaintiff must prove that the attorney’s conduct fell below the generally accepted standard of practice and that this conduct proximately caused the plaintiff damages. Callahan v. Clark, 321 Ark. 376, 901 S.W.2d 843 (1995); Vanderford v. Penix, 39 F.3d 209 (8th Cir. 1994); Ronald E. Mallen et al., Legal Malpractice § 8.12, at 601-608 (4th ed. 1996). To show damages and proximate cause, the plaintiff must show that but for the alleged negligence of the attorney, the result in the underlying action would have been different. Callahan; Vanderford.
While the question of proximate cause is usually a question for the jury, when the evidence is such that reasonable minds cannot differ, the issue becomes a question of law to be determined by the trial court. Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993). To support his motion, Kaplan included a copy of the New York statute on vacating arbitration awards, the Uniform Arbitration Act on vacating awards, and case law from both New York and Missouri supporting his position. Once the moving party establishes 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. Renfro v. Adkins, 323 Ark. 288, 914 S.W.2d 306 (1996). Thus, for Anthony’s complaint against Kaplan to have survived summary judgment, Anthony was required to show that, as a matter of law, the Missouri court would have granted his motion to vacate had the motion been properly filed.
Though the parties differ on whether New York or Missouri law applies, both New York and Missouri have adopted the Uniform Arbitration Act with only slight variances in the wording of the statutes. The New York statute in relevant part provides that an arbitration award shall be vacated if the rights of the complaining party were prejudiced inter alia where “an arbitrator . . . exceeded his power[.]” N.Y. Civ. Prac. L. & R. 7511(b)(iii) (Consol. 1980). The Missouri statute lists the grounds for vacating an arbitration award to include where “[t]he arbitrators exceeded their powers[.]” Mo. Ann. Stat. § 435.405.1(3) (Vernon 1992). Neither statute defines the arbitrator’s power.
As a matter of public policy, arbitration is strongly favored, and is looked upon with approval by courts as a less expensive and more expeditious means of settling litigation and relieving docket congestion. Lancaster v. West, 319 Ark. 293, 891 S.W.2d 357 (1995); Estate of Sandefur v. Greenway, 898 S.W.2d 667 (Mo. App. W.D. 1995). The party attempting to overturn an arbitration award, not the party attempting to sustain it, bears the burden of proof. Lancaster, R.L. Hulett & Co. v. Barth, 884 S.W.2d 309 (Mo. App. E.D. 1994). The scope of arbitration is defined by the contract between the parties, and a party challenging the award is not entitled to a resolution on the merits. Estate of Sandefur, 898 S.W.2d 667. Further, it is not for the courts to determine if the arbitrators decided the dispute correctly, only that the arbitrators acted within their jurisdiction. Id. The failure of the arbitration panel to follow the law as a court of law or equity would have done, without specific agreement to such in the arbitration agreement, does not afford relief through the courts. Id.; Stifel, Nicolaus & Co. v. Francis, 872 S.W.2d 484 (Mo. App. W.D. 1994); Maross Const. Inc. v. Central N.Y. Regional Transp. Authority, 488 N.E.2d 67 (N.Y. 1985).
On appeal, the judiciary’s review is limited to vacating an arbitration award only on the statutory grounds, unless the award is violative of a strong public policy. Stifel, Nicolaus & Co., 872 S.W.2d 484; Maross Const. Inc., 488 N.E.2d 67; Lieberman v. Lieberman, 566 N.Y.S.2d 490 (Sup. 1991). If there is no case law and no compelling policy on an issue, provisions of the Uniform Arbitration Act should be construed consistent with the decisional law of other states which have adopted the Act. Heineman v. Charno, 877 S.W.2d 224 (Mo. App. W.D. 1994).
Unlike Missouri, New York has had occasion to develop legal precedent for challenging an arbitration award based on an allegation the arbitrators exceeded their powers or authority. In Pavilion Central Sch. Dist. v. Pavilion, 380 N.Y.S.2d 387 (App. Div. 1976), the New York appellate court found the following two basic factors are to be considered in determining whether an arbitrator has acted in excess of his power: (1) whether the arbitrator construed the disputed contract in a completely irrational way; or (2) whether the arbitration agreement itself expressly limited the power of the arbitrator. In other words, the question is whether the arbitrator merely interpreted the disputed contract or did he, in fact, give it a completely irrational construction and, thereby, create a new contract for the parties. Id. See also Matter of Riverbay Corp. v. Local 32-E, 456 N.Y.S.2d 378 (App. Div. 1982).
Arkansas, too, has had occasion to decide whether an award exceeded the authority of the arbitrator. In McLeroy v. Waller, 21 Ark. App. 292, 731 S.W.2d 789 (1987), our court of appeals reduced an arbitration award where the panel awarded punitive damages in a dispute over a lease agreement. Finding the panel had exceeded its authority by making an award which was invalid on its face, and thus illegal, the appellate court modified the award by eliminating the punitive damages. By modifying rather than vacating the award, the McLeroy court recognized the general rules set out by this court where it was stated as follows:
The fact that parties agree to submit their disputes to arbitration implies an agreement to be bound by the arbitration board’s decision, and every reasonable intendment and presumption is in favor of the award; it should not be vacated unless it clearly appears that it was made without authority, or was the result of fraud or mistake, or misfeasance or malfeasance. Unless the illegality of the decision appears on the face of the award, courts will not interfere merely because the arbitrators have mistaken the law, or decided contrary to the rule of established practice as observed by courts of law and equity.
Id.; Chrobak v. Edward D. Jones & Co., 46 Ark. App. 105, 878 S.W.2d 760 (1994) [citing Alexander v. Fletcher, 206 Ark. 906, 175 S.W.2d 196 (1943); Kirsten v. Spears, 44 Ark. 166 (1884)].
In the present case, all three arbitrators found the 1984 contract between Anthony and KPMG was irrelevant to the issue of whether Anthony was improperly terminated, and, instead, based their opinions solely on the partnership agreement. As demonstrated by the record, the only issue before the panel was whether Anthony was improperly terminated. Contrary to Anthony’s allegation, the panel did not ignore evidence or any claim in excess of their authority or power. At the end of the hearing, the panel asked if any claims remained and Kaplan offered no response. Thus, no evidence exists that Anthony’s monetary claim against KPMG was ever brought to the panel’s attention.
In conclusion, we note that Anthony’s complaint against Kaplan does not allege Kaplan mishandled his case at the arbitration hearing, but only that Kaplan was negligent in handling the appeal. Under either the law of Missouri or New York, no basis exists upon which the arbitration panel’s decision would have been vacated based on the panel exceeding its power. As the one challenging the arbitration award, the burden of proof was on Anthony and he failed to meet proof with proof. Therefore, as a matter of law, Anthony failed to show he would have prevailed in his underlying arbitration action, even if Kaplan had filed a timely and proper motion to vacate. Because Anthony failed to establish proximate cause, the trial court correctly granted summary judgment.
For the foregoing reasons, we affirm.
The dissenting panelist interpreted the partnership agreement to impose a duty of fairness on the partners in their dealings with each other, and found the partners’ decision as to Anthony was unconscionable.
Except for references to other statute numbers, the Missouri statute on vacating arbitration awards is essentially identical to Ark. Code Ann. § 16-108-212(a) (1987).
We note the exclusion of evidence in an arbitration proceeding, even though admissible under the rules of evidence, is not a statutory ground for vacating the arbitration award. Dean Witter Reynolds Inc. v. Deislinger, 289 Ark. 248, 711 S.W.2d 771 (1986). | [
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Per Curiam.
On April 23, 1993, petitioner Bobby Joe Cranford, Jr., was arrested for DWI and charged with that offense. On November 17, 1993, he was tried in the Municipal Court of Rogers and found guilty. He was sentenced to 4 days of public service, a $500 fine, $339.25 court costs, alcohol safety school, and a 120-day suspension of his driver’s license. A formal judgment was entered that same date. On December 1, 1993, his appeal of the DWI judgment was perfected in circuit court. Since that date, no action has been taken on his appeal by that court. On June 21, 1995, Cranford filed a motion to dismiss the judgment against him for violation of the speedy trial rules. Ark. R. Crim. P. 28.1 et seq.
Cranford advises this court in his brief in support of his petition that he is seeking this special writ to require the circuit court to rule on his motion to dismiss so that, in the event of an unfavorable ruling, he can then proceed with a petition for writ of prohibition in this court. Alternatively, he requests that if a prior ruling by the circuit court is not necessary, we treat his petition as one for prohibition. The State in its brief supporting its response argues that the writ of procedendo ad judicium is not an appropriate remedy. Rather, the State contends, this court can use the writ of mandamus to accomplish the same purpose, and mandamus is a power of this court enumerated in the State Constitution. See Ark. Const, art. 7, § 4.
The State, however, concedes that a. prima facie case for violation of the speedy-trial rules has been pled by Cranford. The State further states that after discussing this matter with local prosecutors, it has no objection to this court’s treating the petition as one for prohibition and granting it.
We agree that a prima facie speedy-trial violation has been pled. Noting no objection from the State, which has the burden of proving speedy-trial compliance [see McConaughey v. State, 301 Ark. 446, 784 S.W.2d 768 (1990)], we treat the petition as one for prohibition and grant the same. | [
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DAVID NEWBERN, Justice.
On March 3 and March 7, 1995, judgments of acquittal of criminal charges were entered in favor of Louis Hattison, the appellant. In each judgment the Circuit Court recited a finding that Mr. Hattison lacked the mental capacity to commit the crime charged. There was a provision in each for automatic commitment of Mr. Hattison to the custody of the Director of the Department of Human Services for examination by a psychologist or psychiatrist in accordance with Ark. Code Ann. § 5-2-314(b) (Supp. 1995). Subsection (d) of the statute states the Director “shall file the psychiatric or psychological report with a probate court ... within thirty (30) days following entry of order of acquittal.” The report was not filed until April 7, 1995. Mr. Hat-tison argues that, due to the late filing of the report, the Probate Court lacked jurisdiction to order continuation of his commitment. We affirm the Probate Court’s order denying Mr. Hattison’s petition for release.
We agree with Mr. Hattison’s first point of appeal which is essentially that the report was late and the Probate Court erred in stating it was timely. We cannot, however, agree with his second point which is that the Probate Court lost jurisdiction as a result of the report being late and thus erred in approving his continued commitment for treatment.
When the General Assembly uses the word “shall,” we hold the effect is mandatory unless an absurdity would result. Campbell v. State, 311 Ark. 641, 846 S.W.2d 639 (1993). The 30-day requirement is thus mandatory in the literal sense. The question remains, however, whether the sanction for violation of it is, as Mr. Hattison argues, loss of jurisdiction in the Probate Court to decide whether continuation of his commitment is justified. The statute does not address any sanction to be employed, and Mr. Hattison cites no case suggesting it was the General Assembly’s intent to deprive the Probate Court of jurisdiction should the report be untimely.
In Campbell v. State, supra, we held that where a petition for involuntary commitment was not filed within 72 hours of an individual’s confinement, as required by the mandatory language of Ark. Code Ann. § 20-47-210, the Probate Court lacked jurisdic tion to decide the petition.
At first blush, it might seem that the Campbell case should control this one; however, there is a significant distinction. Mr. Campbell had not been committed by a court. The State had the burden of proving Mr. Campbell should be committed, and the petition was to be filed for the purpose of initiating that proceeding. Mr. Hattison, on the other hand, has been found lacking in mental capacity sufficient to have committed the crimes with which he was charged. According to § 5-2-314(e), Mr. Hattison now has the burden of proving to the Probate Court that “his release would not create a substantial risk of bodily injury to another person or serious damage to property of another due to a present mental disease or defect.” Jurisdiction of the Probate Court was established by the “automatic” order of commitment entered by the Circuit Court.
While a commitment cannot be “indefinite,” Schock v. Thomas, 274 Ark. 493, 625 S.W.2d 521 (1981), citing Jackson v. Indiana, 406 U.S. 715 (1972), we know of no reason to deprive the Probate Court of jurisdiction due to a late psychiatric report. Had that been the intention of the General Assembly, it could easily have so provided. As the Supreme Court of Nebraska stated in State v. Steele, 399 N.W.2d 267 (Neb. 1987), a case cited by the State that is almost exactly like this one:
we find no announced penalty in the statute or the case law interpreting the statute for the State’s failure to meet the statutory time limits. The appellant gives no support for his contention that the remedy is dismissal and loss of jurisdiction.... We note that no such sanction [as is provided in the speedy trial law] is provided by the statutes governing acquittals on the ground of insanity.
Affirmed.
Corbin, J., concurs. | [
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TOM GLAZE, Justice.
On June 15, 1987, Quality Ford hired Dorothy Smith as an officer manager, and this litigation ultimately ensued as a result of the company’s discharge of Smith in October 1991. During her more than four years of employment, Smith’s responsibilities included co-signing checks and insuring invoices were paid. Larry Duncan, who was hired in 1988, was Smith’s immediate supervisor, and after being on the job for a short period of time, he formed the suspicion Smith was stealing company funds, but he had no proof. Duncan related his suspicions to LeMon Henderson, the majority stockholder of the company, who told Duncan to get a replacement for Smith. Duncan had difficulties in obtaining a replacement, so Smith continued in her position.
In 1989, Henderson suspected either Duncan or Smith were converting company funds, so he hired certified public accountants to determine if employees were embezzling funds. Eventually in 1991, one of the accountants discovered that Smith had been altering Quality Ford checks and converting those checks and funds to her personal accounts. In August 1991, Smith, who is black, filed an EEOC claim, alleging racial discrimination by Duncan, who is white. Later in October 1991, Henderson, who is black, suspended Smith, and informed Smith she had failed to carry out her duties by not forwarding correspondence from the EEOC to his attention. Smith immediately responded by filing another EEOC claim, alleging retaliatory discharge, and later filed another complaint alleging gender discrimination.
On November 13, 1991, Quality Ford filed a civil suit against Smith, seeking the money she converted, and the next day, Smith was arrested and charged with the crime of embezzlement. In December 1991, Smith answered Quality Ford’s suit, alleging she and Henderson had been involved romantically, and during that relationship, Henderson had authorized Smith’s altering checks to defraud the Internal Revenue Service, and also to divert company funds to Henderson and Duncan. She further filed a counterclaim alleging defamation, malicious criminal and civil prosecution, false arrest, outrage, wrongful termination, breach of contract, and her Tide VII claims of racial and gender discrimination and retaliatory discharge.
On October 8, 1992, Smith was acquitted of the criminal charge of theft. However, in the civil suit, the trial court found Smith had altered and misappropriated twenty Quality Ford checks, totalling $73,108.67. The trial court specifically found that Smith was unbelievable and that she had devised a scheme to defraud Quality Ford of funds by altering checks entrusted to her care. The trial court did hold Smith had prevailed on her Title VII claim of retaliatory discharge, and awarded her damages in the nominal amount of $1,000.00 and attorneys fees in the sum of $5,000.00. The trial court ordered a set off of these awards against the $73,108.67 Smith owed Quality Ford. Furthermore, the trial court held Henderson had breached Smith’s employment contract, and determined Henderson owed Smith two percent (2%) of the company’s annual net profits for the years 1988 through October 1991. The court directed that, after the parties arrived at the amount of the profits owed Smith, that sum should also be set off against the $73,108.67 Smith owed Quality Ford. On March 15, 1995, the trial court entered judgment in favor of Quality Ford in the amount of $52,965.00. Smith brings this appeal from that judgment.
In her initial point for reversal, Smith agrees that the trial court correctly awarded her attorney’s fees, but argues that it erred in the assessment of that fee. Smith cites Hensley v. Eckerhart, 461 U.S. 424 (1983), for the proposition that a prevailing party of a Title VII claim is entitled to a reasonable fee, and that fee is to be determined by the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This is commonly called the “lodestar” fee. The Hensley court further held that where the plaintiff achieved only limited success, the trial court should award only that amount of fees that is reasonable in relation to the results obtained.
While Smith argues that the trial court failed to follow the Hensley formula when setting the $5,000.00 attorneys fee or to state why it might have reduced the lodestar amount, she concedes she failed to submit any evidence of (1) the hours expended by her counsel, (2) the counsel’s rate, or (3) any other relevant facts bearing on the fee amount. The Hensley decision clearly holds that the party seeking an award of fees should submit evidence supporting the hours worked and rates claimed. Hensley, at 433.
Here, the trial court awarded Smith’s counsel an attorney’s fee in its December 9, 1994 order even though counsel failed to submit any documents or evidence; counsel never objected either to the maimer or amount of the fees awarded. In fact, although the trial court’s final judgment was not entered until March 15, 1995, Smith still interposed no objections. She only does so for the first time in this appeal.
This court has held that it will not contenance an argument raised for the first time on appeal. Crockett & Brown, P.A. v. Courson, 312 Ark. 363, 849 S.W.2d 938 (1993); see also McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991) (the burden of obtaining a ruling from the court is on the attorney requesting fees, and the objections and matters left unrecorded below are waived and may not be relied upon on appeal). For the same reasons, we also do not reach Smith’s argument that the trial court erred in setting off counsel’s attorney’s fees against Quality Ford’s judgment.
Smith next argues that she proved a prima facie case of race and sex discrimination and that the trial court failed to give the required findings needed for a review of determining whether the facts as applied might be due to a misunderstanding of the law. Smith cites Jones v. Jones Bros. Const. Corp., 879 F.2d 295 (7th cir. 1989), where the federal appellate court remanded the civil rights case for further findings because the district court’s opinion was not supported by adequate findings of fact and law. See also Chandler v. City of Dallas, Tex., 958 F.2d 85 (5th Cir. 1992).
Here, Ark. R. Civ. P. 52(a) is controlling and provides in relevant part as follows:
If requested by a party, in all contested actions tried upon the facts without a jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58 [.]. (Emphasis added.)
While Arkansas’s Rule 52 is similar to the federal rule, Fed. R. Civ. P. 52(a), the Arkansas rule retains prior state law by which the failure of a party to request special findings of fact amounted to a waiver of that right. Reporter’s Notes (as modified by the Court) to Rule 52, n. 1 [citing Anderson v. West Bend Co., 240 Ark. 519, 400 S.W.2d 495 (1966)]. Further, Rule 52(b) provides that upon motion of a party within ten days after entry of judgment, the court may amend its findings and/or judgment accordingly.
In the present case, there is nothing in the record to show Smith requested that the trial court make specific findings of fact and conclusions of law either prior to or after entry of the judgment. Because Smith made no request for findings, she waived her right under Rule 52.
For the reasons above, we affirm. | [
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Per Curiam.
Appellant Robert Watson asks this Court to grant a writ of certiorari to complete the record in his case. We deny the writ.
Watson was convicted of delivery of a controlled substance and sentenced to thirty years imprisonment. The judgment and commitment order was entered on September 7, 1995, and the notice of appeal was filed on September 26, 1995. The time to file the record was extended by the trial court to April 6, 1996, which was a Saturday. On Monday, April 8, 1996, Watson filed a partial record with the Clerk and filed this petition for writ of certiorari for complete record. In his petition, Watson states:
the Court Reporter, Betty Voltz, has indicated that she cannot have the record completed prior to April 6, 1996. Due to an administrative oversight caused by the lengthy illness of Judge Purifoy, which resulted in his office being closed for several months, the preparation of the transcript in this matter has not been completed due to the lack of timely notice but, given an additional 30 days, she will be able to do so. A copy of her Affidavit is hereto attached.
The affidavit of Ms. Betty J. Voltz provides:
I, Betty J. Voltz, Official Court Reporter for the Eighth Circuit and Chancery District of Arkansas, state that due to an administrative oversight caused by the lengthy illness of Judge Philip Purifoy, which resulted in his office being closed for several months, the preparation of the transcript in State of Arkansas v. Robert Watson, Lafayette County Case. No. CR-92-50-3 has not been completed due to my lack of timely notice of the need for preparation of this transcript and that the aforementioned appeal transcript can be completed and filed with the Clerk by the 6th day of May, 1996.
(Emphasis supplied.)
Rule of Appellate Procedure 3(e) provides in part that “[t]he notice [of appeal] shall also contain a statement that the transcript, or specific portions thereof, have been ordered by the appellant.” (Emphasis supplied.) Thus, Watson should have immediately ordered the reporter’s transcript. Jacobs v. State, 321 Ark. 561, 906 S.W.2d 670 (1995). However, there is no indication in the partial record filed that this was done.
On December 4, 1995, the trial court entered an order granting Watson “the maximum length of time until April 6, 1996, to lodge the transcript with the Arkansas Supreme Court.” Rule of Appellate Procedure 5(a) provides that the record on appeal shall be filed with the Clerk of the Supreme Court within ninety days from the filing of the notice of appeal. However, the trial court, upon finding that a reporter’s transcript of evidence or proceedings has been order by appellant, and upon a further finding that an extension is necessary for the inclusion in the record of evidence or proceedings stenographically reported, may extend the time for filing the record on appeal. Ark. R. App. P. 5(b). In the instant case, neither the partial record filled nor the trial court’s order extending the time to file the record indicates that the trial court made a finding that the transcript had been ordered. See Jacobs v. State, supra.
We have consistendy held that the appellant’s attorney is responsible for filing the record, not the trial judge, the court reporter, or the circuit clerk. Norman v. State, 323 Ark. 447, 916 S.W.2d 724 (1996). The appellant’s attorney shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, and upon fifing same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.
Writ denied. | [
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Harrison, J.:
Jacob Levells was tried in the Pulaski Circuit Court for the murder of Robert Swan. He was found guilty of murder in the first degree. He filed a motion for a new trial; his motion was ''overruled, and he was sentenced to be hanged. He prayed and obtained an appeal to this court.
The indictment contained two counts, which charged the offense to have been committed by shooting, with a shot gun, and were substantially the same.
The evidence on the part of the State was, in substance, as follows:
Robert Carden testified : That the defendant lived with him on the Baldwin place in Pulaski County, and Robert Swan, the deceased, on the same place, but on the part occupied by Mr. Whitlow. That he was told on Sunday, the third day of June, 3877, about sundown, that the defendant had been cut by the deceased, and he went to his house to see him. He found him lying on a pallet in the yard, with a gash in his cheek extending from theitemple to the throat, ánd was bleeding. The next day, Monday, he came to witness’ house about 30 o’clock in the forenoon, and told him about the cutting, and the witness told him to get out a warrant for Swan. He said he did not want to go to law, and said something about fixing it up himself, and said in the conversation if he had shot Swan and had not killed him, he would have beaten him to death. He also said that he had been told that Swan threatened to kill him.
The defendant did not work Monday or Tuesday. On Tuesday afternoon, abóut sundown, he came through the witness’ yard with a gun on his shoulder, and going in the direction of Swan’s house. In about four or five minutes he heard a gun fire, two shots in succession, and a screaming by women, and he ran to the place. He found Swan down, and the defendant was in the lane, about fifteen yards from him. He came towards Swan, excited, and said with an oath something about stamping his body. The witness told him to go away, that he had already done his work, and he said “the God damned son of a bitch was going to take my life, and now I have got him. Swan was taken to his house; he never spoke; he had one gun-shot wound in the breast ranging around from the side to the front, and another in the abdomen, from which he died a few minutes after he was taken to the house. The witness, after Swan died, saw the defendant standing in the lane and told him Swan was dead. The-defendant said, “that’s what I aimed to do.”
Richard Smith testified that he went hunting in the afternoon of the day the deceased was killed, and upon his return he found the defendant at his house. The defendant said he would like to kill a bird or a rabbit, and asked to borrow the witness’ gun, and he loaned it to him; one barrel was loaded and witness let him have powder and shot, and he loaded the other and started off. That was about an hour by sun. Swan was setting out tobacco plants just back of his house, and about fifteen or eighteen feet from the-lane, and his house was about thirty steps from witness’ house,, across the lane. About dark the witness heard a gun fire and looked up and saw the defendant running through Swan’s gate- . into his yard, with the gun, and saw Swan running up the fence towards the corn field. The defendant threw down the gun and picked up a hoe that Swan had thrown down and pursued him. The witness ran after them. When Swan had run about fifty yards he stopped and held up his hands and said to the defendant: “Please, Jake.” The defendant struck him with the hoe, and the handle broke, and he snatched up a piece of the handle and struck him with that. Swan was shot in the left side. The gun was picked up by the witness, both barrels were empty.
Nancy Kinsloe testified : That she saw the defendant coming down the lane, about twenty-five feet from the gate, with the gun. 'Swan was about twelve feet from him setting out tobacco plants. The defendant put the gun through, the fence and shot at him.
Louis Lindsay testified substantially the same as Richard Smith.
Henry Levells testified for the defendant, that he went to see the defendant, who is his son, the evening after he was cut, and ■stayed there that night. That Swan came there next morning and came into the house with both hands in his pockets, and sat down with his hands in his pockets by the side of the bed on which the defendant was lying, and he said to the defendant, “I said I would kill you before the rising and setting of another sun, and I meant it when I said itthat as he went out he said,, “Í believe Fll go; Fll fix you yet, Jake; Pll kill you yet, damned if I don’t,” and that no one else was there when Swan 'was there.
The State then introduced Alexander Whitlow, who testified that he had a conversation with the defendant on Monday evening in which he told him Swan was willing to compromise the matter, and asked him what he was going to do about it, and the defendant said he was not going to law about it; that Swan and himself coul.d not live on the same place. The witness advised him to take out a warrant, but he said he did not want the law, and would-attend to-the matter himself.
It also introduced Amos Henderson, who testified that he went to the defendant’s house Monday morning whilst Swan and Henry Levells were there, but heard no conversation. He also testified that he had a conversation with the defendant after the shooting, and in answer to a remark that he made, that Swan had told him they had compromised the difficulty, the defendant said: “We did not. Swan came to my house Monday to compromise it, and I told him to go away, I would not.”
The defendant excepted to Whitlow’s testimony and a part of' .Henderson’s because not offered until after the defendant had produced his evidence and was not in contradiction or rebuttal of it.
The testimony of Henderson does not seem liable to the objection, for it was in contradiction of that of Henry Levells.
The testimony of Whitlow would have, been more properly offered before the evidence of the defendant was adduced, but its-admission at the time when offered was within the sound discretion of the'court, which, without some showing to ihe .contrary, we must presume was properly and judiciously exercised.
He also excepted to the following instruction given to the jury, at the instance of the State:
“No previous assault upon the defendant by the deceased would, in itself, justify the killing of the deceased; and unless at the time of the killing, the defendant had reasonable ground to believe and did believe that such killing was necessary to protect himself from immediate danger of death or great bodily harm at the hands of the deceased; or if, notwithstanding the previous difficulty, the defendant, at the time of the killing, was actuated by motives of revenge, and not self-defense, the killing was not justifiable.”
And he excepted to the refusal of the court to give certain instructions asked by him, which we do not deem necessary to set out. They were predicated upon the assumption that the evidence disclosed such facts and circumstances as indicated a necessity on the part of the defendant to kill the deceased, in order to preserve his own life, or to escape great bodily injury, or were sufficient to cause-him to believe that such necessity existed.
Section 1825, of Gantt’s Digest, states fully and distinctly the circumstances under which one person may take the life of another in self-cTefense. It is as follows: “In ordinary cases of one person killing another in self-defense, it must appear that the danger was so urgent and pressing that in order to save his -own life, or to prevent his receiving great bodily injury the killing of the other was necessary, and it must appear also, that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further contest before the mortal blow or injury was given.”
It is thus seen, as we remarked in McPherson v. The State, 29 Ark., 225, that “a necessity for taking the life of the other is the ■controlling circumstance, which justifies or excuses the act, and, before resorting to such extremity, the party must employ all means within his power consistent with his safety to avoid the danger and avert such necessity.” Palmore v. The State, 29 Ark., 248.
The deceased when shot by the defendant was making no hostile demonstrations, but was peacefully working in his tobacco ! patch, and the defendant, so far from being in the least danger, 'lor having any reason to believe himself in any, appears to have ijsought the opportunity to kill him.
There was no error therefore in giving the instruction on behalf of the State, and in refusing to give those asked for the defendant.
The jury returned their verdict as follows:
“We, the jury, find the defendant guilty of murder in the first degree. S. Wiggins, Foreman.” Which was read by the clerk, and the jury, upon request of the defendant, was polled, and each juror answered that that was his verdict. The judge then said to the jury: “Gentlemen, you are discharged; those of you who are of the regular panel, until this .afternoon; those specially summoned in this case, are discharged finally,” when the jurors arose from their seats in the jury box, and began to pass out from the box, three or four at the further end of the box had moved eight or ten feet from their seats, the,others still standing about where they arose, and all in full view of the judge and under his control, when he called to them, saying: “One moment, gentlemen, take your seats in the jury box again,” and they, without having mingled with the by-standers, immediately returned to their seats, and the judge addressing them, said: “This verdict may be defective; there are two counts in the indictment, you will retire to the jury room and so amend your verdict as to show upon which of the counts you find.”
The jury again retired and afterwards returned the verdict as follows : “ Wc, the jury, find the defendant guilty of murder in the first degree as charged in the first count in the indictment. S. Wiggins, foreman,” and they were again polled at the request of the defendant, and each answered that that was his verdict.
The defendant objected to the jury being sent back, and to any change in the verdict originally returned.
The authorities say, that after the verdict has been received and the jury discharged, their control over the verdict is at an end, and they cannot be recalled to alter or amend it. Sargent v. The State of Ohio, 11 Ohio, 472; Mills v. Commonwealth, 7 Leigh, 751; Settle v. Alison, 8 Ga., 208.
But- what is a discharge ? Clearly it would seem to us that, if they have not separated, and as a body, are still in the presence of the court, the order discharging is in fieri, and yet in the breast of the court, and may be recalled. To correct a mistake when no prejudice can result from it, is not only proper, but the duty of the court. Brister v. The State, 26 Ala., 132.
In the case of Rex v. Parker, 2 Brit. C. Cases, 45, the prisoner was tried for stealing a bank note. The prosecutor and the pris oner were on the 4th of. November, 1 823, drinking together some hours. The prisoner’s defense was that he found the note, three weeks after the 4th of November, but there was no evi- , dence to support that defense.
The jury retired and returned, saying they found the prisoner guilty of having the note in his possession, but how he got it they could not say. The judge asked them if they thought he might have found it, three weeks after they were together on the 4th of November, and one of them said “ Yes.” The judge said that was an acquittal, and a verdict of not guilty was recorded.
The judge immediately gave the prisoner an admonition and ordered the note to be given to the prosecutor, when some of the jury said, that the juryman, who had answered the judge, had no authority from the others to give him the answer he did, and that several differed from him upon that answer. The jury were directed to retire again. They convicted the prisoner, but as there was an interval of three or four minutes after the verdict was recorded before the jury expressed their dissent, the point was reserved for the consideration of the judges.
And upon consideration by the judges, they were of the opinion that the mistake in the verdict might be corrected, and that the conviction was proper.
In the case before us we think there was no such absolute discharge of the jury, that the order discharging them might not be revoked, and they recalled for the purpose of correcting their verdict, but in fact no correction was necessary.
Both counts in the indictment were substantially the same and the court could judicially notice that they were for the same offense, and the verdict as originally returned was a finding on both counts, and there was no occasion for an amendment. Brown v. The State, 10 Ark., 607; The United States v. Keen, etc., 1 McLean, 429 ; Donnelly v. State, 2 Dutch., 463, 601; The People v. Curling, 1 John., 320 ; Regina v. Downing, 5 Brit. C. Cases, 53.
If the verdict had been “ not guilty,” there can be no question that that would have been acquittal on both counts, and it is equally clear that finding him guilty on the first count, as'the verdict was finally returned, was finding him guilty of the offense charged in the second count.
Finding no error, the judgment is affirmed. | [
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English, Ch. J.:
Kirkwood was indicted for perjury, in the Circuit Court of Clark County, at the April Term, 1876; the indictment charging in substance:
That “said J. H. Kirkpatrick, at, etc., on the 10th day of January, 1876, did wilfully, corruptly, and falsely swear before R. R. Ross, Deputy Clerk of Jesse A. Ross, Clerk of the Circuit Court of Clark County, he, the said R. R. Ross, being authorized by law to administer oaths ; that he had not thereupon had the benefit of an Act of Congress approved May 20th, 1862, entitled 1 An act to secure a homestead to actual''settlers on the \ public domain5; and he, the said J. H. Kirkpatrick, further made oath, that he had made a bona fide settlement and improvement, and was residing on 'certain lands for the securing of which he, the said J. H. Kirkpatrick, was then and there making application to secure as a homestead, to-wit: The southeast quarter of the southeast quarter of section thirty-three, and the south half of the south-west quarter of section thirty-four; and the southeast quarter of the southeast quarter of section thirty-four, all in township five south, range twenty-two west. 'Which said oath was material to secure said lands as such homestead; and the said J. H. Kirkpatrick well knew the same was false when he made the same as aforesaid; the truth being, that he had theretofore made an application to homestead certain lands; and that said J. H. Kirkpatrick had made no settlement or improvement, and was not residing on said land above described. And so the jury say, that the said J. H. Kirkpatrick, in the manner above stated, committed perj ury, contrary to the statute in such case made and provided, and against the peace and dignity of the State of Arkansas.55
The defendant waiving arraignment, entered the plea of not guilty, and was put upon trial. The State introduced A. M. Crow as a witness, to prove that the defendant had made affidavit of settlement and cultivation before the Clerk of Clark County, in order to secure a homestead under the Laws of the United States; whereupon the defendant moved to exclude such testimony, and the court sustained the motion. The State also offered testimony to prove that defendant had made no settlement and cultivation at the date of said affidavit, which testimony was excluded by the court, on motion of defendant; to each of which rulings the State excepted. The State offering no further evidence, the jury returned a verdict of not guilty, arid judgment was entered discharging defendant. The State appealed.
By sec. 2'of the Act of Congress, approved 20th May, 1862, •“to secure homesteads to actual settlers on the public, domain,” (12 U. S. St. L., 392) the person applying for the benefit of the act, is required to make affidavit- before the register or receiver, stating the facts, prescribed by the act to entitle the applicant to a homestead entry,, and to file the affidavit with the register or receiver.
The original act contained no provision for making such affidavit before the clerk of a state court.
But by sec. 3 of the Act of 21st March, 1864, Amendatory of the Homestead Law (13 U. S. St. L., 35) it is provided:
“That- in any case hereafter in which the applicant for the benefit of the homestead, and whose family or some member thereof, is residing on the land which he desires to enter, and upon which a bona fide improvement and settlement had been made, is prevented, by reason of distance, bodily infirmity, ór other good cause, from personal attendance at the district land office,, it shall and may be lawful for him to make the.affidavit required by the original statute, before the clerk of the.court for the county in which the applicant is an actual resident, and to transmit .the same, with the fee and commissions, to the register and receiver.”
It was for making a false affidavit under -this act, that appellee was indicted for perjury.
Mr. Greenleaf, treating of proof in cases of perjury,, says “where the .oath was made to an answer in chancery, deposition, affidavit, or other written p’aper, signed by the party, the original document should be produced, with proof of his handwriting, etc.” 3 Greenleaf. Ev., sec. 192.
In this case the State, it seems, neither offered in evidence the original affidavit, nor a certified copy from the land office; nor made any showing that neither could be produced, but offered a witness to prove the oath. The court below did not err in excluding the evidence so offered.
It is suggested, however, that the court excluded the evidence offered, on the ground that it had no jurisdiction to .try and punish the offense charged in the indictment, and the Attorney General has filed the transcript here for the purpose of having that question decided, under sec. 2128, Gantt’s Digest.
If the court below was of the opinion that it had no jurisdiction of the offense charged, it should have quashed the indictment of its own motion, no demurrer or motion to quash being interposed by the defendant. It was useless to put him upon trial, • on the plea of not guilty, exclude the evidence offered by the State, and permit a verdict of acquittal to be rendered, if the court had no jurisdiction of the offense.
We have however, examined the question of jurisdiction, and have no objection to expressing an opinion on the subject.
The clerk derives his authority to take the affidavit, from the Act of Congress, and not from any statute of the State. Whether a deputy of the clerk can administer the oath, we have no occasion to decide in considering the question of jurisdiction. See United States v. Barton, Gilpin’s R., 443.
There being no law of the State requiring, or imposing it as a duty upon the clerk to take the affidavit, he being merely authorized to do so by Congress, for the purposes of the Homestead Act,-he is at liberty to administer,the oath,, or deciine it, as he may think proper. State v. Whittemore, 50 New Hamp., 250; United State v. Bailey, 9 Peters, 253.
Perjury is an offense against the sovereign whose law is violated by the making of the false oath.
The courts of no country or sovereign, execute the penal laws of another. Story, on Confl. L., sec. 621; The Antelope,TO Wheaton, 66, 123.
In this country, where the citizens owe allegiance to two sovereigns, the State and Federal governments, there are certain crimes which are offenses against the laws of both sovereigns, and they may be punished in the, courts of either. For example, the State has passed statutes to punish the passing of counterfeit coin, etc., and Congress has enacted similar laws and a person passing or uttering such coin, etc., criminally, may be punished by the proper court of either government. Fox v. The State of Ohio, 5 Howard, 411; United States v. Marigold, 9 Howard 561.
Another example may be given, in the language of Mr. Justice Grier, in Moore v. Illinois, 14 Howard, 20. Where the same act may be an offense against both sovereigns, and punishable by both: “Every citizen of the United States is also a citizen of a State or Territory. He may be said to owe allegiance to two-sovereigns, and may be liable to punishment for any infraction of the laws of either.” The same act may be an offense or transgression of the laws of both. Thus an assault upon the Marshal of the United States, and hindering him in the execution of legal process, is a high offense against the United States, for which the perpetrator is liable to punishment: and the same act may be also a gross breach of the peace of the State, a riot, assault, or murder, and subject the same person to punishment, under the State laws, for a misdemeanor or felonly. That, either or both may (if they see fit) punish such offender, cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offense : but only that by one act he committed two offenses, for each of which he is justly punishable.”
We have no special statute' making it perjury to make a false oath before a clerk, who administers such oaths under the authority conferred upon him by, and for the purposes of, the Homestead Act of Congress.
The general statute defines perjury thus:
“Perjury is the wilful and corrupt swearing, testifying or affirming falsely to any material matter in any cause, matter, or proceeding before any court, tribunal, body corporate, or other officer having by law, authority to administer oaths.” Gantt’s Digest, sec. 1415.
“The wilful and corrupt .swearing, affirming, or .declaring falsely to any affidavit, deposition, or probate, authorized -by law to be taken before any court, tribunal, body politic, or officer, shall be deemed perjury.” Ib., sec. 1416.
The oath in this case was not taken under or by virtue of any law of the State, nor by an officer acting, in administering the oath, under authority conferred upon him by any law of the State, nor was the affidavit to be used in any court, tribunal or before any officer of the State.
On the contrary, the oath was taken under the Homestead Act of Congress, it was administered by an officer acting under authority of that act, and the affidavit was taken to be used before a United States land officer to procure a homestead entry. If the oath was wilfully false, it was an offense not in violation of a State law, nor against the sovereignty of the State. United States v. Bailey, 9 Peters, 238.
In People v. Sweetman, 3 Parker’s Criminal Rep., 358 ; held that under the Act of Congress, the County Courts of the several counties of the State of New York had jurisdiction of the naturalization of aliens. That the State Courts in entertaining jurisdiction of cases of naturalization, act exelusivly under the laws’ of the United States, and should be deemed quoad hoc, ■courts of the United States. And that wilful false swearing by a person giving material testimony in a naturalization proceeding, before a County Court, Avas an offense against the laws of the United States, and punishable in the United States Courts.
In Rump v. Commonwealth, 30 Penn. State R., 475; held that a person who made a false oath in a naturalization proceeding before the District Court for the City and County of Philadelphia, was indictable in the State Court, but this was p.ut upon the ground that a statute of the State, as well as the A.ct of Congress,, conferred upon the courts of the State jurisdiction to naturalize aliens. This case was approved in a similar case in New Hampshire State v. Whittemore, 5 N. H, 246.
But the Pennsylvania case was a stronger one in favor of the jurisdiction of the State Court, than the case now before as. There, the oath was taken in a proceeding in which the State Court was exercising jurisdiction; here, the affidavit was made to be used before a Federal land officer.
In ex parte Dock Bridges, 2 Wood’s R., 428; Bridges was indicted in the Superior Court of Randolph County, Georgia, for perjury committed October, ¿7th 1874, in an examination before a United States Commissioner, under the Improvement Act. He was released, after conviction, on habeas corpus, by Mr. Justice Bradley, on the ground that the crime with which he was charged was an offense against the laws of the United States, and not against the laws of Georgia. ’ That it would be a manifest incongruity for one sovereignty to punish a person for an offense committed against the laws of another sovereignty.
. We are of opinion that the court below had no jurisdiction of the offense charged in the indictment in this case.,
Affirmed. | [
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English, Cb. J.:
This was an action of replevin, by complaint and summons, commenced in the Court of Common Pleas of Lee County, on the 21st of January, 1876, by McDaniel & McCormick against Jarratt & Rogers for possession of three bales of cotton.
The plaintiffs claimed title to the cotton by virtue of a mortgage, with power of sale, executed to them by John W. Ridling on the 20th of March, 1875, acknowledged and registered in the recorder’s office in Lee County 16th of June, 1875, and which had matured before the suit commenced.
The proceedings in the Court of Common Pleas, except the complaint and the mortgage made an exhibit thereto, and the writ, are not copied in the transcript before us. It was tried in the Circuit Court of Lee County, at the October Term, 1876, on appeal, we suppose, from the Court of Common Pleas, no objection appearing to have been made in the Circuit Court, and none made here, as to the manner in which the case got into that court. • ,
The transcript of the proceedings in the Circuit Court shows that the parties appeared, and agreed that the complaint should be considered as traversed, and the cause submitted to the court, sitting as a jury, on an agreed statement of facts, as follows:
“Eor the purposes of this case it is agreed that the cotton in controversy was raised upon the five acres mentioned in the mortgage filed with plaintiff’s complaint as an exhibit. That defendants purchased said "cotton in the town of Marianna, on the 22d day of November, 1875, from one Russell, who was in possession of the cotton, and represented to defendants that he was the owner thereof, and that there was no incumbrance thereon by mortgage or otherwise. That defendants paid Russell for said cotton $141.48, which was its full market price. That suit was brought in the Court of Common Pleas of the County of Lee by the plaintiffs to recover possession of said cotton ; that the cotton was found by an officer in the possession of defendants, and that before suit brought plaintiffs made demand of defendants for return of said cotton. It is further agreed that the mortgage was given before the crop was planted, and that the account filed showing a balance due McDaniel and McCormick from the mortgagor is true.”
On behalf of plaintiffs, the court made the following declarations of law:
“First — A mortgage given for an expressed consideration of five dollars to secure future indefinite advances on open account having been duly executed, acknowledged and delivered, and having been filed for record in the county where the property was at the date thereof, is sufficient notice to a purchaser of said property.
“Second — A mortgage upon a crop not planted, but describing the premises upon which the crop is to be planted in the same place is a good and valid mortgage.”
The defendants moved the following declarations of law, which the court refused:
“First — A mortgage in consideration of the sum of five dollars in hand paid, but for no specified amounts for which it is a security, although duly recorded, is not sufficient notice to a party purchasing property embraced in said mortgage from a third person who has said property in his possession, and the purchaser, without other notice than that of such mortgage, acquires a good title to said property free from any lien of the mortgage.
“Second — A mortgage upon five acres of cotton, executed before the cotton is planted, is void.”
The court found for plaintiffs, and it being admitted that the cotton sued for had been disposed of by defendants, rendered judgment in favor of plaintiffs for $141.48, the value of the property, with interest from the 23d of November, 1875.
Defendants moved for a new trial, which the court refused,- and they took a bill of exceptions, setting out the facts, and appealed to this court.
I. The first declaration of law made by the court below at the instance of appellees, and the first declaration of law moved for appellants, and refused by the court, present the question whether the mortgage relied on by appellees for title to the cotton in controversy was invalid as against appellants, because it was indefinite as to the amount of advance to bo made by appellees, the mortgagees, to Ridling, the mortgagor.
By the mortgage Ridling conveyed tó McDaniel & McCormick, for and in consideration of the sum of $5, the receipt of which was duly acknowledged, one sorrel horse, one black cow, one red cow, and two yearling calve,“and five acres more or less of cotton, and ten acres more or less of corn to be planted and produced during the year 1875, on Maj. John D. Thomas’ farm in Lee County, State of Arkansas, to have and to hold the same, etc., etc., conditioned, however, as follows: Whereas, the said party of the first part, is indebted to the parties of the second part in the sum of- dollars on account; and, whereas, said first party will become further indebted to the said second parties during the year 1875, on a continuing account for goods, wares and merchandize and supplies and moneys to be furnished and advanced to him by said second parties, and for all indebtedness that may accrue and remain unsettled and not paid after the year 1875, until settlement of said account, now if the party of the first part shall well and truly pay to the parties of the second part the sum hereinbefore mentioned and all their indebt- ’ edness which may then be due the parties of the second part by the party of the first part, together with the costs of this trust, on or before the 15th day of November, 1875, then this conveyance shall be void, otherwise to remain in full force and effect. And in case any default shall be made in the payment of said indebtedness as herein set forth, or should the party of the first part, prior to said 15th day of November, 1875, sell or attempt . to sell, ship, remove or otherwise dispose of the property herein conveyed, or any part thereof, without the consent of the parties of the second part, then in either event the'parties of the second part, their agent or attorney, is hereby authorized and empowered to take charge of said property, on demand without process of law, and sell and dispose of the' same or so-much as will be ' necessary, at public sale, at Eorrest City, for cash in hand, upon two weeks’ notice in some newspaper published in the county, etc., etc., and out of the proceeds of sale said parties of the second part are to retain the sum due them as herein set forth, and the costs of this trust and of sale, rendering the surplus, if any, to the said party of the first part,” etc.
What advances appellees made to Ridling after the execution of the mortgage, or at what time such advances were made, does not appear in the transcript before us. It appears from the agreed statement of facts that there was an account on file in the court below, showing a balance due appellees, from the mortgagor, but appellants did not think proper to incorporate the account in their bill of exceptions, or otherwise make it part of the record. They purchased the cotton of Russell after the maturity of the mortgage, and it must be presumed in favor of the judgment of the court below, in the absence of any showing to the contrary, that the advances were made before the maturity of the mortgage, and amounted to as much, or more, than the amount for which the court rendered judgment in favor of appellees against appellants. Nor did appellants think proper to prove how, or where Russell, of whom they purchased the cotton, obtained possession of it. They seem to have relied solely upon the propositions, first, that the mortgage was invalid as to them because it was indefinite as to the amount of advances to be made by appellees to Ridling, and, second, that it was void as to the cotton for the reason that the crop was not planted at the time the mortgage was executed.
We have no statute (as in some of the States) requiring the definite amount to be advanced by a mortgagee to be stated or fixed in the mortgage.
By our statute all mortgages, in order to be good against subsequent ^purchasers or incumbrancers, must be acknowledged and recorded, and are a lien upon the mortgaged property from the' time they are filed in the recorder’s office for record. Gantt’s Digest, secs. 4287-8, etc.; Main v. Alexander, 9 Ark., 112; Jacoway v. Gualt, 20 Ark., 190; Hannah v. Carrington, 18 Ib., 105.
Mortgages to secure futuré advances have always been favored by the common law. A statute requiring the amount to'be stated, is a modification of the common law, under which the mortgage would be equally valid without such limitation. 1 Jones on Mortgages, secs. 365, 366-7, etc.; Witczinski v. Eveman, 51 Miss., 841, 845; Allen v. Lathrop, 46 Geo., 133.
In Allen v. Lathrop, supra, the mortgage was made in consideration of advances in money and plantation supplies to be furnished for the purpose of carrying on a farm for the year 1870, no sum being named, and the court held the mortgage valid, notwithstanding a statute of Georgia requiring a mortgage to specify the debt which it is given to secure.
A mortgage to secure future advances, which on its face gives information enough as to the extent and purpose of the contract, so that any one interested may, by ordinary diligence, ascertain the extent of the incumbrance; whether tKe extent of the contemplated advances be limited or not, is valid. 1 Jones on Mortgages, sec. 373.
In this case it was optional, perhaps, with the mortgagees, whether they would make future advances to the mortgagor upon the faith of the mortgage or not, and if appellants had purchased the cotton, and given appellees notice of their purchase before they made any advances, it may be that they could not have defeated the purchase of appellants by making advances after such notice, but the adjudications on this subject are not in harmony j and the record before us makes no such case. See 1 Jones on Mortgages, secs. 371, 373; LaDue v. Detroit & Milwaukee R. R. Co., 13 Mich., 380; Witczinski v. Everman, 51 Miss., 841; Birnie et al. v. Main, 29 Ark., 594.
II. The mortgage before us was not void as. to the cotton because executed before the crop was planted.
This court held in Apperson & Co. v. W. E. & C. L. More, 30 Ark., 56, that where a mortgage is executed on an unplanted crop a lien attaches, in equity, as soon as the subject of the mortgage comes into existence, and, in a proceeding to foreclose, will be enforced against the mortgagor and those holding under him with record notice; but that the mortgagee could not maintain an action at law, by virtue of the mortgage, for the •crop when produced; that he had an equitable lien.upon, but-not a legal title to the crop.
Such was held to be the law before the passage of the Act of February 11th, 1875 (Acts of 1874-5, p. 149), which was passed before the decision in the above case, but the mortgage involved in that case was executed, and the suit brought prior to the passage of the act.
The act provides: “That all mortgages executed on crops already planted, or to be planted, shall have the same force and effect to bind such crops and their products, as other mortgages now have to bind property already in being.”
The mortgage now before us was executed after the passage of this act, and had the same force and effect to bind the cotton as it did the cattle embraced in it,-or as it would if the cotton had been in being when the mortgage Avas executed.
Appellees could not have brought replevin for the cotton before it was planted, or while it was groAving, but if they could not bring an action at laAV for it, after it Avas gathered and baled, and after the maturity of their mortgage against appellants, who had possession of it, and claimed it adversely, but were obliged to resort to equity to enforce their lien, then the above act amounted to nothing, and it wks useless to pass it.
The counsel for appellants submit that the other property embraced in the mortgage might have been sufficient to satisfy the debt of appellees Avithout their resorting to the cotton.
No such defense was interposed in the court below if it might have been.
Appellants might, perhaps, have protected themselves by resorting to the equity. side of the court to compel appellees (To foreclose, and to have the property embraced in the mortgage marshalled. Moss v. Adams et al., ante; Terry v. Rosell, ante.
But they set up no valid defense to this action, and the judgr ment must be affirmed. | [
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Harrison, J.:
The. appellant Avas indicted in two eases for forgery, and also for uttering the forged instrument.
The indictment in the first case, after the caption, was as follows:
The Grand Jury of Pulaski County, in the name and by the authority of the State of Arkansas, accuse Carter McClellan of the crime of forgery, committed as follows, viz: The said Carter McClellan, on the 20th of July, 1876, in the county and State aforesaid, unlawfully contriving to defraud L. Valmer & Co., then and there did felonously forge a writing purporting to be an order of one Richard Hudgins, which forged writing is in these words, to-wit:
“Reed’s Landing, July 20th, 1876.
“ L. Valmer & Co.: — Please let the bearer have $5.00 worth of goods, and charge to me. Richard Hudgson.” With the intent fraudulently to obtain possession of the property of L. Valmer & Co., against the peace and dignity of the State of Arkansas.
The grand jury aforesaid, in the name and by the authority of the State of Arkansas, accuse said Carter McClellan of the further crime of uttering a forged writing committed as follows, viz: The said Carter McClellan, on the 20th day of July, 1876, at the county and State aforesaid, felonously did utter and publish as true, a certain forged and counterfeited writing, purporting to be an order of one Richard Hudgins, in language and figures as follows, to-wit:
“Reed’s Landing, July 20th, 1876.
“L. Valmer & Co.: — Please let the bearer have $5.00 worth of goods, and charge to me. Richard Hudgsire.” With the intent to defraud said L. Valmer & Co., he, the said Carter McClellan, at the said time he so uttered and published said forged and counterfeited writing as aforesaid, then and there, to-wit: “On, etc., at, etc., well knowing the samé to be forged and counterfeited, against the peace and dignity of the State of Arkansas.”
The indictment in the second case, was exactly similar to the above, except the averment as to time, and as to the instrument-charged to have been forged and uttered ; the indictment being as follows:
“Reed’s Landing, Arkansas, July 26th, 1876.
“ Messrs. L. Valmer & Co.: — Please let the bearer, Carter McClellan have $7.00, seven dollars, worth of goods, and charge to me. Richard Hudgson.”
He was tried upon both indictments at the same time, by his consent, and was found guilty on the second count in the first indictment, and on the first count in the second; and his term of imprisonment in the penitentiary in each case was fixed by the jury at two years.
He moved in arrest of judgment on the ground, that the first count, upon which he was convicted, did not state facts sufficient to constitute a public offense. His motion was overruled, and he was sentenced to imprisonment in the penitentiary for a term of two years.
The motion in arrest of judgment is so vague and indefinite, we are unable clearly to determine to which indictment it refers; but it is not important that that should be ascertained, for if valid to either of the counts upon which he was convicted, the objection is as good upon error or appeal as in arrest of judgment.
Each count, in both indictments, charged that the instrument forged, or uttered, purported to be an order of Richard Hudgins, but neither of the orders set out does so purport, that in the indictment, in the first case, purporting to be an order of Richard Hudgson, and that in the indictment in the second case of Richard Hudgsire.
The word “ purport,” imports what appears on the face of the instrument. 2 Russ., in Crims, 378-382.
There is, therefore, a repugnancy between the instruments set out and the averments as to their purport, and such a repugnancy has always been regarded as fatal to the indictment. “ Bish. C. Law, sec. 370.
Our attention has been called to another objection to the counts for uttering, that the name of the person to whom the order was passed, is not stated. For this reason, also, we think these counts insufficient. The name of the person to whom the forged instrument was passed, is a material part of the description of the offense.
“ Where the indictment is for uttering, it should mention the name of the person, if known, to whom the forged instrument was passed; or, if not known, this fact should be stated as an excuse for the omission.” 2 Bish. Cr. Law., sec. 379; Buckley v. The State, 2 Greene, Iowa, 162.
The court rendered judgment, upon conviction, on one indictment only, but which indictment does not appear.
It was an irregularity, to say the least, to try the two indictments together; such a practice would certainly produce great confusion and uncertainty, and should be condemned.
The judgment must be reversed, and the cause remanded, with instructions to the court below to arrest the judgment, and to hold the defendant in custody until the charges may be again inquired into and passed upon by the grand jury. | [
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Harrison, J.:
This was an application to the court below by E. L. Watson, a tax-payer of Jackson County, for a writ of mandamus to compel John R. Loftin, the Sheriff and Collector of Taxes, to receive from him county warrants, issued since the adoption of the Constitution of 1874, in payment of the tax levied by the County Court, in 1876, to pay indebtedness existing at the time of the adoption of the Constitution.
The amount of his tax, to pay such indebtedness, he alleged in his petition, was $33.15, and that he had tendered the sum to the collector, in county warrants, issued since the adoption of the Constitution, and the same had been refused. The collector admitted the facts stated in the petition, but denied the right of the petitioner to pay the tax in such warrants.
The writ was granted, and the collector appealed.
The act of December 14th, 1875, entitled, “An act to prevent discrimination in county warrants or county scrip,” is as follows:
“ Be it enacted, etc.: That all county warrants and county scrip shall be receivable for any taxes for county purposes, except for interest on the public debt, and for sinking fund, and for all debts due the county by whose authority the same was issued; and all city warrants, scrip, acceptances, or money, shall be receivable for any city purposes, except for interest tax, and for all debts due the municipal corporation by whom the same were issued, without regard to the time or date of issuance of such warrants, scrip, acceptance or money, or the purpose for which they were issued ; and it is hereby made the duty, and authority is hereby conferred upon the County Court of the respective counties, or the Judge thereof, in vacation, to make all needful orders compelling collectors, both county and municipal, to comply with the provisions and intent of this act. Provided, that nothing in this act shall authorize the collector to receive scrip issued since the adoption of the Constitution, in payment of the tax levied to pay the indebtedness existing before the adoption of the Constitution.”
The Constitution, art. xvi, sec. 9, fixes the rate of county taxation at one-half of l'per cent., for all purposes, except to pay indebtedness existing at the time of its ratification, for which the levy of an additional one-half of 1 per cent, may be made; and sec. 11, of the same article, forbids any money arising from a tax levied for one purpose to be used for any other purpose.
It is thus seen that the collector was inhibited from receiving the warrants, by both the Constitution and the act of December 14th, 1875. Had he received them, the levy would have failed of its purpose, for the new warrants would have discharged no part of the old indebtedness, and the tax would have been perverted, in violation of the Constitution, to a purpose for which it was not levied, and that also, instead of one-half of 1 per cent, only, that might be levied for ordinary purposes, 1 per cent, would have been collected.
Another thing may be noticed — the old warrants, after they have been presented for payment to the Treasurer, draw 6 per per cent, interest; the new draw none. Sec. 1, of the article of the Constitution before referred to, denying to counties the power to issue interest bearing evidences of indebtedness.’
If the act of December 14th, 1875, had .not been passed, no question could exist as to the right to pay the tax in old warrants, for the law under which they were issued expressly pro vided that they should be received for all taxes and dues to the county, and they go directly to the extinguishment of the indebtedness.
We are to presume the warrants tendered the collector were upon allowances for liabilities of the county, incurred since the adoption of the Constitution.
The judgment of the court below is reversed, and the case remanded to it, with instructions to overrule the motion for the writ of mandamus.
English, Ch. J.:
When the opinion of the court in the above case was announced, by Mr. Justice Harrison, it was holdup, on the suggestion of a member of the bar, that in another case pending in the court, (Lindsey v. Rottaken,) it was insisted that the act 14th of December, 1875, was passed in violation of a provision of the Constitution, and was void. We have looked into the question, and arc now prepared to announce the conclusions which we have reached, after hearing the oral argument in the case referred to.
Sec. 21, art. 5, of the Constitution, provides that:
“No law shall be passed except by bill, and no bill shall be so altered or amended on its passage, through either house, so as to change its original purpose.”
We have been furnished, from the-office of Secretary of State, with an authenticated copy of the original bill, which, when amended, as shown by the journals of the two houses, and passed, became the act in question.
The original bill, when introduced in the House of Representatives, November 9th, 1875, read as follows :
“ A bill for an act to prevent discrimination in county warrants or county scrip.
u Be it enacted by the General Assembly of the State' of Arkansas :
“ Sec. 1. That all county warrants, or county scrip, shall be receivable for any taxes for county purposes, and for all debts due the county by whose authority the same were issued, without regard to the time or date of the issuance of such warrants, or for the purpose for which they were issued ; and it is hereby made the duty of, and authority is hereby conferred upon the County Court of the respective counties, or the Judges thereof, in vacation, to make all needful orders, compelling collectors to comply with the provisions and intent of this act.
“ Sec. 2. That all laws and parts of laws in conflict herewith be, and the same are hereby repealed; and this act be in force, and take effect from and after its passage."
“ Hill, of Calhoun
It apppears from the House Journal that the bill was read a first and second time, and referred to the Committee on the Judiciary.
On the 9th of November the committee reported the'bill back to the House, recommending that sec. 1 of the bill be so amended as to read as follows :
“ That all county warrants and county scrip shall be receivable for any taxes for county purposes, except for interest on the public debt, and for sinking fund, and for all debts due the county by whose authority the same were issued; and all city warrants, scrip, acceptances or money shall be receivable for any taxes for city purposes, except for interest tax, and for all debts due the municipal corporation by which the same were issued, without regard to the time or date of issuance of such warrant, scrip, acceptance, certificate or money, or the purpose for which they were issued, and it is hereby made the duty, and authority is hereby conferred upon the County Court of the respective’ counties, or the Judges thereof, in vacation, to make all legal orders compelling collectors, both county and municipal, to comply with the provisions and intent of this act.”
And the committee recommended that the bill so amended be passed.
The report and the amendments recommended by the committee were adopted, and the bill ordered engrossed; and on the 1st of December the bill, having been engrossed, was read a third time, and passed.
The Senate Journal shows that the bill, as sent from the House, was read the first time on the 2d of December, the rules suspended, and read the second time, and referred to the Committee on Finance.
On the 7th of December the committee reported, recommending that the following proviso be added to sec. 1:
“ Provided, that nothing in this act shall .authorize the collectors to receive scrip issued since the adoption of the Constitution in payment of the tax levied to pay the indebtedness existing before the adoption of the Constitution.”
The amendment proposed by the committee was read the first time, the rules suspended and read a second time, and, on the 8th of December, the bill, as so amended, was read the third time, and passed.
The bill was returned to the House, the amendment of the Senate concurred in, read a thiid time, on the 9th of December, and passed.
The objection to the validity of the act is, that the bill was so amended by the two houses as to change its original purpose.
The purpose of the bill was to make county warrants, etc., receivable in payment of county taxes and debts, without regard to the dates of such warrants, or the purposes for which they were issued. The original purpose of the bill was preserved in .the act, but the amendments made by the two houses limited the scope of the bill, by exceptions, and extended it so as to embrace city warrants, etc., with like exceptions.
Thus the original bill declared that county warrants should be receivable in payment of all county taxes, etc., without regard to date or purpose of issuance, and the amendment of the House limited the scope of the bill by excepting taxes levied for interest on the public debt and sinking fund.
So, the original bill did not embrace cities, but the amendment of the House .extended the scope or purpose of the bill so as to include warrants, etc., issued by them, with the limitation that Such warrants, etc., should not be receivable in payment of interest tax, etc.
The Senate amendment made a further limitation of the scope of the bill as passed by the House, by a proviso that scrip issued since the adoption of the Constitution should not be received in payment of taxes levied to pay indebtedness existing before its adoption.
The bill, thus limited and extended by the amendments of the two houses, in its scope or purpose, but embracing no new matter not germain to its original purpose, became a law.
No bill shall be so altered or amended, etc., as to change its original purpose.
Purpose, (from the Latin, propositum,) that which a person sets before himself as an object to be reached or accomplished ; the end or aim to which the view is directed in any plan, manner, or execution; end, or, the view itself; design ; intention— Webster.
Though the provision of the Constitution be mandatory, it should not receive so rigid or narrow a construction as to embarrass or hamper the two houses in amending and perfecting their bills, and drive them to accomplish, by a number of bills, that which might well be accomplished by amending a bill, without adding foreign or incongruous matters, or perverting its original purpose. Cooley’s Con. Lim., p. 142, etc.
/To amend a bill for an act regulating attachments, for example, so as to change it into a road, revenue, game, school or estray law, would be palpably in .violation of the Constitution. But a bill for an act to regulate attachments in Circuit Courts, might, we think, be so amended as to embrace attachments before justices of the peace, without any-violation of the Constitution, the subject of the amendment being^ germain, and not incongruous to the purpose of the billy'
Sec. 34 of the same article of the Constitution provides that: “No new bill shall be introduced into either house during the last three days of the session.”
Now, but for sec. 21, the force and intention of this section might be avoided during the last three days of the session, by taking up bills previously introduced for purposes indicated in their titles, and expressed in their bodies, and converting them, by amendment, into bills for totally different puuposes, or en-grafting upon them provisions foreign to their original purposes.
There was a provision in the Constitution of 1868, that no act should embrace more than one subject, which should be expressed in its title. Sec. 22, art. v. But it was regarded as no violation of this clause of the Constitution to embrace, in a revenue act, provisions for levying and collecting State, county, township and city taxes, and such was the habit of the Legislature.
Under a similar provision of the Constitution of Minnesota, in Board of Supervisors of Ramsey County v. Heenan, 2 Minn., 338; held that an “ act to provide for township organizations,” was not void for containing provisions relating to county organizations. That, in a technical sense, the act did embrace more than one subject, and that but one was expressed in the title, but that the subjects were intimately connected and associated, and the embracing of them in the same act, though forbidden by the letter, was not by the spirit and intention of the Constitution.
So, in Tuttle v. Strout, 7 Minn., 468; held, that “ An act for homestead exemption,” was not void because it treated also of exemptions of personal property. That exemptions for sale on execution was the subject of legislation, and with a provision-for exempting the homestead might be embraced provisions for exempting personal pi’opertv, without violating the spirit of the Constitution.
See, also, Palmore v. State, 29 Ark., 252; Fletcher v. Oliver, 25 Ib., 298.
Counties and incorporated cities and towns are but larger and smaller divisions of the State, for governmental and police purposes, and we can see no violation of the spirit of the clause of the Constitution in question, giving it a reasonable interpretation, in holding that a bill having for its purpose an act requiring county scrip to be received in payment of county taxes, etc., might not be so amended as to embrace city scrip, etc., the subjects being kindred, and usually associated in our revenue acts.
If there be a mere doubt about the constitutionality of an act, the habit of the courts is to solve the doubt in favor of the validity of the act, and thereby concur with the judgment of the Legislature. | [
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PER CURIAM.
Counsel, George J. Stone, requests a continuance for filing appellant’s brief. Counsel’s reason is that his law license was suspended on March 8, 1996, because of a deficiency in continuing legal education hours. He states that he expects to cure the deficiency on March 29, 1996, and have his license reinstated shordy thereafter.
Counsel’s motion is granted for thirty days. The clerk is directed to set a briefing schedule after the thirty-day period has run. The court forwards this per curiam to the Professional Conduct Committee for its consideration. | [
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PER CURIAM.
The Clerk of the Court refused to docket this case when the record was presented on April 2, 1996. Appellant’s counsel, John F. Gibson, Jr., filed this motion on behalf of his client asking that the record be accepted, despite its being tendered more than two years after final judgment was entered. We deny the motion at this time.
The grounds set forth in support of the motion are: 1) the trial court erroneously extended the time for preparing the transcript beyond the seven-month period allowed by Ark. R. App. P. 5(b), and 2) the appellant was indigent and could not afford the cost of the transcript. The record reflects that on February 17, 1994, Rayford’s motion for a new trial was denied and a final judgment entered. Notice of appeal was timely filed on March 17, 1994. On May 6, 1994, counsel filed a motion for an extension of time in which to file the transcript. The motion did not specify an extension date, but asked for “the full seven months allowed.” A timely order was entered on May 26, 1994, which extended the time for filing the transcript until October 17, 1994. That date was one month beyond the time allowed by Ark. R. App. P. 5(b), which specifies that:
In no event shall the time [for filing the record on appeal] be extended more than seven (7) months from the date of the entry of the judgment, decree or order. . .
It appears that the seven months was erroneously calculated from the date that notice of appeal was filed, rather from the date that judgment was entered.
We have consistently held that the appellant’s attorney is responsible for filing the record, not the trial judge or other court personnel. Norman v. State, 323 Ark. 447, 916 S.W.2d 724 (1996); Parrish v. State, 313 Ark. 313, 853 S.W.2d 284 (1993). An attorney must admit fault or show other good cause before a rule on the clerk is granted.
It is also contended in this case that the appellant’s indigency prevented him from paying for a timely prepared transcript. The record reveals that as early as July 14, 1994, court reporter Michael Ashcraft notified appellant’s counsel that he had received neither a deposit nor an order of indigency to allow him to begin preparation of the transcript. Another notification followed in August. Finally, on December 20, 1994, after a certificate of no appeal had been issued by the clerk of this court, a hearing was requested by the prosecution and the appellant declared indigent. At the same hearing, the court re-appointed John Gibson to pursue any remedies that might be available for a belated appeal. However, it was not until October of 1995 that an order to this effect was entered, and then only after inquiries by the court reporter and the appellant himself. Once the order was entered, the court reporter began preparation of the transcript. It was prepared on Friday, March 29, 1996, and tendered to our clerk the following Tuesday, April 2, 1996.
Under the circumstances of this case, we cannot grant the relief requested. The appellant’s attorney shall file within thirty days of the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, and, upon filing same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct. | [
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Robert H. Dudley, Justice.
On December 18, 1993, Jason Hatcher was shot and killed in the parking lot of Harvest Foods in Sherwood. Tim McGarrity was shot in the leg, and Derek Ham-monds narrowly escaped injury, as he was in the line of fire. There was a large gathering of teenagers in the parking lot at the time, and the shootings followed altercations among several of them. There was proof that more than one weapon was fired, and there was testimony that appellant fired one of the weapons. The State conceded that it could not prove which one of the weapons fired the shot that killed Hatcher or the shot that injured McGarrity.
Appellant was charged in the shootings, along with Michael Ryan Webb, Chad Jones, and James Gross. The cases were severed, and appellant was tried and convicted of first-degree murder, first-degree battery, and aggravated assault. Appellant was sentenced to sixty years on the first-degree murder conviction, thirty years on the battery conviction, and ten years on the aggravated-assault conviction. Appellant’s sole argument on appeal is that the evidence is insufficient to convict him on any of the three counts. We find no merit in his argument and affirm.
Appellant argues to this court, as he argued to the court below, that the State failed to prove that the bullets removed from Hatcher and McGarrity came from his gun; therefore, his convictions for first-degree murder and first-degree battery should be reversed. We disagree, as the evidence clearly supports a conviction for accomplice liability. We have said that “[w]hen two or more persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both.” Robinson v. State, 318 Ark. 33, 36, 883 S.W.2d 469, 471 (1994).
Appellant admitted that he drove himself and two codefen-dants to and from the scene of the shootings in his blue Honda Accord. He stated that one of the codefendants, Michael Ryan Webb, put a rifle in the trunk when appellant picked him up at his house. He admitted that he opened the trunk so that Webb could retrieve and use the gun. Appellant said that he brought a .38 caliber revolver with him, which he fired at the scene, although he testified that he shot into the air and not at anyone.
The jury heard extensive testimony from seven State’s witnesses concerning the altercation. Several witnesses described appellant’s car, stated that they saw the driver firing a gun toward the crowd, and observed that Hatcher and McGarrity had been wounded immediately thereafter. McGarrity, the battery victim, told the jury about his fist fight with one of the codefendants, the volley of gunshots that took place soon after appellant’s car arrived, McGarrity’s gunshot wound, and Hatcher’s fatal wound. The jury heard expert ballistics testimony regarding the weapons recovered from the defendants, and the conclusion that a handgun had been fired at the scene. A state medical examiner testified that Hatcher had died from the gunshot wound sustained at the shooting.
Appellant’s witness, codefendant James Gross, testified at length about the fist fight with McGarrity, appellant’s arrival with the other codefendants, Gross’s retrieval of the handgun from appellant, and his firing it himself. Both Gross and appellant testified that they fled the crime scene and all four codefendants met later at Chad Jones’s apartment.
The evidence is abundant that appellant participated as an accomplice to the murder and the battery. An accomplice is one who directly participates in the commission of an offense or who, with the purpose of promoting or facilitating the commission of an offense, solicits, advises, encourages, or coerces the other person to commit the offense, or aids, agrees to aid, or attempts to aid the other person in planning or committing the offense. Ark. Code Ann. § 5-2-403 (Repl. 1993); see also Allen v. State, 324 Ark. 1, 918 S.W.2d 699 (1996). We have said that relevant factors in determining the connection of an accomplice to a crime are “the presence of the accused in proximity of the crime, the opportunity to commit the crime, and an association with a person involved in the crime in a manner suggestive of joint participation.” Banks v. State, 315 Ark. 666, 673, 869 S.W.2d 700, 704 (1994). The State presented evidence by which the jury could conclude that appellant aided in the commission of these offenses; therefore, his culpability was not affected by which bullets actually killed Hatcher and wounded McGarrity. Robinson v. State, 318 Ark. at 36, 883 S.W.2d at 471; Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991).
Appellant argues that his aggravated-assault conviction cannot stand because the State failed to prove that he “purposely engaged in conduct that created a substantial danger of death or serious physical injury to another person.” Ark. Code Ann. § 5-13-204 (emphasis added). This argument is without merit.
Section 5-2-202 of the Arkansas Code Annotated provides that “a person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.” Id. § 5-2-202(1). The rule is well setded that intent is seldom capable of proof by direct evidence, but must be ascertained by the circumstances surrounding the offense. Akbar v. State, 315 Ark. 627, 869 S.W.2d 706 (1994); Williams v. State, 304 Ark. 509, 804 S.W.2d 346 (1991). We have said that “it is axiomatic that one is presumed to intend the natural and probable consequences of his actions.” Akbar, 315 Ark. at 629, 869 S.W.2d at 707. As stated earlier, the jury heard testimony that appellant drove himself and two codefendants to the scene of the shooting, that he brought and fired a gun at the scene, assisted Webb in retrieving a rifle from the trunk of the car, and that Derek Hammonds was in the line of fire and narrowly escaped injury. This is ample evidence for the jury to conclude that he purposely engaged in conduct that created a substantial danger of death or serious physical injury to Hammonds. See Robinson v. State, 318 Ark. at 35, 883 S.W.2d at 470.
In summary, reviewing all of the evidence in the light most favorable to the State, as we must do, Chism v. State, 312 Ark. 559, 853 S.W.2d 255 (1993), we find it sufficient to convict appellant on all three counts. We affirm the decision of the trial court. | [
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Donald L. Corbin, Justice.
Appellant, R.J. “Bob” Jones Excavating Contractor, Inc., (hereinafter “Jones”) appeals the order of the Pulaski County Circuit Court granting summary judgment to appellee, Firemen’s Insurance Company of Newark, New Jersey, (hereinafter “Firemen’s”) on appellant’s complaint for nonpayment under a statutory payment bond pursuant to Ark. Code Ann. § 23-79-208 (Repl. 1992) and for the tort of bad faith. This case requires statutory interpretation and presents a question about the law of torts; jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(3) and (16). Jones raises two points for reversal of the summary judgment. We find no merit and affirm.
PROCEDURAL HISTORY WITH BACKGROUND FACTS
Jones filed this suit against Firemen’s seeking to recover on a payment bond issued by Firemen’s as surety to Lawrence Brothers Incorporated, (hereinafter “Lawrence Brothers”) as principal and general contractor on Arkansas Highway Department Project No. 60447. Lawrence Brothers was to construct several bridges and appurtenances along Highways 46 and 222 in Grant County, Arkansas. Jones subcontracted with Lawrence Brothers to do the excavation work on the project.
A dispute arose between Lawrence Brothers and Jones over Jones’s completion of the subcontract and Lawrence Brothers declared Jones in default. Jones sued Lawrence Brothers for breach of contract and Lawrence Brothers counterclaimed for breach as well. A jury found both appellant and Lawrence Brothers in breach, but awarded damages only to appellant. Appellant won damages in the amount of $110,115.50 plus $46,891.97 in costs. This court dismissed Lawrence Brothers’s appeal of the jury verdict for lack of jurisdiction due to an untimely notice of appeal. Lawrence Bros., Inc. v. R.J. “Bob” Jones Excavating Contractor, Inc., 318 Ark. 328, 884 S.W.2d 620 (1994). Lawrence Brothers satisfied the judgment two days after we dismissed its appeal. Firemen’s was not a party to the suit between Lawrence Brothers and Jones.
Jones demanded payment under the bond from Firemen’s both prior to and after filing this suit against Lawrence Brothers and again after judgment was entered in that suit. Two days before > Lawrence Brothers satisfied the judgment, Jones amended its complaint against Firemen’s in this case to include a claim for the tort of bad faith.
The trial court granted Firemen’s motion for summary judgment in an order without explanation. At the hearing on the motion, however, the trial court stated that Firemen’s was entitled to judgment on both claims because Jones did not recover twenty percent of the amount demanded or sought in the suit as required by section 23-79-208(d) and because the tort of bad faith did not apply to a surety and had not been shown in this case.
STANDARD OF REVIEW
The standard for appellate review of a summary judgment is whether the evidentiary items presented by the moving party in support of the motion left a question of material fact unanswered and, if not, whether the moving party is entided to judgment as a matter of law. Baker v. Milam, 321 Ark. 234, 900 S.W.2d 209 (1995). This court views all proof in the light most favorable to the party opposing the motion, resolving all doubts and inferences against the moving party. Id. However, when the movant makes a prima facie showing of entitlement to summary judgment, the respondent must meet that proof with proof showing a genuine issue as to a material fact. Id.
CLAIM FOR PAYMENT UNDER THE BOND
Jones’s first point for reversal relates to the claim for payment under the bond. Jones makes two arguments under this point. First, Jones contends the trial court erred in ruling that Lawrence Brothers’s payment of the underlying debt after Jones’s appeal was dismissed against Lawrence Brothers extinguished Jones’s cause of action under section 23-79-208. We need not address whether such a ruling was in error because there was no such ruling by the trial court in this case. The order entered in this case grants summary judgment to appellee without explanation. Although Firemen’s pleaded Lawrence Brothers’s payment as an affirmative defense in its answer, the record of the hearing on the motion for summary judgment does not reveal that the effect of the principal’s payment of the underlying debt on the surety’s liability was ever discussed or served as a basis for the trial court’s ruling. This court does not review matters that were not ruled upon below. Technical Servs. of Arkansas, Inc. v. Pledger, 320 Ark. 333, 896 S.W.2d 433 (1995).
Second, Jones contends that Firemen’s admitted all essential elements to establish appellant’s recovery of the statutory penalty, interest, and attorneys’ fees under section 23-79-208, thus the trial court erred in granting summary judgment to Firemen’s. Specifically, Jones argues the trial court erred in ruling that recovery under section 23-79-208 was not allowed because Jones did not recover within twenty percent of the amount demanded as required by section 23-79-208(d). Subsection (d) was added to section 23-79-208 in 1991 and provides as follows:
23-79-208. Damages and attorney’s fees on loss claims.
(a) In all cases where loss occurs and the . . . surety . . . liable therefor shall fail to pay the losses within the time specified in the policy, after demand made therefor, the person, firm, corporation, or association shall be liable to pay the holder of the policy or his assigns, in addition to the amount of the loss, twelve percent (12%) damages upon the amount of the loss, together with all reasonable attorneys’ fees for the prosecution and collection of the loss.
(d) Recovery of less than the amount demanded by the person entitled to recover under the policy shall not defeat the right to the twelve percent (12%) damages and attorneys’ fees provided for in this section if the amount recovered for the loss is within twenty percent (20%) of the amount demanded or which is sought in the suit. [Emphasis ours.]
Firemen’s contends that Jones was required to recover within twenty percent of the amount demanded of Firemen’s or the amount sought in the suit against Lawrence Brothers. This contention arises as a result of the peculiar facts of this case — specifically, that Jones did not join Firemen’s as a party defendant in the suit against Lawrence Brothers and that Jones made four demands for payment from Firemen’s, the amounts of which decreased chronologically as follows: $368,118.21, $311,808.51, $280,000.00, and $110,115.50. Firemen’s points out that the only demand that would satisfy the requirements of 23-79-208 (d) is the final one, which represents the amount of the judgment against Lawrence Brothers. Jones cites Armco Steel Corp. v. Ford Constr. Co., 237 Ark. 272, 372 S.W.2d 630 (1963), and argues that it is entitled to amend its demand. Firemen’s contends that Armco Steel does not stand for the proposition that a plaintiff can continue to amend its claim until it “gets it right.”
The previously mentioned peculiar facts are important and warrant some discussion of the law before resolving the merits of this question. It is well settled that “laborers and materialmen may, in cases involving public improvements, sue the surety on the bond of the contractor without making the contractor a party.” National Surety Corp. v. Ideal Lumber Co., Inc., 249 Ark. 545, 547, 460 S.W.2d 55, 56 (1970) (citing Holcomb v. American Surety Co., 184 Ark. 449, 42 S.W.2d 765 (1931)). Laborers and materialmen are allowed to sue on the bond directly because they cannot enforce liens against construction projects involving public works. Id. Contractors are proper but not necessary parties to suits on their bonds for public works construction projects. Id.
It is also well settled that the penalty provided for in section 23-79-208 and its predecessor statutes has been applied to sureties on construction bonds. See, e.g., Ray Ross Constr. Co., Inc. v. Raney, 266 Ark. 606, 587 S.W.2d 46 (1979) (citing Reid v. Miles Constr. Corp., 307 F.2d 20 (8th Cir. 1962), and Trinity Universal Ins. Co. v. Smithwick, 222 F.2d 16 (8th Cir.), cert. denied, 350 U.S. 837 (1955)); Vern Barnett Constr. Co., Inc. v. J.A. Hadley Constr. Co., Inc., 254 Ark. 866, 496 S.W.2d 446 (1973); General Elec. Supply Co. v. Downtown Church of Christ, 24 Ark. App. 1, 746 S.W.2d 386 (1988). With the exception of Smithwick, 222 F.2d 16, the above-cited cases were ones in which the principal and surety were both parties.
It is equally well settled that no demand other than the filing of suit is required under section 23-79-208 and its predecessor statutes. See, e.g., Farm Bureau Mut. Ins. Co. v. Shaw, 269 Ark. 757, 600 S.W.2d 432 (Ark. App. 1980) (citing Phoenix Ins. Co. v. Fleenor, 104 Ark. 119, 148 S.W. 650 (1912), and Metropolitan Life Ins. Co. v. Shane, 98 Ark. 132, 135 S.W. 836 (1911)); see also, Smithwick, 222 F.2d at 24 (citing Broadaway v. The Home Ins. Co., 203 Ark. 126, 155 S.W.2d 889 (1941), and National Fire Ins. Co. v. Kight, 185 Ark. 386, 47 S.W.2d 576 (1932)). Moreover, a new and lesser demand may be made by amendment after suit is filed, and the surety’s liability for the statutory penalty will be determined by whether it elects to contest the claim rather than offering to pay the reduced amount or asking for time in which to pay. Armco Steel, 237 Ark. 272, 372 S.W.2d 630 (citing Great S. Fire Ins. Co. v. Burns & Billington, 118 Ark. 22, 175 S.W. 1161 (1915), and Kight, 185 Ark. 386, 47 S.W.2d 576; Trinity Universal Ins. Co., 222 F.2d at 24 (citing Life & Casualty Co. v. Sanders, 173 Ark. 362, 292 S.W 657 (1927), Queen of Arkansas Ins. Co. v. Milham, 102 Ark. 675, 145 S.W 540 (1912), and Kight, 185 Ark. 386, 47 S.W.2d 576).
Finally, this court has stated that if a surety pays a claim when its principal is not liable, the surety is treated as a volunteer and cannot recover the payment from its principal. Johnson v. Safeco Ins. Co., 265 Ark. 9, 576 S.W.2d 220 (1979) (citing Fireman’s Fund Ins. Co. v. Clark, 253 Ark. 1025, 490 S.W.2d 447 (1973)). In Barnett Constr., 254 Ark. 866, 876-77, 496 S.W.2d 446, 452, this court applied Clark, 253 Ark. 1025, 490 S.W.2d 447, and a predecessor statute to section 23-79-208, and stated as follows:
Applying this statute to a surety so the surety must either pay a claim and align itself against its principal or run the risk of being penalized by a liability for a 12% penalty and attorney’s fees seems to be beyond the salutary purpose and intent of the statute.
In the present case, Firemen’s argues that its delay in paying Jones’s four demands was due to the legitimate dispute and litigation occurring between Jones and Firemen’s principal, Lawrence Brothers. That the dispute was legitimate is evidenced by the jury’s answers to interrogatories finding both the principal, Lawrence Brothers, and the subcontractor, Jones, in breach. Consistent with our statement in Barnett Constr. Co., we conclude on the facts here presented that there can be no liability of Firemen’s against Jones under section 23-79-208 because of the litigation between Jones and Lawrence Brothers. To impose liability on Firemen’s under section 23-79-208 would force Firemen’s into the untenable situation described in Barnett. Accordingly, we affirm the trial court’s ruling that Firemen’s is entitled to judgment as a matter of law on Jones’s claim pursuant to section 23-79-208, albeit for a different reason than expressed by the trial court. This court affirms the judgment of the trial court if the result reached is correct. Lawhon Farm Supply, Inc. v. Hayes, 316 Ark. 69, 870 S.W.2d 729 (1994).
TORT OF BAD FAITH
For his second point for reversal, Jones challenges the trial court’s ruling that the tort of bad faith does not apply to surety companies and that the tort of bad faith was not demonstrated in this case. The components of the tort of bad faith are affirmative misconduct by an insurer, without a good-faith defense, which is dishonest, malicious, or oppressive in an attempt to avoid liability under a policy. Aetna Casualty and Surety Co. v. Broadway Arms Corp., 281 Ark. 128, 664 S.W.2d 463 (1983). The tort of bad faith applies to both first and third-party claims. Id. The third-party tort of bad faith is the negligent failure of an insurer to settle a third-party claim within policy limits. Employers Equitable Life Ins. Co. v. Williams, 282 Ark. 29, 665 S.W.2d 873 (1984).
It is questionable whether the tort of bad faith applies to these facts — where one who has subcontracted with a principal asserts a cause of action for bad faith against the principal’s surety or bonding company. We need not decide this issue, however, because the tort has not been proved in this case. See Williams v. Joyner- Cranford-Burke Constr. Co., 285 Ark. 134, 685 S.W.2d 503 (1985).
Jones argues there are material issues of disputed fact relating to the claim for bad faith and summary judgment was thus improper. As the moving party, Firemen’s bore the burden of proving it was entitled to summary judgment. In this case, Firemen’s met that burden by demonstrating it had a good-faith defense to the tort of bad faith. As previously discussed, if a surety pays a claim when the principal is not liable, the surety is treated as a volunteer and cannot recover the payment from the principal. Johnson, 265 Ark. 9, 576 S.W.2d 220. There was a legitimate question of Lawrence Brothers’s liability, as is evidenced by the jury answers to interrogatories finding both Lawrence Brothers and Jones in breach. Thus, Firemen’s had a good-faith defense and has proved it is entided to judgment as a matter of law. See Johnson, 265 Ark. 9, 576 S.W.2d 220. Jones offered no proof to defeat Firemen’s good-faith defense and has therefore not met its burden of meeting Firemen’s proof with proof that there is a genuine issue for trial.
The order granting summary judgment is affirmed. | [
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DAVID Newbern, Justice.
Mark Tauber was stopped by State Trooper Cary Lovaas for driving 66 miles per hour in a 55-miles-per-hour zone. Trooper Lovaas smelled alcohol and administered field sobriety tests, all of which Mr. Tauber failed. He took Mr. Tauber to the Boone County Law Enforcement Center where Mr. Tauber registered .131 on the breathalyzer. Mr. Tauber was convicted by the Harrison Municipal Court of speeding and of driving while intoxicated (DWI), first offense, which is a misdemeanor. Ark. Code Ann. § 5-65-118(d)(2) (Repl. 1993).
Mr. Tauber appealed to Boone Circuit Court where he did not contest his speeding conviction and was again convicted of DWI, first offense, after a trial by jury. He was sentenced to one day in jail and given credit for one day served, fined $150.00 for DWI (to be added to a $55.00 fine for speeding), his driver’s license was suspended for 90 days, and he was “requested to attend DWI school.”
Mr. Tauber contends it was error for the Trial Court to have refused to bifurcate his trial into separate guilt-determination and sentencing phases. We hold he has demonstrated no prejudice as a result of that ruling. He also argues the Trial Court erred in refusing to admit the testimony of his expert witness with respect to field sobriety tests. We decline to consider the point as there was no proffer of the witness’s testimony. Lastly, he contends it was error not to require the jury to announce in its verdict whether he was guilty of DWI as a result of having more than .10% blood alcohol or as a result of other evidence that he was “intoxicated.” Again, we hold that, to the extent there may have been error, no prejudice has been demonstrated, thus we affirm.
1. Bifurcation
Mr. Tauber concedes there is no statutory authority requiring or authorizing the bifurcation of a trial of a misdemeanor. He contends, however, that his Fourteenth Amendment right to equal protection of the laws was violated because trials involving felony offenses are bifurcated in accordance with Ark. Code Ann. §16-97-101 (Supp. 1995), and those accused of misdemeanors constitute a class entitled to the same treatment.
We need only point out that Mr. Tauber has not identified any decision to introduce or withhold evidence he might have made differently had the trial been bifurcated. As the State points out, Mr. Tauber could have suffered no sentencing prejudice as he received only the required minimum sentence for DWI, first offense. Ark. Code Ann. §§ 5-65-112 through 5-65-115 (Repl. 1993). To have standing to attack the constitutionality of a statute, the appellant must show that the questioned statute had a prejudicial impact on him. Montgomery v. State, 277 Ark. 95, 640 S.W.2d 108 (1982); Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979). If the Trial Court erred by failure to bifurcate the trial, it was harmless error beyond a reasonable doubt.
2. Expert testimony
Mr. Tauber presented Dr. Roger Hawk as an expert on infrared spectroscopy and on field sobriety tests. He was allowed to testify at length about his opinion as to the failings of the Datamaster 2000 breathalyzer machine which was ultimately used to determine Mr. Tauber’s blood-alcohol content. When it came, however, to offering his testimony on field sobriety testing, the Trial Court refused his qualification as an expert.
We have no way of knowing whether Mr. Tauber was prejudiced by this ruling because Dr. Hawk’s testimony with respect to field sobriety testing was not proffered. To challenge a ruling excluding evidence, an appellant must proffer the excluded evidence so we can review the decision, unless the substance of the evidence is apparent from the context. Ark. R. Evid. 103(a)(2); Wade v. Grace, 321 Ark. 482, 902 S.W.2d 785 (1995); Davis v. State, 319 Ark. 460, 892 S.W.2d 472 (1995).
3. Verdict form
Arkansas Code Ann. § 5-65-103 reads as follows:
Unlawful acts.
(a) It is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.
(b) It is unlawful and punishable as provided in this act for any person to operate or be in actual physical control of a motor vehicle if at that time there was one-tenth of one percent (0.10%) or more by weight of alcohol in the person’s blood as determined by a chemical test of the person’s blood, urine, breath, or other bodily substance.
The jury verdict was as follows:
We, the jury, find the defendant guilty and sentence him to one day in the Boone County Jail and to pay a fine of $150 dollars.
Mr. Tauber contends it was error for the Trial Court to refuse his request that the jury be instructed to return separate verdicts as to subsections (a) and (b) of § 5-65-103 and for refusing two verdict forms which he proffered. One of the forms he proffered could have been used by the jury to declare him guilty of § 5-65-103(a), and the other of § 5-65-103(b).
The State argues we should affirm on this point because Mr. Tauber’s abstract does not contain the form given to the jury by the Trial Court. While we cannot find any verdict form given to the jury, we assume the jury’s verdict, quoted above, followed the form, if any, given to it by the Trial Court.
In Yacono v. State, 285 Ark. 130, 685 S.W.2d 500 (1985), Yacono was charged with driving while intoxicated pursuant to § 5-65-103(a). Evidence of a breathalyzer test showing his blood alcohol content to have been more than .10% was introduced. The issue on appeal was relevancy of that evidence. We held that the breathalyzer evidence tended to prove intoxication and was thus relevant. In the course of reaching that decision, however, we uttered this obiter dictum:
When a person operates or controls a vehicle while intoxicated (as a result of the ingestion of alcohol or drugs or both) or with a blood alcohol content of 0.10% or more, he violates Act 549. The penalty is the same whether the act is violated by conduct described by (a) or (b). In other words, the two conditions are simply two different ways of proving a single violation.
We have followed that statement since, most recently in Stephen v. State, 320 Ark. 426, 898 S.W.2d 435 (1995), where we held a DWI conviction was not dependent upon evidence of blood-alcohol content in view of sufficient other evidence of intoxication.
Mr. Tauber correctly cites Peters v. State, 286 Ark. 421, 692 S.W.2d 243 (1985), for the proposition that the State must prove each element of an offense, but his only argument that he was prejudiced by the Trial Court’s refosal to instruct the jury to announce whether he was found guilty pursuant to subsection (a) or subsection (b) of § 5-65-103 is as follows:
Since it is impossible to determine upon which count the Appellant was convicted, a retrial would put him twice in jeopardy of the same offense, in violation of Article 2, Section 8, of the Arkansas Constitution and the Fifth Amendment to the United States Constitution. Appellant therefore respectfully prays for a dismissal of both counts, and the Court should so order.
Mr. Tauber was not charged with separate “counts.” He was convicted in the Municipal Court of violation of § 5-65-103 without further specification. The record of that conviction was brought to the Circuit Court where it was tried de novo, and it was again tried as a general violation of § 5-65-103. Nor is there to be any retrial in this case; thus the former-jeopardy specter does not appear.
We have no doubt Mr. Tauber would not have been found guilty had 12 jurors not found that he violated either subsection (a) or subsection (b) of § 5-65-103. We have not been required to answer directly the question whether a jury must focus on one or the other or both of the subsections of § 5-65-103 and announce one or the other or both as the basis of a guilty verdict. In view of Mr. Tauber’s failure to demonstrate any prejudice resulting to him from the failure to submit the two verdict forms, we need not answer that question now.
Affirmed. | [
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ROBERT L. Brown, Justice.
Appellant Ethridge Carter was convicted of murdering his wife, Shirley Carter. He appeals his conviction and life sentence on grounds of insufficiency of the evidence and various errors committed at trial. We conclude that the evidence submitted by the State was substantial and that no reversible error occurred at trial. Accordingly, the judgment is affirmed.
At about 10:15 a.m. on April 29, 1994, the Heber Springs Police Department received a 911 call that Shirley Carter had been shot at her home. She had been shot through the head with a .22 caliber semi-automatic pistol. She was still alive when the EMT’s and police officers arrived, but she subsequently died in the hospital. Ethridge Carter was later charged with first-degree murder, found guilty by a jury, and sentenced to life imprisonment.
Carter’s first point on appeal is that the trial court erred in denying his motion for a directed verdict and his post-trial motion for a judgment of acquittal notwithstanding the verdict. A motion for directed verdict is a challenge to the sufficiency of the evidence. See, e.g., Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996); Galvin v. State, 323 Ark. 125, 912 S.W.2d 932 (1996); Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). In determining the sufficiency of the evidence, we review the evidence in the light most favorable to the State and sustain the conviction if there is substantial evidence to support it. Misskelley v. State, supra; Galvin v. State, supra; Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture; only the evidence supporting the conviction need be considered. Id.
In order for circumstantial to be sufficient, it must exclude every other reasonable hypothesis consistent with innocence. Walker v. State, 324 Ark. 106, 918 S.W.2d 172 (1996); Nance v. State, 323 Ark. 583, 918 S.W.2d 114 (1996). That determination is a question of fact for the fact-finder to determine. Pike v. State, 323 Ark. 56, 912 S.W.2d 431 (1996); Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995); Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). However, the fact-finder must not be left to speculation and conjecture in arriving at its conclusions on the matter. Smith v. State, 264 Ark. 874, 575 S.W.2d 677 (1974). Two equally reasonable conclusions as to what occurred merely give rise to a suspicion of guilt. Id.
The evidence supporting the State’s case is summarized below. Lori Brown, a daughter of Shirley Carter, testified that her mother was age 57 at the time of her death. According to Brown, her mother was in “great spirits” just prior to her death. Brown testified that her mother had no knowledge about guns; indeed, she was “scared to death” of guns. Brown added that the deceased did not know how to use a gun.
Keith Edmonds, an emergency medical technician, testified that he was called to Shirley Carter’s residence on April 29, 1994. He knocked on the door, and Carter informed him that his wife had shot herself in the bedroom. Edmonds further testified: “And, you know, he [Carter] said be careful because, you know, the gun is still loaded.” Edmonds further explained that Shirley Carter was found on her bed in a strange position because her arms were above her head. He testified that the gun was in her left hand, which was turned palm-out away from her face.
Alan Hubbard, another EMT, informed the jury that Carter told them to be careful because Shirley Carter had a gun. Hubbard testified that he observed a gunshot wound to the right temple area and that the deceased was still “clutching” the gun as if she were about to shoot it. According to Hubbard, the gunshot wound entered the right side of the head and exited the left. Hubbard recalled that the gun was in the deceased’s right hand. In his report, he described her right arm and right hand with the gun as being draped over her head and resting on top of her left hand and arm. Hubbard carefully took the gun from Shirley Carter’s hand, using both of his hands in the process, and handed it to a police officer who took it with a pen or pencil. Hubbard denied putting the gun on safety. Hubbard described Carter’s demeanor that day as simple and very short, “almost of a sense of disgust . . . .” It was his impression that Carter seemed angry that Shirley Carter had shot herself.
Detective Mark Baugh of the Heber Springs Police Department testified that when he arrived, three EMT’s were working on Shirley Carter. Officer Ron Wildman of the police department was also present at that time. Baugh testified that he picked up the firearm which was lying on the dresser and placed it in a paper sack. He observed that the safety was on. Once he took the gun back to his office, Baugh removed the magazine and ejected the shell from the chamber. Baugh testified that he also found a spent shell casing on a night stand next to the bed. The actual .22 caliber bullet was later extracted from the bed linens. Baugh added that he asked Carter what had happened, and Carter told him that he was in the living room and that Shirley Carter had lain down to take a nap. A short while later, Carter heard a pop, and he found his wife lying in the bed with a gunshot wound. At that point, he called for help. On cross-examination, Baugh admitted that EMT Hubbard had reported that the pistol was in Shirley Carter’s right hand. It was his understanding that, other than Hubbard, no one could agree on which hand the pistol was in.
Officer Ron Wildman testified that he was the first police officer on the scene on the morning of April 29, 1994, and he arrived just after the EMT’s. Wildman testified that Shirley was lying on her bed and that a .22 caliber semi-automatic pistol was in her left hand. Wildman stated that he collected the gun powder residue samples from Shirley Carter at the hospital and from Ethridge Carter at the police station. Wildman described Carter’s demeanor as very calm, even when he was administering the gun powder residue test.
Dr. Frank Paretti, a forensic pathologist and medical examiner with the State Crime Lab, testified that the deceased’s body showed no signs of trauma except for the gunshot wound. Paretti explained that the entrance wound from the bullet was a contact wound and entered on the right side of the head. The bullet exited the left side of the deceased’s head. Paretti testified that when people sustain gunshot wounds to the head, they become limp. Berwin Monroe, a firearms examiner with the State Crime Lab, testified that the .22 caliber bullet that was recovered from the bed linens was fired from the gun that was taken from the scene. He testified that the gun would not fire when the safety was on. Gary Lawrence, who works in the trace evidence section of the State Crime Lab, testified that the gun powder residue tests from both Carters yielded negative results. Lawrence explained that the negative result could have been due to Ethridge Carter’s washing his hands. Lawrence further testified that the gun was tested to see if it emitted a detectable level of gun powder residue. The results of that test were that “very good levels” of residue were emitted from the gun. Lawrence estimated that ten percent of the firearms and ammunition combinations are non-emitters of detectable residue.
After the defense put on its case, the State called Lila Thompson, another friend of Shirley Carter’s, as a rebuttal witness. She testified that the deceased was happy on the day before her death and that she never said a word about killing herself.
From this proof, the jury was well within its bounds to conclude that Carter shot his wife, placed the safety in the “on” position, put the pistol in his wife’s left hand, and washed his own hands, thereby removing the gun powder residue. To the extent there was conflicting testimony about which hand the gun was in, this was for the jury to resolve. We have often stated that the credibility of the witnesses is a matter that lies exclusively within the province of the trier of fact. See, e.g., Walker v. State, supra; Misskelley v. State, supra.
Carter argues that the conviction should be reversed because a reasonable hypothesis exists to rebut the circumstantial evidence of guilt presented by the State. He argues specifically that Shirley Carter committed suicide as a result of her manic-depression. There was testimony at trial that Shirley had suffered from and received medication for that mental condition for over seventeen years. Dr. Frank Bivens, a family practitioner, testified that suicide is a concern among individuals afflicted with that mental illness. The deceased had other health problems as well which included inconti-nency, Wolff-Parkinson-White syndrome, and a frozen shoulder, which had been non-surgically operated on just prior to her death. Carol Wilkinson, who saw the deceased three days before her death, stated that Shirley Carter told her that she had found a plot where she wanted to be buried and added that she was lonely, depressed, and bored. According to Wilkinson, there was no doubt in her mind that Shirley committed suicide. Carter further points to testimony to show that Ethridge Carter’s fingerprints were not on the gun and that there was no sign that the gun had been wiped clean. Also, the gun powder residue tests failed to show that he had fired a weapon. Dr. Paretti testified that the wound was consistent with a suicide and that other than the bullet wound, there were no other signs of trauma. Furthermore, no motive for the killing was shown by the State. Finally, the EMT who took the pistol from the deceased’s hand — Alan Hubbard — stated that the pistol was in her right hand.
This court has observed:
Where it is shown by the evidence, on one side, that death may have been accidental, or it may have been the result of natural causes or due to suicide, and on the other side, that it was through criminal agency, a conviction cannot be sustained. Proof of death cannot rest in the disjunctive. It must affirmatively appear that death resulted from criminal agency.
Kagen v. State, 232 Ark. 189, 194, 334 S.W.2d 865, 867 (1960) (quotation marks and citation omitted). We have further observed:
This demands that in a case depending upon circumstantial evidence the circumstances relied upon must be so connected and cogent as to show guilt to a moral certainty, and must exclude every other reasonable hypothesis than that of the guilt of the accused. Circumstances, however strong they may be, ought never coerce the mind of the jury to a conclusion of guilt if they can be reconciled with the theory that one other than the defendant has committed the crime, or that no crime has been committed at all.
Johnson v. State, 210 Ark. 881, 882, 197 S.W.2d 936, 936 (1946), quoting Bowie v. State, 185 Ark. 834, 49 S.W.2d 1049 (1932).
We do not believe that suicide is a reasonable hypothesis for the death of Shirley Carter. In deciding as we do, we focus on the evidence produced by the State, which we deem to be substantial, and on the fact that the State’s evidence disparages the reasonableness of the suicide theory. To reiterate in part, two witnesses at the scene testified that the gun was found in Shirley Carter’s left hand, which would make a straight shot from right temple through to left temple virtually impossible, or at the very least, exceedingly difficult and unlikely. According to her daughter, Lori Brown, the deceased did not know how to use a gun. Shirley Carter’s hands were found in an awkward position, and revealed no powder residue from a gun that was an emitter. Further, the pistol’s safety was “on,” and no one at the crime scene admitted activating it. And, lastly, Shirley Carter could not have engaged the safety after a shot to her head.
Carter makes two additional allegations of error: (1) attempts to influence the jurors in the courtroom prejudiced his case, and (2) jurors failed to report attempts to influence them by family and friends of the deceased which amounted to juror misconduct. The first issue relates to the conduct of another daughter of Shirley Carter’s, Linda O’Donald, during closing arguments when she shook her head in disagreement with what defense counsel said. At a hearing on Carter’s motion for a new trial, Sheriff Wayne Milligan testified that he told her to stop doing that during a recess, but that none of the jurors saw O’Donald’s displays. At the same hearing, no juror stated that he or she saw O’Donald’s conduct. Carter also makes reference to the fact that Juror Gibson overheard others talk about the mysterious deaths of Carter’s previous wives, but Gibson reported the incident to the court and was dismissed as a juror. None of the other jurors stated that this comment was overheard.
The rule is well settled that prejudice will not be presumed and that reversal will not be warranted absent a showing of prejudice. Solomon v. State, 323 Ark. 178, 913 S.W.2d 288 (1996); see also Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994); Dillard v. State, 313 Ark. 439, 855 S.W.2d 909 (1993). Here, the jurors did not see O’Donald’s conduct or hear the reference to Carter’s previous marriages as Juror Gibson did. No prejudice, as a result, has been shown.
Carter’s next point is that juror Norma Hayes fell asleep during the trial. Because the juror missed an undetermined amount of evidence, argues Carter, the resulting verdict is tantamount to his being convicted by a jury of eleven. Carter adds that the sleeping juror was prima facia evidence of juror misconduct. Without adducing authority, Carter argues that no objection was necessary to preserve this point, and at trial, no objection was made. In Sheriff Milligan’s affidavit, he states that he observed the sleeping juror and that he informed the court about the incident.
In the trial judge’s letter order denying the motion for judgment of acquittal notwithstanding the verdict, the judge explained that the sleeping juror was brought to his attention and that he ordered the windows to be opened and called a recess. The court further stated:
It is apparent to the court that this report of the sheriff as to a sleeping juror was known to the state and the defendant at the time it occurred.
This court has held that “a claim of jury misconduct raised for the first time in a motion for new trial be accompanied by an affirmative showing that the defense was unaware of the misconduct until after the trial.” Oliver v. State, 322 Ark. 8, 20, 907 S.W.2d 706, 713 (1995); Owens v. State, 300 Ark. 73, 777 S.W.2d 205 (1989); Hendrix v. State, 298 Ark. 568, 768 S.W.2d 546 (1989). No such showing was made here. The defense was aware of the sleeping juror and did nothing to correct the situation. Thus, the issue is not preserved for appeal.
Finally, Carter contends that it was error to give the jury the verdict forms with the guilty verdict form on top of the not-guilty verdict form. Carter contends that the not-guilty verdict form should be considered first. He cites no authority for his argument, however, and it should not be considered for that reason. See Hillard v. State, 321 Ark. 39, 900 S.W.2d 167 (1995); Stevens v. State, 319 Ark. 640, 893 S.W.2d 773 (1995).
The record in this case has been reviewed for other prejudicial error pursuant to Supreme Court Rule 4-3(h), and none has been found.
Affirmed.
Dudley, J., not participating.
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DAVID Newbern, Justice.
Odis Alfred Cupit engaged in sexual misconduct with his two very young granddaughters in 1993. In 1994 he pleaded guilty to and was convicted of five counts of sexual abuse in the first degree. After finding Mr. Cupit guilty, the Trial Court received a pre-sentence report and held a hearing with respect to the sentence. Mr. Cupit asked to be sentenced in accordance with Ark. Code Ann. § 16-90-803 (Supp. 1995), which provides presumptive sentences for felonies committed on or after January 1, 1994. Despite their inapplicability, the Trial Court considered the statutory guidelines. He then departed from them, following the procedure prescribed in Ark. Code Ann. § 16-90-804 (Supp. 1995). Mr. Cupit was sentenced to five years imprisonment for each offense with the sentences to run consecutively. He contends there should have been no departure from the guidelines and the sentences should have been ordered served concurrently. The judgment is affirmed.
Since the enactment requiring bifurcated felony trials, Ark. Code Ann. § 16-97-101 (Repl. 1995), we have clung to our rule generally disallowing appeals in guilty plea cases. See Ark. R. App. P. Crim. 1(a). That rule was restated in Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994), but the Court also said it would “review ... nonjurisdictional issues such as the admission of testimony and evidence authorized by this new statute, which arose during the penalty phase of the trial....” (Presumably issues concerning jurisdiction would have been handled in connection with the guilt-innocence phase of the trial.) The following statement appears later in the Hill case opinion: “This position by no means indicates a willingness on our part to review the imposition of sentence simply where the defendant maintains his sentence is excessive, when in fact his sentence is within the range prescribed by statute for the offense in question.”
Sexual abuse in the first degree is a Class C felony, Ark. Code Ann. § 5-14-108 (Repl. 1993), which calls for a sentence range of not less than three years nor more than ten years imprisonment. Ark. Code Ann. § 5-4-401 (Repl. 1993). Mr. Cupit was sentenced to five years’ imprisonment on each count. That is within the statutory range. In view of Mr. Cupit’s plea of guilty, we decline to review his contention that the sentences given for the separate counts are excessive. We decline to review the decision to run the sentences consecutively because no objection was made to the Trial Court in that respect, Halbrook v. State, 319 Ark. 350, 891 S.W.2d 379 (1995); Walker v. State, 303 Ark. 401, 797 S.W.2d 447 (1990), and because the argument amounts to no more than an additional contention that the sentence was excessive.
Affirmed.
Dudley, J., not participating. | [
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Andree Layton Roaf, Justice.
Appellant Marcus Bohanan was convicted of capital murder committed in the course of an aggravated robbery, first-degree battery, and aggravated assault. He was sentenced to life imprisonment without parole for the capital murder, twenty years’ imprisonment for the battery conviction, and six years’ imprisonment for the assault conviction; the sentences are to be served concurrently. On appeal, Bohanan asserts that the trial court committed reversible error by allowing the State to introduce into evidence a bullet seized from his vehicle. We affirm.
On the evening of April 16, 1994, a number of people were gathered at the Little Rock home of Weston Williams. Appellant Marcus Bohanan and Larry Davis came to the house and asked to use the telephone. Davis was known to the residents and the two were admitted. While Bohanan and Davis were present in the home, Charles Wicks arrived and indicated that he had a hundred dollars and wanted to purchase a television. At some point in the evening, one of the guests, Donald Tyler, was asked to take Wicks home. Tyler testified that as he and Wicks left the house, Bohanan and Davis also left and approached them as they were getting into Tyler’s car. Tyler saw Bohanan hold a gun to Wicks’ head and attempt to rob him. Tyler testified that when he saw the gun he got out of his car, ran back toward the house, and heard two gunshots, but he did not see Wicks get shot. Tyler and Wicks managed to get back into the house; Wicks later died of a gunshot wound to the chest. Shots were also fired into the house through a door, and James Patterson was injured by one of these bullets.
Davis was arrested the day after the shooting, and named Bohanan as the person who shot Wicks. He also told police that he and Bohanan had been in Bohanan’s car the night of the murder. At trial, Bohanan was identified by Tyler and several witnesses as one of the men who had been in the house, and by Tyler as the man who approached Wicks with a gun and attempted to rob him.
A firearms examiner with the Arkansas State Crime Laboratory testified that the two .45 caliber bullets recovered from James Patterson and the door had been fired from the same weapon. Three .45 caliber shell casings were also recovered from the scene. The examiner testified that two of the shell casings were manufactured by Winchester and the third was a Remington-Peters brand.
At approximately 8:00 p.m. on April 18, 1994, Bohanan’s car was located and confiscated by members of the Litde Rock Police Department. One live .45 caliber cartridge manufactured by the Winchester company was recovered from the back seat of the car. Bohanan was arrested on April 18, 1994, about one hour after his car was confiscated, and was identified by Tyler in a live lineup conducted on April 20, 1994.
Bohanan’s sole argument on appeal is that the trial court erred by allowing into evidence the bullet seized from his car. On the day of trial, Bohanan moved in limine to suppress the evidence of the bullet recovered from his car. He asserted that his car was improperly confiscated as an abandoned vehicle and searched prior to his arrest and that the cartridge was irrelevant and prejudicial. On appeal, Bohanan contends that his Fourth Amendment right to be free from illegal searches and seizures was violated by the warrantless search of his car. He argues that there was no reasonable cause to believe the car contained any evidence nearly three days after the offense was committed. He further argues that the evidence recovered was irrelevant and unfairly prejudicial.
The following evidence was presented at the suppression hear ing. On the afternoon of April 18, less than 48 hours after the incident, Larry Davis told officers that he and Bohanan had been in Bohanan’s car before and after the shooting. Two officers then went to the area of 16th and Hanger Streets to look for Bohanan or his car. One of the officers testified that they observed a vehicle matching the description of Bohanan’s car parked on the side of the street with a flat tire and no license plate. They observed the car for thirty to forty minutes and, when no one approached, they obtained the vehicle identification number by looking through the window and confirmed that the car was registered to Bohanan.
As it was getting dark, the officers decided to confiscate the car in order to search it, because the suspects had been in the car after a homicide. They did a cursory search at the scene, found nothing, and had the car towed. Crime scene specialists later processed the car and discovered the .45 caliber cartridge in a paper bag in the back seat of the car.
On appeal from a trial court’s ruling on a motion to suppress evidence, this Court makes an independent determination based on the totality of the circumstances and reverses only if the trial court’s ruling was clearly against the preponderance of the evidence. Hudson v. State, 316 Ark. 360, 872 S.W.2d 68 (1994). We must start with the basic premise that a warrandess search is unauthorized. Cook v. State, 293 Ark. 103, 732 S.W.2d 462 (1987). However, many exceptions to the Fourth Amendment have been found to exist, including an exception relating to automobiles. Id. Rule 14.1 of the Rules of Criminal Procedure, Vehicular Searches, provides in pertinent part:
(a) An officer who has reasonable cause to believe that a moving or readily movable vehicle is or contains things subject to seizure may, ivithout a search warrant, stop, detain, and search the vehicle and may seize things subject to seizure discovered in the course of the search where the vehicle is:
(i) on a public way or waters or other area open to the public;
(ii) in a private area unlawfully entered by the vehicle; or
(iii) in a private area lawfully entered by the vehicle, provided that exigent circumstances require immediate detention, search, and seizure to prevent destruction or removal of the things subject to seizure.
(Emphasis added).
This Court has concluded that reasonable cause as required by Rule 14.1 exists when officers have reasonably trustworthy information, which rises to more than mere suspicion, that the stopped vehicle contains evidence subject to seizure and a person of reasonable caution could be justified in believing an offense has been committed or is being committed. Willett v. State, 298 Ark. 588, 769 S.W.2d 744 (1989). Here, co-defendant Larry Davis informed officers that both he and Bohanan were in the car before and after the homicide, and it had been less than forty-eight hours since the crime occurred. As it is undisputed that a crime occurred, and the officers had more than a mere suspicion that the alleged assailants were in the vehicle before and after the crime, there was reasonable cause to believe the car contained things subject to seizure. See Tackett v. State, 307 Ark. 520, 822 S.W.2d 834 (1992); Tillman v. State, 271 Ark. 552, 609 S.W.2d 340 (1980).
Bohanan also asserts that because the vehicle had a flat tire and was unoccupied, it was not moving or readily movable as required for a warrantless search pursuant to Rule 14.1. He further contends that because the crime occurred two days prior to the search, no exigent circumstances were present which would allow for removal of evidence from the vehicle.
We first observe that Bohanan’s car, even with a flat tire, was a readily movable vehicle. The tire could have been changed in a matter of minutes, or the car could have been driven away even with a flat tire. Further, the rule does not require additional exigent circumstances where a vehicle is on a public way or other area open to the public, or in a private area unlawfully entered. Additional exigent circumstances requiring the immediate detention, search, and seizure are required only where the vehicle is in a private area lawfully entered.
We have upheld the warrandess search of an automobile pursuant to Rule 14.1 where the suspect is stopped and arrested while driving the vehicle. Hudson v. State, 316 Ark. 360, 872 S.W.2d 68 (1994). Certainly, if Rule 14.1 authorizes a search where the suspect is taken into custody at the time of the seizure of the automobile, the warrantless search of a vehicle where the suspect is still at large is even more justifiable. Bohanan argues that the police should have obtained a warrant to search the vehicle after receiving infor mation from Larry Davis. He suggests that the detectives who located the vehicle could have called other officers to continue surveillance of the car while a search warrant was obtained. Of course this would be true for any vehicle, and no warrantless vehicular search would be authorized if such measures were required.
The cases relied upon by Bohanan can be readily distinguished. In Freeman v. State, 258 Ark. 617, 527 S.W.2d 909 (1975), this Court held the warrandess search and seizure of appellant’s vehicle after his arrest was illegal. However, the vehicle was parked on private property and the Court said that there were no exigent circumstances since the car was not stopped and abandoned on the open highway and there was no way that the appellant could have had access to the car after he was arrested. In Tillman v. State, 271 Ark. 552, 630 S.W.2d 5 (1982), this Court upheld the warrandess search of Tillman’s vehicle for stolen goods after Tillman had been apprehended in the vehicle and handcuffed.
In short, Rule 14.1 simply does not require a search warrant in the circumstances presented in this case. A warrandess search of the car would clearly have been authorized had Bohanan been apprehended in or near the vehicle. It stands to reason that such a search was authorized when Bohanan was still at large. It further does not matter whether the search is conducted at the scene or after the vehicle has been seized and removed to another location. As noted in 3 Wayne LaFave, Search and Seizure, § 7.2(b) at 468-469 (3rd ed. 1996):
[WJhenever a warrantless at-the-scene search of a vehicle would be permissible, the police may instead seize the car and search it shordy thereafter at the station. As the Court put it in Michigan v. Thomas,
the justification to conduct such a warrandess search does not vanish once the car has been immobilized; nor does it depend upon a reviewing court’s assessment of the likelihood in each particular case that the car would have been driven away, or that its contents would have been tampered with, during the period required for the police to obtain a warrant.
One explanation for this, offered in United States v. Ross, is that “if an immediate search on the scene could be conducted but not one at the station if the vehicle is impounded, police often simply would search the vehicle on the street - at no advantage to the occupants, yet possibly at certain costs to police.”
In summary, we hold that the trial court correcdy determined that Ark. R. Crim. P. 14.1 authorized a warrantless search of Bohanan’s vehicle.
Bohanan also asserts that the trial court erred in introducing the bullet into evidence because it was irrelevant and unfairly prejudicial. He contends that nothing connects the bullet recovered from his car to the alleged offense. The trial court concluded that it was relevant that the victim was killed with a .45 caliber bullet and Bohanan had a .45 caliber bullet in his car.
According to Ark. R. Evid. 401, relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Owens v. State, 313 Ark. 520, 856 S.W.2d 288 (1993). A ruling on the relevancy of the evidence is discretionary and will not be reversed unless the trial court abused its discretion. Clay v. State, 318 Ark. 122, 883 S.W.2d 822 (1994). We cannot say that the trial court in this instance abused its discretion. A .45 caliber bullet and three .45 caliber shell casings were recovered from the scene, including two which were manufactured by the Winchester Cartridge Company; a .45 caliber cartridge manufactured by the Winchester Cartridge Company was recovered from Bohanan’s car. It was thus more probable that Bohanan had access to a .45 caliber weapon at the time of the homicide.
Bohanan further submits that the introduction of the bullet was unduly prejudicial and created a danger that “the jury would attach undue significance to this evidence and conclude that the appellant was somehow involved in the alleged offense.” Rule 403 of the Arkansas Rules of Evidence allows a trial court to exclude relevant evidence if its probative value is outweighed by the possibility of confusion of issues. Owens v. State, 318 Ark. 61, 883 S.W.2d 471 (1994). This weighing is a matter left to the trial court’s sound discretion and will not be reversed absent a showing of manifest abuse. Id. The appellant has simply failed to establish an abuse of discretion in this instance.
Because Bohanan was sentenced to life imprisonment without parole, we must review the record for prejudicial errors objected to by Bohanan but not argued on appeal. See Ark. Sup. Ct. R. 4-3 (h). We discuss one such issue not raised in the briefs of either Bohanan or the state.
Donald Tyler was the only witness who identified Bohanan as the person who held a gun and attempted to rob Wicks. Prior to trial, Bohanan moved to suppress the fact that Tyler identified him in a physical lineup. After a hearing was conducted, the motion was denied.
On April 17, 1994, the day after the shooting, Tyler was shown a lineup which consisted of six photographs; Bohanan’s photograph was not included. Tyler picked number “5” and stated on the “spread form” that he was about 85 percent sure. He also stated, “I can identify him in person.” In a second photographic lineup, conducted after Davis had implicated Bohanan, Tyler identified photograph number six as being “similar” to the person he saw pull the gun on Wicks. In that lineup, photograph number two was a photograph of Bohanan. On April 20, a live physical lineup was conducted. Tyler “immediately” identified Bohanan as the shooter during the physical lineup.
Tyler testified that he saw Bohanan inside the home while the lights were on and that he saw the assailant for two or three seconds at the time of the incident. Tyler further testified a street light across the street was shining down in the area of the car. In addition, he stated that the assailant did not have anything covering his face. Finally, Tyler testified that the picture of Bohanan in the second photographic lineup seemed blurry and dark and the two photographic lineups did not influence his decision in viewing the physical lineup.
A pre-trial identification violates the Due Process Clause when there are suggestive elements in the identification procedure that make it all but inevitable that the victim will identify one person as the criminal. Chenowith v. State, 321 Ark. 522, 905 S.W.2d 838 (1995). Even if the identification technique is impermissibly suggestive, it is for the trial court to determine if there are sufficient aspects of reliability surrounding the identification to permit its use as evidence, and then it is for the jury to decide the weight the identification testimony should be given. Id. This Court does not reverse a ruling on the admissibility of an identification unless it is clearly erroneous and will not inject itself into the process of determining reliability unless there is a very substantial likelihood of misidentification. Id. Further, the following factors are to be examined to determine reliability: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the prior description; (4) the level of certainty; and (5) the time lapse between the crime and confrontation'. Id.
Here, Tyler viewed Bohanan inside the house and for several seconds at the time of the incident. Tyler never positively identified someone other than Bohanan, and he continued to maintain he could identify the assailant if he saw him in person. That is, in fact, what occurred — Tyler immediately identified Bohanan when the physical lineup was conducted. We cannot say the trial court was clearly erroneous in concluding the identification testimony was reliable.
The record has been examined pursuant to Supreme Court Rule 4-3 (h) for other reversible error, and none has been found.
Affirmed.
JESSON, C.J., and Brown, J., concur. | [
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ANDREE Layton Roaf, Justice.
Appellant Aaron Love was convicted by a jury of two counts of aggravated robbery; he was sentenced to twenty years’ imprisonment on each count, with the sentences to be served consecutively. Love raises four points on appeal, including a challenge to the sufficiency of the evidence. We affirm.
At trial, Rebecca Brooks testified that on April 16, 1994, she was a passenger in a car driven by Elson Rea. While the vehicle was stopped, someone opened Brooks’s door, grabbed her purse, and struck her in the mouth when she refused to release the purse. Brooks observed two men flee with her purse, but she could not identify either of them. At trial, Elson Rea identified Aaron Love as the person who grabbed Brooks’s purse and struck her. Rea also testified that he had identified Love in a “photo book” which the police showed him several days after the incident.
On April 23, 1994, Ruby Joe Hairston arrived at her home and exited her vehicle. She was approached by a man holding a shotgun or rifle; the man demanded that she give him her purse. Hairston handed the man her purse, and he fled. Hairston identified Love as the perpetrator at a line-up conducted the evening of the robbery and at trial.
In addition, Hairston’s twelve-year-old son observed a Chevrolet Cavalier leaving the area of the robbery, and a Cavalier was found abandoned two blocks from the robbery. The vehicle had a flat tire, and three subjects reportedly fled on foot. Angela Smith testified that she owned a Chevrolet Cavalier which she loaned to Love on April 23, 1994. She testified that she did not see her car again until 12:30 the next morning at the police department. The car was in good working condition when Smith loaned it to Love; however, a tire and an axle were damaged when the car was recovered.
We first consider Love’s argument that the trial court erred in denying his motion for a directed verdict. See Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996). A motion for a directed verdict is a challenge to the sufficiency of the evidence. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). Love, however, is procedurally barred from challenging the sufficiency of the evidence because he failed to renew his motion for directed verdict at the close of all of the evidence. Brooks v. State, 308 Ark. 660, 827 S.W.2d 119 (1992); see also Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995). The failure to challenge the sufficiency of the evidence at both the close of the state’s case and the close of all of the evidence “will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.” Ark. R. Cr. P. 33.1 [formerly Ark. R. Cr. P. 36.21(b)]; see also Heard v. State, supra; Jones v. State, 318 Ark. 704, 889 S.W.2d 706 (1994); Brooks v. State, supra.
Love also contends that the trial court committed prejudicial error by (1) misinforming him, on the eve of trial, of the applicable sentencing procedure and (2) improperly and erroneously identifying him to the jury as an habitual offender. These issues, however, are also not preserved for appellate review. Love’s counsel did not object to either the trial court’s statements regarding the applicable sentencing procedure or the trial court’s reference to Love as an habitual offender, nor did Love’s counsel even inform the trial court of the alleged errors.
As to the first point, a conference was held on the morning of the trial because Love had “some questions about what a jury trial was all about.” Both Love and his counsel were present, and the trial judge informed Love that the jury’s verdict had to be unanimous. The trial judge further stated that if Love was found guilty the jury would then decide the punishment after hearing additional evidence and argument. Finally, the trial judge explained that Love could waive the jury trial, and the trial judge would determine guilt or innocence. The trial judge then asked Love if he had any other questions; Love responded, “No.” On appeal, Love submits that the instructions given by the trial judge concerning the sentencing procedure were incomplete and misleading because the trial judge did not inform him that the judge determined whether the sentences were to be served consecutively or concurrently.
With regard to the second point, after the jury returned a guilty verdict on both counts of aggravated robbery, the trial court made the following statement:
Ladies and gentleman you have found Mr. Love guilty of these aggravated robberies. I will tell you now that aggravated robbery when committed by an habitual offender is punishable from 10 years to 40 years or life.
(Emphasis supplied.) On appeal, Love contends that his jury sentence was substantially affected by the trial court’s erroneous identification of him as an habitual offender. Love, however, does not assert that the sentence range of “10 years to 40 years or life” was not the appropriate range for aggravated robbery when committed by a person who was not an habitual offender. In fact, the sentencing range in the instruction was the appropriate range. See Ark. Code Ann. § 5-4-401 (Repl. 1993).
The failure to object at the first opportunity waives any right to raise the point on appeal. Gibson v. State, 316 Ark. 705, 875 S.W.2d 58 (1994); Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994). To preserve an argument for appeal there must be an objection in the trial court that is sufficient to apprise that court of the particular error alleged. Moore v. State, 321 Ark. 249, 903 S.W.2d 154 (1995). Further, we will not address arguments raised for the first time on appeal. Parnell v. State, 323 Ark. 34, 912 S.W.2d 422 (1996); Cooley v. State, 322 Ark. 348, 909 S.W.2d 312 (1995). In this instance, the alleged errors should have been called to the attention of the trial court by timely objection or inquiry so that the trial court could be given the opportunity to correct the errors. See Lynch v. State, 315 Ark. 47, 863 S.W.2d 834 (1993); Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986).
For his final point, Love contends that the trial court abused its discretion by directing that the sentences be served consecutively. The jury recommended that Love’s sentences be served concurrently; however, the trial court ordered that they be served consecutively.
It is well established that the question whether two separate sentences should run consecutively or concurrently lies solely within the province of the trial court. Hadley v. State, 322 Ark. 472, 910 S.W.2d 675 (1995); Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994); Abdullah v. State, 290 Ark. 537, 720 S.W.2d 902 (1986); see also Ark. Code Ann. § 5-4-403 (Repl. 1993); Ark. Code Ann. § 16-90-109 (1987). Further, the appellant assumes a heavy burden of showing that the trial judge failed to give due consideration to the exercise of his discretion in the matter of consecutive sentences. Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989). In the instant case, Love has failed to establish that the trial court abused its discretion.
Love initially contends that the trial court ignored his request for immediate sentencing and directed that a presentence investigation report be prepared. Love’s counsel, however, informed the trial court that he would not object to a presentence report. We have repeatedly held that a person cannot agree with a ruling by a trial court and then attack it on appeal. Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995).
Love next asserts that the trial court abused its discretion because the Jefferson County Circuit Court has a policy of following the jury’s recommendation with regard to sentencing. Love, however, offers no authority regarding the validity or effect of such an alleged policy. Assignments of error, unsupported by convincing argument or authority, will not be considered on appeal unless it is apparent without further research that they are well taken. Stevens v. State, 319 Ark. 640, 893 S.W.2d 773 (1995). Further, the trial court clearly has the authority to order that the sentences be served consecutively. See Ark. Code Ann. § 5-4-403 (Repl. 1993); Ark. Code Ann. § 16-90-109 (1987); see also Hadley v. State, supra; Brown v. State, supra; Abdullah v. State, supra.
Love further contends that the trial court abused its discretion by considering matters that were immaterial to the case. Love submits that the trial court presided over the trial of Love’s accomplice, who was acquitted. Love asserts that the accomplice’s acquittal was “not well received” by the trial court and that the trial court unduly focused the effects of the community’s recent crime problems upon Love. At the sentencing hearing, the trial court stated:
The comment in the pre-sentencing report that makes the most impact on this Court is the fact that during a period of time here in Pine Bluff a series of these offenses of which you were convicted of two, committed one week apart, there were a series of offenses that virtually paralyzed this city.
The trial court also stated that he did not expect that an extended term in prison would rehabilitate Love. In ordering consecutive sentences, the trial court concluded that “[t]he only thing that I know that it might do is send some sort of a message to somebody else out there that might be so inclined to engage in a course of conduct of a criminal nature.” After Love’s counsel objected that Love had only been convicted of two of the offenses, the trial court stated that Love’s two crimes constituted a series and were a sufficient part of the overall whole to make him responsible for his part. The trial judge further stated that he was not sentencing Love for something that he was not tried and convicted of.
Finally, Love submits that it is improper to penalize one defendant to make a law enforcement or political statement. Granted, the trial court commented that he hoped to send a message to people who might be inclined to engage in criminal activity. However, Love cites no authority for his argument that such a consideration is improper. Stevens v. State, supra. Further, Ark. Code Ann. § 16-90-801 (a)(5) (Supp. 1995) provides that a primary purpose of sentencing a person convicted of a crime is to “deter criminal behavior and foster respect for the law.”
Affirmed.
Dudley, J., not participating. | [
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PER CURIAM.
On July 17, 1995, judgment was entered reflecting that Eddie Taylor had pleaded guilty to possession, manufacture, and delivery of a controlled substance. A sentence of 480 months imprisonment was imposed with suspended imposition of sentence of twenty-five years. Mr. Taylor subsequently filed in the trial court a petition and an amended petition for reduction of sentence pursuant to Ark. Code Ann. § 16-90-111 (b) (1) (Supp. 1995). The petition and amended petition were denied on the merits, and the record has been lodged on appeal.
Mr. Taylor moves to extend the time to file his brief because he is incarcerated and thus has limited access to legal materials. As he filed the motion before the brief was due and has stated good cause for requesting an extension of time, the motion is granted. The time for filing the appellant’s brief is extended to thirty days from the date of this opinion.
We take this opportunity to note that Mr. Taylor’s claim for postconviction relief should have been brought pursuant to Ark. R. Crim. P. 37 rather than § 16-90-111, which we have declared to be in conflict with Rule 37. Reed v. State, 317 Ark. 286, 878 S.W.2d 378 (1994). Rule 37.2 (b) now provides, in pertinent part, that all grounds for postconviction relief from a sentence imposed by a circuit court must be raised in a petition under Rule 37.
In the Reed case we declined a petition brought pursuant to the statute. The petition in that case met the time constraints of the statute but not those of Rule 37. Mr. Taylor’s petition met the timeliness requirement of Rule 37, and in view of the fact that it was a petition cognizable under Rule 37, it was not wrong for the trial court to have considered it on its merits. We make this observation in the hope that confusion and untimely petitions may be avoided in future cases by referring to the rule rather than the statute.
Motion granted.
Dudley, J., not participating. | [
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PER CURIAM.
Appellant Gina Felicia Flemings (Foster), by the Pulaski County Child Support Enforcement Unit, has filed a motion to dismiss the appeal of Darryl A. Littles. The basis for the motion is that Littles did not timely file a notice of appeal; therefore, this Court is without jurisdiction. We deny the motion to dismiss.
The order being appealed was entered in Pulaski County Chancery Court on November 14, 1995. On December 8, 1995, appellant Flemings filed a notice of appeal; appellee Littles was served with the notice of appeal on December 13, 1995. Littles filed a document styled “notice of appeal” on December 22, 1995; however, the notice was filed in circuit court. The “notice of appeal” was not filed in chancery court until December 27, 1995.
Ms. Flemings contends that if Littles’s appeal is designated a direct appeal, then the notice of appeal was thirteen days late pursuant to Rule 4(a) of the Rules of Appellate Procedure. If Littles’s appeal is designated a cross-appeal, Flemings submits it was filed two days late under Rule 4(a). Rule 4(a) provides that a notice of appeal must be filed within thirty days from entry of the judgment. However, a notice of cross-appeal must only be filed within ten days after receipt of the notice of appeal.
Although Litdes’s notice is styled “notice of appeal,” we have recognized that a cross-appeal is an appeal by an appellee who seeks something more than was received in the trial court. Boyle v. A.W.A., Inc., 319 Ark. 390, 892 S.W.2d 242 (1995). Thus, Litdes’s appeal is a cross-appeal, and his notice had to be filed within ten days after December 13, 1995, the date of receipt of Flemings’s notice of appeal.
The notice of appeal which Litdes filed on December 22, 1995, was not filed with the clerk of the court that entered the judgment; therefore, it had no effect. See Rossi v. Rossi, 319 Ark. 373, 892 S.W.2d 246 (1995). However, the notice of appeal which was filed December 27, 1995, was timely filed with the clerk of the court that entered the judgment. December 23, 1995, was the tenth day after receipt of Flemings’s notice of appeal, but it was a Saturday. Rule 9 of the Rules of Appellate Procedure provides that whenever the last day for taking action falls on a Saturday, Sunday, or legal holiday, the time for such action shall be extended to the next business day. December 23 was a Saturday, December 24 was a Sunday, and December 25 and 26 were legal holidays; therefore, December 27 was the next business day.
Motion denied. | [
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ANDREE Layton Roaf, Justice.
The appellant, Elvester Keith Walker, was convicted of first-degree murder for the shooting death of Johnny B. Jones and was sentenced to 40 years’ imprisonment. Walker argues that there was insufficient evidence to convict him of murder in the first degree. We affirm the conviction.
Johnny Jones, the victim in this case, and Anthony McDowell lived together in a mobile home. Jones was a student and also worked at a fast-food restaurant. On the evening of the shooting, Jones arrived home from work to find a party in progress. The guests, including Walker, were drinking and dancing. Jones went to the kitchen and began ironing clothes to wear to school the next day.
While Jones was so engaged, Walker apparently got into an argument with another guest, pulled a gun, and fired shots into the ceiling and the couch of the residence. Jones then came out of the kitchen and told Walker to stop shooting up the furniture and take that shooting outside, or words to that effect. Jones then began dancing with a guest, Tammy Russey. At Walker’s trial, Russey testified that they danced for about fifteen to twenty-five minutes and that while they were dancing, Walker approached Jones and stated “Punk, I know you ain’t talking to me.” Jones did not respond and simply ignored Walker. Walker then walked up, tapped Jones on the shoulder, and shot him in the right side of his head.
Charles McDowell, a friend of Jones, testified that he was standing right beside Jones when he was shot and saw Walker point the gun at Jones’ head. Rena Watson testified that she saw Walker with a gun on the evening of the party but did not see Jones shot. A number of witnesses testified that there was a lot of drinking going on and that Walker had been drinking both before and after arriving at the party.
After the shooting, Walker left in a car with people who had brought him to the party. A witness testified that Walker was crying in the car and stated that the shooting was an accident and that someone had pushed his hand. Eric Gore, a friend of Walker’s, testified that he believed the incident was an accident and that Walker did not mean to shoot Jones. Another witness testified that Walker was ten to twenty feet away from Jones when he shot him.
At trial, the medical examiner testified that Jones was killed by a single gunshot wound to the right side of his face, and that powder marks surrounding the wound indicated that he was shot at close range.
Walker’s sole contention on appeal is the trial court erred in finding sufficient evidence to convict him on the charge of murder in the first degree. He asserts that the state did not prove that he shot Jones with the purpose or intent of causing his death. At the conclusion of the evidence, the jury was instructed on first-degree murder and the lesser included offenses of second-degree murder, manslaughter, and negligent homicide.
A directed-verdict motion is a challenge to the sufficiency of the evidence. Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995). In determining the sufficiency of the evidence, this court reviews the evidence most favorably to the appellee, and considers only the evidence that tends to support the verdict. Akbar v. State, 315 Ark. 627, 869 S.W.2d 706 (1994).
Circumstantial evidence may constitute substantial evidence. To be sufficient to sustain a conviction, however, circumstantial evidence must exclude every other reasonable hypothesis consistent with innocence. Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992). This court will affirm if there is any substantial evidence to support the verdict. Wilson v. State, 320 Ark. 707, 898 S.W.2d 469 (1995).
“A person commits Murder in the First Degree if, with a purpose of causing the death of another person, he causes the death of another person.” Ark. Code Ann. § 5-10-102(a)(2) (Repl. 1993). The culpable mental state is “purposely” causing the death of another. “A person acts purposely with respect to his conduct or result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.” Ark. Code Ann. § 5-2-202(1) (Repl. 1993). Intent is seldom capable of proof by direct evidence. Usually it must be inferred from the circumstances of the killing. Akbar, supra. The intent necessary for first-degree murder may be inferred from the type of weapon used, from the manner of its use, and the nature, extent, and location of the wounds. Williams v. State, 304 Ark. 509, 804 S.W.2d 346 (1991). It is axiomatic that one is presumed to intend the natural and probable consequences of his actions. Akbar, supra.
Walker challenges the credibility of the state’s witnesses and contends the jury had to rely on speculation and conjecture in order to find him guilty of this offense. We do not agree. This court has continuously stated that the determination of matters of credibility of the witnesses and conflicting testimony are issues left to the trier of fact. Wilson, supra. Finally, the evidence when viewed in the light most favorable to the state indicates that Walker was shooting a gun in Jones’ home. When Jones asked Walker to stop or to take the gun outside, Walker became angry. Walker then confronted Jones and fired one shot at close range into Jones’ forehead. There was substantial evidence, both direct and circumstantial, for the jury to conclude that it was Walker’s conscious objective to engage in the conduct which resulted in the death of Jones.
Affirmed. | [
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ANDREE LAYTON Roaf, Justice.
The appellant, Office of Child Support Enforcement (“OCSE”) appeals from an order establishing arrearage in child support owed by the appellee, Jimmy Frank Oliver, Jr. (“Oliver”). OCSE asserts that the trial court erred in 1) allowing Oliver to orally raise the affirmative defense of statute of limitations in the hearing held to establish the arrearage and 2) applying a five-year statute of limitations against its claim for arrear-age. As the ruling by the Chancellor does not constitute a final appealable order, we dismiss the appeal.
Oliver and his wife were divorced in 1978. The decree provided that Oliver would pay $28.50 per week in child support. The minor child was 15 months at the time of the divorce. On April 10, 1995, two months before the minor child turned eighteen, OCSE filed a motion for citation, asserting that Oliver owed $7,725.75 in delinquent support accrued since the entry of the divorce decree. Oliver filed no written response, but appeared pro se at a hearing on the motion held on June 7, 1995. In the hearing, Oliver stated that he thought the claim for arrearage was too old and that it was “beyond the legal time to do this.” The chancellor subsequently found that he could, on his own motion, raise the statute of limitations and determined that the applicable statute of limitations would bar the arrearage accrued prior to five years before the filing of the motion by OCSE on April 10, 1990. On November 10, 1995, the chancellor entered an Order Establishing Arrearage, in which he found that the amount of child support arrearage was not in controversy, and that five years prior to the filing of the motion for citation was the only period of time for which an arrearage may be assessed against Oliver. The order disposed of all of the additional relief requested by OCSE in its motion, but did not fix the amount of the arrearage. The order provided that OCSE should certify within two weeks the arrearage which accrued between April 10, 1990, and June 7, 1995, the date of the hearing, so that judgment could be entered.
OCSE filed its notice of appeal from this order on November 15, 1995. Neither the abstract, nor the record shows that a judgment has ever been entered establishing the amount of the arrear-age. Although a docket entry in the record indicates that at a further hearing conducted on January 1, 1996, OCSE and Oliver agreed on the arrearage due pursuant to the trial court’s order, the docket sheet does not show the entry of judgment following this hearing.
We have long held that the record must disclose a final adjudication of the matter in controversy between the parties for this court to have jurisdiction. State v. Morrison, 318 Ark. 563, 885 S.W.2d 900 (1994). For a judgment to be final and appealable, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Tucker v. Lake View School District No. 25, 323 Ark. 693, 917 S.W.2d 530 (1996); Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992); Jackson v. Yowell, 307 Ark. 222, 818 S.W.2d 950 (1991). To be final, an order must not only decide the rights of the parties, but also put the court’s directive into execution, ending the litigation or a separable part of it. Kilgore v. Viner, 293 Ark. 187, 736 S.W.2d 1 (1987). See also Bonner v. Sikes, 20 Ark. App. 209, 727 S.W.2d 144 (1987).
Here, the order establishing arrearage did not finally resolve the amount of the arrearage owed by Oliver or end the litigation concerning the claim for arrearage. An order that adjudicates fewer than all of the claims of the parties does not terminate the action. Ark. R. Civ. P. 54 (b); Morrison, supra. Accordingly, we dismiss this appeal.
Appeal dismissed.
Dudley, J., not participating. | [
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DAVID NEWBERN, Justice.
Design Interiors, Inc., the appellee, sued Craig and Judith Carruth, the appellants, for breach of contract. Damages were awarded to Design Interiors, Inc. The Car-ruths argue that the judgment must be reversed because there was no proper service of process. We agree with their argument and thus need not address their other points of appeal. The judgment is reversed and the case is dismissed.
In 1989, the Carruths hired Larry Brown, the owner and sole shareholder of Design Interiors, Inc., to decorate their new home. The Carruths orally agreed to pay Mr. Brown $50.00 an hour for his services and cost plus 20% for furniture and decorating items ordered through him. Mr. Brown testified the Carruths also agreed to pay him a $75-per-trip charge to cover his travel to Russellville from his place of business in Tulsa, Oklahoma. The Carruths, however, said they did not agree to the latter charge. The disputed charges were billed by Design Interiors, Inc.
On March 29, 1993, Design Interiors, Inc., filed its complaint against the Carruths. The Carruths moved to dismiss the complaint because it had been served by a constable and thus not in compliance with Ark. R. Civ. P. 4(b). Counsel for Design Interiors, Inc., wrote to counsel for the Carruths stating that the process had been sent to the Pope County Sheriff for proper service.
The record contains a copy of a summons apparently sent by electronic facsimile. The summons is not signed by the Clerk, as is required by Rule 4. The return portion, however, states that it was served upon Craig and Judith Carruth by service upon Judith Carruth on April 7, 1993. The return is signed by the Sheriff and Sgt. M. Briscoe, Deputy.
The Circuit Court held a hearing on a motion for default judgment filed by Design Interiors, Inc. The Court’s order denied the motion for default judgment and simultaneously denied the Carruths’ motion to dismiss for lack of proper service of process.
The motion to dismiss for failure of service of process should have been granted. Statutory service requirements, being in derogation of common law rights, must be strictly construed and compliance with them must be exact. Wilburn v. Keenan Cos., 298 Ark. 461, 768 S.W.2d 531 (1989); Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978). The same reasoning applies to service requirements imposed by court rules. Proceedings conducted where the attempted service was invalid render judgments arising therefrom void ab initio. Halliman v. Stiles, 250 Ark. 249, 464 S.W.2d 573 (1971); Edmonson v. Farris, 263 Ark. at 508. Actual knowledge of a proceeding does not validate defective process. Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982). According to these principles, both attempts to serve the Carruths were improper.
Reversed and dismissed.
Dudley, J., not participating. | [
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■ English, Ch. J.:
On the 25th August, 1875, William S. McCain, as administrator of the estate of Samuel F. Arnett, deceased, brought -ejectment in the Circuit Court of Drew County, against Charles-L. Pickens, for two-thirds of the undivided half of the east half ■of the northwest quarter of section nine, township fourteen south, range seventeen west, situated in Drew County.
The complaint averred that an undivided half of the tract was ■conveyed by defendant to plaintiff’s intestate during his life time, by deed bearing date 13th of April, 1871, which is made .an exhibit'; and that after his death one-third of his undivided half was assigned to his widow for dower; and plaintiff, as his .administrator, claimed the right of possession of the other two--thirds of the undivided half of the tract, which was alleged to be in the possession of defendant.
Warren M. Anderson, who claimed title to the land as a trustee, Avas, on his motion, made a defendant,, and filed an answer and cross claim.
In the first paragraph of his ansAVer he controverts the plaintiff’s right to possession of the land. •
In the second paragraph he alleges in substance:
That on the 19th of Februaiy, 1872, Samuel F. Arnett (since ■ deceased), being in failing circumstances, and unable to pay his debts promptly at maturity, and desirous of making an impartial distribution of all his estate, real and personal, among his creditors, executed to defendant, as trustee, a deed of assignment, by ■Avhich he conveyed, or intended to convey to him, all of his estate, real and personal (except his homestead), for the benefit of his. creditors; which deed of assignment is exhibited and made part of the answer, etc. .That among the matters contained in the deed, is a description and conveyance to Anderson, as such trustee, of an undivided half interest in the land mentioned in the complaint; but described in the deed by mistake as the east half and the northeast quarter of section nine, township fourteen south, range seven west, which should have been described as an undivided half interest in the east half of the northwest quarter and the northeast quarter of section nine, etc. That such was the intention and understanding of said Arnett and Anderson. That Arnett at the time of executing the deed of assignment was the owner of the undivided half of the land mentioned in the complaint, by conveyance from said Charles L. Pickens; and immediately upon making the assignment, placed Anderson, as trustee, in possession of the land, and he had been in possession ever since. •
The premises considered, Anderson prayed that the suit be transferred to the equity side of the court, and that the mistake above specified be corrected according to the intention of Arnett and himself, and that his title to the land, as trustee, (the undivided half of the east half of the northwest quarter of section nine, township fourteen south, range seven west), be quieted, and that plaintiff be forever enjoined from the further prosecution of his suit for the recovery of said land, etc.
The deed of assignment commences thus:
“This indenture, made this the 19th day of February, 1872,-between Samuel F. Arnett of the first part, and Warren M. Anderson, trustee appointed for the purposes hereinafter mentioned, of the second part, and the several persons, creditors, endorsers, guarantors, or sureties of or for the said party of the first part, who have executed, or shall hereafter execute or accede to these presents within ninety days from the date of these presents, of the third part; whereas, the said party of the first part is at present unable to pay the immediate demands upon him, and deems it just and reasonable to secure, pay and indemnify the several persons, parties to these presents, in the manner hereinafter mentioned; now, therefore, this indenture witnesseth that for the considerations and purposes herein contained, and in consideration of one dollar to him paid by the said party of the second part, etc., the party of the first part does by these presents grant, bargain, sell, convey, assign, transfer, and set over to the said party of the second part, and his assigns, all the stock in trade, goods, wares and merchandise, debts, choses in action, property, and effects of every description belonging to him the said party of the first part, or in which he has any right, or interest whatever, mentioned, etc., in the schedule hereto annexed etc., and also the following real estate, etc.”
. Here follow a number of lots in the Town of Monticello, and numerous tracts of land, and among them the undivided half interest in “ the east half and the northeast quarter of section nine, township fourteen south, range seven west, etc.”
Then the deed proceeds to provide that Anderson, as trustee, should with all reasonable speed sell and dispose of such part of the property conveyed to him in. trust, as was of a saleable nature, and use his best endeavors to collect all debts, etc., transferred to him; and forthwith after deducting all expenses, costs, charges etc., “distribute and pay over all of the residue of said trust property to and among all the persons, creditors of said party of the first part, who shall become parties hereto in the manner hereinbefore prescribed, rateably and in proportion to the amounts due to each of them respectively, without any preference or priority; and in case there shall be any surplus of said trust property or effects after fulfilling said trusts, then upon trust that said party of the second part do so and shall convey, deliver and pay over the same to the said party of the first part, his executors,” etc.
Then follows a clause by which the grantor constitutes the trustee his attorney in fact, and empowers him to sue for, collect and compromise the debts, etc., and to sell the trust property for cash or on time, to make deeds, etc., to discharge liens, etc. Then follows this clause :
“'Provided further, that no person shall be entitled to be admitted a creditor under these presents unless notice shall have been given by him of his debt or demand to the party of the second part before a final dividend shall have been made of said trust property, under the trusts herein declared; nor shall any person be admitted a creditor after any one or more dividend or dividends shall have been made under the trust herein declared, but on condition of his not requiring any abatement or .otherwise disturbing the dividend or dividends made prior to his having given notice of his debt or demand.”
And, finally, there is this clause in the deed:
“And the said respective creditors, parties hereto, each and every one of them for himself and herself severally and respectively, and for their several and respective executors, administrators, partners and assigns, do hereby accept and take the estate and effects hereinbefore assigned in full payment, satisfaction and discharge of all their respective debts and demands afore-, said, and of all loss or damage sustained, or to be sustained by reason of any liability aforesaid; and do, and each and every one of them does, absolutely remise, release, discharge and quit claim the said party of the first part of and from all demands which they or any or either of them no.w have, or ever had, claimed or demanded against the said party of the first part.”
The deed is signed by Arnett and Anderson only.
The cause was transferred to the equity side of the court, as prayed by Anderson, and heard upon the complaint and exhibit, the answer and exhibit, and an agreement of facts made by plaintiff and Anderson as follows:
“The land in controversy Ayas OAvned by Samuel F. Arnett. On the 1st day of January, 1872, Arnett was totally insolvent, and made an assignment and conveyance by deed, of all bis property subject to execution to defendant Anderson as trustee to hold, use and dispose of for the benefit of liis creditors. Said deed is here referred to and read as part of this agreed statement. In such deed by mistake, the land in controversy was omitted, but it was the intention of Arnett to convey the same by said deed. Anderson is in possession, holding under said deed of assignment. On the 29th of April, 1872, said Arnett died intestate. ~W. S. McCain, the plaintiff, Avas, on the 1st day of August, 1872, appointed administrator of said Arnett’s estate, and is now such administrator. Debts are probated and unpaid against said estate to the amount of $500. Some of the debts probated Avere made before said deed of assignment and some afterwards.”
The court decreed (26th-April, 1876) that the mistake in the deed of assignment be corrected according to the intention of the parties, and that the title of Anderson, as trustee, to the land in controversy be quieted, and that plaintiff be forever enjoined from any further prosecution of the suit for the land, etc.
McCain appealed to this court.
I. Upon the facts alleged in the cross-complaint, not put in issue by a reply, and proven by the agreed statement of facts, appellee made a case for correction of the mistake in the deed of assignment, if he shoAved that he was entitled to hold possession of the land for the purposes of the trust as against the administrator of the grantor in the deed.
The power of a court of chancery to correct such mistakes is well settled. Steward et al. v. Pettigrew, 28 Ark., 372; Allen v. McGaughey et al., 31 Ark., 255.
II. There is no allegation in the cross-complaint that any creditor of Arnett accepted, or assented to the provisions of the deed of assignment, nor was it shown by the agreed statement of facts, or otherwise, that any creditor accepted or assented to the provisions of the deed, nor that Anderson, who signed the deed as trustee, was a creditor.
"When a deed of assignment to a trustee is apparently for the benefit of creditors, their assent to it is to be presumed. Conway et al. ex parte, 4 Ark., 360; Hemstead v. Johnston et al., 18 Ark., 131.
But where there are conditions in the assignment, as, for instance, that the creditors shall release their debts, there the same presumption does not arise, because it involves a question of discretion, upon which different minds may draw different conclusions. Halsey et al. v. Whitney et al., 4 Mason, 215; Burrill on Assignment, p. 339.
In this case there is a provision in the deed that the creditors should accept the property assigned in full satisfaction and discharge of their debts, demands, etc., and that the assignor should be released, etc.
Who the creditors, were, the nature of their claims, or what securities or liens they may have had, does not appear.
Under such circumstances, though the assignor was insolvent, we are not at liberty to presume the assent of the creditors to the provisions of the deed of assignment.
It may be that some of the creditors assented to the deed, and that the trustee partially executed the trust, and hence the small amount of debts probated against the estate of Arnett, after his death, compared with the seeming amount of property embraced in the assignment; and yet it is remarkable that the trustee, who seeks to retain possession of the land in controversy, as part of the trust property, did not aver in his cross-complaint, or attempt to prove, that any creditor had assented to the deed.
For anything that appears to the contrary in the record before us, the trustee holds the 'title to the land in controversy in trust for the legal representatives of Arnett, and his administrator being entitled to the possession of the land, as assets, for the payment of the probated debts, might maintain ejectment therefor. Halsey et al. v. Whitney et al, supra, p. 214; Carnall v. Willson, 21 Ark., 62.
Neither the appellant nor the appellee appears to have any personal interest in the land in controversy, both occupying trust relations to the estate of Arnett; it is but just therefore that the court below should have further facts before it, if any there be, in order that equity may be done in the premises. The decree must be reversed, and the cause remanded with instructions to the court below to permit apellee to amend his cross-complaint, if he can show the assent of any of the creditors to the deed, and that he is entitled to hold the land for the purposes of the trust; and that appellant be permitted to reply, if he thinks proper to do so. | [
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Turner, J.:
At the October Term, 1876, of the Washington Circuit Court, William J. Gilliland, Ephraim Ramey, William Perry, Louis Dansit, Enos Mills and John Winkler were indicted for the murder of William Jones.
At the October Term, 1877, of the Circuit Court, the State appeared by her attorney, and also the defendants in person and’ by attorney, and elected to sever and try the defendant John Winkler first, who was thereupon arraigned and tried upon the plea of not guilty, and found guilty of manslaughter, and his punishment assessed by the jury at two years in the State prison.
On the 6th day of November, at the same term of the court, the defendant filed his motion for a new trial, and on the 20th day of November following his motion in arrest of judgment. Both motions were overruled and the defendant took an appeal to this court.
The bill of exceptions sets forth fully the evidence in the cause, and the instructions asked for by the defendant and those given by the court.
The motion for a new trial assigns the following causes:
First — Because the verdict is contrary to the evidence.
Second — Because the verdict is against the law and evidence.
Third — Because the court erred in admitting illegal evidence over the objections of the defendant.
Fourth — Because the court erred in excluding legal evidence offered by the defendant.
Fifth — Because the court erred in refusing to give the first, second, third, fourth, fifth, sixth, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteénth, seventeenth, and eighteenth instructions asked for by the defendant, and overruling and refusing to give said several instructions.
Sixth — Because the court erred in giving the jury as law in this cause the tenth, eleventh, fourteenth, eighteenth, twentieth, twenty-first, twenty-second, twenty-third, twenty-fourth, twenty-ninth, thirty-second, and thirty-sixth instructions by the court declared and given to the j ury. ■
Seventh — Because the jury found contrary to the instructions of the court.
Eighth — Because the jury were unduly influenced by acts and declarations of the prosecuting attorney, ,E. J. Stirman, Esq., in this, that after the close of the evidence in the cause, and while he was making an argument on the part of the State, he was allowed to, and did present to the jury a newspaper, in which the Governor’s proclamation, offering a reward of $500 for the arrest of Newton Jones for murder, was published, and declared that its first publication was after the killing of William Jones and defendant could not have known of the proclamation at the time, and held up the paper and announced its date when no such fact had been given in evidence, and in his closing argument and after defendant’s counsel had closed, announced as a fact to the jury that he could prove that the Governor had offered a reward for the arrest of the defendant, and hence he was as bad as Newton Jones, and he in his .said speech took up the instructions prepared by the court and declared that every one of them was objected to by the defendant, and declared to the jury that the court had refused to give the defendant’s instructions, and read to the jury as he said from the head of the instructions “All objected to by defendant,’! and said under the instructions given the defendant could not be acquitted, and further asserted, he was advised the defendant had witnesses here to prove he was not at the killing, if he had dismissed Mills, and argued that he had proved that Newton Jones kept out of the way of the officers only because he was afraid he would be waylaid and assassinated by defendant Gilliland, with other assertions unauthorized by law and evidence, and by the asserting of such facts to the jury when no such witnesses had been summoned, when a number of the instructions were those presented by the defendant and modified by the court, when no such reward had ever been offered, (for the defendant could not answer said assertions by proof or argument) he did create an undue prejudice on the part of the jury against this defendant and his cause, and as defendant believes, unjustly procured his conviction- for manslaughter.
Ninth — Because the court erred in refusing to. allow the defendant to read a legal definition, and to read any law whatever.
The evidence as set forth in the bill of exceptions shows that an indictment was pending in the Washington Circuit Court against one Newton Jones for the murder of Bud Gilliland some time in the year 1875. That Jones kept out of the way for some time after the commission of the • alleged offense, btit returned into the neighborhood a short time before the killing of William ■Jones. That soon after it was known that Newton Jones had returned to the neighborhood, a warrant was issued to the sheriff of Washington County for his apprehension, which warrant came to the hands of Enos Mills, constable of White River Township in said county, to be executed. The constable thereupon proceeded to summon the defendant and the said other defendants, to assist him in .arresting said Jones, and for that purpose the constable and his- posse concealed themselves in the woods about thirty yards from, the road where Newton Jones was expected to pass and awaited,his coming. It is further shown by evidence that the constable and his posse had been concealed for some time in the bushes awaiting the coming up of Jones, and in the meantime had cut out to some extent the undergrowth from two places of concealment in the bushes to the road along which Jones was expected to pass, and that there- was no announcement to him upon his coming up, by the constable or any of his posse, previous to the firing, that they had a warrant for his apprehension.
It is also further shown by the evidence that Newton Jones was a resolute man, and some of the witnesses stated he was a dangerous man, and had avowed a determination not to be arrested.
David Jones, a brother of the deceased, and a'witness for the prosecution, details the circumstances of the killing as follows: “I know the deceased William Jones, Enoch Jones and Newton Jones. William Jones was killed by shot on the „ 15th October, 1876, in Washington County, in the State of Arkansas. I was-present and saw him before he was shot and after his death on that day; Matilda, William, Enoch, Newton and myself were together. Matilda • and I were riding in a wagon, and William Jones, and Enoch Jones, and Newton Jones were riding behind the wagon. We started from Lewis & Johnson’s Mill (from Lewis’ house) and we got.about a. half mile from Johnson’s mill, on the road towards Carter’s store. I was driving the wagon and Matilda was riding in the wagon. The others were riding behind. Newton and William were riding side By side. Enoch was riding behind them. The first thing I heard was the report of a gun or pistol. Immediately afterwards several guns were fired, and my mules ran off, ran about seventy-five yards. After my mules stopped, I raised up in the wagon and heard some one say halt! halt! shoot them boys, the last damned son of a bitch of them. I could see a glimpse of men running up the hill in the woods. I heard horses running on the other side of the road. I unhitched my mules and went back and found my brother dead, lying close by the side of the road, rather under his horse, which was down. Two shots in the head, and in the temple, several in side and leg. Deceased was armed, had his revolver under him, not drawn. There was a turning out of the road by horses before the first gun fired. I looked around at first fire and saw horses dashing off. I went over the ground and looked at it. There seemed two places where parties had been, one behind a log, and one near a hickory tree, seemed as if they had been there half a day. Brush tramped down. Brush trimmed out from log to road, and from tree to road. I stepped the distance and it was just thirty steps. When the firing began they were just opposite those places. Enoch was wounded in the side of the head and a shot glanced his neck. The voice I heard I thought was Jeff. Gilliland’s. Heard but one voice; halt, was given but one time, that I heard. If it had been given before, I would have heard it.”
Enos Mills, the constable, who attempted the arrest of Newton Jones, was examined as a witness, and after stating that he knew the deceased and all the other defendants who were present with him at the killing of William Jones, describes the circumstances of the killing as follows: “ I went to a place where I thought I would stop them. I expected I would have to fight them, and I told the boys (them with me), to make them stand when I halted them. Everybody said they would fight. They came along and I halted them, three or four times, and they threw themselves down foward on their horses, and clapped their hands to their pistols and broke to the brush. I fired and the parties with me commenced firing. When we found out the wrong party was killed, I told them we had better get away, that they might come back and kill some of us.
Deceased was shot through mistake. This witness further states as follows : “ At the time of the shooting I did not tell the party or Newton that I had a writ. I did not have time. The parties ran before I could do so. .1 summoned the defendant, when I showed the writ to him and he read it. I had the writ in my pocket at the time of the shooting. I did not produce it. They threw themselves down on their horses and grabbed their pistols. I first spoke to them. I had no time to make known that I had a warrant. I had the writ in my pocket at the time of the shooting and did not produce it.
It appeared in evidence, also, that the party along with Newton Jones at the time of the killing, was his wife Matilda Jones and other relations, and that Jeff Gilliland, one of the constable’s posse, was the brother of Gus. Gilliland alleged to -have been killed by Newton Jones.
A number of other witnesses were examined both for the prosecution and defense. > But we deem it unnecessary to reproduce their statements in detail, for while there is some conflict among them as to minor matters, there is but little discrepancy as to the material facts of the case.
The defendant asked for instructions, numbering from one to eighteen inclusive, and the court of its own motion gave instructions numbering from one to thirty-eight inclusive.
The firstjjuestion for our consideration is,, did the court err in refusing to give the instructions asked for by the defendant embraced in the fifth cause assigned in his motion for a new trial; and this we will consider in ■ connection with the further question, did the court err in giving the instructions embraced in the sixth cause assigned for a new trial.
The court refused to give all of the instructions asked for by the defendant except the sixteenth, which was given.
In referring to these instructions, we think the third, which is to the effect: “That a constable is a peace officer, or conservator of the peace, throughout the county and that it is his duty to arrest all offenders,” was unexceptionable and might well have been given to the jury, and so of the seventh instruction, which is: “That the fact of the indictment having been found, charging Newton Jones with murder, would be reasonable grounds in the mind of any one knowing or having information of the same to believe that he had committed a felony.”
The twelfth instruction, which was to the effect: “That a constable would have a right to serve a writ issued by the clerk of the Circuit Coui’t of his county on an indictment pending in said court for murder, and on file in his office, if such writ should come to his hands for such purpose, was, without the statement of qualifying facts, calculated to mislead the jury and was properly refused.
In this connection we may consider the twentieth instruction given by the court, which is, in substance : That the “warrant itself would be no protection to an officer unless the same was directed to him, or delivered to him by the officer to whom it was directed, and that if the jury find in this instance that the warrant of arrest, under which Constable Mills purported to have acted, was neither addressed to him nor delivered to him by the officer to whom it was directed, his authority to make the arrest would nof be given by the warrant, but if it was directed to him, or delivered to him by the officer to whom it was directed/ he would have the authority to make the arrest under it, although the same- may have been issued from the Circuit Court.”
This instruction was, to some extent, subject to the same objection as the defendant’s twelfth, because, as we think, founded ■on an erroneous conception of the sheriff’s power to authorize ■another to execute a warrant directed to the sheriff.
The ordinary bench warrant embraced in sec. 1808, of Gantt’s. Digest, is directed to any sheriff, coroner, jailor, constable, marshal or policeman in the State.
A warrant regularly issued, so directed, coming to the hands ■of any one of those officers can be executed by such officer. And if a warrant so directed come to hands of a duly qualified deputy of any one of these officers, who may by law b.e entitled to ■such deputy, he too will have authority to serve such warrant.
In this case the warrant was directed to the sheriff of Washington County; a duly qualified deputy could have executed the warrant, because he possesses all the powers of his principal.
.But could the sheriff either directly ór indirectly empower the constable of White River township to execute the warrant by simply delivering it to him without first appointing him a deputy in the,manner required by law? We think not.
Chitty, in his work on Criminal Law, in discussing the subject of arrests, says: “With respect to the person who may execute the warrant, it seems that if it be directed to the sheriff he .may authorize others to execute it, but that if it be given to an inferior officer he must personally put it in force, though any one may lawfully assist him, and if a warrant were generally directed ■to all constables, no one could act under it out of his own precinct,- and if he did he would have been a trespasser, but if it were directed to a particular constable by name, he might execute it any where within the jurisdiction of the justice by whom it was granted.” 1 Chitty’s Crim. Law, 48.
Bishop, who quotes Chitty in referring to the power of the sheriff to authorize another to execute a warrant, adds “not verbally, however, for the deputy must be constituted such by a written instrument.” 1 Bishop Crim. Pro., 646.
These writers follow Hale, Foster and Hawkins.
A constable then holding a. warrant directed to the sheriff would not, from the fact of his being a constable simply, have the authority to execute the warrant. Before he could legally execute it, he must be appointed and constituted a deputy sheriff in the manner prescribed by law; so then it would follow that the constable, Mills, although holding the warrant, could not as such execute it, he having no legal authority from the sheriff to do so.
"While then, the court’s instruction may leave us in doubt as to. the authority of the constable under the warrant, the instructions as a whole leave us in no doubt as to the power and duty of a constable to arrest a felon with or without a warrant, when it is done in good faith and for the purpose of bringing the offender to justice.
The remaining instructions asked for by the defendant were refused, and those prepared by the court given because, as we suppose, they were more pertinent, and appropriate, more full and comprehensive in their application of the law, to the facts disclosed in the evidence, than were those of the defendant. The ■objection to them is not well taken. They presented the law of' the case fairly, and are even liberal towards the defendant, who we think is not prejudiced by the instructions given by the court,, nor by the court’s refusal to give any of those asked for by tha defendant.' -
The third objection assigned as a cause for a new trial is the alleged admission of illegal evidence, on the trial.
The defendant asked a witness whether or not Jeff. Gilliland and Newton Jones were on good terms, to which witness answered and said that Gilliland and Jones were not on good terms,, and the witness further stated that the feeling between Newton Jones, Jeff. Gilliland and Ephraim Ramsey was bad.
Witnesses were also permitted to state that Newton Jones kept out of the way and would not come in and surrender' to be tried for killing Gus. Gilliland because he was afraid Jeff. Gilliland would kill him. To the admission of this evidence the defendant objected, but his objection was overruled'.
There being facts and circumstances connected with this case, tending to show that the party attempting to arrest Jones may have been actuated by other motives than a desire to arrest and bring him to trial for killing Gus. Gilliland, we regard evidence going to show bad feeling between Jones and the arresting party entirely competent", and think it was properly admitted.
But as to statements going to show that the reason why Newton Jones kept out of the way and did not surrender himself to be tried for killing Gus. Gilliland was not so much because he was afraid to surrender and be tried, as he was afraid that if he did, Jeff. Gilliland would kill him, and this drawn principally from the declarations of Jones himself, was hearsay, and clearly inadmissible.
The fourth cause assigned for a new trial is that the court erred in excluding legal' evidence offered by the defendant, this we think is unfounded, for we find that no legal evidence offered by the defendant was excluded from the jury.
The seventh cause assigned for a new trial is, that the jury found contrary to the instructions of the court.
This we think is insufficient. True, the instructions of the court might have been more full and complete in its definitions of different grades of homicide, and particularly the distinction between voluntary and involuntary manslaughter, should have been clearly stated to the jury. But notwithstanding this omission, the finding of the jury was in accordance with the instructions. '
The eighth cause assigned for a new trial is: Because the jury were unduly influenced by acts and declarations of the Prosecuting Attorney, E. J. Stirman, Esq., etc., going on with specifications of the actings and doings of the said prosecuting attorney in his closing argument to the jury.
This, if it were good cause for a new trial, is not properly before us for review. The facts which it discloses were not made a part of the bill of exceptions at the trial, and appear for the first time in the motion for a new trial.
The motion for a new trial is not a part of the bill of exceptions, and a party cannot put what purports'!» be evidence in the cause, on record, by incorporating it into the motion for a new trial, not even by referring to it as incorporated in the bill of exceptions. Berry v. Singer, 10 Ark., 483.
We are, therefore, not called upon to express any opinion as to the sufficiency of this cause for a new trial.
The ninth cause assigned for a new trial is: Because the court erred in refusing to allow the defendant to read a legal defininition, and to read any law whatever.
This presents for our consideration, the question: Did the court err in denying to the defendant, the right to read law which he considered applicable to his case ?
We understand the uniform practice of the English and of the American courts, both State and Federal, including those of Arkansas, is to permit attorneys under the direction of the court to read the law applicable to the case on trial, with such comments and explanations as he may deem appropriate.
This is the first time the question has ever been presented for our consideration, and the fact that we have not been able to find any adjudicated cases bearing on the question, notwithstanding the prevailing practice in our courts, would seem to indicate that occasions have not often arisen for testing the propriety of the *, practice, and it would seem also to indicate the approval of the practice by the legal profession.
If the defendant’s attorney fails to read the law to the jury, he quotes it from memory, and is not likely to be always accurate. A better practice is to read it from books of approved authority with such comments and explanations touching its application as the facts of the case may seem to warrant, and this appears the more proper when we reflect that in criminal cases, the jury, in a restricted sense, are judges of the law as well as the evidence.
The court gives the law, and the jury are bound to receive it as given, but in cases where the issue involves a mixed question of law and fact, they are necessarily the judges of the law and evidence, because they must apply the law to the evidence in order to determine the criminal intent with which the act was done. See Pleasant v. The State, 13 Ark., 360.
The defendant is entitled to the best defense his counsel can * make for him, hence the necessity of having the law read and fully explained, and applied to the facts of the case, with all the skill, learning and eloquence which his counsel ma.y possess.
But then there must be a limitation to this practice of reading law to the jury, and that limitation must be determined by the court in each case, under whose direction and supervision criminal trials take place.
It would not be safe or proper for us to prescribe fixed rules ' governing the Circuit Courts, in such cases, and we shall not attempt it.
As to the first and second causes assigned for a new trial, to the effect that the verdict of the jury was contrary to the evidence and against the law and evidence; we think these’ causes^ well assigned, and that they warrant a reversal of the judgment.
The court’s thirty-sixth instruction was calculated to mislead the jury. It was in substance, that if the jury found the defendant guilty of manslaughter, they should assess his punishment by imprisonment in the State penitentiary for any period not less than two years nor more than seven years.
The error of this instruction is, that it fails to discriminate and explain to the jury the difference between two grades of manslaughter.
Now manslaughter is voluntary or involuntary. This distinction exists at common law, and is fully recognized by our statute which has made no innovation upon the ancient law upon the subject.
The indictment in this case is for murder, and the jury might have found the defendant guilty of murder in the first degree, or of voluntary, or involuntary manslaughter, as the evidence might seem to warrant.
The verdict of the jury was as follows : “ We, the jury, find the defendant not guilty, as charged in the indictment. But find him guilty of manslaughter and assess his punishment at two years in the State prison.”
The jury, we have no doubt, intended to find the defendant guilty of voluntary manslaughter, without so declaring in words, for the penalty clearly indicates this purpose, and we should have no hesitation in treating the verdict as if for voluntary manslaughter, were we clearly of the opinion that the evidence authorized such a finding; but, as wc arc not satisfied on that point, and as the finding might have been different, had the court declared and explained to the jury the distinction and difference of penalty, in two grades of manslaughter, the judgment must be reversed, and the cause remanded with instructions to the court below to grant the defendant a new trial, und that he be tried for manslaughter. | [
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Harrison, J.:
This was an action at law by Andrew Hendricks against James P. Keesee, Isaac N. Keesee, and Priscilla Owen and her husband, George "W. Owen.
The complaint, which was very loosely drawn and wanting in certainty and definiteness, averred:
That the plaintiff, in the year 1856, purchased from George Keesee, the father of the defendants James P. Keesee, Isaac N. Keesee, and Priscilla Owen, a tract of land of 274J acres in Saline County, for which he paid him seven hundred dollars in cash, and gave him his note for five hundred dollars, bearing ten per cent, interest from date until paid, and Keesee executed to him a bond to convey the land to him by deed, with the usual covenants of seisin and warranty of title, and he immediately entered unto possession under his purchase.
That he afterwards paid the note, and Keesee on the 27th day of February, 1862, executed to him a deed for the land, in which he covenanted that he was seised in fee thereof, and that he would warrant and defend the title.
That Keesee died intestate in the year 1864, seised and possessed of real and personal property of the amount of ten thousand dollars, and leaving him surviving his said children, James P., Isaac N. and Priscilla, the said Priscilla having since intermarried with the defendant George TY. Owen, and other children, or their descendants unknown to the plaintiff, his heirs at law.
That administration was had upon his estate, and the same had been fully administered and distributed, and the administrator discharged, and partition had been made of his real estate between the said heirs.
That the title to forty acres of the said tract of land, the north half of Lot One of the southwest quarter of section nineteen,, township two south, range fifteen west, was, when Keesee made. the deed of conveyance, in the United States, and'he was at no time afterwards seised thereof, and that the' same had been entered within twelve months preceeding the commencement of jthe suit by one Simon Jones as a homestead, and who had entered thereon and evicted the plaintiff.
That when Keesee executed the deed of conveyance, the plaintiff had no knowledge that he had no title to the said forty acres, and he did not learn o f the fact until after the same had been entered by Jones.
And that said covenants had been broken, and by reason of said breaches of covenant he had sustained damages to the sum of one thousand dollars ; for which he prayed judgment.
The defendants demurred to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and rendered judgment for the defendants.
The plaintiff appealed.
That a suit may be maintained in equity against an heir to whom assets have descended, or who has received a distributive shai’e of the estate, upon a cause of action, which has arisen upon his ancestor’s contract after the administration has been closed, has been decided-by this court in several cases. Williams v. Ewing & Fanning, 31 Ark., 229 ; Walker v. Byers, 14 Ark., 246; Bennett v. Dawson, 15 Ark., 412 ; Bennett v. Dawson, 18 Ark., 334.
It has, however, never been held in this State, that an action of law might -be brought against the heir; and it is clear to our mind, that, as the statute makes real estate, as well as personal, assets in the hands of the executor or administrator for the payment of all debts, there is here no privity of contract between the ancestoi-s and the heir, as at common law, where the heir was specially named in the covenant or bond, and the remedy in such a case is alone in equity.
The right to sue the heirs necessarily depends, as the cases we-have cited show, upon the fact, that the cause of action arose by the happening of ■ a contingency after the administration was closed. If it existed at the death of the testator or intestate, or before the expiration of the two years in which the claims may be exhibited against the estate, whether matured or not, it must be presented as a demand against the estate, unless it came into-being so shortly before the time for such presentation expired, that it was not possible to present it, in Avhich case equity Avould no doubt afford relief. Bennett v. Dawson, 15 Ark., 412.
As the title to the forty acres was in the United States, Keesee’scovenant of seisin was broken as soon as it Avas made, and the plaintiff might have brought action against him for the breach immediately. Pate v. Mitchell, 23 Ark., 590; Bird v. Smith, 8 Ark., 368; Ross v. Turner, 7 Ark., 132; Logan v. Moulder, 1 Ark., 313; Rawle on Cov. for Tit., 298.
And as there was no seisin there Avas nothing on which the-covenant of title could operate, nothing passed by the deed; there Avas nothing to defend, and there could be no eviction. Hacker v. Storen, 8 Green., 288; Slater v. Rawsen, 1 Met. (Mass.), 450; Rawle on Cov. for Tit., 255.
The demurrer was rightly sustained, and the judgment is-affirmed. | [
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Hardison, J.:
Thomas P. Hare filed his complaint in equity against Thomas C. Smith, in which he alleged, in substance, that, on the 29th day of October, 1851, he purchased from Abel Caudle, the then owner, the southwest quarter of section twenty-two,'in township eight north of range three east, and paid him therefor, and received from him a deed, and had from that time held peaceable and* adverse possession thereof.
But that the defendant had procured from some person, from whom he did not know, some kind of a deed or conveyance of the land, which cast a cloud upon his title; and he prayed that the defendant should be compelled to disclose the nature of his title or claim and that his deed or conveyance be cancelled and his, the plaintiff’s title be quieted.
The defendant filed an answer which he made a counter-claim. He denied that the plaintiff was the owner of the land and asserted and claimed title in himself by purchase from the State, and an Auditor’s deed in pursuance thereof, executed on the 26th day of August, 1875, and prayed a decree for the possession of the land, and for the rents, and profits from the date of his purchase.
The Auditor's deed, which was made an exhibit with the answer, recited, that the said quarter section had been forfeited to the State for the non-payment of taxes for the year 1857; that it had been afterwards offered for sale by the Auditor and not sold for the want of a bidder, and that the defendant had since applied to the Commissioner of State Lands to purchase it, and had purchased the same from the State.
The defendant also filed with his answer a demurrer to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, which the court overruled.
The plaintiff answered the counter-claim, and averred that he had paid the taxes on the land for 1857, and denied that it had been forfeited to the State.
The defendant moved to suppress the depositions of the plaintiff and Thomas L. Standley taken in behalf of the plaintiff, on the ground that the plaintiff could not be allowed to contradict the recitals in the Auditor's deed, which motion was overruled.
Upon the hearing the court found that the taxes on the land for 1857, had been paid by the plaintiff, and the same had not been legally forfeited; and decreed that the deed from the Auditor to the defendant should be cancelled and set aside.
The defendant appealed.
Since the cause has been in this court, the defendant has died, and it has been revived in the name of Virginia H. Davis, his administratrix.
The complaint was vague and indefinite, and it did not appear from it, that the defendant's deed showed such color of title in him as required the establishment of extrinsic facts to disprove his title, or that it cast any cloud upon the plaintiff’s. Chaplin v. Holmes, 27 Ark., 414.
But the answer of the defendant dispensed with the necessity for more specific averment because it set up and relied upon, as a defense to the action, and as the foundation of the counterclaim, a deed valid upon its face, and requiring proof of extrinsic facts to show its invalidity and dispel the cloud it cast. Pindall et al. v. Trevor & Colgate, 30 Ark., 249; Williams et al. v. Ewing & Fanning, 31 Ark., 229.
The demurrer therefore was properly overruled.
And so was the motion to suppress the depositions.
Depositions may be suppressed on account of some irregularity in the taking, but not for irrelevancy or because of the matter deposed to. Vaugine v. Taylor, 18 Ark., 65.
The depositioxx of the plaintiff was read in his owxx behalf. He deposed, that he had owned and lived xxpon the land in controversy twenty-five years, and that he paid the taxes on it for the yeax; 1857, to Thomas L. Standley, the- sheriff and collector of taxes of Poinsett County, in which coxxnty the-land then was, and took from him a receipt, but which, after diligent seax’ch, he was unable to find, axxd the same was lost or mislaid.
As further evidence of the payment, he then offered to read the deposition of said Standley, to which the defendant objected because it tended to contradict his official certificate and return that the taxes were not paid. The court overruled the objection. Standley deposed that he was sheriff and collector of taxes of Poinsett County in the years 1857 and 1858, and that the land which was then in that county was assessed in 1857, in the name of the plaintiff, and the taxes for that year were duly paid by the plaintiff; that when the taxes were paid he so denoted or marked them on the tax book, and it so appeared from the old tax books still in his possession, and he thought that he gave the plaintiff a receipt.
The land, he said, might have been returned delinquent for that year, but it was not so returned in the plaintiff's name as owner.
The defendant read as evidence on his part the Auditor's deed, and three certified transcripts from the records in the Auditor’s office, the first showing that the land was that year assessed in the plaintiff’s name; the second that it was also assessed in name of J. Thompson's heirs, and the third that it had been returned delinquent in the name of J. Thompson's heirs.
The objection taken below, and insisted upon here by appellant's counsel that as Standley had returned the land delinquent, he could not be admitted as a witness to prove that the taxes were paid, cannot be sustained.
We can see no just reason why one whose land has been wrongfully sold for taxes, should not be admitted to prove by the collector, the person most likely to know the fact, that the taxes had been paid. It often happens, as it clearly did in this case, that lands are, through error or inadvertence, returned delinquent upon which the taxes have been paid, and it may • be that the collector is the only witness by whom the payment can be proven.
Blackwell says: “The payment of the tax being matter- in pais, may be proven by oral evidence; it is not necessary to introduce the collector's books, or his receipt, or produce the assessment, but the collector or other officer to whom the payment was made, the agent of the owner, or any person present, at the time of the payment, are competent witnesses to prove the fact.” Black. Tax Titles, 489.
In case of Biscoe v. Coulter, 18 Ark., 423, referred to by counsel, does not sustain the objection, but is an authority the other way. In that case the competency of the late collector, whose deposition had been read, to impeach the sale for taxes under which Coulter claimed title, was not questioned, the court simply holding that his deposition, in view of all the facts of the case, was not sufficient to invalidate and overturn the sale.
It is appárent, and made so by the evidence of the defendant, that the land was assessed as the property of two different owners, one of whom the plaintiff, it is also shown, had paid the taxes, when it was returned delinquent. The taxes being paid the forfeiture to the State was void, and she had no title to convey to the defendant.
The decree is affirmed. | [
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English, Ch. J.:
On the 28th of January, 1878, Daniel Lindsey, the owner of lots in the city of Little Rock, presented a petition to the Circuit Court of Pulaski County, praying for a mandamus against Herman H. Rottaken, sheriff and collector of said county, to compel him to accept what is commonly known as city money in payment of the taxes assessed upon the lots of the petitioner in the year 1877, for city general purposes.
The petitioner, after describing his lots, and stating the various taxes charged against them for state, county, city and school purposes for the year 1877, and that a warrant was in the hands of Rottaken for their collection, further alleges:
“That between the 1st day of January, 1868, and the 30th day of October, 1874, the City Council of the City of Little Rock, for the purpose of enabling it to execute its municipal powers, and for the purpose of taking up warrants drawn on the treasurer, which had been given to persons to whom said city was indebted, issued bonds and certificates of indebtedness of the denominations of one, two, five, ten, twenty, fifty and one hundred dollars; payable to bearer, bearing interest at the rate of eight per cent, per annum, from one to ten years after date, and payable at maturity. That by ordinance or resolution of said City Council, adopted prior to the issue or delivery of said bonds, etc., it was provided that the same should be receivable for all city dues. That for a time said bonds so issued were used in the ordinary business transactions of said city as currency, and to distinguish them from the legal tender notes of the United States they were commonly called ‘city money.’ That for some time after the said issue of said bonds, the said city continued to receive them in payment of the taxes and dues of said corporation, but after the year 1873, refused so to do.”
The petitioner further alleges that the General Assembly, on the 14th day of December, 1875, enacted, among other things, that: “All city warrants, scrip, acceptances, or money, shall be receivable for taxes for city purposes, except for interest tax, and for all debts due the municipal corporation by whom the same were issued, without regard to the time or date of issuance of such warrant, scrip, acceptance, or money, or the purpose for which they were issued.” (See Acts of 1875, p. 151.)
Thaton the 19th of January, 1878, petitioner paid to Rottaken, collector, all the taxes charged upon his lots, except the tax for city general purposes, amounting to $13.50, which he tendered and offered to pay in past due city bonds and certificates of indebtedness commonly .known as city money above described, which Rottaken refused to receive, and was threatening to return petitioner’s lots delinquent, and cause them to be sold, unless he would pay the tax in other funds.
Petitioner brings said city money into court, and prays that Rottaken be compelled to accept the same, and execute a receipt, etc.
Rottakén filed the following answer:
“For answer to said petition, said defendant says, that the bonds and certificates of indebtedness purporting to be the obligations of the City of Little Rock in the said petition mentioned, •were issued as a circulating medium, to be used as a currency or medium of trade in lieu of money, and that they were thus commonly used for a long period of time, the same being engraved •on bank note paper, in the form of bank notes, purporting that money would be paid to the bearer thereof, according to the •amounts and denominations of the same, contrary to the statute in such case made and provided : wherefore this defendant says that the said supposed evidences of debt are void, and are not receivable for said tax,” etc.
The answer further alleges that the supposed Act of 14th December, 1875, was not passed in the manner required by the «Constitution; that the bill for the act was so altered on its passage through the two houses of the General Assembly as to change its original purpose, in violation of a prohibition^contained in •sec. 21, art. v, of the Constitution; and a transcript of the original bill, and the legislative proceedings thereon, as shown by the journals of the two houses, is made an exhibit to the answer.
The petitioner demurred to the answer, the court overruled the demurrer, refused the mandamus, aud petitioner appealed to this court:
First — In the supplemental opinion in Loftin v. Watson, ante, we held that the Act of 14th December, 1875, was constitutionally passed; that the bill for the act was not so altered on its passage through the two houses as to change its original purpose, within the meaning of sec. 21, art. v, of the Constitution.
Second — How far the legislature may, by curing acts, confirm and make valid contracts made by municipal corporations without authority of law, or against legislative prohibition, we do not find it necessary to decide in this case (see Cooley Con. Lim., p. 379; Thompson v. Lee County, 3 Wallace U. S., 331; McMillen v. County Judge, etc., 6 Iowa, 393; Hasbrouck v. Milwaukee, 13 Wis., 37). The Act of 14th December, 1875, does not purport, in its title, or in its body, to be a curing act. The object of the act was to require county warrants, etc., to be received in payment of county taxes, etc., and city warrants, acceptances, or money to be received in payment of city taxes, etc., without discrimination as to the date or purpose for which they were issued.
Why the word money was used in the act, we do not know, but if the effect of the act is to legalize all paper issued by cities in the form of, and for the purpose of circulating as money, it would also have the effect to legalize and make valid all of the spurious county scrip that was spawned upon the. counties by corrupt or reckless officials before the passage of the act, which was certainly not the purpose of the legislature.
In the absence of express words in the statute, we are not at liberty to infer that the legislature intended to cure any paper illegally issued by counties or cities.
But if the paper in question was legally issued by the City of Little Rock, or if. the city is legally obliged to redeem it, the appellee would be bound to receive it in payment of the city tax for which it was tendered, regardless of the Act of 14th December, 1875, because the ordinance under which it was issued made it receivable in payment of city taxes. Woodruff v. Trapnall, 10 How. U. S., 209; English v. Oliver, 28 Ark., 317; Wallis et al. v. Smith, 29 Ark., 354; Loftin v. Watson, ante.
Third — Under what particular statute, or charter provision, the city council claimed power to issue the paper in question, is not stated in the petition, nor has it been indicated in the brief oral argument-of the counsel for appellant.
It is stated in the petition that the paper, in the form of bonds and certificates of indebtedness, was issued between the 1st of January, 1868, and the 30th of October, 1874.
On the 12th of December, 1866, the legislature passed “An Act to reduce the law incorporating the City of Little Rock, and the several Acts amendatory thereof, into one Act, and to amend the same.” This act was the charter of the city from the time of its passage until it was organized under the general law for the incorporation of cities and towns, approved 9th of April, 1869.
By the second clause of sec. 16 of the Act of 12th December, 1866 (Acts of 1866-7, p. 25), power was granted to the city council “ To borrow money on the credit of the city, and to issue bonds for the payment of the same.”
There is no allegation in the petition that the bonds in question were issued for borrowed money, but it is alleged that the city council for the purpose of enabling it to execute its municipal powers, and for the purpose of taking up warrants drawn on the treasurer, which had been given to persons to whom the city was indebted, issued bonds and certificates of indebtedness, etc.
By sec. 70 of the general incorporation act (Gantt’s Digest, sec. 3296), it was provided that, “ No council of any municipal corporation shall authorize any loan or appropriation, not predicated on the revenues of the corporation for the current fiscal year, nor shall it authorize any order or appropriation of money when there is not in the city treasury money unappropriated sufficient to pay such appropriation, and any appropriation otherwise made or authorized, shall be held and deemed utterly void and of no effect against said corporation; Provided, that the city council of a city of the first class (to which Little Rock belongs), shall have power to borrow money, not exceeding in amount $500,000, at a rate of interest not exceeding ten per cent, per annum, at such dates and upon such length of time, not less than fifteen years, as the city may deem proper, for the purchasing of lands or other property within the corporate limits of said, city; said lands or other property to be converted to the use of said-city for public wharves, levees, squares, parks or market places, or the establishment and maintenance of ferries ; and said city council, so borrowing any money for such purpose or purposes, shall be authorized to issue the bonds of said city payable at such time (not earlier than fifteen years), and at such place as the council may deem proper, for the money so borrowed. Before the city-council are authorized to borrow money,'as herein provided, they shall submit the question to the qualified voters of the city, etc. at an election, etc. And if a majority of the persons voting at such election shall be in favor of making said loan, then said city council may proceed so to do in accordance with the provisions of this act, and not otherwise.”
Under this section of the act bonds could not be issued at all unless voted by the electors of the city, and then to run not less than fifteen years.
The bonds described in the petition were made payable from one to ten years after date, and it is not pretended that they were-, voted by the electors of the city.
Sec. 72 of the act (Gantt’s Dig., sec. 3298), provides that “The-city or town council of any city or town, for the purpose of extending the time of payment of any indebtedness heretofore incurred, and which, from the limit of taxation, such city or town is unable to pay at its maturity, shall. have the power to issue bonds of such city or town, or borrow money so as to change, but not increase the indebtedness, in such amounts, not less than fifty dollars, and for such length of time and at such rate of interest, not more than ten per cent, per annum, as such city or town council may deem proper; and when such bonds shall have been issued, a tax shall be assessed, etc., to provide a sinking fund for their final redemption, etc.”
Under this section bonds could be issued only for the purpose of extending the time of payment of indebtedness incurred before the passage of the act (9th of April, 1869), and in sums not less than fifty dollars.
The bonds, etc., in question were issued in denominations of one, two, five, ten, twenty, fifty and one hundred dollars, and it is not alleged that they were issued for the purpose indicated in the section of the act quoted.
There are no other provisions of the Acts of 12th December, 1866, and 9th of April, 1869, authorizing the issuance of bonds; and certainly none that authorized the' council of the City of Little Rock to issue bonds, or certificates of indebtedness, for the purpose of circulation as currency.
The answer alleges, 'and the demurrer admits, that the bonds and certificates of indebtedness, purporting to be the obligations of the City of Little Rock, mentioned in the petition, were engraved on bank note paper, in the form of bank notes, and were issued as a circulating medium, to be used as a currency or medium of trade in lieu of money, and that they were thus commonly used for a long space of time, etc.
' The petition alleges that they were used in the ordinary business transactions of the city as currency, and to distinguish them from the legal tender notes of the United States, they were commonly called “ city money.”
The petition falls short - of averring that they were issued for the purpose of circulation as currency, but the answer supplies the omission, the demurrer admits it, and so the pleaders are in agreement upon the facts.
There never was any statute authorizing the City of Little Rock to issue paper to circulate” as money; on the contrary the public policy as indicated by the legislation, etc., has been against it. ‘
¡By the Constitution of 1836, the legislature was authorized to incorporate one State Bank, with branches, and one other banking institution. Title Establishment of Banks-.
Banks followed and failed, leaving the State a legacy in the form of outstanding bonds, sold and hypothecated to procure banking capital.
The failure, and the evil entailed, taught the people of the State a lesson, and on the 17th of November, 1846, an amendment to the Constitution was ratified, declaring that: “ No bank or banking institution shall be hereafter incorporated or established in this'State.” English’s Dig., p. 71.
In the meantime, J>efore the amendment, the legislature passed the Act of 17th December, 1838, entitled, “An Act to prohibit the issuing of small bills, notes, or change tickets;” the first section of which provided that from and after the passage of the act, it should not be lawful for any city, town or corporation, whatever, within the State, to issue small bills or notes, commonly denominated change tickets, or shin-plasters, unless specially authorized by law. Acts of 1838, p. 13.
On the 15th of December, 1852, the legislature incorporated the “Cincinnati and Little Bock Slate Company,” for the purpose of developing the resources of the State, as recited in the preamble to the act; and by sec. 8, it was enacted “That for the purpose of facilitating the operations of the said company, they shall have power to draw and sell drafts or bills of exchange in such sums, or amounts, as they might think proper, on the different cities to which they may ship their merchandize.” Acts of 1852, p. 25-6.
This enterprising company attempted to develope the resources of the State, not by getting out slate, but by'issuing small drafts and bills of exchange, and attempting to convert them into a. circulating medium.
On quo warranto, this court held that it was not the intention of the legislature, by the 8th section of the charter, to confer any banking privileges upon the company, or to authorize them to issue bills to be used as a circulating medium, and that if such had been the intention of the legislature, the grant would have been void under the amendment to the Constitution, ratified 17th November, 1846. Smith v. The State, 21 Ark., 294. Of course this State money, issued in violation of law, and based on nothing, shared the fate of all such paper.
Before the issuance of the paper in question, a number of acts were passed, some of which will be particularly noticed hereafter, showing it to have been the settled policy of the State to prohibit corporations and individuals from issuing small notes to circulate as currency. See Rev. Stat., ch. 24, Change Tickets; lb., ch. 119, Private Notes; English’s Dig., ch. 29, Change Ticket; Acts of 1854-5, p. 107; Acts of 1858-9, p. 138; Gould’s Dig., ch. 20, Change Tickets and Bank Notes; Gantt’s Dig., ch. 19, Change Tickets and Bank Notes; Acts of 1846, p. 111.
The legislature intended, as remarked by Justice Lacy, Yeates et al. v. Williams, 5 Ark., 686, to prevent by every possible means the utterance and circulation of such currency, and its policy was just and wise.
The Constitution of 1868, provided for the incorporation of banks, to issue bills as currency, based on State bonds deposited with the Auditor. Sec. 50, art. v. But no banks were chartered. Congress had monopolized the business of manufacturing paper money. Treasury notes were issued and change supplied in the form of fractional currency ; and more than a thousand national banks were chartered (whether under the commerce or war power it is xxot- our province to decide) j to issue bills secured by government bonds. There was no necessity for the State, or its corporations, to engage in banking. .
The paper in question was issued by the city .council between the 1st of January, 1868, it seems, and the 30th of October, 1874, when the Constitution of 1868 was abrogated. As a matter'of public history that may be called the paper period. There was a prevalent mania for manufacturing bonds and scrip by millions, State bonds and scrip, county bonds and scrip, city bonds and scrip; and petty school corporations, following evil examples, issued scrip so excessively in some instances, that a hundred dollars of the paper would not purchase a school master a pair of breeches, and the issues of some of the larger corporations proved to be as worthless.
The council of Little Rock was infected with the general mania, and flooded the community with the issues in question, which the petition informs us were commonly called “city money,” to distinguish them from the legal tender notes of the United States.
It is also a matter of public history, that the issuance of this so-called money, commenced under the administration of an honorable mayor, who derived his appointment from a military com- ' mander, and he no doubt honestly concluded, that if the . power to issue the paper, was not to be found in the charter of the city, it might be done under the war power.
It appears from the first case of Jones v. City of Little Rock, 25 Ark., 284, that Jones, a tax payer of the city, filed an original bill in this court, praying a,n injunction to restrain the mayor and aldermen from issuing notes or bonds of the city to circulate as money, and the injunction was refused for want of jurisdiction.
It appears from the second case of Jones v. City of Little Rock, 25 Ark., 301, that Jones, a large property owner, in behalf of . himself and all other tax payers of the city, filed a bill in the Pulaski Chancery Court, alleging that the mayor and aldermen had procured plates, engraved for notes or bonds, which they were about to issue upon the credit of the city, and which were designed to circulate as currency or money; that for more than a year past, such bonds or notes, had been issued by the city, under the authority of the council, and had circulated as money, being a common medium of exchange within the city; that the council had a large amount of such notes or bonds, of denominations under thirty dollars, which they would put in circulation, if not restrained, and that no vote of the people had been taken authorizing the issuing of such bonds; and that the council were about to issue and circulate the same on their own motion; and praying that they might be enjoined.
That the chancellor granted a temporary restraining order, until the application for injunction could be heard in court, and on such hearing the court dissolved the restraining order, and refused to grant an injunction until the cause was finally heard.
Jones then made an application to this court (December Term, 1868) for mandamus to compel the chancellor to reinstate and continue the restraining order until the final hearing of the cause.
We understand from the opinion of Justice Gregg, that the court refused the mandamus on” two grounds: First, that Jones showed no such personal interest in the matter as to entitle him to an injunction-; and second, that it was not only illegal, but criminal in the officers of the corporation to issue the paper, and that a Court of Chancery could not enjoin the commission of anací not- only void, but criminal.
The city council, disregarding the decision of the Supreme Court, that it was illegal and criminal to issue the paper, persisted in its issuance, and received it for taxes, etc., it is alleged, until after the year 1873, when it was refused.
In. the year 1875, the city attempted to fund, by bonding, outstanding bonds and certificate of indebtedness issued upon banknote paper, for the purpose of circulating as money, and at the suit of¥m, and James Vance, citizens of Texas, but who owned and paid taxes on real estate in the city, the funding was restrained by injunction from the Circuit Court of the United States for the Eastern District of Arkansas, on the ground, as we understand, that the paper which the city was proceeding so to fund, was illegally issued.
And in the case of Merchants’ National Bank v. The City of Little Rock, recently decided in the same court, Justice Dillon charged the jury (the District Judge concurring): “ That the form and appearance of the city bonds on bank-note paper, engraved with vignettes, in the similitude of greenbacks or bank bills, and of the denomination of one dollar, two dollars, five dollars, ten dollars, twenty dollars, fifty dollars and one hundred dollars, in connection with the undisputed fact that they did form for a considerable period a local circulating medium, and were used by the city and community in lieu of currency, establishes that the said bonds were issued for the purpose of circulating as money, and in violation of the statutes of the State in that regard.”
We conclude this feature of the case by affirming that the paper in question was not only issued without authority of law, but in violation of the statutes and policy of the State.
Fourth — Any act which is forbidden, either by the common or the statutory law — whether it is malum in se, or merely malum prohibitum', indictable, or only subject to a penalty or forfeiture ; or however otherwise pi’ohibited by a statute or the common law, cannot be the foundation of a valid contract; nor can anything auxiliary to, or promotive of such act.- Bishop on Contracts, sec. 458.
So a contract invading any one of the other interests which the law cherishes, though the thing to be done or promoted is not indictable, and not prohibited by any statute, termed a contract against public policy (or sound policy) is likewise void. Ib., sec. 460.
A note made on Sunday in violation of a statute is void. Tucker v. West et al., 29 Ark., 386.
In Craig et al. v. Missouri, 4 Peters, 436, Chief Justice Marshall said, it has been long settled that a promise made in consideration of an act which is forbidden by law is void.
In Thomas v. City of Richmond, 12 Wallace, 349, assumpsit was brought against the City of Richmond, upon notes issued by the city to circulate as currency. Mr. Justice Bradley, delivering the opinion of the Supreme Court of the United States (on error to the Circuit Court of the District of Virginia) said: “The court finds as a fact that the notes upon which the present action is brought were issued to circulate as currency; and, as matter of law, that this was in violation of the law and policy of Virginia. * * *
“The issue of notes as a common-currency, or circulating medium, is guarded with much jealousy' by all governments as touching one of its most valuable prerogatives, and as deeply affecting the common good of the people. Almost every state has stringent laws on the subject, and it may be said to be against the public policy of the country to allow individuals or corporations to exercise this prerogative without express legislative sanction. The State of Virginia, like all the other States, had a law of this kind in operation at the time the notes in question were issued. The issue of the notes in question was clearly in violation of this law. * * *
“But the charter of the City of Richmond has been referred to for the purpose of showing that the common council had power to issue such notes. One of the grants of power relied on is, that the city is made a corporation with power to contract and be contracted with, and generally with ‘all the rights, franchises, capacities, and powers appertaining to municipal corporations.’ In a community in which it is against public policy, as well as express law, for any person or body corporate to issue small bills to circulate as currency, it is certainly not one of the implied powers of a municipal corporation to issue such bills. Such a corporation ‘can exercise no power which is not, in express terms, or by fair implication, conferred upon it.’ Another clause of the charter to which reference has been made authorizes the council to borrow money and to issue the bonds or certificates of the city therefor. But this cannot be seriously urged as conferring the right to issue such bills as those now in suit. Such city securities as those authorized by the charter are totally different from bills issued and used as a currency or circulating medium. The distinction is understood and recognized by the whole community. A power to execute and issue the one class cannot, without doing violence to language, be deemed to include power to issue the other. We do not hesitate to say, therefore, that the common council of Richmond had no power or authority to issue such paper, and that they could not bind the city thereby.” See also Davidson v. Lanier, 4 Wallace, 447; Brown v. Tarkington, 3 Ib., 377; Root v. Godard, 3 McLean, 102; Weed et al. v. Snow, Ib., 265.
In Dively v. City of Cedar Falls, 21 Iowa, 569, held that notes issued by the city for the purpose of being used and circulated as money in violation of the statute, were void and could not be the basis of recovery. See also Attorney General v. Life and Fire Insurance Co., 9 Paige, 476; Smith v. Strong, 2 Hill, 241; McCullough v. Moss, 5 Denio, 567.
In Wheeler v. Russell, 17 Mass., 281, Parker, Ch. J., said: “No principle of law is better settled than that no action will lie upon a contract made in violation of a statute, or of a principle of the common law. See also Williams v. Yeates et al., 5 Ark., 684.
Fifth — It was insisted in the argument by counsel for appellant that he had nothing to do with the issuance of the paper in question by the city council, and was therefore an innocent holder.
It is sufficient to say of this, that there can be no innocent holder of paper issued by a municipal corporation without power or in violation of law. Township of East Oakland v. Skinner, 94 U. S. Rep. (4 Otto), 255; Town of South Ottawa v. Perkins, Ib., 261; Marsh v. Fulton County, 10 Wallace, 683; The Floyd Acceptances, 7 Wallace, 676; Dively v. City of Cedar Falls, 21 Iowa, 569; Dillon on Municipal Bonds, sec. 7; Root v. Godard, 3 McLean, 102.
The reason of the rule is that such corporations are enacted by and derive all their powers from public law, and persons dealing with them, or taking their paper, are obliged, at their peril, to ascertain the extent of their contracting powers, and limitations upon them.
Sixth — We come now to the final, and really the only perplexing question in the cause, and that is, has the legislature provided that the city shall be liable upon, and shall redeem the paper in question, notwithstanding it was issued in violation of law, and public policy, and under a general principle, is void ?
As a matter of public history, it may be stated that the paper continued to circulate as currency in the ordinary transactions of the community until the fall of 1873, when the banks refused to receive it, and it was thereby discredited among the mercantile classes and fell below par. Finally after the city refused to receive it for taxes, and after the Circuit Court of the United States enjoined the city from funding it, it sunk down to a nominal value, and perished in the hands of its unfortunate holders, many of whom were doubtless illy able to bear the loss.
How much of it is still outstanding, and whether it remains in the hands of the many who sustained the loss of its depreciation, or has' been accumulated in the hands of a few, we do not know, nor is it material to the settlement of the legal question before us. As a currency, it has but repeated the history of all paper illegally issued to circulate as money.
If the city is legally obliged to redeem the paper, the means of its redemption must be drawn from the tax-payers, and they must be punished for the illegal conduct of the officers of the city in issuing it.
In Pennsylvania the very act that prohibited corporations from .issuing small bills and notes to circulate as currency, declared that they should not be void by reason of the statute, but that the corporation should be liable upon them. The Supreme Court of that State, in Allegheny City v. McClurkan & Co., 14 Penn. State, 84, said: “The provisions of the statute are very plain and intelligible. They announce two propositions: First —You violate the law and incur the penalty if you issue small notes under five dollars, and put them in circulation currently; but if you will violate the law, and issue them and incur the penalty, you shall pay the holder the uttermost cent you engage to pay on their face, and in addition, if he is compelled to bring suit, you shall pay interest at the rate of 20 per cent, per amnum.”
Our legislature has in substance and effect said about the same to persons who may issue paper to circulate as currency, but it has in no statute expressly relating to municipal corporati.ons employed such language.
The first statute passed on the subject was entitled “An Act to prevent the circulation of private notes in this State,” approved November 25th, 1837, and was made to take effect from and after the 1st of March, 1838 (Rev. Stat., sec. 5, chap. 24), and is contained in ch. 119, title “Private Notes,” Revised Statutes.
The act is as follows:
■ Section 1. No person or persons unauthorized by law shall intentionally create or put in circulation, as a circulating medium, any note, bill, bond; check or ticket, purporting that any money or bank notes will be paid to the receiver, holder or bearer, or that it will be received in payment of debts or to be used as a currency or medium of trade in lieu of money.
Sec. 2. If any person shall issue, put into circulation, sign, countei’sign or indorse any such note, bill, bond, check or ticket, he, she or they so offending, shall be indicted,- and being thereof convicted shall be fined not less than fifty, nor more than three hundred dollars, and be imprisoned not exceeding three months.
Sec. 3. If any person or company vend, pass, receive or offer in payment any such note, bill, bond, check or ticket, he, she or they, so offending, shall forfeit the sum of fifty dollars, to be rercovered by action of debt with cost to the use of any person who will sue for the same before any justice of the peace of the county in which the party offending be found.
Sec. 4. The preceding section shall not affect any note issued by any bank authorized by law in the United States, except notes for a less sum than five dollars.
If the scope of this act be limited to the purpose expressed in its title “ to prevent the circulation of private notes,” it might well be held to embrace paper issued or put into circulation by individuals, firms, companies, and even private corporations, but paper issued by a public municipal corporation could not, witjh any regard to the meaning of language, be held to be included in the words “ private notes.”
But if it be said that the word “ person,” as used in the act, embraces municipal corporations, the punishment prescribed by the second section for creating or putting into circulation such paper, must necessarily fall on the officers of the corporation, because a corporation is an ideal being, and cannot be indicted, fined and imprisoned.
Sec. 21, ch. 129, Revised Statutes, provides that the word “ person,” in any statute, shall be deemed to include females as well as males, and bodies corporate as well as individuals, but it is by no means a rule without exceptions that the word embraces municipal corporations. Boone County v. Keck, 31 Ark., 387.
The second act on the subject was approved and in force February 14th, 1838, and forms ch. 24 of the Revised Statutes, title Change Tickets, and is as follows:
Section 1. The holder or owner of any change ticket, bill or small note, issued for the purpose of change or otherwise, shall have the right to sue the drawer, issuer, or endorser, of such change ticket or tickets, bill or bills, or small note or notes, before any justice of the peace in this State.
Sec. 2. The justice of the peace before whom any suit may be brought, under the provisions of this'act, shall, in all cases, when he is satisfied that the defendant in such suit did draw, issue, sign, or endorse the change ticket, bill or small note sued on, and that the same is not paid, forthwith give judgment for the plaintiff for the amount of such' change ticket, bill or note sued on, and shall forthwith grant the plaintiff an execution on the judgment, if the plaintiff require the execution.
Sec. 3. It shall not be any bar to any plaintiff obtaining a judgment on any change ticket, bill or small note, on account of any conditions specified or set forth in any change ticket bill or note, sued on, that payment will be made when the sum of five dollars is presented, but the justice shall give judgment for the-amount of the change ticket, bill or small note, sued on.
Sec. 4. The justice before whom any judgment may be obtained, by the provisions of this act, shall not grant or allow any appeal or stay of execution, nor shall the defendant be permitted ■or allowed to have any stay of execution, appeal, certiorari, writ of error, or injunction, but shall abide the judgment of the justice.
Sec. 5. The act passed at this session of the General Assembly, entitled, “An Act to prevent the circulation of private notes in this State,-” approved November twenty-fifth, eighteen hundred and thirty-seven, shall take effect and be in force, from and after the first day of March next. (Approved and in force, February 14th, 1838.)
If the City of Little Rock is liable upon the paper in question, it must be liable under the provisions of this act, for jt is not pretended that there is any other act upon which the liability of the corporation can be predicated.
Municipal corporations are certainly not expressly included in ■any of the provisions of the act.
It is equally as clear that they are not impliedly included in the use of the term “ person,” for it is a remarkable fact that the word person is nowhere used in the act;
Moreover, the second section of the act provides, without any ■exception, that the justice of the peace shall forthwith grant the plaintiff an execution on the judgment recovered upon the ticket, bill, or note; yet sec. 15, ch. 33, of the Revised Statutes, title “Corporations, provides that no execution shall issue against a municipal corporation. (Approved, March 3d, 1838.)
Ve are satisfied that in the enactment of 14th of February, 1838, copied above, municipal corporations were not in the minds ■of the law-makers; and that they are not included in the provisions of the act.
Hence it was found necessary to pass the Act of 17th Decern1 ber, 1838, entitled “An Act to prohibit the issuing of small bills, notes, or change tickets;” (Acts of 1838, p.' 13,) which is as follows:
Be it enacted, etc., That, from and after the passage of this act, it shall not be lawful for any city, town, or corporation, whatever, within the State of Arkansas, to issue small bills or notes, commonly denominated change tickets or shin-plasters, unless specially authorized by law.
Sec. 2. That all persons, officers of such city, town, or corporation, or others whose names shall be affixed to any such bills, notes, change tickets, or shin-plasters, issued in violation of this act, shall be individually responsible for the same.
Sec. 3. That the holders of any such bill, note, change ticket or shin-plaster, issued in violation of this act, may sue for, and recover in gold or silver, the amount for which they purport to be payable, from the individuals whose names shall be affixed thereto, before any justice of the peace residing in the city, town, or county, in which the same may have been issued; and the decision of the justice,’ in all such cases, shall be final.
Sec. 4. That the provisions of this act shall be construed to extend to all small bills, notes, change tickets, or shin-plasters, heretofore issued by any city, town, or corporation, unless-the same be redeemed by the first day of May, eighteen hundred and thirty-nine.
Persons whose memories g& back so far, may remember that the word shin-plaster was a vulgar term applied at the time and before the passage of this act, to paper issued by individuals, firms, companies and corporations, without the privilege of banking, to circulate as currency, and especially for making •change, which was a prevailing, and proved to be a pernicious evil.
i, To sum up the legislation on the subject, the legislature said to all private persons, whether acting individually, or in firms, or companies, you must not issue notes, bills, etc., to circulates as currency, but if you will issue them, you shall be subject not only to indictment, fine and imprisonment, but shall be liable on the paper. ■ t
The legislature also said to corporations, in language equally as emphatic, you shall not issue such paper, but if you will, all officers of such corporation, and others whose names shall be affixed to such paper, shall be individually responsible for the same; and possibly (under the act of November 25th, 1837), subject to indictment, fine and imprisonment.
This legislation was eminently ju'st, for the officers of a corporation who issue forbidden paper in violation of law, should be liable upon it, and not the stockholders or tax-payers, who may be blameless in the matter.
Dudley E. Jones, in behalf of himself and all other tax-payers made ineffectual appeals to the courts to stop the officers of the City of Little Rock from issuing the paper in question, ano yet if the city is liable upon the paper, he and the other taxpayers of the city must suffer the consequence of their illegal acts.
Mr. Justice Gregg, in the second case of Jones v. City of Little Rock, 25 Ark., 306, said: “ If such (meaning the bonds, etc., in question), are issued without authority of law, then the city is not bound to redeem them. If issued in violation of a positive statute, they are void, and the taxable property of the citizens cannot be held liable for their redemption.”
It is insisted that this part of the opinion is obiter dietum, and that may be true, but we hold that it correctly announced the law of this case ; and it is unfortunate for the community that the opinion was disregarded by the officers of the city; for any temporary good that may have come of the issuance of such paper (if indeed there was any), has been largely overbalanced by the evils and losses flowing from it,| as has invariably happened with all such “ shin-plaster ” enterprises.
We have not overlooked the expressions of Judge Lacy in Van Horne v. The State, 5 Ark., 349.
Trowbridge, (who had been Mayor of Little Eock), Whit-more and Van Horne, were indicted for forgery in the Circuit Court of Pulaski County, the indictment charging that they “feloniously did forge and counterfeit the false resemblance, and imitation of certain notes and instruments which circulated, by usage as currency, etc., purporting to bo of the corporation of the City of Little Eock,”. etc., etc.,
Van Horne, was convicted upon the indictment and sentenced to the Penitentiary, and brought error.
It ivas argued for the prisoner, that the city had no power under its charter to omit a paper currency; that the issuance of change- tickets and small notes was expressly forbidden by statute, that such emissons ivere void, and hence it was no offense to counterfeit then.
The Act of December, 17th 1838, modifying the penal code to correspond with the establishment of a Penitentiary, (Acts of 1838 p. 121), which was in force when this case was tried, provided that; “whoever shall be guilty of forgery, counterfeiting, etc., etc., the counterfeit resemblance or imitation of any bank bill, or any note, check, or draft, or bill of exchange, or instrument, which circulate 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, etc., with intent to deceive, and defraud, shall be imprisoned,” etc.
Judge Lacy, who delivered the opinion of the Court, held that the prisoner was properly convicted for counterfeiting which puportod to be issued by the corporation of Little Rock, whether the city was liable upon the paper or not, or indeed whether the corporation in fact existed.
But he went further, and undertook to show that the corporation was liable upon such paper, though issued by it contrary to law.
It will be observed, on a careful reading of the opinion', that the learned Judge did not notice the provisions of the Act of December 17th, 1838, which expressly forbids corporation from issuing such paper, and makes -their officers, or others whose names arc affixed to the paper liable upon it.
He makes the word “person” and “company,” as used in the Act of November 25th, 1837, include corporation, but that act, as we have above shown, makes neither person nor corporation liable upon the paper, but makes it criminal to issue it, and penal to vend, pass, receive, or offer it in payment, etc.
He also seems to have overlooked the fact that the word “person” was not at all used in the Act of February 14th, 1838.
That the judgement of the court was -right in Van Horne’s case ■ that he was guilty of forgery, we do not question, but with all due respect for the learning and memory of Judge Lacy, we think he was in error in saying that the City of Little Rock, would be liable upon paper issued by its officers in violation of law for the purpose of circulating as money, though the officers whose names may be affixed to such paper are liable.
The same learned judge delivered the opinion of the court in Yeates et al v. Williams, 5 Ark., 684.
Williams, assignee of Williams & Co., sued Yeates & Butts, on a writing obligatory, executed by Anderson J. Greer as principal, and defendants as sureties. The defendants pleaded in bar, that they executed the bond as securities of Greer, to the plaintiff’s assignee, and that the consideration therefor “ was certain ■tickets, notes or cjhecks, purporting that Arkansas bank notes •would be paid to the receiver, holder or bearer, which said tickets, notes or checks being intended to be used as a currency or medium of trade in lieu of money, the said checks, tickets or notes being not authorized so to be put in circulation, contrary to the statute in such case made and provided,” etc.
The court below sustained a demurrer to the plea, and defendants appealed.
Whether the notes or tickets for which the bond was given were issued by an individual or corporation does not appear. If issued by the former, he was liable upon them, if by the latter, the officers, or others, whose names were affixed, were liable upon them. Yet this court held that the bond sued on was void, because executed for paper issued and passed in violation of law.
Many years ago, Phillip L. Anthony, proprietor of the Anthony House, embarked in the change ticket business, and issued paper redeemable in hotel fare, or Arkansas money. Judgment was recovered against him before a justice, of the peace on one •of his tickets. Passing over the Circuit Court, he procured the proceedings of the justice to be brought before this court, and reviewed on certiorari; Anthony ex parte, 5 Ark., 358.
Chief Justice Ringo, who delivered the opinion of the court, after making a brief summary of the three acts relating to the ■ subject, which we have copied above, said: “According to our'' understanding of these statutory provisions, they embrace only . ■such instruments as purport to be for five dollars, or a sum under five dollars, and were, by the maker, drawer, issuer, indorser, or other person affixing his name thereto, designed to circulate from hand to hand as currency or change,” etc.
No doubt the issuance of small bills to circulate as currency was the prevailing evil at the time the acts were passed, and the mischief which the legislature designed to suppress. But it is not to be inferred from expressions contained in any of the acts, tbat the legislature meant to tolerate the issuance of large bills to circulate as currency, by unauthorized persons or corporations. This might enhance the evil, if they could be imposed upon communities.
Section 3 of the Act of 25th of November, 1837, makes it penal to vend, pass, receive or offer, etc., any note, bill, bond, check, or ticket issued for circulation, etc., but sec. 4 exempts from this prohibition any note issued by any bank in the United States, authorized by law to issue bills, except notes for a less sum than five dollars.
The object of making this exception was to prevent the circulation in the state of bank bills of a less denomination than $5, because the use of such paper tended to displace coin. Such was also the purpose of the Act of January 8th, 1855, and of the Act of February 8th, 1859, which latter act extended the prohibition to bills of a denomination less than $20 after the 4th of July, 1860.
The officers of the City of Little Rock issued the bonds, etc., in question in denominations of one, two, five, ten, twenty, fifty and one hundred dollars, all of which were designed to circulate as currency.
If the larger bills were not within the letter, they were within the spirit of the forbidding acts, and Judges Dillon and Oald.well correctly charged the jury in the case of The Merchants’ National Bank v. The City of Little Rock, that it was illegal to issue them.
Moreover, it was well said by Justice Bradley, in Thomas v. City of Richmond, supra, that: “The issue of notes as a common currency, or circulating medium, is guarded with much jealousy by all governments as touching one of its most valuable prerogatives, and as deeply affecting the common good of the people * * * * and it may be said to be against the public policy to allow individuals or corporations to exercise this prerogative without express legislative sanction.”
We said above that contracts invading public.policy, as. well as such as are forbidden by common or statute law, were void.
After a careful consideration of the whole subject, our conclusion is that the city is not liable upon the so-called “ City Money ” in question, and that the appellee was not legally obliged to accept it in payment of the city tax for which it was tendered by appellant; and therefore the judgment of the court below must be affirmed. | [
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Donald L. Corbin, Justice.
Appellant, James Booker Jr. appeals the order of the Hempstead County Circuit Court denying transfer of his case to juvenile court. This interlocutory appeal is statutorily provided in Ark. Code Ann. § 9-27-318(h) (Repl. 1993). Jurisdiction is properly had in this court pursuant to Ark. Sup. Ct. R. l-2(a)(12). We find no error and affirm the denial of the motion to transfer.
As provided in section 9-27-318(c), Booker was charged by information in circuit court, alleging that on or about January 14, 1994, he, along with two other juveniles, Mario White and Jay Lee, committed the offense of aggravated robbery, a Class Y felony, in violation of Ark. Code Ann. § 5-12-103 (Repl. 1993). Booker was born December 4, 1977, and was thus sixteen years of age at the time of the alleged offense.
The affidavit of probable cause states that on January 14, 1994, officers of the Hope Police Department responded to a robbery at Harry’s Pawn Shop on South Walnut Street in Hope. Upon their arrival at the scene, officers observed that the owner of the pawn shop, Harry Phillips, had been struck numerous times in the head with an unknown object and knocked unconscious. The victim, Mr. Phillips, who was seventy-six years old at the time, was subsequendy taken to the hospital for treatment. Officers noted that during the robbery, several handguns had been stolen from the pawn shop. Booker was subsequently arrested for the aggravated robbery. Upon Booker’s arrest, police recovered two of the guns stolen from the pawn shop and noticed that Booker wore tennis shoes which matched footprints found at the scene.
Booker moved to transfer his case to juvenile court, and the circuit court conducted a hearing on the motion. The state called two witnesses, Detective Jeffery Neal, of the Hope Police Department, and Larry Johnson, of the Hempstead County Juvenile Probation Office. Booker then took the stand on his own behalf, and also presented testimony from his mother, Mrs. Michelle Booker, and his father, Mr. James Booker Sr.
Detective Neal testified that he had conducted an interview with Booker, during which the boy’s father and attorney were present. Detective Neal stated that Booker informed him that he (Booker) had gone into the pawn shop first, followed by Jay Lee, and that he (Booker) had been the first one to strike the victim. Detective Neal stated that he could not recall if Booker had told him that he had struck the victim with a crescent wrench, however, the detective stated that a crescent wrench was discovered at the scene and appeared to have blood on it. Detective Neal further testified that Booker stated they went to the pawn shop for the purpose of stealing guns. Detective Neal stated that the victim had suffered severe head injuries caused by a blunt instrument, and that a crescent wrench would be considered a blunt instrument.
Larry Johnson took the stand next for the state. Johnson testified that he had known Booker since the juvenile began having behavior problems at school in the seventh grade. Johnson stated that he was not aware of Booker committing any crimes prior to the robbery on January 14, 1994, but that since that time, he knew that Booker was being held at the Youth Services Center in Alexander, Arkansas, after pleading guilty to possessing a firearm. Johnson further stated that also subsequent to his arrest for the aggravated robbery on January 14, 1994, he was aware of Booker’s involvement in another incident involving a firearm. Specifically, Johnson stated that he had been contacted by a man concerning an incident in which Booker and another youth had pulled a gun on the man’s niece. Johnson stated that he had advised the man to contact the police, but was not aware whether the man had done so.
Booker then testified on his own behalf. Booker stated that he was doing well at the Youth Services Center, and that he was learning work skills, such as bricklaying. Booker said that he enjoyed his classes, that he was learning to behave himself, and that he felt he could be rehabilitated. As to the charges facing him, Booker stated that he had not struck the victim and that the robbery had been planned by Mario White and Jay Lee. On cross-examination, Booker stated that he was now telling the truth concerning his participation in the victim’s beating, and that he had lied to Detective Neal in the statement he gave following his arrest.
Booker’s mother then took the stand and stated that Booker was doing well at Alexander, and that his prospects for rehabilitation were good. Booker’s father also testified that he felt his son was doing well at the Youth Services Center, and that his prospects for rehabilitation were good.
At the close of all the testimony, Booker’s attorney moved for additional time to provide the court with letters and reports concerning Booker’s progress at the Youth Services Center. The court granted the motion, and stated it would reserve judgment on the issue of transfer until a later date. The court did, however, address Booker’s motion for a probable-cause hearing, stating that it found there was ample probable cause concerning Booker’s involvement in the aggravated robbery. In its order, the trial court summarily denied Booker’s motion to transfer his case to juvenile court, and this interlocutory appeal followed.
Booker’s sole point on appeal is that the circuit court erred in denying his motion to transfer the charge to juvenile court. In support of this point, Booker argues that the state failed to produce evidence showing that he was involved in a violent offense, or that the offense committed was one of a repetitive pattern of adjudicated offenses, or that appellant was beyond rehabilitation.
We have repeatedly held that the decision of the circuit court denying transfer to juvenile court will not be reversed unless the ruling was clearly erroneous. See, e.g., Williams v. State, 313 Ark. 451, 856 S.W.2d 4 (1993); Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991). Further, we have long recognized that it is the movant’s burden to prove a transfer to juvenile court was warranted under section 9-27-318. Williams, 313 Ark. 451, 856 S.W.2d 4; Pennington v. State, 305 Ark. 312, 807 S.W.2d 660 (1991). This is a burden that Booker has not met.
We recognize that pursuant to section 9-27-318(f), the determination that a juvenile should be tried as an adult must be supported by clear and convincing evidence. See, e.g., Davis v. State, 319 Ark. 613, 893 S.W.2d 768 (1995); Sebastian v. State, 318 Ark. 494, 885 S.W.2d 882 (1994). We have defined clear and convincing evidence as “that degree of proof which will produce in the trier of fact a firm conviction as to the allegation sought to be established.” Cole v. State, 323 Ark. 136, 140, 913 S.W.2d 779, 781 (1996) (quoting Cobbins v. State, 306 Ark. 447, 450, 816 S.W.2d 161, 163 (1991)).
Section 9-27-318(e) provides that the circuit court shall consider the following factors when making the decision to retain jurisdiction or transfer the case to juvenile court:
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.
At the conclusion of Booker’s transfer hearing, the court elected not to make a ruling so that Booker would be allowed to provide the court with pertinent documents that were not yet available. When the circuit court did, however, rule on Booker’s motion, the specific reasoning of the court was omitted from the order. We recognize that our previous decisions have held that circuit courts are not required to make specific findings of fact in juvenile-transfer cases. Williams, 313 Ark. 451, 856 S.W.2d 4; Vickers, 307 Ark. 298, 819 S.W.2d 13. We do, however, encourage those courts to make such findings, as it would be most helpful to our review. Since we have not been provided with any factual conclusions in this case, we must determine whether, given the testimony and other evidence presented at the hearing, the circuit court’s decision to retain jurisdiction is supported by clear and convincing evidence.
A review of the record in this case reveals that Booker was charged by felony information with committing aggravated robbery on January 14, 1994. Testimony indicates that Booker took part in the aggravated robbery of Harry’s Pawn Shop, and that during the course of that robbery, the elderly victim, Harry Phillips, suffered severe head injuries from being struck with a blunt instrument. Booker initially admitted to police that he had taken part in the robbery and that he had been the one who first struck the victim. Booker further admitted that the reason they committed the robbery was to steal guns from the pawn shop. At the transfer hearing, Booker recanted his previous statement concerning his involvement in the victim’s injuries and testified that he had not struck the victim.
The fact that Booker later changed his story concerning his personal participation in the victim’s beating does not change the nature of the charges pending against him. In fact, in Guy v. State, 323 Ark. 649, 916 S.W.2d 760 (1996), we stated that, “[i]t is of no consequence that appellant may or may not have personally used a weapon, as his association with the use of a weapon in the course of the crimes is sufficient to satisfy the violence criterion.” Id. at 654, 916 S.W.2d at 763 (citing Collins v. State, 322 Ark. 161, 908 S.W.2d 80 (1995)).
Appellant contends the state did not produce any evidence indicating that Booker was directly involved in the commission of a violent offense. Apparently, Booker is basing this argument on his testimony that he, himself, had not actually struck the victim during the robbery, and that he was merely a follower, rather than the mastermind behind the crime. For the reasons previously cited, as well as those set out below, Booker’s argument must fail. The evidence shows that Booker and the two other boys went to the pawn shop to steal some guns, and that during the course of the crime they beat the elderly shop owner to the extent that he suffered severe head injuries. Although we have previously recognized that it is possible to commit the offense of aggravated robbery without the actual employment of violence, that was certainly not the case here. See, e.g., Johnson v. State, 307 Ark. 525, 823 S.W.2d 440 (1992). The circuit court could very easily have found that the evidence presented satisfied the first factor provided in section 9-27-318(e). This factor alone would have been sufficient reason for the circuit court’s denial of transfer.
We have held that although a circuit court must consider all the factors listed in section 9-27-318(e), the court need not give each of the factors equal weight and it is permissible to give substantial weight to the criminal information. Walker v. State, 304 Ark. 393, 803 S.W.2d 502, reh’g denied, 304 Ark. 402-A, 805 S.W.2d 80 (1991). In fact, the criminal information, on its own, is sufficient to establish that the offense charged is of a violent and serious nature. Davis, 319 Ark. 613, 893 S.W.2d 768; Vickers, 307 Ark. 298, 819 S.W.2d 13. Moreover, proof of each factor need not be introduced against the juvenile for the circuit court to retain jurisdiction. Davis, 319 Ark. 613, 893 S.W.2d 768; Hogan v. State, 311 Ark. 262, 843 S.W.2d 830 (1992). The use of violence in the commission of a serious offense is a factor sufficient in and of itself for a circuit court to retain jurisdiction of a juvenile’s case, but the commission of a serious offense without the use of violence is not sufficient grounds to deny transfer. Sebastian, 318 Ark. 494, 885 S.W.2d 882; Blevins v. State, 308 Ark. 613, 826 S.W.2d 265 (1992). We find that there was ample evidence presented at Booker’s hearing demonstrating that the offense committed was a serious one and that violence was employed by Booker in its commission.
Although we agree with appellant as to his second argument, that the record indicates Booker had no prior adjudicated offenses, we nonetheless find that the circuit court could properly have considered the testimony concerning Booker’s subsequent criminal acts. The fact that subsequent to his arrest for aggravated robbery Booker was convicted of a charge involving his possession of a firearm and was committed to the Youth Services Center could have been considered by the circuit court as indicative of the juvenile’s prospects for rehabilitation, as provided in section 9-27-318(e)(3). The testimony that Booker took part in a second subsequent offense involving his and another youth’s pulling a gun on a girl is further evidence concerning his dim prospects for rehabilitation. We simply cannot say, in light of all the evidence presented at the hearing, that the circuit court’s denial of transfer of Booker’s case to juvenile court was clearly erroneous.
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DAVID Newbern, Justice.
Geraldine R. Davis and Arlanda Jacobs were unsuccessful candidates for separate justice of the peace positions in the general election held November 8, 1994. They sued the successful candidates and the members of the Phillips County Election Commission alleging numerous irregularities and illegalities in the conduct of the election and asked that they be declared the winners or that the election results be declared void. The Phillips County Circuit Court concluded that the irregularities and illegal conduct by public officials in the election process rendered the election void and ordered that a new election be held March 12, 1996. By order ofjanuary 29, 1996, we stayed the March 12 election.
On February 16, 1996, Barbara King, Robert Griffen, and Marvin Jarrett, the members of the Election Commission, petitioned for certiorari seeking “to hold void the requirement that [the Commissioners] ... hold a special election ... or in the alternative stay the calling of an election until an appeal can be heard ...” The Commissioners conclude the brief accompanying their petition as follows: “The writ of Certiorari should be granted as the Circuit Judge clearly exceeded his authority to void an election and require another to be held.”
Two issues are thus presented. To the extent we are asked to set aside the Trial Court’s judgment voiding the elections we decline to issue the writ. We grant the writ as to that part of the judgment requiring the Commissioners to hold a new election.
1. Void elections
The Commissioners focus on the characterization by the complainants in the Trial Court of each of their separate causes of action as “an election contest.” They argue our decision in Binns v. Heck, 322 Ark. 277, 908 S.W.2d 328 (1995), redefined the proof necessary to succeed in an election contest. Binns v. Heck was a contest brought by a losing alderman candidate who alleged that if illegal votes cast in favor of the declared winner were purged he would have won. We held, as we had held many times in the past, that “a pleading which merely alleges the conclusion that the contestant received more legal votes than the contestee without alleging facts which would disclose that the result of the election was actually different from that shown by the returns does not state a cause of action,” citing Files v. Hill, 268 Ark. 106, 594 S.W.2d 836 (1980), and Jones v. Etheridge, 242 Ark. 907, 416 S.W.2d 306 (1967).
In Phillips v. Earngey, 321 Ark. 476, 901 S.W.2d 782 (1995), and in Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992), we distinguished between election contests and actions brought to declare an election void. We did so, however, only for the purpose of discussing whether an election commission might be a proper party. We did nothing in those cases to disturb the conclusion we reached in Files v. Hill, supra, that “the mere fact that one bringing suit only seeks to have the election declared void and does not seek the office for himself, or even for the candidate he espouses, does not keep the proceeding from being categorized as an election contest.” See also Spires v. Election Comm’n of Union County, 302 Ark. 407, 790 S.W.2d 167 (1990).
There thus are two types of election contests. When it is of the type where the contestant seeks to oust and replace the certified winner, the proof must be as we stated in Binns v. Heck, supra, but a contest of the election in general, seeking to have it declared void altogether is different. Both types were pleaded here. The holding of the Trial Court in this case makes it of the latter sort, and we must decide whether certiorari should issue to set aside the holding which voided the elections.
Certiorari lies to correct proceedings erroneous on the face of the record when there is no other adequate remedy, and it is available in the exercise of superintending control over a tribunal which is proceeding illegally where no other mode of review has been provided. Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (1993); Sexton v. Supreme Court, 297 Ark. 154-A, 761 S.W.2d 602 (1988); Bridges v. Arkansas Motor Coaches, 256 Ark. 1054, 511 S.W.2d 651 (1974). It will not take the place of an appeal unless the right of appeal has been lost by no fault of the aggrieved party. Hendricks v. Parker, 237 Ark. 656, 375 S.W.2d 811 (1964); Hyder v. Newcomb, 234 Ark. 486, 352 S.W.2d 826 (1962). Certiorari may only be resorted to in cases when an excess of jurisdiction is apparent on the face of the record. See Lupo v. Lineberger, supra. A writ of certiorari is a remedy to quash irregular proceedings “but only for errors apparent on the face of the record; not to look beyond the record to ascertain the actual merits of a controversy or to control discretion or to review findings of facts.” Id.
The Commissioners argue:
There is no basis to void an election in a contest case as set out in Binns, supra. But even so the test to void an election of Patton v. Coates, 41 Ark. 111 (1883), Jones v. Glidewell, 53 Ark. 161 (1890), Baker v. Hendrick, 225 Ark. 778, and Files v. Hill, 268 Ark. 106 594 S.W.2d 836 (1980), [is] far from being met in the findings of the Circuit Judge.
By citing the line of cases beginning with the landmark Patton v. Coates, the Commissioners all but concede the Trial Court did not act in excess of his jurisdiction by voiding the election. We have no doubt a circuit court may set aside an election in accordance with the rule stated in the Patton case:
The wrong should appear to have been clear and flagrant; and in its nature, diffusive in its influences; calculated to effect more than can be traced; and sufficiently potent to render the results really uncertain. If it be such, it defeats a free election, and every honest voter and intimidated or deceived voter is aggrieved thereby ... If it be not so general and serious, the court cannot safely proceed beyond the exclusion of particular illegal votes, or the supply of particular legal votes rejected.
Whether the Trial Court’s findings were sufficient to do it in this case is, of course, an issue we may determine on appeal if an appeal is proper and if it is pursued in this matter. The Trial Court did not act without jurisdiction or in excess of its jurisdiction by holding the election void.
2. New election
As we held recendy in Binns v. Heck, supra, and in Phillips v. Earngey, supra, there is no statutory or other authority for a trial court to direct an election commission to call a new election after an invalid previous election. We held in both cases that, for the court to direct an election commission to do so would confer a power that does not exist and establish a remedy only the General Assembly may create.
Cases in which we have held certiorari appropriate when an error appears on the face of the record include Bates v. McNeil, 318 Ark. 764, 888 S.W.2d 642 (1994) (order of body attachment or arrest without opportunity to be heard); Casement v. State, 318 Ark. 225, 884 S.W.2d 593 (1994) (denial of appeal bond in accordance with statute superseded by rule); and Midwest Buslines, Inc. v. Munson, 274 Ark. 108-A, 622 S.W.2d 187 (1981) (issuance of a temporary restraining order without ordering expeditious hearing as required by rule).
In view of our decisions in Binns v. Heck, supra, and Phillips v. Earngey, supra, the error in this case of ordering the Phillips County Election Commission to hold a new election was clear on the face of the record, and issuance of certiorari is thus warranted unless, of course, an appeal would suffice. Justices of the peace are elected every two years. Ark. Const, art. 7, § 38. The election ordered was to supplant one held in 1994. We are now well into the second year of the term of office for which the election was to be held. By the time an appeal could be decided, the 1996 election would be upon us. Certiorari is proper in this circumstance. We grant the writ to the extent of setting aside the order commanding the Phillips County Election Commission to hold a new election to fill the justice of the peace positions at issue.
Writ of certiorari granted in part and denied in part.
Dudley, Glaze, and Corbin, JJ, not participating.
Special Justices ERIC W. Bishop, Ronald L. Boyer, and Constance G. Clark join the opinion. | [
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ANDREE LAYTON Roaf, Justice.
The issue in this appeal is whether the appellant Public Employee Claims Division of the Arkansas Insurance Department (PECD), the workers’ compensation carrier for state agencies, owes a one-third attorney fee as costs of collection from its subrogation claim against a personal injury judgment awarded to appellee Richard Chitwood, a state employee. We agree that the Circuit Court erred in finding that Chitwood’s attorneys were entided to recover one-third of PECD’s subrogation claim as costs of collection, and reverse.
Richard Chitwood, an employee of the Arkansas Department of Labor, was involved in a job-related automobile accident in January 6, 1988. Chitwood filed a workers’ compensation claim with PECD, and also filed suit against the negligent driver, the driver’s employer, and their respective insurance companies. PECD paid $8,096.80 in worker’s compensation benefits to Chitwood and advised Chitwood’s attorney of its subrogation lien.
PECD learned of Chitwood’s lawsuit a few days before the trial date, and filed a Motion to Intervene and Complaint in Intervention on the day of trial. The trial court granted the Motion to Intervene, and trial was held on the third-party tort claim. PECD’s only participation in the litigation was to provide Chitwood’s attorney with copies of medical bills. The jury awarded Chitwood $33,654.99. The trial court ordered the judgment paid into the registry of the court pending resolution of the subrogation claim, and allowed Chitwood to withdraw $25,549.14, leaving $8,096.80, or the amount of PECD’s claim. Chitwood’s attorney received one-third of the amount withdrawn as attorney’s fees plus court costs of $634.55, and the remainder was paid to Chitwood.
After a hearing, the trial court ruled that since attorney’s fees had not been taken from the entire amount of the judgment, one-third should be deducted from the $8,096.80 subrogation amount for attorney’s fees and costs. The trial court ordered $5,417.40 to be paid to PECD and the remainder paid to Chitwood and his attorney.
PECD argues that the trial court incorrectly interpreted and applied statutory law in finding that Chitwood’s attorneys were entitled to recover one-third of its subrogation claim as fees and costs. Arkansas Code Annotated § 11-9-410 (Supp. 1995) deals with third-party liability, and provides in pertinent part:
(a) LIABILITY UNAFFECTED.
(1) The making of a claim for compensation against any employer or carrier for the injury or death of an employee shall not affect the right of the employee, or his dependents, to make claim or maintain an action in court against any third party for the injury, but the employer or his carrier shall be entitled to reasonable notice and opportunity to join in the action. If they, or either of them, join in the action, they shall be entitled to a first lien upon two-thirds (2/3) of the net proceeds recovered in the action that remain after the payment of the reasonable costs of collection, for the payment to them of the amount paid and to be paid by them as compensation to the injured employee or his dependents.
(2) The commencement of an action by an employee or his dependents against a third party for damages by reason of an injury to which this chapter is applicable, or the adjustment of any claim, shall not affect the rights of the injured employee or his dependents to recover compensation, but any amount recovered by the injured employee or his dependents from a third party shall be applied as follows:
(A) Reasonable costs of collection shall be deducted;
(B) Then, in every case, one-third (1/3) of the remainder shall belong to the injured employee or his dependents, as the case may be;
(C) The remainder, or so much as is necessary to discharge the actual amount of the liability of the employer and the carrier; and
(D) Any excess shall belong to the injured employee or his dependents. (Emphasis added).
The statute provides not only for the intervening carrier’s lien upon proceeds received in an action against a third party, but also spells out how the carrier’s entitlement shall be computed. Reasonable costs of collection are first deducted, and the employee is awarded outright the first one-third of the net proceeds. The insurance carrier is given a first lien on only two-thirds of the net proceeds. PECD submits the following distribution as the correct application of the statutory formula:
GROSS JUDGMENT SUM $33,645.99
COST OF COLLECTION (hypothetical) $ 1,000.00
AFTER COST AMOUNT $32,645.00
1/3 ATTORNEY FEE $10,882.00
NET AFTER FEE $21,763.00
1/3 TO CLAIMANT $ 7,254.34
BALANCE AVAILABLE FOR SUBROGATION $14,508.66
SUBROGATION TO PUBLIC EMPLOYEE CLAIMS DIVISION $ 8,096.80
BALANCE PAYABLE TO CLAIMANT AND RESERVED AS FUTURE CREDIT TO PUBLIC EMPLOYEE CLAIMS DIVISION $ 6411.86
Chitwood’s attorneys did not take a full one-third attorney’s fee of the gross amount of the judgment, in order to preserve their claim against PECD for one-third of the subrogation amount. However, the statute provides for the attorney’s entitlement to first be deducted from the gross amount, and their election not to collect their full fee does not affect the determination of PECD’s claim.
Chitwood asserts that Ark. Code Ann. § 11 — 9— 410(a)(2)(A) requires a compensation carrier in all instances to participate in the payment of reasonable costs of collection of a personal injury claim, including attorney’s fees. We do not agree. This section provides only that reasonable costs of collection shall first be deducted from the gross amount received, before the net amount is allocated between the claimant and subrogee. The statute clearly does not provide for splitting of the gross sum in order to make a pro rata allocation of the costs of collection from both the claimant and the insurance carrier, as Chitwood suggests.
In fact, the insurance carrier will bear none of the costs of collection where the gross-judgment amount is in excess of three times the subrogation claim, absent an agreement with the claimant’s attorney, as in Chitwood’s case. Although the carrier will receive less than the full amount of its claim where the judgment is less than three times the subrogation claim, in such a situation the carrier will always recover twice the amount that the claimant receives, no matter how small the judgment. It is debatable whether the carrier can ever be said to share in the costs of collection under this statutory scheme. However, we cannot say that the general assembly has been ambiguous in spelling out precisely how a gross judgment or settlement is to be divided. Where statutory language is clear and unambiguous, our task is to follow the statute, not interpret it. See Office of Child Support Enforcement v. Harnage, 322 Ark. 461, 910 S.W.2d 207 (1995); Arkansas Dep’t of Human Serv. v. State, 312 Ark. 481, 850 S.W.2d 847 (1993).
PECD cites only one case as supportive of its interpretation of § 11-9-410. In Continental Casualty Co. v. Sharp, 312 Ark. 286, 849 S.W.2d 481 (1993), we reversed the trial court’s award to Sharp of an attorney’s fee from the insurance carrier’s subrogation claim, because Sharp’s attorney had already collected a full one-third attorney’s fee from the gross amount of the judgment. Chitwood submits that the holding in Sharp has left the door open for the allocation of collection costs between the claimant and insurance carrier where the attorney does not collect a full fee from the gross amount. However, in Sharp, we said that the carrier had “effectively paid its proportionate share of the attorney’s fees” pursuant to the statute, even though our holding resulted in the carrier receiving the full amount of its subrogation claim and paying none of the costs of collection.
Moreover, the several cases relied upon by Chitwood as supportive of the trial court’s ruling are also consistent with today’s holding. In Winfrey & Carlile v. Nickles, Admr., 223 Ark. 894, 270 S.W.2d 923 (1954) this court affirmed an award to the claimant’s attorney of a fifty-percent contingency fee from the gross judgment of $6,433.10; the carrier had resisted payment of any costs of collection because it had employed separate counsel.
In Burt v. Hartford Accident & Indem. Co., 252 Ark. 1236, 483 S.W.2d 218 (1972), the claimant’s attorney was denied an attorney’s fee from the carrier’s share of the recovery; however, the claimant had resisted the carrier’s intervention and the carrier was required to retain counsel to assert its right to a lien. State Farm Mut. Auto. Ins. Co. v. Bing, 305 Ark. 280, 808 S.W.2d 204 (1991), involved a subrogation claim for medical payments made by the claimant’s automobile insurance carrier; such claims are governed by a different statute, and this case is not relevant to the interpretation of § 11-9-410.
Reversed and remanded for further proceedings consistent with this opinion. | [
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PER CURIAM.
On April 26, 1994, judgment was entered in the Circuit Court of Garland County reflecting that L. T. Tapp had been convicted by a jury of rape and sentenced to twenty-eight years imprisonment. Mr. Tapp’s attorney filed a timely notice of appeal of the judgment on April 28, 1994. On May 31, 1994, Tapp, acting pro se, filed a motion for new trial pursuant to Criminal Procedure Rule 37 alleging that he had not been afforded effective assistance of counsel by his trial attorney. The trial court entered an order on June 2, 1994, stating that the motion would be held in abeyance until after the appeal was completed because it did not have jurisdiction to consider a request for postconviction relief while the appeal was pending. In 1995, the court of appeals affirmed the judgment. Tapp v. State, CACR 94-744 (June 21, 1995).
After the appellate court’s mandate was issued on July 11, 1995, the trial court appointed an attorney for Tapp and held an evidentiary hearing on the Rule 37 allegations. Postconviction relief was denied, and the record has been lodged here on appeal. The appellee State seeks to have the appeal dismissed, arguing that the trial court was without jurisdiction to consider the postconviction pleading on its merits.
We find the State’s argument is well founded and dismiss the appeal. Postconviction relief under Rule 37 cannot be had while an appeal is pending. Brewer v. State, 274 Ark. 38, 621 S.W.2d 698 (1981). Thus, the trial court was without authority to do more than dismiss the pro se motion for new trial under the rule once it determined that it was not timely filed. The rule does not allow for holding allegations in abeyance for future consideration when the court obtains jurisdiction.
Rule 37.2(c) provides:
If an appeal was taken of a judgment of conviction, a petition claiming relief under this rule must be filed in the circuit court within sixty days (60) of the date the mandate was issued by the appellate court.
The petition must be filed after the mandate is issued because, when a case is directly appealed, the circuit court does not regain jurisdiction over the case until that event occurs. Doyle v. State, 319 Ark. 175, 890 S.W.2d 256 (1994); Clements v. State, 312 Ark. 528, 851 S.W.2d 422 (1993); Morton v. State, 208 Ark. 492, 187 S.W.2d 335 (1945). A court must have jurisdiction before it can do more with respect to a Rule 37 petition than examine it to see if it is timely. In Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989), we said:
... .a court always has the power and duty to examine the evidence and determine whether in fact it does have jurisdiction over the matter, (citations omitted) That being so, a [Rule 37] petition once tendered should be filed even though untimely so that the court may exercise the power and duty to determine whether jurisdiction exists. . . .once it is determined that jurisdiction does not exist, the disposition of the case must he made on that basis.
In accordance with Maxwell, once the trial court saw that the request for postconviction relief had been filed after the notice of appeal but before the mandate was issued, it was bound to do no more than declare it untimely. It was incumbent on appellant Tapp to raise his grounds for postconviction relief after the mandate was issued just as it is incumbent on a convicted defendant to determine when the judgment is entered before filing a notice of appeal.
Motion granted; appeal dismissed.
Even if the appellant had filed the motion for new trial under Criminal Procedure Rule 36.22, which permits a motion for new trial to be filed within the time fixed to file a notice of appeal, i.e. thirty days, the motion here would have been untimely. It was not filed until thirty-five days after the judgment was entered. | [
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Per CURIAM.
Appellant, Charles Lee Whitfield, by his attorney, Mikke Connealy, has filed a motion for rule on the clerk. His attorney admits that the transcript was tendered late due to an error on her part.
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam order dated February 5, 1979. In re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).
A copy of this opinion will be forwarded to the Committee on Professional Conduct.
Dudley, J., not participating. | [
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DONALD L. Corbin, Justice.
Appellant, Kimberly L. Smith, appeals the judgment of the Mississippi County Circuit Court entered on August 24, 1993, pursuant to a jury verdict, convicting her of one count of first-degree murder and sentencing her to imprisonment for forty years at the Arkansas Department of Correction. This court previously granted appellant’s motion for belated appeal. Smith v. State, 319 Ark. 51, 888 S.W.2d 663 (1994) (per curiam). Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(2). For reversal, appellant asserts two points of error. We find no error and affirm.
1. Sufficiency of evidence
Appellant’s first argument for reversal is that the state failed to present substantial evidence that it was her purpose to cause the victim’s death. Ark. Code Ann. § 5-10-102 (a)(2) (Repl. 1993). The state contends this point is procedurally barred because appellant’s trial motion was not sufficiently specific to apprise the trial court of her argument. We agree that the sufficiency argument is procedurally barred, but for a different reason than that argued by the state.
At the close of the state’s case, appellant moved for a verdict of acquittal “on the grounds that the prosecution has failed in their burden of proof with the charge of murder in the first degree.” After hearing the state’s response, the trial court ruled that a prima-facie case of first-degree murder was made. Then the defense presented its sole witness, appellant, and both sides rested. No motions were made or renewed by appellant at the close of all the evidence.
Appellant’s motion for a verdict of acquittal at the close of the state’s case is equivalent to a motion for a directed verdict challenging the sufficiency of the evidence. Daffron v. State, 318 Ark. 182, 885 S.W.2d 3 (1994). Our rules of criminal procedure provide that, in a jury trial, the defendant’s failure to move for a directed verdict because of insufficiency of the evidence at the close of the state’s evidence and at the close of the case constitutes a waiver of any question pertaining to sufficiency of the evidence to support the jury’s verdict. Ark. R. Crim. P. 36.21(b). In this case, appellant failed to move for a directed verdict because of insufficiency of the evidence at the conclusion of all the evidence and thereby waived the issue on appeal. Davis v. State, 320 Ark. 329, 896 S.W.2d 438 (1995); Penn v. State, 319 Ark. 739, 894 S.W.2d 597 (1995).
2. Settlement of record
Appellant’s second argument for reversal is that the trial court committed reversible error by failing to record or transcribe three specific incidents at the trial that cannot be reconstructed and therefore render the record on appeal insufficient to permit a full review of the trial proceedings. Pursuant to a writ of certiorari to complete the record, Mississippi County Circuit Court Judge David Burnett, who presided over the trial on August 23 and 24, 1993, conducted a hearing on August 16, 1995, to settle the record of the trial proceedings. Appellant’s appellate counsel, Ms. Sandra Berry, appellant's trial counsel, Ms. P. J. Maddox-Cook, the deputy prosecuting attorney who tried the case, Mr. Bruce Harlan, and the trial court reporter, Ms. Barbara J. Fisher, attended the hearing. The certified transcript of the hearing is included in the record on appeal.
The first incident concerns appellant’s request for a transcription of a comment that she alleges was made to her prejudice by Judge Burnett regarding the length of time for trial. At the hearing to settle the record, Ms. Cook recalled the comment as follows:
THE COURT: Ms. Cook, what is it you’re asking? I want you to —
MS. COOK: If it please the Court, it is my recollection that after the jury had been selected, your Honor gave — ah, made comments to the jury regarding, ah, your expectations of them and then —
THE COURT: Now wait a minute. Be specific please.
MS. COOK: To my recollection you had said that there was — that we have two days for the trial and that on the third day you had another trial scheduled and they had two days for this trial and that they would reach a verdict in the case if they had to stay here all night, something to that effect.
At the hearing, Judge Burnett, Mr. Harlan, and Ms. Fisher each stated that it was common for Judge Burnett to preliminarily inquire as to the expected length of trial. Although neither Mr. Harlan nor Ms. Fisher recalled the comment described by Ms. Cook, when Mr. Harlan asked Ms. Fisher if she would have transcribed the comment had it been made as described by Ms. Cook, Ms. Fisher answered affirmatively and stated: “I don’t recall him saying we’ll be here all night.” Ms. Fisher testified that if the comment was made during the jury “indoctrination,” she would not have recorded it, and that if the comment was made during voir dire, she would not have transcribed it because no objections were made during voir dire and no party had requested a transcription of voir dire. At the hearing, Ms. Berry confirmed that appellant is not requesting a transcription of the jury impanelment or voir dire.
Our rules of appellate procedure provide that if no report of the trial proceedings was made or a difference arises as to whether the record truly discloses what occurred in the trial court, the parties’ proposed statement of the unreported proceedings or the parties’ difference, respectively, shall be submitted to and settled by the trial court. Ark. R. App. P. 6(d) and (e). At the hearing, Judge Burnett settled the record as follows:
THE COURT: Well, I made no statements similar to what Ms. Cook said —• period. This Court is not going to agree to it. Y’all can agree to put in the record whatever you want to, but I certainly didn’t say anything of the kind. I might have made the comment about having three days to try the case. Seems like I do recall having something about another case, but that fell through and the attorneys were made aware of that, that they had a full additional day if they needed it.
THE COURT: I don’t think it happened the way you said at all. I am willing to concede that I might have inquired of counsel as to how long the trial would take. I probably did, if that helps your record and if the State’s agreeable to it, I’ll say that I said that whether I did or not.
MS. COOK: I understand that —
THE COURT: I’m sure I made an inquiry as to the length of time of the trial. I don’t know whether I made that before the first juror was called or after they were all there. In all probability if I did it, it was when the whole panel was out in the courtroom before we called the jury. I don’t even remember if I did it.
MS. BERRY: It’s on the record now.
THE COURT: Okay.
Thus, the trial court reconstructed this incident consistent with the rules of procedure. As to the prejudicial effect, if any, of Judge Burnett’s comment, we find that appellant may not argue this issue for the first time before this court. Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995). Appellant admits that she failed to object below to Judge Burnett’s comment, but citing Russell v. State, 288 Ark. 255, 704 S.W.2d 161 (1986), she argues that no objection should be required where it would have been futile. This argument is not persuasive. In Russell, this court reversed a conviction by bench trial and remanded the case for retrial where the trial judge announced the accused’s guilt and then commented about his failure to testify, thus indicating to this court that the trial judge found there was no alternative to a finding of guilt. In Russell, this court dismissed the state’s argument that no objection was raised below because it was obvious that an objection would have been futile. On the facts of the present case, however, Russell is not controlling because there is no indication here that a timely objection to Judge Burnett’s comment at the commencement of the jury-trial proceedings as to the expected length of the trial would have been futile.
The second incident concerns appellant’s request for a transcription of an in-chambers conference regarding proposed jury instructions. It is undisputed that the conference was not recorded. Appellant contends that, at the in-chambers conference, she objected to the proposed jury instructions and proffered alternate instructions. Consistent with the trial court’s responsibility to make a complete record of the trial proceedings, appellant argues her in-chambers objection and proffered instruction should have been recorded and transcribed.
We agree that the trial court’s failure to make a verbatim record of the in-chambers conference was error. That failure violated our Administrative Order No. 4, which provides:
Unless waived on the record by the parties, it shall be the duty of any circuit, chancery, or probate court to require that a verbatim record be made of all proceedings pertaining to any contested matter before it.
Accord Ark. Code Ann. § 16-13-510 (Repl. 1994). Had the trial court followed this procedure, we would not have this issue before us. However, in this case, the record was settled by the trial court.
At the hearing to settle the record, the following colloquy occurred concerning the in-chambers conference:
THE COURT: In an effort to settle the record — and, Mr. Harlan, you listen too. As I recall, when the jury — when the presentation to the jury was completed by both the prosecution and the defense, we took a recess. We went to the back. I looked at submitted instructions from both parties, sorted them out. We might have discussed them off the record back there. I don’t recall. That’s not uncommon to do. And then we came back in here and an opportunity was made for a record on any objections to the instructions that were to be given to the jury. I don’t know whether Ms. Cook made any objections or not.
Did you? I don’t remember.
MS. COOK: Your Honor, I don’t believe I made an objection at the time. But we had had a heated discussion on — I had tendered my own instructions regarding first degree murder. And then we — the prosecution had another instruction and we had argued for some time on those instructions, and then the prosecuting attorney proffered a new instruction which included accomplice liability, and we had a heated argument about whether that was appropriate, and your Honor determined that ah — to use the prosecution’s ah — ah — ah instruction rather than — and I did object at that time.
But . . . when we came back in here, your Honor had already made your rulings on all the instructions.
MR. HARLAN: Oh, I understand that [the court reporter wasn’t even present], your Honor. I’m assuming as your Honor is like we normally do, go back there and talk about them and then come out here and —
THE COURT: Then both sides are given an opportunity to state objections for the record, and then I give my instructions.
Judge Burnett settled the record as follows: “I don’t remember any heated discussions on jury instructions in this case.” Appellant concedes that, outside the in-chambers conference, she did not raise any objection to the jury instructions nor did she proffer any alternate instruction.
The third incident concerns appellant’s request for a transcription of a couple of questions that appellant contends were put to Judge Burnett by the jury after it had retired to deliberate, together with the trial court’s response. Ms. Cook testified that she could not recall exactly the jury’s questions, but believed part of it dealt with the purpose to cause death or the burden of proof. Ms. Cook testified that she could not recall exactly what had been Judge Burnett’s response, but part of it was that he had reread the instruction. Neither Judge Burnett nor Mr. Harlan recalled the incident, and Ms. Fisher testified that such an incident was already in the transcript or it did not occur.
We conclude that appellant has not demonstrated that the state of the record has prejudiced her.
The judgment is affirmed.
Repealed and replaced, effective January 1, 1996, with Ark. R. App. P. Crim. 5(a) incorporating Ark. R. App. P. Civ. 6(d) and (e), which track former Appellate Rule 6 without change. | [
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Andree Layton Roaf, Justice.
This is an appeal by the Director of the Department of Finance and Administration and the Commissioner of Revenues from a chancellor’s holding that the appellees’ mobile homes, which were attached to rented lots in a mobile-home park, were fixtures and not tangible personal property subj'ect to the gross-receipts (sales) tax. The chancellor ordered a refund to the appellees of the gross-receipts taxes paid upon purchase of their mobile homes and awarded attorney’s fees to the appellees. We agree that the chancellor erred and reverse and dismiss.
Each of the appellees (“taxpayers”) purchased a manufactured or mobile home located in the Rolling Meadows Mobile Home Park in Mountain Home, Arkansas, between October 1991 and May 1994; the Department of Finance and Administration (“DFA”) collected sales tax from the taxpayers on the purchases. The taxpayers filed claims for refund pursuant to Ark. Code Ann. § 26-18-507 (Repl. 1992). The claims were denied, and the taxpayers filed the instant action in Baxter County Chancery Court.
The taxpayers contended that (1) their purchases were exempt from the gross-receipts tax as isolated purchases pursuant to Ark. Code Ann. § 26-52-301 (Repl. 1992), (2) the gross receipts tax was an illegal exaction and violated the Fourteenth Amendment to the United States Constitution, (3) the statute imposing the tax was administered by DFA in an unconstitutionally discriminatory manner, and (4) the mobile homes or manufactured homes were fixtures rather than personalty subject to sales tax. In addition to seeking a refund, the taxpayers requested attorney’s fees and costs. DFA admitted that the taxes had been paid and that the claims for refund had been made and denied; however, DFA denied that the taxpayers were entitled to a refund or attorney’s fees.
The chancellor made the following findings of fact. All of the taxpayers were commonly situated as purchasers of homes affixed to lands belonging to the Weymeyer family trust in the Rolling Meadows Mobile Home Park. They pay a monthly rental on the grounds around and beneath their mobile homes. Each of the homes had lost its character as transportable because there were no tongues, axles, or wheels on any of the homes, and the homes had all been placed on concrete or concrete-block foundations with underground utilities and extensive structural modifications including roofs, patios, enclosed porches, and carports. All of the homes were purchased from former owners at the same location and had been utilized as permanent dwellings through as many as four different owners. The proof established the near impossibility of removal of the homes absent extensive and expensive efforts.
However, the chancellor also found that ownership of the homes carried with it the right to remove the homes at any time and that the owners have only a leasehold interest in the real property on which the homes are located. Finally, the chancellor concluded that neither the current owners nor the previous owners had manifested any desire to move the mobile homes from the lots; in fact, they had more firmly affixed the dwellings by making improvements.
DFA argues that the chancellor erred in holding that mobile homes attached to rented lots in a mobile-home park are “fixtures” and not subject to sales tax as tangible personal property. Arkansas Code Annotated § 26-52-301 (Supp. 1995) provides in part that there is levied an excise tax of three percent upon the gross proceeds or gross receipts derived from all sales to any person of tangible personal property. In the instant case, the chancellor determined that the isolated-sale exemption was not applicable. He concluded that the gross-receipts tax could not be levied because the mobile homes are not tangible personal property. See Pledger v. Troll Book Clubs, Inc., 316 Ark. 195, 871 S.W.2d 389 (1994); Leathers v. A & B Dirt Movers, Inc., 311 Ark. 320, 844 S.W.2d 314 (1992). Consequendy, DFA had the burden of proving the propriety of the tax, and all doubts and ambiguities had to be resolved in favor of the taxpayers. Id.
Although chancery cases are reviewed de novo, this Court will not disturb the chancellor’s findings of fact unless they are clearly erroneous. Boeckmann v. Mitchell, 322 Ark. 198, 909 S.W.2d 308 (1995); Pledger v. Troll Book Clubs, Inc., 316 Ark. 195, 871 S.W.2d 389 (1994). On appeal, DFA does not challenge the chancellor’s factual findings; it contends the mobile homes are personal property rather than fixtures.
This Court has oudined the basic rules for determining whether an article remains personal property or becomes a fixture. McIlroy Bank & Trust v. Federal Land Bank, 266 Ark. 481, 585 S.W.2d 947 (1979); Corning Bank v. Bank of Rector, 265 Ark. 68, 576 S.W.2d 949 (1979). The test is: (1) whether the items are annexed to the realty, (2) whether the items are appropriate and adapted to the use or purpose of that part of the realty to which the items are connected, and (3) whether the party making the annexation intended to make it permanent. Id.; see also 5 Richard R. Powell, The Law of Real Property ¶ 652[1] (1987).
As to the third element, we have stated that the intention is inferred from the nature of the chattel, the relation and situation of the party making the annexation, the structure and mode of annexation, and the purpose for which the annexation has been made. Corning Bank, supra. This Court has stated that the intention of the person making the annexation is a consideration of primary importance. Farmers Mutual Ins. Co. v. Denniston, 237 Ark. 768, 376 S.W.2d 252 (1964). However, contrary to the assertion of the dissent, “courts apply an objective test and arrive at the annexer’s intention by looking to his outward acts rather than to the inner workings of his mind.” Id. (Emphasis supplied.)
DFA concedes that the first element of the test is established because it is undisputed that the mobile homes are affixed to the real estate; the wheels and tow tongues have been removed, and the mobile homes have been placed on permanent foundations or pillars. However, DFA contends that neither the second nor the third element is satisfied; it principally contends that the intent requirement of the test has not been met.
In 5 Richard R. Powell, The Law of Real Property ¶ 652[1] (1987), the discussion of tests for a fixture provides:
One of the primary factors giving rise to a finding that the affixed item is or is not a fixture has to do with the relationship of the party to the real estate. If the item being affixed is owned by the same person who owns the land, then the act of attaching the item to the realty is generally considered a sufficient basis for an objective observer to regard the item as having become part of the real estate. If, on the other hand, the owner of the item affixes it as a tenant to the property owned by the landlord, the opposite presumption generally arises. The likely intent of the tenant negates the fixture characterization because the tenant has probably installed the item for his own enjoyment, convenience or use and will generally be regarded as intending to preserve rights in the item as personalty.
In Farmers Mutual Ins. Co. v. Denniston, 237 Ark. 768, 376 S.W.2d 252 (1964), this Court concluded that a compelling reason for concluding that a house trader did not lose its identity as personal property was the fact that it was placed on land belonging to another party rather than the owner of the trailer. The court commented that it was apparent that the owner of the trailer did not contemplate leaving it on the property as he did not even have a lease to the property.
In this instance the evidence does not support the finding that the annexation of the mobile homes is intended to be permanent. Although the chancellor concluded that none of the taxpayers had manifested any intent to move their homes, the taxpayers admitted that they claim the right to move their mobile homes at the termination of their rental agreements. The mobile home park owner further testified that she claims no ownership in the homes because of their annexation to her property. It is clear that a “disinterested observer would doubt that a tenant would want to give up ownership of an item he has attached on the landlord’s property.” 5 Richard R. Powell, The Law of Real Property ¶ 652[4] (1987).
DFA also submits that the second element was not satisfied because the mobile homes could easily be adapted for use on any other realty. DFA presents no further argument beyond this bare assertion, and no authority for this proposition; we need not address such an argument, as it is not apparent without further research that it is well founded. See Haase v. Starnes, 323 Ark. 263, 915 S.W.2d 675 (1996).
The dissent contends that the characterization of mobile homes or manufactured housing as “tangible personal property” is at odds with other Arkansas tax laws. However, the “other” tax laws cited by the dissent do not involve the gross-receipts (sales) tax. The Arkansas Gross Receipts Act provides that “[t]he tax imposed by this act shall be in addition to any or all taxes except as otherwise provided in this act.” Ark. Code Ann. § 26-52-104 (Repl. 1992) (emphasis added). Further, Ark. Code Ann. § 26-52-504 (Supp. 1995), Sale of house trailers or mobile homes, makes it clear that the General Assembly intended for certain mobile homes to be subject to sales tax.
For its second point, DFA contends that there is no statutory authority for an award of attorney’s fees in this case. The taxpayers concede this issue. The general rule relating to attorney’s fees is that the recovery of attorney’s fees is not allowed except when expressly provided for by statute. Arkansas Dep’t of Human Servs. v. Kistler, 320 Ark. 501, 898 S.W.2d 32 (1995); Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990).
Reversed and dismissed.
JESSON, C.J., dissents. | [
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ANDREE LAYTON Roaf, Justice.
Patricia and Robert Howard sued Dallas Morning News, Inc. (DMN), a newspaper publisher, for injuries Patricia suffered in April, 1991, when she was struck by a truck while she was walking in a pedestrian crosswalk at the Litde Rock Municipal Airport. The driver of the truck was making delivery of the Dallas Morning News to the airport at the time of the accident. The Howards also sued Robert Mitchell, the driver, and Delivery Systems, Inc. (DSI), the regional distributor for the Dallas Morning News. The Howards appeal from an order granting summary judgment in favor of DMN, contending that 1) the trial court incorrectly applied the law of agency in finding that they were required to show that Mitchell and DMN intended to and did enter into a contractual relationship, and that, 2) even if they were so required, there was ample evidence from which an agency and contractual relationship might reasonably be inferred. We agree that the trial court erred in granting the summary judgment and reverse.
Í. Facts
In July of 1989, DMN contracted with DSI to serve as distributor of the Dallas Morning News in the Little Rock and Hot Springs area. The contract was titled “Independent Distributor Agreement” and specified, in addition to such matters as prices and quantities of papers to be sold to distributor, terms of payment, area of distribution, and place of delivery, that the distributor would “make efficient and prompt delivery of the newspaper to purchasers in a manner satisfactory to them,” which was defined as reaching the reader by or before 6:30 a.m. each day, “prevent the insertion in copies of the newspaper of any advertising and other printed material,” and “obtain new purchasers of the newspaper” through reasonable solicitation and promotional methods. The agreement further provided, in a clause captioned “Independent Contractor Relationship”:
It is agreed that the means of accomplishing the foregoing objectives are wholly within the selection and control of Distributor, that all facilities and personnel used in the work shall be under the sole control and direction of Distributor or his sub-contractors, that the Publisher shall have no right or voice with respect to the means employed by Distributor in accomplishing the foregoing objectives, the selection, control or direction of the persons engaged by Distributor in performing the work or the mode, manner or method used by Distributor in the performance of this Agreement, and that the legal relationship created by this Agreement and by the actions and conduct of the parties in the performance of this Agreement is that of independent contractor. Distributor shall have no authority, and is hereby forbidden to employ or contract with any person on behalf of Publisher, and any and all contracts or arrangements made by Distributor in respect of the work contemplated by this Agreement shall be in the name of Distributor and for his account.
The distributor was also required to keep and make available to DMN, accurate and complete records with respect to all purchasers of the newspaper, all employees and subcontractors of distributor, and all other information needed by DMN to comply with rules of the Audit Bureau of Circulations. Although the agreement was for one year and automatically renewed from year to year, it could be terminated by either party with or without cause, upon 10 days’ written notice.
In December of 1989, DSI contracted with David Mitchell to serve as a “carrier” for DSI, by the execution of two separate documents, an “Independent Contractor/Carrier Agreement” and a “Delivery Systems Carrier Lease.” The Agreement provided that Mitchell, as carrier, would procure from DSI and promptly deliver newspapers along a specified route, and further recited:
The means and facilities used for such purposes shall be selected and operated solely by the Carrier under his/her sole supervision, control and direction, and at his/her own cost and expense to the best interest of the Company and the faithful performance of this agreement. It is expressly agreed that the Carrier is not an employee of the Company and he/ she at all times occupies the position of an independent contractor in his/her relationship with the Company. The Company is looking to the Carrier solely for the desired result of prompt receipt and delivery of newspapers.
The Agreement also required Mitchell to provide a substitute carrier when he was unable to deliver the newspapers, prohibited him from making alterations or insertions to the newspapers, and allowed him to engage in other business pursuits if they did not interfere with his contractual obligations to DSI. The Agreement was for 30 days, automatically renewed from month to month, and could be terminated by Mitchell upon 20 days’ written notice or at will by DSI without notice.
The Lease Agreement required Mitchell to lease from DSI vending machines and a list of subscribers for his delivery route, and contained clauses similar to the Independent Contractor/Carrier Agreement regarding Mitchell’s status as an independent contractor. The lease agreement further required Mitchell to provide information weekly to DSI regarding each retailer and vending machine on his route and to fill out forms provided by DMN and necessary for DMN to comply with regulations of the Audit Bureau of Circulations.
At the time of the accident, Mitchell was also delivering the Wall Street Journal, National Sports Daily, Barron’s, and the New York Times pursuant to his agreement with DSI, and he was engaged in a separate lawn-maintenance business. Sometime after the accident, DMN learned that Mitchell had destroyed or discarded 130 copies of the paper when he could not complete his route. DMN indicated to DSI that Mitchell should be terminated. DSI’s response was to terminate its contract with DMN.
After the trial court denied DSI’s motion for summary judgment, DMN also moved for summary judgment, asserting that no contract existed between Mitchell and DMN, nor was Mitchell in an employment relationship with DMN. In support of its motion for summary judgment, DMN submitted the agreements between Mitchell and DSI and the agreement between DSI and DMN, affidavits of several employees of DMN and the depositions of Joe Fox, President of DSI, and a number of DMN employees. The Howards submitted portions of the deposition of Mitchell, several of the same depositions of DMN employees submitted by DMN, and the depositions of two employees of DMN’s predecessor.
After granting DMN summary judgment, the trial court also granted the Howards’ motion for entry of final judgment pursuant to Ark. R. Civ. P. 54(b), so that they could appeal the dismissal of DMN prior to trial. DMN takes issue with the finality of this order and asks that this appeal be dismissed.
2. Finality of Order
We first address DMN’s contention that the appeal should be dismissed because there is not sufficient grounds for certification under Ark. R. Civ. P. 54(b).
In Franklin v. OSCA, Inc., 308 Ark. 409, 825 S.W.2d 812 (1992), we said that under Rule 54(b) the trial court “must factually set forth reasons in the final judgment, order, or the record, which can then be abstracted, explaining why a hardship or injustice would result if an appeal is not permitted.” Id. at 412, 825 S.W.2d at 814. However, we have clarified this holding to require that the factual underpinnings supporting a 54(b) certification must be set out in the trial court’s order, see Davis v. Wausau Ins. Cos., 315 Ark. 330, 332, 867 S.W.2d 444, 446 (1993), and that the factual findings must be abstracted. See Reeves v. Hinkle, 321 Ark. 28, 899 S.W.2d 841 (1995).
In this case, the trial court’s findings of facts contained in the 54(b) order are abstracted as follows:
(1) Significant discovery remains to be done. Based on past events, if DMN’s dismissal is reversed on appeal, it will doubtless want to re-depose experts whose depositions were taken without its participation. (2) Any subsequent trial against DMN would be protracted and largely duplicative of the first trial. DMN would be entided to relitigate virtually all issues raised in the first trial. A protracted retrial of the same issues is highly inefficient and raises an unseemly possibility of divergent verdicts arising from identical facts. The court finds this situation indistinguishable from that in Franklin v. OSCA, Inc., 308 Ark. 409, 412, 825 S.W.2d 812 (1992), in which the Supreme Court held an immediate appeal was warranted to avoid a duplicative trial. (3) To deny the motion would not insure there would be only one appeal, since the parties would likely appeal from both trials. To certify this appeal would avoid the prospect of multiple appeals from possibly divergent verdicts.
The trial court has not merely tracked the language of Rule 54(b). Here the abstracted order reflects that the trial court has stated facts sufficient to justify the entry of a final, appealable order.
3. Misapplication of Law
The Howards first argue, in essence, that the trial court made both procedural and substantive errors of law in the order granting the summary judgment. The summary judgment order provided in pertinent part:
The bulk of the Howards argument focuses on the factors to be scrutinized in determining whether a relationship is one of agent or independent contractor. This, however, avoids the threshold issue of whether there was a contract between the parties. Irrespective of whether Mitchell was an agent or independent contractor, both required there to be a contractual relationship.
Agency encompasses several types of relationships wherein the one referred to as the agent has agreed with the one referred to as the principal or master to act for the principal or master, subject to his control. The agreement may be oral or written or implied from the conduct of the parties and may be with or without compensation. See Crouch v. Twin City Transit, 245 Ark. 778, 434 S.W.2d 816 (1968); AMI 701.
The Howards’ argument assumes that Mitchell, in some way, contracted with DMN to perform the work, yet it provides no proof of this. Even if it could be argued that the agreement is implied from the conduct of the parties, this does not relieve the Howards from providing some proof as to the intent of the parties to be so bound. Clearly, Mitchell contracted with DSI, but that is not to say that it did so with DMN. (Emphasis added).
The Howards take issue with the underlined portion of the order. They contend that the trial court, by requiring them to prove as a threshold to agency liability, a contractual relationship between Mitchell and DMN, both incorrectly shifted the burden of proof from DMN to them, and also incorrectly stated the law of agency. They also contend that the trial court similarly erred by stating that they must provide some proof of the intent of Mitchell and DMN to be bound, for the agreement to be implied from the conduct of the parties.
The Howards correctly state that the burden of proving there is not a genuine issue of material fact is upon the summary judgment movant, and all proof submitted must be viewed in a light most favorable to the party resisting the motion. See Cash v. Carter, 312 Ark. 41, 847 S.W.2d 18 (1993). However, once the movant makes a prima facie showing of entitlement to summary judgment, the respondent must meet proof with proof showing a genuine issue of material fact. Cash, supra. Thus, if the trial court determined that DMN made a prima facie showing that it was entitled to summary judgment as a matter of law, it was proper to require the Howards to come forward with proof by showing a genuine issue of material fact, and this would not be an improper shifting of the burden of proof to them.
Also, although the trial court seems to have used the terms contract and agreement interchangeably in the order, and characterized the existence of a contract between Mitchell and DMN as the “threshold issue,” the order correctly stated that an agency relationship requires an agreement for the agent to act for the principal, or master, and that the agreement may be oral, written, or implied from the conduct of the parties. Crouch, supra. However, we do agree that the trial court misstated the law by further declaring that the Howards must also provide proof that the parties intended the relationship to result, where the agreement is implied.
We have adopted the Restatement definition of agency in a number of cases. See Crouch, supra; Evans v. White, 284 Ark. 376, 682 S.W.2d 733 (1985). The Restatement (Second) of Agency, § 1, cmt. b (1957) provides that “the relationship of agency does not depend on the intent of the parties to create it, nor the belief that they have done so. To constitute the relationship there must be an agreement, but not necessarily a contract, between the parties; if the agreement results in the factual relationship between them to which are attached the legal consequences of agency, an agency exists although the parties did not call it agency and did not intend the legal consequences of the relationship to follow.”
The Restatement further provides that the “relationship of master and servant can be created although there is no mutual agreement to give and receive assistance. It is only necessary that there be submission by the one giving service to the direction and control of the one receiving it as to the manner of performance.” Restatement (Second) of Agency § 221, cmt. c (1957).
On the other hand, we have defined an independent contractor as one who, exercising an independent employment, contracts to do work according to his own methods and without being subject to the control of the employer, except as to the results of the work, and have held that the right to control and not the actual control determines whether one is a servant or an independent contractor. Wilson v. Davison, 197 Ark. 99, 122 S.W.2d 539 (1938).
In Blankenship v. Overholt, 301 Ark. 476, 786 S.W.2d 814 (1990), we listed ten factors to be considered in determining whether a master-servant relationship or independent contract existed, as found in § 220 of the Restatement (Second) of Agency, and stated that the right of control is the principal factor to be considered in making the determination. The intent of the parties is not included among these factors. See also Dickens v. Farm Bureau Mut. Ins. Co., 315 Ark. 514, 868 S.W.2d 476 (1994).
Nevertheless, the trial court’s misstatement of the law alone is not a sufficient basis for reversal. We have repeatedly stated that a trial court’s ruling will be affirmed if correct, even if the reason given for the decision is wrong. Higginbottom v. Waugh, 313 Ark. 558, 856 S.W.2d 7 (1993). It is unclear whether the trial court considered the proof submitted by the Howards as evidence, however, we cannot say that the trial court erred merely because he misstated the law of agency in his order. We must further consider the evidence submitted by the parties to make this determination.
4. Evidence of Agency
The Howards next argue that even if they were required to establish the existence of a contractual relationship between Mitchell and DMN, there is sufficient evidence from which to infer that Mitchell was in fact both DMN’s agent and its contractual employee. We agree that the Howards have provided proof of a genuine issue of material fact.
The Howards suggest there are numerous instances of control exerted on Mitchell by DMN, as evidenced by DMN’s contract with DSI and from the deposition testimony provided with the response to DMN’s motion. This evidence and the Howards’ characterization of it may be summarized as follows: DMN admitted its strong interest in how Mitchell performed because the newspaper could not function without timely delivery. DMN planned Mitchell’s business. The contract between DSI and DMN contains provisions which can only be described as controls over the scope and manner of delivery: territorial routes were assigned, insertion of other materials was prohibited, strict record-keeping was required and substitution of carrier was required if Mitchell could not perform. Through DSI, DMN supplied Mitchell with virtually all the supplies, forms and equipment he needed, with the exception of his vehicle. The paperwork supplied by DMN was extensive and complicated. DMN’s district manager acknowledged that he rode with Mitchell on one occasion on certain routes to service his racks. DMN roadmen would visit from time to time and follow carriers to observe the manner and method of distribution in order to verify performance of the contract. DMN structured the system under which Mitchell was paid what amounted to a salary. DMN effectively terminated Mitchell when it became dissatisfied with his performance. DMN confirmed its controlling role in delivery by delivering Mitchell’s route after causing his discharge.
DMN counters these contentions with the following assertions: There was no evidence that DMN provided any form of compensation to Mitchell, or paid any insurance or other employment benefits. Mitchell was free to deliver the paper by whatever method he chose. Mitchell chose where to locate and service racks. There was no evidence that DMN had an interest in how Mitchell performed his job or that DMN planned Mitchell’s business. DMN’s contract with DSI is not evidence that DMN exercised control over Mitchell. Mitchell never perceived himself as an employee of DMN. There is no evidence that DMN provided any supplies direcdy to Mitchell and, the carrier route list was not furnished by DMN to Mitchell. A DMN employee would ride with DSI’s carrier only on occasion, to either monitor compliance by DSI with the terms of its contract, or to analyze rack-sale performance for DMN’s own benefit or at the request of the independent distributor. DMN did not terminate Mitchell; DSI terminated the contract because DSI feared that DMN might terminate it for poor performance, not because DMN learned Mitchell was still delivering the paper. DMN assumed delivery of the paper in Little Rock upon DSI’s termination of the contract in order to assure service to readers while DMN arranged for a new contractor.
The Howards rely on Karcher Candy Co. v. Hester, 204 Ark. 574, 163 S.W.2d 168 (1942), to support their contentions that Mitchell was DMN’s agent. In Karcher, Hester’s son was employed by Karcher’s driver to aid him in delivering beer with Karcher’s permission, and Karcher paid the driver one cent more per case to enable the driver to pay the helper. We determined that this was sufficient evidence to show that the relationship of master and servant existed between Karcher and the driver’s helper, stating:
The relation of master and servant between two persons may be shown by proving that the one performs services for the other, [citation omitted] Indeed, it would be difficult, in most of these cases, to prove the relation of master and servant except by the fact that the one is known to perform service for the other, or from their course of dealings.
* * * *
The relationship may be created by express contract, but this is not essential; it may be created as well by conduct which shows that the parties recognize that one is the employer, or master, and that the other is the employee or servant. Moreover, when one is sought to be held responsible for the tortious act of another under the principle respondeat superior, the question of responsibility will not depend entirely upon the existence of some actual contractual relationship of master and servant. It is sometimes allowable to prove the relation of master and servant by the fact that one performs service for another.
Karcher, supra.
However, in Jumper v. L & M Transport. Inc., 296 Ark. 319, 756 S.W.2d 901 (1988), this court concluded that the driver of a tractor-trailer rig was not an employee or agent of L & M, but was an employee of Jimmy Sellers, who leased the rig to L & M because: (1) Sellers owned the truck and leased the truck to L & M; (2) Sellers employed the driver; (3) Sellers was responsible for qualifying the driver; (4) L & M had no authority to hire or fire the driver; (5) L & M did not pay the driver’s wages or social security; and (6) Sellers told the driver the routes he was to drive.
Although we have not previously considered whether a newspaper carrier is an agent of the publisher, a number of other juris dictions have addressed this issue. In Murrell v. Goertz, 596 P.2d 1223 (1979), the Oklahoma Court of Appeals held that a newspaper publisher would not be liable for damages resulting from an assault and battery by a carrier hired as an independent carrier salesman by a friend who was himself an independent contractor of the publisher. Although the publisher had ultimate control over territorial boundaries of the paper route, required that deliveries be completed by 6:00 a.m., set policy that all papers were to be held by rubber bands, and provided that customers missed by the carrier were to call the publisher, the independent contractor of the publishing company testified that he had hired the person charged with assault as an independent carrier salesman, and that the carrier was responsible only to him for delivery of the newspaper and was in no way under the supervision, dominion, and control of the publishing company. However, the publisher in Murrell, unlike DMN, had no direct contact with the carrier and had no knowledge of his employment.
Although agency is a question of fact ordinarily determined by the trier of fact, where the facts are undisputed, and only one inference can reasonably be drawn from them, it becomes a question of law. Evans, supra. Here, the Howards presented evidence of control by DMN not only as to the results to be achieved — timely delivery of the newspapers, but also as to certain details of the work. We cannot say that only one inference could reasonably be drawn from the proof submitted by the Howards as evidence of the extent of control DMN exercised over Mitchell.
Reversed and remanded.
Dudley, J., not participating; Glaze and Brown, JJ. dissent. | [
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Per Curiam.
Appellant, Randolph George Hicks, by his attorneys, has filed a motion for rule on the clerk. His attorneys, Wayne Emmons of Hardy, Arkansas, and Edward Witt Chandler, who was admitted to practice in Arkansas by comity pursuant to Rule XIV of the Rules Governing Admission to the Bar, state by motion that they were notified by the Clerk of this court that the record could not be filed because the notice of appeal was filed late. Appellant’s attorneys state by motion that they disagree that the notice of appeal was late.
In a Baxter County jury trial held on December 4 and 5, 1995, appellant, Randolph George Hicks, was convicted of two counts of delivery of methamphetamine, one count of possession of methamphetamine with intent to deliver, and one count of possession of drug paraphernalia. He was sentenced consecutively on each count, resulting in a cumulative sentence of ninety-five years’ imprisonment. Appellant’s counsel filed a motion for new trial on December 11, 1995, but the motion was filed before the judgment and commitment order was entered on December 14, 1995. The motion for new trial was therefore untimely and ineffective. Webster v. State, 320 Ark. 393, 896 S.W.2d 890 (1995) (per curiam). Appellant’s counsel amended the motion for new trial on December 20, 1995, asserting additional grounds for the motion. The amended motion related back to the date of filing of the original motion. Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995). The trial court did not rule on the motion for new trial. On January 19, 1996, appellant’s counsel filed a notice of appeal from the judgment “entered against him on December 5, 1995.” Although appellant’s jury trial concluded on December 5, 1995, the judgment was not entered for purposes of appeal until it was filed of record with the Baxter County Circuit Clerk on December 14, 1995. Ark. R. App. P. 4(e) (1995). Because the motion for new trial was ineffective and because the notice of appeal was filed more than thirty days after the judgment was entered, the notice of appeal was also of no effect. Webster, 320 Ark. 393, 896 S.W.2d 890.
Because appellant’s counsel have not admitted responsibility for filing the notice of appeal untimely, we deny appellant’s motion. See In re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). This court has held that it will treat a motion for rule on the clerk as a motion for belated appeal and grant the motion when counsel admits that the notice of appeal was not timely filed due to an error on his part. See, e.g., Brown v. State, 321 Ark. 282, 900 S.W.2d 954 (1995) (per curiam). Here, the attorneys do not admit fault. Instead, they state by motion that they witnessed the prosecutor hand the judgment to the circuit clerk at the conclusion of the trial. We have held that a statement that it was someone else’s fault or no one’s fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986) (per curiam). Therefore, appellant’s motion must be denied.
Appellant’s attorneys shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting foil responsibility for not timely filing the notice of appeal and upon filing same, or if other good cause is shown, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.
The present motion for rule on the clerk is denied.
DUDLEY, J., not participating. | [
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Walker, J.:
The appellants, plaintiffs in the court below, filed their bill against the appellees, to set aside a deed of conveyance for a tract of land executed by John Enyart to his co-defendant, Stephen B. Enyart, which plaintiffs allege to have been made in fraud of their rights as creditors of John Enyart.
The cause was submitted to the court upon bill, answer, exhibits and depositions, and a decree rendered in favor of the defendants, from which plaintiffs have appealed.
It appears from the pleading and evidence, that John Enyart was indebted to both Massie and Gollaha for money borrowed of them. The note given to Massie was for $100.00, dated 9th of March, 1873, due 1st of September thereafter, upon which, on the 16th of December, 1874, Massie obtained judgment in a Justice’s Court for the sum of $111.70, upon which execution was issued on fhe 16th of January, 1875, and placed in the hands of the constable. Enyart filed a schedule of his property which exempted all of it from execution, and the constable returned it no property found.
A transcript of the judgment, execution and return was filed in the Circuit Court clerk’s office, upon which, on the 8th of March, 1875, -execution issued directed to the sheriff and returned by him no property found.
John Enyart was also indebted to Gollaha as evidenced by two notes, one executed 30th of March, 1872, for $100.00, and the ■other of April 1st of. that year for $50.00, upon which Gollaha, ■on the 26th of April, 1875, obtained judgment for $196.87, upon which execution issued on the 14th of May, 1875, placed in the hands of the proper officer to be executed, and returned no property found; on the 19th of May, 187'5, a certified transcript of the judgment, execution and return was filed in the Circuit Court clerk’s office, entered upon the judgment docket of said court, an execution issued directed to the proper officer and returned no property found.
It was to subject a tract of 120 acres of land owned by John Enyart at and after the execution of said notes, that the bill of complaint was filed.
It is alleged that on the 1st of May, 1874, John Enyart and his wife conveyed by deed to his son, Stephen B. Enyart, for the alleged consideration of $300, the tract of land now sought by plaintiffs to be subjected to the payment of their judgments. That John Enyart, at the time of contracting with plaintiffs, was the legal owner of this and other tracts of land, and that at the time of making a conveyance to Stephen B. Enyart he was in failing circumstances; that the transfer was made without consideration and in fraud of their rights as creditors; that Stephen B. Enyart wras a minor without means to pay for the land, and took the conveyance with a knowledge of the fraudulent intent with which it was made. .
That John Enyart was in failing circumstances is abundantly shown from the evidence; besides the debt due to plaintiffs, he was indebted to Columbus Jackson, Porter Owenby and others. Owenby -states that he was unable to collect his debt of Enyart, and that to his knowledge other creditors frequently called upon him for payment. He told Owenby that he owed about $6,500, had thought of taking the bankrupt act, but declined doing so; said he would pay all the debts he now contracted, whether he paid the old debts or not; that he had given some mortgages to secure their payment and intended to give some others.
Walden, his son-in-law, deposed that as early as 1871, John Enyart conversed with him about his financial affairs, in the fall of that year proposed to let witness have fifty acres of land, wanted a deed made in? my wife’s name, said I might select the fifty acres out of a tract of 200; that my wife was his favorite, 'he would give her the land, but a gift would not stand in law when a man was in debt, and I must pay him something; the .-sum agreed upon was $250.00. I let him have a horse and a mule for that price, and he paid me $100, and took my wife’s mote for a $100, which he said she wouldneverbe called upon to pay if he had a like amount for the rest of his children.
He made a deed to my wife for the fifty acres of land, the consideration named was $100, said that consideration was as good as any other sum; the land was worth $12 per acre, said he .^sometimes thought of taking the bankrupt act, but it might not ¡be right, although others had done so with him; said if his creditors knew that he was selling off his lands to his children, they might close mortgages on him.
Witness Mitchell deposed that in 1871, Enyart told him about 'being in debt, and that those owing him had taken the benefit of ■the bankrupt act; witness asked him why he did not take it, he . said he did not think he could clear his oath by making his land ■over to his children, and then taking the benefit of the law. It was generally known in the neighborhood that Enyart was in failing circumstances.
Witness TJptigrove deposed that it was the general talk in the meighborhood that Enyart was in failing circumstances.
Witness Todd deposed that he had heard much of Enyart’s ■ circumstances, he was said to be considerably in debt, part of his land was mortgaged, h’is indebtedness was known and spoken of by his neighbors generally.
On the other hand, Enyart, in his answer, denies that the sale • of his land to his son was in fraud of the rights of his creditors, but was a bona fide sale for $300.00 cash in hand paid, which was ■ a fair consideration for the. land, but all of the other witnesses depose that the land -was worth $10 per acre, or $1200 for the itract at the time of ;the conveyance.
In his deposition Enyart deposed that his estate was worth $4,000 or $5,000 at the time the conveyance was made to his son, and that his indebtedness did not exceed $100, which is iully contradicted by other testimony.
Such is, in substance, the evidence, which we think clearly shows that John Enyart was not only in failing circumstances at the time he conveyed the land to his son Stephen, but also that he was disposing of his property in fraud of the rights of his creditors.
But in order to vitiate the sale and set it aside as fraudulent, it must also appear, that his son was apprised of the failing circumstances of his father; and of his purpose to sell his property to avoid the payment of his debts, because, if ignorant of these facts, he bought the property in good faith, and paid for it, without a knowledge of the failing circumstances of his father, and his object in conveying the property, to hinder or delay the payment of his debts, his title to the property will not be disturbed, even though it may have been the intent of the father in making the sale to defraud his creditors.
The general proposition, that one in failing circumstances may pay one creditor in preference to another, or convey to him property at its value for that purpose, is well established, and it is equally well established that a third party, not a creditor, may, with a knowledge of the failing circumstances of the debtor, buy property of him, upon a fair consideration actually paid, unless at the time of the purchase, he was aware of the fraud intended. to be practiced by the debtor upon his creditors in making it.
Thus, in the case of Christian v. Greenwood, 23 Ark., 258, in which Henley, a debtor, removed his negroes from the State of Arkansas to Louisiana, to prevent them from being sold by his creditors, sold them in Louisiana to Christian, who had no agency in moving them, but was aware of the fraudulent intent with which they were removed to Louisiana, and, after his purchase, brought them back to Arkansas. Under this state of case it was held that, although Christian paid a fair price for the negroes, he had a knowledge of the fraudulent intent of Henley and'could not hold the negroes as an innocent purchaser. Mr. Justice Fairchild, who delivered the opinion of the court, said : “If Christian bought the negroes of Henley and paid the value of them without notice of Henley’s fraud, his equity as a purchaser is equal to that of the creditor to have his debt paid out of Henley’s property, and the legal title derived from the purchase will prevail; but if the purchaser have notice of the fraud, and deal with the vendor, and, by so doing, aid him in the participation of a fraud upon his creditors; then even if a full price is paid by him, he shall assert no claim to equitable relief.”
The decision has been approved by several of our later decisions. In Galbreath & Stewart v. Cook and wife, 30 Ark., 417.
It is under this sale that we are to determine whether, conceding the fraudulent intent of John Enyart, the debtor, his son Stephen, in good faith bought the land and paid for it without notice of the failing cii’cumstances of his father and his intent to defraud his creditors.
Complainants allege that Stephen purchased the land of his father with a knowledge of his failing circumstances, and the. fraudulent intent of his father to hinder and delay his creditors in the collection of their debts; they deny all intention to defraud the creditors: say that it was a bona fide sale for the sum of $300, in hand paid, which is the value of the land.
Defendant Stephen, says he was an innocent purchaser with- • out notice of his father’s intent to defraud his creditors (the plaintiffs). But it will be seen that this denial of notice of fraud only extends to the time when the contract was entered into in May, and although it is stated in the answer that the consideration $300, was paid cash in hand. The evidence of all the witnesses, including this defendant, shows that there was no money or other consideration paid at that time, nor until the month of October thereafter. The answer therefore, that hé' was not aware of the fraudulent intent of the father, in making the conveyance at the time it was made, is not sufficient, but should have extended to the time of making the payment in October. Notice at any time before payment is sufficient to defeat the defense of innocent purchaser. Byers & McDonald, v. Fowler et al., 12 Ark., 218; Whiting & Stark v. Beebe et al., Ib., 552; Duncan v. Johnson et al., 13 Ark., 190.
• But if in fact the answer had denied notice up to the time of payment, it is very questionable whether the facts disclosed by the evidence were not sufficient to charge the defendant with notice, or at least to put him upon inquiry. It is shown that he was a minor son residing in the family of his father, without property, except perhaps a horse and cow to which no value is attached by the witnesses; shortly before that time, his .father had conveyed, by deed, part of the same tract to two of his sisters. The 120 acres of land which he claims to have purchased of his father for $300, is shown to have been worth $1200, no note was taken for the payment of the purchase money, nor was there any time agreed upon for making payment. His father was generally known and spoken of in the neighborhood as involved in debt, and, as transfers were made in the family, it is but a fair inference that they came to the knowledge of the defendant, and; taken in connection with the terms of sale of the land to the son, were sufficient to put him upon inquiry, in regard to which, the rule is, that such information as will put the party upon inquiry, is in equity notice of all facts of which an inquiry suggested by such information would have led. Kerr on Fraud, 290.
.But whether sufficient to put the purchaser upon inquiry in this case or not, his failure to deny notice of the fraudulent intent of his father, not alone at the time he purchased the land, but also up to the time he paid for it, was necessary to protect him in his purchase as an innocent purchaser, because, if he had such notice át any time before paying for the land, by doing so, he made himself a participant in the fraud.
Such being the case we must hold the deed void as against the plaintiff creditors of John Enyart.
Let the decree of the court below be reversed and set aside, the cause remanded and a decree rendered, setting aside the deed of conveyance from John Enyart and his wife to the defendant, Stephen B. Enyart, and subjecting the lands so conveyed to the payment of their debts, in accordance with the prayer of the bill. | [
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Walker, J.:
The City of Little Rock filed, in the Chancery Court of Pulaski County, a bill of complaint to subject to sale certain lots, fronting on Markham Street, for the payment of a special tax levied and assessed upon said lots.
The defendant, Peay, demurred to the bill, the demurrer was overruled, and final decree rendered, subjecting the lots to the payment of the tax, from which an appeal has been taken to this court.
The City Council passed an ordinance: That Markham Street, a public highway in said city, between given point's, should be graded, and curbed on each side with stone, and paved in the Richardson Patent Wood Pavement. That the city engineer (if necessary) by actual measurement, ascertain the number of feet ’of each block or lot of land, cross street and alley, abutting oí touching upon said street, within the prescribed limits, and note the name of the owner of the same, if practicable, and file a map of the same, showing the owners of each block or lot; the number of feet the same abuts on said street, with the full length of said improvement in feet, the number of cubic yards of grading, &c., with the cost thereof, at the prices, &c., and the amount assessed against each block, lot or part thereof.
That the clerk, in making his .assessment roll, should levy and assess upon each foot of the several lots and blocks, or parts thereof, touching and abutting thereon, such parts of said street, in the proportion that the number of feet of said lot or block touching or abutting itpon said street, bears to the aggregate number of feet touching and abutting thereon, a sum of money sufficient to pay the proportionate part of said lot or block, of the whole cost or expense of said improvement.
Under a levy made upon the lots of Peay to pay for the pavement of the street opposite to such lot, demand for payment was made, which was refused, to enforce the payment of which this suit was instituted.
That the pavement was made, and a regular assessment of the property under, and according to the provisions of the ordinance is not questioned, but the real and only material question presented for our consideration is, as to the constitutional power of the corporation, to make such an assessment of the property owners, fronting Markham Street, as has in this instance been made.
It is contended for the appellant that an assessment, such as is provided for by the ordinance under which this property was assessed, is unconstitutional, in this; that the valuation was not by a uniform rule according to its true value in money, but by a rule of length, or superficial surface, a valuation which had no reference to the value received, or benefit to the owner.
Sec. 2, art. x, of the Constitution of 1868, ordains that: “Laws shall be passed taxing, by a uniform rule, all moneys, credits, investments in bonds, joint stock companies or otherwise, and also all real and personal property, according to its true value in money.”
Art. v., sec. 49 : “ The General Assembly shall provide for the organization of cities and incorporated villages, by general laws, and restrict their powers of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent the abuse of such power.”
Sec. 47, art. v.: “ The General Assembly shall not have power to authorize any municipal corporation to pass any laws contrary to the general laws of the State, or to levy any tax on real or personal property, to a greater extent than two per centum of the assessed .value of the same.”
Under these provisions of the Constitution, the General Assembly enacted, sec. 3228, Gantt’s Digest, (referring to incorporated cities and towns) : “ They shall have power to lay off, widen, straighten, extend and establish, or improve and keep in order and repair, etc., * * * and to assess and collect a charge on the owner or owners of any lot, or land* or lots or lands through, or by which' a street, alley or public highway shall pass, for the purpose of defraying the expenses of constructing, improving, repairing, or lighting such street or alley, or public highway, to be in proportion, either, to the feet front of land or lot, abutting on such1 street, alley or highway, or, to the value of such lot or land assessed for taxation under the general law of the State, as such municipal corporation may in each case determine.”
Sec. 3229 : ' “ Each municipal corporation may, either by general, or special by-law, or ordinance, prescribe the mode in which the charge on the respective owners of lots of land, and on the lots or land, shall be assessed and determined, for the purposes authorized by the provisions of this act.”
Under the power thus conferred, the City of Little Rock, in its corporate capacity, did, by ordinance, direct that an assessment be made on the lots fronting Markham Street, to be apportioned to the number of feet of each, abutting on said street. In obedience to which, a survey was made, with an estimate of the number of square feet in front of each lot, and passed' the following ordinance:
Sec. 1. That the several sums set opposite the following described lots, or parts of lots, or blocks or parts of blocks, as the case may be,' respectively, to-wit: Pea, Gorden N., block one hundred, fifty feet, tax $414.06,
Following out the list it is found, that the valuation of each fifty feet front, the whole extent of Markham Street, is assessd in the same proportion, that is, according to the number of feet in front of the lot so assessed.
Under this state of case, the question to be determined is, does the assessment conflict with the Constitution,'which requires that “ laws shall be passed taxing by a uniform rule all property subject by law to taxation, according to its true value in money.”
Limited by these constitutional restrictions, the General Assembly cannot confer upon corporations, nor can they exercise greater powers than the Constitution confers.
The counsel for the city have attempted to draw a distinction between the “assessment” of property, anda “tax” on property, and insist that the term “tax” is applicable to a general, or stated tax, -whilst an assessment relates to a levy under a local ordinance. To sustain them in this position, reference has-been made to the decision of the Supreme Courts of several states, with others, two of the decisions of this court.
In that of Washington v. The State, 13 Ark., 752, the constitutionality of an act of the General Assembly, which imposed a penalty upon any one, who set up, or kept a billiard'hall or “ten pin alley,” without first paying,a license for the privilege of doing so. Ch. Justice Watkins, who delivered the opinion of the court: Held, “'that the corporation had power to impose a tax on ‘ billiard tables ’ and ‘ ten pin alleys/ for municipal purposes, and as a police regulation for the preservation of good order.” Under the state of case before him, the judge might well have substituted the word “ privileges ” for “ taxes,” which was evidently in his mind, when he referred to municipal, and police regulations, which are altogether different from an assessment of taxes.
The other case, McGee v. Mathis, et al. 21 Ark., 40, was mainly decided upon the authority of Washington v. The State, it was appealed from to the Supreme Court of the United States, and reversed.
There are also decisions of some of the other states, which would seem to sustain the distinction between an “assessment” and “ taxation.”
The Tennessee, Illinois, Ohio and Wisconsin courts, in which certain decisions are found to some extent sustaining the distinction, have reversed them and now hold differently, whilst Missouri and some others still maintain the distinction.
Mr. Justice Breese, who reviewed all of the decisions of the Supreme Court of Illinois, indeed, of nearly all of the courts, when refering to the distinction between an “ assessment ” and a “ tax,” says: “ Call it a special assessment, then it is demanded on what grounds, apart from taxing power, can property be taken by way of a local or special assessment, * * * If a special assessment is not a tax, it must be placed under the exercise of the power of eminent domain, * * power of every description must be referred to some certain source, some local habitation must be assigned it, and if none can be, then it is safe to say, it is ‘ vagrant power/ or that it has no existence.” The City of Chicago v. Larned, et al., 34 Illinois, 276.
When taken in their popular meaning in reference to the taxing power, “ assessment of taxes ” and taxation have substantially the same meaning. “Assessment” is defined by Burrill to be, “To adjust or proportion :” “To rate or fix the proportion of a tax with each person of several, liable to it;” “To apportion a tax according to supposed relation between; ” “ To value in order to tax.” The term to “ assess ” and to “ tax,” were anciently used in close connection in point of meaning. Burrilhs Law Dictionary, vol. 1., 140. In vol. 2, 509, he says: “ To tax, to lay, to impose, or assess upon the citizen a certain sum of money, to be paid to tlie public.treasury.”
In practice, to “assess, fix or determine judicially, to adjust, adopt or proportion.”
It is in this popular sense that the terms, “ taxation ” and “ assessment ” are used in our Constitution, statutes and ordinances. Whether found in the several sections of the Constitu tion, or in the statute, laws or ordinances, they are limited by the Constitution to that uniform rule, and to the value of the property so assessed, according to its true value in cash.
At the foundation of the taxation system, rests the rule, that the citizen shall contribute to the support of the government, which protects his person and property, in proportion to the value of the property protected, and equality, so far as is practicable, is, says Dillon, p. 588, “ inherent in the very idea of a tax, as distinguished, from arbitrary taxation * * whatever limitations exist upon legislative authority, to wield, in its full scope, the taxing power of the State at its will, must be sought in the nature of the power itself, and in express or implied restrictions of the National and State Constitutions ; but for which, the power in the Legislature to tax is unlimited.”
The power of the corporation to levy the tax in this instance, is not questioned, its exercise is indispensably necessary to its corporate existence; but the real question to be determined, is, as to whether or not, the tax imposed in this instance bears equally upon the holders of property fronting the street paved. Mr. Cooley in his work on Constitutional Limitation, p. 515, well remarks, that, “The constitutional requirement of ‘equality’ and ‘ uniformity ’ only exist to such objects of taxation, as the Legislature shall determine to be properly objects of the burden, * * * but over all these the burden must be spread, or it will be unequal as to those who are selected to make the payment.”
In the case under consideration, the corporation did impose upon all the property holders, who owned property fronting on Markham Street, a tax, equal it is true, in frontage, but not in value, no ascertainment of the value of the property seems to have been made, none of the burdens imposed, as compared with the advantages to be derived to the owners of the property, on account of such improvement ascertained — $414,06 were imposed upon the fifty feet front owned by Peay, and. a like number upon every other fifty feet, which fronted the street.
From what appears from the records, the lot owned by Peay, may not exeed that sum in value, while another fifty feet may be worth ten times that much.
The benefits to those who own fronts upon which hotels, and other places of public resort are situated, may be equal, to the amount of tax imposed, and other fronts remote from the thronged thoroughfares, but little benefitted. Can it be said, that there is equality in burden and benefit in this? We think not. Suppose Peay’s lot is not worth more than the taxes assessed, and is sold to pay them, where, or upon what, is he to get benefit; when he has no property to be benefitted ? Certainly none.
We can scarcely expect absolute equality in all cases, or benefits commensurate with the burden of taxes imposed. But the principle upon which this approximation to equality is to be maintained, must be preserved inviolate, in this, that all property subject to taxation, shall be uniformly assessed according to value; a rule applicable to all taxation, whether for general, or local and special purposes.
We concede to the Corporation, power to judge of, and determine the extent and character of the improvement to be made, to ascertain, locate and fix the limits of the local.districts, and to declare that a tax shall be imposed upon the property, holders within the district so laid off, and to fix the amount to be levied upon the property of the district, but this levy must be made equal and uniform, according to the valué of each tract assessed, by an assessment according to the value of the property assessed.
Nothing short of this will meet the constitutional requirement; to depart from it, is a departure from the Constitution, and is void.
This valuation and assessment, cannot be arbitrarily determined, either by law, or by an ordinance.
The 15th sec., art. i., of the Constitution, ordains, “that private property shall not be taken for public use, without just compensation therefor.”
Suppose the Legislature should pass a law authorizing the taking of private property for public use, and should in the same act fix the compensation, which they supposed to be just, to be paid for it, no one would contend that the Legislature was competent to determine by law, what would be a just compensation for the property taken.
The action of the Legislature to this extent, would be held arbitrary and unconstitutional; nor could the Legislature, or .a corporation, either by a law or an ordinance, declare the value •of property, or what would be a just assessment upon it, so as to make the assessment uniform and equal in value; and for a like reason the relative estimate of benefit ■ and burden by law; such assessment and valuation is essentially a matter of fact to be ascertained by evidence, not by law.
A state, county, or more limited corporation can only take the private property of the citizen under right of eminent domain, or ■charge it with a tax assessed, for the support of government, upon a just compensation for the property taken, or upon an •equal and uniform charge upon the property according to its actual value in cash. So jealously did the framers of the Constitution guard this right, that they not only declared that valuation should be made, but directed that at le*ast once in every five years it should be made, not by law, but by an officer to be appointéd for that purpose.
An assessment according to the number of feet frontage of the property, irrespective of value, is irreconcilable with this constitutional provision, and cannot be restrained.
Tennessee, Louisiana, Arkansas, Texas, Missouri, California, Ohio, Massachusetts, Michigan, Wisconsin and Illinois have, by constitutional provisions, limited legislative power, or asserted the principle of taxation according to a uniform rule at the actual cash value of the property assessed; none more fully than Arkansas.
In the case of Weeks v. City of Milwaukee, et al., reported in 10 Wis., 242, a case in all its essential points like'the one under consideration, came before the Supreme Court of that State, under constitutional restrictions in many respects like our own, in which Mr. Justice Payne, in a well considered opinion, Held: That the uniform rule of taxation under the Constitution, is applicable to municipal corporations, that the rule of uniformity of taxation extends to all taxation, whether by cities or counties, and that an assessment by frontage, could not be sustained, as an exercise of the taxing power of the state and city, and to this extent fully sustains us in the conclusions at „ which we have arrived, but decided the case upon the qualifying effect of a provision in their Constitution, under which, special assessments under corporate authority, were so modified as to take the case out of the general rule. It is not clear to our mind how, considering the general principle, the final conclusion of the court can be sustained. At page 256, he says t “ I have no doubt if the assessments are to be sustained at all, that it must be done upon the ground that they are exercises of the taxing power * * a city or county is not a state; and if it contracts a debt, that is not a state debt. But when either exercises the taxing power, it is acting for the state, as taxation is an attribute of sovereignty; where, therefore, the Constitution requires ‘ the rule of taxation to be uniform/ I think it extends to all taxation by the state, whether acting directly or by delegating its authority to a political corporation. The object of this provision was, to protect the citizens against unequal, and consequently unjust taxation.”
In the case of McCormack, et al. v. Patchin, et al., 53 Mo., 33, it appears that a street in the City of St. Louis had been paved at the expense of the holders of property fronting it; after which a like tax was assessed for repairs; the correctness of the levy for repairs, upon a like frontage assessment, was the question before the court for consideration.
It was by the court held: Mr. Justice Wagner delivering the opinion, that “as the first tax was authorized by the provisions of the charter, the-assessment for repairs might also be levied under the same power.”
The question of power to make the levy in the first instance, Avas not discussed, but the decision seems to have been made upon the assumption, that the first assessment Avas correct, and, that under the same power and under the same rule of assessment, the property should be assessed for the payment of repairs.
It is also true that the judge did, in his opinion, assert the principle that the benefit to the property holders, by making the repairs, Avas compensation for the burden imposed by taxation. The same rule of benefit and burden is asserted in the earlier decisions of several of the states, among others, by the courts of Tennessee and Illinois, but in both of them, it has in their later decisions been in effect overruled.
The case of the City of Chicago v. Larned, et al., 34 Ill., 253, the facts of the case and the questions of laAV presented, were much like those in the case under consideration. Mr. Justice Breese, who delivered the opinion of the court, reviewed the ■decisions of the Supreme Court of Illinois, and many of the states.'. He said: “We propose to examine but one question, as the decision upon that, determines the whole controversy, and that is, are the provisions of the revised chapter of the City of Chicago, under which the assessment in question was made, in harmony with the provisions of secs. 2 and 5 of art. ix, and sec. 11, art. xiii, of the Constitution of the State. The framers of our Constitution have taken unexampled pains to affirm the principles of equality and uniformity as indispensable to all legal taxation, whether general or local.” With regard to assessment by frontage, he says: “ If this assessment is to be regarded as an exercise of the taxing power, it cannot be denied, that it flagrantly violates these principles of the Constitution * * The assessment of injuries and benefits, is in the nature of a judicial proceeding, and must be surrounded with some sort of judicial sanction; besides, the just compensation required by the Constitution is a matter of substance, and not of form, and which this proceeding utterly ignores.” .
In reaching his conclusions, Judge Breese has so fully sustained his decisions by authority, that we need only refer to them as well as the decision itself, as fully in accordance with the conclusions at which we have arrived, that the assessment of the property of Peay by its frontage on Markham Street, irrespective of its cash value, was unconstitutional and void.
The Chancery Court erred in overruling Peay A demurrer to the bill of complaint, and in rendering judgment thereon for plaintiff.
Let the judgment be reversed and set aside with costs, and the bill dismissed. | [
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English, Ci-i. J.:
This was an action at law in the Circuit Court of Monroe County, brought by William J. Walton as guardian of D. P. and J. C. Stibbs, minors, against William Black, for the purchase money of lands.
The complaint alleges, in substance, “that plaintiff is the guardian of the above named minors, who - are the heirs at law of Joseph C. Stibbs, deceased. That on the 19th day of February, 1876, pursuant to orders of the.Monroe Probate Court, he caused to be exposed to public sale, to the highest bidder, upotí a credit of six months, as the property of his said wards, the east half of section three in township three north, of range two west, containing 326.55 acres; and the northwest quarter of the northwest quarter of section four in the same township and range, containing 42.63 acres. That one W. J. Daley acted as auctioneer at said sale. That defendant bid and offered to pay for the tract first above described $489.75, and for 'the tract last above described $33, and, being the highest bidder, said lands were stricken off to him at the prices above mentioned. That said auctioneer then and there made the annexed memorandum writing of said sale, and signed the name of said purchaser. That defendant afterwards refused to make his note for said purchase money. That defendant was thereupon let into.possession of said premises, and has continued ever since in the undisturbed possession thereof. That on the 14th day of September, 1876, at, etc., the plaintiff tendered to the defendant a sufficient deed of conveyance of the same and demanded said purchase money. That said sale had been previously reported to said Probate Court, and had been confirmed, and the plaintiff had been authorized to execute a deed to said defendant. That defendant has not paid the aforesaid purchase money of said lands, nor any part thereof.” Prayer for judgment against defendant for $522.75, with interest from the 19th of August, 1876, etc.
The defendant filed an answer in substance as follows:
“Defendant says, for answer, that at divers times before the day of sale mentioned in the plaintiff’s complaint, the plaintiff represented to defendant that the land to be sold wras the property of the Stibbs’ estate, and by such representations lead the ■defendant to believe that if he purchased any of said lands at said sale he would obtain a good title thereto. That relying upon the representations of the plaintiff, at the sale, he bid the price ■on the lands mentioned in the complaint, as therein stated. Admits that he never executed his notes therefor, but denies that he had possession. of said lands or any part thereof. He says that after bidding on the lands upon the representations of the plaintiff, and before any notes were drawn for the purchase money, or any deed or bond -was drawn, or defendant let into possession of said lands, he discovered that the Stibbs’ estate had no title whatever to said lands save the 42.63 acres in section four as 'mentioned; and that the plaintiff, as guardian of the heirs of said estate, had no right whatever to sell the same, and •would convey no title thereto; but that the 326.55 acres in section three was the property of E. H. Porter, as will appear from a deed herewith filed as Exhibit A, reference being had thereto. That he, upon the discovery of said facts, refused to execute any nptes, or to accept from plaintiff any deed or bond for title to .said land; and denies that plaintiff, before the commencement of this suit, or at any other time, ever tendered him a sufficient deed to said lands; and if he ever tendered a deed of any kind, asks that the same, or a copy, be produced in court.
“And, further answering, says that he is now, and has been at all times, willing to pay to the plaintiff the amount due upon the land in section four whenever he will execute to defendant a sufficient deed thereto, and is now ready and offers to pay said amount in court.”
•The plaintiff demurred to the first paragraph of the answer, in short upon the record by consent, the court sustained the demurrer, and gave the defendant leave to amend, which he declined to do.
The cause was submitted to the court on issue to the second paragraph of the answer, and finding and judgment in favor of plaintiff for the sum of $527.75, being the amount of plaintiff’s-demand, including interest from the 19th of August, 1876.
The defendant appealed.
No motion for a new trial having been made in the court below, and no bill of exceptions taken, the only question presented for decision by this court, is whether the court below erred in-sustaining the demurrer of appellee to the first paragraph of the answer of appellant.
A sale made by a guardian of his ward’s land, under an order of the Probate Court, is a judicial sale, and, as a general rule, a purchaser at such sale acts at his peril. The guardian sells-such estate only as his ward has in the land, and the purchaser must make inquiry as to the title, and the authority of the guardian to sell. The guardian makes no warranty of title for his-ward, and if he covenants for title, he only binds himself personally. The rule caveat emptor applies to such sales. McCurdy et al. v. Guynn et al., ante.
But in this case the substance of the appellant’s answer is, that he was induced to bid for the land by the false representations of the guardian that he would get a good title; and ascertaining after the sale that the wards had no title to the tract of •326.55 acres bid off by him, but that the title was in another person, and that the guardian had no right whatever to sell the land, he declined to execute his note for the sum bid by him, and did not take possession of the land. These allegations of the answer, admitted to be true by the demurrer, set up a good defense to so much of the complaint as was for the sum bid for the tract to which the allegations relate. Rice et al. v. Richardson, adm’r, et al., 3 Ala., 428; Ray v. Virgin, 12 Ill., 216; Atwood’s Adm’r, v. Wright et al., 29 Ala., 346.
It is not averred in the answer that the representations made by appellee to appellant as to the title to the land, were fraudulently made, in other words that appellee knew them to be false when he made them.
In an action at law by a purchaser against a vendor of real or personal property for false representations as to the title, quality or quantity of the property, the plaintiff must allege and prove that the vendor knew that the representations were false when he made them. Plant v. Condit, 22 Ark., 454; Morton v. Scull, 23 Ark., 289; Benjamin on Sales, 345.
Had appellant perfected his bid for the land, and brought an action for damages against appellee for such false representations, he would have been obliged to prove that they were false, and that appellee knew them to be false and hence fraudulent when he made them.
But this is not an action by appellant against appellee for deceit in the sale, but appellee is seeking by this suit to recover of appellant a sum which he was induced to bid for the land by his false representations as to title.
The consequences to appellant were the same whether appellee knew the representations to be false or not. The case, in brief, is that appellee represented to appellant that if he would bid for the land at the sale, he would get a good title; confiding in such representations appellant was induced to bid, but, ascertaining-them to be untrue, and that he would get no title to the land, he-refused to pay his bid.
Equity would not compel appellant to accept a worthless deed,, and pay his bid, merely on the ground that appellee did not know that the representations were false when he made them ;• nor will a court of iaw permit appellee to recover a sum of' money which he induced appellant to bid for the land by such false representations, upon the excuse that he did not know them, to be false.
Whether the party misrepresenting a material fact knew it to be false, or made the representation without knowing whether it was true or false, is wholly immaterial, for the affirmation of' what one does not know or believe to be true, • is equally, in morals and law, as unjustifiable as the affirmation of what is-known to be positively false. And even if the party innocently misrepresent a material fact, by mistake, it is -equally conclusive, for it operates as a surprise and imposition on the other party, 1 Story Equity, sec. 193; Davis, adm’r, v. Heard, 44 Miss., 58; Wilcox v. Iowa Wesleyan University, 32 Iowa, 374; Blackman v. Johnson, 35 Ala., 252; Bennett v. Judson, 21 New York, 238; Smith et al. v. Mitchell, 6 Georgia, 458; Oswald v. McGehee, 28 Miss., 351; 1 Perry on Trusts, sec. 171; Rawle on Covenants for Title (4th ed.), p. 573, and notes.
The fact that appellee was -acting as guardian in making the-sale does not prevent the application of the rule.
If his wards had no title to the land, they will lose nothing by his failure to recover in the action; and he should not be permitted to. make money for them by obtaining an order from the-Probate Court to sell land to which they had no title,- and then inducing appellant to bid for it by representing to him that he-would get a good title.
Having charge of the property of his wards, real and personal, he would be presumed to have a better knowledge of what property they owned, and of the nature of their title than strangers. He should have acted with fairness before and at the sale, and offered to sell only such title as his wards had in the lands. Gantt’s Dig., sec. 3071. He should not have represented their title to be good in order to induce bidding, unless he knew it to such. To represent that the bidder would -get a good title to the land, when, in fact, as alleged by the answer, there was none in his wards, and he could convey no title whatever, was acting in bad faith, and neither a court of law or equity would aid him to be recover money on a bid induced by such representations. Atwood’s Adm’r, v. Wright et al., 29 Ala., 376, and eases above cited.
The judgment must be reversed, and the cause remanded to the court below with instructions to overrule appellee’s demurrer to the first paragraph of appellant’s answer, and for further proceedings, etc. • | [
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Harrison, J.:
F. N. Littlejohn on the 28th day of September, 1875, filed with a justice of the peace an account againt T. W. P. Wright for §61.50, and an affidavit, as in case of attachment, and, without any process against Wright, sued out a writ of garnishment against A. G. Lewis. The writ of garnishment, which was returnable on the 2d day of October, 1875, was-served on Lewis, and on the return day thereof, Littlejohn filed allegations and interrogatories for him to answer, to which he the same day filed an answer, denying any indebtedness to Wright, or that he-had in his hands any thing belonging to him. And on that day, the 2d day of October, a summons was issued against Wright, which was served on him, and on the 23d day of October, 1875, judg•ment was rendered against him by default.
On the 18th day of October, previous to the judgment against Wright, the plaintiff filed a denial of the truth of Lewis’ answer, and on the 20th day of December following, sued out a summons against him to answer on the 15th day of January, 1875, “the claim of F. N. Littlejohn in the contested garnishment, answered on the 2d day of October, 1875, wherein F. N. Littlejohn is plaintiff and T. W. P. Wright defendant.”
The facts put in issue by the answer and the denial, were tried by the justice, who found in favor of Lewis. Littlejohn appealed to' the Circuit Court, where he obtained a verdict for $61.50, the amount of his judgment against Wright.
Lewis filed a motion in arrest of judgment; the court sustained the motion, and dismissed the case for want of jurisdiction. Littlejohn then appealed to this court.
From the foregoing statement of the case, it plainly appears that the suit was not commenced by attachment, and that the proceedings against the appellee pending the judgment against Wright were unauthorized by law and void. Gantt’s Digest, secs. 388, 419, 423. Leingardt et al. v. Deitz, 30 Ark., 224.
And as no writ of garnishment was issued after the judgment as provided in sec. 2991, Gantt’s Digest, it is equally clear, there was no attachment or seizure of any debt, or any thing belonging to the defendant in the appellee’s hands, and that a judgment against him would not have had the effect to release him from any liability to the defendant.
The court therefore did not err in arresting the judgment and dismissing the case.
Judgment affirmed. | [
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English, Ci-i. J.:
On the 15th of September, 1877, B. F. Walls was indicted in-the Circuit Court of Jackson County, for bigamy, the indictment alleging:
That the said B. F. Walls, on the 10th day of June, 1873, in the county of Jackson, did marry one Maria McDonell, and her, the said Maria, then and there had for a wife ; and the said B. F. Walls afterwards, and whilst he was so married to the said Maria, as aforesaid, to-wit on the. 10th day of May, A. D. 1877, in the County of Woodruff, in the State of Arkansas, feloniously and unlawfully did marry and take to wife one A. E. Blackford, and to her the said A. E. Blackford, was then and there married, the said Maria, his former wife, being then alive; against the peace and dignity of the State of Arkansas.”
The defendant demurred to the indictment, the court overruled the demurrer, whereupon the defendant was arraigned, and standing mute, the plea of not guilty was entered for him.
He was tried at the March Term, 1878.
Oh the trial the State proved by P. S. Woodward that he was a justice of the peace of Jackson County, on the 10th day of June, 1873, and that on that day he married the defendant to Maria McDonell of said county.
The State also proved by Mr. Worley, that on the 10th day of May, 1877, he was a regular minister of the Gospel, and authorized by law to solemnize marriages, and that on said day he married the defendant to one A. E. Blackford, of Woodruff County.
The State also proved by two witnesses that they were acquainted with defendant and said Maria McDonell, and that she was living at and after the date of the defendant’s second marriage on the 10th day of May, 1877.
The defendant introduced his mother, Mrs. Walls, as a witness, who testified that she knew his age perfectly well, and that on the 10th day of June, 1873, he was fifteen years of age, being in his twenty-first year at the time of the trial.
The above being all of the evidence introduced, the court charged the jury:
“ That if they found from the evidence that the defendant married one McDonell on or about the 10th day of August, 1873, ini the County of Jackson, and afterwards, while the said wife was still living, to-wit: on the 10th day of May, 1877, married one Blackford in the County of Woodruff, they would find defendant guilty, and assess his penalty at not less than three nor more than seven years imprisonment in the penitentiary of the State, unless they further found from the evidence, that the said first marriage contract had been pronounced void by the decree or sentence of some court of competent jurisdiction, on the ground of the nullity of said marriage contract.”
On behalf of the defendant the following instruction was moved, which the court overruled:
“If the jury find from the evidence that the defendant was under the age of seventeen years at the time of his first marriage, the said marriage is void, and the subsequent marriage of the defendant is not bigamy, and you will acquit the defendant.” The jury found the defendant guilty of bigamy, and fixed his punishment at three years in the penitentiary.
The defendant moved for a new trial on the grounds:
First — That the court erred in giving the instruction asked for the State.
Second — In refusing the instruction moved for defendant.
Third — That the verdict was contrary to law and the evidence.
The court overruled the motion, and the defendant took a bill of exceptions, 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. The criminal or bigamous marriage, with which appellant was charged, having occurred in Woodruff County, he could not be legally indicted in Jackson County. Scoggins v. The State, ante.
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the county in which the crime shall have, been committed; provided, that the same may be changed to any other county of the judicial district in which the indictment is found, upon the application of the accused, etc.” Sec. 10, Declaration of Rights, Constitution of 1874. Dougan v. State, 30 Ark., 41.
In overruling the demurrer to the indictment, and in charging the jury, the court below was, perhaps, mislead by a section of the bigamy statute.
The first section provides that: “ Every person having a wife or husband living, who shall marry any other person, whether married or single, except in the cases specified in the next section, shall be adjudged guilty of bigamy.” Gantt’s Dig., sec. 1312.
The next section enumerates the exceptions. Id., sec. 1313.
Then follows this section:
“An indictment may be found against a person for a second, third, or other marriage herein provided, in any county in which such person may be apprehended, and the like proceedings, trial, judgment and sentence may be had in such county as if the offense had been committed therein, the venue in such indictment being immaterial.” Id., sec. 1314.
There was a similar statute in England (9 Geo. 4, C. 31, S. 22), but the power of Parliament to regulate the matter of venue in criminal cases, was not limited by a paramount written Constitution as the legislative power is in this State. Regina v. Whilley, 1 Carnington & Kirwin, 150; 1 Arch. Crim. Prac. & Plead. (6 ed. Waterman), p. 74.
The legislature has no more power to provide that a man be indicted for bigamy in any county where he may be aj>prehended, regardless of the county in which the offense may have been committed, than it has to make a like provision as to murder, or any other crime. The constitutional provision is the paramount law, and cannot be disregarded. The second marriage being void, the parties might be indicted for adultery in any county where they might be found cohabiting as husband and wife, if the law so provided, but not for bigamy.
II. . On a trial for bigamy, the State must prove the first marriage, no matter where, and the second, or criminal marriage within the county where the indictment was found, and that the first wife was living at the time the bigamous marriage occurred, and then the burden is on the defendant to prove that he is within some of the exceptions of the statute. Of course the rule is the same if a Avoman be indicted for bigamy. 2 Bishop Crim. Pro. 882-3-4; S ate v. Abbey, 29 Vermont, 60; 3 Greenleaf’s Evidence, secs. 204, 207-8.
The exceptions made by the statute are:
1. When the first Avife or husband has been absent for five successive years, without being lcnoivn to the accused Avithin that time to be living.
2. Where the first Aidfe or husband has been absent from the United States for the space of five years.
3. Where the former marriage has been dissolved by a court of competent authority.
4. When she former marriage has been pronounced void by the decree or sentence of a court of competent authority, on the ground of the nullity of the marriage contract.
5. Where the former marriage contract is Avithin the age of legal consent, and has been annulled by a decree of a court of competent authority. Gantt’s Dig., sec. 1313.
Sec. 4172 of Gantt’s Digest proAddes that: “Every male Avho shall have arrived at the full age of seA^enteen years, and every female who shall have arrived at the full age of fourteen years, shall be capable in laAV of contracting marriage ; if under those ages, their marriage is void.”
But sec. 4174 provides that: “ When either of the parties to a marriage shall be incapable, from want of age or understanding, of consenting to any marriage, or shall be incapable from physical causes of entering into the marriage state, or where the consent of either party shall have been obtained by force or fraud, the marriage shall be void from the time its nullity shall be declared by a court of competent jurisdiction.”
So much of this section as relates to want of age, harmonizes with the fifth exception in the bigamy statute, which relates to marriages within the age of legal consent.
The appellant proved, by his mother, that when he was first married, he was only fifteen years of age — an overgrown boy no doubt — but he failed to prove that the marriage had been annulled by a decree of a court of competent authority, as required by the bigamy act.
By the common law, if he did not disaffirm the marriage on reaching the age of legal consent, but cohabited with the wife after arriving at such age, it would be an affirmance of the marriage contract. Bishop on Marriage and Divorce, sec. 199, 195-6-7; Tyler on Infancy and Coverture, p. 130, etc.; 2 Kent Com., Marg. p. 78, etc.
The court below did not err in refusing the instruction moved in behalf of appellant.
But the court below should have sustained the demurrer to the indictment, because upon its face it appeared that the offense was not committed in Jackson County.
The judgment must be reversed, and the cause remanded with instructions to the court below to hold appellant to answer an indictment in the Woodruff Circuit Court, should the grand jury of that county prefer an indictment against him for that offense, and if not, to be discharged by that court. Gantt’s Digest, ' sec. 1838. | [
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English, Ch. J.:
This suit was commenced the 22d March, 1869, on the Chancery side of the Circuit Court of White County, by James A. McCauley and wife, Nannie A. (formerly Bond), and James R. Bond.
In the original bill, Andrew B. Guynn, who claimed title to the lots in the Town of Searcy, which are the subject of litigation, was made defendant.
By an amended bill, Pitchigrew T. Quarles and wife, Emily S., and Wm. G. Turner, representing (as alleged) the estate of James Walker, deceased, under whom plaintiffs claimed the lots, and Robert J. Rogers, a tenant of Guynn’s, were made defendants.
The object of the original bill was to set aside a sale of the lots made to Guynn by John W. Bond, as guardian of plaintiffs, James R. Bond and his sister, Mrs. McCauley, etc.
The amended bill was framed with the double purpose of setting aside the sale, and establishing the legal title to the lots in the plaintiffs as against the defendants representing the estate of James Walker, etc.
The canse was heard on the 6th of February, 1874, on the pleadings and evidence, and final decree rendered in favor of the plaintiffs in accordance with the prayer of the amended bill.
Guynn and his tenant, Rogers, obtained the allowance of an appeal from the decree, November 3d, 1874. None of the other defendants appealed.
It is probable that the judge of the court below (Whytock), treated the order of sale, procured, or attempted to be procured, by John W. Bond, as guardian, etc., from the Probate Court of White County, as null and void, because made during the civil war, inasmuch as the decree styles the court that made the decree “a Confederate Probate Court.”
It seems the order of sale was made 3d of March, 1863, when the war was flagrant, but the order was not on that account void. See Berry, adm’x. et al. v. Bellows, adm’r., 30 Ark., 198, where this subject was fully discussed.
I. We will first enquire whether the probate order of sale, and the conveyance to appellant, Guynn, made by the guardian under the order, can be treated as valid in this suit, and as vesting in Guynn any title to the lots in controversy.
The amended bill, after stating the facts relating to the title of plaintiffs, alleges, in substance, that about the 2d March, 1863, John W. Bond, the father of said James R. and Nannie A., filed a petition in the Probate Court of White County, praying to be appointed their guardian, and for authority to sell the lots in controversy — Lots Nos. 1, 2, 11 and 12, in Block 11, in the Town of Searcy. Whereupon it was ordered that said petition be granted.
That said petition was not verified by the affidavit of any one, and did not disclose any sufficient reason for such sale, nor was any reason shown by the testimony of any witness.
That said plaintiffs were then both over the age of fourteen years, but this fact -was not disclosed in the petition, and they had no notice of said proceedings, and no opportunity to oppose them, or to select their own guardian.
■ That no bond as guardian was ever-filed by said John W. Bond, no legal entry made of his appointment as such guardian, and that he was never legally appointed guardian, etc. ■
That said John W., without other authority than as above . shown, did, .on the 18th July, 1863, in pursuance of a contract entered into previous to said probate proceedings,- by deed of that date, convey, as such pretended guardian, said lots one and two (and others not in controversy), to one Nathaniel M. Mulhollan.
That afterwards, on the 5th of October, 1865, Mulhollan, by deed of release and quit claim of that date, reconveyed to said John W. all his right, title and claim to said lots, etc.
That on the 24th December, 1866, said John W. Bond, by deed of that date, conveyed all of the lots in controversy to defendant Guynn, who had ever since had possession of them by himself or tenants.
A transcript b£ the proceedings in the Probate Court and copies of the above deeds, are made exhibits.
It is also alleged that John W. Bond sold the lots for Confed.erate money, and that none of the proceeds of sale ever came to the hands of plaintiffs, or to the hands of any person for them, either before or since their arrival at the age of majority.
That the sale of the lots made by their pretended guardian was never reported to the Probate Court, nor by it'approved.
The petition of John "W. Bond to be appointed guardian, etc., as it appears in the transcript exhibited with the bill, is addressed to the Hon. Milton Sanders, Judge of the Probate Court of White Countyand states in substance and effect, that in the year 1849, James Walker, late of said county, gave to the two children of said petitioner, Nannie A. and James R. Bond, Lots Nos. 1, 2, 11 and 12, in Block 11, in the Towm of Searcy; whereupon the petitioner made various and valuable improvements upon the lots. That in consequence of his leaving the Town of Searcy, and from the condition of the improvements alluded to, they would soon begin to decay, and ultimately become valueless. He therefore prays the Probate Judge to appoint him guardian for the said children, and give him, by an order of the- court, authority to. sell and dispose of said lots to the best interests of his said children. • ■
It seems the petition was filed 2d March, 1863, but it does not appear to have been sworn to.'
The order of the Probate Court made upon the petition, as it appears in the transcript exhibited with the bill, is as follows:
“John W. Bond, Guardian :
“Comes John W. Bond, guardian of Nannie A. and James R. Bond, and presents his jjetition to the court, which petition is in the words and figures as follows, to-wit(Here the petition is copied.)
“After a careful examination, and on due deliberation had in the premises, it is hereby ordered and decreed by the court that petition be granted said guardian.”
It .seems that this order was made on the 3d of March, 1863.
The deed from John W. Bond to Mulhollan dated 18th July, 1863, recites an order of the Probate Court authorizing him, as guardian of his minor children, Nannie A. and James R., to sell the lots therein described, and proceeds to convey to Mulhollan in his capacity as such guardian, for the consideration of $1000, Lots Nos. 1, 2, 3, 4, 5, 6, 7 and 8, in Block 11, Moore’s Addition to the Towm of Searcy.
The deed of Mulhollan back to Bond, dated 5th October, 1865, for the consideration of $1, remises, releases, etc., to Bond all the right, title, claims, etc., vested in Mulhollan by Bond’s deed of 18th July, 1863.
The deed of Bond to Guynn, dated 24th December, 1866, recites an order of the Probate Court, authorizing Bond, as guardian, etc., to sell Lots Nos. 1, 2,11 and 12, in Block 11, etc., as the property of his children and wards, Nannie A. and James R.; the sale and conveyance by Bond, as guardian, under the order of court, to Mulhollan, 18th July, 1863; the deed of release and quit claim made by Mulhollan to Bond, 5th October, 1865; and then Bond proceeds, in his own capacity as such guardian, to convey said lots to Guynn for the consideration of $1.
Guynn, in his answer, in effect, admits the application of Bond to be appointed guardian, etc., the order of the Probate Court made thereupon, etc., and that the transcript of the record, etc., exhibited with the bill, contains substantial copies of the petition, order, etc. He admits also the execution of the several deeds set out in the bill, and made exhibits.
He does not aver, nor is it in any way shown, that any other fact appears of record in the Probate Court in relation to the appointment of Bond as guardian, or the sale of the lots by him, than such as are shown in the transcript from the record exhibited with the bill.
Can the order of sale, and the sale and conveyances made under it, upon the facts disclosed in the record before us, be treated as valid in this proceeding?
By the Constitution in force at the time the order in question was made, it was provided that the Probate Court should have such jurisdiction in matters relating to the estates of deceased persons, executors, administrators and guardians, as might be prescribed by law, etc.
The statutes in force at the time the order was made in relation to the appointment, qualification, etc., of guardians for minors, are contained in Gould’s Digest, chap. 81.
The Probate Courts were empowered to appoint guardians for minors, etc., sec. 1.
See. 5 declares that: “The father shall be the natural guardian of his child, and shall have the care of his person and education, but-in no case shall he have the care and management of his estate, unless he be appointed by the court for that purpose, when he shall give bond and security in the same manner as other guardians.”
By sec. 10, every person appointed guardian, is required, at the term of the court at which he may be appointed, to enter into bond, with security, to his ward, in a penal sum to be determined by the court, and the condition of the bond is prescribed.
By section 11, the bond must be filed in the office of the cle.rk of the court, and a copy is made evidence.
By sec. 12, “ No entry of the appointment of a guardian shall be made, until bond and security be given, and the same be approved by the court.”
By sec. 28, “ No person shall have any right or authority over the property of a minor, unless he shall have been appointed by the court, etc.”
By act, 23d December, 1846, the Probate Courts were empowered to grant orders to guardians to sell real estate of their wards. This act is embraced in secs. 180 and 181, chap. 4, Gould’s Digest, p. 131.
■ “Sec. 180. The Probate Court shall have power, upon the proper affidavit being filed, as hereinafter provided for, to grant orders to executors, administrators and guardians, to sell any, or all real estate belonging to an estate not otherwise provided for.
“Sec. 181. The ■ executor, administrator or guardian, who may make application for the sale of real estate, shall first make affidavit that the said real estate cannot, under present circumstances, be available to the. estate, and that said estate will be benefitted by said sale, showing the reason why; and shall present the affidavit of some disinterested person of known good character, verifying the same fact set forth in his or their affidavit ; whereupon, the court may grant an ordei\ for the sale of said real estate, which sale shall be conducted as the court may direct, and upon terms approved by the court.”
The father of the minors had no right to sell their real estate until he was duly appointed their guardian, and obtained an order of the court authorizing him to make the sale.
The Probate Court had no jurisdiction to grant the father an order to sell the lots of his minor children, until he was duly appointed their guardian. The first step in the .actual jurisdiction of the court over the estate of the minors, was the appointment of their guardian. Sturdy and wife, et al. v. Jacoway, 19 Ark., 515. The appointment was not complete until the applicant entered into bond. The statute declares that no entry of the appointment of a guardian shall be made until bond and security be given, etc.
The transcript of the record of the Probate Court exhibited with the bill, shows that the father applied to be appointed guardian of his two minor children, etc., the petition is copied in the entry, and it is then stated that the petition was granted by the court. There is no indication in this record entry that the applicant gave any bond, nor is it otherwise shown. On the con-, trary, it is averred in the bill that he gave no bond, and this allegation is not specifically denied by the answer of defendant Guynn.
Under the Code practice every material allegation of the complaint not specifically controverted by the answer, is taken-to be true. 'Gantt’s Digest, sec. 4608.
It is true that in the beginning of the answer of Guynn, he- ■ states that he “denies each charge and allegation in said complaint contained, except as hereinafter specifically admitted, explained or qualified.”
The answer must contain a denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof, sufficient to form a belief. Gantt’s Digest, secs. 4569, 4608.
A material allegation in a pleading, is one essential to the claim or defense, and which could not be stricken from the pleading without leaving it insufficient. Ib. sec. 469. A general denial of the allegations of the bill is not sufficient.
To prevent a material allegation of the bill from being taken as true, it must be specifically denied by the answer, or the defendant must state that he has not sufficient knowledge or information in regard to the fact alleged to form a belief as to whether it is true or not true. Newman Plead, and Prac., 509,. 515.
The next step required to empower the Probate Court to make an order authorizing the guardian to sell real estate of his ward, is for the guardian'to make and present the affidavit, and the supporting affidavit of some other person, as prescribed by the statute above copied.
There is no indication in the transcript of the record of the Probate Court made an exhibit to the bill, that any such affidavit, by the guardian or any other person, was presented with the application for the order of sale, and it seems that the petition, which is copied in the entry, was not sworn to.
Indeed it is inferable from the terms of the entry, that the court acted upon the petition alone, supported by no affidavit.
The bill alleges that the petition was not verified by the affidavit of any one, nor the testimony of any witness taken, and- these allegations are'not denied by the.answer of Guynn, otherwise than in the general mode above indicated.
When an application is made by a guardian for an order to sell the real’estate of his ward, and the affidavits required by the statute are presented, the court may grant an order for the sale, which sale is to be conducted as the court may direct, and upon terms approved by the court. Such is, in effect, the language of the statute.
In this case Bond presented his petition for the double purpose of being appointed guardian for his two minor children, and for an order to sell their real estate. And the court simply ordered that “the petition be granted,” making no directions whatever as to the manner or terms of sale.
The order was made, it seems, on the 3d of March, 1863. On the 18th July following, Bond sold and conveyed to Mulhollan two of said lots named in his petition, and others not named, for $1000, in Confederate money it is alleged and not denied.
On the 5th of October, 1865, Mulhollan reconveyed the lots to him, by quit claim deed; and on the 24th December, 186.6, more than three years after the Probate Court made the order of sale, he conveyed to Guynn the four lots named in the petition for $1.
It is alleged in the bill, and not denied in the answer of Guynn, otherwise than as above indicated, that the sale was not reported to the Probate Court, nor approved by it.
It is also alleged in the bill, and not directly denied by the answer, that appellees received none of the proceeds of the sale.
A sale made by a guardian, under an order of the Probate Court, is a judicial sale, and not complete until reported to and confirmed by the court. Rorer on Judicial Sales, p. 3-10, and cases cited.
In Sturdy and wife, et al. v. Jacoway, 19 Ark., 499, the leading case on the subject of sales of real estate under orders of the Probate Court, the substance of the ruling is, that the order of the Probate Court for the sale of the real estate of a deceased person, is a judgment in rem; and, being the judgment of a court of competent jurisdiction, upon a subject within the scope of its legitimate powers, imports a necessity for the sale, and cannot be attacked and held for naught collaterally upon the ground that the court erroneously exercised its powers; nor can the proceedings and sale, under such judgment or order, when reported to and confirmed by the Probate Court, be impeached collaterally; nor the title called in question for any omission in obtaining the order of sale, or other irregularity.
The case was ejectment by the heirs .of the deceased owner of the land against the purchaser at the administrator’s sale, made under order of the Probate Court, who relied upon the order of sale and the admistrator’s deed for title.
The sale seems to have been made under the statute above copied, and all of the material facts requisite to give the Probate Court actual jurisdiction over the land, and to make the order of sale, -were made to appear.
There was an administrator; he made application for the order of sale, by sworn petition supported by the affidavit of another person; the court ordered the sale, and directed its mode and terms, and the sale was reported to the court, and approved by it. There were errors in the proceedings, which might have been reviewed on appeal, etc., but they were not such as to make the sale void.
In Fleming v. Johnson et al., 26 Ark., 421, the ruling in Sturdy and wife et al. v. Jacoway, was followed.
That case involved the validity of a guardian’s sale made under an order of the Probate Court. The order was made under the same statute which we are considering. A subsequent guardian brought ejectment for the land against the person who purchased from the first guardian under the-order of sale. The court directed the guardian to sell at private sale, for not less than a sum fixed in the order. The sale was made, reported and confirmed by the court. There were errors in the proceedings, but this court held that the material jurisdictional facts appeared by the record of the Probate Court, that irregularities in the sale were cured by its confirmation, and that the sale Avas valid.
The appointment of the guardian Avho made the sale Avas questioned, but held to be legal; and the record entry of the order of sale'showed that he presented his petition for the order, verified by affidavit, etc. ' .
So in Montgomery and wife v. Johnson et al., 31 Ark., 74, the material jurisdictional facts appeared, and the sale Avas reported to and confirmed by the Probate Court.
In this case it appears that the guardian gave no bond, and hence he Avas not legally appointed.; that his petition for the order of sale Avas not verified by any affidavit; that the court gave no direction as to the mode or terms of sale; that he sold two of the lots described in his petition, and six others, not embraced in the petition, for $1000 in Confederate money; that all of these lots Avere aftenvards reconyeyed to him by quit claim deed, and that after the lapse of thre'e years from the date of the order of sale, he'conveyed the four lots embraced in the order to' appellant Guynn for a nominal sum ; that the sale was not reported to the Probate Court, nor confirmed by it, and that -his Avards received none of the proceeds of the sale.
Upon all these facts, taken together, Ave do not see how a Court of Chancery can treat the sale as valid, in a proceeding like this to set it aside.
II. Appellant Guynn, admits in his answer, that Bond, as guardian, etc., by deed bearing date 24th December, 1866, conveyed the lots in controversy to him, and that he took possession of them under and by virtue of said deed, and has since held possession of them by his tenant Rogers, and he pleads and relies upon the statute of limitations of five years'1 applicable to judicial sales.
Though the sale was not confirmed by the Probate Court, it is probable that an adverse holding under the deed of the guardian for the full period of limitation, might be a bar to the recovery of the lots. Gowan v. Jones, 10 Sm. and Mar., 164.
But the statute of five years applicable to judicial sales, (Gantt’s Digest, sec. 4116), saves to minor and persons of unsound mind the period of three years after such disability shall have been removed.
It is stated in the bill, that James R. Bond was not over one year and Nannie A. not over three years of age, in the year 1849, when James Walker gave them the lots in controversy, and there is in the transcript a written admission by the counsel of appellants that their ages are correctly stated in the bill.
Neither of them had been of age, therefore, as long as three years when the suit was commenced (March 22d, 1869), nor had five years transpired from the date of the deed under which Guynn took possession of the lots.
III. Guynn also sets up in his answer, and relies for title upon a tax sale and deed.
In his answer he states, in substance, that after he took possession of the lots in controversy, and after the claim of the plaintiffs had been spoken of, he, having become bankrupt, failed to pay the taxes assessed upon the lots ■ for the year 1868, and they were returned -by the Collector of White County delinquent ; and afterwards 'duly advertised by him for sale' for taxes' charged upon them for that year, and the penalty and costs, and were sold therefor on the 2d of August, 1869, and bid off by John A. Cole for the sum of $24.66, who paid his bid, and received from the Collector a certificate of purchase. That on the 15th of August, 1871, defendant becoming able to do so, purchased the lots of Cole for the sum of $50, and that Cole assigned to him, in consideration thereof, said certificate of purchase ; and that On the 19th of February, 1872, he presented the certificate to the Clerk of White County, and he executed to him a tax deed for the lots, Avhich is made an exhibit to his answer; Avhereby he claims to be the rightful OAvner of the lots, and entitled to the rents and profits thereof.
The tax deed recites that the lots Avere assessed in the name of Guynn for the year 1868, and sold upon his failure to pay the taxes, etc.
On this branch of the case two depositions were taken.
B. D. Turner deposed that he was present at the tax sale, and when Cole made his bid, he announced that he had bid for Guynn, and no one bid against him. That Avithin a year after the sale, he called on Cole, AA'ho was clerk of the county, and, as agent and attorney of plaintiffs, offered to redeem the lots, but Cole refused to permit the redemption, on the ground that plaintiffs had no such title as Avould authorize them to redeem, etc.
John A. Cole deposed that he Avas Guynn’s agent in the year 1869 ; and that he turned over the rents collected from the lots in controversy for that year to the attorneys of Guynn in payment of their fees. That at the time of the tax sale, he had no money of Guynn's in his hands, out of which to pay the taxes on the lots ; and bought the lots at the sale in his own name. That after the expiration of two years from the sale, still remaining the agent of Guynn, and having come into possession of money of his sufficient to reimburse himself for the taxes, he transferred to him on the 15th August, 1871, the certificate of purchase for the exact amount he had originally paid out for the lots; and on the 19th February, 1872, being county clerk, he executed to him a tax deed upon the certificate, and delivered the deed, after recording it, to his attorneys.
On cross-examination, he deposed that he had been Guymfis agent for renting the lots, and other property, collecting the rents, and paying his taxes ever since the year 1868. That about the beginning of the year 1869, he rented the lots for that year at $125; for the year 1870, at $100; for the 1871, at $150, and for the year 1872, at $150, but allowed $50 for repairs. Out of the rents he had paid the taxes, and about $80 for repairs on the premises. He transferred the certificate of purchase to Guy.nn, instead of marking the lots redeemed, for the purpose of strengthening his title, etc.
The lots were sold for taxes after this suit was commenced, but Guynn did not file his answer until after he obtained the tax deed.
He was, by his agent, in possession of the lots, under color of title, and receiving the rents and profits, which were more than sufficient to pay the taxes assessed upon the property. It is manifest that he permitted the lots to be sold for taxes, purchased by his agent, Cole, and obtained from him a transfer of' the certificate of purchase, after he had been re-imbursed, by the collection of rents, the money paid upon his bid, and procured from him the tax deed for the purpose of strengthening: his title to the lots. Under such circumstances, he acquired no' valid title to the lots by the tax deed. Pleasant et. al. v. Scott et al., 21 Ark., 370; Jacks v. Dyer et al., 31 Ib., 344: Frierson, ex’r, et al. v. Branch, ex’r., 30 Ib., 464; Pettus & Glenn v. Wallace et al., 29 Ib., 476.
IV. Appellant, Guynn, also relies upon the defense 'of innocent purchaser, etc.
In his answer he states that he purchased the lots in good faith for a valuable consideration, which was all paid, believing. that Bond and Mulhollan were legally authorized to sell and-convey the same, and without any knowledge or suspicion that the title to the lots was claimed to be imperfect, or of any illegality in the transaction, or any fraud upon the rights of plaintiffs, etc.
He avers that the re-conveyance by Mulhollan to Bond was without consideration, and made by the former for the purpose of avoiding the making.of a deed directly to him. That Mulhollan was in truth and in fact his vendor, and received the .purchase money of him for the lots.
In his deposition, he states that he purchased the property in controversy from Mulhollan in 1865, for which he paid him about $1500 in cotton then in Memphis; and at the time of said purchase, and until after the payment of the- whole of the purchase money, he had no notice of plaintiffs’ claim to said property. That when the conveyance was to be made, Mulhollan conveyed back to Bond, from whom he had purchased, and Bond executed a deed to him.
The deed of Bond to Mulhollan embraced but two of the lots in controversy, as we have above seen, and was made by him in ' his capacity as guardian.
So the deed of Bond to Guynn was made by the former in his capacity as guardian, for a nominal consideration and without warranty of title.
. - The rule caveat emptor applies to judicial sales. Guynn in accepting a deed from one claiming to sell and convey as guardian, was. obliged to enquire, and he had the means of ascertaining, by what authority he acted, and he took the' conveyance at his peril. Rorer on Judicial sales, sec. 450; Worthington adm’r. v. McRoberts et al., 9 Ala., 297; Bingham et al. v. Maxcy, 15 Ill., 295
V. The counsel for appellants submit that appellees must recover upon the strength of their own title, and that they have failed to show in themselves any such title as a Court of Equity will enforce.
In the amended bill, the title of the plaintiffs is stated in substance as follows:
About the year 1849, James Walker, since deceased, who was the owner in fee of the four lots in controversy, feeling greatly attached to plaintiffs, James R. and Nannie A., who were the children of his son-in-law John W. Bond, (whose former wife was a daughter of said James Walker) and regarding said plaintiffs in the light of his own grand children, in consideration of his love and affection for them, verbally gave them • said lots. At the time of said gift said plaintiffs were very young, James R. not over one year, and Nannie A. about three years of age. In pursuance and completion of said gift, said donor delivered said lots to them or to their father for them, and put them in possession thereof; and their father for them erected a valuable residence and other tenements and improvements thereon, and he and plaintiffs resided together on the lots from thence until about the month of January, 1856, when they 'let them to a tenant, and moved to another place, but continuously from the time of taking possession in 1849, to the 11th day of July 1863, they had actual possession of said lots, occupying them themselves, or by tenants.
James Walker died in January, 1852, having executed no deed to plaintiffs for the lots, leaving him surviving his widow, Mary Walker, a son, John M. Walker, a daughter, Mary Walker, who had intermarried with one Alexander Walker, and a grand ' daughter, Emily S. Walker, the daughter of his deceased son, Crawford Walker, as his only heirs and distributees; and'leaving also a will by which (with the exception of three tracts of land which he directed his executors to sell) he devised to his said widow his entire real estate during her life, and in the event of her death before the arrival of his son’John M. Walker to the age of twenty-one years, said real estate was to be equally divided, on his arrival to said age, between him and his said sister Mary Walker and her bodily heirs; and in the event of the death of said John M. Walker without bodily heirs, his entire'interest in said estate to descend to said Mary Walker and her bodily heirs.
The widow of the testator died before the death of John W. Walker, and he died without bodily heirs before attaining the age of twenty-one years. Afterwards Alexander Walker died, and his widow, Mary Walker, about December, 1856, intermarried with one Thomas Watkins; and afterwards, on the-day of-1857, they (Watkins and wife) to perfect said gift of James Walker, executed to said plaintiffs a deed for said lots. After this Mary Watkins died, leaving two children, Alexander Walker, a son by her former husband, and Mary I. Watkins, a daughter by Thomas Watkins. ■ Afterwards, on the -day of-1858, both of said children died, said Alexander dying first.
About.the-day of-1857 or 1858, said Emily S. Walker intermarried with Pichegru T. Quarles.
In the year 1854 or 1855, said Emily S. by her guardian instituted suit in the Circuit Court of White County, against Alexander Walker and his wife Mary Walker, for one half of' the’ personal and real estate of said James Walker, deceased, and upon their death, and the death of said children of said Mary, said controversy being still unsettled, and said Thomas Watkins claiming the interest which had descended to his said child Mary Jane, hé and said Quarles and wife agreed to compromise and did compromise said controversy as to the real estate, by joining in a conveyance, by which they conveyed to one William G. Turner in trust, all the real estate which was owned by and belonged to said James Walker, at the time of his death, to be, by said Trustee, sold and conveyed, to whomsoever said parties, Watkins and Quarles and wife, should in writing request,1 and the proceeds of such sale to be divided so as to give one half to said Watkins and the other half to said Quarles and wife.
That the legal title to the lots in controversy was in James Walker at the time of his death, and by the conveyance last above mentioned, was vested for at least the undivided half, if not for the whole of the lots, in said Turner, as trustee.
That said Emily S., while sole did not, nor have she and her husband since her marriage, executed any deed to plaintiffs for said lots, but refuse to do so, or to authorize said Turner so to do.
The bill then proceeds to state the application of John W. Bond to the Probate Court to be appointed gaurdian of the said plaintiffs, etc., the order of the court, and the conveyances made by him, etc., as above shown, and concludes with a prayer that the deed to Guynn be set aside and canceled, and that all the right, title and claim of the defendants, and each of them, in and to the lots be divested out of them, and vested in plaintiffs, and that they have possession, rents, etc.
Quarles and wife did not answer the bill.
William G. Turner answered, admitting the allegations of the bill to be true, stating that he had no interest in the lots except such as was vested in him as trustee, by virtue of the deed mentioned in the bill as executed to him by Watkins, Quarles and wife, and professing willingriess to release and convey any interest or title held by him to whomsoever the court might direct.
By the manner in which Guynn answered the allegations of the bill, as above indicated, he, in effect, admitted them be true, • and failing to plead the statute of frauds, he-could not avail himself of it as a defense át the hearing. Wynn v. Garland, 19 Ark., 34.
But had he pleaded the statute of frauds, it would have availed him nothing upon the facts alleged in the bill; for although a Court of Chancery will not decree the specific performance of a . mere -voluntary agreement, yet, where a donee enters into possession of land under a parol gift, and makes valuable improvement on the land on the faith of the gift it constitutes a consideration on which to ground a claim for specific performance. Kings heirs v. Thompson and wife, 9 Peters, 204; Haines et al v. Haines et al., 4 Maryland Ch., 133 ; Shepherd v. Berin et al., 9 Gill, 32.
We do not deem it necessary to decide whether Guynn having accepted a deed from Bond as guardian of appellees (James R. and Annie A.,) and gone into possession of the lots under it, could be heard to question their title or not.
It may be a hardship for Guynn to lose the lots after paying ■ Mnlhollan a fair price for them, but he should have required him to perfect his title, and make him a good deed before parting with his cotton. In permitting Mulhollan to quit-claim to Bond ■ and accejDting a deed from him as guardiain, without warranty, • he acted at his peril. He does not occupy the attitude of an innocent purchaser as-against appellees, as we have shown.
The decree is affirmed. | [
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Harrison, J.:
Adolph Bernhold sued George ~W. McLeod before a justice of the peace in replevin for a mare, a mule, and three head of cattle.
The defendant pleaded title in himself. The verdict and judgment wore for the defendant; and the ‘plaintiff appealed to the Circuit Court.
The case was tried in the Circuit Court, by the court without a jury, which found in favor of the plaintiff, and likewise the value of the property, and assessed the damages at $35.
The defendant moved for a new trial, which was refused, and judgment for the property, which had not been delivered to the plaintiff, and for the damages, was rendered against him, and he appealed to this court.
Several exceptions to rulings of the court during the trial were reserved by the defendant, but the matters excepted to were not made grounds of his motion for a new trial, and were consequently waived and abandoned by him as has been repeatedly held by this court.
The only ground assigned was that the finding of the court was contrary to the law and evidence.
The plaintiff read in evidence the following agreed statement of facts:
James A. Bush was the trustee in a deed of trust from Merrill Congress, dated March 25th, 1876, to secure a debt of $100, which the latter owed the defendant. In November, 1876, the debt being due and unpaid, Bush sent J. W. Risk to Congress' house for the property conveyed to him by the deed. Risk took the property against the objection of Lizzie Congress, the wife of the said Merrill Congress, who claimed the same as her separate property, and carried it to Marianna to Bush, and Bush advertised and sold it in accordance with the terms of the deed of trust, and the defendant purchased it at the sale. '
The plaintiff claimed the property and protested against the sale, and after sale brought this suit for its recovery.
That the property mentioned in the deed of trust of the defendant marked “Exhibit PI," and that in the plaintiff's exhibits “A" and “B," consist of one mare valued at $50, one mule at $60, two cows at $15 each, and one steer at $10,- and that that mentioned in the three exhibits named, is the property in controversy, and was all which the defendant purchased at the sale.
That the defendant is the same person who is mentioned in the deed of trust. “Exhibit H," as cestui que trust. And that the bay mare mentioned in the deed of trust offered as evidence in this cause marked “Exhibit O,” is the one mentioned in exhibits “A" and “B" of plaintiff's proof, and “Exhibit H" of defendant's. Hewett & Gov an, for Plaintiff.
M. Anderson, for Defendant.
He then read the “Exhibit A” referred to in said agreed statement of facts, which was a deed from Merrill Congress and Lizzie Congress his wife to the plaintiff of the property in controversy, dated the 17th day of August, 1876, in trust to secure the payment of a debt of $250, which they owed Frank & Bro., and which was, it was stated, evidenced by a written obligation of the same date, but when'payable was not stated, in which deed it was provided that until the debt fell due and default of payment was made, the said grantors should, unless they did or attempted to do something inconsistent with the object of the deed, retain possession and have the use and benefit of the property; and also read the “Exhibit B” referred to in the agreed statement of facts, which was the schedule of the separate property of the said Lizzie Congress, filed in the recorder’s office on the 6th day of January, 1876.
The other exhibits, H and O, referred to in the agreed statement of facts, were not read, and this was all the evidence in the case.
Although it in no way. appears that the debt secured by the deed of trust had become due, or that Congress and wife had forfeited the right to retain possession of the property before the suit was brought; yet, though they were still entitled to the possession, as the legal owner, the plaintiff had the right of possession against all persons, except them, whose possession was his possession, and might sue for its recovery. 1 Perry on Trusts, secs. 328, 330; Hill on Trustees, 274; Wynn v. Lee, 5 Ga., 236; McReany v. Johnson, 2 Fla., 520; Poage v. Bell, 8 Leigh, 604.
The evidence very fully sustained the finding of the court as to the title to the property, the only matter the answer put in issue, and also as to the value, which was found as settled by the agreed statement of facts, but there was no evidence whatever as to the damages occasioned by the detention of the property, and in’respect to them the judgment is erroneous.
In as much, however, as the amount of the error is so small, we will not remand the cause for a new trial, but will correct the error here by a modification of the judgment. | [
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Turner, J.:
This is a bill in equity brought by Thomas D. Radcliff as trustee, against W. F. Owens, as trustee.
It appears that in the year 1873, Tate & Faulkner, who were-cultivating a plantation in Lincoln County, made application to Sledge, McKay & Co., of Memphis, Tenn., for supplies to enable them to cultivate said plantation for that year. That to-secure Sledge, McKay & Co. in making them advances, they executed for their benefit a deed of trust bearing date the 22d of April, 1873, whereby they conveyed to M. Cheatham in trust for the benefit of Sledge, McKay & Co., all of one-half interest in all the cotton crop then being planted, and to be grown by the said Tate & Faulkner, and all their employees during that year on the plantation, more particularly known as the property of the Clay estate, and also all the interest that might accrue to Tate & Faulkner during that year in all the remaining one-half of all the said crop by advancing supplies, or otherwise, and also all the mules then on said plantation, and being used to grow said crop, making forty-three head in all, reciting further that said deed was made in trust for the following purposes, to-wit i That whereas the said Tate & Faulkner were justly indebted, or to become indebted during that year unto the said Sledge, McKay & Co., in the sum of thirty-five hundred dollars ($3500) for supplies already advanced, and supplies, cash and merchandize to be advanced during that year to enable them to raise and grow a crop on said plantation, all of which said indebtedness w;as due and payable on the first day of November thereafter; said deed of trust provided further, that in the event the said Tate & Faulkner should fail to pay all or any part of said indebtedness on the day it becomes due, then the said Cheatham, trustee as afoi’esaid, was thereby empowered to take into his possession all the aforesaid property, all the mules and crops, and after advertising the same for public sale twenty days at the court house door of Lincoln County, giving time, terms and place of sale, sell to the highest bidder for cash all the aforesaid property, and out of the pi-oceeds pay. first all cost of executing said deed, and apply the residue, so far as is necessary, to the payment of all of said indebtedness, and the remainder, if any, to go to the said Tate & Faulkner, or their representatives.
It further appears that at the same time another deed of trust was prepared and soon afterwards executed by Tate & Faulkner to Thomas D. Eadcliff, in trust for the benefit of Thomas 8. Tate for the same property embraced in the first deed, reciting that it is a second deed of trust and is in no manner to interfere with the deed given to Sledge, McKay & Co., and should in no manner be considered a claim until the said first deed should be fully satisfied, and was made in trust for the following purposes, to-wit: That whereas the said Tate & Faulkner were justly indebted to the said Thomas S. Tate in the sum of $4000 or thereabouts, the said Thomas S. being endorser on a certain note due from Tate & Faulkner to Lane, Moore & Co., and now held by the Merchants’ National Bank of Memphis, and being anxious to secure the said Thomas 8. as endorser on said note, the said Tate & Faulkner did for that purpose execute said deed of trust all of which said indebtedness was due the first of January, 1874, • and providing that if the said Tate & Faulkner failed to pay said indebtedness on the day it became due, then the said trustee was empowered to take into his possession all the said property and make such disposition of it as was provided in the first deed.
The said bill after setting forth the execution of the said deeds of trust, alleges that the said second deed of trust was executed and delivered with the full understanding of all parties, that Sledge, McKay & Co. should advance in the way of goods, supplies, etc., to Tate & Faulkner only to the amount specified in the first deed of trust, to-wit: the sum of thirty-five hundred dollars ($3500) and no more, and that under such agreement and understanding Tate & Faulkner executed and 'delivered, and the said Thomas S. Tate accepted the second deed of trust for the purposes therein stated, and that but for the said understanding and agreement the said apuellee would not have accepted and taken the second deed of trust. That Sledge, McKay & Co. advanced other sums in the way of goods, supplies, etc., above the sum of $3500 without the consent of the said T. S. Tate, and was a violation of the agreement between the parties and a gross fraud upon the rights of the said Thomas S. That Tate & Faulkner shipped and delivered cotton covered by said first deed of trust to Sledge, McKay & Co., to the amount of $4700, in the fall of 1873, it being more than was necessary to pay off and discharge said deed of trust. That W. F. Owen, as trustee under said deed of trust, had advertised for sale the 3d day of May, 1874, at the store of Taylor & Taylor, at South Bend, for ' cash in hand, thirty-seven of the mules on the plantation before mentioned, and about twenty bales of cotton, to satisfy a pretended debt under said deed of trust, when the same was actually paid off. That the said sale if permitted to be made, would cause great and irreparable injury to the said Thomas S. Tate, wherefore appellee prays that the appellant be restrained from selling or disposing of said property in any way.
On the 29th of April, 1874, the injunction prayed for was granted by the judge of the Circuit Court.
At the October Term, 1874, of the Lincoln Circuit Court, appellants filed their demurrer to the appellee’s complaint, assigning the following causes:
First — Because said complaint does not state facts sufficient to constitute a cause of action.
Second — Said plaintiff has as appears a full and adequate remedy at law.
Third — Said plaintiff has not made said Sledge, McKay & Co. parties to his bill, when by said bill they are necessary parties defendants.
At the April Term, 1875, of the Circuit Court, said demurrer was sustained by the court, and leave was granted the appellees to amend their bill.
And at the same term of the court, the death of W. F. Owens, trustee in the first deed of trust, having been previously suggested and shown, the cause was revived in the name of M. L. Bell, as trustee of Sledge, McKay & Co., and thereupon the appellees filed their amended complaint. And the said defendant M. L. Bell filed his answer to said complaint and amended complaint, and entered the appearance of the appellants N. R. Sledge, A. H. McKay and "W. M. Sledge, partners under the name and style of “Sledge, McKay & Co.”
The amended bill alleges, that on the 31st of March, 1874, "W. F. Owens, then trustee for Sledge, McKay & Co., commenced in the Lincoln Circuit Court, an action of replevin for the cotton and mules in the oi'iginal bill mentioned; that the sheriff of Lincoln County executed the writ of replevin by taking into his possession the said cotton and mules out of the possession of Thomas G. Tate and L. Guy Faulkner, against whom the action was brought; that said sheriff turned said cotton and mules over to the agent of W. F. Owens, trustee as aforesaid, and that on the 4th of April, 1874, the said Owens, as such trustee, advertised said cotton and mules at public auction for cash in hand, and that said appellee had no adequate remedy at law to save his cestui que trust from great and irreparable injury.
That since the institution of said suit his cestui que trust Thomas S. Tate has had to pay off and discharge the obligation that he was endorser on, and for which endorsement and- to secure him harmless as said endorser, the said deed of trust was made.
That said T. S. Tate never did give his consent for Sledge, McKay & Co. to furnish any more supplies over and above the amount specified in said first deed of trust, except a small bill of some $300, and that the said Tate & Faulkner did ship cotton to Sledge, McKay & Co., sufficient and more than sufficient to pay off their indebtedness to said Sledge, McKay & Co., of the thirty-five hundred dollars aforesaid and the small amount that T. S. Tate gave his consent to, as aforesaid, with prayer as in the original bill and that appellants be enjoined from prosecuting their replevin suit, and that in the final decree the said T. S. Tate be saved harmless.
The answer of M. L. Bell, the appellant and trustee for Sledge, McKay & Co., in lieu of Owens, deceased, who succeeded M. Cheatham as trustee, admits the two deeds of trust, and that the debts therein mentioned were bona fide debts and were due and owing to Sledge, McKay & Co., and Lane & Moore and T. S. Tate, as stated, and that Sledge, McKay & Co. had knowledge of the second deed of trust. Denies they agreed to waive any rights under their deed of trust, or that any of the mules or cotton should go to satisfy the second. deed of trust until their own debt was fully paid off and discharged. That Avhile it is true that the deed of trust for the benefit of .Sledge, McKay & Co. expresses a debt of only $3500, it was well known to Tate, the beneficiary under the second deed of trust that the said debt was for supplies furnished and to be furnished to Tate & Faulkner, and that the said agreement was made at the solicitation of T. S. Tate, the beneficiary in the second deed of trust. That the said T. S. Tate was present at the execution of both deeds of trust and that it was verbally agreed that Sledge, McKay & Co. should advance whatever supplies might become necessary to enable Tate & Faulkner to cultivate their said crop for the mutual benefit of the said Sledge, McKay & Co. and the said T. S. Tate; who expressly agreed to make his claim second and subsequent to the claim of Sledge, McKay & Co, for supplies so furnished. That during the year 1873 it was ascertained that a large sum would be necessary to enable Tate & Faulkner to cultivate their crop, and the. said Sledge, McKay & Co. advanced the same to them by the consent and at the request of said T. S. Tate and his trustee, the appellee, and the said Sledge, McKay & Co. in. pursuance of said agreement at various times advanced the said Tate ■& Faulkner divers other sums of money in excess of the $3500, and supplies to enable them cultivate, gather, gin and ship their crop, amounting in all to.over $7000. That Sledge, ■McKay & Co. did receive from Tate & Faulkner and sold for them cotton amounting to more than $3500. But that they, in shipping, found it necessary to draw large sums of money on said cotton to pay off charges thereon, which said sums Sledge, McKay & Co. were compelled to advance and pay, to secure the said cotton at all; that the whole proceeds of said cotton should not be. credited on the said deed of trust debt, and that the said T. S. Tate and the appellee, his trustee, consented to waive their right and permit the said advances to be charged against said cotton on general account. That said debt secured by said deed of trust for the benefit of Sledge, McKay <§; Co., has not been paid. That on an adjustment between Sledge, McKay & Co. and Tate &■ Faulkner, on the 29th January, 1874, there was found to be due, from the latter to the former, on the debt secured by said deed of trust, the sum of $2249.56, for which Tate & Faulkner executed their note to Sledge, McKay & Co., bearing date the said 29th January, 1874, with '10 per cent, interest from date, which note shows upon its face that it was given for balance of the sum secured by said deed of trust, and remains unpaid.
This appellant files with his answer, as exhibits, a copy of said note and of said deed of trust and of his appointment as trustee.
The defendants, Sledge, McKay & Co., in their answer say that they were applied to by Tate & Faulkner for advances and expressly refused to credit them, then T. G. Tate of the firm of Tate & Faulkner went to Senatobia, Mississippi, where his father Thomas S. Tate resided, and brought him to respondent’s business house in Memphis and Thomas S. Tate importuned respondents to furnish the supplies, advances, etc., to Tate & Faulkner, after being refused two or three times, respondents at last agreed to make advances, furnish supplies, etc., to the amount of $3500 to Tate •& Faulkner, they executing the deed of trust of the 22d of April, 1873, the said Thomas S. Tate guaranteeing said debt. In pursuance of said agreement, said deed of trust was executed, and at the same time Thomas S.Tate executed to respondents his written guaranty, a copy of which is filed with this answer and made part thereof: That at the same time the said Thomas S. Tate took his draft of deed of trust to be executed for the purpose of securing him against liability to respondents in behalf of said Tate & Faulkner on an alleged debt he claimed against them on one of their notes. That it was then agreed between the parties that said deed of trust for the benefit of Thomas S. Tate should be entirely subordinate to their liabilities to respondents, whether expressed in said deed of trust or not.
Respondents admit that said deed of trust was executed in their presence, but under the circumstances and with the understanding first mentioned, and as respondents understood was to be executed in the State of Arkansas. Respondents also admit that at the time of the execution of the deed of trust for their benefit, they distinctly declined to agree to make advances beyond the said sum of $3500, but state that after they had advanced said amount of $3500 said Tate & Faulkner sent other orders to respondent’s house for other and additional advances, and respondents expressly declined to meet said orders, after which refusal Thomas S. Tate came to respondent’s house and requested him to make further advances, saying it would not do to stop their supplies when in the middle of their crop, and on the faith of this request and his promise to be responsible for the same, the respondents did make the advances shown by their account current with Tate & Faulkner. That this request and promise was made in the early part of August, 1873, by Thomas 8. Tate in person and verbally, but previous to said oral agreement, to-wit, early in July 1873, said Tate & Faulkner had overdrawn their limit of $3500, by an order on respondent’s house in favor of T. D. Radcliff for $230 and that respondents before paying the order wrote to Thomas S. Tate for instructions, and that he replied by his letter of July 8th, 1873, authorizing’the payment, which letter is exhibited with answer. That early in August., 1873, Thomas S. Tate in person had the understanding heretofore set forth with respondents.
That during the period of said advances beyond said amount of $3500, said Thomas S. Tate recognizing his liability for the same, requested the book-keeper of respondents to draft for him another deed of trust to be executed by said Tate & Faulkner to secure him against these additional liabilities, whether said deed of trust was drafted or executed these respondents do not know. That they advanced to the said Tate & Eaulkner to the amount ■of $7128.30, and received as net proceeds of cotton.shipped tliem the sum of $4682, and for the balance $2249.56, Tate & Faulkner executed their promissory note to respondents for that amount, •dated January 23d, 1874, and payable one day after date. That said Thomas S. Tate was duly notified of the amount of sa.id advances beyond his written guaranty, and after said note of $2249.56 was taken he was notified of the face, and the character of the note was stated to him. Pie offered then and repeatedly after-wards to join in the note and execute any other assurance or lien respondents might wish, if time was given until his son could raise another crop. That lie repeatedly and on different days recognized the debt, and expressed his anxiety that it should be paid, averring that all he wanted was time.
Respondents deny the truth of the allegation that but for their agreement that advances to Tate & Faulkner should not exceed $3500, said second deed of trust for the benefit of Thomas S. Tate would not have been made. That though respondents expressed unwillingness to advance beyond $3500 they made no agreement to that effect.
The substance of the evidence in the case was as follows:
Thomas S. Tate said: The Radcliffe deed of trust was executed to secure me as an endorser for Tate & Faulkner for thirty-seven or eight hundred dollars. It was executed in the counting-room of Sledge, McKay & Co., in Memphis, Tenn. It' was drawn up by the book-keeper of Sledge, McKay & Co., with a special understanding between myself and Sledge, McKay & Co. The day plaintiff’s deed of trust was drawn, Tate & Faulkner executed a deed of trust to Sledge, McKay Co., to secure them to the amount of $3500. My son T. G. Tate was in Memphis and wrote to me to come to Memphis and assist him to make arrangements to get supplies to run his plantation in Arkansas. I went to Memphis, at his request, and saw Sledge, McKay & Co. for Tate & Faulkner, and told them that I would give them letter of credit for $3500, and they were to take the deed of trust, which is exhibited with the paper, and told them also that I was endorser for Tate & Faulkner and that I would take for my benefit the deed of trust to plaintiff, and both deeds of trust were executed at the same time, and the deed of trust for my benefit was fully understood by Sledge, McKay & Co.
Sometime in June, 1873, I was in Memphis and authorized a cask of bacon to be sent to Tate & Faulkner, and agreed to extend my letter of credit for them for five hundred dollars more, provided they would execute to me a deed of trust upon their property for my security in giving an extension of my letter of credit.
The deed of trust for $500 was drawn up by the same person that drew up the other deed of trust, and my son signed it there in the presence of McKay and Fulmer. It was never signed by Faulkner and never executed and I never authorized Sledge, McKay & Co. to furnish Tate & Faulkner any other supplies, except as aforesaid, but refused to do so unless I was made safe by the deed of trust. I did authorize Sledge, McKay & Co. to let Radeliff, the plaintiff, who was a nephew of mine, have two hundred dollars or upwards on my letter of credit.
Tate & Faulkner paid me about $715 on .the obligation on which I was endorser, and the balance I have discharged, and taken up the original obligation.
This witness, in answer to the interrogatory : “State if you ever by any writing. except as aforesaid, authorized Sledge, McKay & Co. to furnish supplies to Tate & Faulkner? Said : I never did by any writing or talking.
Thomas G. Tate was present at the execution of the two deeds of trust. It was some time in July, 1873, that Tate & Faulk ner liacl drawn from Sledge, McKay & Co. the $3500. Sledge, McKay & Co. wrote to Tate & Faulkner that they could not draw any further without an arrangement with T. S. Tate. Went over to Memphis and my father agreed to extend our credit for $500 more, and Tate & Faulkner, to secure him, was to execute another deed of trust for the amount, but it was never completed, Faulkner having refused to execute it. Fulmer afterwards came to my house some time in the fall, and agreed that he would go' back and see Sledge, McKay & Co. about it, and if we would ship our cotton they would furnish us with money and supplies. He did write to me that if we would send the cotton, the house would extend the accommodations we asked for (letter exhibited marked A, also letter marked B, and made part of deposition). Tate & Faulkner shipped cotton to Sledge, McKay & Co., to the amount of $4900.
W. M. Sledge, of the firm of Sledge, McKay & Co., whose evidence sustains the answer of Sledge, McKay & Co., in every particular, said, that after Sledge, McKay & Co., had advanced the $3500, mentioned in the deed of trust, they notified Thomas S. Tate of the fact, as we looked to him for the payment of any advances made to Tate & Faulkner, who made application for an additional amount of supplies over and above what was called for in the deed of trust, which we refused to fill until Thomas S. Tate came into our office and notified us that it would not do to stop supplying them in the midst of the crop; to continue to supply them from time to time with only what we thought was necessary, carrying out Thomas S. Tate’s instructions as far as we were capable of doing. That the cotton shipped failed to pay for supplies advanced, leaving a balance of $2249.56, for which Tate & Faulkner executed their note dated the 29th January, 1874, and payable one day after date. Soon after the execution of this note, Thomas S. Tate came into our business house to see us in reference to this note, at which time W. M. Sledge and A. N. McKay informed him that this was the unpaid balance due for supplies furnished Tate & Faulkner, and thatthe firm looked to him for the payment of the note, and we wanted to know what he was going to do about it. He said he had no money to pay it himself. That he would not pay it then, and that Tate & Faulkner could not pay it, but that he was willing to unite in a joint note with them for the payment of the said amount of money payable in the fall of 1874. We refused to take the note as proposed unless he would give a city acceptance, or a de.ed of trust on his land. He refused to do either.
A. N. McKay, one of the firm of Sledge, McKay & Co., said: “I have been present and heard all the testimony given by Wm. M. Sledge in this case, and am knowing to each and all of the facts stated by him, and know them all to be true.”
On cross examination this witness stated further: That after Sledge, McKay & Co. had furnished Tate & Faulkner supplies amounting to §3500, they refused to make any further advances until requested by Mr. T. S. Tate to do so, he becoming responsible for the same, and that all supplies furnished over and above the deed of trust -were furnished at the verbal request of T. S. Tate, made in the presence of Mr. Fulmer. Thomas S. Tate did not refuse to let Sledge, McKay & Co. furnish other bills of supplies after the §3500 had been supplied. Before the deed of trust had been signed and recorded, and after a small amount of supplies had been advanced, Tate & Faulkner being a little tardy about executing the deed of trust and sending it back, Thomas S. Tate ordered Sledge, McKay & Co. not to advance them any thing more until after the deed of trust was fully executed and returned. The said Thomas S. Tate stopped advances to Tate & Faulkner until the papers were sent back, and when the papers were satisfactory to him he ordered Sledge, McKay & Co. to go ahead and supply them.
J. S. Carutliers, of the City of Memphis, a witness in this cause: “in September or October, 1873, in the office of Sledge, McKay & Co., in Memphis, I heard Thomas S. Tate say that he would become responsible for further advances made by them to Tate & Faulkner, they having advanced the amount they had agreed to do under the deed of trust given by Tate & Faulkner to secure them. I remember this more distinctly because Mr. Faulkner was an old war prison friend of mine, and I was interested in his welfare.”
This was all the evidence given in the case.
At the October Term, 1876, of the Lincoln Circuit Court, this cause came on to bo hoard upon the complaint and amended complaint and exhibits to said complaint, the answer of the defendant, Marcus L. Bell, trustee, and the exhibit of a copy of the note of Tate & Faulkner, whifih by consent was read in evidence for defendants in lieu of the original note, also the answer of Sledge., McKay & Co., and the exhibits thereto. The depositions of Thomas S. Tate and Thomas G. Tate and the exhibits to the deposition of Thomas G. Tate. ' The deed of trust from Tate & Faulkner to the plaintiff Radcliff for the benefit of Thomas S. Tate, and also the deed of trust from Tate & Faulkner for the benefit of Sledge, McKay & Co., on the part of the plaintiff, and the depositions of Wm. M. Sledge, A. N. McKay, John W. Fulmer and J. S. Caruthers on the part of the defendants.
Whereupon the court being satisfied from the evidence that the deed of trust from Tate & Faulkner for the benefit of Sledge, McKay & Co. had been fully paid off and discharged before the said suit of replevin for the mules and cotton as ■described in complaint was instituted and that all of said property is included in the deed of trust from Tate & Faulkner to plaintiff Radcliff for the benefit of Thomas S. Tate, is in full force and effect, and that the injunction was properly granted. It is therefore ordered, adjudged and decreed that said injunction be made perpetual, and that said defendants be perpetually ■enjoined from further prosecuting said replevin suit, and that they pay all the costs herein.
From which judgment and decree of the court the defendants appealed to this court.
This is a contest between Sledge, McKay & Co. beneficiaries in the first, and Thomas S. Tate beneficiary in the second deed of trust. The evidence shows that Tate & Faulkner, planters of Lincoln County, early in the year 1875, applied to Sledge, McKay & Co., a mercantile firm in Memphis, to furnish them •supplies, to enable them to cultivate their plantation. Sledge, McKay & Co. at first refused to furnish the supplies; afterwards Thomas G. Tate, of the firm of Tate & Faulkner, went to Mississippi and induced his father, Thomas S. Tate, who resided there, to go with him to the business house of Sledge, McKay & Co., who af length agreed to furnish the supplies to Tate & Faulkner to the amount of $3500, to secure which they executed the aforesaid deed of trust. The said Thomas S. Tate, at the same time executing to Sledge, McKay & Co. his written guaranty for the payment thereof.
At the same time the second deed of trust was prepared for the benefit of Thomas S. Tate, and afterwards executed by Tate ■& Faulkner.
True, it has been questioned whether the second deed sufficiently identifies the property embraced in it, as being the same contained in the first deed of trust, and. while the second deed is not drawn with the precision and accuracy which ought to be observed in the preparation of such papers, we think there can be no reasonable doubt but that both deeds embraced the same-property.
Supplies to the amount of $3500 mentioned in the first deed of trust having been furnished by Sledge, McKay & Co. to Tate & Faulkner, they declined making further advances until early in the month of August, 1873, the said Thomas S. Tate came to the house of Sledge, McKay & Co. and requested them to make-further advances, saying it would not do to stop their supplies in the middle of their crop, promising at the same time to be responsible for such supplies. Upon the strength of this request and promise, Sledge, McKay & Co. made further advances to Tate & Faulkner, amounting in the whole to $7128.36, all of which was required by Tate & Faulkner to enable them to cultivate, gather and secure their crop.
At this point we cannot overlook the conflict in the testimony of witnesses, whose depositions were read upon the hearing of this cause in the court below.
Thomas S, Tate, the beneficiary under the second deed of trust, denies positively that he had authorized or directed Sledge, McKay & Co. to furnish any other or further supplies to Tate & Faulkner over and above the $3500 mentioned in the first deed of trust, except a small order for $200 or $300 in favor of his-nephew, Radcliff, and that he never assumed responsibility to. Sledge, McKay & Co. for the payment of such additional supplies; while William M. Sledge and A. N. McKay, beneficiaries in the first deed of trust-, and John W. Fulmer and J. S. Caruthers as positively asserted, that he did authorize and direct Sledge,. McKay & Co. to furnish such additional supplies to Tate &■ Faulkner, and these latter witnesses give time, place and circumstances.
The witnesses are all unimpeached, and so far as this court knows of equal credibility; but the weight of evidence is clearly in favor of Sledge, McKay & Co., fo.ur witnesses testifying affirmatively to the truth of certain material facts; while a single witness denies the truth of those facts.
When it is remembered that Sledge, McKay & Co., although applied to, refused to furnish supplies to Tate & Faulkner until the first deed of trust was. executed and the within guaranty given by T. S. Tate to secure payment for advances to the amount of $3500, and that when that amount of supplies had been furnished, Sledge, McKay & Co. refused to make further and additional advances, it would seem improbable that they would furnish additional supplies, and make advances to Tate & Faulkner to the amount of nearly $4000, above the amount mentioned in the deed of trust, at the simple request of Tate & Faulkner, or upon a promise by them to ship all their cotton to Sledge, McKay & Co., which they were already bound to do by the written guaranty of Thomas S. Tate. Without speculating, however, about the probability of the case we have conclusive testimony that these additional advances were made by Sledge, McKay & Co., at the request of Thomas S. Tate, he urging their shipment and assuring them he would be responsible for the payment of the same.
Having reached a satisfactory conclusion as to the facts of' the case, our next inquiry will be as to the rights of the respective beneficiaries under the first and second deeds of trust, in connection with the additional advances by Sledge, McKay & Co.
The first deed of trust was given to secure them for supplies furnished, and to be furnished, Tate & Faulkner, to the amount ■of $3800.
The second or junior deed of trust was given avowedly to secure Thomas S. Tate, against his endorsement on a certain obligation executed by Tate & Faulkner to Lane & Moore, for $3700, or $3800. .
The second deed was to- be subordinate to the first, and the claim to the trust property, under the second deed, could not arise until the first deed was satisfied.
It is contended by the appellee that when the amount of $3500, in supplies, had been furnished by Sledge, McKay & Co.,, to Tate & Faulkner, it was a satisfaction of the first deed of trust, and that as a consequence the second deed supersedes and takes the place of the first.
This is an important question and deserves our serious consideration.
It will be remembered that when the amount of supplies limited in the first deed of trust was exhausted, Thomas G. Tate of the firm of Tate & Faulkner, and Thomas S. Tate, beneficiary in the second deed, went to the business house of Sledge, McKay & Co., in Memphis in the summer of 1873, at which time and place it was arranged between the parties that Sledge, McKay & Co., should continue to furnish Tate & Faulkner additional supplies as needed, not however until Thomas S. Tate, gave express directions that such supplies should be furnished, saying it Avould not do to stop their supplies in the midst of the crop, and declaring to Sledge, McKay & Co., that he Avould be responsible-for these advances.
It will be observed, that the deed of trust recites that: “Whereas the said Tate & Faulkner, were justly indebted, or to become indebted during the year 1873, to Sledge, McKay & Co.,, in the sitm of thirty five hundred dollars ($3500), for supplies already advanced, and supplies, cash and merchandise to be advanced during that year, to enable them to raise and groAV a crop on said plantation.”
While the amount of supplies was limited in terms to $3500, ■ the controlling purpose of the deed, was to secure for Tate & Eaulkner, a sufficient amount of supplies to enable them to raise and grow their cotton crop for that year. If this crop had been abandoned in mid-summer, as it must necessarily have been, without the needed supplies, it would not only have been ruinous to Tate & Faulker, but the interests of Sledge, McKay & Co., and T. S. Tate, in the trust fund would have been seriously compromised if not totally sacrificed.
When it was ascertained that the crop could not be grown, matured, and saved, without additional advances, and Tate & Faulkner were appealing to Sledge, McKay & Co., to make them advances, and Thomas S. Tate was also urging that the advances be made and assuming a personal responsibility for the same, Sledge, McKay & Co., resumed their shipments of supplies to Tate & Faulkner, and continued to furnish them such supplies as were needed until their crop was grown, matured and saved.
Are they not then entitled to,the protection of a court of equity for advances made under these circumstances ?
When the arrangement' was made to furnish additional supplies after the limit of $3500, had been reached, with the assent and approbation of Thomas S. Tate, we must regard it as an implied waiver and postponement of any contingent rights or equities he might have under the second deed of trust to the rights and equities of Sledge, McKay & Co., under the first deed, until all their advances were paid for and satisfied out of the trust fund, and this appears the more reasonable, when we reflect, that from the beginning, Thomas S. Tate, was interested in the matter of supplies to be furnished Tate & Faulkner, which would not have been furnished in the first instance but for his written guaranty, and that when the arrangement was made for additional advances, it was his special request and assumption of responsibility for the payment of the same that induced Sledge, McKay & Co., to continue shipments of supplies to Tate & Faulkner, so as to enable them to carry out the purposes of the deed of trust in the enlargement and preservation of the trust fund in which all the parties were interested.
The power of a court of equity is believed to be ample to protect the interests of all parties in the trust fund, subordinating, if necessary, the literal wording of the deed of trust in so far as it limits the amount of supplies to $3500 to the higher purposes had in view when the deed was executed, which was to provide for future advances.
Such provisions in deeds of trust and mortgages are of frequent occurrence, and although there may be a limitation as to the amount of advances furnished, a court of equity will protect and uphold additional advancements over and above the limitation in the deed or mortgage, if necessary to capry out the purposes of the trust.
In the case of Lawrence v. Tucker, 23 How., 14, where a mortgage was given to secure the payment of a note for $5500, and such advances as then had been or might be made within two years, not to exceed in all an indebtment of $6000, and advances were made to an amount largely over $6000; the mortgage was held good to cover the advances and the note for $5500. 7 Cranch., 34; 1 Peters, 386; 5 Otto, 746; 31 Ark., 62.
We regard the first deed of trust as a deed providing for future advances, the amount to be determined by the object and purposes of the trust, and the actual necessities of the case.
If, however, the-amount of $3500 mentioned in the first deed of trust, and the amount due for additional supplies furnished by Sledge, KcKay & Co., be viewed in the light of different debts or liabilities, due from Tate & Faulkner, they having failed to direct the application of the proceeds of the cotton shipped, to the payment of either one or the other of said liabilities, then the creditor, Sledge, McKay & Co., had the undeniable right to make the application, and in the exercise of this right they applied the proceeds of the cotton shipped to the payment of the extra and additional advancements until they were paid for, and the residue of said proceeds was then applied to the deed of trust debt, leaving a balance due Sledge, McKay & Co. of §2249.56 for which amount Tate & Eaulkner executed and delivered to them their promissory note, before mentioned, it being for balance secured by the deed of trust.
As to the application of payments where different debts are due from the same party, the rule is well settled, that he who makes the payment must declare on what account he pays it, but if the payment is general, the right of application is in the party who receives the money. Wickerson v. Sterne, 9 Mod. Repts., 427, Leach’s Edit., where it was also held that the party paying must direct the application at the very time he pays. Manning v. Wortram, 2 Mod. R., 606; 1 Bibb, 334; 5 Mon., 251; 4 J. J. Mars., 98.
In the application of the payments by Tate & Faulkner, Sledge, McKay & Co., properly, we think, applied the proceeds of the cotton to the payment for the additional supplies first, and the remaining proceeds of said cotton were applied to the liquidation of said deed of trust debt.
We, therefore, upon a full review and careful consideration of this cause, are of opinion that the contingent equities of the second deed ought to be postponed until the first deed is satisfied and the additional advances paid for out of the trust fund.
We are therefore of opinion that the court below erred in granting the injunction in the cause and perpetually enjoining the defendants in the court below from further prosecuting their action of replevin, and do therefore reverse the decree of the Circuit Court of Lincoln County, and remand this cause to said court with instruction to dissolve said injunction, with leave to the appellees to amend their bill of complaint if they desire to do so, in order that the property embraced in said deeds may be sold under decree of said Circuit Court; first paying out of the proceeds thereof the balance of indebtedness due Sledge, McKay & Co. on their deed of trust, and the residue, if any, to Thomas S. Tate, the beneficiary in the second deed of trust. | [
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Harrison, J.:
This was a petition filed by Warren M. Richardson, to which William J. Hickman, as administrator of Augustus M. Plargraves, deceased, and James M. Drummond, were 'made defendants, for the enforcement of a mechanic’s lien.
The petition alleged that the petitioner is a mechanic, and, as such, at the instance and request of the said Plargraves, he did and performed for him work and labor in repairing the certain steam saw and grist mill belonging to him in Bradley County, situated in township sixteen, range eleven, and on the left of the road leading from Moco Bay to Johnsville for certain hire and wages amounting to the sum of $480, of which $80 only had been paid.
That the work was completed on the 14th of March, 1874, and, to save and perfect his lien therefor on the mill, he filed with the clerk of the Circuit Court, on the 29th of May, 1874, an account of his demand showing the amount due, and containing a description of the mill as prescribed by the statute. That since the work liad been done, but before the account was filed with the clerk, the said Hargraves had died, and the defendant William J. Hickman had been appointed his administrator; and that since his death the defendant James M. Drummond claimed an interest in the mill.
The petition was filed and summons issued on the 3d day of September, 1874.
The writ commanded the sheriff to summon ¥m. J. Hickman;, without stating his representative character, and James M. Drummond, to answer a complaint in equity, and the defendants, for that cause moved to quash it, which motion the court on the 23d day of March, 1875, sustained, and an alias summons was ordered returnable to the next term of the court.
Upon the return of the alias summons, the defendants filed an answer, in which they set up as a defense, that, before the commencement of the action, the mill had been,, by a proceeding in chancery, placed in the hands of a receiver, but the parties to, or the nature of the proceeding was not stated.
The plaintiff demurred to the answer as presenting no matter of defense. The court, upon the consideration of the demurrer, adjudged that the complaint showed no sufficient cause of action, and dismissed the suit.
The plaintiff appealed.
The matter shown in the answer was no defense to the action. The fact that the property was in the hands of a receiver could not affect the plaintiff's right of action, as a recovery by him and a sale under the judgment could not in any way impair the rights of the parties to the proceedings in equity, the statute expressly providing, and such would be the case we presume without such express provision, that persons interested in the property, who are not parties to it, shall not be bound by the proceeding to enforce the lien. Gantt’s Digest, secs. 4064, 4068.
The possession of the receiver could not be disturbed by a purchaser under the plaintiff’s judgment if he recovered in the action, but the purchaser would be entitled to become a party to the suit in equity, and set up his title against the other parties.
"We are not apprised by the record, upon what ground the court held the complaint insufficient, or why it dismissed the suit. A cause of action was, we think, very clearly and fully stated. If it was uncertain or indefinite in any respect, the defendants might, by motion, have had it made more specific; but we can see no such objection.
Counsel for the appellant suggests — the appellees have no counsel here — that the ground of the objection was that the plaintiff’s claim had not been presented to the administrator for allowance, and as the suit was dismissed, and no judgment on the merits was rendered against the plaintiff, we suppose it wras on that ground. But, if so, it was not well taken.
When a creditor has acquired a specific lien on particular property of his debtor during his life, it may be enforced after his death, and the creditor- need not resort to the general assets of his estate, through the administrator in the Probate Court. Hall v. Denckla, 28 Ark., 506; Nicholls & Barrett v. Gee, 30 Ark., 135; Barber v. Peay, adm’r, 31 Ark., 392.
The statute gave the plaintiff a right of lien on the mill for his labor bestowed upon it, and Hargrave’s death did not have the effect to deprive him of the power • of perfecting his lien, which was before inchoate, by filing the account in the clerk’s office, because it was for the plaintiff’s benefit alone, and entirely independent of the will or assent of Hargrave.
The mistake or error in the original summons did hot affect any substantial right of the defendants or render it void, and the court should have directed it to be amended, and not have quashed it. Gantt’s Digest, sec. 4619; Galbreath et al. v. Mitchell et al., supra; Rudd v. Thompson, 22 Ark., 363; Thompson v. Bremage, 14 Ark., 59; Mitchell v. Conley, 13 Ark., 414.
The judgment of the court below is reversed, and the cause remanded, to be proceeded in according to law and not inconsistent with this opinion. | [
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■ English, Ch. J.:
1 This bill was to enforce a vendor’s lien for purchase money, etc. The bill was filed on the chancery side of the Circuit Court of Chicot County, August 24th, T 874, by Daniel H. Reynolds, as. administrator of the estate of F. W. Smith, deceased, and John N. Ware, surviving partner of the firm of Mercer & Ware, against Nathan West.
The substance of the case made by the bill is, that on the 29th of January, 1870, F. W. Smith. sold and by deed of that date conveyed, to Nathan West, certain lands in Chicot County, which are described, for the consideration of $5000. .That for part of the purchase money, West executed to Smith a promissory note for $2294.70, payable 1st January, 1871, and bearing 10 per cent, interest from maturity, which note was credited with $214.53 on the day of its execution.
That on the 4th January, 1871, Smith delivered the said note to Mercer & Ware, of Memphis, to secure the sum of $1100 due to them, and the sum of $90, due one E. A. Summers, and took from them a receipt for said note, stating what the same was to secure the amounts, etc.; which more fully appears by the receipt, which is exhibited, and made part of the bill. That on the-day of October, 187-1, Smith endorsed said note in blank, and still left it with Mercer & Ware to secure said sums, which remained unpaid, etc.
The receipt is in substance as follows
“Eeceived, Memphis, January 4th, 1871, ofF. W. Smith, one note drawn by Nathan West, in his favor, for $2294.70 with,a credit on said note of $214.50, leaving a balance of $2080.20. The above note executed 29th January, 1870, and payable 1st January, 1871. The above note is left with us as collateral to secure his several endorsements to us for Nathan West, amount $1100; also to secure payment of his note executed to E. M. Summers’ for $90, payable one day after date, 4th January, 1871. The said note to be refunded to him, or balance thereof, after the said amounts are paid. Mercer & Ware.”
That West was residing on, and in possession of the lands described in the bill. That Mercer, of the firm of Mercer & Ware, had died since said note was deposited with them by Smith, to secure to the firm said indebtedness, leaving plaintiff, John N. Ware, his sole surviving partner. ThatSmith had also-died, and plaintiff, Daniel H. Reynolds, had been granted letters of administration on his estate.
That said note for purchase money remained unpaid, and was a lien on said lands, and that the amount secured to Mercer & Ware by deposit of the said note with them, also remained unpaid.
Prayer that the amount due on the note be declared a lien on the lands, and that defendant be decreed to pay the same in a reasonable time; and that on default of payment, the lands be sold, etc., and that out of the proceeds of sale, the amount due to plaintiff, Ware, as surviving partner of Mercer & Ware, be first paid, and the remainder, if any, be paid to plaintiff Reynolds, as administrator of Smith, etc.
On the 16th September, 1874, defendant West filed an answer to the bill. He admits that Smith sold and conveyed to him the lands, and took the note for purchase money as alleged in the bill; and that the note was credited as of its date with the sum stated in the bill. Admits that Smith deposited the note with Mercer & Ware to secure the payment of $90 to E. S. Plummer,, but denies that it was left with them to secure the payment of any sum due to them. Denies that he was ever indebted to-them in the sum of $1100, or that Smith ever endorsed for him to them for said sum.
Alleges that he had paid to Smith upon the note in suit, afc various times after the date of its execution, sums amounting to $1810, for which he was entitled to credit. That these payments-were made to Smith in good faith, and before any notice that he-had transferred the note to Mercer & Ware.
■ A bill of particulars of the alleged payments is made an exhibit, verified by affidavit in probate form.
The first item in the bill of particulars is stated thus: “ 1870, December — To cash paid in cotton to S. Wood for your account, $1300.” It is not material on this appeal, to state the dates and amounts of the other items in the bill of particulars.
The answer further admits that after deducting the alleged payments, the balance due upon the note is a lien on the lands as in favor of Smith or his administrators.
The answer also contains a general demurrer to the bill, and is yerified by the affidavit of defendant.
The plaintiff filed a demurrer to the answer, but no action appears to have been taken by the court upon the demurrer; and at the June Term, 1875, the plaintiffs filed a special replication to the answer.
At the January Term, 1876, the defendant asked leave to withdraw his answer and demurrer, and to file an amended answer and demurrer. The court refused to permit him to withdraw the answer and demurrer, but permitted him to file an amended answer and demurrer.
In the amended answer, defendant admits that he purchased the lands of Smith for the consideration of $5000, and received from him a deed therefor, but denies that the note in suit was given for part of the purchase money of the lands. On the contrary, alleges that at the time of the purchase, he paid Smith in full for the lands; and afterwards bought of him all his mules, tools, and some corn on the premises, and executed to him the note in suit for the agreed value of such personal property, and not for any part of the purchase money of the lands; and denies that the note is a lien on the lands in the hands of either of the plaintiffs.
That he knew nothing about the transfer of the note to Mercer & Ware, aiid was advised to deny the same, and require proof thereof.
That Smith always gave him to understand, to the time of his death, that he still owned and held said note, and with that assurance drew sundry drafts upon him, against said note in favor of Win. E. Trice and Sanford Wood, which drafts were accepted by him to the amount of about $1300 ; and for which amount judgment had been recovered against him on the law side of the court, and still existed, and for which he was entitled to credits as of the dates of the drafts.
Other payments are then alleged, corresponding with the payments claimed in the original answer, and stated in the bill of particulars made on exhibit thereto, except the first item above copied.
The amended answer also contains a demurrer to the bill, and assigns the following causes of demurrer :
“First — That Eeynolds, .as administrator of Smith, and Ware as surviving partner of Mercer & Ware, show no such privity or mutuality of interest in the cause of action, as entitles them to sue as joinfiplaintiffs, and they have improperly joined in the suit.
“ Second — Eeynolds, as administrator, shows no sucli possession or ownership of the note in suit as entitles him to sue.
“Third — Ware shows no right in him to bring the suit, or join as plaintiff, and no'right to the relief prayed.
“Fourth — The complaint does not state facts sufficient to constitute a cause of action.”
The amended answer was sworn to by defendant.
The plaintiff moved to strike out the amended answer, for the reason that it was inconsistent with the original answer, and the court overruled the motion.
The court sustained the demurrer to the bill contained in the amended answer for misjoinder of plaintiffs, and leave was given to amend, the plaintiffs declining to amend, the court dismissed the bill, and plaintiffs appealed.
I. The original and amended answers were both sworn to byappellee, and yet they are contradictory and inconsistent in some of their material features.
In the original answer, appellant admits that the note sued on was given for part of the purchase money of the lands, and that after deducting alleged payments, the balance was a lien upon the lands.
In the amended answer, he denies that the note was given for any part of the purchase money of the lands; and, on the contrary, alleges that he paid for the lands at the time he purchased them, and gave the note for personal property bought of Smith.
In the original answer he claims to have made payments upon the note to Smith, without notice of the transfer of the note to Mercer & Ware, amounting to $1810, and exhibits a sworn bill of particulars of alleged payments, the first item of which is for cash paid in cotton to S. Wood, on account of Smith, $1300.
In the amended answer, he claims, instead of this payment, to have accepted Smith's drafts in favor of Trice and Wood, for $1300, upon which he had been sued, and judgment recovered, but does not claim to have paid the judgment.
Story, in his Equity Pleadings, says: “ In the cdsc of answers and of pleas put in upon oath, the court will not, for obvious reasons, easily suffer an amendment to be made. In a small matter, however, the defendant may amend; but not in a material one, unless upon evidence to the court of surprise. The most common case of amending an answer is, when, through inadvertency, the defendant has mistaken a fact, or a date, then, the court will give leave to amend, to prevent the defendant from being prosecuted for perjury. In general, however, this indulgence is confined to cases of mere mistake or surprise in the answer.” Sec. 896, (8 ed.) and notes.
Again he says: “ In proceedings upon an answer under oath, where there is a clear mistake, the answer was, by the old practice, allowed to be taken off the file, and a new answer put in. But Lord Thurslow adopted a better course, not taking the answer off the file, but permitting a sort of supplemental answer to be filed; that course leaving the parties the full effect of what had been sworn before with the explanation given by the supplemental answer. This has been allowed even, after the cause was in the paper for hearing. But to obtain such permission, the defendant must state by affidavit, that, when he put in his answer, he did not know the circumstances upon which he replies, or any other circumstances upon which he ought to have stated the fact otherwise.” Ib. sec. 901.
By a provision, of the Code : “ The court may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case; or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.” Gantt’s Dig.,sec. 4616. This is a very liberal statute' of amendments, but it was error to permit appellee to file an amended answer contradictory of, and inconsistent with, the original answer, in material matters, without any showing by affidavit (and none appears of record), that he had labored under a mistake or misapprehension in putting in the original answer.
II. The court below erred in sustaining the demurrer to the bill.
The vendor’s equitable lien upon land for purchase money is personal to him, and does not pass to an assignee by assignment of .a note given for purchase money. Shall v. Biscoe et al., 18 Ark., 142. But in this case, Smith, the vendor, deposited the note for purchase money with Mercer & Ware, and endorsed it, as a collateral security for claims they held against him, and Ware, as the surviving member of the firm, had the right to bring the bill to enforce the lien, as held in Crawley v. Riggs et et., 24 Ark., 563. But inasmuch as the note was for a larger sum than the debts secured by it, and Reynolds, as administrator of Smith, entitled to the surplus, we can see no possible objection to his being joined in the suit as an interested plaintiff, instead of being made a defendant. Gantt’s Dig., sec. 4469.
The decree must be reversed and the cause remanded to the court below with instructions to reinstate the bill and overrule the demurrer, etc. | [
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English, Cb. J.:
The indictment in this case is, in substance, as follows :
“The grand jurors of Faulkner County, in the name and by authority of the State, etc., accuse j. E. Martin of the crime of negligent escape, committed as follows, viz: The said J. E. Martin, on the 13th day of September, 1876, in the county and state aforesaid, then being the Sheriff of said County of Faulkner, and having the lawful custody of J. E. Rhea, under and by virtue of a warrant issued by A. F. Livingston, a magistrate of said county, upon charge of a felony, which said warrant ivas ■delivered to said J. E. Martin, as Sheriff, as aforesaid, to apprehend said J. E. Rhea, and bring him before said magistrate, to be dealt with according to law; and said J. E. Martin, as such Sheriff, having arrested said J. E. Rheaj in pursuance of said warrant, and so having said J. E. Rhea in his lawful custody for the cause aforesaid, at, etc., the said J. E. Rhea out of the custody •of him, the said J. E. Martin, unlawfully and negligently, did permit to escape and go at largo whithersoever he would, to the hindrance of justice, and against the peace,” etc.
•The defendant filed demurrer to the indictment, which was ■overruled. He was tried on the plea of not guilty; and the jury returned a verdict of guilty, and assessed a fine of $10 against him; and judgment was at once entered upon the verdict. On motion of the defendant, the court set aside the judgment, and permitted him to file a motion for a new trial, which was overruled. He then filed a motion in arrest of judgment, which was overruled, and final judgment entered upon the verdict, from which he appealed.
In the demurrer to the indictment, the following causes for demurrer were assigned:
-First — 1The indictment does not state facts sufficient to constitute a. public offense. .
Second — It does not show that said supposed warrant was a lawful warrant.
Third — It does not state the offense for which said prisoner was arrested.
Fourth — It does not show that said A. F. Livingston' was authorized to issue said warrant.'
Fifth — It does not state that' the escape was wilfully or voluntarily permitted, or carried out.
The motion in arrest of judgment, assigned the general cause: That the facts stated in the indictment, do not constitute a public offense within the jurisdiction of the court. .
By common law escapes are of two classes, voluntary and negligent.
A voluntary escape, is when a person having a felon lawfully in his custody, voluntarily permits him to escape from it, or to go at large; and this is felony, in case the person be imprisoned for • felony; and treason, in case the person be imprisoned for treason, etc.; but the person or officer voluntarily permitting such escape, is not to be tried until the principal offender escaping is convicted, etc. 1 Hale’s Pleas of the Crown, 590-9.
Negligent escapes of felons are not felony, but punishable by fine and imprisonment upon the' officer or person that suffer them, and the officer thus neglecting his duty may be fined and imprisoned for a misdemeanor before the conviction of the principal party. Hale P. C., 600, 4; Blackstone, 130.
The statute makes provision for the punishment of voluntary escapes, (Gantt’s Digest, secs. 1478, 1481-1487) but negligent escapes seem not to be embraced by any of the provisions of the statute. This class of escapes, however, is indictable as common law offenses, and punishable under the general statute adopting the common law, etc., by fine not exceeding $100, and imprisonment not exceeding three months. Gantt’s Digest, eh.’ 22, secs. 772-3.
The indictment in this case, is for a negligent escape, and charges that the warrant under which the appellant, as sheriff, arrested and had in custody the person accused of a felony, was issued by A. F. Livingston, a magistrate, etc. The use of the term “magistrate” was bad pleading. It is not used in the precedents.
Magistrate (from the Latin Magistratus): A public civil officer, invested with some part of the legislative, executive, or judicial power, given by the Constitution, etc. The President of the United States is Chief Magistrate of the Nation; the Governors are the Chief Magistrates of their respective States. In a narrower sense, the term only includes inferior judicial officers, such as justices of the peace, etc. Burrill'Law Die. Bouvier Law Die.
A statute of Maine declared, that deeds should be good against third persons, when acknowledged before a justice of the peace or magistrate, in some' other state, etc. In Gorden, et al. v. Hobart, et al., 2 Sumner, 401, the question came before Judge Story, whether a mortgage acknowledged by the grantor before an alderman of the City of Philadelphia, was valid under the statute, and he said :
“ Was the acknowledgment in conformity with the statute, etc.? Is an alderman of the City of Philadelphia a- magistrate in the sense of the statute? In my judgment he is ; for I know of no other definition of the term “magistrate,” than that he is a person clothed with power as a public civil officer. Mr. Justice Blackstone, in his commentaries, says, that ‘the most universal public relation, by which men are connected together, is that of government, namely as governors or governed, or in other words^ as magistrates and people.' And after speaking of the king as the supreme magistrate, he proceeds to speak of subordinate magistrates, and enumerates several classes of persons to whom the appellation is applicable, whose rights and duties he shalljnot investigate’; and then adds: 'Nor shall I enter into any minute disquisition with regard to the rights and dignities of mayors and aldermen, or other magistrates of particular corporations; because they are mere private and strictly municipal rights, depending ■entirely upon the domestic constitution of their respective franchises. Thus, he plainly admits aldermen to be magistrates; and afterwards enumerates others, whose rights and duties he shall consider; and among these are sheriffs, coro'ners, justices of the peace, constables, surveyors of highways, and overseers of the poor; so that it is clear, that the appellation is not confined to justices of the peace, and other persons ejusdem generis, who exercise general powers; but it includes others, whose main duties are strictly executive. Dr. Johnson gives a definition of the term ' magistrate,’ not materially different from that inculcated by Blackstone; saying that a magistrate is 'a man publicly invested with authority, a governor, an executor of the law,’ ” ■etc.
Under a similar statute of Massachusetts, an American consul at a’foreign port, "was held, in Warren v. Manufacturers’ Insurance Company, 13 Pickering, 523, to be a "magistrate” within the meaning of the statute.
The term "magistrate” is used in a genuine sense, in parts iv. •and vi., ch. 43, title Criminal Procedure, Gantt’s Digest, providing for the arrest of criminals, preliminary examination, etc., but not in .its broadest sense as above defined. Sec. 1668, defines •and limits the meaning of the term as there used, thus: "A warrant of arrest may be issued by the following officers, who are called magistrates, viz: Judges of city or police courts, mayors, and justices of the peace; and may be executed by the following officers, who are called peace officers, viz: Sheriffs, •constables, corqners, jailors, marshals, and policemen. ’
A justice of the peace has jurisdiction to issue a warrant for the arrest of a person committing a crime, anywhere within the 'limits of his county. Art. vii., sec. 40, Constitution, 1874; Gantt’s Digest, sec. —; Gantt’s Digest, ch. 43.
Judges of the city or police courts, and mayors, have jurisdiction to cause the arrest of persons committing offienses within the limits of their municipal corporations — Gantt’s Digest, sec. 1642; Act of March 9, 1875, for the incorporation of municipal corporations — secs. 45, 54, etc.
Had the indictment alleged that the warrant was issued by a justice of the peace, the jurisdiction would have appeared from the other allegations. But if issued by a judge of a municipal court, or mayor, as it may have been for anything that appears to the contrary by the use of the general term “ magistrate,”, the further allegation, that the offense for which the accused was arrested, was committed within the limits of the corporation of the officer issuing the warrant would have been necessary to show jurisdiction.
No indictment could be maintained against a sheriff, for permitting the escape of a person held under arrest by warrant, unless the officer issuing the warrant had j urisdiction, or legal authority to issue the writ, and this should appear from the indictment. Bass v. State, 29 Ark., 142.
The indictment charges, that appellant, as sheriff, etc., arrested and had in custody, J. E. Rhea, under and by virtue of a warrant issued, etc., upon a charge of “a felony,” without naming the particular crime for which the accused was arrested, etc.
Hawkins, says : “Also it seems clear, that every indictment for voluntary escape, must allege and show the species of the crime for which the party was imprisoned; for it is not sufficient to say, in general, that he was in custody for felony, etc., for that no one can be punished in that degree, but as involved in the guilt of the crime for which the party was in his custody; and, therefore, the particular crime must be set forth, that it may appear that the principal is attainted for the very same crime, if it were felony, or that it was in truth committed, if high treason. But it seems questionable whether such certainty, as to the nature of the crime, be neoessary in an indictment for a negligent escape, for that it is not material in this case, whether the person who escaped were guilty or not.” Boole 2, ch. 19, sec. 14.
The statute requires the warrant of arrest, in general terms, to name or describe the offense charged to have been committed, and gives a form for such warrant. Gantt’s Digest, sec. 1669, and notes. But we think a warrant commanding an officer to arrest a person on a charge of felony, without designating the species of felony, would not be void, and that the officer could not legally refuse to arrest the accused, and would be liable to indictment, if he permitted him to escape by negligence. The warrant under which the arrest was made in this case, was introduced on the trial, and the party arrested was charged with having committed the “ offense of felony,” and the indictment followed the warrant, and we think in this respect it was sufficient. Whether an indictment for a.voluntary escape, alleging the offense of the party arrested in such general terms, though bad at common -law, for the reason given by Hawkins, would be good under our statutes providing for the punishment of such escapes, is not now before us.
The indictment seems to be substantially good, except in alleging the warrant of arrest to have been "issued by a “ magistrate,” etc., as above-indicated, and for that cause the demurrer should have been sustained, and, having been overruled, the judgment should have been arrested. Inasmuch as no new trial can be awarded upon the present indictment, we deem it unnec essary to pass upon the questions reserved during the trial, relating to the admission of evidence, instructions of the court, etc.
The judgment is reversed, and the cause remanded with instructions to the court beiow, to arrest the judgment. | [
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