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Harrison, J.:
This was a suit by Ethan A. Murphy against Samuel B. Lemay, for the value of a box of merchandise, alleged to have been received by the defendant, a warehouse-man, for the plaintiff, but which the defendant, on demand of the plaintiff, had failed to deliver.
The defendant’s answer denied that the box had ever been delivered to him.
The verdict of the jury was for the defendant. The plaintiff moved for a new trial, which was refused ; he excepted, setting out the evidence, and the instructions of the court for both parties ; and appealed.
The grounds of motion for a new trial were :
First — That the verdict was contrary to the evidence.
Second — That the instructions were conflicting.
As to the first grounds, we need only to remark: That there was no very clear preponderance of evidence either way, and the verdict is conclusive as to its weight. .
Six instructions were given at the request of the plaintiff; and five at the instance of the defendant. The plaintiff excepted without specification, and in gross to those given for the defendant. It is well settled, that an exception to instructions thus taken, cannot be sustained, if any part or one of them is good. Chrisman v. McDonald, 28 Ark., 8; Beaver v. Taylor, 3 Otto, 46; Rogers v. The Marshal, 1 Wall., 644; Harvey v. Tyler, 2 Ib., 328 ; Johnston v. Jones, 1 Black., 22; Lansing v. Wiswall, 5 Denio, 213.
What parts, or which of the instructions were inconsistent with each other or conflicting, the motion for a new trial in no wise indicates or points out; the appellant’s counsel have, however, referred us to the following of the defendant’s series: “ If the defendant received, as a warehouse-man, the box of goods for the plaintiff, he was only bound to take as much care of the same as a prudent man would of his own property;” as repugnant to the following, previously giyen for the plaintiff: “ If the jury find from the evidence, that the defendant received the box of goods in controversy, it devolves upon him to account for the same; and unless he has done so, by the weight of the evidence, they will find for the plaintiff.”
We are unable to perceive any repugnancy between these instructions; and if either was erroneous, it was neutralized by the other, and the judgment would not be reversed for such error. Crain v. Carr, 7 Ark., 241.
The defendant had, to disprove the delivery of the box to him, adduced evidence to show, that he delivered to the plaintiff all the merchandise received at the warehouse for him, and also had used due and proper diligence in taking care of the same.
“ Warehouse-men,” says Judge Story, “ are. bound only to take common and reasonable care of the commodity intrusted to their charge;” and he defines such care to be: “ That diligence which men in general exert in respect to their own concerns.” Sto. Bail., secs. 11, 444. The said instruction for the defendant was sound and relevant.
The judgment is affirmed. | [
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CLIFF HOOFMAN, Judge.
|,Appellant Michael Wilson appeals from the trial court’s orders denying his petition for change of custody, modifying his child support, and deciding issues related to visitation. We affirm.
The parties were divorced on August 3, 2005, in Oklahoma. On July 2, 2008, a Utah court entered an order modifying the divorce decree. Under the terms of the Utah order, Wilson was awarded custody of the parties’ son, and Powers retained custody of the parties’ two daughters. Both parties subsequently lived in Arkansas until Powers moved to New York. On August 23, 2010, Wilson filed an ex parte petition for an order of protection shortly before the parties’ daughters were supposed to return to New York from their visit with Wilson in Arkansas. Wilson alleged that the order was necessary for the children’s safety and requested temporary custody of the parties’ daughters. The petition was granted. On September 2, 2010, Wilson filed a petition for change of custody, alleging that there had |2been a material change of circumstances and that it would be in the best interest of the children that he be awarded custody of the parties’ two daughters. Powers filed a response to- the petition and a counterclaim, as well as an amended counterclaim, alleging that Wilson had made false allegations and that there had been a material change of circumstances to justify a modification of child support and visitation.
A hearing was held on September 29, 2010, at which Wilson and two of the parties’ children testified. At the conclusion of their testimony, Powers moved for a directed verdict, arguing that Wilson had not met the burden of proof regarding a substantial change of circumstances necessary for a change in custody. The trial court granted the motion and denied the petition to change custody. An order was entered on October 13, 2010. On October 25, 2010, Wilson filed a motion for reconsideration, a response to Powers’s amended counterclaim, a motion to modify decree, and a motion for contempt. Another hearing was held on January 31, 2011, where both parties testified as to the issues of child support and visitation. At the conclusion of the hearing, the trial court announced findings regarding contempt, child support, and visitation issues, and on March 10, 2011, the trial court entered an order reflecting these findings. On March 18, 2011, Wilson filed a motion for relief from the order and modification, alleging, among other things, that the trial court erred in calculating the amount of child support. The trial court did not rule on this motion. Wilson filed a notice of appeal on April 8, 2011. Along with her brief on appeal, Powers filed a motion to dismiss the appeal as to the child-custody order. She argued that Wilson’s notice of appeal was untimely to appeal the custody order because it was filed almost six | (¡months after entry of the order. This court certified the motion to the supreme court, which denied the motion to dismiss. Thus, the child-custody issue is properly before us.
First, Wilson argues that the trial court erred in determining that it was in the best interest of the children to deny the change-of-custody petition. In child-custody cases, the primary consideration is the welfare and best interest of the child involved. Bernal v. Shirley, 96 Ark.App. 148, 239 S.W.3d 11 (2006). Custody will not be modified unless it is shown that there are changed conditions demonstrating that a modification is in the best interest of the child. Id. Factors the trial court may consider in determining the best interest include the psychological relationship between the parent and the child, the need for stability and continuity in the child’s relationship with the parents and siblings, the past conduct of the parents toward the child, and the reasonable preference of a child. Myers v. McCall, 2009 Ark. App. 541, 334 S.W.3d 878. It is the trial court’s duty, in deciding a motion to dismiss made after the presentation of the plaintiffs case, to determine whether, if the case were a jury trial, there would be sufficient evidence to present to a jury. Hobby v. Walker, 2011 Ark. App. 494, 385 S.W.3d 331. On appeal, we view the evidence in the light most favorable to the nonmoving party, giving the proof presented its highest probative value and taking into account all reasonable inferences deducible therefrom. Id. We affirm if there would be no substantial evidence to support a jury verdict. Id. In other words, when “the evidence is |4such that fair-minded persons might reach different conclusions, then a jury question is presented, and the directed verdict should be reversed.” Id.
Wilson argues that it is not in the best interest of the children to remain in Powers’s custody because Powers has allowed the use of illegal drugs in the home, allowed the children to drive, and does not treat the children equally. He also argues that the trial court should have considered his daughter’s expressed desire to live with him. Finally, Wilson argues that Powers avoided informing him of her physical address, refused to allow him to pick up the children at her house, interfered with visitation by making other plans, refused to cooperate in the arrangement of flights, and allowed the excessive use of alcohol around the children.
A.S.W., the parties’ eleven-year-old daughter, and M.D.W., the parties’ thirteen-year-old son, both testified about driving their grandmother’s car in Flippin, Arkansas. Powers and the parties’ two daughters lived with Powers’s parents while her current husband was deployed overseas. A.S.W. testified that she drove the car once in the backyard and once down the dirt road near their grandmother’s house. M.D.W. testified that, when he was visiting his mother at his grandmother’s house on his spring break, he drove the car about ten times either in the backyard or down the dirt road to his aunt’s house, which he said was about thirty seconds away. He said that on one occasion his grandmother had been drinking when he drove, but he said no one asked him to drive for that reason. A.S.W. testified that their mother had never asked them to drive her home because she was drunk. A.S.W. testified that she once saw her grandfather and uncle, along with some friends, smoking something brown and long and passing it around; she thought it looked like a cigar. A.S.W. |5said that she was outside while they were smoking in the house because her mother did not allow anyone to smoke around the children. M.D.W. testified that his grandfather smoked tobacco in a pipe, and he saw the pipe being passed around on one occasion. M.D.W. testified that he had heard that his mother had a tattoo of his sisters’ names, and he said that she told him she planned to get one of his name.
A.S.W. said she was happy living with her dad and wanted to continue living with him, not because she did not like her mom, but because she wanted to try living with her dad and spending more time with her dad and brother. M.D.W. testified that he was happy living with his father and wanted to continue to do so. He said that, since he began living with his dad, he had seen his mother on three occasions. He said that his mother was supposed to visit him for a weekend in April, but she did not come. Wilson testified that Powers did not even call to say she was not coming. M.D.W. and Wilson both testified that M.D.W. missed his summer visitation with Powers because of problems with his flight. Wilson wanted Powers to pay for M.D.W. to have an unaccompanied-minor escort because he was required to connect flights in a small window of time. Wilson said that Powers thought M.D.W. was old enough to fly alone and that she refused his offer to pay the escort fee as a loan. Wilson did not let M.D.W. make the trip. Emails between Wilson and Powers were introduced, which reflected arguments the parties had over exchanging the children. Wilson said that Powers refused to give him her physical address when she was staying with her parents and refused to allow him to pick the girls up at the house, despite previous orders that pick-ups would be at her house. Wilson also testified that he had to reschedule the girls’ Ififlights that summer because Powers said she was busy the day they were supposed to fly out, even though they had previously agreed to that date. Wilson said that Powers had only called M.D.W. about ten times in the past two years that he had been living with Wilson. He said Powers does not treat him the same as she did before he lived with Wilson. Wilson testified that Powers did not have the children’s best interest in mind and had a disregard for their well being. He attempted to testify that there was drug and alcohol abuse in Powers’s mother’s home, but Powers’s objection was sustained for lack of foundation.
In granting the motion for directed verdict, the trial court explained that it could relate to teaching children how to drive on dirt roads and found that it did not appear that the children drove on a heavily traveled dirt road. The trial court acknowledged that Wilson wanted the court to assume that the children’s grandfather and uncle were smoking marijuana, but the court found that there was no proof of that. The court found that A.S.W. would be happy living with either parent and that M.D.W. was not affected by his mother’s tattoo. The court found that Wilson’s statements made in the ex parte order were not supported by the testimony. Ultimately, the trial court found that “[n]o-where did any of these kids allege any thing about them being mentally abused or physically abused or treated improperly,” and there was no proof of any moral or financial instability.
We hold that the trial court did not err in finding that Wilson failed to demonstrate the existence of a material change in circumstances. Wilson’s arguments about illegal drug use and excessive alcohol use were not proved. His complaints about the children driving and the treatment of M.D.W. are not circumstances affecting the children’s welfare. The rest l7of Wilson’s complaints are merely examples of the parties’ lack of cooperation with each other. Lastly, the trial court considered A.S.W.’s desire to live with her father, but that was only one factor to consider. We affirm the denial of the petition for change of custody.
Wilson next argues that the trial court erred in setting the amount of child support due to misreading the support chart and erred in finding that his child-support obligation was retroactive to the date of the filing of the petition, September 14, 2010. Wilson claims that he brought these issues to the trial court’s attention in his motion for relief and modification of the order, but the trial court failed to correct the issues. Powers argues that these issues are not properly before us because Wilson first raised them in his posttrial motion, and he did not appeal the denial of that motion.
Arkansas Rule of Appellate Procedure— Civil 4 (2011) provides in part as follows:
(b) Extension of Time for Filing Notice of Appeal.
(1) Upon timely filing in the circuit court of a motion for judgment notwithstanding the verdict under Rule 50(b) of the Arkansas Rules of Civil Procedure, a motion to amend the court’s findings of fact or to make additional findings under Rule 52(b), a motion for a new trial under Rule 59(a), or any other motion to vacate, alter, or amend the judgment made no later than 10 days after entry of judgment, the time for filing a notice of appeal shall be extended for all parties. The notice of appeal shall be filed within thirty (30) days from entry of the order disposing of the last motion outstanding. • However, if the circuit court neither grants nor denies the motion within thirty (30) days of its filing, the motion shall be deemed denied by operation of law as of the thirtieth day, and the notice of appeal shall be filed within thirty (30) days from that date.
(2) A notice of appeal filed before disposition of any of the motions listed in paragraph (1) of this subdivision shall be treated as filed on the day after the entry of an order disposing of the last motion outstanding or the day after the motion is deemed denied by operation of law. Such a notice is effective to appeal the underlying judgment, decree, or order. A party who also seeks to appeal from the grant or denial of the motion shall within thirty (30) days amend the previously filed notice, complying |swith Rule 3(e). No additional fees will be required for filing an amended notice of appeal.
Due to the filing of Wilson’s postjudgment motion, the time for filing a notice of appeal was within thirty days from the date the motion was deemed denied by operation of law. Because his notice of appeal was filed before his motion was deemed denied, it was treated as filed the day after the motion was deemed denied. To appeal the denial of his motion, Wilson was required to amend his previously filed notice. Because Wilson did not amend his notice of appeal to include the denied posttrial motion, the arguments raised in it concerning the amount of child support and the effective date cannot be addressed on appeal. See Vibo Corp., Inc. v. State ex rel. McDaniel, 2011 Ark. 124, 380 S.W.3d 411.
Wilson’s last argument is that the trial court erred in determining that all airline tickets for the children must be purchased as round-trip tickets and must be to airports within a one hundred-mile radius of the parties’ residences. Wilson testified at the January 31, 2011 hearing that he wanted the parties to continue the arrangement of each parent buying a one-way ticket for the children to fly to them. He claims that he presented uncontrovert-ed evidence that purchasing round-trip tickets limited the available flights and increased the costs. Wilson also claims that it would be cheaper for the parties and safer for the children if arrangements could be made to depart and arrive from airports where there are direct flights, even though it would require both parties to drive three or four hours to the airport.
In reviewing domestic-relations cases, appellate courts consider the evidence de novo. Baber v. Baber, 2011 Ark. 40, 378 S.W.3d 699. We will not reverse the circuit court’s findings unless they are clearly erroneous. Id. The primary consideration regarding visitation is the |flbest interest of the child. Id. Important factors the court considers in determining reasonable visitation are the wishes of the child, the capacity of the party desiring visitation to supervise and care for the child, problems of transportation and prior conduct in abusing visitation, the work schedule or stability of the parties, and the relationship with siblings and other relatives. Id. Fixing visitation rights is a matter that lies within the sound discretion of the circuit court. Id.
The trial court stated at the hearing that it wanted round-trip tickets bought well in advance so that the children could plan their schedules and would not have to worry about a parent buying them a one-way ticket at the last minute. The trial court found that a round-trip ticket bought in advance was cheaper than two one-way tickets and ruled that the tickets were to be to airports within 100 miles of the parties’ homes to prevent any more four-hour drives to airports. The trial court stated that it was setting these requirements for the sake of the children, not the parents, and that it wanted to try to make visitation as easy on the children as it could. As Powers argues, although Wilson may not agree, the trial court’s reasoning was thoughtful and with the children’s best interest in mind. We hold that the trial court did not err in setting "visitation requirements.
Affirmed.
PITTMAN and WYNNE, JJ., agree.
. Powers cited In re Estate of Stinnett, 2011 Ark. 278, 383 S.W.3d 357, arguing that because custody orders are final, appealable orders, they are not intermediate orders that are brought up for review on appeal from a later, final order pursuant to Arkansas Rule of Appellate Procedure — Civil 2(b). | [
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Mr. Justice Compton
delivered the opinion of the Court.
This was a bill in chancery, brought to recover the north-half of the north-east quarter of section 31, township 8 north, range 20 west. The Chancellor dismissed the bill, and Petray, the complainant below, appealed.
On the 6th March, 1841, William Ennis, and Josiah L. K. Honeycut, entered said quarter section at the proper land office of the United States, and took a joint certificate of entry, which, on the same day, they transferred by assignment, to Laban C. Howell and Alexander D. Crews. On the 1st of May, 1845, the land was patented to the assignees of the certificate, as tenants in common. Howell afterwards died, and, under an order of the Probate Court, his interest in the land — designated in the proceedings in that Court, as the north half of the quarter section — was sold, and the appellee became the purchaser. On the 6th of February, 1853, Crew's, the other tenant in common, conveyed to the appellee, by quit claim deed, all his interest in the north half of said quarter section.
The appellant claims title as follows:
On the 24th November, 1838, Cyrus F. Smith recovered three several judgments, each for more than ten dollars, exclusive of costs, against Ennis, before a Justice of the Peace. Executions were issued on the judgments, and returned nulla bona; whereupon the appellant procured from the justice certified transcripts of the judgments, which he delivered to the Clerk of the Circuit Court, who, on the 23d April, 1839, filed them in his office, but omitted to enter them on the judgment docket. On the 10th August, 1841, execution issued out of the Circuit Court on the judgments, and were levied on the undivided interest of Ennis, in said quarter section, which, on the 4th October, 1841, was sold under the executions, and Smith became the purchaser; who, on the 10th April, 1844, conveyed by deed of that date, to the appellant.
Did the mere filing of the transcript in the Clerk’s office create a lien on Ennis’ interest in the land? for, if it did, then the appellant has the superior title, as the assignment of the certificate of entry, under w'hich the appellee derives his title, was made subsequent to that time. The land was entered after the transcripts were filed, but this did not make the lien the less operative; because, this Court held in Trustees R. E. Bank vs. Watson & Hubbard, 13 Ark. 74, that a judgment becomes a lien on after acquired lands.
We have seen that the Clerk omitted to enter the transcripts on the judgment docket. Was such entry essential to the creation of the lien?
Section 139, chap. 99, of the Digest, provides that “ every Justice, on the demand of any person, in whose favor he shall have rendered judgment for more than ten dollars, exclusive of costs, shall give to such person a certified copy of such judgment, and the Clerk of the Circuit Court of the same county in which the judgment was rendered, shall, upon the production of such transcript, file the same in his office, and forthwith enter such judgment in the docket of the Circuit Court for judgments and decrees, and shall note therein the time of filing such transcript.”
The 140th section provides that every such judgment “ from the time of filing the transcript thereof,” shall be a lien on the real estate of the defendant to the same extent as a judgment of the Circuit Court, and shall be carried into execution in the same manner. On a sound construction of these provisions of the statute, we think the act of entering the Justice’s judgment in the judgment docket of the Circuit Court, is directory to the Clerk, and not essential, or a condition precedent to the judgment lien, which attaches on the filing of the transcript.
It is insisted, however, for the appellee, that Ennis entered the land in his own name, with Howell’s money, which raised a resulting trust in favor of Howell; and that, therefore, Ennis never had any interest in the land, on which the judgment lien could attach. In answer to this, it is enough to say, that the proof does not show that the land was purchased with Howell’s money.
Upon the whole case, we are clearly of opinion that the appellant acquired a valid title to Ennis’ interest in the land, but whether that interest was the north half of the quarter section, we will not decide, in the present state of the pleadings; because, although the bill alleges, and the proof tends to show that Ennis and Honeycut, at the time they purchased the land, entered into a parol agreement to so divide it, as that Ennis should have the north and Honeycut the south half of the quarter section, and that the agreement was, in part, performed, and although a Court of Equity would enforce the specific performance of such an agreement, notwithstanding the statute of frauds, as it would a parol agreement to convey lands where part performance was shown (vide Goohue vs. Barnwell, Rice’s Rep. 236), yet, in the case before us, we will not so decree, for the reason that both the parties to the parol agreement, or those claiming under them, were not brought before the Court.
The decree of the Court below must be reversed, and the cause remanded for further proceedings.
Absent, Mr. Justice Rector. | [
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Mr. Justice Compton
delivered the opinion of the Court.
Appellee interposed his plea in bar of the prosecution of the appeal in this case, alleging that he sued out a fieri facias on the judgment appealed from, which was levied on personal property oí appellant, who, for the purpose of retaining the possession thereof, entered into a delivery bond, with security, which was returned forfeited by the sheriff. The appellant moved to strike out the plea.
If it be true, as alleged in appellant’s motion to strike out, that the fieri facias was sued out, etc., after an appeal was regularly taken from the original judgment, and recognizance entered into for stay of process, still the fieri facias, though irregular, was not void, as decided by this Court in Dixon vs. Watkins et al., 4 Eng. 139; and, appellant not having táken steps in the Court below, as he might have done, for the quashal of the fieri facias, etc., the judgment on the forfeited bond which followed, must be regarded as valid, and extinguishes the original judgment, as has been repeatedly held by this Court. Rector vs. Harris, Norton & Co., 19 Ark. 285; Phillips and others vs. Wills, Pease Co., 14 Ark. 595; Daugherty vs. McDonald, Ib. 597.
The motion to strike out will therefore be overruled. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
This was a bill to redeem land sold for taxes, filed by Zarilda E. Smith and Emily M. Hollingsworth, against John Macon and W. W. Alexander, in the Phillips Circuit Court.
The bill shows that the complainants were sisters, and on the death of their .mother, in March, 1849, became the joint owners of a tract of land in Phillips county. On the 4th of November, 1850, a part of the land was sold for taxes by the collector of said county; on the 3d of November, 1851, another portion of it was sold; and, on the 1st November, 1852, the remainder of the tract wras sold for taxes, by the same collector. At the last sale the defendants were the purchasers; and, by assignment of the certificates of the persons who purchased at the previous sales, obtained the collector’s deeds for the entire tract.
On the 6th of July, 1854, and more than twelve months after the last sale, a tender was made, on behalf of the complainants, to the defendants, of the amount of the taxes, penalties, costs, etc., paid by them for the land, with the value of the improvements made thereon by them, etc., for the purpose of redeeming the land; which the defendants declined to accept, etc.
At the time of the several-sales one of the complainants (Mrs. Smith) was a married woman, and the other an infant, and they, perhaps, continued to labor under these disabilities at the time of the tender and offer to redeem. The bill was filed in May, 1855, after Mrs. Smith had become discovert’. The Court sustained a demurrer to the bill, on the ground that the tender and offer to redeem were not made in time, and the complainants appealed.
Under our revenue system, the lands of all persons (not specially exempted), including the lands of infants and married women, are subject to taxation for the support of the government; and if the lands are regularly sold for non-payment of taxes, properly assessed upon them, a valid title vests in the purchaser.
Non-resident owners of lands sold for taxes, are allowed the privilege of redeeming them at any time within twelve months after the sale; but the statute does not provide that an infant or a married woman shall have any longer time to redeem than other persons (Dig., chap. 139, sec. 122); and the Courts have no authority to make an extension of time to redeem in their favor. Pryor et al. vs. Ryburn, 16 Ark. 671; Machin vs. Thompson, 17 Ark. 199. Those who are charged with the duty of protecting the interests of such persons, must look to the payment of taxes assessed upon their lands.
The decree is affirmed. | [
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Per Curiam.
Court reporter Iris Brooks failed to timely complete the transcript in the above-captioned case. Ms. Brooks was ordered to show cause why she should not be held in contempt of court for failing to comply with our order granting writ of certiorari to complete the record. See Hamilton v. Jones, 351 Ark. 382, 93 S.W.3d 694 (2002). The final deadline to return the writ was December 8, 2002. On December 6, attorney for the plaintiff S. Butler Bernard, Jr., spoke with Ms. Brooks about procuring the record for filing, at which time she explained it would not be ready until the following week. Mr. Bernard subsequently filed a motion for extension of time in which to return the writ. On January 9, 2003 the record was tendered to our clerk. At the show-cause hearing on January 16, 2003, Ms. Brooks pleaded guilty and offered mitigating circumstances to account for the delay. Ms. Brooks explained that she worked very long days that sometimes begin at 4:30 in the morning and extend until 11:00 at night. She candidly stated to the court that she was ill and too tired to continue working and had to stop. She also stated that she has two disabled children for whom she provides care.
We accept Ms. Brooks guilty plea to the charge of contempt of court, and in light of the mitigating circumstances of this case, we impose a reduced fine of $100.00 and refer the matter to the Board of Certified Court Reporter Examiners. | [
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David Newbern, Justice.
William Wacaser, the appellant, has been an insurance salesman licensed in Arkansas. The Insurance Commission received a number of complaints about Mr. Wacaser’s sales practices and initiated an investigation. The investigation concluded in a hearing before the appellee, Lee Douglas, the Insurance Commissioner. As a result of the hearing, the Commissioner concluded Mr. Wacaser had violated the Insurance Code in seven instances, and he revoked Mr. Wacaser’s license. The Circuit Court affirmed the decision as do we.
The violations found by the Commissioner were of a number of provisions of the Insurance Code. Ark Code Ann. §§ 23-66-201 through 23-66-408 (Repl. 1994). Mr. Wacaser contests most of the Commissioner’s conclusions as not being based upon substantial evidence. We need not address all of the arguments made on each of the violations found. It is enough for us to point up several instances in which the Commissioner’s conclusions were clearly justified.
1. Standard of review
Generally, when reviewing an administrative agency decision, we review the entire record to determine whether there is any substantial evidence to support the decision, whether it was arbitrary and capricious, and whether there was an abuse of discretion. Arkansas Appraiser Lic. & Cert. Bd. v. Biles, 320 Ark. 110, 895 S.W.2d 901 (1995); In re Sugarloaf Mining Co., 310 Ark. 772, 840 S.W.2d 172 (1992).
We review the whole record to see if the decision is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Arkansas Appraiser Lic. & Cert. Bd. v. Biles, supra; Wright v. Arkansas State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992).
Administrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures, to determine and analyze underlying legal issues affecting their agencies. That accounts for the limited scope of judicial review of administrative action and the refusal of the court to substitute its judgment and discretion for that of the administrative agency. Arkansas Appraiser Lic. & Cert. Bd. v. Biles, supra; Wright v. Arkansas State Plant Bd., supra.
To establish an absence of substantial evidence it must be demonstrated that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusions. Arkansas Appraiser Lic. & Cert. Bd. v. Biles, supra.
2. Rebating
The “paying or allowing, or giving, or offering to pay, allow, or give, directly or indirectly, as inducement to the insurance contract. .. any valuable consideration or inducement whatever not specified in the contract” constitutes a “rebate” and thus an unfair trade practice according to § 23-66-206(8).
Upon a finding that an agent has engaged in rebating, the Commissioner may, within his discretion, revoke the license of an agent who knew or reasonably should have known of the violation. § 23-66-210(a)(2).
At the beginning of the hearing the following colloquy occurred:
MR. HENDRICKS [Counsel for Mr. Wacaser]: Mr. Commissioner I’m not going to bore you with an opening statement. I might save you a little bit of time in that I don’t think there’s any question because the proof will show that Mr. Wacaser committed an act or acts which would be considered rebates within the meaning of the code. And as a matter of fact, he’s guilty of that and I just don’t understand the necessity for taking up your time and having to hear testimony on that. We admit that.
MR. DOUGLAS: Okay. On the particular issue on the rebating, there are several allegations here.
MR. HENDRICKS: The allegations go to show, Mr. Commissioner, that from time to time [Mr. Wacaser] would pay part of policyholder’s association fee for the policyholder in order to write the business. He’s freely admitted to that in the other hearing. There’s no dispute about it.
Mr. Wacaser now argues that no cease and desist order, as required by § 23-66-210(a), was entered by the Commissioner and that there is no evidence that he knew that the payment by him of a portion of “association fees” owed by his client constituted rebating.
Mr. Wacaser’s admission, through his counsel’s statement, of giving rebates “within the meaning of the code” could not have been clearer. Later in the hearing he testified he did not know that what he was doing constituted rebating. No authority is offered, however, to the effect that the Commissioner was required to believe that testimony. In view of the clarity of § 23-66-206(8) and Mr. Wacaser’s earlier plea of “guilty,” offered to “save time” which might otherwise have been devoted to presenting evidence on the rebating issue, we can hardly say the evidence on that issue was insufficient or that the Commissioner was not justified in finding that it had been admitted.
Mr. Wacaser offered no defense at the hearing concerning the requirement of a cease and desist order, and we will not consider that argument. See Alcoholic Beverage Control Div. v. Barnett, 285 Ark. 189, 685 S.W.2d 511 (1985).
3. Harassment
Ms. Lynette Hardin testified she met Mr. Wacaser at her place of temporary employment, Service Merchandise. He later called and told her she was “going to go to work for him” in his insurance business at his home. She went out with him to dinner and to lunch and a movie the following day. She declined further invitations, but Mr. Wacaser persisted in calling her, and, she was told, calling and speaking to coworkers at Service Merchandise “hundreds of times.” She was also informed that he told persons with whom he spoke at Service Merchandise that he was an insurance agent who had a “policy on” her and had lost some information about her he needed. Mr. Wacaser also called the office of a physician for whom she worked, seeking information about her. He called another former employer and said Ms. Hardin had applied for a job with him and he was seeking information about her.
Ms. Hardin notified Mr. Wacaser that she wanted nothing further to do with him and changed to an unlisted telephone number, but Mr. Wacaser sent mail to her address and left items on her car. She felt she was being “stalked” and reported Mr. Wacaser to the prosecutor. He was convicted of a misdemeanor for harass ing communications. See Ark. Code Ann. § 5-71-209 (Repl. 1993).
Another instance of harassment was the subject of testimony by Mike Boyce. Mr. Boyce’s wife had discussed insurance with Mr. Wacaser who then sought to discuss it with Mr. Boyce who apparently did not want to deal with it while he was working at his grocery store and asked Mr. Wacaser not to call him there. Mr. Boyce testified that Mr. Wacaser “went off his rocker” and made a threat of physical violence. He testified that a couple of months later he found all the locks at his business had been “super glued.” Later on the day he discovered the problem with the locks he received a call from a person who said, “You little smart aleck, I’ll get you again.” He identified the voice as that of Mr. Wacaser.
The Commissioner may revoke any license issued by him if, after a hearing, he finds “(1) Any cause for which issuance of the license could have been refused had it then existed and been known to the commissioner; (2) Violation of or noncompliance with any applicable provision of the laws of this state, ...” § 23-64-218(a). Mr. Wacaser does not contest the fact that he was convicted of harassing communications with Ms. Hardin, and we have no doubt that no license would have issued to Mr. Wacaser had the incidents with Ms. Hardin and Mr. Boyce been a part of his reputation when application for the license was made. A criterion for issuance of an agent’s license is a “good personal and business reputation.” § 23-64-204(a)(4).
The evidence on these matters was substantial.
4. Misrepresentation
There was substantial evidence with respect to at least one instance of misrepresentation to a client. Mr. Wacaser sold health insurance to Mr. and Mrs. Keener who testified he told them they would have immediate dental coverage. Mrs. Keener was informed upon calling the issuing insurance company that the policy had to be in effect for one year before the dental coverage became effective. The Keeners received an apology and a refund of their premium from the company. Mr. Keener testified that Mr. Wacaser thereafter called his home and accused him of “insurance scamming” and threatened to “make it hard” for him to obtain insurance.
Misrepresentation with respect to an application for insurance is a violation of the Code, § 23-66-305, and constitutes a ground for revocation of an agent’s license, § 23-60-108. The evidence of misrepresentation to the Keeners was substantial.
5. Fair hearing
Mr. Wacaser contends he did not receive a hearing free from the appearance of impropriety because of the participation of Mr. Ronald Sheffield, Deputy Commissioner. He testified he had a physical altercation with Mr. Sheffield at a golf driving range prior to the investigation into Mr. Wacaser’s activities as an insurance agent and thus that Mr. Sheffield should not have had any part in the matter. Mr. Sheffield flatly denied that any such altercation occurred and denied that he had ever met Mr. Wacaser prior to his conducting an informal hearing, at the behest of a Department investigator, as part of the investigation of Mr. Wacaser.
Mr. Sheffield did not participate further in Mr. Wacaser’s case after learning that a freedom of information request had been made by Mr. Wacaser with respect to an incident in which Mr. Sheffield had been accused of misconduct, not a part of the alleged altercation with Mr. Wacaser, at a municipal golf course.
A fair trial by a fair tribunal is a basic requirement of due process. This rule applies to administrative agencies as well as to courts. See Sexton v. Ark. Supreme Ct. Comm, on Profess. Conduct, 299 Ark. 439, 774 S.W.2d 114 (1989); See also Arkansas Elec. Energy Consumers v. Ark. Pub. Serv. Comm’n, 35 Ark. App. 47, 813 S.W.2d 263 (1991). Administrative agency adjudications are also subject to the “appearance of bias” standard applicable to judges. Acme Brick Co. v. Missouri Pac. R.R., 307 Ark. 363, 821 S.W.2d 7 (1991). As the underlying philosophy of the Administrative Procedures Act is that fact finding bodies should not only be fair but appear to be fair, it follows that an officer or board member is disqualified at any time there may be reasonable suspicion of unfairness. Ark. Racing Comm’n v. Emprise Corp., 254 Ark. 975, 497 S.W.2d 34 (1973).
Mr. Wacaser testified he felt only two of the complaints against him — none of the ones discussed above — with the Insurance Department had been prompted by someone at the Department. In view of that statement and the fact that Mr. Sheffield had only a limited participation in the revocation hearing prior to his withdrawal, the hearing’s appearance of impartiality was not compromised. We note also the Commissioner’s argument that, although Mr. Wacaser was vigorously represented by counsel, no mention of Mr. Sheffield’s participation was made until the waning hours of a six-months long investigation.
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Robert H. Dudley, Justice.
Appellant was convicted of committing the crimes of rape and sexual abuse against two young boys. He was sentenced to concurrent terms of life imprisonment and ten years. His point of appeal is procedurally barred. A review of the transcript in accordance with Rule 4-3(h) of the Rules of the Supreme Court discloses no rulings adverse to appellant that constitute reversible error.
Appellant contends that a witness, Tamara Pelton, was allowed to give hearsay testimony. The issue came about as follows. After the prosecuting attorney asked Ms. Pelton a number of preliminary questions such as where she lived, where the victims lived, whether she knew the victims, and how she knew the victims, the prosecutor asked Ms. Pelton if she made a report to the police. She answered that she had. The prosecuting attorney then started to ask his next question, but got only as far as: “What took place —”. Appellant’s attorney objected and stated, in material part: “Tamara’s relating what the boys told her . . . would be pure hearsay . ...” The prosecutor responded, in material part: “We’re not relating what they told her for the proof of the facts related, but to show how and when it was reported and the circumstances that the police became involved.” The trial court overruled the objection. In the point of appeal, appellant does not seem to contend that this ruling was in error, but because we have some question about the extent of his argument, we hold that the ruling was not in error. The question apparently was to be asked so that the jury could learn when and why Ms. Pelton contacted the police department. The testimony was admissible to show the date and basis of her act, but not to prove the truthfulness of any hearsay assertions she might make. Jackson v. State, 274 Ark. 317, 624 S.W.2d 437 (1981). There were no further objections.
Six questions later, the prosecuting attorney was attempting to correlate the dates Ms. Pelton saw a change in the boys and the dates the boys spent the night with appellant, and asked, “Now, was this the same period of time you felt like the boys had made this change?” Ms. Pelton gave an answer that first began about the change in the boys. She then volunteered that she asked the boys’ stepmother about the change, and Ms. Pelton then testified to the stepmother’s statements. She next volunteered that the stepmother told the boys they would be in trouble if they did not tell her what was wrong and why they had changed. Finally, she said: “And that’s when they started telling what happened. And that’s when I called the authorities. And they told in graphic detail what happened.”
Appellant now argues that the testimony of Ms. Pelton was hearsay, but for a number of reasons, the argument is not preserved for appeal. The only ruling made by the trial court was a preliminary ruling that the witness could tell when and why she notified the police department. A number of questions later the witness volunteered additional evidence but there was no objection, and there was no motion to strike the unresponsive part of the answer. Under these facts the issue is not preserved for appeal. Byrum v. State, 318 Ark. 87, 93-94, 884 S.W.2d 248, 252 (1994). The objection must be contemporaneous, or nearly so, with the alleged error. See Withers v. State, 308 Ark. 507, 825 S.W.2d 819 (1992). Here there was a considerable lapse of time between appellant’s objection and the witness’s volunteered testimony.
In addition, even if appellant’s objection might be said to reach the testimony later volunteered by Ms. Pelton, it was waived. When a defendant successfully objects to a question on the basis of hearsay and the same or a similar question is later asked, the defendant must renew his objection or else the initial objection is waived. Marvel v. Parker, 317 Ark. 232, 878 S.W.2d 364 (1994). There is no affirmative duty on a trial court to subsequently make evidentiary rulings on its own motion. Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993).
Finally, we do not reverse a trial court on evidentiary matters unless there is an erroneous and prejudicial ruling. Since there was no ruling about Ms. Pelton’s volunteered testimony, there can be no reversible error. Stevens v. State, 319 Ark. 640, 893 S.W.2d 773 (1995).
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David Newbern, Justice.
The appellant, Jerry Lee Burress, was stopped by a police officer for a traffic violation. By radio, the officer learned of an outstanding warrant for Mr. Burress’s arrest. Mr. Burress was arrested and was asked to empty his pockets. He was found to be in possession of a .25 caliber pistol. A search was conducted of his pickup truck. The search revealed methamphetamine and drug paraphernalia in a compartment on the instrument panel which contained the vehicle’s electrical fuses.
Mr. Burress was charged with possession of a class II con trolled substance with intent to deliver. He moved to suppress the evidence on the ground that the search was neither a proper inventory of the vehicle, which was to be impounded, nor a reasonable search incident to arrest. He also raised an issue about whether the officer arresting him was within his geographic jurisdiction when the traffic stop occurred. The motion was overruled, and Mr. Burress pleaded guilty to a lesser charge of possession, purporting to reserve the suppression issue for appeal as is permitted by Ark. R. Crim. R 24.3(b). We must dismiss the appeal for lack of jurisdiction because there was a lack of strict compliance with the provisions of the rule.
Rule 24.3(b) provides:
With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendré [contendere], reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.
Although the record of trial reveals a reference by the Trial Court to “a document entitled Guilty Plea Statement,” neither the abstract nor the record of trial contains any reference to a writing reserving the right to review. No such document is contained in the record. As guilty pleas are generally not appeal-able, an attempted appeal from a guilty plea must be dismissed for lack of jurisdiction unless the requirements of Rule 24.3(b) have been met. Bilderback v. State, 319 Ark. 643, 893 S.W.2d 780 (1995); Noble v. State, 314 Ark. 240, 862 S.W.2d 234 (1993). If the express terms of Rule 24.3 are not met, we acquire no jurisdiction to hear the appeal of a conditional plea. Bilderback v. State, supra. See Scalco v. City of Russellville, 318 Ark. 65, 883 S.W.2d 471 (1994).
Appeal dismissed. | [
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Robert L. Brown, Justice.
This is an appeal from a preliminary injunction granted by the Pulaski County Chancery Court. The injunction prevents then Secretary of State, W.J. “Bill” McCuen, from canvassing and counting votes on Proposed Amendment 2, which proposed to levy a one-eighth of one percent tax on all taxable sales of property. We refused to expedite consideration of this appeal by per curiam order on November 4, 1994. See McCuen v. Harris, 318 Ark. 522, 891 S.W.2d 350 (1994) (Harris I). The appellants are comprised of McCuen and campaigners and intervenors, including Mary Klaser and the Natural State Committee, State Senator Nick Wilson, State Senator Vic Snyder, and State Representative Mark Pryor. They raise numerous issues on appeal which center on the propriety of a preliminary injunction so close to the election. We affirm the chancery court.
On October 19, 1994, Harris filed his petition to enjoin McCuen, as Secretary of State, from (1) taking any action to place Proposed Constitutional Amendment 2 on the Ballot for the November 8, 1994 General Election, and (2) from counting votes cast for the proposed amendment. The Harris petition followed two days after this court’s decision in Walmsley v. McCuen, 318 Ark. 269, 885 S.W.2d 10 (1994), where we held that McCuen as Secretary of State had failed to comply with the publishing requirement of Article 19, § 22 of the Arkansas Constitution in connection with Proposed Amendment 3 relating to lotteries and bingo. The reason stated for the injunction in the Harris petition was the same failure of the Secretary of State to follow the publishing requirements of Article 19, § 22. On October 26, 1994, Harris filed a motion for a preliminary injunction and requested that votes not be counted pending a decision on the merits.
On November 2, 1994, the Harris petition was heard by the chancery court. On November 3, 1994, the court entered an order reciting findings of fact which we paraphrase below:
(1) Harris is a taxpayer and registered voter in Arkansas.
(2) On May 6, 1994, the Secretary of State published a public notice of Amendment 2 which contained only the popular name and ballot title of the amendment. A similar publication was made in September 1994 and two more publications were made in October 1994. The entire text of the amendment was sent for publication in all 75 counties on October 30, 1994.
(3) Private contributions to support the campaign for Amendment 2 totaled $181,085.36. Of that amount, $109,557.95 was contributed since August 8, 1994. A total of $125,000 was spent by the Natural State Committee.
(4) A total of 11,153 volunteer hours was contributed in support of Amendment 2, with the majority of those hours contributed in September and October 1994.
(5) Much of this time and money would not have been donated had the Harris petition been filed earlier.
(6) If Amendment 2 passed, the State of Arkansas could anticipate collecting approximately $36.28 million in fiscal year 1995-96 and $37.56 million in fiscal year 1996-97. That money would be irretrievably lost and would have gone to various state agencies and commissions for the preservation of natural resources, wildlife, and historical articles and buildings. There was credible testimony that the State will be irreparably harmed by loss of these revenues.
(7) Harris is 70 years old, lives on a fixed income of $2,000 per month and would pay some amount less then $563 in sales taxes under Amendment 2 during the remainder of his life. Intervenor Natural State Committee offered to post a bond in the amount of $563 to protect Harris.
The chancery court then reached conclusions which we paraphrase:
(1) Regarding the manner of publication, there is no distinction between this case and Walmsley v. McCuen, supra.
(2) The considerations pertaining to whether to grant a preliminary injunction are different from the Walmsley case in that the State has shown that irrevocable harm will occur if the injunction is improvidently granted, and intervenors Klaser and the Natural State Committee have shown that they were prejudiced in terms of time and money contributed due to the delay in filing the Harris petition.
(3) Unlike commercial litigation, the court did not believe that laches applies when the plaintiff seeks to enforce a constitutional obligation of the Secretary of State to publish a proposed amendment as required by Article 19, § 22.
(4) Harris will not be irreparably harmed by the amount of taxes paid if Amendment 2 passed but has established irreparable harm in that election procedures are mandatory before an election and directory after an election and inasmuch as no monetary value can be placed on his right to enforce the publication requirement under Article 19, § 22.
(5) A bond exceeding $70 million would be impossible for Harris to post and would not be appropriate in the context of his seeking to enforce the provisions of the Arkansas Constitution.
(6) Based on the Walmsley case and the court’s opinion that laches does not apply, Harris has an extremely high likelihood of success on the merits.
(7) The harm to Harris from not granting the injunction exceeds the harm to the State and intervenors from granting it.
(8) The argument of the legislators, as intervenors, that the injunction grants the Secretary of State a veto power over the General Assembly’s right to refer proposed constitutional amendments is overruled.
(9) The argument of McCuen and the intervenors that the preliminary injunction should not issue because its effect will be irreversible is overruled.
The court preliminarily enjoined the Secretary of State from canvassing returns and counting the votes on Amendment 2 and refrained from requiring Harris to post a bond.
I. Subject Matter Jurisdiction
Though neither party has raised the issue of subject matter jurisdiction, we can investigate such jurisdiction on our own. Coran v. Keller, 295 Ark. 308, 748 S.W.2d 349 (1988). We hold that jurisdiction exists in chancery court in this case.
Article 19, § 22 of the Arkansas Constitution provides the process for proposed amendments to the constitution adopted by the General Assembly. There are certain requirements for these amendments under Article 19, § 22: (1) they must be adopted at a regular session of the General Assembly, (2) a majority of the members of each house must agree, (3) the amendments and the yeas and nays must be entered on the journals of each house, and (4) the amendments must be published by the Secretary of State for six months.
In Walmsley v. McCuen, supra, the appellant appealed from Pulaski County Chancery Court and sought the same relief as that requested in the Harris petition based on the Secretary of State’s failure to publish the proposed amendment for six months, as required by Article 19, § 22 of the Arkansas Constitution. The chancery court in Walmsley had found compliance with the publishing requirement of Article 19, § 22. We reversed the chancery court and held that the Secretary of State had not complied with the publishing requirement. No question of subject matter jurisdiction was raised by this court or any party.
This court has considered multiple cases over the years where the issue involved was whether full compliance with Article 19, § 22 had been attained, all of which were appeals from chancery court. Becker v. Riviere, 277 Ark. 252, 641 S.W.2d 2 (1982); Wells v. Riviere, 269 Ark. 156, 599 S.W.2d 375 (1980); Jernigan v. Niblock, 260 Ark. 406, 540 S.W.2d 593 (1976); Bryant v. Rinke, 252 Ark. 1043, 482 S.W.2d 116 (1972). In none of these cases was subject matter jurisdiction ever challenged. In Becker v. Riviere, the issue was the purpose of a ballot title for Article 19, § 22 amendments. This court refused to enjoin certification of the ballot title. In Wells v. Riviere, the suit was to prevent the Secretary of State from placing three Article 19, § 22 amendments on the ballot because they had not been adopted in a regular session of the General Assembly. This court agreed that the amendments should not be placed on the ballot. In Jernigan v. Niblock, the suit was to prevent the Secretary of State from certifying an Article 19, § 22 amendment to election officials because the yeas and nays had not been appropriately recorded. We affirmed the chancellor’s injunction and made it permanent. And in Bryant v. Rinke, the issue also was the failure of the yeas and nays to be appropriately recorded for an Article 19, § 22 amendment. Again, we agreed that the Secretary of State should be enjoined from publishing those amendments. In two other cases, this court entertained appeals from chancery court for alleged irregularities in Article 19, § 22 constitutional amendments, even though the election had already been held. See Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976); McAdams v. Henley, 169 Ark. 97, 273 S.W. 355 (1925).
The dissent cites little authority to support its conclusion that only circuit court jurisdiction was appropriate. It cites one case where we held that mandamus was the proper method for removing an ineligible candidate from the ballot under Ark. Code Ann. § 7-5-207 (Repl. 1991). See State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989). That case and statute have nothing to do with Art. 19, § 22 amendments. The dissent then adduces several cases to support its notion that chancery court has no jurisdiction when the issue is what procedures are to be followed in conducting a political election. None of these cases deals with a constitutional amendment proposed under Art. 19, § 22. Indeed, as already indicated, a line of authority extending back several decades supports equitable jurisdiction for cases of this ilk where failure to comply with Art. 19 § 22 is the issue. In short, the dissent provides no authority to support its theory of circuit court jurisdiction, where an Art. 19, § 22 deficiency is involved.
Indeed, Catlett v. Republican Party of Arkansas, 242 Ark. 283, 413 S.W.2d 651 (1967), was a dispute involving political parties over statutory procedures to be followed in political elec tions. Enforcement of political rights under the election laws was not deemed to be a matter for chancery court. Here, however, the issue is the failure of the Secretary of State to comply with the dictates of Art. 19, § 22 of the Arkansas Constitution in publishing the amendment and an injunction to prohibit placement of that amendment on the ballot. Again, such matters have exclusively been brought in chancery court.
Our chancellors and prospective parties like Harris could only conclude in light of Walmsley v. McCuen, its progeny, and the history of challenges under Art. 19, § 22, that jurisdiction lay in chancery court.
II. Mootness
Similarly, before we address the appellants’ issues, we consider Harris’s contention that this case is moot due to the fact that the November 8, 1994 General Election has already been held. The appellants urge that the issues raised in this appeal are ones of great importance to the general public and should be decided even if moot. See Netherton v. Davis, 234 Ark. 936, 355 S.W.2d 609 (1962). We agree that because this case involves issues surrounding an election on a constitutional amendment referred by the General Assembly, we should decide the issues. There is also the fact that appellants ask for a dissolution of the preliminary injunction against counting the ballots. The effect of such a dissolution is unknown, but that request for relief renders the case viable.
III. Preliminary Injunction
We turn then to the appellants’ principal argument which is that Harris impermissibly delayed the filing of his petition until three weeks before the General Election and is guilty of laches.
An order granting or denying a preliminary injunction is within the chancery court’s discretion. Smith v. American Trucking Ass’n, 300 Ark. 594, 781 S.W.2d 3 (1989); American Trucking Ass’n v. Gray, 280 Ark. 258, 675 S.W.2d 207 (1983). This court will not reverse the granting of a preliminary injunction unless there has been an abuse of the chancellor’s discretion. Smith v. American Trucking Ass’n, supra; Scrivner v. Portis Mercantile Co., 220 Ark. 814, 250 S.W.2d 119 (1952); Riggs v. Hill, 201 Ark. 206, 144 S.W.2d 26 (1940).
We believe that the chancery court’s analysis of the laches issue was correct. While we do not dispute the appellants’ suggestion that the Walmsley case was the catalyst for the Harris petition, we cannot conclude that the doctrine applies in a matter where a plaintiff seeks to enforce his constitutional right to be fully informed on a proposed constitutional amendment. As the chancery court appropriately noted, the Walmsley case decides the issue that the Secretary of State failed to comply with the publishing mandates set out in Article 19, § 22.
The appellants cite us to two cases in support of their laches theory — Ellis v. Hall, 221 Ark. 25, 251 S.W.2d 809 (1952) (plurality opinion) and Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990). Neither case decides the laches question. The Ellis case concerned a petition on a referred Act under Amendment 7 to the Arkansas Constitution. A Commissioner’s report on the sufficiency of the required signatures showed the number to be approximately 1,400 short of the required number. In a plurality decision, three members of this court refused to strike the matter from the ballot on the basis of a prima facie report and further concluded that the remaining time before the General Election was insufficient for a completion of proof. In the instant case, however, proof of failure to publish in accord with Article 19, § 22 and this court’s decision in Walmsley v. McCuen, supra, was beyond dispute. Accordingly, the asserted constitutional deficiency was not a prima facie matter.
In Becker v. McCuen, supra, the petition contesting the proposed constitutional amendment (the “Interest Rate Amendment”) by the legislature contended that the popular name and ballot title, as published and certified, were misleading and deceptive. We declined to strike the matter from the ballot because the petitions had not sought to have the Secretary of State correct his order previously and had waited until the eleventh hour to do so. Although there was a mistake in the publication and certification of the ballot title by the Secretary of State, we held that there was substantial compliance. We went on to state that if the Secretary of State’s action caused prejudice to either side, it would be proper to strike the matter from the ballot. The facts in Becker are vastly different from those in the instant case. Here, the Secretary of State failed to comply with the six-month publication of the entire amendment as required by Article 19, § 22, and the chancery court found that Harris had been irreparably harmed by this failure.
The appellants also contest the chancery court’s finding that Harris would be irreparably harmed without the injunction and that he had no adequate remedy at law. They hinge their arguments on the minimal monetary expense at issue — $563 — that Harris would incur from the proposed tax. That is not the issue, however. The right to be fully and adequately informed of constitutional amendments referred by the General Assembly is inherent in the six-month publication requirement of Article 19, § 22. The constitutional mandate was violated in this case. No monetary value can be placed on the resulting prejudice. For this reason, the chancery court was correct in finding that the harm that would accrue to Harris by not granting the injunction outweighed the harm that would accrue to the appellants by granting it. Moreover, we observe no error in the chancery court’s refusal to require a $70 million bond of Harris. To have done so would have effectively foreclosed his right to a preliminary injunction and protection of his constitutional rights.
There is, lastly, the point raised that the chancery court’s ruling gives the Secretary of State veto power over proposed amendments under Article 19, § 22. That argument presupposes an intentional act by the Secretary of State to thwart the will of the General Assembly in adopting proposed amendments. There is no evidence that that occurred in the case before us. Indeed, the Secretary of State was undoubtedly attempting, in the publication of Amendment 2, to comply with certain statutes passed by the General Assembly, as was the case in Walmsley v. McCuen, supra. We, therefore, resist the temptation to decide hypothetically the effect that willful interference by the Secretary of State would have on the balance of power among the three discrete branches of government. We simply do not see this decision today as precedent for sanctioning a “veto power” by the Secretary of State over legislative amendments, as the intervenors suggest.
In sum, this is not a case where a dollar amount can be placed on the right of Harris to be fully apprised of a proposed constitutional amendment. Though, admittedly, the work and money of many volunteers and contributors who supported Amendment 2 came to naught, amending the constitution is a precise science which entails complete information flowing to the electorate.
There was no abuse of discretion by the chancery court in granting the preliminary injunction.
Affirmed.
Special Justice Winslow Drummond joins in this opinion.
Holt, C.J., Dudley and Glaze, JJ., dissent.
Roaf, J., not participating. | [
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Per Curiam.
Appellants timely appealed from the Carroll County Chancery Court’s judgment, and on appeal, the appellants’ brief was scheduled due on July 23, 1995. While this appeal was pending, appellants apparently caused a writ of execution to be issued below, seeking satisfaction of the trial court’s judgment, and as a result, appellees assert the appellants’ judgment has been satisfied in full. Appellees now move to dismiss appellants’ appeal, stating the appellants have accepted the benefits of their judgment. Appellants respond, asserting among other things that their having accepted benefits of a judgment alleged to be inadequate is not a waiver of their right to appeal. Appellants also move to stay the briefing schedule in this appeal, so a corrected or supplemental record can be filed.
First, we grant appellants’ motion to stay and remand this cause to the trial court to settle the record under Ark. R. App. P. 6(e). Second, we direct the parties to include along with the other points on appeal the issue raised in appellees’ motion to dismiss appeal. Appellants shall have thirty days from the date of this per curiam to file a supplemental record and their brief shall be due thirty days thereafter. | [
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Jack Holt, Jr., Chief Justice.
This case involves the interpretation of Arkansas’s underinsured motorist statute. Appellee Carye Beavers, the daughter of appellees Dwight Beavers and Nan Beavers, was a passenger in her parents’ vehicle on January 1, 1991 when it was struck by an uninsured motorist. At the time of the accident, the Beavers’s vehicle was insured in a single policy issued by the appellant, State Farm Mutual Automobile Insurance Company (“State Farm”), under which the Beavers had paid separate premiums for uninsurance coverage up to $25,000, as well as underinsurance coverage up to a like amount.
After having their demand for both uninsured and underinsured coverage rejected, the Beavers filed suit against State Farm, which subsequently moved for partial summary judgment on the grounds that the Beavers were not entitled to underinsured motorist coverage, as the vehicle was struck by an uninsured motorist. The trial court denied the motion, ruling that Arkansas’s under- insurance motorist statute, codified at Ark. Code Ann. § 23-89-209 (1987), and the case law interpreting the statute, allowed underinsured as well as uninsured motorist coverage to apply, and due to the fact that the Beavers had paid separate premiums for both coverages, the uninsured coverage would exist up to the applicable limit in the event that Carye’s injuries exceeded $25,000, or the limit of the Beavers’s family uninsured coverage.
The case proceeded to trial, and, at the close of the Beavers’s case in chief, State Farm moved for directed verdict on the same grounds as previously asserted in its motion for partial summary judgment. The trial court denied the motion. State Farm presented no evidence, and the jury returned a verdict in favor of the Beavers against State Farm in the amount of $700,000. The trial court entered judgment against State Farm for its policy limits in the amount of $25,000 in uninsured motorist coverage, $25,000 in underinsured motorist coverage, a 12 percent penalty, or $6000, $15,000 in attorney’s fees, prejudgment interest calculated at 6 percent from the date of demand, and post-judgment interest of 8.5 percent.
On appeal, State Farm claims: (1) that the trial court erred as a matter of law in denying their motion for directed verdict on the issue of underinsured motorist coverage; and (2) that the trial court erred in awarding a penalty and attorney’s fees on the underinsured portion of the judgment. On cross appeal, the Beavers insist that the trial court erred in failing to award them a 12 percent penalty from the date of demand. We reverse and remand, as the trial court erred in refusing to direct a verdict in favor of State Farm on the issue of underinsured motorist coverage.
I. Underinsured and uninsured motorist coverage
The Beavers originally entered into a contract to insure their vehicle with State Farm on May 30, 1990, which provided for both uninsured motorist coverage and underinsured motorist coverage, for which the Beavers paid separate premiums. This contract was renewed on November 30, 1990, with coverage to extend until May 30, 1991.
Inasmuch as the trial court found that the Beavers were entitled to insurance coverage under both its underinsured and unin sured schedules, State Farm asserts as its first allegation of error that the trial court erred in failing to direct a verdict in its favor on the issue of underinsurance motorist coverage, as the vehicle in which Carye Beavers was a passenger on January 1, 1991, was struck by an uninsured, not an underinsured motorist.
In analyzing this case of first impression, we subscribe to the method of review suggested in a related law review article that “the result in almost any stacking problem is best determined by a simple rule: Read the Statute and Read the Policy!” Douglass and Telegadis, Stacking of Uninsured and Under-insured Motorist Vehicle Coverages, 24 U. Rich. L. Rev. 87 (Fall 1989). Accordingly, we examine both the Beavers’s policy and Arkansas’s underinsured motorist statute to reach our conclusions.
The policy purchased by the Beavers describes both an uninsured and an underinsured motor vehicle. An uninsured motor vehicle is defined in part as “a land motor vehicle . . . which is not insured or bonded for injury liability at the time of the accident.” Whereas, in contrast, an underinsured motor vehicle is defined as “a land motor vehicle . . . which is insured or bonded for bodily injury liability at the time of the accident; but the limits of liability for bodily injury are less than the amount needed to compensate the insured’s damages.” Moreover, the policy specifically states that an underinsured motor vehicle “does not include a land motor vehicle . . . defined as an uninsured motor vehicle in your policy.”
Professor Alan I. Widiss, in a recent treatise, discusses this issue as follows:
Many insurance policies set forth underinsured motorist insurance and uninsured motorist insurance as separate coverages. In some instances, an insured who sustained damages as a result of an accident with an uninsured motorist has sought the coverage afforded by the underinsured motorist insurance as well as the uninsured motorist insurance benefits. Although there are not many appellate court precedents addressing this issue, in virtually all circumstances an injured person will not be able to receive both uninsured motorist benefits and underinsured motorist benefits. Simply put, as defined in the standard cov erage terms and as contemplated by legislative requirements, uninsured and underinsured are separate, distinct and mutually exclusive coverages in regard to any single motor vehicle which has been negligently operated.
Alan I. Widiss, Uninsured and Underinsured Motorist Insurance, § 35.20, at 195 (2d ed. 1992) (Footnotes omitted). As recognized by Professor Widiss, virtually all states who have addressed this issue have concluded that duplicative recoveries are not permitted. See Evenchik v. State Farm Ins. Co., 679 P.2d 99 (Ariz. App. 1984); National Union Fire Ins. v. Ferreira, 790 P.2d 910 (Haw. 1990); Berg v. Western Nat. Mut. Ins. Co., 359 N.W.2d 726 (Minn. App. 1984); Monti v. United Services Auto Ass’n, 423 S.E.2d 530 (N.C.App. 1992); Fireman’s Ins. Co. v. State Farm Mut., 370 S.E.2d 85 (S.C. 1988). See also Jenkins v. Lanigan, 396 S.E.2d 28 (Ga. App. 1990). We have examined our cases for precedent and find that we have not delved into this particular issue; thus, we give weight to this backdrop of authority furnished by Widiss.
As cited by both parties in the present appeal, this court, has, however, recognized the difference between uninsured and underinsured motorist coverage in Clampit v. State Farm Mut. Auto. Ins. Co., 309 Ark. 107, 828 S.W.2d 593 (1992), as follows:
We concede the distinction between ««insured and underi nsured motorist coverage. Uninsured motorist coverage applies when a tortfeasor either has no insurance or has less than the amount required by law. Coverage is designed to guarantee a minimum recovery equal to that amount. Underi nsured coverage applies when the tortfeasor has at least the amount of insurance required by law, but not enough to fully compensate the victim. This coverage is designed to provide compensation to the extent of the injury, subject to the policy limit. See Kluiter v. State Farm Mutual Automobile Insurance, 417 N.W.2d 74 (Iowa 1987).
Conceivably, there are situations where the difference between uninsured and underinsured motorist coverage could affect recovery . . .
Stated another way, “it is practical and pure common sense that underinsurance should not [apply] until it is determined whether the insured is in fact underinsured.” State Farm Mut. Auto Ins. Co. v. Thomas, 316 Ark. 345, 871 S.W.2d 571 (1994).
As mentioned, the policy in question specifically provides that an uninsured motor vehicle “does not include a land motor vehicle . . . defined as an underinsured motor vehicle in your policy.” Granted, the fact that the exclusion of an uninsured motor vehicle from the definition of an underinsured motor vehicle may not, standing alone, pass muster in light of the strong public policy against exclusion of coverage. See McGarrah v. Southwestern Glass Co., 41 Ark. App. 215, 852 S.W.2d 328 (1993); Arkansas Farm Bureau Ins. Federation v. Ryman, 309 Ark. 283, 831 S.W.2d 133 (1992); Ark. Blue Cross & Blue Shield v. Long, 303 Ark. 116, 792 S.W.2d 602 (1990). Yet, in following the simple rule of considering this policy’s language, including its definition and exclusions, together with the language of the statute, which clearly refers to the tortfeasor’s insurance coverage, we must conclude that underinsured coverage does not apply when the insured is struck by an uninsured motorist.
At the time of the accident, the Arkansas underinsurance motorist statute, codified at Ark. Code Ann. § 23-89-209 (1987), provided in pertinent part as follows:
(a) . . . Coverage of the insured pursuant to underinsured motorist coverage shall not be reduced by the tortfeasor’s insurance coverage, except to the extent that the injured party would receive compensation in excess of his damages. (Emphasis added.)
As State Farm suggests in its brief, the underinsured motorist statute contemplated that the tortfeasor would in fact have insurance coverage, which would therefore exclude a tortfeasor who is uninsured. Later, Act 1180 of 1993, effective for new policies issued after July 1, 1993, and to existing policies from and after their first renewal on or after January 1, 1994, changed § 23-89-209, expounding on the definition of underinsured motorist coverage:
(a)(3) The coverage shall enable the insured or the insured’s legal representative to recover from the insurer the amount of damages for bodily injuries to or death of an insured, which the insured is legally entitled to recover from the owner or operator of another motor vehicle, whenever the liability insurance limits of such other owner or operator are less than the amount of damages incurred by the insured.
(Emphasis added.) We have long stated that the basic rule of statutory construction is to give effect to the intent of the legislature, and when a statute is clear, it is given its plain meaning. Hercules, Inc. v. Pledger, 319 Ark. 702, 894 S.W.2d 576 (1995). We can look to changes to statutes made by subsequent amendments to determine legislative intent. See American Casualty Co. v. Mason, 312 Ark. 166, 848 S.W.2d 392 (1993). Obviously, both the statute in effect at the time of the accident and its 1993 amendment refer to the “the tortfeasor’s insurance coverage” and the insurance limits “of such other owner or operator,” respectively. In short, the statute is clear that underinsured motorist coverage is triggered when the tortfeasor’s insurance, not that of the insured, is less than the amount of damages incurred by the insured.
Under these circumstances, we hold that the trial court erred in refusing to direct a verdict in State Farm’s favor on the issue of the application of underinsured motorist coverage on the grounds that the policy excluded the definition of an uninsured motor vehicle from an underinsured vehicle, and, in particular, on the plain meaning of the statute in effect at the time of the accident, which clearly referred to “the tortfeasor’s insurance coverage.”
II. Penalty and attorney’s fee
For its second allegation of error, State Farm asserts that the trial court erred in awarding a penalty and attorney’s fee on the underinsured portion of the judgment, which is an extension of State Farm’s first point on appeal.
Arkansas Code Annotated § 23-89-208(f) provides for payment of a penalty and attorneys’ fees when the insurer is ordered to pay overdue benefits:
In the event the insurer is required to pay the overdue benefits, the insurer shall, in addition to the benefits received, be required to pay the reasonable attorneys’ fees incurred by the other party, plus twelve percent (12%) penalty, plus interest thereon from the date these sums become overdue.
As the penalty and attorney’s fees were calculated on the basis of both uninsured and underinsured coverage, we remand so that the 12-percent penalty and attorney’s fees can be recalculated commensurate with the recovery of uninsured benefits only.
III. 12-percent penalty
On cross-appeal, the Beavers assert that the trial court erred in failing to award them a 12-percent penalty per annum from the date of demand pursuant to Ark. Code Ann. § 23-79-208(a) (Repl. 1992). The provision provides, in pertinent part, as follows:
In all cases, where loss occurs and the . . . insurance company . . . liable therefore 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.
While the Beavers argue that the 12-percent penalty should have been awarded per annum from March 14, 1991, the date they filed their complaint, they concede in their brief that the statute itself speaks of a flat 12-percent damages upon on the amount of the loss, and cite no authority in support of their position that this penalty be awarded per annum. We have stated that, where an appellant cites no authority, nor makes a convincing argument, and where it is not apparent without further research that the point is well taken, we will affirm the decision of the trial court. Quinney v. Pittman, 320 Ark. 177, 895 S.W.2d 538 (1995).
Reversed and remanded on direct appeal and affirmed on cross-appeal.
Newbern, J., not participating. | [
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BRADLEY D. Jesson, Chief Justice.
The appellant, Arkansas State Medical Board (“Medical Board”) brought suit against appel-lees Scott Bolding, D.D.S., a dentist, and the Springdale Memorial Hospital Association, Inc. (“Hospital”). The Medical Board sought to enjoin Dr. Bolding from engaging in the unlawful practice of medicine, and the Hospital from aiding and abetting Dr. Bolding’s unlawful practice of medicine on its premises. The trial court granted summary judgment in favor of Dr. Bolding and the Hospital on the grounds that Dr. Bolding was practicing dentistry under the authority granted to him by the Arkansas State Board of Dental Examiners (“Dental Board”). Because the Dental Board had not been joined as a party defendant, the trial court reasoned that it could not grant the relief requested by the Medical Board without exposing Dr. Bolding to inconsistent determinations by two different state agencies. While we agree that the Dental Board was a necessary party, we hold that the trial court erred in granting summary judgment and reverse and remand.
The facts as set out in the Medical Board’s complaint are as follows. The Medical Board, established pursuant to Ark. Code Ann. § 17-95-301 (Repl. 1995), is the licensing and regulatory authority for the practice of medicine within the State. Pursuant to Ark. Code Ann. § 17-95-402 (Repl. 1995), the Medical Board may seek an injunction in chancery court against any person who attempts to practice medicine without a license. The “practice of medicine” includes “ [performing any kind of surgical operation upon a human being.” Ark. Code Ann. § 17-95-202(2) (E) (Repl. 1995).
The Medical Board alleged that Dr. Bolding had been granted privileges at the Hospital to perform medical procedures that he was not licensed by the Medical Board to perform. Particularly, these procedures included blepharoplasties (eyelid surgeries), rhytidecto-mies (facelifts), rhinoplasties (nose surgeries), otoplasties (ear sur geries), scalp surgeries, and cleft lip repairs. According to the Medical Board, these procedures are reconstructive plastic surgical procedures that require specialized medical training and a medical license to perform. The Medical Board sought to enjoin Dr. Bold-ing from engaging in the unlawful practice of medicine, claiming that his performance of these procedures was detrimental to the health, safety, and welfare of the people of the State of Arkansas. The Medical Board likewise sought to enjoin the Hospital from aiding and abetting Dr. Bolding’s unlawful practice of medicine.
Dr. Bolding and the Hospital filed separate answers to the Medical Board’s complaint. Though Dr. Bolding admitted to having performed some of the procedures mentioned in the complaint, he claimed that, according to the Dental Board, these procedures constituted the “practice of dentistry,” which is exempt under the Medical Practices Act’s licensing requirement under Ark. Code Ann. § 17-95-203(3)(A) (Repl. 1995). Both Dr. Bolding and the Hospital responded that the Dental Board was a party whose join-der was required under Ark. R. Civ. P. 19.
Dr. Bolding and the Hospital filed separate motions for summary judgment. Attached to the Hospital’s motion was the affidavit of Anne Buss, the Hospital’s medical staff coordinator, who averred that she had previously sought and received an opinion from the Dental Board to the effect that the privileges requested by Dr. Bolding were within the American Dental Association’s approved definition of oral and maxillofacial surgery, a specialty in which Dr. Bolding was “licensed” by the Dental Board. In response to the motion for summary judgment, the Medical Board submitted the affidavit of Dr. James A. Beckman, a plastic surgeon, who averred that the cosmetic surgeries being performed by Dr. Bolding constituted the practice of medicine, and that blepharoplasties and rhy-tidectomies did not fall within the practice of dentistry.
Following a hearing on the motions, the trial court announced from the bench that it was granting summary judgment in favor of Dr. Bolding and the Hospital on the basis that the Dental Board was a necessary party. The trial court concluded that, since the Dental Board had not been joined in the lawsuit, it could not grant the relief requested by the Medical Board without exposing Dr. Bold-ing and the Hospital to inconsistent determinations by two different state agencies. The Medical Board now appeals from the trial court’s order granting summary judgment.
The Medical Board first argues that the trial court erred in granting summary judgment and effectively dismissing the lawsuit rather than joining the Dental Board as a party under Ark. R. Civ. P. 19, governing joinder of persons needed for just adjudication. That rule provides, in pertinent part:
(a) Persons to Be Joined If Feasible. A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or, (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter, impair or impede his ability to protect that interest, or, (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of his claimed interest. If he has not been joined, the court shall order that he be made a party. If he should join as a plaintiff, but refuses to do so, he may be made a defendant; or, in a proper case, an involuntary plaintiff.
(Emphasis added.) Pursuant to this rule, we hold the Dental Board should have been joined as a necessary party, as it is the regulatory agency that is vested with the authority to decide what constitutes the practice of dentistry. Our conclusion is consistent with our previous recognition that officials who are charged with enforcing a statute, rule, or order that is being challenged, or whose presence is needed to afford complete relief to the parties, are necessary parties. Pulaski County v. Jacuzzi Brothers Div., 317 Ark. 10, 875 S.W.2d 496 (1994); citing 7 Wright, Miller & Kane, Federal Practice and Procedure: Civil, 1617 (1986); 26 Fed. Proc., L.Ed., 59:116, 117; IBM Credit Corp. v. Pulaski County, 316 Ark. 580, 873 S.W.2d 161 (1994).
In the present case, Dr. Bolding applied for and allegedly received a “license” from the Dental Board to practice oral and maxillofacial surgery. While a copy of the “license” does not appear in the record, an August 30, 1993, letter from the Dental Board to the Hospital indicates that Dr. Bolding was so licensed on July 6, 1993, and, according to the Board, was “well within the scope of oral and maxillofacial surgery in applying for the privileges he ha[d] requested” at the Hospital, and was allowed by virtue of his training to perform the procedures at issue. As the Medical Board argues that the Dental Board exceeded its authority in expanding the definition of dentistry beyond its statutory limits, we conclude that joinder of the Dental Board was necessary to afford complete relief to the existing parties under Rule 19. It follows that, under the mandatory language of the rule, see Newbern, Ark. Civil Prac. and Proc. (2d ed. 1993), § 5-3, the trial court erred in granting summary judgment and effectively dismissing the case with prejudice rather than ordering joinder of the Dental Board. The Medical Board further claims that summary judgment was improper because the case presented both a question of law, whether the Dental Board exceeded its authority by expanding the definition of dentistry beyond its statutory limit, and a question of fact, whether the procedures in question fall within this statutory definition.
In determining whether summary judgment was proper, we look to the following guideposts recently summarized in Renfro v. Adkins, 323 Ark. 288, 295-296, 914 S.W.2d 306, 309-310 (1996):
In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law.
It is further well-settled that once the moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents or depositions, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact.
(Citations omitted.)
Dr. Bolding and the Hospital ask us to affirm the trial court’s decision in light of the Dental Board s letter opinion that Dr. Boldings’s requested procedures fall within the practice of dentistry. The “practice of dentistry” is defined in Ark. Code Ann. § 17-82-102(1)(A) (Repl. 1995), and includes:
(i) Examination, diagnosis, treatment, repair, prescription, and surgery of or for any disease, disorder, deficiency, deformity, condition, lesion, injury, or pain of the human oral cavity, teeth, gingivae, and soft tissues; and
(ii) The diagnosis, the surgical and adjunctive treatment of the diseases, injuries, and defects of the human jaws and associated structures.
Ordinarily, agency interpretations of statutes are afforded great deference, even though they are not binding. Ark. Dep’t Human Servs. v. Greene Acres Nurs. Homes, 296 Ark. 475, 757 S.W.2d 563 (1988); Arkansas Pub. Serv. Comm’n v. Allied Tel. Co., 274 Ark. 478, 625 S.W.2d 515 (1981). We have further held that the interpretation given a statute by the agency charged with its execution is highly persuasive, and while it is not conclusive, it should not be overturned unless it is clearly wrong. Pledger v. Boyd, 304 Ark. 91, 799 S.W.2d 807 (1990); Arkansas Contractors Licensing Bd. v. Butler Constr. Co., 295 Ark. 223, 748 S.W.2d 129 (1988)(emphasis added). However, we hesitate to afford any special deference to the Dental Board’s letter to the Hospital approving Dr. Bolding’s requested procedures in light of the scant record before us, especially when we consider the fact that our statute defining the practice of dentistry has not been previously subjected to judicial scrutiny or time-tested agency interpretations. See State Med. Soc. v. Bd. of Exam. in Podiatry, 546 A.2d 830 (Conn. 1988).
As mentioned above, Dr. Bolding’s “license” to practice oral and maxillofacial surgery is missing from the record. The Dental Board’s letter merely indicates that it adheres to the definition of oral and maxillofacial surgery adopted by the American Dental Association:
The specialty of dentistry which includes the diagnosis, surgical and adjunctive treatment of diseases, injuries and defects involving both the functional and esthetic aspects of the hard and soft tissues of the oral and maxillofacial regions.
An explanation of the scope of Dr. Bolding’s “license” is also missing from the record. The Medical Board maintains that the practice of a specialty in dentistry is nothing more than a recognition by the Dental Board that a person has met certain certification and educational requirements so that he or she may announce a specialty. The Medical Board further asserts that there is nothing in the Dental Practices Act that would prohibit a general dentist from performing the procedures at issue in this case. With these matters in mind and in the absence of a fully developed record, we decline to hold as a matter of law that the “practice of dentistry” or the definition of “oral and maxillofacial surgery” includes such procedures as scalp surgeries, eyelid surgeries, and facelifts.
The Medical Board presented the affidavit of Dr. Beck-man, a plastic surgeon who averred that the cosmetic surgeries being performed by Dr. Bolding constituted the practice of medicine and that blepharoplasties and rhytidectomies did not fall within the practice of dentistry. Also presented was the deposition of Dr. W. Ray Jouett, Chairman of the Medical Board, who testified that following a meeting at which several plastic surgeons were present, the Board voted to seek an injunction against Dr. Bolding, as it determined he was engaged in the practice of medicine. According to Dr. Jouett, the factual question presented to the Board at the time was not whether the procedures constituted dentistry, but whether they constituted the practice of medicine. We believe that the affidavit of Dr. Beckman and the deposition of Dr. Jouett created a mixed question of law and fact, precluding summary judgment. In evaluating the evidence presented under our standards for reviewing summary judgments, we must conclude that the trial court erred in granting summary judgment in favor of Dr. Bolding and the Hospital.
It is obvious there exists a disagreement between the Medical Board and the Dental Board as to where the practice of dentistry stops and the practice of medicine commences. It is a significant question and one which should only be addressed upon a fully developed record with all necessary parties before the court.
Reversed and remanded. | [
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Per Curiam.
On May 12, 1995, judgment was entered reflecting that William L. Seaton had entered a plea of nolo con-tendere to four counts of sexual abuse and been sentenced to an aggregate term of twenty years’ imprisonment. On September 11, 1995, Seaton filed in the trial court a pro se petition pursuant to Criminal Procedure Rule 37 to vacate the judgments. The trial court denied the petition, and appellant Seaton has lodged the record in this court on appeal. He now seeks by motion appointment of counsel.
The motion is denied and the appeal dismissed. It is clear that the appellant could not prevail on appeal because the Rule 37 petition filed in the trial court was not timely. This court has consistently held that an appeal of the denial of postconviction relief will not be permitted to go forward where it is clear that the appeal is wholly without merit. See Chambers v. State, 304 Ark. 663, 803 S.W.2d 932 (1991); Johnson v. State, 303 Ark. 560, 798 S.W.2d 108 (1990); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987).
Criminal Procedure Rule 37.2 (b) provides that a petition under the rule is untimely if not filed within ninety days of the date judgment was entered after a plea of guilty. The ninety-day period for filing petitions also applies to pleas of nolo contendere. The plea of nolo contendere to a charge in a criminal case is an admission of guilt in the criminal case. See Patterson v. Odell, 322 Ark. 394, 909 S.W.2d 648 (1995), citing Hudson v. U.S., 272 U.S. 451 (1926). Criminal Procedure Rule 24, Rule 25, and Rule 26, which govern pleas of guilty and nolo contendere, make no distinction between the pleas for the purposes of the rule. See Ashby v. State, 297 Ark. 315, 761 S.W.2d 912 (1988). A judgment founded on a plea of nolo contendere may be challenged in a proceeding under our postconviction rule. See Cusick v. State, 259 Ark. 720, 536 S.W.2d 119 (1976).
Here, judgment was entered on May 5, 1995, but the petition for postconviction relief was not filed until September 11, 1995, which was more than four months after the judgment was entered. The time limitations imposed in Rule 37 are jurisdictional in nature, and the circuit court may not grant relief on an untimely petition for postconviction relief. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989). As the appellant did not file his petition for postconviction relief within the ninety-day period set by Rule 37 to raise such claims, he was entided to no relief under the rule. Smith v. State, 321 Ark. 195, 900 S.W.2d 939 (1995).
Motion denied and appeal dismissed. | [
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Andree Layton Roaf, Justice.
This appeal arises from a minority shareholders’ action for breach of fiduciary duty. Appellants Charles Long and other members of the Long family, minority shareholders of Lion Oil Company (“Lion”), filed an action against appellees Ergon, Inc. (“Ergon”), the largest shareholder of Lion, and Leslie B. Lampton, president of both Ergon and Lion, alleging breach of fiduciary duty in the implementation of a corporate recapitalization plan. The Longs appeal a jury verdict in favor of Lampton and Ergon. They assert that the trial court 1) erred in denying a motion for new trial on the ground that the verdict was clearly against the preponderance of the evidence; 2) erroneously instructed the jury that they had the burden of proving Lampton and Ergon owed them a duty as a fiduciary; and 3) erroneously instructed the jury that Lampton and Ergon could rely on the business-judgment rule. In their cross-appeal, Lampton and Ergon raise five points to be addressed only if we reverse on direct appeal. We find no error and affirm.
Charles L. Long and Leslie B. Lampton, as president of Ergon, were among five investors who came together in 1985 to purchase a refinery, pipeline, and other related assets located in El Dorado, Arkansas. Long is one of four brothers involved in various business ventures in Union and Miller Counties, including Long Brothers Oil Company. Ergon is a family owned corporation headed by Lampton and based in Jackson, Mississippi. The new corporation became known as Lion Oil Company. It was determined that $24 million was needed to acquire the refinery and sustain its operation. The longtime attorney of Charles Long also served as counsel for Lion and drafted the Pre-Incorporation Agreement. Under this agreement, each investor was to obtain a letter of credit from a financial institution, in the amount of $2 for each $1 par value subscribed in stock. Of the 8 million shares of stock originally issued, Charles Long invested $1.5 million in cash with a letter of credit from First Commercial Bank (“First Commercial”) in the amount of $3 million; he later transferred some of his stock to other members of his family. Ergon invested $4.5 million and provided a $9 million letter of credit. Several other investors were later brought into the corporation; Ergon ultimately owned 43.3% of the stock and the Longs owned 18.6%.
Ergon contracted to manage Lion in exchange for a fee of 20% of the net profits. This management was overseen by Lion’s seven-member board of directors, which met monthly and received information concerning all aspects of the refining operation, including financing needs. Long served as chairman of the board from Lion’s inception until April 1989. His attorney also served on the board, although he held no stock in the company.
Because Lion’s business of refining oil required periodic purchases of crude oil in tanker-size lots, Lion needed to have access to substantial amounts of credit from a commercial lender. Lion originally operated under a $60 million line of credit from General Electric Capital Corporation (“GECC”) secured by Lion’s inventory, its receivables, and a pledge of the shareholders letter of credit. During the initial four years of operation, the directors periodically discussed eliminating the shareholders letters of credit but decided not to do so because of the need for the additional credit they provided to Lion.
The events which gave rise to this lawsuit and appeal took place primarily between February and September 1989. As the May 1, 1989, expiration date of the financing arrangement with GECC approached, the board directed Lion’s chief financial officer to locate a more advantageous line of credit. The board subsequently selected First National Bank of Boston (“Bank of Boston”) to replace GECC because its credit line was less expensive and more generous in the valuation it placed on Lion’s inventory and receivables. Lion’s directors, including Long, voted unanimously on February 28, 1989, to make the change form GECC to Bank ofBoston effective May 1, 1989.
Although the Bank ofBoston did not require Lion to provide shareholders’ letters of credit, it did agree to provide additional credit per dollar of each shareholder letter of credit offered by Lion, therefore making available to Lion an additional $16 million in credit. The Bank ofBoston would not accept transfer of the GECC letters of credit, but required the issuance of new letters in its favor or amendments which named it as beneficiary.
The Longs’ initial $3 million letter of credit with First Commercial had been issued on July 1, 1985. Although the preincorpo-ration agreement did not set a time limit for the shareholders’ letters of credit, the banking institutions which agreed to issue them were told that they would be needed for only three to five years, or until Lion had established sufficient credit on its own. Each shareholders’ letter of credit provided that it could be called in the event the lending institution failed on or before April 1 of any year to extend or renew it for an additional year. Therefore, if First Commercial failed to renew the Longs’ letter of credit by April 1, this would be considered a default which would allow GECC to demand payment on the letter of credit. If the Longs’ letter of credit was called by GECC, First Commercial would in turn demand $3 million from the Longs who could then look to Lion for repayment.
The Longs’ letter of credit was renewed for 1988-89 and was “irrevocable and transferable.” However, because of certain financial reversals suffered by the Longs, First Commercial advised them in February 1989, that it would not renew their letter of credit for 1989-90. At the March 1989 board meeting, Charles Long told the other board members, including Lampton, of the bank’s intention not to renew his letter of credit.
GECC attempted to call the Longs’ letter of credit and demanded payment from First Commercial on April 13, 1989. Upon learning of GECC’s call on the letter of credit, Long and his attorney sent correspondence to First Commercial and GECC threatening litigation unless the demand for payment was withdrawn. Lampton learned in a telephone conversation with an officer of First Commercial on April 13, 1989, that First Commercial would agree to extend the letter of credit for one more year, however, he was advised that the letter would be issued as nontransferable. GECC withdrew its demand for payment after the letter of credit was renewed.
At the annual shareholders meeting on April 27, 1989, Lamp-ton was elected chairman of the board to replace Charles Long, who had been chairman since 1985. Two of Lampton’s sons and the son of another substantial shareholder were elected to replace three other board members.
Lampton testified that after learning of the Longs’ plight at the March Board of Directors meeting, several shareholders complained that it would be unfair for the Longs to maintain the same amount of stock while withdrawing two-thirds of the capital they had agreed to provide because they would or could not renew their letter of credit. According to Lampton, he was requested by other shareholders to find a way to address this inequity. At the April 27, 1989 board meeting, Lampton provided a draft recapitalization plan prepared by Lion’s attorneys in Mississippi who had been working on the company’s transaction with the Bank of Boston.
The recapitalization plan was approved at a September 1989 shareholders’ meeting and granted each shareholder the right to acquire at $.10 per share, one additional share of stock for each dollar in letters of credit placed with the Bank of Boston. According to Lampton, this plan was designed to encourage shareholders to put up new letters of credit by acquiring more stock which could be pledged as collateral. The plan further provided for the number of shares to be increased from 10 million to 30 million followed by a reverse stock split to reduce the number of shares. Because they were unable to put up letters of credit and thereby purchase additional shares of stock, the Longs’ 1.5 million shares were reduced to 675,000 and their $1.5 million investment reduced to $675,000. It is this loss in their investment which gave rise to the Longs’ action against Lampton and Ergon.
1. Motion for new trial
The Longs first argue that the trial court erred in denying their motion for new trial because the verdict was clearly against the preponderance of the evidence regarding Lampton’s breach of his fiduciary duty. Lampton, and consequently Ergon, breached their fiduciary duty, according to the Longs, when Lampton failed to either timely advise the Longs that First Commercial would not issue a transferable letter of credit which would have allowed them the opportunity to request a call of the letter of credit, or to act within his authority to require First Commercial to issue a transferable letter of credit.
On appeal, this court’s standard for reviewing the denial of a motion for new trial is whether there is any substantial evidence to support the jury verdict. Ray v. Green, 310 Ark. 571, 839 S.W.2d 515 (1992). In determining the existence of substantial evidence, we must view the evidence in the light most favorable to the appellee. Egg City of Arkansas, Inc. v. Rushing, 304 Ark. 562, 803 S.W.2d 920 (1991). Evidence favorable to the appellee is given the benefit of all reasonable inferences permissible under the proof. Scott v. McClain, 296 Ark. 527, 758 S.W.2d 409 (1988). Substantial evidence compels a conclusion one way or the other and is more than mere speculation or conjecture. Ray, supra.
While a trial court has some discretion in setting aside a jury verdict, there is no longer the broad discretion that this court formerly recognized. Ray, supra. The trial court is not to substitute its view of the evidence for that of the jury’s unless the jury verdict is found to be clearly against the preponderance of the evidence. It is only where there is no reasonable probability that the incident occurred according to the version of the prevailing party or where fair-minded men can only draw a contrary conclusion that a jury verdict should be disturbed. Blissett v. Frisby, 249 Ark. 235, 458 S.W.2d 735 (1970).
The standard of conduct for directors of a corporation is set out in Ark. Code Ann. § 4-27-830 (Repl. 1996), which provides in pertinent part:
A. A director shall discharge his duties as a director, including his duties as a member of a committee:
1. In good faith;
2. With the care an ordinarily prudent person in a like position would exercise under similar circumstances; and
3. In a manner he reasonably believes to be in the best interest of the corporation.
A person standing in a fiduciary relationship with another is subject to liability to the other for harm resulting from a breach of the duty imposed by the relationship. Cherepski v. Walker, 323 Ark. 43, 913 S.W.2d 761 (1996); Restatement (Second) of Torts § 874 (1979). In the search for inherent fairness and good faith to a corporation and shareholders, conduct of directors must be subjected to “rigorous scrutiny” when conflicting self-interest is shown. Hall v. Staha, 314 Ark. 71, 858 S.W.2d 672 (1993). The duty of good faith requires “honesty in fact in the conduct or transaction concerned.” Ark. Code Ann. § 4-1-201 (Supp. 1995).
The Longs contend that it is significant that First Commercial’s Executive Vice President, Ed Henry, told Lampton on April 13, 1989, that the bank would not renew the Long Brothers letter of credit on a transferable basis. They assert that had Lampton brought this to their attention, they could have used the threat of a GECC call to force First Commercial to issue a transferable letter of credit. However, GECC did effectively call Longs’ letter of credit with First Commercial. This, of course, would have created a $3 million debt that the Longs would have to repay to First Commercial. The Longs’ attorney testified that they asked GECC to not call the letter of credit and threatened litigation against GECC and First Commercial Bank if they continued with this course of action. First Commercial consequently agreed to extend the letter of credit for an additional year, however it was not transferable and thus terminated upon the expiration of the GECC financing on May 1, 1989. The Longs make much of the fact that an April 14 letter sent by Henry to Lampton confirming their conversation of April 13, and copied to Charles Long and his attorney was not postmarked until May 8, and was not received by them until May 10, after the nontransferable letter of credit had been issued by First Commercial. However, the bank sent this letter, not Lampton, and there was no evidence that Lampton was involved in causing the letter to be delayed. Moreover, although the attorney for the Longs reviewed the Longs’ letter upon its renewal, he testified that he did not notice that it was non-transferable.
The Longs argue in the alternative that Lampton should have used his leverage with GECC to force First Commercial to issue a transferable letter of credit. Lampton testified that First Commercial was the Longs’ lender — not his or Lion’s, and that he felt that it was not his responsibility to tell Long or Long’s attorney that he knew that First Commercial was not going to issue a transferable letter of credit.
The Longs also argue that Lampton breached his fiduciary duty because he knew that the Longs were not able to transfer their letter of credit prior to finalizing the arrangement with the Bank of Boston which involved shareholder letters of credit. Even though the Bank of Boston did not originally require shareholder letters of credit, Lion’s board concluded that letters of credit were necessary to obtain additional financing and to enable Lion to purchase foreign oil. The Longs’ attorney testified that had he thought about it, he would have concluded that because of their financial reversals, the Longs would not be able to extend their letter of credit with First Commercial. Lampton, on the other hand, testified that he had no idea of the Longs’ banking connections, and that he assumed that the Longs would be able to obtain a letter of credit from another lending institution. However, because the Longs had experienced financial difficulties since their initial letter of credit was issued by First Commercial in 1985, they were not able to obtain a letter of credit from other lenders. Lampton denied that he devised the recapitalization plan to take advantage of the Longs’ financial difficulties, and testified that it was the Longs’ threat to sue GECC and First Commercial which caused the Bank of Boston to refuse to accept transfer of the shareholders letters of credit.
The weight and value to be given to the testimony of witnesses in such matters is in the exclusive province of the jury. Ray, supra. Here, fair-minded persons could conclude that Lampton breached no fiduciary duty in that loyalty and good faith did not compel Lampton to assume, first, that he knew more about the Longs’ banking relationships than they did and second, that the Longs, who were represented by an attorney in their dealings with First Commercial, needed him to take over negotiations with the bank to obtain more favorable terms for their letter of credit. As there is substantial evidence to support the verdict, we cannot say that the trial court erred in denying the motion for new trial.
2. Duty of a Fiduciary
The Longs next assert that the trial court erred by incorrectly instructing the jury that they had the burden of proving that Lamp-ton owed them a duty as a fiduciary. The trial court instructed the jury that the Longs had the burden of proof as to each of the following four essential propositions:
First: That they have sustained damages.
Second: That Leslie B. Lampton, Sr., owed plaintiffs duties as a fiduciary.
Third: That Leslie B. Lampton, Sr., breached his fiduciary duties to the plaintiffs.
Fourth: That such breach of fiduciary duties was a proximate cause of plaintiffs’ damages.
We agree that it was error to instruct the jury that the Longs had the burden of proving that Lampton owed them a duty as a fiduciary.
This court has repeatedly stated the issue of what duty is owed, if any, is always a question of law. First Commercial Trust Co. v. Lorcin Eng’g., 321 Ark. 210, 900 S.W.2d 202 (1995). Further, it is the duty of the judge to instruct the jury and each party to the proceeding has the right to have the jury instructed upon the law of the case with clarity and in such a manner as to leave no grounds for misrepresentation or mistake. Dorton v. Francisco, 309 Ark. 472, 833 S.W.2d 362 (1992).
An erroneous instruction which is likely to mislead the jury is prejudicial. Bailey v. Rose Care Center, 307 Ark. 14, 817 S.W.2d 412 (1991). However, we have also held that although we will presume prejudice from the giving of an erroneous instruction, the error may be rendered harmless by other factors in the case. Davis v. Davis, 313 Ark. 549, 856 S.W.2d 284 (1993); Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993).
During the trial, Lampton testified that “I recognize that I had a duty as a shareholder and a director to Mr. Long is another shareholder. I recognize that I have a duty to treat all of the shareholders fairly and equally in this situation.” Lampton also testified that “[a]ll parties have a fiduciary duty, including a duty of fairness and loyalty and not taking advantage of the other.”
Lampton’s counsel also admitted the existence of such a duty in his closing argument:
We do not deny that Mr. Lampton had a duty. He had a duty to the other shareholders, to the other directors, to his corporation as a company, including all of its employees. . . . So, we do not deny that element. We will concede, and do not dispute that a duty existed.
Finally, the following instruction was given immediately after the charge which erroneously advised that the Longs had the burden of proving that Lampton owed them a duty:
Directors, officers and shareholders of a corporation owe fiduciary duties of care, good faith and loyalty to each other.
In St. Louis Southwestern Railway Co. v. Grider, 321 Ark. 84, 900 S.W.2d 530 (1995), this court stated that jury instructions should not be reviewed in isolation, but rather considered as a whole in determining whether the applicable law has been given to the jury.
In the present case, the testimony of Lampton and the statements of his counsel, along with the instruction which advised the jury of the fiduciary duty owed by directors, officers, and shareholders of a corporation rendered harmless the erroneous instruction.
3. Business-judgment rule
For their third point, the Longs contend that the trial court erred by instructing the jury that Lampton and Ergon may rely on the business-judgment rule. The trial court gave the following instruction over the objection of the Longs:
The Business Judgment Rule is a presumption that in making a business decision, the directors or officers of a corporation acted on an informed basis in good faith and in an honest belief that the action was in the best interest of the corporation. Here defendants may rely on the protection of the Business Judgment Rule if they establish by a preponderance of the evidence that there was a predominating corporate purpose for their actions and that they acted in good faith.
This court has stated that two elements must be satisfied in order for the business-judgment rule to be invoked. First, its protection can only be claimed by disinterested directors whose conduct otherwise meets the tests of business judgment. Second, to invoke the rule, directors have a duty to inform themselves of all material information reasonably available to them prior to making a business decision. Having become so informed, they must then act with requisite care in discharge of their duties. Hall v. Staha, 303 Ark. 673, 800 S.W.2d 396 (1990).
The Longs argue that Lampton and Ergon were not entitled to this instruction because they were not disinterested. This contention was also raised in Smith v. Leonard, 317 Ark. 182, 876 S.W.2d 266 (1994). However, in Smith, we affirmed the chancellor’s determination that there was a predominating corporate purpose for the transaction, even though Leonard also received a benefit.
We further agree with the Court of Appeals of Ohio that “disinterested directors” does not mean indifferent directors, or directors with no stake in the outcome. Koos v. Cent. Ohio Cellular Inc., 641 N.E.2d 265 (Ohio App. 8 Dist 1994). If that were so, shareholders could never be directors or officers. Id. Disinterested directors are those who “neither appear on both sides of the transaction nor expect to derive any person financial benefit from it in the sense of self-dealing, as opposed to a benefit which devolves upon the corporation or all stockholders generally. Id. The decisions of disinterested directors will not be disturbed, according to Koos, if they can be attributed to any rational business purpose. Id. Self-interest, alone, is not a disqualifying factor even for a director. Cede & Co. v. Technicolor, Inc. 634 A.2d 345 (Del. 1993). To disqualify a director, for rule rebuttal purposes, there must be evidence of disloyalty. Id.
Under the recapitalization plan, the Longs and all other Lion shareholders had the right to purchase additional shares of Lion stock on the basis of letters of credit provided for the benefit of the Bank of Boston. By giving all shareholders the right to purchase additional shares at $.10 per share, the plan provided a means of obtaining additional collateral for a letter of credit. Lampton testified that even if a shareholder could not obtain a letter of credit, stock purchase rights could be sold to recoup some of the investment. Clearly, any benefit from the recapitalization plan flowed not only to Lampton and Ergon, but to all other shareholders as well.
Moreover, the trial court instructed that Lampton and Ergon were not entitled to rely on the business-judgment rule unless there appeared to be a predominant corporate purpose for their actions. Lampton testified to several reasons for the recapitalization plan. Other shareholders were unwilling to allow the Longs to maintain their percentage of interest in Lion if they did not put up a letter of credit, and threatened to also not renew their letters of credit. The letters of credit were deemed necessary by the board because they allowed Lion to obtain a larger line of credit with the Bank of Boston. Individual shareholders were able, through the plan, to increase their amount of collateral in the company, and thereby increase the amount of stock owned by each shareholder. Each shareholder, not just Ergon, was able to benefit from this plan. Consequently, we cannot say that the trial court erred in allowing reliance on the business-judgment rule.
4. Cross-appeal
On cross-appeal, Lampton and Ergon raise five points to be addressed only if the judgment is reversed on direct appeal. Since we affirm on direct appeal, we do not consider the issues raised in the conditional cross-appeal.
Affirmed on direct appeal; cross-appeal moot.
Jesson, C.J., and Glaze, j., dissent.
DUDLEY, J., not participating. | [
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Walker, J.:
The facts necessary to a proper understanding of the questions of law presented, are, that Isaac W. Burgett, a resident of Crittenden County, Arkansas, died at his redicenee late in May, 1872.
At the time of his death he was indebted to E. M. Apperson & Co., of Memphis, Tennessee, for supplies furnished the deceased, to aid him in cultivating a crop in said county that year; letters of administration were granted in Arkansas, to Peter Burgett and Emma J. Burgett, who had the crop cultivated to maturity; to enable them to cultivate which, they procured supplies and advancements from Hill, Fontaine & Co., Memphis, Tenn., for the payment of which they shipped from the plantation in Arkansas, four bales of cotton in the month of October, 1872, to Hill, Fontaine & Co., at Memphis.
This cotton was attached by Apperson & Co. to pay the account which the intestate had contracted with them for supplies furnished.
The suit was brought by them against the administrators in Arkansas, and by supplemental bill against James A. Anderson, the administrator in Tennessee, and Hill, Fontaine & Co.
' This suit was pending in Tennessee, on the 28th of July, 1873, at which time the same account sued on in Tennessee, was presented to the administrators in Arkansas for allowance and classification, which they refused.
On the 18th of January, 1875, the account was presented to the Probate Court for probate and classification. Whereupon the administrators filed their plea in abatement, in which they sot up the pendency of the suit in Tennessee upon the same ■cause of action, to which Apperson & Co. demurred.
The demurrer was sustained, and judgment rendered in.favor ■of Apperson & Co.; from which the administrator Grider, who had been appointed administrator de bonis non, appealed to tne ^Circuit Court.
Upon the trial de novo in the Circuit Court, the. sufficiency of ;the plea was again brought before that court by demurrer, which ’ /was overruled, and Apperson <& Co. filed a replication in which ■they alleged that since the filing of the plea in abatement, the &o;tion in Tennessee had been dismissed, and the costs paid.
The Circuit Court held the replication good, no further defense was interposed by the defendants, and final judgment was rendered in favor of Apperson & Co., from which the administrator has appealed to this court. '
The rulings of the court below present the only question for -our consideration.
It has not escaped our notice that this ancillary administration ■was had in Tennessee upon the ground that the property of the . intestate was found in that State, and that the facts in this case ■very clearly show that the cotton attached was part of the estate which belonged to the administrators in Arkansas; it was in pro-mess of administration by them, they were chargeable with it as assets, and it certainly was not subject to other administration; but as no contest upon this point was raised in the court below, wo need not press our consideration of it to ascertain whether in fact the court in Tennessee ever acquired jurisdiction of the case there.
We will, therefore, proceed to the consideration of the questions raised by the demurrer, as if the jurisdiction of the court was unquestioned, and as if valid suits between the same parties for the same cause of action was pending, the one first brought, in the State of Tennesee, the other in Arkansas.
Chitty, in his work on pleading, vol. 1, p. 453, says: “It may be pleaded in abatement that there is another action pending, for the same cause, in the same or any other superior court at "Westminster.” But it will be seen that the author has no reference to actions pending in foreign courts.
Actions pending in foreign courts, such as courts in the different states, or in the United States Court in another circuit, or district, cannot be pleaded in abatement of another action brought. Bowne & Seymour v. Joy, 9 John., 221; Newell v. Newton, 10 Pick., 470; Walsh v. Durkin, 12 John., 99.
In the case of Bowne & Seymour v. Joy, the court say, the pendency of a suit in a foreign court by the same plaintiffs against the sanie defendants, for the same cause of action, is no stay or bar to a new suit introduced here.
This is the rule in the English courts, and it was carried so far in the case of Maule v. Murray, 7 Term Rep., 470, as not to regard a foreign judgment which was taken subject to a case then undecided, as to the amount, the exceptio rei judicatce applies only to final sentences abroad, upon the merits of the case. 1 John, cases, 34.
Upon the authority of these decisions we should hold the -plea in abatement of the action in Arkansas, because a former action was pending in Tennessee, a foreign court, was not sufficient, and should have been so adjudged upon demurrer, and when a demurrer was filed to the replication to it, by relation, the sufficiency of the plea'was presented, under this rule, that a bad replication is a sufficient answer to a bad plea.
But testing the replication upon its own merits, it is insisted that it is defective, because at the time the plea in abatement was filed, .the suit in Tennessee was pending, and, that as the plea was good when filed, the subsequent dismissal of the suit could not defeat the plea by replying the existence of the subsequent-fact, put in issue by the plea.
It is true that under the earlier and more strict rule of pleading, such, would seem to have been the case. Chitty, at p. 454, says : “ The plaintiff cannot, after a plea in abatement of the pendency of a prior suit, avoid the effect of the plea, by discontinuing the first action, which was pending at the time of the plea,” and this rule was approved and adopted in the Court of Appeals in Kentucky. Frogg’s Ex’r, v. Long’s Adm’r, 3d Dana 156, in which Judge Ewing said: “It is well settled that if the plea of prior action, pending for the same cause be pleaded, and if true at the time when pleaded, that the plea cannot bo defeated by a subsequent discontinuance of a prior action.”
Such was, no doubt, the common law rule, under which, if the first suit had not been brought in a foreign court, the replication should have been held insufficient; but under our Code practice, pleas in abatement, as such, have been abolished, and matter in abatement allowed to be interposed, in connection with pleas in bar, under a most liberal provision for amendments, intended to prevent delay, and bring the parties to issue upon the merits of the case.
The real ground of objection to the prosecution of the second suit was, that one suit for the same cause having been instituted, the defendant should not be harrassed with two suits, and two recoveries, but when the prior suit was dismissed, whether before or after plea pleaded, as the objection was removed, and the fact brought by replication to the knowledge of the court, there could be no substantial reason for denying it to be plead and proven.
This view of the case seems to have been taken under a more liberal practice in several of the courts. Thus, in the case of Chamberlain v. Echart, 2 Bissell’s Rep., 124. To a suit on a promissory note, the defendant pleaded in abatement the pend-ency of a suit in the State court; plaintiff1 replied that since the filing of the plea the suit had been dismissed. When .considering the question thus presented, Judge Drummond said: “There is an opinion given by Chief Justice Parsons, proceeding on the ground, that a suit pending at the time of the commencement of the first suit, is a good plea; but this, I think, is not the present doctrine. At any rate, it is not the doctrine of this State; and I think it ought not to be, because when a suit is once commenced, and is dismissed, the fact that it was pending at the time the second suit was brought, is no reason why the court in which the second suit is commenced should not go on and adjudicate on the rights of the parties, because though there was a difficulty once, it is removed. When the suit was .commenced there was an obstacle in the way, when the plea was pleaded there was the same obstacle in the way; but now, when the replication is filed, the obstacle is removed.” Beals v. Cameron, 3d Howard’s Practice, 414; Averill v. Patterson, 10 Id., 85, are decisions to the same effect.
These decisions meet our approval, and under them we must hold the replication good, and that the Circuit Court did not err in overruling the demurrer to the plaintiff’s replication.
Let the judgment be affirmed. | [
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English, Ch. J.:
Indictment as follows:
The Grand Jury of Lee County, etc., etc., accuse Louisa Johnson of the crime of grand larceny, committed as follows, viz.: That said Louisa Johnson on etc., at etc., one pocket book and contents of the value of twenty dollars of the goods and chattels of John W. Watson, unlawfully and feloniously did steal, take and-carry away, against the peace,” etc.
The defendant demurred to the indictment; the court overruled the demurrer, and she standing mute, the court ordered the plea of not guilty entered for her, upon which she was tried, and the jury returned the following verdict: uWe, the jury, find the defendant guilty, and fix the penalty at three years in the •penitentiary.”
The defendant filed motions for a new trial and in arrest of judgment, which were overruled, and she was sentenced according to the verdict, took a bill of exceptions, and prayed an appeal, which was allowed by one of the judges of this court.
If the appellant had been indicted for stealing the contents of a pocket book, every lawyer who knows anything about criminal pleading would pronounce the indictment bad, for want of a description of the property stolen. But she was charged with stealing “ one pocket book and contents.” What were the contents of the pocket book ? Did it contain United States treasury notes, bank bills, bonds, notes, bills of exchange, checks, deeds, gold or silver or coin, or any thing which by common law or statute is made the subject of larceny ? The indictment does not answer this question; it is silent as to what were the contents of the pocket book. Was the indictment good for any thing beyond the charge of stealing one pocket book? We think not.
We have examined many cases in which persons were indicted for stealing pocket books, purses, wallets, boxes, trunks, ■etc., containing bank notes, money, papers and other articles of value, and in all instances, when the prosecutions were for stealing the contents as well as the pocket book, purse, etc., the contents are described with more or less particularity; among them the following:
State v. Due, 7 Foster, N. H., 256 ; People v. Swan, 1 Parker Cr. R., 9 ; People v. Cogdell, 1 Hill, 94; Porter v. State, Martin and Yerger, 225 ; Regina v. Mole, 47 Eng. C. L., 416 ; DuBois v. State, 50 Ala., 139.
Chitty gives a precedent for stealing a bag containing copper coin. 3 Ch. Cr. L., 960.
A n indictment for stealing a bag and contents, would be uncertain to every intent as to the contents, for the bag might contain coin, shot or peas.
In DuBois v. State, 50 Ala., 139, the prisoner was charged with stealing a pocket book and contents from the person of another, and the indictment was in the form following :
“ The Grand Jury of etc., charge that before the finding of this indictment, James DuBois feloniously took and carried away,’ from the person of William E. Beard, one pocket book, containing fifty dollars in national currency of the United States, the exact denomination of which is to the Grand Jury unknown, one note on W. P. Pushing for two hundred and twenty dollars, one note on Orr & Bonner, for two hundred and. seven dollars, two notes on W* Gr* Eandall, for five hundred dollars each, of the value of more than fifty dollars, the personal property of William E. Beard, against the peace, etc.”
On demurrer to the indictment, the court held that it contained a sufficient description of the stolen property.
By act of 23d January, 1875, (Acts 187A-5, p. 112), every person convicted of larceny, when the value of the property stolen exceeds the sum of $2, shall be punished by imprisonment in the penitentiary not less than one, nor more than five years, and when the value of the property does not exceed the sunt of $2, by imprisonment in the county jail not more than one year, and by fine not exceeding $300. This act amends sec. 1,357 of Gantt’s Digest.
The appellant was not charged with stealing any thing but one pocket book, its contents being in no way described;
On the trial, the court permitted the State to prove the con- ■ tents of the pocket book, against the objection of the appellant.
The pocket book was proven to be worth about six bits or a dollar, when new, and it had been in use about a year when stolen. It seems from the testimony of John W. Watson, the owner, to have contained $20, of which there were two 50 cent, pieces of United States currency, and the balance in small bills, of Helena money, perhaps, which was then current in Lee County. 'The pocket book and its contents, the witness stated,, were worth $20.
The appellant was not charged with stealing fractional currency,, or Helena money, whatever it may be, and the'State had no right ' to prove the value of the contents of the pocket book, to make out a case of grand larceny against appellant. There was no proof that the pocket book was worth more than $1.
Under the charge in the indictment, and upon such of the evidence as was conjpetent, the jury was not warranted in finding the appellant guilty of a. penitentiary offense, under the act. above cited, nor the court in rendering judgment in accordance-with the verdict. The judgment should have been arrested, and! a new trial granted appellant.
There was no direct proof that the appellant stole the pocketbook, but there were circumstances in evidence from which the jury no doubt believed her guilty of the theft, as they so found.
The judgment must be reversed, and the cause remanded for a. new trial, etc. | [
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Harrison, J.:.
This was an action of assumpsit, commenced on the 2d day of January, 1867, by William D. Reagan against George E. White and Whitson B. Taylor, on a promissory note for $1100, dated 26th, and delivered on the 27th February, 1860, payable one'day after date, and bearing 10 per cent, interest from maturity.
The case has before been in-this court; see White v. Reagan, 25 Ark., 622. After it was remanded to the Circuit Court the plaintiff filed replications to the defendant, White’s, plea of the statute of limitations, and a demurrer to the plea of recoupment. The demurrer to the plea of recoupment was sustained; and White then filed a cross complaint against the plaintiff and his co-defendant Taylor, to which he also made other persons hereafter named, defendants; and thereupon moved that the action be transferred from the law to the equity side of the court. The court refused to transfer the action to the equity docket; and the plaintiff filed an answer to the cross complaint, which,, however, does not appear in the transcript, and the issues were submitted to a jury, which found a verdict for the plaintiff for the sum of $2784. Taylor made no defense, and the other persons named as defendants in the cross complaint do not appear to have been served with process. White, without moving for a new trial, appealed.
The plea of recoupment was in substance: that the plaintiff, on the 27th day of February, 1859, loaned to James C. Hodges $1000, for which Hodges and the defendants, as his securities, executed to him a writing obligatory of that date, payable one day after date and bearing 10 per cent, interest from date until paid ; that. Hodges agreed with the defendants before he got the money, that if they would become his securities in the writing obligatory, to-give them a mortgage, with a relinquishment of his wife’s dower-on Lot No. 3, in Block No. 26 andBlockNo. 20, in Fayetteville,, as an indemnity against their liability; that the plaintiff and James R. Pettigrew, who were partners in the practice of law, undertook and promised the defendants, in consideration of their becoming such securities, to draw the mortgage, and that they accordingly drew a mortgage, which was executed by Hodges and also his wife ; but the same was so negligently and unskillfully drawn, that it contained no relinquishment of dower; that Hodges died‘on the 1st day of October, 1859, leaving him surviving his said wife, who upon his death became seized of a. dower estate in the said property; and that he left no other-property ; that the said property was, when the mortgage was given, and then was, if not subject to the dower estate of Hodges’' widow, ample indemnity to the defendants; but subject to that estate, its value did not exceed $500, and was’not a sufficient indemnity ; that the defendants after Hodges’ death gave the note sued on in discharge and satisfaction of the writing obligatory^ but when the same was given, he said White was not aware of the fact that the dower had not been relinquished in the mortgage deed, and was of the belief that he and Taylor were fully indemnified; and that by reason of the said negligence and unskillfulness of the plaintiff and Pettigrew, he had lost all benefit of the mortgage.
The plea assumes that the note and writing obligatory were; for the same consideration. But this assumption is unfounded; the note was given in satisfaction of the writing obligatory, and was intended to operate as an extinguishment and not as a continuation of it. The undertaking' of Reagan and Pettigrew to write the mortgage, was no part of the consideration of the note, and the note and obligation also varied as to the amount, time of payment, and parties. “If a settlement be made of the old contract by a new arrangement, varying it in form, and agreed to be substituted therefor, upon a sufficient consideration, the plea of this accord would be a sufficient answer to an action on the original contract.” Sto. on Con., sec. 982, a. Recoupment is the right of the defendant to claim a reduction of the plaintiffs’ demand on account of some breach of stipulation by the plaintiff in the contract sued on, and is allowed to avoid circuity of action ; and the right only exists where a cross action can be maintained. Pom. Rem., secs 731, 732; Ledger on Damages, 541; Wheat v. Dotson, 12 Ark., 699; Rotan v. Nichols, 22 Ark., 244. And the damages recouped must arise in the particular contract on which the action is founded. Deming v. Kemp, 4 Sandf., 147; Leayback v. Jones, 9 Mo., 470.
It is thus seen that the court very properly sustained the demurrer to the plea.
The allegations of the cross complaint, so far as it is necessary to state them, were: that James C. Hodges, on the 27th day of February, 1859, applied to the plaintiff for a loan of $1000, and it was agreed between the plaintiff, said Hodges and the defendants, that he should lend Hodges the money, and Hodges and the defendants as bis securities, should execute to him a writing obligatory for the sum, payable twelve months after date, and bearing 10 per cent, interest from date until paid, and that Hodges should indemnify the defendants by a mortgage with a relinquishment of his wife’s dower, on Lot No. 3, in Block No. 26 and Block No. 20, in Fayetteville, which mortgage should be written and prepared by the plaintiff, who was a practicing lawyer; that the plaintiff loaned Hodges the money, and Hodges and the defendants executed the writing obligatory; that the plaintiff did draw a mortgage on the property, but only to and in favor of the defendant Taylor, which on the first day of March, 1859, was executed by Hodges and Alley, his wife, and on the same day acknowledged and recorded; but that through the negligence of the plaintiff, the name of the wife was not inserted in the mortgage, and it contained no relinquishment of her doAver. That Hodges died intestate in the latter part of the year 1858, leaving him surviving the said Alley, his widow, and Robert Hodges, his only child- and heir at laAV ; and letters of administration upon his estate Avere, in December of that year, granted to Martin G. Bonham.
That the defendants, on the 26th day of February, 1860, gaAre the note sued on in satisfaction and discharge of the Avriting obligatory; but, he, the defendant, George E. White, had not then seen the mortgage, and Avas under the impression and belief that it Avas to Taylor and himself jointly, and that the dower had been relinquished. That since the pendency of the suit, and at the March Term, 1869, of the court, one of his attorneys in the case, John T. Humphrey, Avithout his knoAvledge or consent, or any authority from him, entered into some kind of a compromise with the plaintiff, and in compliance thereAvith paid him $500, AAhich money Humphreys borro Aved from James E. Tott, a merchant in Fayetteville, on his White’s account, and though he had, notAvithstanding the said Humphrys had no authority to borroAAmoney for any purpose on his account, paid Trott, Avho had acted in good faith, he had refused to ratify the compromise and had even rejected and repudiated the same.
That on the 6th day of June, 1867, Taylor filed a bill in equity against the Avidow, heir at kw and admistrator of Hodges, for the foreclosure of the mortgage, alleging therein that he had satisfied and paid the writing obligatory, Avhich suit Avas still pending.
That Hodges left at his death money sufficient, after deducting the widow’s portion thereof, to pay the writing obligatory, which passed to the possession of his widow, and was converted by her to her own use, and that no property whatever came to the hands ■of his administrator, and that his estate was insolvent.
That Hodges, when the mortgage was given, had no title or right to Lot No. 3, in Block No. 26; that Block No. 20, if unincumbered by the doAver estate, is of sufficient value to satisfy the debt and indemnify the securities, but Avould not, subject to that, sell for more than $300.
That Tayler was insolvent. That Robert Hodges had died intestate, leaving him surviving Sarah Hodges, his Avidow, and Magnolia, wife of James Poor, James C., Jr., Robert K. and William T. Hodges, his children and heirs at law, all of whom are infants, and that be left no estate and there was no administration.
That the dower of Alley Hodges had never been assigned her, and a sale of the property, Avhich Avas then in the occupancy of the widow and children of Robert Hodges, subject to her dower ■estate, would result in sacrificing it. And that the suit by Taylor to foreclose the mortgage, though brought in his name, Avas for the benefit of Reagan, ayIio had given him an acquittance and release of the debt.
Alley Hodges, Martin G. Bonham, Sarah Hodges, James Poor, Magnolia Poor, James C. Hodges, Jr., Robert H. Hodges and William Hodges, were made with the plaintiff, and Taylor defendants.
The prayer A\ras: that Alley Hodges be required to account for the moneys of her husband’s estate, which she had converted to her own use; and that the value of her dower should be ascertained ; that the mortgaged premises be sold, and if the moneys m converted, after deducting one-third, which she might right fully retain, was found to be equal to such value, that the same be sold discharged of the dower, and that the plaintiff be paid the amount due him after deducting the $500 received from Humphreys, and after'the plaintiff was paid, that he White be paid the $500 paid through Humphreys.
There is no reason why the appellant might not have pleaded the payment of $500 and the release of Taylor; and the claim for damages by the mistake in drawing the mortgage could have been set up, if at all, as well by counter claim as by cross complaint. But we think it could not be set up in the action in either' mode. The counter claim must be a cause of action arising out of the contract or transactions set forth in the complaint, as the foundation of the plaintiff's claim, or connected with the subject of the action. Sec. 4570, Gantt's Digest.
It will not bo contended that the damages arose out of the contract, the note sued on, or any transaction set forth in the complaint; nor can it be insisted that they are in any way connected with the subject of the action. Mr. Pomeroy in his recent work on Remedies, sec. 742, says: “ If a contract is set forth in the complaint or petition as the foundation of the plaintiff’s demand, the counter claim must arise out of that same contract; and this plainly embraces the ancient recoupment of damages, although far broader in its operation than that species of defense. If a ‘ transaction ' is set forth as the foundation of the plaintiff's demands, the counter claim must arise.out of that ‘ transaction,’and so far as ‘transaction’ is something different from or additional to ‘ contract,' this is a provision not identical in its effects with either ‘ set-off' or ‘ recoupment;’ it clearly embraces many instances of equitable cross-demand and relief in favor of the defendant; and the only real doubt is, whether it extends also to legal causes of action.
Whatever be the nature of the claim asserted by the plaintiff; for the Codes contain no restriction in respect of this matter, any counter claim may be pleaded “which is connected with the subject of the action,” and in regard to the subject of the action he says: “It would, as it seems to me, be correct to say in all cases, legal or equitable, that the ‘subject of the action’ is the plaintiff’s main primary right which has been broken, and by means of whose breach a remedial right arises. Thus the right of property and possession in ejectment and replevin, the right of possession in trover or trespass, the right to the money in all cases of debt, and the like, would be ‘the subject’ of the respective actions. Although in a certain sense, and in some classes of suits, the things themselves, the lands or chattels, may be regarded as ‘the subject,’ and are sometimes spoken of as such, yet this cannot be true in all cases; for, in many actions, there is no such specific thing in controversy over which a right of property exists. The primary right, however, always exists, and is always the very central element of the controversy around which all the other elements arc grouped, and to which they arc subordinate.” Ib., sec. 775.
In Tinsley v. Tinsley, 15 B. Mon., 454, the plaintiffs had commenced proceedings to obtain possession of a farm in possession of the defendant. T.he defendant had thereupon brought an equitable suit to restrain the proceedings, had given bond and obtained a preliminary injunction. The suit being dismissed, the plaintiff brought his action on the land to recover damages for being kept out of the possession of the farm by means of the injunction during the continuance of the suit. The defendant pleaded a counter claim, alleging that notwithstanding the injunction, the plaintiff wrongfully took possession of the land, and took and converted the crops thereon to his own use, and demanding judgment for the damages thus caused. The court of appeals of Kentucky say: “It is not required that the counter-claim itself shall be founded in contract or arise out of the contract set forth in the petition; but it is sufficient that it arise out of the transaction set forth in the petition, or be connected with the subject of the action. As the petition states the occupation of the land by Mrs. Tinsley during the pendency of the injunction, and claims damages therefor, any interferance by the plaintiff which rendered such occupation less profitable or less valuable to the occupant constituted a cause of action arising out of the transaction set forth in the petition, and is connected with the plaintiffs action.” “'A counter-claim,” say the Supreme Court of Indiana, “is that which might have arisen out of, or could have had some connection, with the original transaction in the view of the parties and which at the time the contract was made, they could have intended, might, in some event, give pne party a claim against the other for compliance or non-compliance with its provisions.” Conner v. Winter, 7 Ind., 523.
The breach of contract complained of by the appellant took place, and his alleged cause of action arose a year before the note sued on was made; the mortgage formed no part of the consideration of the note, and the giving of the note was entirely independent of the execution of the mortgage.
A cross-complaint is allowed “when a defendant has a cause of action against a co-defendant, or a person not a party to the action, and affecting the subject matter of the action.” Sec. 4559, Gantt’s Digest; Trapnall, ex’r., v. Hill et al., 31 Ark., 346.
We have just seen that the appellant had no cause of action against the plaintiff arising either out of the contract, or connected with the subject of the action, and it is impossible to conceive what cause of action he had against Taylor or any other of the defendants to his cross complaint, that in any manner affected the plaintiff’s right to recover, or the subject matter of his action.
“The only real difference between a complaint and a cross-complaint,” says the author we have quoted, “is that the first is filed by the plaintiff and the second by the defendant. Both contain a statement of the facts, and each demands affirmative relief upon the facts stated.” Ib. sec. 808. And we may add, the difference between a counter-claim and a cross-complaint is this: in the former the defendant’s cause of action is against the plaintiff, and in the latter against a co-defendant, or one not a party to the action.
The cross-complaint alleged or showed no reason why the plaintiff should be restrained in his action until the matters set up in the cross-complaint between White and Taylor and the new parties could be determined. It contained no averment of the plaintiff’s insolvency, or any matter showing irreparable injury to him, if judgment .were recovered against him; yet the transfer of the actiou to the equity side of the coprt, would have been a virtual inhibition of proceedings in the plaintiff’s action, without bond or security as required in injunction suits, until the cross-complaint was heard.
More than eight years elapsed after the alleged breach of the plaintiff’s contract before he commenced his action, and the cross-complaint shows no cause why suit was not brought within three years, or the time of limitation, or that might displace the bar of the statute. White’s right of action arose when the plaintiff violated his contract. Sedg. Damages, 117; Wilcox v. Executors of Plummer, 4 Pet., 172; Howell v. Young, 5 Barn. & Cress., 259.
In the case of Wilcox v. The Executors of Plummer, the plaintiff placed in the hands of Plummer, an attorney, a note for collection; upon which he, on the 7th of May, 1820, instituted suit against the maker, but'neglected to sue the indorser. The malced proved insolvent, and, on the 8th of February, 1821, he instituted suit against the indorser, but committed a fatal mis take by a misnomer of the plaintiffs; after various delays the case was brought to trial in April, 1824, and the plaintiffs were non-suited. On the 9th of November, 1822, the action against the indorser became barred by the statute of limitations. The plaintiffs, on the 27th of January, 1825, brought suit against Plummer for negligence in not suing the indorser before the 9th of November, 1822, and for negligence and unskillfulness in the conduct of the suit. The defendant pleaded the statute of limitations of three years.- The court say: “When the attorney was chargeable with negligence or unskillfulness his contract was violated, and the action might have been instituted immediately. Perhaps in that event no more than nominal damages may be proved, atid no more recovered; but on the other hand, it is perfectly clear that the pi'oof of actual damages may extend to facts that occur and grow out of the injury, even up to the day of the verdict. If so, it is clear the damage is not the cause of the action.” And in the case Howell v. Young, the plaintiff in 1844 contracted with J. Olive and R. Olive to lend them £3000 at interest,-the repayment to be secured by a warrant of attorney to confess judgment, and certain mortgages of free hold and leasehold premises; and the defendant, an attorney, was retained by the plaintiff to ascertain whether the warrant of attorney and mortgages were a sufficient security, and he represented to the plaintiff that they were so. In 1820, the interest to that time having been regularly paid, it was discovered th^t the warrant of attorney and mortgages were not a sufficient security. It was held, “that the misconduct or negligence of the attorney constituted the cause of action, and that the statute of limitations began to run from the time, when the defendant had been guilty of such misconduct, and not from the time when it was discovered that the securities were insufficient.”
But the cross-coinplaint was before the court and an answer Was filed to It, and the applicant had upon the trial all the benefit from it, he possibly could have had, if the action had 'been transferred to the equity side.
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Walker, J.:
Williams brought an action in the Lafayette Circuit Court against Lemay for damages sustained by him on account of a malicious prosecution by attachment by Lemay in a justice’s court against Williams.
. The action in the justice’s court was commenced November 1st, 1874, upon a note which purported to have been executed on the 7th of May of that year, for $158, due 25th of December thereafter, and upon a mortgage of that date given on a crop of cotton and corn to be. planted and cultivated in that year, to secure the payment of said note.
The substance of the plaintiff’s allegation is, that Lemay maliciously and without probable cause, sued out two orders of attachment; the first against four thousand and five hundred pounds of seed cotton and two hundred bushels of corn, the property of Williams, and caused the same to be executed; that the property was by virtue of said order, taken and kept out of the possession of Williams for sixteen days, and the process returned to the justice as executed; that immediately after such return, Lemay maliciously and without probable cause, sued out from said justice another attachment against three other bales of cotton, the property of Williams, and caused the same to be executed, and the three bales of cotton to be taken and kept out of the possession of Williams for fifteen days; and that the suits by attachment under which said cotton and corn were attached, had been and were discontinued.
The defendant, Lemay, in his answer, denies malice and sets up in defense, title to the property in himself. This issue was tried by a jury who found a verdict in favor of the plaintiff, upon which judgment was rendered. Defendant, Lemay, appealed to this court.
It appears from the evidence that Lemay, in 1874, was engaged in selling goods and supplies to planters and others in Lafayette County, and Williams, a planter, had rented land from Parks to be cultivated in corn and cotton. Prior to that time there had been dealiugs between Lemay and Williams, who, as a witness, deposed, that on the 31st of March, 1874, he and Lemay settled their account for the year 1873, and he was found to be indebted to Lemay $150, for the payment of which he executed his note ; that on the 7th of April, 1874, Lemay furnished witness a trade note for $8, took up the note for $150, and witness executed to Lemay a new note for $158, to secure payment of. which as well as for further supplies to be furnished, witness executed to Lemay a mortgage on the crop of corn and cotton to be raised that year on the Parks’ plantation.
The date of the mortgage was left blank with an understanding that it was to be dated at a future day, when the mortgage was-to be acknowledged. That thereafter, on the 15th of April, he applied to Lemay for a pair of shoes and was refused further credit -; that the true date of the note was 7th of April, 1874, but that afterwards, without authority from Avitness, it was changed to the 7th of May of that year. On the 25th of May thereafter, Lemay and Wilson, the justice of the peace, came to where witness Avas at work, and requested him to date and acknowledge the deed as executed on that day ; witness admitted that he had signed the deed, but refused to date it as of the 25th of May and acknoAvledge it as of that date. Wilson had the deed in his hand at the time, but made no inquiry of witness Avhether he had executed it for any purpose or consideration Avhatever. Lemay Avas also sworn as a Avitness and testified, that both the note and mortgage were executed and delivered to him by Williams on the 7th of May, 1874 ; that the word April was Avritten by mistake, and corrected by erasing April and inserting May in place of it; that the date of the mortgage was left blank to be inserted as of the date when it Avas acknoAvl'edged.
Worris, a subscribing witness to the note, testified that both the note and mortgage were executed on the same day, but at Avliat particular date he could not recollect.
Wilson, the justice, testified that on the 25th of May, when Williams was requested to acknoAvledge the deed, it was not dated, and that he, at the instance of Lemay, dated it as of the 7th of May.
In support of the testimony of Williams, Parks deposed that he saw Lemay about the 1st of April, who told him that- he had made an arrangement with Williams to furnish him supplies for the year 1874, and understood from Lemay, that he had taken from Williams a mortgage; remembers that Lemay told Avitness that he intended to take mortgages from those to whom he was furnishing supplies, and have them acknowledged before Wilson, after the crops were up; that about three days after the 25th of May, when Lemay and Wilson applied to Williams to acknowledge the deed, Lemay told witness, Williams had refused to acknowledge the deed and had acted the rascal with him.
John A. Steele deposed that he was clerk for Lemay in February, March and part of April, 1874, that he left the store of Lemay on the 19th or 20th of April, remembered that on the last of March, or first of April, he saw Lemay and Williams staiiding atr the desk fixing up papers, but what they were did not remember; saw Williams come out with a trade note in his hand. Some days after this heard Williams apply to buy a pair of shoes, Lemay refused to let him have them. Williams then told Lemay that he was done with the mortgage and would have nothing more to do with it.
Thompson, another witness, deposed that before the overflow which commenced late in April, he was at Lemay’s store and heard Lemay tell his clerk, if Williams called for the mortgage to take to AYilson, to let him have it.
The evidence of an expert was that the alteration of the date of the note appeared to have been made with different ink from that used in the body of the instrument.
. This is substantially the evidence touching the execution of the note and mortgage, and particularly as to dates.
If, in fact, the note was executed on the 7th of April and subsequently changed to the 7th of May, without his consent and to the prejudice of Williams’ rights, the alteration was a forgery and the-note void. The time when the mortgage was executed was important, in determining whether there existed a crop of corn and cotton; if no such crop was in existence, then there was no property mortgaged, no contract could be enforced in a court of law, as held in Apperson v. Moore, 30 Ark., 56, and approved in several of our later decisions.
The question raised by the instructions, as to whether the deed was in fact acknowledged, or was falsely certified as having been o acknowledged, was properly held by the court to be of no importance, because, under the state of the case presented, it was an issue between the grantor and grantee, not involving the rights of third parties, and if executed, whether acknowledged or not, was binding as between themselves, as held in Stirman et al. v. Cravens et al., 29 Ark., 548.
It is true that there is evidence that corn was planted before the 7th of May; it is also in proof that about the same time there was an overflow of the land which continued until after the 7th of May, but whether the corn at that time was up and growing does not appear. The testimony shows that the crop of cotton was planted between the 7th of May and the 5th of June; such being the case, there was, at the time when the deed, according to Lemay’s own showing, was executed, no crop of corn and cotton in existence, nothing to which his mortgage could attach.
The suit in the Justice’s Court brought by Lemay against Williams, stripped of this claim of mortgage lien upon a crop of corn and cotton, stood alone upon the note for $158, due 25th December, 1874.
To sustain him in bringing an action for its recovery on the 1st day of October, 1874, before the time when his debt was due, leaving out of the question whether' the note was not void, on account of the change of date, which was the proper subject for the consideration of a jury, we will proceed to consider the remedy sought and the rights of Lemay under it, as important in determining the real question at issue; which is, whether the' prosecution was or not malicious, and so clearly without a probable cause of action, as to impute to Lemay malice in prosecuting his attachments against the property of ’Williams.
We have seen that the complaint was made before a justice of the peace, was based upon the note and mortgage as the grounds 'of his right to attach the property, and first, as to the note which was not then due, and of course, unless under extraordinary statutory provisions, was not a present cause of action. Lemay knew his , debt was not due; of this there could be no mistake; he may have taken, counsel as to the means of enforcing his extraordi- • nary remedy; if he did so, it is to be presumed that he was advised of the state of the case which must necessarily exist to entitle him to the process of attachment. If upon a full statement of the facts, he was advised by counsel, that he could proceed by attachment and under that advice acted, evidence that he acted under it although not conclusive, will strongly tend to repel the implication of malice. Shannon v. Buckner, 77 Ill., 164; Murphy v. Lawson, Ib., 172; Cox v. Davis, 55 Geo., 289.
Lemay was certainly not entitled to the process of attachment under the provisions of sec. 388 of Gantt's Digest, which alone has reference to debts or demands due. Sec. 437 provides for process by attachment before the debt becomes due, and then only in cases where the debtor has sold, conveyed, or disposed of his property with a fraudulent intent to cheat or defraud his creditors, or to hinder or delay them from collecting their debts, or is about to make such sale or disposition with such intent, or is about to remove his property or a material part of it, out of the ' State with a like fraudulent intent.
These material facts are wanting in the complaint in this instance. The' plaintiff states as a matter of belief, that unless prevented by the court, four thousand and five hundred pounds of seed cotton and two hundred bushels of corn will be sold, conveyed or removed from the State by Williams, all of which-Williams certainly had a right to do, unless done with a fraudulent intent to injure and defraud his creditors.
If such fraudulent intent had, in fact, existed, but by oversight or inadvertence had been omitted in the complaint, proof of such fact would tend to remove an imputation of malice, but there is nothing in the case before us which indicates that Williams’ conduct was fraudulent; it is in proof that he informed Lemay that he had sold part of the crop and intended to make further sale; in effect he denied the validity of the mortgage and put Lemay in possession of the fact.
The remaining sec. 441, Gantt’s Dig., gives to the mortgagee a right of attachment upon personal property upon petition sworn to that he has a just claim; that the property is about to be sold, or caused to be removed out of the State, or that he has reasonable cause to believe that unless prevented by the court, that the property will be sold or removed out of the State.
It may have been the intention of the plaintiff to pursue his remedy under this section, as a mortgage lien creditor; but conceding the fact that he had a valid mortgage lien upon the crop of corn and cotton (which we think is not the case), the question is, could he assert such right before a justice of the peace.
Counsel for the appellant refers to the Constitution of 1868, which gives to justices of the peace jurisdiction in actions of contract and replevin in limited amounts, and that this jurisdiction extends to all contracts legal and equitable) limited only by the amount in controversy. In support of this view reference is made to the Kentucky Code of Practice under which justices of the peace are vested with equitable jurisdiction in certain cases. If the decisions of the Kentucky courts and others referred to, sustain this, equitable jurisdiction, it is certainly because it is conferred upon justices of the peace by statute. In this State no such statute exists; on the contrary, there is an express limitation of the jurisdiction of justices by special limitation.
Sec. 3718, Gantt’s Dig., confers exclusive jurisdiction upon justices of the peace in actions of contract and replevin absolutely to the extent of $200, and concurrently between $200 and $500, but in express terms of limitation declares that it shall extend to' no other civil action, and as if to leave no question of doubt upon the subject, the legislature, sec. 3725, limits the jurisdiction of justices of the peace to such as are above enumerated, and with these exceptions declare them to be the sole and only laws governing the mode of proceeding in Justices’ Courts in civil proceedings.
The provision in sec. 441 for attaching personal property which has been mortgaged, has reference alone to proceedings in the Circuit Court, refers alone to Circuit Courts and the judges of Circuit Courts without any reference whatever to Justices’ Courts and justices of the peace.
Thus sec. 443 provides, that the court in which the action is brought, or the judge thereof, or any judge of the Circuit Court, may grant an order of attachment upon such terms and conditions as to security, etc., and the disposition to be made of the attached property.
The power is conferred upon the court in which the suit is brought, and the judge of the court, or the judge of any other court in vacation.- "It is an ancillary proceeding intended to lay hold of property and hold it from waste and misapplication, subject to the final adjudication of the case upon its merits. It is a proceeding in regard to which justices of the peace have nothing to do ; no jurisdiction .and no power to order an attachment. It is under this state of case, as to the legal right of Lemay to attach the property of Williams and of all the attendant circumstances connected with the action brought by Lemay against Williams, that the question at issue is to be determined, which is whether the suit was maliciously prosecuted without probable cause, to the damage of Williams. If Lemay had a good cause of action, then existing, and was prosecuting it under process isssued by a court of competent jurisdiction to afford to him the redress to which by law he was entitled, all presumption of malice is repelled; because then there is probable cause for the institution of the suit, indeed a complete cause of action and legal right to enforce it, and when such is the ease, if by mistake some act is omitted which was necessary to bring the case within the provisions of the law, there would certainly be a good probable cause of action, and malice would not be inferred; but when a party in fact has no valid cause of action, or has one which is not due, or which can be enforced when not due only by extraordinary process, to entitle himself to obtain the benefit of which he has not complied with the law, these; circumstances with others, tend to show a want of probable cause, and if sufficiently strong may be used as evidence of malice, and an intention to injure the party against whom the process is issued, because the party suing out the process must be presumed to know whether he has a legal debt, whether it is due or not, and if not due that the debtor by his false and fraudulent acts has given to the creditor the right to lay hold of the property and take it from the possession of the debtor, and hold it to be subjected to the payment of his debt when due; and if in fact the creditor sues out a process without a legal debt, or before it becomes due and in the absence of fraudulent intent on the part of the debtor, these circumstances strongly tend to fix upon him the penalties of the law for malicious prosecution, which may, however, to some extent be repelled by other evidence tending to show probable cause.
If in the case under consideration Lemay had based his right of action solely upon his claim of mortgage lien, and not also upon his note for the satisfaction of a debt within the jurisdic tion of the justice of the peace, the subject matter would clearly have been one over which a justice would have no jurisdiction, and trespass not case would be the appropriate remedy.
Pei’haps under our Code of Practice this distinction would be less important; but in this case there is a note as well as a mortgage for the subject of consideration, and the process of the justice should not be treated as absolutely void, and the action for malicious prosecution may be sustained under the state of case presented. The genéral rule laid down by Greenleaf is illustrated, not shaken by the authorities referred to by counsel, and fully sustains the view which we have taken of the law governing the case. In paragraph 449 he says: “ that it is not necessary that the whole proceedings be utterly groundless, for if groundless charges are maliciously and without probable cause coupled with others which are well founded, they are not on that account the less injurious, and therefore constitute a valid cause of action ; nor is the form of the prosecution material, the gravamen being that the plaintiff has improperly been made the subject of legal process to his damage.”
The same authority, paragraph 453, says : “The plaintiff must also show that the prosecution was instituted maliciously and without probable cause, and both these must concur. If it were malicious and unfounded but there was probable cause for the prosecution, this action cannot'be maintained.”
In a legal sense any unlawful act done wilfully and purposely to the injury of another, is as against that person, malicious; the proof of malice need not be direct but may be inferred from circumstances.
The'position is fully sustained in the .case of Commonwealth v. Snelling, 15 Pick., 321, in which Parker, J., said, “ the term malice in this form of action is not to be considered in the sense of spite or hatred against an individual but of malus animus, and as denoting that the party is actuated by improper and indirect motives,” and in thus holding, Justice Parker substantially sustains the first and second instructions of the plaintiff, in which the court instructed the jury that, “ if the defendant Lemay did not act as a man of caution and prudence, impartially, reasonably and without prejudice and malice, or a desire to gain an undue advantage of the plaintiff, they 'may find that the order was issued without probable cause, and may infer malice on the part of the defendant.”
In Holliday v. Sterling, 62 Mo., 321, it was held-that “in an action for maliciously suing out an attachment, express malice need not be shown, but may be inferred from want of probable cause.”
In the case of McWilliams v. Hoban, 42 Md., 56, in an action for malicious prosecution the instructions of the court were: “If there were no circumstances connected with the transaction out of which the prosecution arose, which would warrant a reasonable, dispassionate man in believing the plaintiff to have been guilty of the charge made against him, and in undertaking such prosecution from public motives, then there was no probable cause for the prosecution, and the jury may infer, in the absence of sufficient proof to satisfy themjo the contrary, that the prosecution was malicious.”
. Conceding, however, as we must, that the instructions, if taken apart from the three given at the instance of the plaintiff, might have tended to mislead the jury, yet when taken in connection with it they were not seriously objectionable.
The court instructed the jury at the instance of the plaintiff properly qualified, that the word “ malice,” as used in these instructions is not to be construed by the jury in the sense of spite or hatred on the part of the defendant to the plaintiff, and if therefore the jury believe from the evidence, that said orders of attachment, or either of them were procured to be issued by the defendant by improper or indirect motives, or without authority of law, the jury may infer malice on the part of the defendant in the procurement thereof, notwithstanding, they may further find that the plaintiff was indebted to' the defendant as claimed in said action.
At the instance of the defendant, the court instructed the jury, “that if from the evidence, they believed that plaintiff executed to defendant a mortgage bearing date 7th May, 1874, which was. in no wise changed except in filling up the blank therein purporting to be of the day on which the same was executed, planted a crop of corn and cotton on the place of John D. Sparks in the year 1874, and that the plaintiff executed the note given in evidence bearing date May 7th, 1874, and that the note had not been paid, changed or altered since the execution thereof, or if changed or altered in the date thereof, and that the defendant having reason to believe that the plaintiff had or was about to sell, conceal or remove from this State said crop or any part, thereof, sued out said order of attachment to enforce said mortgage or foreclose the lien acquired by said mortgage, and to enforce the collection of said note, the jury may find for the. defendant.” Which instruction the court refused to give in the form asked, but which was given by adding after the word, May, 1874, in the second line, the words, “and delivered the same to the defendant as a mortgage.”
From the view which we take of this instruction, we think it erroneous, but clearly not an error of which the defendant could complain, because, as we have already seen there was no mortgage, no crop in existence at the time the deed was executed, and therefore no authority for issuing an attachment to enforce a lien upon the crop afterwards grown.
Without further reference to the instructions asked they were all exceptionable for this reason and properly refused.
Whether the prosecution was or was not malicious and without probable cause was the proper subject of consideration for the jury, there was evidence introduced tending to sustain the finding of the jury; and finding no error in the instructions of the court as to the law governing the case tending to mislead them in the application of the evidence, the motion of the appellant to set aside the verdict, and grant to him a new trial was properly overruled.
Let the judgment of the court be affirmed. | [
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Harrison, J.:
This was a suit by James P. Webb against William E. Wood-ruff, on a promissory note made by the latter to Liberty Bartlett for $1000, dated May 18th, 1871, payable four months after date, with 10 per cent, interest from date, and assigned to the plaintiff for value before maturity.
In his answer, the defendant averred, that he, in 1859, became the security of George A. Worthen, who had since died, in a note, to Thomas Fraser, on which note Fraser, after the death of Worthen, brought suit and recovered judgment against the defendant, and that in settlement of the judgment he gave Fraser a note for $1517. That when the note sued on was made, Bartlett, ■the payee, was the agent of Fraser, who was a non-resident of the State, and he had in his hands as such, the note for $1517, and the note sued on was executed, upon his promise and agreement, if the same was paid by the defendant to credit the amount thereof, on the defendant’s note to Fraser in his hands; and upon no other consideration, but that after the execution of the note Bartlett ceased to be such agent, and the defendant’s note to Fraser was taken out of his hands; and the same was after-wards paid and taken up, by the administratrix of Worthen ;■ and that if 'there ever was any consideration for the note sued on, it had failed.
He further averred, that the note was executed for the use of Fraser, and was in fact the property of Fraser, and that it was satisfied and discharged in the payment of the note for $1517 by Wor then’s administratrix; and also that Bartlett, by taking the note payable to himself and transferring it to the plaintiff, perpetrated a fraud upon him.
The jury returned a verdict for the plaintiff for the sum of $1000, with interest thereon at the rate of 10 per cent, from the date of the note ; and the judgment as entered, is for the sum of $1000, with interest thereon at the rate of 10 per cent, from the 18th day of May, 1871, until paid.
The evidence was, that the note was given to enable Bartlett to raise money, and that the defendant might obtain further time on the debt to Fraser, and upon Bartlett’s promise to give him, should he have it to pay, a credit for the amount on his note to Fraser, and that it was assigned to the plaintiff, who knew nothing of the consideration or circumstances under which Bartlett obtained it, for value, before maturity and before Bartlett ceased to be Fraser’s agent, and the note to Fraser was paid by Worthen’s administratrix as stated in the answer; and it also tended to prove that Woodruff knew when he executed it, that it was Bartlett’s intention to assign it to the plaintiff, and it was testified by Bartlett, that he had full authority from Fraser to act-for him in all matters relating to his interest in Arkansas, which extended to the power to receive and negotiate the note, and that the transaction was for the benefit of Fraser, and the money received from the plaintiff for the note was his; but which he-had never páid over to him.
At the instance of the plaintiff, but against the objection of the defendant, the court instructed the jury that - the only defense pleaded was a want or failure of consideration of the note, and no question of fraud was before them, and that if the note was given to Bartlett as the agent of Fraser in consideration of Wood-ruff’s indebtedness to Fraser, and for his benefit, there was a sufficient consideration, and the plaintiff was entitled to recover.
There was no averment in the answer, that the defendant was induced by any misrepresentations or fraudulent pretense of Bartlett to execute the note, and the mere fact, that it was given for the benefit of Fraser, and belonged to him, did not make his taking it payable to himself, and his assignment thereof to the plaintiff, a fraud upon the defendant; and the failure of consideration resulting from Bartlett’s inability to perform his agreement was the only defense, in reality set up.
The note, it was proven, was given with a view to its negotiation, and whether for the use of Bartlett or of Fraser, it was when paid to be in discharge of so much of the defendant’s indebtedness to the latter, and there was, therefore, no want of consideration.
The removal of Bartlett from his agency, was a contingency both must have foreseen, and the defendant must be presumed to have relied, in case of such event, on Bartlett’s personal liability.
According to the statute, ch. 15, see. 3, Gould’s Dig., in force when the assignment was made, and until the act of April 24th, 1873, the assignee of a note, unless it was expressed therein to be payable “without defalcation” (and the note sued on was not such), took it at his peril, and at the risk of any defense that the maker could set up against the payee. Smith v. Capers, 13 Ark., 9; Walker v. Johnson, Ib., 522; Worthington v. Curd, 22 Ark., 278; Nisbett v. Brown & Norton, 30 Ark., 585.
But in this case, the note wras assigned before it became impossible for Bartlett to perform his agreement, and whilst there was a subsisting consideration, and the defendant had no defense to it. The subsequent failure of consideration, could not, therefore, affect the plaintiff's right. Sayer v. Thompson et. al., 28 Ark., 336.
The verdict was defective; the interest should have been computed at 10 per cent., only from the date to the maturity of the note, and after maturity at six, as held in Newton v. Kenerly, 31 Ark., 626 ; Ragan v. Bell et. al., ante; Pettigrew v. Summers, ante.
No exeception was, however, taken to it in the court below.
The obvious intention of the jury was to find for the plaintiff, the amount of the principal and interest of the note; but under a misapprehension as to the rate of interest it bore after maturity, and which was a mistake as to the law, and not as to the facts of the case, their intention was incorrectly expressed.
“ Strict form in a verdict is not required,” said Chief Justice Justice McKean Thompson v. Musser, 1 Dallas, Pa., 458. “It needs only to be understood what the intent of the jury was, agreeably to which, the verdict may afterwards be moulded into form.”
In Foster v. Jackson, Hol., 54, it was said: “Howsoever the verdict seem to stray, and conclude not formally or punctually unto the issue, so as you cannot find the words of the issue in the verdict. Yet, if a verdict may be concluded out of it to the point in issue, the court shall work it into form.”
And in Porter v. Rummery, 10 Mass., 64. The court said: “The court are competent to collect the meaning of the jury from the terms of their verdict,” and that “ the general rule is that, although the verdict may not conclude formally or punctually in the words of the issue, yet, if the point in issue can be concluded out of the finding, the court shall work the verdict into form, and make it serve according to the justice of the'case.”
The verdict, though incorrect as to the rate of interest, was yet responsive to and a finding upon the issue, 'and the court should have directed it to be reduced to and entered in proper form. Hanks v. Crofton, 2 Burr., 698 ; Thompson v. Button, 14 John., 84; Hodges v. Raymond, 9 Mass., 316; Foster v. Estate of Caldwell, 18 Verm., 176.
The judgment should have been entered for the sum of the principal of the note, and the intérest from the date to the maturity of the note at the rate of 10 per cent, per annum; and after the maturity to the time of trial at six, and for interest thereon from the judgment until paid at 6 per cent.; and we direct that it be so modified and corrected. | [
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Ray Thornton, Justice.
The State appeals from the circuit court’s decision to grant the motion of appellee Kevin Franklin for a new trial due to ineffective assistance of his counsel, Kenneth Haynes. The State argues that the defense did not present evidence of prejudice relating to Mr. Haynes’s alleged errors in representing Mr. Franklin and that the circuit court erroneously relied on cumulative error in making its determination. Mr. Franklin responds that evidence of prejudice was presented, and the circuit court properly granted the new trial based on six separate instances of attorney error and prejudice to Mr. Franklin resulting from each error. We hold that the circuit court’s decision was clearly erroneous, and we reverse.
Mr. Franklin was convicted of first-degree murder and sentenced to a term of 480 months in the Arkansas Department of Correction. His conviction was affirmed by the court of appeals. Franklin v. State, CACR 99-962 (Ark. App. May 17, 2000). On July 17, 2000, Mr. Franklin filed a motion for new trial seeking post-conviction relief pursuant to Arkansas Rule of Criminal Procedure 37. On November 17, 2001, the circuit court held a hearing and on January 18, 2002, the court entered an order granting appellee’s motion. The circuit court found that Mr. Franklin was entitled to post-conviction relief based on the following six grounds: failure to permit Mr. Franklin to testify, trial counsel was ineffective due to lack of preparation, failure to request AMCI 202 instruction, failure to challenge the gunshot-residue test or results, counsel’s ineffectiveness during the sentencing phase, and cumulative effect of errors. The State filed a notice of appeal from the trial court’s order granting post-conviction relief on January 28, 2002.
This case is properly before us because post-conviction proceedings under Arkansas Criminal Procedure Rule 37 are civil in nature, and therefore the State is entitled to appeal from an order granting postconviction relief. State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999).
We will not reverse the trial court’s decision granting or denying postconviction relief unless it is clearly erroneous. Id. A trial court’s finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Dansby v. State, 350 Ark. 60, 84 S.W.3d 857 (2002). In making a determination on a claim of ineffectiveness of counsel, the totality of the evidence before the fact finder must be considered. State v. Hardin, 347 Ark. 62, 60 S.W. 3d 397 (2001). We defer to the findings of the circuit court because the resolution of credibility issues is within the province of the trial court. Johnson v. State, 321 Ark. 117, 900 S.W. 2d 940 (1995).
The issue the State presents for this appeal is whether the circuit court erred by finding that Mr. Franklin was entitled to post-conviction relief due to ineffectiveness of counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court enunciated the standard for measuring the effectiveness of counsel:
A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sen tence resulted from a breakdown in the adversary process that renders the result unreliable.
Id.
We review each of the six findings by the circuit court to determine whether the conviction should be set aside based upon an analysis of the two prongs established by Strickland, supra.
I. Mr. Franklin’s failure to testify at trial
The State argues that Mr. Franklin’s failure to testify at trial does not constitute valid grounds for declaring counsel ineffective. Mr. Franklin contends that he did not knowingly, voluntarily or intelligently waive his right to testify, as required by Rule 1.2. of the Model Rules of Professional Conduct and that the circuit court was correct in finding grounds for ordering a new trial based on Mr. Franklin’s failure to testify.
Rule 1.2 states that “[i]n a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.” Id. Case law has confirmed this tenet of the scope of representation. In Dansby, supra, this court held:
The first prong of the Strickland test is whether counsel’s performance was deficient because Mr. Dansby testified in his own behalf. We have consistently held that whether or not a defendant testifies is not a basis for postconviction relief. “The accused has the right to choose whether to testify in his own behalf. Counsel may only advise the accused in making the decision. The decision to testify is purely one of strategy.” Chenowith v. State, 341 Ark. 722, 734, 19 S.W.3d 612, 618 (2000).
Dansby, supra. Furthermore, the defendant must state specifically what his testimony would have been and demonstrate that his failure to testify resulted in prejudice to his defense. Isom v. State, 284 Ark. 426, 682 S.W.2d 755 (1985).
In Chenowith, supra, there was conflicting testimony as to whether the defendant made the decision not to testify on the advice of his attorney, or whether the attorney agreed that the defendant would testify, then refused to introduce his testimony during the trial. Id. The circuit court resolved the conflict and found that Chenowith’s attorney advised him not to testify, that defendant took that advice. Id. This court deferred to the trial court’s superior position to resolve credibility issues. Id.
In the instant case, Mr. Flaynes never testified that he refused to allow Mr. Franklin to testify in his own behalf. Mr. Franklin and his mother confirmed at the posttrial hearing that he expressed to Mr. Haynes that he wanted to testify at his trial. Mr. Haynes testified at the posttrial hearing that he did not “recall telling him [Mr. Franklin] that he had an absolute right to testify” and that he did recall that it “was simply my advice that he not testify.”
While the circuit court was not clearly erroneous in finding that Mr. Haynes erred and did not properly inform his client of his right to testify and did not elicit a proper waiver of his right to testify, the petitioner made an insufficient showing of prejudice. Petitioner did not make any showing as to what evidence would have been presented if Mr. Franklin had been allowed to testify, other than his statement that he had a clean record and that he had no involvement with the shooting. The evidence included Rico Anderson’s testimony that Mr. Franklin and Joe Stevenson argued and that after the argument, Mr. Franklin ordered Anderson to shoot Stevenson. Anderson further testified that Mr. Franklin would kill him if he did not shoot Stevenson. Frank Hampton, a passerby driving his car along the street where the shooting occurred on the same night, testified that two men tried to get inside his car and that one of them, identified by him as Mr. Franklin, pulled out a pistol and handed the gun to the other man who fired shots at the car as Mr. Hampton sped away. A gunshot-residue test showed that Mr. Franklin had gunpowder on both of his hands. The only testimony by the defense witness was by Pedro Bryant, who testified that he did not see Mr. Franklin give Anderson a gun, but that Mr. Franklin had a gun just before the shooting, and Bryant also admitted that he had previously told the police that Mr. Franklin did give Anderson the gun. Mr. Haynes testified at the post trial hearing that Mr. Franklin did not understand accomplice liability, and when Mr. Haynes asked questions of Mr. Franklin that he believed the prosecutor would ask, Mr. Franklin incriminated himself and demonstrated that he was indeed an accomplice and indicated his belief that if he did not fire the fatal shot, he could not be convicted of a crime.
Notwithstanding the trial court’s finding that Mr. Haynes erred in failing to properly inform his client of his right to testify and in failing to elicit a proper waiver of his right to testify, the petitioner did not demonstrate that prejudice resulted from Mr. Haynes’s error. There was little showing of what his testimony would have been had he been allowed to testify. We cannot conclude that his error was prejudicial in light of the overwhelming evidence that Mr. Franklin furnished the gun to the shooter, Anderson, and that Mr. Franklin told Anderson to fire the gun. We find that this error did not cause a breakdown in the adversarial process that renders the resulting conviction unreliable.
II. Lack of preparation
The trial court’s order states that Mr. Haynes was ineffective on the basis that he did not prepare for trial. The order stated:
Trial counsel Mr. Haynes admitted he filed no motions of any kind on defendant’s behalf. Mr. Haynes filed no motion for discovery. Kenneth Haynes filed no evidentiary motions of any kind.
However, the petitioner did not make a showing of both error and prejudice in accordance with Strickland, supra. Mr. Haynes obtained the complete files of the prosecutor and the sheriff, and though he did not file any discovery motions, it was not shown at the hearing that Mr. Haynes faded to obtain any crucial piece of evidence.
The trial court’s order goes on to state that “Haynes admitted he did not go out and interview potential witnesses.” This finding is clearly erroneous. Mr. Haynes stated at the post-trial hearing that he interviewed many witnesses, though he did not call them to testify. Mr. Haynes’s statements cannot be interpreted as an admission that he did not interview potential witnesses.
III. Failure to request a limiting instruction
The circuit court found that Mr. Haynes failed to request a limiting instruction on Pedro Bryant’s testimony that he stated to a police officer that Mr. Franklin had given a gun to the shooter. The circuit court found that Mr. Haynes failed to request that the court give the AMCI 2d 202 limiting instruction to the jury, which states:
Evidence that a witness previously made a statement which is inconsistent with his testimony at the trial may be considered by you for the purpose of judging the credibility of the witness but may not be considered by you as evidence of the truth of the matter set forth in the statement.
Id. The circuit court cited Reynolds v. State, 341 Ark. 387, 18 S.W. 3d 331 (2000), which held that an attorney’s counsel could be considered ineffective if he failed to object to an erroneous jury instruction.
In the instant case, the attorney failed to request a limiting instruction, which is an entirely different fact situation. In Sasser v. State, 338 Ark. 375, 993 S.W. 2d 901 (1999), we held that when the circuit court based its determination of ineffective assistance of counsel on the attorney’s failure to request a limiting instruction, the reviewing court should apply the second prong of the Strickland analysis to determine if prejudice resulted from the failure to request the instruction to the extent that the outcome of the trial would have been different had the instruction been given. Sasser, supra. On this point, there was no finding of prejudice by the trial court, nor was there sufficient evidence presented that the conviction resulted from a breakdown in the adversarial process that renders the result untenable.
IV. Failure to challenge gunshot residue test
In the order, the circuit court found that besides the police officer’s testimony that the gunshot-residue swabs were taken shortly after the shooting, no other evidence was adduced at trial concerning the gunshot-residue test. The court made no finding that Mr. Franklin was prejudiced by Mr. Haynes’s failure to object to the evidence or even that the objection would have been sustained. Mr. Haynes testified that he could not conceive of an argument that would have supported his objection to the gunshot-residue test. Furthermore, Mr. Haynes testified that the test had nothing to do with the defendant’s guilt or innocence because the test did not establish when Mr. Franklin had handled a gun. Also, Mr. Haynes explained that it was undisputed that Mr. Franklin did not shoot the victim. The gunshot-residue test results were not damaging because there was other evidence presented at trial that Mr. Franklin had shot a gun thirty minutes prior to the time the victim was shot. Thus the gunshot residue might have resulted from his firing that unrelated shot. Mr. Haynes’s trial strategy, in light of overwhelming evidence that Mr. Franklin had handled a gun, was to admit that Mr. Franklin had handled and fired a gun that night, but not the gun that was used in the murder, and it would have been pointless to object to the gunshot-residue test. We hold that there was no showing of prejudice resulting from Mr. Haynes’s failure to object to the gunshot-residue test.
V. Failure to present evidence during the sentencing phase of trial
The circuit court found that Mr. Haynes was ineffective because he failed to present mitigating evidence during the sentencing phase of Mr. Franklin’s trial. The circuit court specifically states that had Mr. Haynes presented evidence it would have been as follows:
Franklin was raised by his mother, pretty much without a father. Franklin had four brothers and one sister. Franklin was the next to the youngest. Franklin, a young man, was only twenty-one years of age at the time of his trial. Franklin graduated from Central in the class of 1996. Franklin was working at or around the time of the occurrence. Franklin was the father of six minor children. Also, Franklin had received counseling in the eighth grade from Walter Darnell, a counselor a the local mental health facility.
An attorney can be ineffective for either failing to present mitigating evidence or failing to thoroughly investigate potentially mitigating evidence before making a strategic decision not to present it. Williams v. State, 347 Ark. 371, 64 S.W. 3d 709 (2002); Williams v. Taylor, 529 U.S. 1495 (2000); Coulter v. State, 343 Ark. 22, 31 S.W. 3d 826 (2000); Sanford v. State, 342 Ark. 22, 25 S.W. 3d 414 (2000). In each of these cases, the sentence was death and the attorney was prohibited from forgoing his duty to investigate and submit mitigating evidence due to “the severity of the potential punishment.” Sanford, supra.
In the instant case, Mr. Franklin did not receive the death penalty, and the offense with which he was charged was not subject to the possibility of the death penalty, therefore these cases are inapposite. The maximum Mr. Franklin could receive was life in prison Ark. Code Ann. § 5-4-401(a)(1) (Repl. 1997), and he was sentenced to forty years’ imprisonment. A defendant who has received a sentence less than the maximum sentence for the offense cannot show prejudice from the sentence itself. Buckley v. State, 349 Ark. 53, 76 S.W.3d 825 (2002).
While showing that Mr. Franklin had a disrupted and difficult childhood, that he had children to support and that he had received needed counseling at one time are all mitigating factors, they are not unusual instances that would satisfy the Strickland criteria that the failure to introduce them constituted an error so serious as to deprive the defendant of a fair trial. There was no showing of mental or emotional impairment or any specific instance of severe trauma that would have caused violent behavior. While these factors are mitigating, the circuit court’s order does not state that their absence in the sentencing phase was prejudicial, and we conclude that the absence of this evidence was not so serious as to render the result unreliable.
VI. Cumulative error
We have held that reliance upon cumulative error by the trial court to determine ineffectiveness of counsel under the Strickland test is reversible error. E.g., Hardin, supra; Noel v. State, 342 Ark. 35, 26 S.W. 3d 123 (2000). In Hardin, supra, this court held that the circuit court erroneously interpreted an earlier case, Neal v. State, 270 Ark. 442, 605 S.W. 2d 421 (1980), to mean that cumulative error could be considered in a Strickland analysis to determine ineffective assistance of counsel. Hardin, supra. The Hardin court cited Neal, which held that the specific allegations considered separately would not justify a new trial, but that considered collectively, the allegations warranted this court granting permission to apply for Rule 37 relief. Id. The Hardin court pointed out that when Neal was decided, an earlier version of Rule 37 was in effect. That version of the rule directed that petitioners seeking to appeal their convictions must first get permission from this court to apply for Rule 37 relief in circuit court. Neal only elucidated the rule that this court could consider the allegations collectively to determine whether the petitioner was entided to proceed with a Rule 37 hearing, not that the effectiveness of counsel could be judged by cumulative error. The Hardin court clarified that point by stating:
[W]hat we do not know is whether the circuit court would have found that one or more of the allegations of ineffective assistance of counsel, standing alone, showed that Mr. Weber made errors so serious that he was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment, and that the deficient performance prejudiced the defense sufficiently to undermine confidence in the outcome of the trial.
Id.
The instant case is distinguishable from Hardin in that the trial court found specific instances of error and did not base its order exclusively on cumulative error. By contrast, in Hardin, we held that the post-conviction relief granted by the circuit court was based solely on a cumulation of allegations of ineffective assistance of counsel. The State contends that Hardin applies to the instant case because the circuit court based its grant of a new trial solely on the cumulative effect of the errors committed by Mr. Franklin’s counsel when it wrote in the order:
considering the totality of the circumstances and the cumulative nature of trial counsel’s flaw and inadequacies, the Court concludes that the aggregate of errors violated Mr. Franklin’s due process of law by depriving him of substantial justice and a fundamentally fair trial.
However, it is clear from the circuit court’s order that on the first point alone it found grounds for a new trial:
Under the specific facts of this case, the Court cannot find from the evidence that Franklin, knowingly, voluntarily, or intelligently, after advice from counsel, waived his absolute right to testify as a criminal defendant. The court finds that Franklin is entitled to a new trial on this issue.
Unlike Hardin, the circuit court in the instant case found that a new trial was appropriate solely on the grounds of Mr. Franklin’s failure to testify and did not rely on cumulative error alone to make its determination.
Furthermore, as discussed earlier in this opinion, there was no showing of prejudice resulting from Mr. Franklin’s failure to testify. Similarly, there was no showing of prejudice resulting from the other errors, and therefore the prejudice prong of the Strickland test was not satisfied.
Accordingly, we find that there was no showing of prejudice sufficient to deprive Mr. Franklin of a fair trial due to counsel’s ineffectiveness with respect to any one of the six grounds stated by the circuit court.
Reversed.
Arnold, C.J., not participating.
Corbin, J., concurring.
Imber and Glaze, JJ., concurring in part and dissenting in part.
See Ark. R. Crím. P. 37.2(a) 1990 (modified 1991) “If the conviction in the original case was appealed to the Supreme Court or Court of Appeals, then no proceedings under this rule shall be entertained by the circuit court while the appeal is pending.” | [
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Per Curiam.
Appellant Robert McIntosh, by and through his attorney, R.S. McCullough, has filed a motion for rule on the clerk. In actuality, however, the motion merely asks this court to “direct the Perry County Circuit Clerk to correctly compute the fee for this matter and to present the record to appellant or otherwise make the same available for appellant to be able to prosecute an appeal of this matter.” The essence of this motion is Appellant’s claim that the clerk was attempting to charge him a double fee for preparing the record in this case.
The response, filed by Perry County Circuit Clerk Barbara Lovell, reflects that the transcript was available to be picked up by Mr. McCullough on August 7, 2002, and that Ms. Lovell notified Mr. McCullough’s office on that same date. The response also reflects that no one even attempted to pick up the record before the deadline of August 10, 2002. The response reflects further that Ms. Lovell never indicated to Mr. McCullough or Appellant that the fee had to be paid before the transcript would be delivered. Finally, the response reflects that the transcript was delivered to Mr. McCullough on November 8, 2002, one day after Appellant filed this motion with our court clerk.
This court has repeatedly held that it will grant a motion for rule on the clerk in criminal cases when the attorney admits that the record was not timely filed due to an error on his or her part. Lewis v. State, 347 Ark. 438, 64 S.W.3d 753 (2002) (per curiam); Henderson v. State, 345 Ark. 355, 45 S.W.3d 846 (2001) (per curiam); Houff v. State, 345 Ark. 287, 45 S.W.3d 386 (2001) (per curiam). A statement that it was someone else’s fault or no one’s fault will not suffice. Id. The attorney is responsible for filing the record and cannot shift that responsibility to the trial judge, the court reporter, the circuit clerk, or anyone else. Id.
Here, Mr. McCullough acknowledges that the record has not yet been filed; however, he attempts to justify this failure by blaming the circuit clerk for charging too high a fee for the transcript. Accordingly, because Mr. McCullough fails to accept responsibility for not filing the record within the required time, Appellant’s motion must be denied.
Appellant’s attorney shall file within thirty days from the date of this per curiam order a motion and affidavit accepting full responsibility for not timely filing the record in this case. Upon filing same, the motion for rule on the clerk will be granted, and a copy of the opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). | [
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Per Curiam.
Appellant Melton Smith was convicted of “Exchanging Money for a Non-Cash Prize,” an unclassified misdemeanor that violated Ark. Code Ann. § 26-57-403. Appellant’s counsel, Dennis Molock, has requested that the clerk accept the record tendered as a result of his notice of appeal. Pursuant to Ark. R. App. P. — Crim. 4(a) (2002), the docketing of the record is governed by the Arkansas Rules of Appellate Procedure — Civil. The clerk has refused to file the record because it was not tendered in conformance with Ark. R. App. P. — Civ. 5(a) and (b) (2002).
Rule 5(a) provides in pertinent part as follows:
The record on appeal shall be filed with the clerk of the Arkansas Supreme Court and docketed therein within 90 days from the filing of the first notice of appeal, unless the time is extended by order of the circuit court as hereinafter provided.
Ark. R. App. P. — Civ. 5(a) (2002). Rule 5(b) provides in pertinent part as follows:
In cases where there has been designated for inclusion any evidence or proceeding at trial or hearing which was stenographically reported, the circuit court, upon finding that a reporter’s transcript of such evidence or proceeding has been ordered by appellant, and upon a further finding that an extension is necessary for the inclusion in the record of evidence of proceedings stenographically reported, may extend the time for filing the record on appeal, but the order of extension must be entered before the expiration of the period for filing as originally prescribed or extended by a previous order.
Ark. R. App. P. — Civ. 5(b) (2002) (emphasis added).
The relevant dates in this case are as follows:
January 15, 2002 Judgment entered
February 8, 2002 First notice of appeal filed timely by appellant
February 8, 2002 Letter sent by appellant (treated as posttrial motion by trial court)
March 4, 2002 Order denying posttrial motion entered timely
March 5, 2002 Effective date of first notice of appeal
March 15, 2002 Second notice of appeal filed that included appeal of denial of posttrial motion
May 16, 2002 Motion for extension of time to file transcript filed
June 6, 2002 Order granting extension of time to file record to 10/4/02
October 2, 2002 Record tendered to the Supreme Court Clerk
On January 15, 2002, a judgment was entered and filed in Arkansas County. Appellant timely filed his first notice of appeal on February 8, 2002. Appellant also sent a letter to the trial court on February 8, 2002, in which he asked for reconsideration of his sentence. The trial court treated this letter as a posttrial motion, and on March 4, 2002, the trial court timely denied this motion, thus making the first notice of appeal’s effective date March 5, 2002, pursuant to Ark. R. App. P. — Crim. 2(b)(2) (2002).
Without the posttrial motion, the record would have been due to be filed on or before May 9, 2002; but if the letter was correctly interpreted as a post-trial motion, the record was accordingly due to be filed on or before June 3, 2002, which would be ninety days from the effective date of the filing of the first notice of appeal, pursuant to Ark. R. App. P. — Civ. 5(a). At this point, any order by the trial court for an extension to file the record would also have been required to be filed on or before June 3, 2002, pursuant to Ark. R. App. P. — Civ. 5(b) as quoted earlier.
After the trial court’s denial of the “post-trial motion” letter, appellant filed a timely second notice of appeal on March 15, 2002. In reading this second notice of appeal, it is apparent that it is merely verbatim the first notice of appeal with an additional clause to add an appeal of the denial of the posttrial motion. Ark. R. App. P. — Crim. 2(b)(2) allows a party who seeks to appeal from the grant or denial of a posttrial motion to amend a previously filed notice of appeal. That is exactly what happened in this case. As stated earlier, Mr. Molock filed a first notice of appeal after the judgment was entered, appealing the judgment. Because of the filing of the posttrial motion, however, the first notice of appeal was not made effective until March 5, 2002, pursuant to Ark. R. App. P. — Crim. 2(b)(2):
A notice of appeal filed before disposition of any post-trial motions shall be treated as filed on the day after the entry of an order disposing of the last motion outstanding .... Such a notice is effective to appeal the underlying judgment or order. A party who also seeks to appeal from the grant or denial of the motion shall within thirty (30) days amend the previously filed notice. . . .
Thus, the first notice of appeal was effective to appeal the judgment. Nothing that happened later — the posttrial motion, the denial of the posttrial motion, or the filing of a second (amended) appeal — served to nullify the first notice of appeal. The second notice of appeal served only to amend the first notice so as to add an appeal of the denial of the posttrial motion, as allowed by Rule 2(b)(2). For this reason, the second notice of appeal is of no consequence in this motion for rule on clerk because the Arkansas Rules of Appellate Procedure are clear that the tendering of the record is clocked from the date of the filing of the first notice of appeal. See Street v. Kurzinski, 290 Ark. 155, 717 S.W.2d 798 (1986) (“The reference to the ‘first’ notice of appeal removes any possible doubt . . . when [the] party files notices of appeals from different orders. Here the 90 days began to run from the filing of the first notice of appeal . . .”).
Rule 5 of the Arkansas Rules of Appellate Procedure— Civil further provides that the trial court may order an extension of time to file the record, but the order must be entered before the expiration of the ninety-day period provided in subsection (a). Ark. R. App. P. — Civ. 5(b). See also Smith v. State, 341 Ark. 252, 15 S.W.3d (2000). Appellant filed a motion for extension of time to file transcript pursuant to Rule 5(b) on May 16, 2002. The trial court entered an order granting the extension, but that order was entered and filed on June 6, 2002, which was more than ninety days after the effective date the first notice of appeal was filed.
The dissent incorrectly states that the majority would start the running of the mandatory ninety-day record-filing period on March 5, 2002. This is because the mandatory ninety-day period begins with the date of the filing of the first notice of appeal, although the date of that notice of appeal is not effective until the day after the granting or denial of the posttrial motion if the first notice of appeal was filed before disposition of a posttrial motion. Once again, that is exactly what happened in this case. The running of the ninety-day time period would have begun on February 8, the date the first notice of appeal was filed, if appellant had not filed his posttrial motion. However, because the posttrial motion was filed, the first notice of appeal was not considered filed until the day after the denial of the motion — March 5. In a case in which there is no notice of appeal filed before disposition of a posttrial motion, the first notice of appeal would be the notice filed after the grant or denial of the posttrial motion pursuant to Ark. R. App. P. — Crim. 2(b)(1), which states in pertinent part:
. . . Upon timely filing in the trial court of a post-trial motion, the time for filing a notice of appeal shall be extended for all parties. The notice of appeal shall be filed within thirty (30) days from entry of the order disposing of the last motion outstanding. However, if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion shall be deemed-denied by operation of law as of the thirtieth day, and the notice of appeal shall be filed within thirty (30) days from that date.
Ark. R. App. P. — Crim. 2(b)(1).
The dissent also states that it “seems bizarre that a notice of appeal from a judgment would be presumed to be a notice of appeal from the order denying the motion for reconsideration.” This statement, however, is inaccurate. The first notice of appeal did nothing more than appeal the judgment, but the first notice of appeal was not made effective until the day after the denial of reconsideration. The second notice of appeal acted as an amended notice of appeal and simply added an appeal of the denial of the posttrial motion. The majority is well aware that only the March 15 notice appealed both the judgment and the denial of the posttrial motion. However, because Ark. R. App. P. — -Civ. 5(a) specifically states that the running of the mandatory 90-day record-filing period begins with the date of the filing of the first notice of appeal, and because the effective date of that first notice was March 5, we simply have no choice but to follow that rule. To follow the dissent’s reasoning would be to find the term “first” superfluous, and would in effect mean that the notice of appeal filed latest would begin the running of the 90-day period. That reasoning is in direct conflict with Rule 5(a).
This court has long held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. Owen v. State, 342 Ark. 6, 26 S.W.3d 122 (2000); Beavers v. State, 341 Ark. 649, 19 S.W.3d (2000). Here, Mr. Molock does not admit fault, but instead states that he “relied in good faith upon the time schedule set forth in the Order of the Circuit Court entered June 6, 2002 and tendered the record for filing within the time period established by such Order.” However, because that June 6 order was untimely, it was ineffective, and the record had to be filed either by May 9, 2002, or by June 3, 2002, depending upon whether or not the February 8, 2002, letter was effective as a posttrial motion.
We have held that an attorney’s statement that it was someone else’s fault, or no one’s fault, that a record was submitted untimely will not suffice. See Owen v. State, supra. Furthermore, this court has held that the attorney is responsible for filing the record and cannot shift that responsibility to another. Owen v. State, supra. Because Mr. Molock fails to accept responsibility for not filing the record within the required time, appellant’s motion must be denied.
Appellant’s attorney shall file within thirty days from the date of this per curiam order a motion and affidavit in this case accepting full responsibility for not timely filing the record in this case, and upon filing same, the motion for rule on the clerk to accept the record will be granted.
Motion denied.
Brown, Thornton, and Hannah, JJ., dissent. | [
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English, Ch. J.:
On the 7th of December, 1875, Patrick Henry filed a bill on "the Chancery side of the Circuit Court of Desha County against L. P. Blackburn and Julia Blackburn, his wife, alleging:
“That defendant, L. P. Blackburn, is the legal owner in trust, and defendant Julia Blackburn, his wife, is the beneficial owner, under a deed of conveyance dated the —— day of--, 1870, •of a certain plantation in Desha County, Arkansas, containing about 467 acres, situated near Laconia, within what is known as the circle levee; That it, together with the other improved lands within said circle, is greatly benefitted and protected by said levee; to construct, protect and repair which large sums of money have from time to time been expended by the respective owners of said lands. That within- a year or two last past, a considerable nort-ion of said levee, a short distance below Laconia. has been greatly endangered by the caving of the bank of the Mississippi river, threatening great injury to the lands within said circle, including those of defendants; to preyent which and to construct an inner line of levee, for greater security, the property owners in said circle agreed in November, 1874, to assess the property of each other within said circle, and each to pay his or their assessment; and complainant ivas appointed the agent of all to lay off and superintend the work, employ the hands, make the necessary purchases, and generally to do and perform in their behalf whatever was requisite to its completion; of which said assessments the sum proportioned to the property of said defendants was $266, and damages for expense of bringing suit and interest. That he duly notified the said Julia of the facts as above stated, and she approved the same, and promised that she and her said trustee would pay it, and requested complainant to proceed with' the work as above agreed upon, which he accordingly did, and completed said levee as described Avithin the time agreed upon. And in their behalf, and as their agent, he necessarily laid out and expended large sums of his. OAvn money, the pro rata portion of Avhich due from defendants was the sum stated above. That said L. P. Blackburn Avas aware of, and assented to all that Avas done in the premises, and since the said le\ree was completed, promised the complainant to pay him the said sums, but has so far wholly failed to do so, and the same remains noAv due and unpaid, Avith interest from the 1st day of February, 1875. That no compensation was made him for said work, but that he used his credit and time and skill in their behalf and for the general good. That both defendants are nonresidents of the State of Arkansas, and he has no means of compelling them to answer. That the expenditure Avas and'is greatly beneficial to said property, but that being the property of a femme covert, he is advised that he is without adequate remedy except in a court of equity jurisdiction.
“He prays that attachment issue and the property of said defendants be attached, and they required to answer fully all the allegations herein, and without reserve. That a decree be rendered in his behalf, and, unless paid within a time to be stated, that their property be sold in satisfaction thereof, and for general relief.”
Plaintiff filed an affidavit, and executed a bond, such as are required in ordinary actions at law, by attachment, and the clerk issued a writ of attachment, which the sheriff levied on the land. The defendants were, warned by publication, and L. A. Pindall, Esq., appointed attorney ad litem to represent them.
At the March Term, 1876, the attorney ad litem, on leave of the court, filed the following demurrer to the bill:
Comes L. A. Pindall, an attorney appointed by this court, to represent said defendants in this action, and without entering the appearance of said defendants hereto, but upon his own motion as such appointed attorney, demurs to the complaint in this cause, and for cause assigns the following reasons:
“First — There is no equity in said complaint.
“Second — The facts alleged do not constitute a cause of chancery jurisdiction.
“Third — The facts as stated do not constitute a cause of action.
L. A. Pindall,
Attorney of Desha County Bar.”
Plaintiff moved to strike the demurrer from the files, the court overruled the motion, sustained the demurrer, and, plaintiff resting, dismissed the bill for want of equity, and plaintiff appealed.
First — The statute provides that before judgment is rendered against a defendant constructively summoned, and who has not appeared, it shall be necssary that an( attorney be appointed, at least sixty days before the judgment is rendered, to defend for him, and inform him of the action, and of such other matters as may be useful to him in preparing his defense. That the attorney, as appointed, may take any step in the progress of the action, except filing an answer, without it having the effect of entering the appearance of such defendant. Gantt’s Digest, sec. 4727.
Mr. Newman, commenting upon a similar statute of Kentucky, says: An attorney so appointed cannot file an answer or allege new matter constituting a defense, counter claim, set oif, or cross-petition. New. Plead. & Prac., 568.
The attorney is appointed to protect the interest of the absent defendant, and not to give the court jurisdiction of bis person. Thomas v. Mahone, 9 Bush, 125.
As the statute does not prohibit it, we can see no good reason why the attorney may not be permitted to enter a demurrer to the complaint, as it is not an answer, and would not be an appearance for the absent defendant, when filed by virtue of his appointment only, as in this case. It might at least serve as a suggestion to the court that it had no jurisdiction of the subject matter of the suit, or that the complaint failed to show a cause of action. This the attorney might do orally, without filing a written demurrer. But if done in neither mode it would nevertheless be the duty of the court, before rendering a judgment or decree condemning the property of the absent defendant, to see that there was. a cause of action, within its jurisdiction, disclosed by the complaint.
The former practice of taking decrees pro confesso against defendants served by publication, and failing to appear, is not permissible under the present statute. Gantt’s Digest, sec. 2746.
The court is obliged to see that the plaintiff has proven such allegations of the complaint as the statute requires him to prove; and, in so doing, the court would necessarily have to know what the allegations were, and would render no decree upon a bad complaint.
So, if the attorney ad litem had interposed no demurrer, or been refused leave to demur, in this case, the court below should have dismissed the bill for want of equity, if the plaintiff made no case for relief, or could make none by amending the bill. ■
Second — The bill describes the land as “a certain plantation in Desha County, etc., containing about 467 acres, situated near Laconia, within what is known as the circle levee.”
When a bill seeks to charge land with the payment of a debt, it should be more particularly described, so that the court may lay hold of it, in rendering its decree. Williams et al. v. Ewing et al,. 31 Ark., 235.
But such defect in the description of the land might have been cured by ordering the plaintiff to amend the bill, and describe the land more specifically. It was not cause for general demurrer.
An authenticated copy of the deed, which was probably of record, by which it is alleged that the laud was conveyed to the husband in trust for the benefit of the wife, was not made an exhibit to the bill, or is it averred that it could not be procured. It is referred to in the bill in very general terms, and no attempt is made to set out its provisions. It might be necessary for the court to be better informed as to the contents of the deed before rendering a decree. Dobbin and wife v. Hubbard, 17 Ark., 189; Buckner & Co. v. Davis and wife, 29 Ib., 447. But the failure to exhibit a copy of the deed was not, under the Code Practice, ground of demurrer. The court could have required this to be done by rule.
That the wife may bind her separate property in equity for her debts, when she contracts in reference to it, is well settled. Dobbin and wife v. Hubbard, 17 Ark., 194; Buckner & Co. v. Davis and wife, 29 Ark., 447 ; Stillwell and wife v. Adams et al., Ib., 346; Wood and wife v. Terry et al., 30 Ark., 392; Palmer v. Rankins et al., Ib., 771.
In Stillwell and wife v. Adams et al., ex’rs, supra, Mr. Justice Walker quoted with approval the remarks of Mr. Perry: “That, under the old settlements in England, and in a few of the ' states, the general engagements of married women were enforced in equity against their separate estates, although those engagements had no reference to their separate estates, and were not for the benefit of the estates or of themselves personally.” But that “in a majority of the United States, a more limited rule was applied, and the contracts of married women were not enforced against their separate estates, unless these contracts were made in relation to their estates, and were for the benefit of their estates, or for their own personal benefit.” 2 Perry on Trusts, sec. 680, p. 279.
Under this rule it is not enough for the bill to allege that the wife contracted a debt, and that she had a separate estate, but it mast be shown that she contracted in relation to, or upon faith of her estate, and that the contract was for the benefit of the estate, or her personal benefit.
But it has been held that while this rule applies to the general debts of the wife, it does not apply in cases where the debt is contracted for the improvement or preservation of her estate; that in such cases it will be implied that she contracted upon faith of her estate, and meant to charge it. Shacklett v. Rebecca Polk, 4 Heiskell, 112; Cater v. Eveleigh, 4 Dessaussure, 19; James v. Mayrant, Ib., 591 ; Montgomery v. Eveleigh et al., 1 McCord’s Chy., 267; Gardner v. Gardner, 7 Paige, 112; Dyett v. North American Coal Company, 20 Wend., 570; Gardner v. Gardner, 22 Wend., 526 ; Yale v. Dederer, 22 New York, 450.
Mr. Bishop says : “ It is believed to be universal doctrine, if anything on this subject can be said to bo so, that, when a married Woman contracts for the benefit of her separate estate, and the contract is silent as to the source of payment, it shall be presumed to be a charged on such estate.” 1 Bishop on Married Women, sec. 875, p. 671.
The bill in this case charges, in substance, that the land-owners within the circle of the levee agreed to an assessment upon their lands ratably, to construct an inner line of levee, to protect them from overflow; that the sum apportioned to Mrs. Blackburn’s land was $266, and that being informed of the facts she approved of the agreement, promised that she and her trustee would pay the amount assessed to her land, and requested appellant, who had undertaken to superintend the construction of the levee, to proceed with the work, which he accordingly did, etc.
If the allegations of the bill be true, the construction of the levee was necessary for the protection and preservation of her separate estate. Without it, her plantation might have been greatly damaged by flooding from the river, and rendered comparatively valueless for cultivation.
The bill does not expressly allege that she agreed that the sum apportioned to her land, should be a charge upon it, but the facts alleged bring the’ case within the rule above stated.
Appellant prayed that the land might be attached, condemned by decree, and sold for the payment of the debt. -
It was held in Palmer v. Rankins, et al., supra, that the corpus of the wife’s estate could not be sold to satisfy a debt charged upon it, but her trustees should be decreed to pay it out of the rents and profits.
Whether in any case, where the estate yields no rents, the land could be sold to satisfy a debt charged upon it, we have no occasion to decide in this case.
It docs not follow that because a bill prays too much, that the ■complainant can get nothing.
If the trustee cannot be controlled by decree because be is a non-resident, the estate being within the jurisdiction of the ■court, it may be placed in the hands of a receiver, with directions to apply the rents in satisfaction of the debt charged upon it.
The decree must be reversed, and the cause remanded, with instructions to the court below to permit appellant to amend the bill in the matters above indicated, with leave to appellees to answer.
And appellees having appeared, by their solicitor, in court, and not by an attorney ad litem, they will be regarded by the court below’, on the cause being remanded, as personally in court. | [
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English, Ch. J.:
On the 28th of August, 1875, Andrew J. Dyer (assignee of A. B. Boggs,) sued John W. Gill, in the Circuit Court of Conway County, on the following instrument:
“ $700. Lewisburg, Ark., July 1st, 1868.
“On or before the 25th day of December, A. D. 1868, T promise to pay to A. B. Boggs the sum of seven hundred dollars, with 10 per cent, interest from January 15th, 1867, for value received of him. Witness my hand and seal, this July 1st, 1867. John W. Gill. [l. s.]”
The complaint alleged that the defendant made a payment on the note of $500, January 1st, 1870; and that on the 23d of March, 1873, the note was assigned to plaintiff, for value, by Boggs, the payee. The note, with the credit, and assignment-indorsed, was filed with the complaint.
The defendant pleaded that the plaintiff’s cause of action did not accrue within five years next before the commencement of the suit.
The plaintiff demurred to the plea, on the ground that ten-years, and not five, was the period of limitation applicable, under the statute, to the cause of action. In other words, that the-instrument sued on was a writing obligatory, or contract under-seal, and not a promissory note.
The court overruled the demurrer, and plaintiff’s resting,, final judgment was rendered for defendant, and plaintiff appealed.
Had the instrument been executed before the adoption of the Constitution of 1868, it would have been a writing obligatory, and ten years would have been the bar, under sec. 1, ch. 106, Gould’s Dig.; Rose’s Dig., p. 502.
The Constitution of 1868, contained this clause : “ Private seals are hereby abolished, and hereafter no distinction shall exist between sealed and unsealed instruments concerning contracts between individuals,” etc. Sec. 16, art. xv.
The instrument sued on was executed after the adoption of the Constitution of 1868, and was a private contract in writing between individuals. Hence the words, “ witness my * * seal,” and the scroll amounted to nothing. The instrument was, and could be nothing but a promissory note, or contract in writing, not under seal, and was necessarily within the clause of the statute of limitations then, and yet in force, which declares that “Actions on promissory notes, and other instruments of writing, not under seal, shall be commenced within five years after the cause of action shall accrue, and not after,” etc. Gould’s Dig., sec. 15, ch. 106. Gantt’s Dig., sec. 4125, and note.
It was impossible for the maker of the instrument to add anything to its dignity, or raise its grade, by putting his seal to it, after private seals had been abolished by the Constitution; the putting of the seal to the contract had no legal effect upon it whatever — not more than the sprinkling of sand upon it to dry the ink, after it was written.
Such would have been the law of this case, and the cause of action would have been barred by limitation when it was commenced, but for a provision of the schedule of the Constitution of 1874, which, we think, prolonged the period of limitation.
The provision is as follows: “ Until otherwise provided by law, no distinction shall exist between sealed and unsealed instruments, concerning contracts between individuals, executed 1 since the adoption of the Constitution of 1868. Provided, that the statutes of limitation with regard to sealed and unsealed instruments in force at the time, continue to apply to all instruments afterwards executed, until altered or repealed.” Schedule, sec. 1. \
The meaning of this clause of the Schedule, down to the pro- 1 viso, is clear enough. ' It, in effect, continues the provision of the Constitution of 1868, abolishing private seals, in force, subject to legislation, but limits its application to instruments executed after the adoption of that Constitution, and forbids its ápplica- 1 tion to instruments previously executed ; that is, prevents it from having a retro-active effect.
So we think the meaning of the proviso is manifest, from the language employed:
“Provided, that the statutes of limitation with regard to sealed and unsealed instruments,” (ten and five years — Gould’s Digest, sec. 15, ch. 106,) “ in force at that time,” (the time of the adoption of the Constitution of 1868,) “continue to apply to all instruments afterwards executed,” (executed after the adoption of the Constitution of 1868,) “ until altered or repealed ” — that is, until the statutes of limitation referred to shall be altered or repealed.
Thus, the convention thought proper to provide, in effect, that the statute of limitation for ten years should apply to instruments executed in the form of writings obligatory, after the adoption of the Constitution of 1868, until the statute should be altered or repealed.
The power of the convention to make this provision, so far as it does not interfere with vested rights, is not to be denied. It related to the remedy only upon contracts having the foi’m of sealed instruments executed after the adoption of the Constitution of 1868, and put them upon the same footing, as to limitation, occupied by sealed contracts previously executed.
The instrument in suit has the form of a waiting obligatory, though such was not its legal character when issued — then, in law, it was of no higher grade than a promissory note, as above shown. It was not barred by the statute of limitation of five years, when the Constitution of 1874 was adopted. There was a payment upon it, January 18th, 1870, which made a new period from which the statute ran, and five years did not transpire from that period to the time of the adoption of the present Constitution. And if the framers of the Constitution thought proper to prolong the period of limitation as to such instruments, having the form of writings obligatory, and not then barred, their power to do so cannot be questioned; and the maker of the note has no just cause to complain. Whether if the remedy had been barred at the time of the adoption of the Constitution of 1874, it could have been revived, we have no occasion to decide in this case.
There were, perhaps, doubts among business men as to whether ten or five years was the bar to instruments executed in the form •of writings obligatory, after the adoption of the Constitution, of 1868, and debtors may have been indulged, in many instances, under the erroneous impression that the statute of ten, and not ■five years, applied, and it may be that the faamers of the Constitution of 1874 thought proper to prolong the period of limitations as to such instruments, to prevent losses by such misapprehension and indulgence.
The court below erred in overruling the demurrer to the plea •of limitation of five years, and the judgment must be reversed, .and the cause remanded for further proceedings. | [
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.Pinball, Sp. J.:
Ou a former appeal in the court, the court held that Holman, .under his title bond from 'Woodruff, had such an equitable interest in the lots in question, as was subject to sale and transfer. That his assignment of the title bond to Hardeman, made Hardeman his vendee of the lots, and gave him an equitable vendor’s lien upon the lots for the amount of the purchase note lie held against Hardeman, which he could enforce against the lots in the hands of Hardeman, or any purchaser holding under him with notice that the debt was unpaid. Holman v. Patterson’s heirs, 29 Ark., 364.
In the original bill filed by Holman v. Hardeman, Brewer and Woodruff to enforce this lien, and upon which the decree was founded, which this bill seeks to review, it was alleged that Brewer had notice that this debt was unpaid when he purchased the lots from Hardeman and took the assignment of the title bond, and at the time of bringing his suit, and it was said if this fact be true, the original decree was right, if Brewer was served with process, p. 364, but the transcript then before the court did not show that Brewer, had ever been served with process, or made a party to the suit in such a manner as to bind him by the decree, or to impress upon his vendees, the character of purchasers pendente lite. It was said if Brewer was not served in fact, and if that fact had been alleged by Patterson in his bill of review, Patterson would then have had ground to review the original decree, p. 363, but as Patterson did not aver to the contrary, the .intendment that he was served obtained, and the other facts alleged as grounds of review, not being sufficient, the cause was reversed and remanded with instructions to allow Patterson to amend, etc.
By the transcript now before us it appear that the alias subpoena issued for said Brewer, and returned and filed April 29th, 1861, was served on said defendant at the County of Jefferson, by the sheriff of said county, by delivering him a true copy of the same on the 9th day of March, 1861, and therefore the original decree was correct in accordance with the decision of this court, expressed upon the former hearing. 29 Ark., p. 364, unless the case has been changed by the amendments to the bill of review, made by the permission of this court after the cause was remanded.
After the cause was remanded, the death of Patterson was suggested on the record and his representatives made parties. When his administrators filed an amendment to his intestate’s bill, and subsequently a second amendment.
There were two additional points presented in these pleadings.
First it was developed that Woodruff had never been served with process in the original suit, and it was insisted that he was an indispensible party.
He held a prior lien by reservation of the title to secure the balance of purchase money due him.
It has been repeatedly held, that the relation of vendor and vendee, in such cases, a sale of real estate evidenced by title bond, with conditions to convey when the payment was made of the purchase money, bears a strong similitude to that of mortgagee and mortgagor, and in the former hearing of this case were so treated by this court, p. 364.
Woodruff occupying the attitude of mortgagee, and Holman holding nothing but the equity of redemption, which before the commencement of the original, he had transferred to Hardeman, and by him to Brewer, and the litigation was concerning these subsequent interests; a proceeding in the nature of a bill to fore- , close a junior mortgage. In such cases the mortgagee prior is not a • necessary party to the suit. The dercee could not affect his rights,, whether he was made a party or not, unless he consent to the sale of the property, in which case his prior lien may be first-paid, and the surplus appropriated to the subsequent liens. The court could have ordered a sale of the lots, subject to "Woodruff’s! prior rights, he was not therefore a necessary party. 2 Jones on Mortgages sec. 1459; Story Eq. Plead., 193; Barbour on Parties, 501.
The failure to make him a party is not ground for review.
It is also insisted that in as much as Noonan obtained a deed directly from Woodruff to himself, that Noonan and his grantee, Patterson, held under him and not in privity with Brewer, and as Woodruff was not served with process in the original suit, these parties are not pendente lite purchasers, as it is admitted they would be if they held under Brewer.
This position is untenable, because Noonan purchased of Brewer, and not of Woodruff, he was enable to get the title bond to him by Brewer, and the authority thereby conferred upon Woodruff by Brewer to convey directly to Noonan.
Noonan purchased the lots, obtained the possession, and held the estate in privity with Brewer, and it was the privity which enabled him to get the conveyance direct. Brewer was a party to the preceding suit, regularly served with process, and is affected by the decree rendered in that cause, and Noonan is bound by the decree, not so much on account of his supposed knowledge of the defects in his chain of title, or because he was required to use diligence in examining the records of the court, but from motives of public policy.
So also is Patterson, his deed from Noonan is dated 21st September, 1866, over three months after the decree was rendered for the sale of the land.
In the second amendment to the bill of review by the present ¡appellant, as a ground of error in the original decree, he shows that the said Noonan was a resident of the State of California, and that all intercourse between the residents of Arkansas with the residents of California was interrupted and prohibited by the Avar, Avhich existed for a portion of the time, between the states, and alleges for error in the original decree, that interest Avas calculated on Hardeman’s note during all the time of the non-intercourse between the states.
There are several ansAvers to this point.
It is not shoAvn that Hardeman Avas prevented or prohibited from paying his debt to Holman by the Iravs of Avar, or that Noonan had ever undertaken or become obligated to pay the note; but in this proceeding by bill of review, the objection cannot prevail, if these facts were sufficiently averred, for a decree can only be reviewed for errors of law apparent on the face of the proceedings in the original cause, without further examination of matters of fact, or for neAV matters, Avhich have arisen ■since the date of the decree, and not for any new proof which might have been used when the decree was made. Story Eq. Plead., 404, et seq; Dan’l. Ch. P and P., 1576.
The respective residence of these parties during the time of hostilities does not appear from the proceedings in the original ■cause, nor is there any allegation that the proof of the fact has' come to light, since the decree was made.
The court below upon the final hearing dismissed the original ■and amended bills, and made an order to carry the original decree into effect, and its judgment is in all things affirmed.
Harrison, J.: did not sit in this case. | [
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English, Ch. 'J.:
The petition in this case was addressed to the Hon. Theodoric F. Sorrells, Judge of the Eleventh Judicial Circuit.
The petitioner, John Dixon, stated, in substance, that he was the father and natural guardian of two minor children, named John M. and Elizabeth, and entitled to the care of their persons, and to have the supervision of their education. That they had no property in their own right, and there was no cause whatever why he should not have the possession and custody of said children. That Elizabeth E. Bowles, of the County of Chicot, in the Circuit¿of His Honor, the Judge, had said children in her possession, custody andbontrol, and withheld and restrained them from petitioner’s possession unlawfully, and without his consent, and against his will.
Prayer for a writ of habeas corpus commanding said Elizabeth E. Bowles (or any other person having them in custody) to bring .said children before His Honor, at such time and place as he might appoint, and that upon a hearing, they be delivered to petitioner, and for other relief in the premises, etc.
The petition was manifestly framed with the view of presenting it to the judge in vacation, or at chambers;' but whether so presented, does not appear.
At the October Term of the Circuit Court of Chicot County, Wm. W. Bowles, who is styled defendant in the cause, filed the following answer to the petition :
“Comes the defendant, Wm. W. Bowles, and for answer to petition says, he is the lawful and duly constituted guardian of the minors mentioned in the petition; appointed as such by the Court of Probate for the County of Chicot, and as such, claims the custody of said minors. And the defendant for further answer says, this court has no jurisdiction of the subject matter of this suit, as between the defendant, as the lawful guardian, and petitioner, for the custody of said minors.”
At the same term of the court, and on the 6th of November, 1875, the matter seems to have been finally heard and disposed of by the following entry:
“On the first day of this term of court this cause came on to be heard upon the petition of John Dixon and the answer of Wm. W. Bowles, as guardian, and all other matters connected with the writ of habeas eo7pus and the attachment for contempt having been disposed of by the court, and dismissed from the cause.
“And it being admitted by respondent, that petitioner, John Dixon, is the father of the minors, John M. and Elizabeth, and it being also admitted by petitioner, that respondent, Bowlós, has been appointed guardian of said minor children, by the Chicot Probate Court, on the 17th day of September, 1874, and that he held them by .virtue of said appointment.
“And it appearing to the court from the testimony adduced, that said minor children had been residents of Chicot County, from their early infancy, and had been cared for by their grandparents, the father and mother of said respondent, until the death of said grandfather, said respondent had been, upon his own petition, appointed by the Chicot Probate Court as guardian of said minors, and that he still claims the custody of said minors by virtue of said appointment.
“And it further appearing to the court, that John Dixon is pecuniarily able to provide for said children, and that he is morally, religiously, and intellectually qualified to rear up said children in a proper manner.
“And the court being fully satisfied, that it has the jurisdiction and the right to pass upon the question of the right to the custody of said children, in this [proceeding, as between their father and natural guardian, and their uncle as guardian by the appointment of the Chicot Probate Court.
“And the court being fully advised in the premises, and being-satisfied that the father should be awarded the 'custody of his said children.”
“ It is therefore ordered and adjudged, that said John Dixon do have the control, possession and custody of said minor children, John M. and Elizabeth, and that defendant pay the costs of this part of the proceedings.
“And defendant excepts to the decision and judgment of the court in holding- that it has jurisdiction in this proceeding to hear and determine the right to the custody of the children as between the father and natural guardian, and the guardian by appointment of the Probate Court, and in awarding the custody of the children to their father, instead of remanding them to the custody of their guardian by appointment of the Probate Court; and prays an appeal from the decision and judgment of this court to the Supreme Court.”
'While the record was in this condition, a transcript was brought to this court, filed, and the case docketed as upon appeal, but'the transcript failing to show that an appeal was granted by the court behnvj the case was stricken from the docket.
Afterwards, at the January Term, 1876, of the Circuit Court of Chicot County, the following orders were made:
January 18th. “On motion, and it appearing to the court that the order in this cause entered of record at the October Term, 1875, failed to show that the appeal prayed for was granted, when in fact said appeal was granted as prayed for at that time. It is therefore ordered, that an order granting said appeal be entered of record now for then, in the following words: It is ordered that the appeal prayed for in this cause be granted.”
And “it appearing that the clerk at the last term of this court had entered the proceedings and orders in this case on the common law record, when the proceedings were had in chancery, it is ordered that the records of this court show this fact!”
A transcript was again filed in this court on the 29th of January, 1876, and within ninety days from the time when it seéms the appeal was in fact granted, but not entered of record in the court below.
The appellant also prayed for an ancillary writ of habeas corpus, commanding appellee to bring the minors before this court, and that, upon a hearing they be awarded to the custody of appellant, alleging a want of jurisdiction in the court below to render the judgment appealed from. Action upon this application has been reserved by this court, until the hearing upon the appeal, it appearing that appellee was .a suitable person to have the custody and care of the minors pending the litigation here.
The .court below being invested, by the Constitution, with chancery as well as common law jurisdiction, had the right to make its record show -whether the cause was heard and determined on its law or equity side, as it did. We shall, therefore, .try the case as a contest in chancery between the" father and the guardian for the custody of the minors ; and the only question to be decided, on this appeal, is whether the court below, sitting in chancery, had jurisdiction to take the minors from the latter and deliver them to the former.
Whether the order of the Probate Court appointing appellant guardian of the minors, on his own application,-was regular, or erroneous is not a question before us in this case.
By statute, as well as by the common law, the father (unless incompetent or unfit) is the natural guardian, and entitled to the custody, care and education of his minor children. Gantt’s Digest, secs. 6035-6. Tyler on Infancy and Coverture, ch. 16., and authorities cited. Mercein v. The People, 25 Wend., 73.
It seems that appellee was not a party to the proceedings in the Probate Court, by which appellant was appointed guardian ; it cannot therefore be assumed that that court adjudicated upon his fitness to have the personal custody and care of his minor children, or that its judgment is conclusive against him.
That the court below, sitting in chancery, had jurisdiction to take the minors from the custody of the appellant, their statute guardian, and deliver them into the custody and care of appellee, their father and natural guardian, we think there can be no well founded doubt. 2 Story Eq., secs. 1339-4081. Wood v. Wood, 5 Paige, 605; The People v. Mercein, 8 Paige, 56; People v. Wilcox, 22 Barbour, 189.
It affirmatively appears of record that the father was a suitable person to have the care of his children, and hence there was no abuse of discretion by the court below in .awarding them to him.
How old the minors were, or whether they had any preference in the matter, if of sufficient age to choose, does not appear.
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ROBERT L. Brown, Justice.
Appellant Georgia Louise Weaver appeals her capital murder conviction for the murder of her sister, Jeannie Allen, and her first-degree battery conviction regarding her great-niece, Theresa Allen Tessman. Weaver raises four points on appeal concerning sufficiency of the evidence and trial error. We hold that the evidence supporting conviction was substantial and that there was no reversible error. Accordingly, we affirm.
The victim in this case — Jennie Lee Allen, who went by Jeannie Allen — was age 66 at the time of her death. On December 19, 1992, she was admitted to Baptist Medical Center in Little Rock with fever, nausea, vomiting, diarrhea, near unconsciousness, weakness, and blurred vision. Her symptoms suggested a gastrointestinal illness. Neurological problems developed, and she was placed on a ventilator. Heavy metal screening and urine sampling revealed high levels of arsenic poisoning — 1,237 micrograms of arsenic as compared to an acceptable range of less than 200 micrograms. Treatment for arsenic poisoning was not implemented in time, and she died of cardiac arrest on January 17, 1993.
Following Jeannie Allen’s demise, members of her family were tested for arsenic poisoning. Her granddaughter, Theresa Allen, who was age 24, had an elevated microgram level of arsenic of 1,024, which was about five times above the acceptable level. It was also discovered that Theresa Allen was seven weeks pregnant. Because of the risk of fetal damage caused by arsenic poisoning, she voluntarily terminated her pregnancy. She was hospitalized for arsenic treatment for four days — from January 30, 1993, to February 2, 1993.
The death of Jeannie Allen and the arsenic poisoning of Theresa Allen led to charges of capital murder and first-degree battery against Weaver. The State’s theory of the case was that Weaver, motivated by greed and revenge, poisoned her sister by placing arsenic in her food, drink, and medication. Following a jury trial and verdict of guilty, Weaver was sentenced to life without parole for murder and to thirty years imprisonment for first-degree battery.
I Sufficiency of the Evidence
For her first issue, Weaver contends that the trial court erred in refusing to direct a verdict in her favor based on insufficient evidence against her. She urges that this was a case of circumstantial evidence and that another reasonable hypothesis existed for who murdered Jeannie Allen. The hypothesis she posits is that Jimmie Allen, Jeannie Allen’s husband, murdered his wife because (1) he had the opportunity to do so; (2) he tested negative for arsenic poisoning himself; and (3) he had threatened to kill Weaver and complained about her efforts to move into his house. We do not agree that Weaver’s hypothesis is reasonable.
A motion for directed verdict is a challenge to the sufficiency of the evidence. 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 judgment of conviction if there is substantial evidence to support it. 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. Id. Only the evidence supporting the conviction need be considered. Id. In order for circumstantial evidence 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). Such a determination is a question of fact for the fact finder to determine. Huggins v. State, 322 Ark. 70, 907 S.W.2d 697 (1995); Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993).
A person is guilty of capital murder if “[wjith the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person.” Ark. Code Ann. § 5-10-101 (a)(4) (Repl. 1993 8c Supp. 1995). We have held that premeditation and deliberation may be inferred from circumstantial evidence. Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989). We have further emphasized that intent and state of mind are rarely capable of proof by direct evidence and must usually be inferred from the circumstances of the case. Davis v. State, 317 Ark. 592, 879 S.W.2d 439 (1994).
Contrary to Weaver’s assertions, there was testimony to show that it was not reasonable to hypothecate that Jimmie Allen poisoned his wife and granddaughter. First, there was no testimony that he ever prepared meals for them. Secondly, he did not eat the same food as his wife and granddaughter which made his negative testing for arsenic not surprising. His children testified that his diet was restricted to baloney sandwiches and sandwiches from various fast food restaurants. They also testified that he drank only tap water or canned beverages. Witnesses further stated that he had limited ambulatory ability and a deteriorating mental condition. And he was never connected at trial in any way to arsenic. Finally, Weaver, the subject of Jimmie Allen’s malevolence, was not poisoned — his wife was. In sum, Weaver’s theory of the case was clearly a matter for the jury to weigh and resolve, and the jury rejected Weaver’s hypothesis, no doubt because it was implausible.
The circumstantial evidence supporting the jury verdict follows. Gary Lawrence, a chemist with the State Crime Laboratory, testified that the medication, Vick’s Nyquil, taken from the decedent’s home and a fruit punch taken from her freezer both tested positive for arsenic. Other testimony established a motive for murder. According to Jerry Allen, the son of the deceased, the sisters, Jeannie Allen and Georgia Weaver, became estranged in 1990, due to a dispute over funds of the guardianship estate of their mother, Birdie Fewell. Jeanette “Rusty” Rohlman, a neighbor of Jeannie and Jimmie Allen, testified that she had been close friends with the Allens since 1981. She was also knowledgeable about the dispute between the sisters over funds of the Birdie Fewell guardianship. Rohlman stated that Weaver wanted to divide the proceeds between them while Jeannie Allen wanted to put the money in an account for their mother. The dispute blossomed into a lawsuit filed by Allen against Weaver over missing funds, and Weaver afterwards vowed revenge. The estrangement ended in May or June of 1992, according to Jerry Allen, when Jeannie Allen assisted Weaver in resolving some “trouble with the law.” Jerry Allen also testified that after the apparent reconciliation, it seemed as if Weaver was trying to take over every aspect of Allen’s life and business. Rohlman testified that the dispute over the guardianship funds was still in litigation as late as November or December of 1992.
Rohlman added that she observed Weaver and Jeannie Allen spending nearly every day together during the summer of 1992. She testified that she had a key to Allen’s home but that the locks were changed in the fall of 1992. In October of 1992, Allen brought her the keys to her freezer, where her cash was kept, and to her top dresser drawer, where her jewelry was stored, for Rohlman to keep. Rohlman further told the jury that Jeannie Allen received a J.C. Penney’s bill on an account which she no longer had at the store and that an expensive ring had been charged to that account. On December 16, 1992, she accompanied Allen to J.C. Penney’s to resolve the charge on the credit card. When they returned, Weaver was not there but arrived shortly afterwards. Rohlman testified:
Georgia came into the house, and she said, “I have all my stuff in the car. What should I do with it? Where can I put it?” Georgia said — Jean told Georgia, “I told you not to bring anything over here. You are not moving in. You’re not putting it anywhere. Leave it in the car. You have a place to live.”
About thirty minutes later, Allen went to the bathroom and became violendy ill. According to Rohlman, she blamed the illness on her “nerves” from Weaver “driving [her] cra2y.” Rohlman added that Weaver did not seem concerned about Jeannie Allen’s illness.
Barbara Conneely, the daughter of Jimmie and Jeannie Allen, who lived in Chicago in 1992, and Nora Swain, another neighbor, confirmed that Weaver was always at Allen’s home during the summer and fall of 1992 and that she was reluctant to let them speak to Allen on the telephone. Viola Lenard, another neighbor, testified that Weaver was always around the victim and that it affected her relationship with others. Lenard further stated that Weaver had “seen to” Allen’s turning everything over to her in her will.
Marian White, the owner of the Cimarron Inn in Litde Rock, testified that she found a botde of rat poison at her inn where Weaver had worked as a desk clerk, beginning on December 11, 1992, and terminating on January 10, 1993. White testified that Weaver showed her where she hid her sister’s purse in a linen storage room at the inn because she did not want the police to find it. Ultimately, the purse disappeared. On March 2, 1993, White found a botde of rat poison hidden between a blanket and bedspread in the storage area adjacent to the linen storage room. According to White, that type of rat poison was never used at the inn. Danny Naegle, the manager of Farmer’s Association, testified that the price sticker on the botde of liquid rat poison showed that it was sold at his store. The botde was placed on his store shelf in October of 1992, and, Naegle stated, it was unlikely that the bottle was purchased after December of 1992 due to the manner in which the item was stocked, coupled with the number of sales during those months. Gary Lawrence of the State Crime Laboratory confirmed the presence of arsenic in a sample taken from the rat poison.
Officer Wilbur Page of the Litde Rock Police Department introduced a power of attorney purportedly signed by “Jennie Allen” and a Discover card under the name of James S. Allen. These items were recovered from Weaver. Linda Taylor, a handwriting expert, stated that in her opinion Weaver forged Allen’s signature on the power of attorney dated November 16, 1992. Jim Kirkland, a bank branch manager who notarized the power of attorney, testified that he notarizes documents only after verifying the signature on photo identification.
Linda Smith, who at the time worked in fine jewelry at J.C. Penney’s, testified that she sold a diamond ring to Weaver on November 19, 1992, at a cost of about $3,000. The ring was purchased on a temporary J.C. Penney’s charge card issued in the name of “Jennie Allen,” her legal name. Suzanne Stephens, who also works for J.C. Penney’s, testified that Weaver approached her about getting a temporary credit card, and she identified herself as Jennie Allen. According to Stephens, Weaver presented an Arkansas driver’s license with Allen’s name and Weaver’s picture. She further testified that Weaver presented her with documents giving Allen guardianship over James Allen’s account and properties. Based on this information, Stephens reactivated Allen’s account. Gary Aldrich, a retired pawn broker, testified that on November 19, 1992, Weaver pawned a diamond ring for $400.
Brenda Rockins, a postal employee, testified that Weaver rented a post office box under the name of Jennie L. Allen. The application was dated November 30, 1992. Weaver also filed a change of address in her name to the same post office box that was registered to Allen. Both change-of-address documents were dated December 21, 1992.
Jamie Teague, the branch manager for First Commercial Bank, testified that Weaver presented her with a power of attorney executed by Jeannie Allen in favor of Weaver for purposes of cashing a check in the amount of $1,392.89. That withdrawal closed out the account, which belonged to Birdie Fewell, the sisters’ mother. Weaver used the power of attorney to gain access to Allen’s safety deposit box, but the box was empty.
Theresa Allen told the jury that she ate lunch every day with her grandmother, Jeannie Allen, because she worked nearby. Theresa testified that “ [i] t was pretty plain to see that [Weaver] was taking over the house litde by little.” Theresa testified that toward the end of the summer, Weaver was fixing lunch for her every day. Theresa Allen told the jury about how upset Jeannie Allen was when she learned that she had been charged $3,000 on the J.C. Penney’s account. Theresa also testified that Weaver would pick up the Allens’ mail and added that she quit seeing Weaver at the Allen house after the episode concerning the J.C. Penney’s bill.
Theresa further testified that she started feeling poorly approximately two weeks, before her grandmother’s death and that she tested positive for arsenic poisoning. She was admitted to the Baptist Medical Center for four days and then received seven more days of treatment at home. Prior to the arsenic testing, Theresa Allen blamed her illness on the fact that she was pregnant. She then had an abortion because the arsenic poisoning had penetrated her placenta, and she concluded that the baby would not have been normal. She stated that she once borrowed some Vick’s Nyquil from her grandmother, used it, and later returned the bottle.
Finally, Theresa Allen stated that Weaver once asked her where she could obtain a fake driver’s license for her son and his girlfriend, who needed the fake ID’s so that they could go out. Theresa told Weaver how she obtained her fake ID. Theresa added that she drank for months from the beverage container which was contaminated with arsenic.
To summarize the testimony, Weaver and her sister fell out over money, and Weaver vowed revenge. During the summer and fall of 1992, Weaver appeared to be taking over Jeannie Allen’s affairs and isolating her. She forged her sister’s name on a power of attorney, apparendy by obtaining a fake driver’s license which bore her sister’s name. She later used these items to empty the Birdie Fewell bank account (about $1,400) and to view Jeannie Allen’s safety deposit box. She also began a scheme of impersonation. On November 19, 1992, Weaver used her false identification to reopen Allen’s account at J.C. Penney’s and purchase a $3,000 diamond ring, which she later pawned for $400. Jeannie Allen received the J.C. Penney’s bill in December of 1992 and began taking steps to find out what had happened. Shordy after this occurred, Allen became violently ill.
Both the Vick’s Nyquil botde and the gallon drink container found in the Allen home tested positive for arsenic. On March 2, 1993, liquid rat poison containing arsenic was found hidden in the storage room at Weaver’s former place of employment next to a linen storage area where she had hidden her sister’s purse because she did not want the police to find it. Theresa Allen was also poisoned, and she testified that Weaver prepared meals for her on a daily basis.
This evidence was sufficient to compel a reasonable mind to conclude that Weaver poisoned her sister and grand-niece. The testimony showed that Weaver was motivated by revenge and greed against her sister. There was ample evidence that she had developed a full-blown scheme to take over her sister’s property and affairs. She also had the opportunity and the means to commit murder because she had access to food, drink, and medication in the Allen household. And finally there was the link to the rat poison at her place of employment. The trial court did not err in denying the motion for directed verdict.
II. First-Degree Battery
Weaver next contends that there was insufficient evidence supporting her first-degree battery conviction. Our analysis of this point turns on the definition of “serious physical injury.” A person commits battery in the first degree if “[h]e causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life.” Ark. Code Ann. § 5-13-201 (a)(3) (Repl. 1993 & Supp. 1995). The code defines “serious physical injury” as “physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.” Ark. Code Ann. § 5-1-102 (19) (Repl. 1993 & Supp. 1995). We look to determine whether there is substantial evidence from which the jury might infer serious physical injury. See Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991); Tarentino v. State, 302 Ark. 55, 786 S.W.2d 584 (1990).
In viewing the circumstances surrounding the poisoning and its impact on Theresa Allen, we conclude that there is substantial evidence to support a verdict that her injury was “serious.” It is apparent to us that there was a substantial risk of death. This inference is supported by the convincing fact that the elevated level of arsenic in her system approached the lethal level found in Jeannie Allen. She was also hospitalized for several days to reduce the level of toxicity. Again, the trial court did not err in denying the directed verdict motion on this charge.
III. Mistrial
Weaver moved for a mistrial during Jerry Allen’s testimony. He stated in answer to the prosecutor’s question that in May or June of 1992, Weaver “was in some type of trouble with the law, and Qeannie Allen] intended to help her.” Counsel for Weaver objected to the testimony and moved for a mistrial. The State argued that the impact was minimal and that an admonition would suffice to cure any damage. The court denied the motion to declare a mistrial, and Weaver declined the offer of an admonition. Weaver argues that justice could not have been served by continuing the trial and that the motion should have been granted because the jury likely presumed her to be a career criminal.
A mistrial is a drastic remedy and is proper only when the error is beyond repair and cannot be corrected by any curative relief. Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995). The granting of a mistrial is within the sound discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal absent a showing of abuse. Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995). It is not an abuse of discretion if improper comment did not influence the verdict. Id. When there is doubt as to whether the trial court abused its discretion, a failure to request an admonition will negate a mistrial motion. Boyd v. State, 318 Ark. 799, 889 S.W.2d 20 (1994).
Weaver relies on Allard v. State, 283 Ark. 317, 675 S.W.2d 829 (1984), as authority for when a declaration of a mistrial is warranted. That case, however, is factually distinguishable. In Allard, additional counts of theft by receiving contained in the original indictment were read to the jury even though the defendant was to be tried only for aggravated robbery. Under such circumstances, the prejudice to the defendant was real and palpable.
Here, from the context of the colloquy, the testimony was not deliberately solicited by the prosecutor. Prior to the testimony, the prosecutor told the trial court and defense counsel that he had instructed Jerry Allen not to state what Weaver’s problems with the law were. The prosecutor then asked what Jeannie Allen’s intended course of conduct was, and Jerry Allen made the reference to “trouble with the law.” In addition, we observe that there was no specific reference to a particular crime. As the trial court remarked, the “trouble with the law” referred to by Jerry Allen could have been traffic violations and relatively minor indeed. Bolstering this conclusion is the fact that the jury could have inferred that any “trouble with the law” was not serious in 1992, because Weaver did not go to jail but spent nearly every day with Jeannie Allen from that point forward until her death. We have held in the past that an admonition to the jury could cure a witness’s reference to the defendant’s “previous record” or third-degree battery conviction. See Reel v. State, 318 Ark. 565, 886 S.W.2d 615 (1994); Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991).
Because the possibility of prejudice was speculative, an admonition could have cured any potential error. An admonition was offered, and counsel for Weaver declined. The trial court did not abuse its discretion in denying the motion for a mistrial. See Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995).
IV Admissibility of Rat Poison
Weaver moved to suppress the botde of rat poison found hidden in a storage area at the Cimarron Inn seven weeks after the crime on the basis that it was irrelevant. She now appeals the trial court’s ruling on her motion. Evidence is relevant, under our rule and caselaw, if it has any tendency to make the existence of a fact that is of consequence to the determination of the action more or less probable. Ark. R. Evid. 401; Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990). The trial court has wide discretion on rulings concerning the admissibility of evidence, and that decision will not be reversed absent an abuse of discretion. Monk v. State, 320 Ark. 189, 895 S.W.2d 904 (1995); Grigsby v. State, 260 Ark. 499, 542 S.W.2d 275 (1976).
The evidence, to reiterate, was that rat poison was found at the Cimarron Inn, Weaver’s former place of employment, close to an area where she had once hidden her sister’s purse. Weaver worked at the inn from December 11, 1992, to January 10, 1993. Allen was hospitalized on December 19, 1992. The discovered rat poison contained arsenic. The poison was not found where other chemicals were stored by the inn and was unlike other poison used by the inn to control rats and mice. It was also shown that the poison was purchased near the time when Jeannie Allen began exhibiting symptoms of arsenic poisoning. The evidence, in toto, supports an inference that Weaver purchased the poison, used it to murder Allen, and hid it at her place of employment. The trial court did not abuse its discretion in admitting the bottle of rat poison into evidence for the jury to weigh. See Miller v. State, 280 Ark. 551, 660 S.W.2d 163 (1983).
The record in this case has been reviewed for other reversible error in accordance with Supreme Court Rule 4-3 (h), and none has been found.
Affirmed. | [
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Per CURIAM.
On October 11, 1995, appellant Rammie Earl Hall filed his brief pro se in his appeal from a denial of Rule 37 relief. On January 3, 1996, the State filed its brief and pointed out that Hall had failed to comply with Supreme Court Rule 4-2 (a) (6) in preparing its abstract. Hall then sought permission from this court to substitute a brief for the purpose of correcting the abstract in his brief, and permission was granted by per curiam order on January 16, 1996. On February 26, 1996, Hall filed his new brief.
The State now contends that Hall not only corrected his abstract but rewrote the argument portion in his substituted brief as well and that it has no opportunity to respond to the rewrite. The State asks for permission to strike the rewritten brief completely or, alternatively, that this court only consider the original brief filed by Hall.
We agree with the State that in his substituted brief Hall corrected his abstract and rewrote his argument. Accordingly, we grant the State’s motion as it relates to the argument in the substituted brief.
With respect to the corrected abstract, we direct the Clerk of this court to replace the abstract in Hall’s original brief with the substituted abstract so that the appellant’s brief submitted to this court will contain the substituted abstract and the original argument.
DUDLEY, J., not participating.
Glaze, J., dissents. | [
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■ Harrison, J.:
The appellant, Sam. Lawson, was indicted with one Andy Lawson, for grand larceny.
The property charged to have been stolen, were two hogs belonging to William R. Sanders, of the value of §15, each. He was tried separately, and convicted.
Nancy Hunt, a witness for the State, testified : That the defendant and Andy Lawson came to her husband’s house in the evening, shortly after dark, and called him out; they had some conversation which she did not hear, after which he returned .into the house, and asked her if she was afraid to stay by herself awhile. She told him she was not afraid, and inquired where he was going; he replied, he was going with those boys to get some meat. She told him, he would get into trouble, and entreated him not to go. He would go; and in about a half an hour they returned, bringing with them two hogs, which she heard Andy Lawson say, in the presence of the defendant, belonged to William R. Sanders, and which she of her personal knowledge knew to be his. This was in Cross County, and some time in 1875. Witness had testified before the examining court.
The defendant, at the time and before she had testified to what subsequently occurred, objected to her stating anything said to her by her husband, in his absence; but the court overruled the objection, and permitted her statement of what was so said to go the jury.
The declarations of one of several persons, who have con-' spired to commit an unlawful act, if made during the pendency of such enterprise, and in furtherance of its object, are admissible as evidence against the others, though made in their absence. Ordinarily, however, a foundation must first be laid by proof sufficient to establish prima facia, or proper to be laid before the jury, as tending to establish it, the fact of conspiracy between the parties.
Sometimes, however, in the discretion of the court, under particular and urgent circumstances, such declarations are admitted to go to the jury, before sufficient proof is given of the conspiracy; the State undertaking to furnish such proof afterward. Green, on Ev., sec. 111. The witness had stated, that the defendant and Andy Lawson had come to her husband’s house after dark, and called her husband out, and had a conversation with him. If this was not a sufficient foundation for the admission of his declaration- — in regard to which we express no opinion — her subsequent testimony as to what afterwards occurred, which if it had preceded her statement about what he told her, would have been a good foundation for their admission, made the competency of the declarations as evidence apparent, and the defendant could not possibly have been prejudiced by the admission of them before such foundation was laid.
The defendant called G. W. Lane, Henry Roberts and J. A. Winchell, who severally testified, that they were acquainted with the witness, Nancy Hunt, and being asked if they knew her reputation for truth and morality, answered that they did not know what it was at that time, she having removed from the neighborhood, where they resided, about two years before. They were then asked, what it was in the community she removed from at the time she left it, but the prosecuting attorney objected to the question, and the court refused to permit the witnesses to answer it.
By an express provision of the statute, sec. 2524, Gantt’s Digest, a witness may be impeached by evidence, that his general reputation for truth or morality is so bad as to render him unworthy of belief. Majors v. The State, 29 Ark., 112.
In the case of Snow v. Grace. 29 Ark., 131, it was decided, that witness’ reputation for truth in the community, where he resided seven years before, whilst living there was admissible. The opinion in that case contains a very full and elaborate review of the authorities bearing upon the subject. Mr. Special Justice Williams, who delivered it, said: “It will be thus seen, that the authorities are in conflict on this question. It seems to us, however, that the reputation a witness has for truth, is a mere circumstance; which the rules of law allow to be considered by the jury, to aid them in determining the degree of credit to be given the witness, and is purely a question of fact. If so, does not a reputation at some other time than that of testifying, and some other place than that of the then residence, equally tend to shed light upon the question of credit. The light may be dim and flickering on account of remoteness, but is it not still light? The remoteness of time and place are also circumstances and facts to which ordinarily, under proper instructions, the jury will give due weight. If this sort of testimony is to be admitted at all, it would be difficult to draw the line, and say when it, the evidence of reputation, ceases to be fact, and becomes a question of law.” “Doubtless there are cases,” he continued, “ in which the testimony would be too re- ■ mote as to time, and the court in its discretion, might exclude it, as in the case cited from 2 Howard (Teese v. Huntingdon). Its exclusion in that case, rested in the sound discretion of the court, so held.”
In the case of Teese v. Huntingdon, referred to by Judge Williams, the trial took plaee and the witness was called in October, 1857, and he testified, that he knew the witness sought to be impeached during the years 1852 and 1853, in the city where they resided.
In this case, the time when the witness lived in the neighborhood of the persons called to impeach her credibility, was sufficiently recent and proximate, that the reputation she then bore for truth and morality, was, we think, a fact so clearly tending to prove the degree of credit her testimony was entitled to, as to exclude any discretion in the court as to its admission, and their knowledge concerning it, should.have gone to the jury for what it was worth.
It was error in the court, to refuse to allow the witnesses to answer the question asked, for which its judgment must be reversed, and the cause remanded, that the defendant may have a new trial. | [
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Harrison, J.:
This was an action of replevin by Nancy Owens against Lewis McClure and M. O. Burton, composing the firm of McClure & Co., for one mule, two horses and four head of cattle of the value of $230, commenced before a justice of the peace, and transferred, on application of the defendants, to the Court of Common Pleas.
The defendants denied the plaintiff's title and claimed possession of the property under a mortgage from William Owens, then deceased, who was the husband of the plaintiff and the owner of the property at the time of his death.
The plaintiff recovered judgment in the Court of Common Pleas, and the defendant appealed to the Circuit Court. In the Circuit Court the plaintiff again recovered a verdict, and the defendant, after moving for a new trial, which was refused, and judgment against them, took a bill of exceptions and appealed to this court.
It is sufficient to merely state the facts, as to which there was no controversy.
The property in controversy belonged to William Owens, whose widow the plaintiff is. On the 22d day of April, 1875, he executed a mortgage of it to the defendants to secure a debt he owed them, and containing a power to them, if the debt was not paid on the 1st day of November, 1875, when it fell due, to take possession of the property and to sell it for the satisfaction of the debt.
The mortgage was acknowledged by Owens, but not recorded in his lifetime. Owens died on the 26th day of October, 1875,’ and, on the 28th day of the same month, the defendants filed the mortgage for record. Administration on Owens’ estate was granted on the 26th day of November, 1875, to J. N. Mitchell, who had the property in controversy appraised as part of Owens, estate. The defendants, after the appraisement, took it in possession, and, after they had taken possession thereof' the administrator set apart and assigned it to the plaintiff as her dower in the personal estate.
The defendants presented no claim against Owens’ estate to his administrator for allowance.
The mortgage, though unrecorded, was valid between the parties, and was equally as valid after the death of Owens as before; his death did not in the least impair the rights of the defendants; Haskill v. Sevier, 25 Ark., 152.
The wife, by marriage, has no such inchoate right of dower in the personal estate of her husband as she has in his real estate, and he may sell, mortgage or dispose of the same at his pleasure. Her right of dower in his personal estate does not accrue until his death, and only in such as he then owns.
It was decided in Arnett v. Arnett, 14 Ark., 57, and again in James v. Marcus, 18 Ark., 421, that where an execution is levied upon personal property of the debtor in his lifetime, the officer, by the levy, acquires a special property in the goods, and may proceed to sell them after his death; and that the debtor does not die possessed of them within the meaning of the statute upon the subject of dower, and his widow is not entitled to dower therein.
The lien of the defendant’s mortgage was paramount to the plaintiff’s right of dower, and though the property had been set apart to and assigned her by the administrator, she had no title that she might- set up against it.
The defendants were not required to probate their claim against Owens’ estate, but entitled to proceed under the power given in the mortgage for its satisfaction. Richardson v. Hickman, adm’r, et al., ante; Barber v. Peay, adm’r, 31 Ark., 392; Nicholls & Barrett v. Gee, 30 Ark., 135; Hall v. Denckla, 28 Ark., 506.
The judgment is reversed and the cause remanded to the court below, with instructions to grant the defendants a new trial. | [
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English, Ch. J.:
Richardson & May filed a bill on the Chancery side of the Circuit Court of Chicot County, against John G. B. Simms, Charles E. Sessions and Alexander Be Valcourt, administrator of the estate of Walter Sessions, deceased, to foreclose a mortgage.
The hill alleges, in substance, that on the 12th of January, 1872, Walter Sessions, then living, executed to plaintiffs, Richardson & May, his note for $2532.79, due at twelve months, and bearing 8 per cent, interest from date; and to secure 'the payment of the note, conveyed to them, by mortgage of that date, certain lands situated in Chicot County, which are described, and the-note and mortgage are made exhibits.
That part- of said indebtedness has been paid, and a large balance has long been due, and there is now due and owing to plaintiffs the sum of $2348.10.
That long after the execution of said mortgage, one Richard R. Sessions and defendant Simms purchased said lands, and said Simms is now in possession of part of them. That said Richard R. Sessions afterwards conveyed part of the said lands to defendant Charles E. Sessions, and he and defendant Simms are now in possession of all of said lands.
That defendant Alexander De "Valcourt is the administrator of the estate of Walter Sessions, deceased.
Prayer for decree for the debt, that the mortgage be foreclosed, and the lands sold for ¿he satisfaction of the debt, etc.
At the return term (12th July, 1876), defendants filed a motion to dismiss the suit on the grounds that it did not appear that the mortgage debt was verified by affidavit, as a claim against the estate of Walter Sessions, deceased, before the institution of the suit; and the court overruled the motion, on the 19th of July.
On the 20th July, defendants Simms and Sessions moved to dismiss the suit by reason of matter that is set up as an estoppel and stated in the motion, in substance as follows:
“That plaintiffs probated their claim against the estate of said Walter Sessions, deceased, and had same classed against said estate as a claim, in the Probate Court of Chicot County; and afterwards applied to said court for an order of payment; and upon the grounds that plaintiffs had á/ lien on the property of said estate, and that the property was worth more than the amount 'of the claim, the court ordered said claim or demand to be paid, after payment of a claim against said estate in favor of Ohas. G. Scott, as administrator of the estate of John Drennen, deceased, which amounted to about $1000. That from the account current of the administrator of said estate of Walter Sessions, deceased, there is a large balance in the hands of said administrator amounting to the sum of $3640.32, and more than enough to pay the debt of said Scott and the debt of plaintiffs and that said estate has reserved a lien upon the lands in this suit to secure still other large sums due said estate; and defendants insist that by reason of obtaining said order of payment plaintiff’s are estopped from seeking to enforce their lien against the said property if any such they have.”
This motion to dismiss the suit was heard and overruled on the day it was filed.
On the same day defendants Simms and Sessions filed a motion asking the court to require plaintiffs to make the heirs at law of Walter Sessions, deceased, parties defendant.
This motion was heard and overruled by the court on the day it was filed.
On the next day (July 21st), the record states that the cause-came on to be heard, and it appearing to’ the court that defendants had been duly served with process, and had wholly failed to answer or demur to the complaint, the court proceeded, upon bill and exhibits, to render a decree in favor of plaintiffs for the amount due upon the mortgage debt, declaring it to be a lien upon the lands, foreclosing the mortgage, barring the equity of redemption of the defendants, and directing a sale of the lands, by a commission, for the satisfaction of the decree.
On the 25th of July, defendants filed a motion to set aside the decree, on the grounds that it had been entered without their knowledge, and while the court had under advisement the question of their right to interpose other or further defenses, with leave-to defendants to submit an argument in favor o'f such rights, etc.
On the same clay defendants filed a demurrer to the bill.
The court overruled the motion to set aside the decree, and struck the demurrer from the files. One of the causes assigned for demurrer was that the heirs of Walter Sessions were not made defendants.
Defendants appealed to this court.
I. It was not necessary for appellees to make an affidavit authenticating their debt before filing their bill to foreclose the mortgage. They did not seek, by this suit, to satisfy their debt out of the general assets of the estate of Walter Sessions, deceased, in the hands’of his administrator, but to enforce their lien upon lands mortgaged to them by Sessions, in his life time, to secure the payment of the debt. The court below did not err, therefore, in overruling the motion of appellant to dismiss the suit for want of such an affidavit, as repeatedly held by this court. Pope’s Heirs et al. v. Boyd’s Adm’x, 22 Ark., 535 ; Allen et al., adm’r v. Smith, ex’r, 29 Ark., 74; Haskell et al. v. Sevier et al., 25 Ark. 152, Nicholls & Barrett v. Gee, adm’r, et al., 30 Ark., 135; Hall v. Denckla, 28 Ark., 506.
II. The matter set up as an estoppel in the second motion of appellants to dismiss the suit, was not good cause for dismissal, nor would it have been a valid defense to the suit if properly pleaded.
On default of payment of the mortgage debt at maturity, appellees had the right to sud at law upon the debt, bring ejectment for the possession of the lands, and to file a bill to foreclose the mortgage. Fitzgerald v. Beebe, 7 Ark., 319. And they had the right to pursue all these remedies at once, though entitled to but one satisfaction. Very v. Watkins et al., 18 Ark., 553; Sullivan v. Hadley, 16 Ark., 144.
The substance of the matter set up in the motion to dismiss is, that appellees had probated their debt against the estate of the mortgagor, and obtained an order of the Probate Court for its payment, and there were sufficient assets in the hands of the administrator to pay the debt. But there is no averment in the motion that 'the debt had been paid, or that appellees had obtained satisfaction of their demand by this remedy. The allowance of their claim in the Probate Court was no bar to their remedy by bill in equity to foreclose the mortgage. Turner, use, etc. v. Horner, adm’r, 29 Ark., 441.
III. The equity of redemption of the mortgagor, is considered to be the real and beneficial estate, tantamount to the fee at law, and is accordingly held to be descendible by inheritance, devisable by will, and alienable by deed, precisely as if it wére an estate of inheritance at law. State, use, etc. v. Lawson, 6 Ark. (1 Eng.), 269.
On the death of Walter Sessions, the mortgagor, his estate in the lands in controversy, descended to his heirs at law, and they had the right to redeem the lands, unless before his death he conveyed his estate in the lands to others, or it was sold under execution and purchased by other person^.
As to parties defendant to the bill to foreclose a mortgage, the rule is that the heirs or devisees of the mortgagor, who dies the owner of the fee, are indispensible parties. If, however, the estate has been conveyed by him, or assigned by operation of. law, then only the assignee need be made a party, etc. Erwin, adm’r, et al. v. Ferguson et al., 5 Ala., 164; Allen & Hill, adm’r v. Smith, adm’r, 25 Ala., 495; Kiernan v. Blackwell, adm’r, et al., 27 Ark., 235 ; Allen et al., adm’r v. Smith, ex’r, 29 Ark., 74.
In a bill to foreclose, the heirs at law of the deceased rnort- ■ gagor should be made defendant, or some excuse for not making them, defendants should be shown upon the face of the bill; as that the mortgagor conveyed his estate in the mortgaged lands before his death, or that it was sold under execution, or that after his death his interest in the lands was sold under an order of the Probate Court, etc.
The allegations’ of the bill in this case are very loose. The death of Walter Sessions is not directly averred. It is alleged that he executed the note and mortgage while living, and after-wards it is averred that defendant De Valcourt is the administrator of his estate. There is no allegation that he had conveyed his estate in the lands before his death, or that he had no estate in the lands at the time of his death.
There is a loose averment, that long after the execution of the mortgage, one Richard R. Sessions and defendant Simms, pur■chesed said lands, etc., but of whom, or how they purchased, is not alleged.
Admitting all of the allegations of the bill to be true, as if upon demurrer, yet for anything that appears to the contrary, • Sessions may have died seized of the equity of redemption in the lands, and this estate may have descended to his heirs at law.
If the proper parties are not made, the defendant may demur to the bill, if the defect appear on its face, or take the objection by plea or answer, or, at the hearing, object that the proper parties are wanting; or the court itself may state the objection, and refuse to make the decree, or if a decree be made, and the defect appear on the face of the bill, the decree may be reversed for such defect on appeal. Story Eq. Plead., sec. 75. Porter et al. v. Clements, 3 Ark., 364; Kiernan v. Blackwell, adm’r, et al., 27 Ark., 235.
The Civil Code has undertaken the difficult task of making rules of pleading and practice applicable in common to suits at law and in equity.
Sec. 4564 (Gantt’s Dig.), enumerates the grounds for which the defendant may demur to the complaint, and among them :
“Fourth — That there is a defect of parties, plaintiff or defendant.”
Sec. 4567, lb., provides that: “When any of-the matter enumerated in sec. 4564 do not appear upon the face of the complaint the objection may be taken by answer. If no such objection is taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court over the subject of the action, and the objection that the complaint does not state facts sufficient to constitute a cause of action.”
Let it be assumed to be a universal and absolute rule that a -defect for want of proper or necessary parties dan only be taken advantage of by answer or demurrer, and that unless so taken advantage of it is waived, and that the court must render a decree notwithstanding such defect may be apparent on the face of the bill, and that the decree cannot be reversed on appeal because of such defect, and see what mischief may result from the rigid enforcement of the rule according to the letter of the statute.
As an example, suppose Walter Sessions, the mortgagor, had ■ been living when the bill in this case to foreclose the mortgage was filed, and he had not been made a defendant, but mere occupants of the lands had been made defendants, and they had failed to set up the objection that he was not made a party by answer or demurrer, should the court have rendered a decree foreclosing the mortgage, and ordering the lands sold to pay the debt? We think not. Such a decree would not. bar the equity of redemption of the mortgagor, nor would a purchaser under the decree get a good title to the lands.
Sessions being dead, it was just as necessary to make his heirs at law defendants, or to show on the face of-the bill that they had no title to the lands, as it would have been to make him a defendant had he been living when the bill was filed.
We think the sections of the statute above copied, must be construed in connection with sec. 4470 of the Digest, which provides for the making of necessary parties, and sec. 4616, which provides for amendments.
On the motion of appellants to require appellees to make the heirs of Walter Sessions defendants, the court should have required them to make them defendants, or to so amend the bill as to show that they had no estate in the lands, and hence were not necessary parties. 15 B. Monroe, 589; 2 Duer., 663; 29 Barbour, 25.
For the error of the court in refusing to do so, the decree must be reversed, and the cause remanded for further proceedings. | [
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English, Ch. J.: /
On the 26th day of June, 1876, Taylor, Cleveland & Co. sued the Little Rock, Mississippi River and Texas Railroad Company, (successors of the Little Rock, Pine Bluff and New Orleans Railroad Company,) before a justice of the peace of Jefferson County, on a bill of lading.
The plaintiffs filed a formal complaint in writing, to which the defendant corporation filed an answer containing three paragraphs.
The plaintiffs obtained judgment before the justice of the peace, and the defendant appealed to the Circuit Court.
In the Circuit Court, the defendant withdrew the first and second paragraphs of the answer, and the plaintiff demurred to the third paragraph; the court overruled the demurrer, final judgment was rendered in favor of defendant, and plaintiffs appealed.
The complaint is, in substance, as follows :
I. The plaintiffs complain and allege :
“ First — That at the times hereinafter mentioned, the defendant was a common carrier of goods, for hire, between the places hereinafter mentioned :
“Second — That on the 15th day of December, 1875, at the City of Pine Bluff, in consideration of the sum of two dollars per bale, payable upon the safe carriage of the goods hereinafter specified, the defendant agreed safely to carry to the City of Now Orleans, Louisiana, and there deliver to John Phelps &Co. certain goods, the property of the plaintiffs herein, of the value of $480, consisting of eight bales of cotton, covered by the bill of lading hereto attached, and marked Exhibit A, and which the plaintiffs then and there delivered to the defendant, which received the same upon the agreement and for the purposes before mentioned, and which said agreement is hereto attached as aforesaid, marked Exhibit A.
“ Third — That the defendant did not safely carry and deliver four bales of the cotton as aforesaid, marked respectively as per bill of lading, (here the marks of the bales are copied,) and of the value of $240, pursuant to agreement as aforesaid, but, on the contrary, the defendant so negligently conducted and so misbehaved in regard to the same, in its calling as a carrier, that the said four bales were wholly lost to the plaintiffs.
II. Cause of action.
“ Find — That the said defendant did not carry and deliver the said eight bales of cotton, pursuant to its agreement herewith filed as aforesaid, marked Exhibit A, but on the contrary the said defendant failed.to carry and deliver four of the said eight bales, marked as aforesaid, in sec. 3 of the first cause of action, to the said John Phelps & Co., of New Orleans, Louisiana, the consignees thereof, or any one else for the said plaintiffs, and the said four bales of cotton have been an entire loss to the plaintiffs, on account of the negligence of the said defendant.
"• Second — That no part of the account hereto attached, and made a part hereof has been paid.
“ Wherefore plaintiffs demand judgment for $240, and interest,” etc., etc.
The bill of lading made an exhibit to the complaint is, in substance, as follows:
“ Freight office, Little Rock, Pine Bluff and New Orleans. Railroad.
“ Bill of Lading :
“Pine Bluff, Ark., December 15th, 1875.
“ Received of Taylor, Cleveland & Co., in apparent good order,' except as may be herein specified, to be conveyed by the Little Rock, Pine Bluff and New Orleans Railroad, from Pine Bluff, Ark., to elevator, wharfboat, or levee, at Chicot, Ark., from thence by steamer on the Mississippi River, (the dangers of river, collision, explosion and fire excepted,) and connecting railroads, subject to the conditions of their several charters, tariffs and various regulations, which are to be delivered in like good order and condition, without unnecessary delay, at New Orleans, Louisiana, unto John Phelps & Co., marked and numbered as per margin, to be transported from Pine Bluff to their said place of ultimate destination.
“ The packages aforesaid must pass through the custody of several carriers. It is understood, as a part of the consideration on which said packages are received, that the exceptions from liability made by such carriers respectively, shall operate in the carriage, by them, respectively, of ^aid packages, as though herein inserted at length; and especially that neither said carriers, nor either, nor any of them, shall be liable for leakage of any kinds of liquids, etc., etc., etc. And it is further especially understood, that for all loss or damage occuring in the transit of said packages, the legal remedy shall be against the particular carrier only in whose custody the said packages may actually be at the time of the happening thereof,.it being understood that the Little Rock, Pine Bluff and New Orleans Railroad, in receiving the said packages, to be forwarded as aforesaid, assumes no responsibility for their safety or safe carriage,' than may be incurred on its road, etc., etc.
“ Cotton, per bale, $2.50.”
The eight bales of cotton are in the mai’gin, marked as indi■cated in the complaint, and the bill of lading is signed by the ■•agent of the company.
The third paragraph of the answer, to which appellants demurred, is, in substance, as follows :
“ Defendant further says that the said cottton was not lost by the said Little Rock, Mississippi River and Texas Railway; but that said company safely did convey all of said cotton over its line to Chicot City, the terminus of said line, and there did safely deliver said eight bales of cotton to the good steamer Mary Bell, running on the Mississippi River, from Chicot, as aforesaid, to said port of New Orleans, to be transported to said port •of New Orleans, to be delivered to John Phelps & Co., and took the bill of lading of said steamer Mary Bell, for the same, according to the terms and condition of said receipt or bill of lading, (made an exhibit to the complaint,) and that no loss or damage occurred to said cotton while under the control of said Little Rock, Pine Bluff and New Orleans Railroad Company. Wherefore, said last mentioned company was not liable for any supposed loss and damages to said company.”
No question is made upon the appeal as to the liability of the •appellee corporation upon a contract made with the Little Rock, Pine Bluff and New Orleans Railroad Company, the paragraph •of the answer setting up that defense having been withdrawn from the court below.
Though the appellee corporation gave a through bill of lading for the cotton, from Pine Bluff to New Orleans, it expressly contracted against liability for loss or damage to the cotton occurring beyond the terminus of its own line, at Chicot City, on ■the Mississippi River, in this State.
The appellee is responsible as a common carrier. Angel on Carriers, sec. 109.
A common caraier is regarded by law as an insurer of the property entrusted to him ; or, in other words, he is legally responsible for acts against which he would not provide, from whatever cause arising, the acts of God and the public enemy only-excepted. The loss, or damage done to property in his possession, to be carried, is of itself sufficient proof of negligence, the maxim being, that everything is negligence which the law does not excuse; so that in all eases, but those just mentioned as excepted, his faultlessness is no discharge, ib., sec. 67.
How far a common carrier may contract against liability for loss or damages occuring, otherwise than by the acts of God, or the public enemy, has been the subject of much judicial controversy. Sec. 2, Redfield on Railways, sec. 161 to 163, and notes.
In Railroad Company v. Lockwood, 17 Wallace, 357, the Supreme Court of the United States held, upon a very full review of the authorities, that whilst common carriers might contract against liability for losses, etc., occurring from unavoidable accidents, it was against public policy to permit them to contract for exemptions from liability from losses and damages happening from the negligence of themselves or their servants.
In that case, the New York Central Railroad Company gave a cattle drover a pass upon its line from Buffalo to Albany, but declared in the pass that its acceptance was to be considered a waiver of all claims for damages or injuries received on the train. Lockwood, the drover*, sued the company for an injury sustained in consequence of the negligence of the company, or its servants, and it was held that the company Avas liable for such negligence, notwithstanding the stipulation for exemption in the contract.
This case was approved in Bank of Kentucky v. Adams’ Express Company, 3 Otto, 174.
That a railroad corporation, in giving a bill of lading for the transportation of goods over its own line, and other connecting lines of railways, or other public means of carriage, may, as in this case, contract against liability, loss of, or damage to the goods happening beyond the termination of its own line, we think well established by the adjudications. Railroad Company v. Manufacturing Company, 16 Wallace, 324; Railroad Company v. Pratt, 22 Wallace, 129 ; Foy v. Troy and Boston Railroad Company, 24 Barb., 382; Adams’ Express Company v. Wilson et al., 81 Ill., 340; United States Express Company v. Haines, 67 Ill., 137 ; Nutting v. Connecticut River Railroad Company, 1 Gray, 502 ; Buckland et al. v. Adams’ Express Company, 97 Mass., 131; 2 Redfield on Railways, sec. 162, and notes.
Whether the appellee corporation would have been liable for the loss of the cotton occurring beyond the terminus of its own road, in the absence of stipulation in the contract of affreightment against it, we have no occasion to decide on this appeal.
The judgment of the court below is affirmed. | [
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English, Ch. J.:
On the 20th of February, 1874, Phillip R. Miller executed to the firm of J. Kempner & Bro., the following note.
“ $594.11. On or before the 25th day of December, 1874, I promise to pay to J. Kempner & Bro., five hundred and ninety-four dollars and eleven cents, with ten per cent, interest per annum until due, and after maturity to bear two per cent, interest per month until paid, value received.
“ This the 20th day of February, 1877,
“ P. R. Miller, [seal].”
On the same day, Miller executed to J. Kempner & Bro., a mortgage upon real and personal property to secure the payment of the note, which was acknowledged and recorded in Garland County, where the note was executed.
Jacob Kempner, as successor of J. Kempner & Bro., filed a bill in the Garland Circuit Court to the May Term, 1877, to foreclose the mortgage, and Miller was served with process on the 5th day of the preceding March.
On the 11th of May, 1877, the cause was called, and Miller having been duly served with process, and failing to appear, plead, answer or demur, a decree was rendered against him for the debt, etc., foreclosing the mortgage, and directing a sale of the property, etc.
On the 5th of June, Miller filed a motion to set aside the decree; on the 7th of June, the plaintiff filed a response, controverting the material matters stated in the motion. On the 14th of June, the court heard, and overruled the motion; Miller excepted, and was granted time until the following Monday, to prepare and tender a bill of exceptions, but no bill of exceptions appears to have been taken.
On the 4th of August following, the clerk of this court granted him an appeal from the decree.
The decree against appellant was for $594.11, debt,, being the principal of the note secured by the mortgage, and $186 damages, as interest for the detention of the debt, with 10 per cent, interest on the debt and damages from the date of the decree-until paid.
A.t the time the note in question was executed, the parties were at liberty to contract for any rate of interest they might agree upon. Sec. 21, art. v., Constitution 1868.
The plain and unmistakable meaning of the contract in this case, is that the maker of the note agreed to pay 10 per cent, per annum upon the debt from the date of the note until its maturity, and after that two per cent, per month until he paid the debt. There is no ground on. which to quibble about the language employed in the note, and to say that the greater interest after maturity was meant for a penalty, which might be discharged by paying 6 per cent., the legal x-ate of interest, as damages.
It seems that the court below allowed 10 per cent, xxpon the debt from the date of the note to the time of rendering the decree.
This was an error in favor of appellant and against appellee, who does not complain, and appellant has no cause to complain that the court decreed against him a less amount of interest than he contracted to pay.
At the date of the decree, the note was. bearing interest at 2 per cent, per month, but the contract being merged in the decree, and there being no statute having force to allow more than 10 per cent, upon a judgment, or decree, though the note bore a larger rate of interest, the court properly made the decree to bear 10 per cent, interest Badgett v. Jordan, ante.
The motion to set aside the decree, entered on default of appellant, was addressed to the sound discretion of the court, and appellant having failed to bring upon the record anything, to show that the court abused its discretion, the decree must be affirmed. | [
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English, Ch. J.:
These cases were argued and submitted on the same briefs. They involve the same principal questions, and may be disposed of by one opinion.
In the first case the bill was filed in the Pulaski Chancery Court, by Noah H. Badgett and wife, land owners and tax-payers of Pulaski County, for the benefit of themselves, and such other tax-payers whose lands were in the condition of theirs, as might think proper to make themselves parties, and claim the benefit of the relief prayed for by the bill. Robert W. Worthen, Clerk of the County Court of Pulaski County, was made defendant, and the object of the bill was to enjoin him from making a certificate of conveyance to the State, etc., (under sec. 157 of Miller’s Dig.,) of lands of the plaintiff, sold to the State by the Collector, on the 3d Monday of May, 1876, and succeeding days, for unpaid taxes, etc., assessed upon the lands for the years 1873, 1874, and 1875. The bill was amended several times; and while pending, a number of persons whose lands or city lots had been purchased by the State, at the same tax sale, were made co-plaintiffs with Badgett and wife.
Worthen demurred to the bill, the demurrer ivas overruled; he filed an answer, to which plaintiffs demurred; the Chancellor sustained the demurrer, and rendered a decree in accordance with the prayer of the bill, from which Worthen appealed to this court.
In the second case the bill was filed in the same court, by John W. Faust and wife, and a number of other tax-payers, whose lands or city lots had been purchased by the State, at the tax sale above referred to; and the object of the bill was the same as that of the Badgett bill. Worthen demurred to the bill, the Chancellor overruled the demurrer, and rendered a decree in accordance with the prayer of the bill; from which Worthen appealed to this court.
No complaint is made in either bill of any illegality in the State or city taxes assessed for the several years in question. In the Badgett bill no complaint is made of illegality in the school district assessments; but in the Faust bill it is alleged that the assessments made for school districts, in which the lands or lots of some of the plaintiffs were situated, were illegal and excessive. The objections made to the County assessments, and to the irregularities in the tax sale, are common to both bills.
I.
We will first dispose of the objections made to the legality of the school district assessments in the Faust bill.
First — The bill alleges that on the 10th day of October, 1873, the Board of Supervisors, in addition to other taxes, assessed upon the taxable property listed for taxation, for school purposes in the School District of the City of Little Bock, and in districts Nos. 12 and 31, both in Ashley Township, and in districts Nos. 16 and 25, both in Eastman Township, for teacher’s fund 10 mills, and for building fund 5 mills, and upon all of the other districts of the county 5 mills.
That on the 9th of October, 1874, the Board of Supervisors assessed a tax of 5 mills for school purposes in each district.
That at the October Term, 1875, of the County Court (which had been substituted by the present Constitution for the Board of Supervisors,)^ there was assessed for school purposes such amounts as appeared by the reports on file to have been voted in the several districts.
That the taxes assessed for school purposes for the year 1873 were illegal, because “no reports were filed of proceedings of any meetings of electors of the districts, nor were any reports filed by school trustees of the failures of school meetings, to fix amounts to be raised. Nor were any estimates filed by any trustee of amount necessary to support a school for three months.”
That the taxes assessed for school purposes in the year 1874 were also illegal, for the reason that “no reports of proceedings of electors fixing amounts to be raised, no reports of failures to hold such meetings, and no estimates of amounts were filed before the levy, or during the year.”
No objection is made to the school levies for the year 1875.
The truth of the allegations of- the bill, as to the levies made for school purposes for the years 1873 and 1874, being admitted by the demurrer, the taxes were held by the Chancellor to be illegal and void, because the Board of Supervisors had, as alleged, no reports from the school districts upon which to base the levies, and cause them to be placed upon the tax books; and in this we concur with the Chancellor.
By the statutes in force in 1873-4, the electors of each rural school district were authorized to hold an annual school meeting, elect a trustee, etc., and to determine by a majority vote what amount of money should be raised by tax on the taxable property of the .district, sufficient, with the public school revenues apportioned to the district, to defray the expenses of a school for three months, or for any greater time they might decide to have a school taught during .the year; and it was made the duty of the trustee to report the amount voted to the Board of Supervisors, and of the Board to levy the tax, etc. Gantt’s Dig., secs. 5419, 5422, etc.
In cities and towns constituting school districts, it was made the duty of the board of directors, chosen by the electors, to fix the rate of tax, and report it to the Board of Supervisors, to be placed upon the tax books. Ib., secs. 5515 to 5537.
The Board of Supervisors had no power to levy a school tax independent of the electors or officers of the school districts. It could only cause to be placed on the tax book, and collected, such rates 'as were reported from the districts. Murphy et al. v. Harbison, 29 Ark., 340; Cairo and Fulton R. R. Co. v. Parks, M. S.
If in fact the Board of Supervisors levied the district school taxes for the years 1873 and 1874, in the absence of reports from the school districts, as alleged by the bill, and admitted by the demurrer, the levies were totally void.
Second — There is a further objection to the district school levies for the year 1873, upon which the Chancellor gave no positive opinion, but which it is proper for us to settle, in order that appellees may know what taxes they must pay, should they find it necessary and choose to redeem their lands or lots.
The bill alleges that the levies for the Little Eock District, including the lots of plaintiffs, and in districts numbered 1, 12, 25 and 31, in which their lands are chiefly situated, were excessive.
We find from an authenticated copy of the order of the Board of Supervisors fixing the rates for the year 1873, which is made Exhibit C to the Faust bill, that the levies for the school districts were as follows:
For the Little Eock District, for the purpose of building school houses, twenty-five cents on each one hundred dollars valuation, and, for paying the salaries of teachers, fifty cents on each one hundred dollars.
For District No. 1 (Fourche), for teachers’ fund, fifty cents on the one hundred dollars.
It seems that districts numbered 21 and 22 were also called Fourche, for each of. which fifty cents on the one hundred dollars was levied.
In each of the districts numbered 2 (Big Eock); 12 (Ashley); 16 (Eastman) ; 25 (Eastman) ; and 31 (Ajshley), ten mills on the one dollar were levied for teachers, and fifty cents oh the one hundred dollars for building.
In the other districts the levies appear not to have exceeded fifty cents on the one hundred dollars.
Thus it seems that the Board of Supervisors levied for school purposes in 1873, seven and a half mills to the dollar on the Little Rock District, and fifteen mills to the dollar on the rural districts numbered 2, 12, 16, 25 and 31 respectively.
By sec. 148, of the Revenue Act of 1873, which was approved by the Governor and went into effect on the 28th of April of that year (Acts of 1873, p. 367), the Board of Supervisors of each county was authorized to levy for any one year: “For the support or maintenance of public schools in any school district in such county (other than the cities or towns), such rate as may be determined upon by the qualified electors of such district, in the manner prescribed by law, not exceeding ten mills on the dollar for teachers’ fund, and five mills on the dollar for school house fund; and, for the support or maintenance of public schools in any city or town in such county, constituting a school district, such rate as may be determined on by the board of directors as prescribed by law, not exceeding seven and one-half mills on the dollar for school house fund.” See Gantt’s Digest, sec. 5058.
But by sec. 21, of “An Act to maintain a system of free common schools for the State of Arkansas,” which was approved by the Governor and went into effect on the 29th of April, 1873 (Acts of 1873, p. 399 to 422), it was provided: “That all taxes voted for school purposes by any school district, shall be levied by the County Court (afterwards Board of Supervisors) at the same time the county taxes are levied, and shall be collected in the same manner as county taxes are collected, at the same time and by the same persons, and be paid into the county treasury, there to be kept subject to disbursement on the Avarrant of the trustee: Provided; that no tax for purposes aforesaid greater than, one-half (!) of one per cent, on the assessed value of the taxable property of the district shall be levied.” See Gantt’s Digest, sec. 5422.
This section, from the language employed, and its context, manifestly applies to the several school districts and not to cities and towns constituting school districts. See the whole of ch. 120., Gantt’s Dig.
As to the amount of tax that may be voted in the several districts for school purposes, there is an irreconcilable conflict between sec. 21 of the Act of April 29, 1873, and see. 148 of the Revenue Act of April 28, 1873, and the former act being the last expression of the legislative will, must prevail over the latter.
If therefore the electors of school districts numbered 2,' 12, 16, 25, and 31, in fact voted a tax in the year 1873, at the time and in the manner prescribed by law, of fifteen mills on the dollar (equal to one and a half per cent.), and if the trustees of the district in fact duly reported the matter to the Board of Supervisors, it had no legal power to levy the rate voted, because it was three times the amount authorized by law, and the excess was certainly void, and no property owner was obliged to pay it.
Third — But the further question arises) can the court, on a bill to enjoin, treat as valid so much of the tax for any school district as was not in excess of the amount authorized by law, though an excessive levy may vitiate a tax sale or deed ?
The tax is self-imposed by the electors of the district. They may vote it or not, as they may choose. The law authorizes, but does not compel them to vote the tax. It regulates the time 'and manner of voting, and limits the rate that may be voted for thé protection of the minorities, etc. If the electors of a district vote a tax of fifteen mills for school purposes, they might seem thereby to express their willingness and intention to vote as' much as five mills, for the greater includes the lesser amount.
But the act of voting fifteen mills when the law prohibits the electors from voting more than five, is illegal, and it is difficult to see how the vote can be split, and part of it be held valid and the rest bad.
Mr. Cooley says a levy may be excessive from imposing more for a lawful purpose than is permitted, and in such case the tax is wholly void. Cooley on Taxation, p. 296.
The cases cited by him are mostly from the New England States, where taxes are voted by the electors of the towns for school and other local purposes, and they invariably sustain the text.
In Libby v. Burnham et al., 15 Mass., 147; Parker, Ch. J. said : “ It is impossible to distinguish between that part of a tax which might have been rightly assessed and that for which no authority is given, so that the assessment should be valid for one part and void for another.”
And this is the- rule asserted in all the eases which we have been able to find in point.
Stetson v. Kempton et al., 13 Mass., 283; Hubbard v. Brainard, 35 Conn., 568; First Ecclesiastical Society of Hartford v. Town of Hartford, 38 Conn., 274; Huse v. Merrian et al., 2 Greenleaf, 345, marg. 376.
In Drew v. Davis, 10 Vermont, the court said: “Had the illegal portion of the tax been laid and assessed as a district tax, there would have been no difficulty in enforcing other taxes lawfully laid; but, unfortunately, the tax laid for an object-not within the corporate powers of the town, and which the corporation could not legally impose, was .blended, in the outset, by the vote enacting it, with taxes for legitimate purposes, and was so assessed. It was impossible for the court to discriminate between that part of the tax which could be legally laid and that which could not.' Plence? the whole proceeding was void, and the whole matter rested where it would have done, had no vote been taken imposing a tax for any purpose.”
So in Johnson v. Colburn, 36 Vermont, 695, the court said, briefly: “ If any part of the tax is void, it being entire, the whole is void.”
See also Gerry v. Inhabitants of Stoneham, 1 Allen, 319; Wells v. Burbank, 17 New H., 393; Case v. Bean et al., 16 Mich., 32.
We conclude this branch of the case, by recapitulating, that according to the allegations of the Faust bill, admitted to- be true, by the demurrer, the district school taxes charged upon the lands and lots of appellees, for the years 1873 and 1874, were illegal, because levied by the Board of Supervisors in the absence of any reports from the school districts; and that the tax levied upon several of the rural districts for 1873, indicated above, was also illegal and void because excessive; but that the bill does not question the .school tax levied upon any of the districts for the year 1875.
II.
We will next consider the objections made in common by the two bills to the county taxes charged upon the land and lots of appellees for the several years 1873-4-5, and for which, with other taxes, they were offered for sale and purchased by the State.
Authenticated copies of the orders of the Board of Supervisors and County Court making the levies complained of, are made exhibits to the bills, and are copied below:
COUNTY TAXES OF 1878.
On the 10th of October, 1873, the Board of Supervisors levied and ordered to be collected the following county taxes for that year:
1. For ordinary county purposes fifty cents on each one hundred dollars worth of taxable property of the county.
2. For the paying outstanding indebtedness of the county, twenty cents on each one hundred dollars valuation.
3. For bridge purposes, ten cents on each hundred dollars valuation.
4. For the laying out and opening roads, ten cents on each one hundred dollars valuation.
5. For the support of the poor, thirty cents on each one hundred dollars valuation.
6. For the erection of buildings, thirty-five cents on each one hundred dollars, etc.
7. For the payment of interest on the funded debt, forty-five cents on each one hundred dollars valuation.
COUNTY TAXES OF 1874.
On the 9th of October, 1874, the Board of Supervisors levied and ordered collected the following county taxes for that year:
1. For ordinary county purposes the sum of five mills on each one dollar’s worth of taxable property of the county.
2. For bridge purposes, one mill, etc.
3. For laying out and opening roads, one mill, etc.
4. For the support of the poor, three mills, etc.
5. For building purposes, two and one-half, mills on the dollar, etc.
6. For payment of the interest on the funded debt, four and one-half mills on the dollar, etc.
, 7. “ For United States judgment, two and one-half mills .on each one dollar’s valuation; to pay a certain judgment recovered in the United States Circuit Court for the Eastern District of Arkansas, at the April Term, 1873, .by James C. Kinzey against Pulaski County for the sum of $24,218.50, and interest thereon at the rate of 6 per cent, per annum and costs of said suit, a tax .of two and one-half mills on the dollar of the valuation of the taxable property of said county, is hereby levied out of the amount allowed by law to be levied for ordinary purposes, to be collected and paid only in United States currency, which said tax is levied in obedience to a peremptory mandamus issued out of the United States Circuit Court upon the petition of the said James C. Kinzey against said county, and directed to the Board of Supervisors, to levy so much and such part of the rate per cent, allowed by law to be levied upon the taxable property of said county for ordinary purposes not to exceed three mills on the dollar of said valuation, as would be sufficient to pay off and satisfy said judgment, interest and costs, as well as the cost ad- ■ judged to said Kinzey in said proceedings, wherein said writ of mandamus was issued, and to cause the same to be collected in United States currency and paid over to said James C. Kinzey, or his attorney of record, in satisfaction of said judgment interest and costs.”
This is an awkward entry, but it is so written.
COUNTY TAXES FOR. 1875.
At the October Term, 1875, the County Court levied and ordered collected the following county taxes for that year:
. 1. For general county purposes five mills on each one dollar valuation of the assessed value of the property of the county, which value is equal to the sum of $9,860,335.34, making the amount of said levy equal to the sum of $49,301.67, which said sum, or any part thereof, shall in no instance be received by the collector, and he is hereby commanded and instructed not to receive the same, in any county warrants issued prior to October 30th, 1874; and it is further ordered that out of the said levy of $49,301.67, the sum of $36,9.75.25 is hereby appropriated towards the payment of the general expenses of the county.
2, For the payment of outstanding indebtedness contracted before the adoption of the Constitution of 1874, viz: 30th October, 1874, and payable only in United States currency, five mills on each one dollar valuation, to be divided as follows, to-wit.:
(a) To pay interest on bonds to be issued in lieu of county bonds issued in 1871, 1873 and 1874, and bonds to be issued in lieu of county warrants and unliquidated claims issued prior to or on the 30th day of October, 1874, two mills on each one dollar of the above valuation, payable only in United States currency, or coupons of said bonds due and unpaid except such coupons as may become due on July 1st, 1876, which shall be received by the collector for the taxes of 1875, which is equal to the sum of $19,720.07, but of which sum the amount of $14,790.51 is hereby appropriated to the aforesaid purpose.
(b) To pay a judgment rendered in the United States Circuit Court for the Eastern District of Arkansas, April 15th, 1875, in favor of Valentine Frost, three-fourths of one mill on each one dollar of the above valuation.
(c) To pay a peremptory mandamus of the United States Circuit Court for the Eastern District of Arkansas, ordering the payment of a certain judgment against Pulaski County in favor of the Union and Planters’ Bank of Memphis, Tenn., two mills on each one dollar of the aforesaid valuation.
(d) To pay the interest on bonds issued to the Memphis and Little Rock Railroad, and interest on bonds issued in 1868, to fund outstanding indebtedness, one-fourth of one mill on each one dollar of the above valuation, which levy amounts to the sum of $2,465.08, and out of which sum there is hereby appropriated the sum of $1,848.81 for the payment of said interest, etc.
FIRST — FUNDED DEBT, COUNTY BONDS, ETC.
The bills allege that the seventh item of. the levy for 1873, of four and a half mills to pay interest, on the funded debt; and the sixth item of the levy of 1874 of four and a half mills for the same purpose; and the two mills in the levy of 1875 (item 2, division (a), to pay interest on bonds to be issued, etc., were unauthorized by law, and void.
In the eighth specification to the first amendment of the Badgett bill it is alleged that the levies of four and a half mills in 1873, and of four and a half mills in 1874, were for the purpose of raising funds to pay interest on bonds of Pulaski County issued during the years 1871, 1873 and 1874, without authority of law and void.
In the second amendment of the bill, it is alleged that in the year 1871, the County Court of Pulaski County authorized the Judge and clerk thereof to issue bonds of said county for the purpose of taking up and funding the outstanding debt of the county. That, in pursuance thereof, the said Judge and clerk during that and the succeeding year, executed and delivered to divers persons a large number of papers purporting to be bonds, amounting, as near as could be ascertained, to $22,700. That these bonds were issued without authority of law, and were void. That they were not cured by the Act approved 29th of April, 1873, entitled “An Act to authorize certain counties to fund their outstanding indebtedness,” because said act was not constitutionally passed, embraced more than one subject, and the matter contained in its seventh section was not embraced by its title.
That during the years 1873 and 1874, the Board'of Supervisors of Pulaski County, professing to act by virtue of the Act of 29th of April, 1873, issued certain other papers, purporting to be bonds of said county, amounting to $286,150.00 principal, which were outstanding. That said bonds were void, because the act under which they were issued was never a law of the State.
That on the 7th of February, 1873, a bill was introduced into the House of Representatives for “An Act to allow County Courts to fund their warrants when there is no money in the Treasury to pay the same.” That on that day said bill was read a first and second time, and referred to the committee on ways and means. That on a subsequent day, said committee reported a substitute for the bill, to be entitled “An Act to allow counties and municipal corporations to fund their outstanding indebtededness,” which was read and, with the original bill, referred back to the same committee. That on the 18th of April, the committee reported another substitute, and recommended its passage. That the report was adopted, and the substitute that day reported was at once placed on its third reading and final passage; but was never read three times, as required by the Constitution, and hence did not become a law.
A transcript of so much of the House Journal as relates to the bill and substitutes, or purporting to be such, from the office of the Secretary of State, is made an exhibit.
It is alleged that the last substitute reported by the committee, and pretended to have been passed, was an entirely different bill in title and scope, from the bill first introduced.
That during the year 1875 and 1876, the County Judge and clerk executed and delivered to various persons, papers purporting to be bonds of Pulaski County, of which there were outstanding about $112,600.
That these bonds were issued under An Act, approved March 5th, 1875, which was null and void, because the General Assembly had no power, under the Constitution of 1874, to confer upon a body composed of the justices of the peace and County Judge, as was attempted in said act, authority to act in the matter of issuing said bonds, and hence the bonds were void.
That the levy of two mills on the dollar for the year 1875, “to pay interest on the bonds to be issued in lieu of county bonds issued in 1871, 1873 and 1874, and bonds to be issued in lieu of county warrants and unliquidated claims issued prior to or on the 30th day of October, 1874,” was void, because levied to pay interest on bonds that were void for the reasons above stated.
That the levy of four and a half mills for the year 1873, and of a like amount for the year 1874, to pay interest on the funded debt, was void because made to pay interest on said bonds illegally issued during the years 1871, 1873 and 1874. That there was no other funded debt of the county to which the levies could apply, etc.
Thus it will be seen that this branch of the cases involves the validity of “An Act to authorize certain counties to fund their outstanding indebtedness,” approved 29th of April, 1873 (Acts of 1873, p 466); and of “An Act to authorize the several counties in this State to fund their outstanding indebtedness,” approved March 6th, 1875 (Acts of 1874-5, p. 254).
The Chancellor held the former act valid, and sustained the levies made in 1873 and 1874 to pay interest on bonds issued under it; and pronounced the latter act void, and consequently the two mills levy made in 1875, to pay interest on bonds issued under it illegal.
As to the Act of 29th April, 1873, tl\e transcript from the House Journal made an exhibit to the Badgett bill, fails to show that the bill for the act was passed in the House of Representatives before it went to the Senate. But on a personal examination of the House Journal, we find that the bill was passed on the 18th of April, by a majority vote, and the yeas and nays entered on the journal. But the question is still left, was the bill read three times as required by the Constitution of 1868, in force when it was passed?
The House Journal shows that on the 4th day of February, 1873, Mr. Corbell, in accordance with previous notice, introduced a bill (H. B., 124) to be entitled “An Act to authorize County Courts to fund outstanding warrants, when there is no money in the Treasury to pay the same,” which was read a first time, and, by unanimous consent, under a suspension, of the rules, the bill was read a second time by title, and, on motion of Mr. Neal Brown, the usual number of copies were ordered printed for the use of the House and the bill referred to the committee of ways and means.
On the 7th of April, 1873, Mr. Warwick, from the committee of ways and means, to whom was referred the bill of the House (H. B., 124), entitled An Act, etc. (copying the title as above), reported the same and recommended a substitute therefor, entitled “An Act to authorize counties and municipal corporations to fund their outstanding indebtedness.” The report of the committee was adopted, and the substitute was accordingly adopted in lieu of the original bill, and, by unanimous consent, on motion of Mr. Warwick, the bill was read a third time and placed upon its passage. ■ Before the vote was called, Mr. Sumpter moved that the bill lie on the table subject to call, which was not agreed to. After debate, Mr. White moved that the bill be recommitted to the committee of ways and ineans. After debate, Mr. Reid, at 9 o’clock and 9 minutes P.M., moved that the House adjourn, which was not agreed to. The question being on the motion that the substitute for the bill of the House (H. B., 124) entitled “An. Act to authorize counties and municipal corporations to fund their outstanding indebtedness,” be recommitted to the committee of ways and means, after debate, Mr. Turner moved the previous question, which was seconded, and the main question ordered, viz: shall the substitute bill be recommitted to the committee of ways and means? Mr. Beasley asked for the yeas and nays. The question being put, it was decided in the affirmative, yeas 34, nays 28, etc. So the bill w7as recommitted to the committee on ways and means.
On Friday, 18th of April, 1873, Mr. Warwick from the committee on ways and means, to whom was referred the bill of the House, together with a substitute therefor (H. B. 124), entitled “ An Act to authorize County Courts to fund outstanding warrants when there is no money in the Treasury to pay the same,” reported the same, and recommended a substitute therefor, entitled “An Act to authorize certain counties to fund their outstanding indebtedness.” The report of the committee was adopted, and the substitute was accordingly adopted in lieu of the original bill, and on motion'of Mr. Corbell the bill was read a third time and placed upon its passage. Pending the reading of the bill, the hour of ten o’clock and 45 minutes A. M. having arrived, being the hour set for the consideration of the bill of the House (H. B. 348) etc., on motion of Mr. Coit the consideration of the special order was postponed for considering and disposing of the pending business. * * * The House having resumed consideration of the substitute for the bill of the House (Sub. H. B. 124) entitled “An Act to authorize certain counties to fund their outstanding indebtedness,” and the reading of the bill being concluded, Mr. J. M. Murphy moved tne- previous question, which was seconded, and the main question ordered, viz.: shall the bill pass? The question being put, it was decided in the affirmative, yeas 48, nays 19, not voting 15, (then follow the yeas and nays) so the bill was passed.
On examination of the Senate Journal we find the following entries:
On the 19th of April, 1873, a message was received from the House of Representatives, by Henry M. Cooper, clerk, informing the Senate that the House had passed substitute to H. B. 124, entitled “An Act to authorize certain counties to fund their outstanding indebtedness.”
On the same day the bill was taken up in the regular order of business, and read the first time, and under a suspension of the rules, read the second time by title and referred to the committee on finance.
On Monday, April 21st, 1873, Senator Clayton, as chairman of the committee on finance, presented the following report:
“Mr. President — Your Committee on Finance to whom was referred substitute for House Bill No. 124, have had the same under consideration, and recommend the passage of the same with the following-amendments : Insert in first section after the word ' Van Burén ’ the word ' Crawford/ Clayton,, chairman.” Which was read and received.
On the 28th of April, 1873, Senator Clayton called up substitute for House Bill, No. 124, entitled “An Act to authorize certain counties to fund their outstanding indebtedness;” and the question occurring upon the adoption of the amendments recommended by the committee, the amendments were adopted. The bill as amended was then read the third time by title and placed upon its final passage. The question being: shall the bill pass ? It was decided in the affirmative, yeas 17, nays 4, (here the yeas and nays are recorded) so the bill passed.
The following further entry appears in the House Journal.
April S3, 1873.
“A message from the Senate by Mr. Orrick, their secretary, viz.:
“ Senate Chamber, April S3, 1873.
“Mr. Speaker — I am instructed by the Senate to inform your honorable body that the Senate have passed substitute for H. B. 124, entitled “An Act to authorize certain counties to fund their outstanding indebtednesswith the accompanying amendments, and ask your concurrence therein.”
(Here follow entries relating to other business, and then:)
“ On motion of Mr. Kingston, the House proceeded to reconsider the substitute for the bill of the House (Sub. H. B. 124), entitled 'An Act to authorize certain counties to fund their outstanding indebtedness/ together with Senate amendments thereto. (These amendments were taken from the files of the House for the use of the committee on enrolled bills, and not returned— Journal Clerk.) Mr. Kingston moved that the House concur in the Senate amendments. The question being put, it was decided in the affirmative, yeas, 40, nays, 22, not voting 20. Those who voted in the affirmative are * * * * Those who voted in the negative * * * * Those absent * * * * So the amendments were concurred in.”
Although where an act appears in a statute book, purporting to have been approved by the Governor, and published by authority of law, the presumption is that it was regularly passed, and the courts ordinarily do not look beyond its face, yet it is well settled that courts can, and, if necessary, will look behind the printed statute, to the legislative records, to ascertain whether it was in fact passed in accordance with the forms and in the manner prescribed by the Constitution, and such has been the practice of this court. Burr & Co. v. Ross & Leitch, 19 Ark., 250; English v. Oliver, Collector, 28 Ark., 321; Knox v. Vinsant, 27 Ark., 278-9; State v. Little Rock, M. R. & Texas R. R. Co., 31 Ib., 716; Loftin v. Watson, Supplemental Opinion M.S.; Jones v. Hutchinson, 43 Ala., 723; Cooley’s Con. Lim., 135.
Sec. 16, art. v. of the Constitution of 1868, in force when the act in question was passed, provides that; “ Each House shall keep a journal of its proceedings, and publish the same, except such parts as may require secrecy; The yeas and nays of the members of either House, upon any question, shall be entered on the journal at the request of five members, etc.”
Judge Story, commenting on a similar clause of the Constitution of the United States, said: “ The object of the whole clause is to insure publicity to the proceedings of the legislature, and a correspondent responsibility of the members to their constituents. And it is founded in sound policy and deep political foresight. Intrigue and cabal are thus deprived of some of their main resources, by plotting and devising measures in secrecy. The public mind is enlightened by an attentive examination of public measures; patriotism, and integrity and wisdom obtain their due reward; and votes are ascertained, not by vague conjecture, but by positive facts.” 1 Story on Constitution, sec. 839.
The Constitution expressly requires some matters to be entered upon the journals, as for examples, the yeas and nays, when requested by five members, art. v., sec. 16 ; the votes in elections by either house, or the two houses, sec. 16 ; the yeas and nays on the final passage of bills, sec. 21; the objections of the Governor on his refusal to approve a bill, and the votes thereon, sec. 35; proposed amendments to the Constitution, with the yeas and nays taken thereon, sec. 1, art. xiii., etc. But there is no general provision directing what shall be entered on the journals, other than that implied in the language: “ Each house shall keep a journal of its proceedings, and publish the same, except such parts as may require secrecy.”
Sec. 21, art. v., provides: “ Every bill and joint resolution shall be read three times on different days in each 'house, before the final passage thereof, unless two-thirds of the house where the same is pending shall dispense with the rules. No bill or joint resolution shall become a law without the concurrence of a majority of all the members voting. On the final passage of all bills the vote shall be taken by yeas and nays, and entered on the journal.”
The Constitution does not require the journal to show the three readings of the bills on different days, or the suspension of the rules by the requisite number of votes, but it is, no doubt, the better parliamentary usage, and more in accordance with the intention of the Constitution requiring a journal of the proceedings to be kept, that this should be done; and we' are not disposed to sanction or encourage looseness on the subject. But the journal must show that, on the final passage of a bill, the vote was taken by yeas and nays, and entered on the journal.
Mr. Cooley says: “ Each house keeps a journal of its proceedings, which is a public record, and of which the courts are at liberty to take judicial notice. If it should appear from these journals that any act did not receive the requisite majority, or that in respect to it the legislature did not follow any requirement of the Constitution, or that in any other respect the act was not constitutionally adopted, the courts may act upon this evidence, and adjudge the statute void. But whenever it is acting in the apparent performance of legal functions, every reasonable presumption is to be made in favor of the action of a legislative body; it wilL not be presumed, in any case, from the mere silence of the journals, that either house has exceeded its authority, or disregarded a constitutional requirement in the passage of legislative acts, unless where the Constitution has expressly required the journals to show the action taken, as, for instance, where it requires the yeas and nays to be entered.” Cooley on Con. Lim., pp. 135-6; see, also, Sedgwick on the Construction of Statutes and Constitutional Law; 2 ed. Pomeroy’s Notes, p. 539, and notes.
This rale was followed in Burr & Co. v. Ross & Leitch, supra, when it affirmatively appeared from the Senate journal that the Senate indefinitely postponed a house bill, which went upon the statute book as a law, and the court held it not to be a law.
So the rule was recognized in Vinsant, adm’r, v. Knox, supra; in English v. Oliver, supra.
The rule was also approved, and the validity of the Revenue Act of April 28th, 1873, upheld on a looser House journal than the one now before us. The silence of the journal, helped by implication, saved the act. Mr. Justice Gregg had before him about such a journal as the Supreme Court of Minnesota had before it, in Board of Snpervisors v. Heenan, 2 Minn., 339 ; when Mr. Justice Flandsan said: “When journals are kept as loosely as these seem to be, the court will endeavor to sustain a law, if its constitutional passage can be spelled out of them.”
Mr. Justice Walker was by no means favorably impressed with the reading of the legislative record in State v. Little Rock, Mississippi River and Texas Railroad Company, supra, but the bonds were held void because the act was not in force when the election was held, and the court gave no opinion as to whether it could be upheld as a valid act from the showing of the journals.
In this case the House • Journal shows that the original bill, was read the first time, and by unanimous consent, under a suspension of the rules, read a second time by title, ordered printed,, and referred. The journal does not show that the second substitute, which was adopted in lieu of the original bill, was read a first and second time, but it does show that it “ was read a third time” and passed, and that the vote upon its passage was taken by yeas and nays, after the reading of the bill was concluded, and entered on the journal. It may be that the House imputed the two readings of the original bill to the substitute adopted in lieu thereof, and in fact read the substitute but once; but we cannot positively affirm that such was the fact. The rules may have been suspended, and the substitute read three times before its-passage, for anything that affirmatively appears to the contrary,, and we are not at liberty to presume that the members of the House disregarded a constitutional obligation. The presumption, as we have seen, is the other way, when the journal is silent.
The Senate Journal shows that the bill, as passed by the-House, and sent into the Senate, was read the first time, and under suspension of the rules, read the second time, and referred to the committee on finance. That on a subsequent day, the chairman of the committee recommending that the first section of the bill be amended, by inserting after the word “Van Burén” the word “ Crawford.” The word “ amendments,” plural, is used in the report, and in the journal entries of both houses, but these are manifestly mere clerical misprisons, for it clearly appears that but one amendment was recommended by the committee, and but one adopted by the Senate.
It seems that the first section of the bill, as passed by the House, read thus:
Sec. 1. That the Board of Supervisors of the following counties of this State, to-wit: The counties of Jefferson, Chicot, Pulaski, Sebastian, Conway, Pike, Clark, Poinsett, Pope, Randolph, St. Francis, Woodruff, Crittenden, Sevier, Little River, Franklin, Hempstead, Phillips, Van Burén, —■— are hereby empowered to issue the bonds of such counties1 in any sum necessary to pay outstanding indebtedness of such counties, including unliquidated claims against the same, due at the time of the passage of this act.
The insertion of “ Crawford” after “Van Burén,” made the act embrace the County of Crawford, and so it is embraced in the enrollment, and in the published act.
Two days after the committee reported, the bill was called up in the Senate, the amendment recommended by the committee adopted, the bill as amended read the third time, and passed, the vote on its passage being taken by yeas and nays, and entered on the journal1.
On the day that the bill was passed by the Senate, (April 23d,) it, with the amendment adopted by. the Senate, was returned to the House, and the House concurred in the amendment.
It might seem, from a note of the ’journal clerk, in brackets, that the amendment adopted by the Senate was not. present when concurred in by the House, but from facts appearing on the journal, taken in connection with the entry proper of the concurrence of the House in the amendment of the Senate, we are not at liberty to so construe the notes of the journal clerk.
It appears that the two houses adjourned sine die on Friday, at 12 o’clock M., on the 25th of April, at which time the journal of the House had not been made up; and that under a resolution of the House it was afterwards completed, and the enrollment of bills finished, under the supervision of the Speaker, two of the committee on enrollments, etc.
It is probable that when the journal clerk came to makeup the entry of the concurrence, of the House in the amendment of the Senate to the bill in question, he found that the amendment had been taken from the files of the House for the use of the committee on enrolled bills, and not returned, and made a note of the fact as an excuse for not copying the amendment upon the journal.
Our conclusion is, that if does not appear from the journals that the act of 29th April, 1873, in question, was not passed in conformity with the Constitution of .1868, as to the reading of bills, etc.
It is further insisted that the seventh section of the act is void under sec. 22, art. v, of the Constitution, which provides that: “No act shall embrace more than one subject, which shall be embraced in its. title.”
Sec. 7 of the act is as follows: “The bonds of any county that may have been heretofore issued for the pui’pose of funding any outstanding lawful indebtedness, that is to say, of any county herein named, are hereby declared to be valid and lawfully issued, as though issued under this act.”
The Chancellor held that the matter of this section was germain to the subject, or purpose of the act, and embraced in its title, and in this we concur under previous decisions, in which the clause of the Constitution in question was sufficiently discussed. See Loftin v. Watson, m. s., and cases cited.
It was, no doubt, a public misfortune that the act was ever passed, and it was repealed by Act of May 29th 1874. If fraudulent bonds were issued under it, as alleged, neither the bonds or the holders are before us in the suits. The constitutional passage of the act is the question presented to us, and we have decided it.
As to the Funding Act of March 6th, 1875. By the Constitution of 1874, the judicial power of the State is vested in a Supreme Court, Circuit Courts, County and Pr’obate Courts, and Justices of the Peace, etc., and the jurisdiction of the several courts is defined, etc. Art. vii, sec. 1, etc.
The County Courts are invested with exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants, the apprenticeship of minors, the disbursement of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties. The County Court shall be held by one Judge, except in cases otherwise herein provided.” Ib., sec. 28.
“ The justices of the peace in each county shall sit with and assist the County Judge in levying the county taxes, and in making apropriations for the expenses of the county, in the manner to be prescribed by law; and the County Judge, together with a majority of such justices, shall constitute a quorum for such purposes; and in the absence of the County Judge, a majority of the justices of the'peace may constitute the court, who shall elect one of their number to preside. The General Assembly shall regulate by law the manner of compelling the attendance of such quorum.” Ib., sec. 30.
This section authorizes the justices of the peace to sit with and assist the County Judge in levying county taxes, and in making appropriations for the expenses of the county; and it is the only provision of the Constitution making justices of the peace members of the County Court, or empowering them to sit with the County Judge. In other matters, that is, in the exercise of all other jurisdiction vested by the Constitution, the legislature can no more authorize justices of the peace to sit with him than it can empower other magistrates or private citizens to share in the jurisdiction confided to him by the Constitution. As Avell attempt to authorize other officers, or persons, to sit with a Judge and concur in, or overrule, as they might deem proper, his judgment in the exercise of judicial power entrusted to him by the Constitution.
The Act of March 6th, 1875, in substance, attempts to authorize the County Court, constituted of the Judge anda majority of the justices of the peace of the county, to issue the bonds of the county to pay the outstanding indebtedness of the county, including unliquidated claims due 30th of October, 1874, and to take up outstanding warrants, etc., and in auditing the claims, etc., and determining whether bonds shall be issued, etc., the County Judge is allowed but a vote, and of course may be overruled by the voices of the sitting justices of the peace, who are made his peers.
Sec. 6 provides for levying a special tax to pay the principal and interest on bonds under the act. •
We hold, as the Chancellor did, that the act is in conflict with the Constitution and void.
It follows that the specific levy of two mills made by the County Court in 1875, to pay interest'on bonds to be issued under this act was illegal.
We conclude this branch of the cases, by recapitulating that the levy of four and a half mills for 1873, to pay the interest on the funded debt, and the levy of a like rate for 1874, for the same purpose, were not illegal by reason of the invalidity of the funding act of April 29th, 1873: but that the specific tax of two mills levied for 1875, to pay interest on bonds to be issued sued under the funding act of 6th of March, 1875, was illegal,, because the act was unconstitutional.
SECOND — AS TO £HB BUILDING TAX.
Both bills allege that the county tax for 1873, of thirty-five-cents on the $100, (three and one-half mills on the dollar,) for-the erection of buildings, and the fifth item in the levy of 1874,.. of two and a half mills on the dollar, for building purposes,, were illegal.
The Badgett bill, as to these levies, alleges that prior to the levy of the county tax for 1873, the County Court entered into a contract with Wm. S. Oliver, then Sheriff and Collector of Pulaski County, by which he signed and bound himself to erect a jail building for the county, and the County Court bound itself' to levy a tax from year to year to pay for the same. That the levy of three and a half mills for building purposes, made for the year 1873, was for the specific object of complying with said contract; but before the tax-book of that year was placed iu the-hand of Oliver, collector, to-wit: on the 1st of January, 1874,. he surrendered bis contract to build the jail, and it was annulled.. That nevertheless, Roland, then County Clerk, allowed said building tax to remain upon the lax-book when it went into the ■ hands of Oliver, etc. That not only ivas the said contract with Oliver annulled, but there was then, and had since been no other • building, or appropriate purpose to which said tax, when collected, could be applied; and that whatever amounts had been collected of other tax-payers, under said levy, had long since; been used for other than building purposes. And the bill charges that said levy was allowed to remain upon. the tax-book, notwithstanding the annulment of the contract with Oliver, in order to give color to a flagrant violation of law in exceeding the limit allowed for county governmental purposes.
The bill further charges that the levy of two and a half mills in 1874, for building purposes, was without authority of law, because that, at that time, and at no time since, was there any county building in contemplation, -or contracted for.
That the total assessed value of the real and personal property of the county for that year was $14,000,000, more or less, and that said two and a half mills was equivalent to a charge upon the tax-payers of the county of $35,000, which, with the levy of three and a half mills for the preceding year,, would create a fund of upwards of $84,000.
That the levy of two and a half mills, by the Board of Supervisors in the year 1874, for building purposes was a mere device to give color, and excuse the levy, and that the fund arising therefrom had been, and was intended to be, appropriated to other objects than that for which it was levied.
The answer of Worthen to the allegations of this bill, relating to the building levies, is quite brief and formal.
Pie denies “that there never has been any building or appropriate purpose to which the three and a half mills levy for building purposes made for the year 1873, could, when collected, have-been applied, save and except the building contract with Oliver as set out by plaintiffs. He denies said fund was, or had been used for other than building purposes, and denies it was done -in order to give color to violation of law in exceeding the limit' allowed for taxation for county general purposes. '.i
“Denies that the levying of two and a half mills for the year 1874 was without authority of law. Denies there was no county, building in contemplation.
“Denies it was a mere device to give color and excuse the levy.”
If the County Court, or Board of Supervisors, had made any contract other than with Oliver, for the erection of any county building, or had any building in contemplation for which a tax might be levied, when the building tax for the year 1874 was levied,- the appellant did n.ot think proper to disclose it, but was content to make mere formal denials of the allegations of th e bill which relate to these levies, as far as they are denied at all.
The Faust bill makes, in substance, the following allegations in relation to the building levies in question :
That the tax levied for the year 1873 for the erection of buildings, of thirty-five cents on the hundred dollars (three and a half mills), and the tax of two and a half mills levied for 1874, were both wholly illegal and without authority of law4 That these taxes were levied respectively as aforesaid on the 10th day of October, 1873, and on the 9th day of October, 1874, and that on neither day was there any law of the State which authorized said Board to levy any tax whatever for any such purpose.
. Copies are exhibited of the only orders, as alleged, ever made by either the County Court or Board of Supervisors relating to buildings, etc., and it is alleged that no other orders relative to public buildings appear, or can be found on the records of the court or board.
By these exhibits (continues the bill) it is shown that on August 21st, 1871, the sheriff was ordered to post notices in each township notifying the justices of the peace of the county that a tax would be levied at the next term of the court to buy a lot, and build a jail. That on August 28th, 1871, one McCormick was appointed a commissioner, and ordered to procure and submit specifications for a jail at a cost not to exceed $50,000. That on December 6th, 1871, McCormick submitted plans and ■specifications, which were, approved, and he was ordered to receive bids and report terms of a contract. That on February 14th, 1873, McCormick was removed and David Reeve, who was the County Judge, and presiding Judge of the court, was appointed commissioner to make contract, and the clerk was ordered, on contractor giving bond for $50,000, to issue bonds of the county for $50,000.
That on March 17th, 1873, Reeve reported that he had made a contract with Oliver to build a jail for $135,000, payable $50,000 in bonds at eighty cents on their face, and the residue in instalments. That on March 17th, 1874, on Oliver’s petition, the contract was rescinded, and his bond for performance can-celled.
And plaintiffs, having averred the above facts, further allege that there was no other county building contracted for or ordered or contemplated at the time, or either of the times, when said taxes were levied.
The allegations of the bill were admitted to be true by the ■demurrer.
It is useless to inquire in the cases now before us, whether Oliver’s contract to build a jail was valid under any statute in ■ force at the time it was entered into or not, because it is shown by an exhibit to the Faust bill that on the 17th of March, 1874, he surrendered to the Board of Supervisors all the county bonds which had been issued to him under the contract, and, upon his own request, the contract was annulled, and, he and his sureties in the bond for its performance released.
Upon the rescisión of Oliver’s contract, the tax book of 1873 then being in his hands as collector, with a warrant authorizing him to collect all of the taxes levied for that year, including the specific tax of three and a half mills for the erection of public buildings, which, according to the admitted allegations of the Faust bill, was levied under that contract, and for no other purpose, the Board of Supervisors should have issued a mandate to him to stop the collection of that tax; and the board failing in this, any taxpayer, upon the showing made in these cases, might have obtained from the Chancery Court an injunction to restrain its collection.
The tax of two and a half mills levied for building purposes in October, 1874, for the like reasons, that no county building was under contract, none ordered and none contemplated, might have been enjoined.
To permit the Board of Supervisors to impose upon the taxpayers of the county, heavily burthened with other levies, over 80,000 in two years, as alleged in the Badgett bill and not denied, for building purposes, when no county building had been legally contracted for, none ordered and none contemplated, as alleged in the Faust bill, and admitted by the demurrer, must have been in the eyes of the Chancellor, if timely applications-had been made for injunctions, simply monstrous.
In Greedup v. Franklin County et al., 30 Ark., 106, a levy of three-fourths of one per cent, for the payment of county indebtedness was made upon the false assumption that Franklin County had an outstanding debt, when in fact the county had no such debt, and this court held that the collection of the tax should be enjoined.
These questions have not been argued by the Attorney General, who represents the appellant, and we deem it unnecessary to decide them in- this case.
If the provisions of ch. 42, Gould’s Digest, were in force at the times when these levies were made (see Gantt’s Digest, title “Board of Supervisors,” secs. 652 to 668, etc.), it appears from the allegations of the Faust bill, admitted to be true by the demurrer, that the Board of Supervisors disregarded them in making the levies.
These building levies for the years 1873 and 1874 were carried over and charged against the lands and lots' of appellees upon the tax book of 1875, and were among the taxes for which they wore sold to the State in May, 1876, by the collector, and we hold that the appellees are not obliged to pay them as a condition to obtaining an injunction against appellant, restraining him from making a certificate of conveyance to the State for the lands and lots of appellees so purchased by her.
THIRD — MANDAMUS TAX.
It is insisted that the seventh item of the levy of 1874, of two and a half mills to pay a judgment recovered against Pulaski County, by Kinzey, in the United States Circuit Court, etc., was in excess of the levying power vested in the Board of Supervisors by the Statute then in force. The record entry making the levy, and above copied, is very awkward as before observed, and the mandamus directing the Board to make the levy is not before us. Ve take it that this levy of two and a half mills was in addition to the five mills levied for ordinary county purposes, and was not to be deducted therefrom — in other words, that they were distinct levies, one for five and the other for two and a half mills, and no doubt they were so extended on the tax book. The Board had authority to make the additional levy of two and a half mills to pay a debt of the county, which had gone into a judgment, under sec. 5060, of Gantt’s Digest, which was in force when the levy was made.
FOURTH.
Some other objections were made' in the bills to the county levies, which were overruled by the Chancellor, and which have not been pressed in the argument here. The objection that a majority of the justices of the peace of the county were not sitting with the County Judge when the levies and appropriations for 1875 were made, appears not to be true in point of fact.
We have not failed to observe that the County Court, in making the levies for 1875, directed the collector not to receive county warrants issued prior to the adoption of the present Constitution in payment of the levy of five mills for general county purposes, but no question has been made about this direction in these cases. On this subject see Loftin, coll., v. Watson, ante.
III.
AS TO PENALTIES.
Having passed upon the objections made to the school levies and county levies for the years 1873, 1874, and 1875, we will next consider what penalties appellees should pay for failing to discharge such taxes as were legally assessed upon their lands and lots, for the years 'in question.
The appellees (except John W. Eaust and wife) failed to pay the taxes charged upon their lands and city lots for the year 1873, within the time prescribed by law, and they were returned delinquent, and avertised for sale.
Before the sale day, the legislature, at the called session, in May, 1874, passed the Act of 16th May, to suspend the sale of delinquent lands, etc. (Acts of 1874, p. 1).
By see. 1, of this Act, the sale of all delinquent lands, then upon the delinquent lists on file in the several clerk’s olfices of the State, for the non-payment of taxes due thereon for the years 1872 and 1873, was suspended until the time provided by law for the sale of delinquent lands for the taxes due for the year 1874.
By sec. 2, it was provided, that at any time before the 20th of April, 1875, the delinquent taxes might be paid; and all lands forfeited to the State for the taxes due thereon, and not sold by the State, might be redeemed by the payment ©f the taxes assessed against them, with costs of sale, without penalty.
By sec. 4, it was made the duty of’ the several clerks,, etc., in making up the tax books for the year 1874, to extend against the lands returned delinquent for the taxes of 1872 and 1873, and upon which the taxes and costs had not been paid, the amount of the delinquent taxes, and costs of returning and advertising such delinquent lands, if advertised — if not advertised, the cost of returning such delinquent lands — without penalty; and the collectors were required to proceed to collect the delinquent taxes and costs, in the same manner as provided by law for the collection of taxes due for the year 1874, but nothing in the act was to be construed to prevent collectors from receiving the taxes and costs on said delinquent lands, at any time after the tax books for 1874 came to their hands.
Had appellees paid their delinquent taxes for the year 1873, at any time before the 20th of April, 1875, the time limited for the payment of the taxes for 1874, no penalty could have been charged upon them, the penalty being condoned by this act.
The taxes charged against the lands, etc.,- of appellees for the year 1873, were carried over and extended against them on the tax book for 1874, as provided by the above act.
On the 22d of February, 1875, aud before the expiration of the time limited for the payment of the taxes of 1873 and 1874, the legislature passed an act to relieve the tax payers of the State, and to suspend the enforcement .of the collection of the taxes for the years 1873 and 1874. (See Acts of 1874-5, p. 160).
By sec. 1 of this act, (the preamble reciting that the people were in a bankrupt and impoverished condition, by reason of the enormous taxes unjustly imposed1 upon them for the previous five years, and in consequence of failure of crops, etc., unable to pay their taxes), it was provided that the sales of property, both real and personal, for the non-payment of taxes for the years 1873 and 1874, should be suspended for the period of one year from the 31st of March, 1875, and the sheriffs and collectors of revenue Avere thereby restrained from making sales of property, either personal or real, for said period of one year, for the nonpayment of taxes for the years 1873 and 1874.
By sec. 2 it was provided, that if any person failed to pay taxes for the years 1873 and 1874, within the time then prescribed by law, it should be the duty of the sheriffs and collectors of the several counties to make out a true and perfect list of such delinquent taxes, and file the same in the office of the county clerk of the respective counties, on or by the first of June, 1875.
By sec. 3, it was made .the duty of the clerks of the several -counties, in making out the tax books for the year 1875, to include such delinquent list for the years 1873 and 1874, together with a penalty of 15 per centum on such delinquent taxes, which should be collected as other taxes,' and paid in the treasury as required by law.
Had appellees paid the taxes legally charged upon their lands for the years 1873 and 1874, by the 20th of April, 1875, no penalty could have been imposed upon them for either year. But as they thought proper to avail themselves of the grace offered by the Act of 22d February, 1875, they accepted it on the condition upon which it was offered; that is, they should pay a penalty of 15 per cent, upon their delinquent taxes for two years. This was a compensation to the public for being deprived of the use of the money during the period of grace allowed the tax payers. There, must, however, be no compounding of penalties. A single penalty of 15 per cent, upon the legal taxes for the tAVO years is all that can be exacted.
Upon the legal taxes for the year 1875, appellees are subject to a penalty for delinquency of 25 per cent., under sec. 21 of the Act of March 5th, 1875. Acts of 1874-5, p. 228.
There can be no penalty for the non-payment of an illegal tax.
IV.
IRREGULARITY IN THE TAX SALE.
The Faust bill alleges, and it is admitted by the demurrer, that each tract, or town lot, was not offered for sale for the aggregate amount of taxes, etc., charged upon it for three delinquent years; but that each tract or lot was actually offered, and knocked off three times ': First, for the taxes charged for 1873; second, for the taxes and penalty charged for 1874; and third, for the taxes and penalty for 1875, and that they were so entered upon the clerk’s book.
By the 15th section of the Act of March 5, 1875, (Acts of 1874-5, p. 226), the legislature abandoned the mode of selling lands for taxes to the highest bidder, and giving the land owner the surplus of the proceeds of sale, if any, which was adopted after the war; and returned to the former and juster mode of selling to the bidder who offers to pay the taxes, etc., for the smallest sub-division, etc., and if no bidder can be obtained for a less quantity, to offer the whole tract or lot; and if no one will offer to pay the amount of taxes, penalty, and costs, for the tract or lot, etc., the collector is required to bid the same off in the name of the State, bidding therefor the amount of taxes, penalty and-costs, etc.
It so happened in this case, that the collector could get no other bidder, and the State became the purchaser of the lands and lots of appellees, by having them struck off to her three several times.' But may others not have been deterred from bidding by this manner of sale ?
Suppose, for example, that A had bid off a tract for the taxes of 1873, and the collector had put it up again for the taxes, etc., of 1874, and B had purchased it, and on the next offer for the ■ taxes, etc., of 1875, C had bought it, who would be entitled to the land ? It would be like the woman of the Scriptures who had seven husbands, and the question was, which of the seven would have her in the resurrection ?
The Chancellor had a poor opinion of this manner of conducting a tax sale, and so have we.
There should have been but one offering and.sale of each tract or lot, for all of the taxes, etc., charged upon it. ■
V.
HE WHO SEEKS EQUITY MUST DO (OR OFFER TO DO) EQUITY.
The city, district school, county and State taxes, charged upon the lands and lots of appellees for the years 1873, 1874, and 1875, were upon the tax book of 1876, and all embraced in the warrant of the collector of that year, and the State, at the collector’s sale, commencing on the third Monday of May, 1876, by reason of the failure of appellees to pay their taxes, purchased their lands and lots for the taxes, penalties and costs charged upon them. They were allowed by law two years to redeem their lands and lots, just as they would have been if they had been purchased by individuals.
Where lands are purchased by an individual at a tax sale, and the owner fails to redeem within the time prescribed by law, the County Clerk makes him a deed.
Where the State is the purchaser, and the lands are not redeemed, the clerk is required to make a certificate of sale to the State, and cause the same to be recorded, and thereupon the title to all lands embraced in the certificate vests in the State, and the clerk transmits the certificate, after it is recorded, to the Com missioner of State Lands, and thereupon the lands are subject to be disposed of as other forfeited, lands. Acts of 1874-5, p. 226 227-8, etc.; Miller’s Digest, secs. 138 to 165.
The bills in these cases were brought within the period of redemption, to enjoin the clerk from making the certificate of conveyance to the State. After the conveyance is executed, appellees have no remedy against the State; they cannot' bring suits against her to set aside the conveyance ; hence they made applications to the Chancellor, and asked him to stay the' hand of the clerk and prevent him making the conveyance to the State.
That the tax sale was illegal, there can be no doubt under repeated decisions of this court, because, as we have shown, there were illegal taxes in the warrant of .the collector, under which the sale was made.
But does it follow that appellees could rightfully demand and obtain relief from the Chancellor without terms ?
They made no complaint of the State taxes, or the city taxes, charged against their lands or lots for either of the delinquent-years, nor of some of the separate and distinct items in the several county levies, nor of the district school taxes for the-year 1875.
The plaintiffs in the Badgett bill did not allege that they hadi offered to pay the clerk any delinquent tax to redeem their lands,, nor did they express to the Chancellor a willingness to do so ; yet they prayed, and obtained an injunction against the clerk perpetually restraining him from making the conveyance to the State, without terms, and the State was left to collect the taxes, justly charged upon their lands as best she could.
The plaintiffs in the Faust bill recognized the well settled rule that he who seeks equity must do, or offer to do, equity. They alleged that they had at all times been, and were willing to pay all taxes legally charged or chargeable upon their lands and town lots, and would pay such legal taxes, but the defendant clerk would not accept the same, and refused to allow any redemption except upon payment of all taxes and penalties charged against them, and also all the costs of advertising and selling the lands, etc.
It was, of course, within the power of the Chancellor to control the conduct of the clerk, and compel him to accept in redemption such taxes, etc,, as the plaintiffs were equitably obliged to pay; but the Chancellor was of the opinion that they were obliged to pay nothing as a condition of obtaining the relief which they sought, and in the plenitude of mercy, but upon a mistaken view of the law, as we, with great deference to his learning, think, granted them a perpetual injunction against the clerk without terms.
•At any time before the tax-sale, the Circuit Court would have quashed, on certiorari, any one, or more, distinct items in the levies for the several years, which appeared upon the face of the record of the County Court, or Board of Supervisors, to be illegal. Vance v. The City of Little Rock, 30 Ark., 436; Murphy et al. v. Harbison, 29 Ark., 340. But the court would not have quashed all of the items in the levies because some of them were illegal, and-thereby relieved the applicants from paying any of the taxes.
So at any time before the tax sale, on a proper bill by .taxpayers, the Court of Chancery would have enjoined the collection of any one or more of such illegal items (Gantt’s Dig., p. 650, sec. 3451); but the court would not have enjoined the valid items distinguishable from the bad, but would have left them to be enforced against the tax-payers. Greedup et al. v. Franklin County et al., 30 Ark., 103.
Nor will a Court of Chancery enjoin the execution of the tax deed, after the sale, or set the deed aside after it is made, without requiring tlie land-owner to pay the tax purchaser the legal taxes, penalties, etc., which he has paid for the defaulting land-owner in the purchase of the land, and the legal taxes paid upon the land by the purchaser subsequent to the sale, etc. Twombly v. Kimbrough, 24 Ark., 475; Haney v. Cole et al., 28 Ark., 299; Sec. 178, Act March 25th, 1871; Gantt’s Dig., sec. 5214, 2267-8-9.
. In Mayor and Aldermen of Mobile v. Waring, 21 Ala., 150, where the tax-payer-sought to enjoin the collection of an excessive tax, but offered to pay nothing, the court applied the familiar rule, that he who seeks equity must do equity.
So in Parmley v. Railroad Companies, 3 Dillon C. C., 34 ; Justice Miller said: “ We are all united on another proposition, and that is, whenever a party comes into this court to ask the court to enjoin the collection of a tax or part of a tax, if there is any part he admits to be due, or which the court can see upon the statement in the bill ought to be paid, there must be an allegation in the bill conforming to the fact, that they have paid, or that they have tendered it, and it is not a sufficient allegation that they are willing to pay, or that they pay into court, because the State is not to be stayed in its revenue, which is admitted to be due in that way; and a party claiming that he will not pay his tax, or any portion of it, cannot screen himself during a course of long litigation from paying that which must be paid, and everybody can see must be paid, by setting up a contest over that which is doubtful, and which may or may not eventually, be necessary to be paid.”
Mr. Cooley, says: “ The court also have sometimes imposed conditions to equitable remedies where they deemed the public interest to demand it. Thus where an injunction has been applied for to restrain the collection of a tax, partly legal and partly not, the court has made the payment of the legal, a. condition precedent.” Cooly on Taxation, p. 537, and cases cited in note.
In the State Rail Road Tax cases, 2 Otto, 617, the Supreme Court of the United States held, with unanimity, that no injunction, preliminary or final, could be granted to stay collection of taxes, until it was known that all taxes conceded to be due, or which the court could see ought to be paid, or which could be paid or tendered without demanding a receipt in full, were paid, or offered to be paid.
So in Roseberry, Treasurer, etc., v. Huff, 27 Ind., 12, it was held that a person asking the aid of a Court of Chancery to restrain the collection of taxes, a part of which only are alleged to be illegal, must first pay, or offer to pay, the taxes legally due from him, on the principle that a party asking the aid of a Court of Chancery, must do equity.
So the rule was applied in Hersey v. Supervisors of Milwaukee, 16 Wisconsin, 186, when the bill was filed to enjoin the execution of the deed, and cancel, the certificate of purchase, some of the'taxes for which the lots were sold being legal and others illegal, the court holding that the defaulting tax-payer must pay the legal taxes before he could obtain relief against such as were illegal.
See also, Miles v. Johnson, Clerk, etc., 28 Wisconsin, 598, which was likewise a bill to enjoin the execution of tax deeds by the clerk of the Board of Supervisors, and cancel certificates of sale, and the court held, that if the legal taxes could be separated from the illegal taxes, equity would require the payment of the former, as a condition of relief against the latter.
So Bond v. The City of Kenosha et al., 17 Wisconsin, 286, was a bill to restrain the execution of a tax deed, on the grounds that some of the taxes for which the lands.were sold were illegal, and the court said: “We have held that when the valid and void taxes were separable, and the amount of the former could be readily ascertained, then the resisting tax-payer must pay those which were legal as a condition to being relieved from the payment of the illegal tax.”
It is insisted by counsel for appellees that while such may be the rule where an individual is the purchaser, it ought not to apply where the State is the purchaser. And why not? Is not the defaulting tax-payer under as great an obligation to render to the State, which protects him in his life, liberty and property, money legally due to her, as he is to reimburse the citizen who purchases his land at an illegal tax sale, but thereby pays to the State such taxes as were justly due from him. The Court of Chancery will not compel him in the one case or the other, to pay more thán what was rightly charged upon his land, with such penalties and costs as the law imposes for his actual delinquencies. See sec. 5214, Gantt’s Digest; Acts of 1874-5, p. 226-7.
In the Badgett case the bill being bad, because the plaintiffs offered to pay nothing, the decree should have been against them on the demurrer to the answer.
In the Faust case, the court erred in decreeing a perpetual injunction, without requiring the plaintiffs to pay any thing.
The decrees must be reversed, and the causes remanded with instructions to the Chancellor to grant the injunctions prayed for, upon the parties paying under his directions, such taxes, penalties and costs, as are legally charged and due upon their lands, and to dismiss the bills as to any who decline to accept relief on such terms.
¥e were told in the oral argument of the causes, that if some of the parties could not obtain injunctions except upon the condition of paying the taxes, etc., legally charged upon their lands and lots, they would permit them to be conveyed to the State, and when the State sold them, again apply to the courts to set aside the deeds. They are, of course, at liberty to adopt this plan if they think proper, but they may find in the end, that taxes, like the covenants of a deed, are the serfs of the soil and follow it. We sympathize with the overburdened tax-payers, but we doubt if the indulgence granted them by legislation, has not proved a delusion. It is not our province, however, to make or unmake tax laws, but to construe and adrdinister such as we find on the statute books. | [
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Harrison, J.:
(x. W. Thomason, owning an undivided one-eighteenth part of a tract of about 2800 acres of land, known as the Craighead Plantation, in Mississippi County, filed his petition for partition, and upon the hearing obtained a decree therefor.
The commissioners appointed for the purpose, after an examination of the premises, reported to the court that partition could not be made, without great prejudice to the owners; whereupon: the court made an order for the sale of the land, and directed that it be sold at the court house door, in Osceola, for cash in: hand, to the amount of 5 per cent, of the purchase money, and on a credit, as to the remainder, of six, twelve and twenty-four months, in equal payments, and prescribed the notice to be given, and other conditions of the sale.
In pursuance of the order, the commissioners offered the land for sale on the 3d day of July, 1876, and certain parcels of the uncleared and unimproved land, amounting to 1066 acres, were bid off W. I. Bowen, for $100, and the rest by Thomason and E.. B. Friend, for $1100.
Upon the coming in of the report of the commissioners, by which it was shown the purchasers had made the cash payments and given their notes, with security for the remainder of the purchase money, in compliance with the terms of the sale, James B. Craighead, and others of the owners, filed exceptions to the sale of the part purchased by Thomason and Friend, on the ground that the sale had been made at so early an hour in the day — eleven o’clock — bidders had not had time to arrive, and by reason thereof, the price at which it was sold was greatly inadequate, and did not exceed one-fourth of the value; and the court refused to confirm the sale to Thomason and Friend, and ordered a resale of the part bid off by them, and directed that the bidding should be started at $3000, as the bid of said Craighead.
From this order, refusing to confirm the sale to them, and directing a re-sale, Thomason and Friend appealed.
It appears, from the testimony of witnesses, that the sale took place shortly after eleven o’clock; that H. S. Brodie arrived at the place of sale about a half an hour after it took place, and that he came for the purpose of bidding for the property, and would, if preseut, have bid or given $3000, that it was worth $2000 or $3000, and the part purchased by Thomason and Friend embraced all the cleared land, about seventy-five acres,, and the improvements.
It is the well settled doctrine, or at least such is the theory,, that the court is itself the vendor in sales made under its decree, and will confirm or reject the sale as the law and justice of the case may require. Penn's adm’r, v. Tolleson, 20 Ark., 652; Sessions v. Peay, 23 Ark., 39; Deaderick v. Smith, 6 Humph., 138; Tooley v. Kane, 1 S. and M. Ch. R., 518.
It is apparent that the sale, at the early hour at which it was made, operated unfavorably for the interests of the owners, and the court might very reasonably have considered, from its knowledge of the locality, and the practice in such cases, the hour unusually early and inopportune.
No reason is shown, but we suppose sufficient appeared to the-court, for requiring the land in the resale to be offered at $3000: possibly it may not be bid, and the sale shall fail; if so, it can direct it to be again offered without such restriction.
The decree of the court is affirmed. | [
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Harrison, J.:
Appellee was indicted for failing to pay the special taxes due. by him as a vendor of ardent spirits. The indictment was as. follows:
The Grand Jury of Sharp County in the name and by the authority of the State of Arkansas, accuse Walker Clayton of' the crime of failing to pay special taxes committed as follows:
The said Walker Clayton, on the 17th day of August, A. D. 1876, in the County of Sharp unlawfully did follow the occupation of a vendor of ardent spirits by then and there selling to one Thomas Y. Huddleston, ardent spirits, on which special taxes are-levied by law: he, the said Walker Clayton, then and there having unlawfully failed to pay the special taxes levied thereon bylaw, against the peace and dignity of the State of Arkansas.
J. L. Abernethy, Pros. Atty.
The defendant demurred to the indictment for the want of certainty; and as charging no offense. The court sustained the-demurrer, and quashed the indictment.
The statute (revenue act of April 28th, 1873), imposes on liquors dealers, whether selling by •wholesale or retail, an annual State and county tax of $100, or for any part of the current year in which the business is carried on: and directs the county clerk from time to time to issue and place in the hands of the collector blank licenses, to be filled up and countersigned by the collector and delivered to such dealers upon the payment of the taxes. The refusal or failure to pay the taxes is declared a misdemeanor, and the person so offending is subject upon coflviction to a fine of not less than two hundred, nor more than one thousand dollars.
The act of May 30th, 1874, regulating the licensing of dram shops, prohibits the keeping a drinking saloon or dram shop for the sale of ardent, vinous, or fermented liquors, for sale in quantities less than one quart, without having procured a license for that purpose from the County Court: and the County Court is not authorized to issue such license except by the consent of the electors of the township, city, ward, or incorporated town in which the saloon or dramshop is to be kept, expressed by an election, held to determine whether such licenses shall be granted or not: nor until the applicant therefor shall pay to the proper officers all fees, licenses, costs and taxes that may be levied by any proper authority : and have entered into bond to the State of Arkansas in the penal sum of f2000, with two good sureties, conditioned that such applicant will pay all damages that may be occasioned by reason of liquors drank at his house, and .shall pay to any person all such sums of money as may be lost at gaming in his said saloon or dram shop, or any room or building thereto attached.
And it declares that any person keeping a drinking saloon or dram shop, without procuring a license, shall be deemed guilty of a misdemeaner, and on conviction, shall be fined in any sum not less than one hundred dollars and imprisoned' in the county jail not less than thirty days.
The latter act makes no change in the taxes or in the mode of licensing those who sell in quantities of a quart or more, but the punishment it prescribes for keeping a saloon or dram shop without a license is different from that for failing to pay the taxes required of those who sell by the quart and in larger quantities.-
It does not appear from the indictment, whether it was the intention to charge the defendant with selling by the quart and in larger quantities, or in less quantities than that. If the latter, he should have been charged with keeping a drinking saloon or dram shop, without having procured a license, and if the former,. the charge should have been restricted to the occupation of selling in quantities of a quart and over. The charge of failing to pay the taxes without such restriction applied to and embraced every vendor of liquors, and from its generality it was impossible for the defendant to understand the particular offense intended to be charged. For this reason the indictment was defective, and the court did not err in sustaining the demurrer.
Judgment affirmed. | [
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English, Ch. J.:
Thomas W. Gulledge ivas the owner of a saw mill and manur facturer of lumber.
Charles W. Preddy was the owner of a block of ground in Monticello, had a dwelling thereon, and resided there with his family. It was his homestead. In the summer of 1874, he made a contract with Gulledge to furnish him lumber from his saw mill to make an addition to his dwelling house.' The lumber was accordingly furnished during the summer and fall, from the mill, to the value of $115.80, and used, by a carpenter employed by Preddy, to build an addition to his dwelling house.
Gulledge filed an account in the office of the Clerk of the Circuit Court of Drew County, and brought this suit, under the mechanic’s lien law, to enforce a lien upon the dwelling and block on which it was situated, for the lumber bill.
He brought himself clearly within the provisions of the mechanic’s lien law (Gantt’s Digest, secs. 4056 to 4078, p. 737, etc.,) but Preddy relied for defense upon the exemption clauses of the Constitution of 1868 relating to homesteads.
On the trial there was no controversy about the material facts, above stated, and the jury, under the direction of the court, returned a verdict in favor of the plaintiff fo.r the amount of his lumber bill, and the court took under advisement, until the next term, the question of law whether a judgment should be rendered upon the verdict, condemning the property to be sold to -satisfy the debt.
At the next term the court held that the defendant Ayas entitled to the benefit of the homestead exemption, and rendered a personal judgment against him upon the verdict, refusing to render any judgment in rem.
The plaintiff took a bill of exceptions, setting out the facts, and appealed.
By sec. 2, art. xii, Constitution of 1868, the homestead could not be incumbered except for taxes, laborer’s and mechanic’s liens and securities for the purchase money.
By sec. 3, the homestead Avas not exempt from sale on execution, etc., for the payment of taxes, for the payment of obligations contracted for the purchase of the premises, for the erection of improvements thereon, or for labor performed for the OAvner thereof, in improving the property.
The tAvo sections must be construed together. Greenwood & Son v. Maddox & Toms, 27 Ark., 648; Parham v. McMurry, MS.
“Mechanic (from the Latin meehanious), one Avho Avorks with machines or instruments; a Avorkman or laborer other than agricultural; an artisan; an artificer; one skilled or employed in shaping and uniting materials, as Avood, metal, etc., into any kind' of structure, machine or other object, requiring the use of tools or instruments.” — Webster.
Appellant appears to have been a mechanic. He had a saAV mill and manufactured lumber. He worked Avith a machine and shaped materials of Avood for building, etc. He was not, it seems, a mere speculator — buyer and seller of lumber. He furnished from his saw mill lumber to erect an addition to appellee’s dwelling on his homestead block, under a contract Avith him, and a carpenter employed by appellee, constructed the building— the improvement — of the lumber.
If the carpenter, who was also a mechanic, had furnished the lumber of which the building was fashioned, he would have had a lien as against the homestead exemption for the value of the lumber as well as for the price of his skill. "Why should not appellant, who was a mechanic, and whose machinery, skill and labor supplied the lumber for the house, have a lion for its value as well as the other mechanic who put the lumber into the building? Both of them contributed to the improvement of the homestead estate.
The framers of the Constitution, while they intended to protect the home of the family, were not unmindful of the meritorious claims of the mechanic and laborer, to whom the head of the family may be indebted for the very improvements that render the home comfortable and convenient.
The court below erred in refusing to render a judgment in rem as well as in personam upon the verdict of the jury.
The ruling of the court in the matter complained of on this appeal must be reversed, and the cause remanded with instructions to the court to render a judgment condemning the property to be sold for the satisfaction of the debt, etc., leaving the judgment in versonam to stand. _ | [
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English, Ch. J.:
Charles G. Brockaway, on the 2d of November, 1875, commenced an action of unlawful detainer in the Circuit Court of Jefferson County, against John H. Thomas, for possession of a lot in Pine Bluff.
The original complaint is, in substance as follows:
. “The plaintiff, Charles G. Brockaway, states that he is entitled to the possession of the following real estate situate in Pine Bluff, etc. (here the lot is described byjnetes and bounds), being the property now occupied by the defendant John H. Thomas, as a saloon; and that said defendant John H. Thomas unlawfully detained the same on the first day of November, 1875, after lawful demand made therefor.”
On the day the complaint was filed, a writ was issued, the plaintiff executed a bond, and the .sheriff put him in possession of the premises sued for.
At the return term (11th May, 1876), tho defendant filed a demurrer to the complaint. On the next day the demurrer was sustained, and plaintiff asked leave to amend.
On the 15th of May, the plaintiff filed an amendment to tho complaint.
The complaint as amended (inserting the amendment in it's proper place as indicated by it, and embracing it with brackets), is as follows:
“ The plaintiff, etc., states that he is entitled to the possession bf the following real estate situate in Pine Bluff, etc. (here tho lot is described), being the property now occupied by the defendant, etc., as a saloon ; [and that the defendant, John H. Thomas, was tenant from month to month on the premises above described of Amelia P. Holland, the vendor of John M. Clayton and Margaret Rice of the premises above described, and that said John M. Clayton and Margaret Rice are the vendors of tho plaintiff, of said premises. That said defendant obtained possession of the premises without any authority from said Amelia' P. Holland, but being in possession was suffered to retail! the same as a tenant aforesaid; and that on the 1st day of November, 1875, the time for which the premises were held by him as aforesaid had determined, and the plaintiff was then entitled to the possession thereof,] and that said defendant John H. Thomas unlawfully detained the same on the first day of November, 1875, after lawful demand made therefor.”
On the 16th of May the defendant moved to strike the amendment to the complaint from the files, on the ground that it changed the nature of the action, which motion the court, on the 18th, overruled.
On the 7th'of June the court made the following order: •
“ On this day, the court having sustained the demurrer herein, and the said writ of possession being thereby quashed and held for naught, it is ordered that restitution of the property mentioned in said complaint and writ be and the same is hereby restored to the defendant.” To which the plaintiff excepted.
On-the 9th of June, the court, on motion of the defendant, ordered a writ of inquiry to assess his damages, the plaintiff protesting, and demanding a trial on his amended complaint. A jury was empaneled, and defendant’s damages assessed at $2500, for which sum judgment was rendered in his favor against the plaintiff, and for costs of the suit.
Plaintiff moved for a new trial, which' was refused, and he took a bill of exceptions, and appealed.
' The court below sustained the demurrer to the original complaint on the ground, perhaps, that it did not show that the relation of landlord and tenant existed between the appellant and appellee. By the amendment, the appellant attempted to cure that defect in the original complaint. Whether the complaint as amended was in good form, we are not called upon to decide on this appeal, as it was not met by demurrer, or motion to make its allegations more specific.
As to what allegations are material in a declaration or complaint in an action of unlawful detainer, see Bradley v. Hume, 18 Ark., 284; Frank et al. v. Hendrick, Ib., 304; Keller v. Henry, 24 Ark., 576; Dortch et al. v. Robinson, 31 Ark., 296.
The court properly permitted appellant to amend his complaint on sustaining a demurrer thereto. Brinkley v. Mooney, 9 Ark., 445, and the amendment related back to the time the complaint was filed, and became a part thereof, just as if it had been-inserted therein when the complaint was filed,
The court having refused, and properly wo think, to strike the amendment from the files, should have required the appellee to plead to the complaint as amended.
But the court without making any disposition of the complaint as amended, ordered the property restored to the possession of the appellee, for the reason, it seems from the entry, that a demurrer had been sustained to the original complaint, and caused a jury to be empaneled to assess the damages of appellee, and rendered a final judgment in his favor for the amount of the damages assessed, and for the costs of the, suit, thereby terminating the action, while the amended complaint stood unanswered, and in no manner disposed of.
It was useless to allow the appellant to amend his complaint on the sustaining of the demurrer thereto, and to refuse to strike out the amendment, and then to treat him as having failed in his action, and order a writ of inquiry to ascertain appellee’s damages.
The statute provides that: “ In all cases of forcible entry and detainer, and forcible and unlawful detainers, when the defendant disputes the plaintiff’s right of possession, it shall be lawful for such defendant to introduce before the jury trying the main issue in such action, evidence showing the damages he may have sustained in being dispossessed of the lands and premises mentioned in the writ and declaration in the cause, and the jury, if they find the issue for the defendant, shall at the same time find what damages the defendant has sustained by being dispossessed under the provisions of this act, and the court shall render judgment restoring the property to the defendant as now prescribed by law, and shall also render judgment against the plaintiff and his security in the bond for the damages as found by the jury, as well as the costs of suit.” Acts of March 2d, 1875, sec. 17; Acts of 1874-5, p. 199.
Here the appellee put in no answer to the amended complaint disputing appellant’s right of possession, no main issue was made up, and none was tried.
If appellant had rested on the sustaining of the demurrer to' the original complaint, and declined to amend, the court should have rendered judgment for appellee, ordered a writ of restitution, and perhaps a writ of inquiry, (Dortch et al. v. Robinson et al., 31 Ark., 295); but appellant did not rest; he asked and obtained leave to amend the complaint, filed an amendment, which the court refused to strike out, and when the complaint stood amended, ordered the property restored to appellee, and caused a writ of inquiry to be executed.
It is not necessary to review the questions of law reserved upon the inquest trial, the whole trial being irregular.
The judgment must be reversed and the cause remanded, with instructions to the court below to permit appellee to plead to the amended complaint. | [
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Per Curiam.
Troy Mayo has filed this Motion for Rule on the Clerk through his attorney, Roy C. Lewellen. His attorney does not admit fault, but states that the court reporter was involved in an accident which caused a delay in preparation of the transcript.
The chronology of this appeal is as follows:
Judgment and Commitment Order Entered 12/8/94
Notice of Appeal and Designation of Record 1/6/95
Order for Extension of Time to prepare transcript to July 6, 1995 4/6/95
Transcript completed and given to Circuit Clerk 7/7/95
Transcript tendered 7/10/95
Mr. Mayo attached a letter from the circuit clerk which stated that the court reporter was unable to complete the transcript until July 7, 1995 because she was involved in a car accident. However, this letter is dated July 14, 1995, and is not stamped as received by the attorney until July 17, 1995. Thus, although the transcript may have been late because of the court reporter’s misfortune, it appears that this letter was obtained after the tendered record was rejected by the Clerk’s office.
It is an attorney’s duty to file the record on time. In this case the record was late because an order of extension was not entered before the period for filing the record had expired. See Ark. R. App. P. 5. At a minimum, Mr. Mayo’s attorney should have filed a partial record by the July 6 due date when it became apparent that the transcript would not be completed on time.
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 filing same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct. Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978).
Motion denied. | [
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Per Curiam.
Appellant, Eric Kennedy, by his attorney, has filed for a rule on the clerk.
His attorney, John Henry, 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. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Andree Layton Roaf, Justice.
Calvin Porter appeals from his conviction of capital murder and sentence of death by lethal injection. He raises eight points on appeal. We find no error on these points, nor any other reversible error and affirm.
Porter, aged 19, and a 13-year-old boy approached Tommy’s Restaurant in Pine Bluff at about 10:00 p.m. on June 7, 1993. They encountered an employee of the restaurant, Michael Now-den, on the parking lot, and Porter asked if a “Mr. Jake” worked there. Nowden responded he did not, and reentered the restaurant. Porter indicated to his companion that he wanted to do a “lick” or robbery. They then entered the back door of the restaurant, holding newspapers provided by Porter to conceal their faces. Porter carried a gun. They said, “This is a robbery,” and Porter ordered the restaurant owner and two employees, including Now-den, to lie on the floor. The three complied, and Porter’s companion testified that while he was taking money from the cash register, he heard a gunshot. The two assailants also robbed the three victims and then fled. After his arrest, the 13-year-old ini tially stated to police that after leaving the restaurant Porter said, “I shot him.” At trial, he testified that Porter told him he shot the man who had been “outside with us” because he had attempted to grab the gun. Nowden died as a result of a contact gunshot wound to the back of the head.
Porter was apprehended one week later by police officers who also recovered a pistol which Porter discarded while he was being pursued on foot by the officers. The state crime lab established that the bullet which killed Nowucn was fired from the recovered pistol, and at trial Porter was convicted of capital murder for causing the death of Nowden under circumstances manifesting extreme indifference to the value of human life, during the course of and in furtherance of the commission of robbery. In sentencing Porter to death the jury unanimously found no mitigating circumstances and two aggravating circumstances: the capital murder was committed for pecuniary gain and for the purpose of avoiding or preventing an arrest or effecting an escape from custody.
Of the eight arguments made on appeal, five are procedurally barred. Although these issues were raised in various pretrial motions filed by Porter, the trial court did not rule on these motions and the issues were not otherwise raised during the trial. Porter first argues that the submission of pecuniary gain to the jury as an aggravating circumstance in the penalty phase was an unconstitutional double counting and violative of the eighth amendment, because an essential element of the offense of capital murder is that the murder was committed in the course of and in furtherance of robbery. The trial court did not rule on this pretrial motion and the issue was not raised during the trial. In any event, this issue has been addressed and the statute upheld. See Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993); Johnson v. State, 308 Ark. 7, 823 S.W.2d 800, cert. denied 112 S.Ct. 3043 (1992).
Porter next argues that the trial court erred in allowing into evidence a photograph of the victim’s face, because the picture did not show the head wound, and was therefore irrelevant and unduly prejudicial. The trial court did not rule on this motion and again, the issue was not raised at trial. In fact, when the State sought to introduce the photograph, Porter’s counsel stated, “No objection.”
Porter also argues, as he did in another pretrial motion, that the sentencing provisions of the death penalty statute, Ark. Code Ann. § 5-4-603 (Repl. 1993), are unconstitutional because the statute does not allow the jury to show mercy and thus results in a mandatory death sentence. Once again he did not obtain a ruling on his motion. This issue was also decided adversely to the appellant in Johnson, supra.
Porter moved pretrial to prevent “victim impact” evidence during the penally phase of the trial; the motion was not ruled on and Porter now argues that “victim impact” evidence was erroneously admitted during the guilt phase of the trial. He also did not object tc the testimony when offered by the other two victims of the robbery concerning Nowden’s good personal traits and character.
In his final unpreserved argument, Porter asserts that the aggravating circumstances under the death penalty statute have been construed in such a broad, vague and varying manner so as to render the statute violative of the eighth and fourteenth amendments. Once again he did not obtain a ruling from the trial court and did not further raise this issue at trial.
Porter may not now rely on these unresolved questions and objections on appeal. See Aaron v. State, 319 Ark. 320, 891 S.W.2d 364 (1995); Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993). Nor do the errors asserted by Porter present any of the exceptions we have made in allowing consideration of errors raised for the first time on appeal in death penalty cases. See Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980); Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981); Hughes v. State, 295 Ark. 121, 746 S.W.2d 557 (1988).
Porter’s three remaining arguments for reversal have no merit. Before trial, Porter filed a Motion in Limine seeking to prohibit the State from introducing evidence that he pointed a gun at a police officer during the chase which resulted in his capture and arrest. The trial court denied this motion. Porter argues the pointing of the gun constitutes evidence of another crime, aggravated assault, which had no relevance or probative value to his prosecution for capital murder, and had the prejudicial effect of showing he was a person of bad character.
We cannot say it was an abuse of discretion for the trial court to admit the evidence of the circumstances of Porter’s capture, including the testimony concerning the gun. Porter had been identified as a suspect in this case and was spotted by police a week after the robbery and murder of Nowden. He was pursued on foot by the officers, and during the chase he was observed to look back and bring his right arm around toward his pursuer. It was at this point that the officer observed that he held a pistol. A second officer took up the pursuit and saw Porter throw the weapon down and continue running. The gun was recovered and shown to have fired the bullet which killed Nowden. The testimony of the officers is clearly relevant in establishing that Porter was in possession of the murder weapon which he attempted to discard during the pursuit.
We also do not find error in the submission of the second aggravating circumstance, that Porter committed capital murder for the purpose of avoiding or preventing an arrest or effecting an escape from custody. Although Porter’s motion to prohibit submission of “any aggravating circumstance completely unsupported by the evidence” was granted by the trial court, he failed to assert at trial that the aggravating circumstance of “avoiding or preventing an arrest” was unsupported by the evidence.
In any event, this court has held that killing to eliminate a potential witness is the same as avoiding or preventing lawful arrest. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993). Certainly the jury could have found beyond a reasonable doubt that Porter killed Nowden to avoid being arrested for robbery, because of the nature of Nowden’s head wound and the fact that he had spoken to Porter outside the restaurant and could have identified him as one of the robbers. See Sheridan v. State, supra; Coulter v. State, 304 Ark. 527, 804 S.W.2d 348, cert. denied, 112 S.Ct. 102 (1991); Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420, cert. denied, 499 U.S. 913 (1990).
Finally, Porter argues that certain remarks made by the prosecuting attorney during closing arguments constituted an impermissible “golden rule” argument. See King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994). He concedes that he did not object to the remarks at trial; however, he relies upon Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981), for the proposition that the trial court should have stepped in and stopped the argument.
The remarks complained of went to Porter’s propensity to escape:
Calvin Porter runs every time he gets a chance. Put him in prison and they put him out there in a field and he gets to working and what is he going to do when he gets the chance? He’s going to run. They’ll be chasing him all over the place.
The prosecuting attorney clearly did not suggest that jurors place themselves in the position of a victim as in a “golden rule” argument. He simply argued that there was a possibility Porter would attempt to escape, and the words in this instance are not so flagrant as to constitute a basis to reverse for failure to control the closing remarks of the prosecutor. See Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980); Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994).
We note that the State, in its brief, has set forth a comparative analysis of Porter’s death sentence. However, in Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995), we found that the recently enacted sentencing procedures provide a statutory check on arbitrariness by requiring a bifurcated proceeding where the jury is provided with information on aggravating and mitigating circumstances and standards for the use of that information. On appeal, we thus limit our review to the aggravating and mitigating circumstances presented to the jury and no longer conduct a proportionality review. Here, the jury unanimously found two aggravating circumstances and no mitigating circumstances. We conclude there was no erroneous finding of any aggravating circumstance. See Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995).
The entire record has been examined pursuant to Ark. Sup. Ct. R. 4-3(h) for other reversible errors and we have found none.
Verdict and sentence affirmed. | [
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David Newbern, Justice.
The issue before us is whether the Trial Court erroneously declined to award attorney’s fees. Robert Clayton Wynn, the appellant, contends he was entitled to attorney’s fee awards pursuant to Ark. Code Ann. § 16-22-309 (Repl. 1994) because there was a complete absence of a justiciable issue of either law or fact raised in counterclaims against him by Robert R Remet and John Lewis McGehee, the appellees. In accordance with subsection (d) of the statute, we have reviewed the record de novo, and we agree with Mr. Wynn; therefore, we reverse the Trial Court’s decision and remand the case.
Robert R Remet is an attorney. He is also a tenant on land owned by John Lewis McGehee. Mr. Remet had a boundary line dispute with neighboring land owners named Brown. He called another attorney, Kenneth Harper, who represented the Browns, seeking recommendation of a surveyor. Mr. Harper recommended Mr. Wynn.
When Mr. Wynn went on Mr. McGehee’s land, after agreeing with Mr. Remet to conduct the survey, Mr. McGehee challenged his presence but ultimately agreed to allow the survey after learning that Mr. Remet had hired Mr. Wynn. Mr. McGehee distrusted Mr. Harper, and there was disputed testimony over whether he asked Mr. Wynn at the outset if he was related to Mr. Harper and whether and what Mr. Wynn might have answered to that question.
Mr. Wynn prepared a plat showing the location of the disputed line and billed Mr. Remet $510. According to Mr. Remet, if Mr. Wynn had answered questions about the survey he would have paid the bill. Mr. Remet testified he thought the bill was to have been $350. Mr. Wynn testified he had told Mr. Remet $350 was the minimum and that it might be more.
Mr. Wynn filed his initial complaint in the Small Claims Division of the Star City Municipal Court on May 4, 1992, for $510. The complaint alleged that Mr. Remet, acting as attorney for Mr. McGehee, had hired him (Wynn) and that Mr. Remet and Mr. McGehee had refused to pay. In their answers, Mr. Remet and Mr. McGehee denied owing Mr. Wynn “anything.” They also counterclaimed.
Mr. McGehee sought $141,575.25, as damages, costs, and attorney’s fees, alleging Mr. Wynn had maliciously clouded the title to his land and was liable for deliberate infliction of mental distress, abuse of process, and trespass. Mr. Remet sought $41,500.00, alleging that Mr. Wynn had close connections with the neighbors with whom the dispute had occurred and had created a false survey. He alleged Mr. Wynn’s suit was an abuse of process filed to inflict emotional harm and “corrupt prosecution.”
The case was transferred to Circuit Court, and Mr. Wynn filed an amended complaint, renewing his contract claim of $510 and alleging that the counterclaims were without justiciable issue in either law or fact and that he should be entitled to attorney’s fees and costs.
Prior to trial, Messrs. Remet and McGehee offered to settle the dispute by dismissing their counterclaims and tendering $510.00 as payment for the survey. Mr. Wynn refused, the counterclaims were not dismissed, and the case was tried on the merits.
Mr. Remet testified he became suspicious of the results of the survey after he discovered that Mr. Wynn was Kenneth Harper’s first cousin. He said that his suspicions deepened after Mr. Wynn refused to return his calls when he wanted an explanation of the survey. Mr. Wynn’s wife testified she called Mr. Remet about the bill and he said he would pay “after court” and did not otherwise complain or question the bill.
Daniel Robison, another land surveyor, first spoke with Mr. Remet in August, 1993. Mr. Remet asked him to do a second survey of the line and not to consult Mr. Wynn. Mr. Robison testified that the plat prepared by Mr. Wynn was substandard because it showed a “calculated corner” without stating the method of calculation. He concluded it was apparent that a corner marker had been moved some 13 feet, but his ultimate calculation placed the boundary line within one foot of the place Mr. Wynn had found it to be. He said Mr. Wynn’s survey was thus, according to minimum surveying standards, an accurate survey. Mr. Robison presented that result to Mr. Remet in October of 1993.
In his testimony, Mr. Remet said that after receiving Mr. Robison’s survey result he had “no problem” with Mr. Wynn’s survey.
As a general rule, attorney’s fees are not allowed in Arkansas unless expressly authorized by statute. Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991); Damron v. University Estates, Phase II, Inc., 295 Ark. 533, 750 S.W.2d 402 (1988). However, in any civil action in which the court having jurisdiction finds there was a complete absence of a justiciable issue of either law or fact raised by the losing party or his attorney, the court may award an attorney’s fee in an amount not to exceed $5,000, or ten percent of the amount in controversy. Ark. Code Ann. § 16-22-309 (Repl. 1994); Lawson v. Sipple, 319 Ark. 543, 893 S.W.2d 757 (1995).
Section 16-22-309 provides, in pertinent part:
(a)(1) In any civil action in which the court having jurisdiction finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party or his attorney, the court shall award an attorney’s fee in an amount not to exceed five thousand dollars ($5,000), or ten percent (10%) of the amount in controversy, whichever is less, to the prevailing party unless a voluntary dismissal is filed or the pleadings are amended as to any nonjusticiable issue within a reasonable time after the attorney or party filing the dismissal or the amended pleadings knew, or reasonably should have known, that he would not prevail.
* * *
(b) In order to find an action, claim, setoff, counterclaim, or defense to be lacking a justiciable issue of law or fact, the court must find that the action, claim, setoff, counterclaim, or defense was commenced, used, or continued in bad faith solely for purposes of harassing or maliciously injuring another or delaying adjudication without just cause or that the party or the party’s attorney knew, or should have known, that the action, claim, setoff, counterclaim, or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification, or reversal of existing law.
The Trial Court announced the ruling from the bench. He awarded Mr. Wynn $510 plus costs and an attorney’s fee of 10% of that amount against Mr. Remet but not against Mr. McGehee, as it was found that Mr. McGehee had not contracted for the survey. Mr. Wynn’s claims for attorney’s fees in accordance with § 16-22-309 were denied. Discussing Mr. Wynn’s claim for attor ney’s fees pursuant to the statute, the Trial Court reviewed the history of the animosity among the parties and concluded Mr. McGehee had not acted maliciously in filing the $141,575.25 claim because he was “upset” at the time as he thought he “got a surveyor that was a friend of the Harpers that [he] didn’t want.”
With respect to Mr. Remet it was found that he thought the price for the survey was to be $350 and it turned out to be $510. In addition, Mr. Remet later learned, as the Trial Court stated, “that Mr. Wynn was a friend of Harper, and he made a lot of statements that... he has not substantiated ... by proof today.” The Trial Court commented further, in reaching his conclusion that Mr. Remet’s claims were not totally baseless, that Mr. Remet had attempted to settle by paying Mr. Wynn’s full $510 claim without success, “And Remet said, well, I’m not going into court, then, totally empty; I’m not going to give away everything if he’s not willing to give any at all.”
Nothing in the evidence cited in the Trial Court’s ruling or elsewhere in the record supports any conclusion other than that, when this case went to trial, the counterclaims were completely baseless. Mr. Remet admitted he knew, through his second survey by a disinterested surveyor, that Mr. Wynn’s survey was accurate.
As we read subsection (b) of the statute, a counterclaim “lacking a justiciable issue of law or fact” is one “commenced or used in bad faith” for one of two purposes, that of “harassing or maliciously injuring another or delaying adjudication without just cause. . . .” Stated in the disjunctive is a further situation justifying the fees, i.e., “or that the party or the party’s attorney knew, or should have known, that the . . . counterclaim . . . was without any reasonable basis in law or in equity and could not be supported by a good faith argument for an extension, modification, or reversal of existing law.”
Both counterclaims contained allegations of abuse of process and the intentional infliction of emotional distress. To establish intentional infliction of emotional distress, the plaintiff is required to satisfy four elements: (1) the actor intended to inflict emotional distress or willfully and wantonly knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was extreme and outrageous, was beyond all possible bounds of decency, and was utterly intolerable in a civilized community; (3) the actions of the defendant were the cause of the plaintiff’s distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. AMI Civil 3rd, 404 (1989).
The elements of the tort of abuse of process are (1) a legal procedure set in motion in proper form, even with probable cause, and even with ultimate success, but (2) perverted to accomplish an ulterior purpose for which it was not designed, and (3) a willful act in the use of process not proper in the regular conduct of the proceeding. Harmon v. Careo Carriage Corp., 320 Ark. 322, 895 S.W.2d 938 (1995).
Whether or not the counterclaims were filed with the purpose of delaying Mr. Wynn’s municipal court claim of $510 without just cause, it is very clear that Mr. Remet knew or should have known that he could not prove all the elements or perhaps even one element of either of the torts he and Mr. McGehee claimed Mr. Wynn committed against them. While Mr. Remet’s attempt to settle the matters were perhaps laudable, we find no justification for his taking the counterclaims to trial when the settlement failed so that he would not be “totally empty” before the Trial Court.
Reversed and remanded for proceedings consistent with this opinion. | [
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Per Curiam.
Appellant Michael James Wicker, by and through his attorney, has filed a motion for rule on clerk. The court considers the motion as a motion for belated appeal. His attorney, Richard Mattison, states in the motion that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
This was an indictment against Thomas Cryer, determined in the Lafayette Circuit Court.
There were three counts in the indictment: the 1st and 2d charging, with some variation of form, that Cryer assaulted Sarah Stricklin with a pistol, with intent to commit murder; and the 3d charging that he assaulted her with a deadly weapon (a pistol), with intent to inflict upon her a bodily injury, without considerable provocation, etc.
The Court sustained a demurrer to the indictment, interposed by Cryer, and the State brought error.
It is insisted that the indictment was bad, and subject to demurrer; because, 1st, it charged two distinct offences, subject to different, penalties; and 2d, because it improperly joined counts for a felony, and a misdemeanor; and these ware the grounds of the demurrer, etc.
1. The offence charged in the first and second counts in the indictment, an assault with intent to commit murder, is punishable by imprisonment in the penitentiary. Gould's Dig., p. 336. The offence charged in the third count, usually designated as an aggravated assault, etc., is punishable by fine and imprisonment in the common jail. Ib.
In Baker vs. The State, 4 Ark. 56, counts were joined in the same indictment, as in this case, charging Baker with an offence punishable by imprisonment in the penitentiary, and an offence punishable by fine and imprisonment in the county jail. And this Court distinctly held that the objection for misjoinder of offences, if allowable at all, should have been taken before verdict, bjr motion to quash, or to compel the attorney for the State to elect between the counts; and that the objection was not good in arrest of judgment, or error, or upon demurrer.
In that case it appears that Baker was really prosecuted for but offence, and that several counts were inserted in the indictment, charging the offence in different degrees, with the view of meeting different aspects or contingencies in the evidence, which the Court clearly intimate that the prosecuting attorney had the right to do; and that, in such case, where the counts were inserted in good faith, he would not be required to make an election between them.
In the case now before us, there can be but little doubt, from the face of the indictment, but that the several counts were inserted for the same purpose, as in Baker’s case, and that there was no design to charge, .and prosecute for, separate and dis-distinct offences, subject to punishments differing in their character, etc. See 1 Arch. Cr. Law, Waterman’s Ed., p. 93, etc., and notes.
2. By act of December 18th, 1848, (G. Dig. p. 383,) an assault with intent to commit murder, being punishable by imprisonment in the penitentiary, is a felony. An aggravated assault is a misdemeanor.
By the common law, it seems, counts for a felony and misdemeanor ' cannot be joined in the same indictment; and if improperly joined, the indictment will be bad on demurrer, or on motion in arrest of judgment. 1 Chitty Cr. Law 254.
In our country, some of the States have adhered to this rule (State vs. Freels, 3 Humph. 228); and in others, it has been held that the reason of the rule has no application in this country, and consequently the rule has not been observed. State vs. Boise et al., 1 McMullin 189; Buck vs. State, 2 Har. & J. 426; Waterman’s Ed. of Arch. Cr. Law, vol. 1, p. 93, 94, and notes.
So, by the common law, a party indicted for a felony, could not be found guilty of a misdemanor; but this Court, upon the authority of the adjudications of sister' States, has decided that the reason of the rule in England does not exist in our practice; and that upon an indictment for felony, the accused may be convicted of a misdemeanor, where both offences belong to the same generic class; where the commission of the higher may involve the commission of the lower offence, and where the indictment for the higher offence contains all the substantive allegations necessary to let in proof of the misdemeanor. Cameron vs. State, 13 Ark. 712; Guest vs. State, 19 Ib. 405; Sweeden vs. State, Ib. 205.
If, upon an indictment for a felony, a party may be found guilty of a misdemeanor, as above shown, it certainly can be of no prejudice to the accused to insert, with the count for the felony, a count for the misdemeanor in the same indictment.
Where there is doubt whether the evidence will establish a particular offence to be of a higher or lower grade — a felony or a misdemeanor — it is a convenient practice to permit the attorney for the State to insert a count for each, for the purpose of meeting contingencies in the proof. The accused is thereby advised that he is required to meet the charge in both of its aspects, and is surely less liable to be entrapped under this practice than if he were charged with the felony only, and yet subjected, upon the trial, to a conviction for the misdemeanor.
The judgment is reversed, and the cause remanded for further proceedings, etc. | [
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Mr. Chief Justice English
delivered the opinion of the Court.
Czarnikow was indicted at the February term, 1857, of the Sebastian Circuit Court, for betting at a faro bank. The offence was charged to have been committed 10th December, 1856. Upon the plea of not guilty, the defendant was tried and acquitted at the August term, 1857, and the State appealed upon questions of law reserved at the trial.
The bill of exceptions shows that, upon the trial of the cause’ the State introduced, as a witness, Ervin Marlin, who testified that he was before the grand jury, in February then last, and that before that time, in the year 1857, he saw the defendant at what is known as the “ Role in the Wall,” in Fort Smith’ betting against a faro hank, exhibited by one Mackey.
On cross-examination by the defendant, he stated that he did not Remember the month in which the betting took place; he thought it was last fall. He then said he thought it was in December, 1856; was not certain that it was notin 1855. That the present year was 1857. That he did not know what anniversary the 4th of July was. Did not know what day of the month Christmas comes on, nor what month it was in.
Upon re-examination by the State, he testified that said betting took place the night he was robbed by Dan Ross; that it was in December before his going before the grand jury — was'last December.
Whereupon, the defendant’s attorney proposed to ask the witness in what year it was that he was before the grand jury; to the asking and answering of which question the State objected; but the Court overruled the objection, and the State excepted. The witness answered that it was in 1856.
The State then introduced Foster Sadler as a witness, who stated that he was in the gambling room at the “ Role in the Wall,” on the night in which the witness Martin was robbed by Ran Ross, and that he did not see the defendant there.
The attorney for the State then asked Sadler if he had seen the defendant, at any time, other than the time spoken of by the first witness, bet money against a faro hank, in the county of Sebastian, within one year next before the finding of the indictment in this case. To the answering of which question the defendant objected, the Court sustained the objection, and would not permit the witness to answer the question, and the State excepted.
1. It is not insisted by the attorney general that the Court below erred in permitting the witness Martin to respond to the question put to him by the appellee, as to the year in which he was before the grand jury.
2. Upon what ground the Court refused to permit the witness, Sadler, to answer the question put to him by the State, does not appear. If upon the ground that the question was too general, the Court erred. Orr vs. The State, 18 Ark. 543.
If upon the ground that the State had made an ineffectual attempt to prove a particular instance of betting at faro by the witness Martin, and was thereby debarred from proving, by the other witness, a betting at faro by the appellee, at some other time, within the period of limitation, than that referred to by the first witness, the Court likewise erred.
The time charged in the indictment was not material. The State had the right to make out a case of betting fit faro, by the accused, at any time within the period of limitation. 1 Phil, jEv. 514; 1 Waterman's Arch. Cr. L. 119, and note.
. Under an indictment containing but one count, as in this case, the accused can only be convicted and punished for one instance of gaming; but the State may prove that that instance occurred at any time within twelve months previous to the finding of the indictment. Where the State introduced a witness, and attempts to prove an instance of gaming by him, but fails on account of his want of intelligence, defective memory, or indisposition to tell the whole truth, or his want of a full knowledge of the facts, it would be a very unsafe and inconvenient practice to cut her off from the right to introduce another witness, and interrogate, him as to any instance of gaming by the accused, embraced by the allegations of the indictment, within his knowledge, etc.
The judgment of the Court below is reversed, and this being a case where the appellee, if convicted, could only be punished by a pecuniary mulct (Dig., p. 370, sec. 3,) and not by imprisonment, the Court below will be directed to grant to the State a new trial, upon the authority of Jones vs. The State, 15 Ark. 262. | [
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Mr. Justice Compton
delivered the opinion of the Court.
Hawkins, the defendant in error, who was the plaintiff below, pleads in bar of the writ, alleging in substance: That on the 18th day of November, 1854, he instituted his action of replevin in the Court below, against Martin, the plaintiff in error, for the recovery of certain slaves which were then in the possession of Martin: that a writ issued in conformity to law to the sheriff, who, in virtue thereof, seized the slaves, and delivered them to Hawkins; and that afterwards, to-wit: On the 11th day of December, 1854, Martin executed and delivered to Hawkins, his certain instrument in writing, and under seal, which, after reciting Hawkins’ title to the slaves, the institution of the action of replevin, the issuance of the writ, the seizure and delivery of the slaves, in virtue thereof, to Hawkins, and that Hawkins rightfully and lawfully held possession of them, reads as follows, to-wit: “ I, the said William Martin, having no wish or desire whatever to controvert the right of the said Hawkins to said slaves, and each and every of them, do hereby voluntarily admit that the said slaves are the rightful property of the said Archibald D. Hawkins, and do hereby voluntarily release him from any and all responsibility whatever, on account of the said action of replevin aforesaid, on the bond executed to me, or to the sheriff of Sevier county, by the said Archibald D. Hawkins, as principal, and Henry A. Hawkins and James S. Dollarhide, as his securities thereon, before the service of said writ, and I do hereby agree that said suit shall be tried upon its merits, without any regard or relation to any error in the writ or proceedings, either in substance or form, so as to have the finding of said slaves by the jury, or the Court sitting as a jury, to be the property of the said Archibald D. Hawkins, so as to vest the title to said slaves fully in him by the judgment of the Court; and I do hereby further promise, agree and bind myself by these presents, to acknowledge before the Circuit Court of Sevier county, Arkansas, full satisfaction of all actions, causes of action, and demands of every name, nature and description whatsoever, against the said Archibald D. Hawkins, having received of and from him full payment and satisfaction of all action, causes of action, and demand of every name, nature and description ’whatsoever.” The plea further alleges that afterwards, to-wit: at the February term, 1855, of the Court below, Martin failing to appear and defend the action, Hawkins, pursuant to the terms of the instrument in writing, appeared in open court, and waiving damage, etc., recovered judgment for the slaves, which is the identical judgment, to reverse which, the writ of error was sued out, etc., etc.
It is insisted on demurrer that the matters in the plea are not sufficient to bar the writ.
In the instrument pleaded, Martin acknowledged that the title to the slaves was rightfully in Hawkins, and expressed the desire that the suit then pending between them, should be tried on its acknowledged merits, without regard to error in the proceedings, in substance or form, and thus put an end to litigation. Why?
The answer, in the language of Martin, is, “ So as to have the finding of the slaves by the jury, or the Court sitting as a jury, to be the property of Hawkins — ‘ so as to vest the title to said slaves fully in him by the judgment of the Court.’ ”
This is certainly inconsistent with the idea of a right reserved to sue out a writ of error to the judgment, and if not technically and in form a release of errors, it nevertheless has the same effect. 3 Bac. Ab. 380; Camden vs. Edie, 1 H. Bl. 21; Executor's of Wright vs. Nutt, 1 T. R. 388.
The demurrer is therefore overruled.
Absent, Mr. Justice Rector. | [
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WAYMOND M. BROWN, Judge
| ¶Azzore Veterinary Specialists, LLC (Azzore) appeals from an order of the Pope County Circuit Court granting summary judgment in favor of appellee Dr. Mario Hodgson. Azzore argues that summary judgment was inappropriate because (1) Azzore has a valid interest in protecting its customer list, (2) a genuine dispute of material fact remains as to what services Dr. Hodgson performs at his practice, and (8) a genuine dispute of material fact remains as to whether Azzore permanently waived its right to collect monies owed it at the end of 2010 by Dr. Hodgson. Because genuine issues of material fact remain to be tried, we reverse and remand.
In August 2010, Azzore hired Dr. Hodg-son to work as a veterinary ophthalmology specialist. The parties entered into an employment agreement that contained the following covenant:
|29. Covenant Not To Compete. For a period of two (2) years after the termination of his employment for any reason, Employee shall not directly or indirectly, as an employee, independent contractor, partner, stockholder, proprietor, consultant, joint venturer, investor or in any other capacity:
(a) engage in, or own, manage, operate or control, or participate in the ownership, management, operation or control of, any business or entity which engages anywhere within Pope County, Arkansas', or within a fifty (50) mile radius of any location at which Employee performs services on behalf of the Corporation hereinafter (the “Territory”) in the provision of veterinary internal medicine, diagnostic and surgical services' or remote veterinary diagnostic services;
(b) hire or solicit to perform services (as an employee, consultant or otherwise) any employees of the Corporation or take any actions which are intended to persuade any employée of the Corporation to terminate his or her association with the Corporation; or
(c) solicit any customer of the Corporation to purchase veterinary products or services that could be supplied by the Corporation.
(d) Employee acknowledges that the Corporation would not enter into this
Agreement unless the Employee agrees to the restrictive covenants set forth in this Agreement. Employee acknowledges that, given the nature of the Corporation’s business the covenants contained in this Agreement contain reasonable limitations as to time, geographical area and scope of activity to be restrained, and do not impose a greater restraint than is necessary to protect and preserve for the . benefit of the Corporation the goodwill of the Corporation’s business and to protect the legitimate business interests of the Corporation. If, however, any provision of this Agreement is determined by any court of competent jurisdiction to be unenforceable by reason of its extending for too long a period of time or over too large a geographic area or by reason of its being too extensive in any other respect or for any other reason, then the unenforceable provision shall be construed to extend only over the longest period of time for which it may be enforceable, the largest geographical area as to which it may be enforceable, and to the maximum extent in all other aspects as to which it may be enforceable, all as determined by such court and in such action. Employee acknowledges that any breach of this Agreement will cause irreparable injury to the Corporation and that actual damages may be difficult to ascertain and inadequate. Without limiting the availability of legal or equitable remedies under any provisions of this Agreement, Employee agrees that the Corporation shall be entitled (subject to applicable law, without the | ..¡necessity of posting a bond or other collateral security), to an injunction or injunctions to prevent any breach or threatened breach of this Agreement. Employee covenants and agrees that if he shall violate any of his covenants or agreements under this Agreement, the Corporation shall be entitled to an accounting and repayment of all profits, compensation, commissions, remuneration or benefits which Employee directly or indirectly has realized and/or may realize as a result of, growing out of, or in connection with any such violation. Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or remedies to which the Corporation is or may be entitled at law, in equity or under this Agreement.
Dr. Hodgson’s employment with Azzore ended on August 6, 2013. He filed a complaint for declaratory judgment regarding the parties’ agreement on August 20, 2013. Azzore filed an answer and counterclaim on September 23, 2013. The matter was initially heard in district court. An order was entered on January 24, 2014, in Az-zore’s favor.
Dr. Hodgson filed his complaint for declaratory judgment in the Pope County Circuit Court on January 29, 2014. Azzore filed its answer and counterclaim on February 4, 2014. Azzore denied the material allegations of the complaint and asked the court to declare the agreement enforceable. Azzore counterclaimed for breach of contract, asserting that Dr. Hodgson owed it $23,253.36 under the terms of the agreement. It also sought an injunction to prevent Dr. Hodgson from violating section nine of the agreement, and asked for an accounting and repayment from Dr. Hodg-son. On February 11, 2014, Dr. Hodgson filed a reply to Azzore’s counterclaim denying the material allegations of the complaint. However, |4Pr. Hodgson admitted that he owed Azzore $16,262.23. He requested that the court dismiss Azzore’s counterclaim and grant him the relief sought in his complaint.
Dr. Hodgson filed a motion for summary judgment on April 1, 2014. In the summary found in the motion, Dr. Hodgson stated:
The primary piece of the Plaintiffs veterinary practice consists of performing cataract surgeries on animals. Plaintiffs primary source of income is derived from performing cataract surgeries. The Defendant does not perform cataract surgery on animals, but [is] attempting to prohibit the Plaintiff from performing cataract surgery on animals. Further, the Defendant is attempting to collect monies from the Plaintiff for the year 2010 after waiving those amounts in writing. For the reasons set forth hereinbelow, the Plaintiff requests judgment as a matter of law.
He included an affidavit in which he stated that his practice primarily consisted of performing cataract surgeries on animals and that a majority of his income is derived from performing those surgeries. He further stated that Dr. Terry Dew, the owner of Azzore, did not perform cataract surgeries on animals and that no one else at Azzore provided such service. Dr. Hodgson also stated that Azzore waived the monies owed for 2010 and attached a copy of an email he received from Cheree Miller, Azzore’s office manager, informing him of the waiver. Dr. Hodgson included an affidavit from Christopher Gray stating that when his pet developed cataracts, he was told by Azzore. that he would have to take it to either Oklahoma or Memphis for surgery. He said that it would have been convenient for him to have his pet’s cataract surgery in Pope County.
| BAzzore filed a response to Dr. Hodg-son’s summary-judgment motion on April 25, 2014. It disputed every material fact alleged by Dr. Hodgson. Specifically, Az-zore stated that Dr. Hodgson did not limit his practice to cataract surgery, but performed many of the same procedures that Azzore does. Citing a portion of section seven of the agreement, Azzore stated that there was no permanent waiver of the monies owed in 2010. Azzore included affidavits from Dr. Dew, Dr. William Miller, and Cheree Miller with its response. Dr. Dew stated that he viewed a page on Dr. Hodgson’s website in which Dr. Hodg-son listed at least eighteen animal eye-related services performed at his practice, with one being cataract surgery. Dr. Dew stated that he performs many of the same procedures advertised by Dr. Hodgson. Dr. Miller stated that because Drs. Dew and Hodgson had the same license, they could perform any legal service on any animal, including cataract surgery. Cher-ee Miller stated that Dr. Hodgson owed Azzore a total of $23,253.36. She also said that when she sent Dr. Hodgson the email about the 2010 monies, she did not “intend to forever deprive Azzore of the right to collect that amount from Dr. Hodgson. Instead, [her] intent was to support Dr. Hodgson’s practice by temporarily refraining from collecting that amount from Dr. Hodgson while he remained employed at Azzore.”
Dr. Hodgson filed a reply to Azzore’s response on May 5, 2014. He insisted that the- affidavits attached to Azzore’s response were shams “intended to create a question of fact|nwhen one does not exist.” He concluded that his motion should be granted because Azzore failed to meet proof with proof.
A hearing on the motion took place on May 13, 2014. At the conclusion of the hearing, the court granted Dr. Hodgson’s motion for summary judgment. The court also found that there was a waiver by Azzore. An order was filed on May 23, 2014, stating in pertinent part:
6. The Defendant has put forth no proof to rebut that a majority of the Plaintiffs practice consists of performing cataract surgeries. The Defendant does not dispute that it does not provide cataract surgeries. Accordingly, the Defendant failed to meet proof with proof on this issue in that there is no affidavit or other competent summary judgment evidence indicating that the Defendant performed cataract surgery prior to Plaintiffs employment, since Plaintiffs employment, or intends to ever perform cataract surgery. That being the case, paragraph 9 of the parties’ Employment Agreement (which is referred to herein as “Covenant Not to Compete”) which is the subject of this action is overly broad and not narrowly tailored in that it prohibits Plaintiff from performing cataract surgeries that neither the Defendant, nor any of its agents, employees, and/or representatives performed prior to Plaintiffs employment, have performed since Plaintiffs employment, or intend to perform. Accordingly, the Court finds that there is no genuine issue as to any material fact and Plaintiff is entitled to judgment in his favor as a matter of law.
7. Furthermore, the Court takes note that the Covenant Not to Compete is in the employee/employer setting. In the event the Covenant Not to Compete is upheld, it will negatively affect the Plaintiffs potential employment and his ability to earn a livelihood by prohibiting
him from performing cataract surgeries that the Defendant has not, does not, and has evidenced no intention to ever perform.
8.For these reasons and the reasons stated in Plaintiffs Motion for Summary judgment, the Covenant Not to Compete is void as a matter of law as it is not narrowly tailored to the Defendant’s actual protectable interests.
10. Likewise, the Court finds that there is no genuine issue of material fact as it relates to the amount owed by Plaintiff to Defendant pursuant to Defendant’s Counterclaim filed herein. Specifically, the Court finds that there is no genuine issue of material fact 17as to whether the Defendant waived the amounts owed by the Plaintiff in writing under the parties’ employment agreement for the year 2010. With the waiver of the 2010 monies, the Plaintiff owes the Defendant the sum of $16,262.23, which the Plaintiff has previously tendered to the Defendant. The remaining portions of the Counterclaim are dismissed with prejudice.
Azzore timely filed a notice of appeal. This appeal followed.
Summary judgment may be granted by a circuit court only when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, clearly show that there are no genuine issues of material fact to be litigated and the party is entitled to judgment as a matter of law. When the mov-ant makes a prima facie showing of entitlement, the respondent must meet proof with proof by showing a genuine issue as to a material fact. When a party cannot present proof on an essential element of a claim, the party moving for summary judgment is entitled to judgment as a matter of law.
On appeal, we need only decide if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. In making this decision, we view the evidence in a light most favorable to the party against whom the motion was filed, resolving all' doubts and ^inferences against the moving party. Arkansas Rule of Civil Procedure 56(e) requires that an affidavit provided for or against a motion for summary judgment be made on personal knowledge, set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein. A statement that is not based on personal knowledge, but on inadmissible hearsay, will not be accepted as the basis for finding a genuine issue of material fact to deny entry of summary judgment.
A reasonably drawn covenant not to compete is an effective means by which a principal may protect its customers and its confidential information from appropriation and use by former agents and competitors. Covenants not to compete are not looked upon with favor by the law. In order for such a covenant to be enforceable, three requirements must be met: (1) the covenantee must have a valid interest to protect; (2) the geographical restrictions must not be overly broad; and (3) a reasonable time limit must be imposed. The test of reasonableness of contracts in restraint of trade is that the restraint imposed upon one party must not be greater than is reasonably necessary.for the protection of the other, and not |9so great as to injure a public interest. Unless the covenantee has a legitimate interest to be protected by the agreement, the law will not enforce such a contract, as this would merely prohibit ordinary competition.
For its first point, Azzore argues that the court erred in granting summary judgment because it had a valid interest in protecting its customer list. We do not address this argument because the court made no finding regarding Azzore’s customer list.
Next, Azzore argues that the court erred in granting summary judgment because a genuine dispute of material fact remains as to what services Dr. Hodgson performs at his practice. We find merit to this argument. Azzore filed an affidavit from Dr. Dew stating that Dr. Hodgson advertised procedures in addition to cataract surgery and that Azzore also performed many of those same procedures. It also included an affidavit from Dr. Miller stating that Drs. Dew and Hodgson were qualified to perform the same procedures because they had the same license. The court never addressed the additional services provided by Dr. Hodgson’s practice. Instead, it based its decision on the fact that Dr. Hodgson primarily performed cataract surgery and Azzore did not. Gen uine issues of material fact remain as to whether Dr. Hodgson is in direct competition with Azzore and if Azzore has a valid interest to protect. Accordingly, we reverse and remand on Azzore’s second issue.
Finally, Azzore contends that the trial court erred in granting summary judgment because a genuine dispute of material fact remains as to whether Azzore permanently waived |inits right to collect monies owed it at the end of 2010 by Dr. Hodgson. Azzore filed an affidavit from Cheree Miller stating that it was not her intention to permanently deprive Azzore of its right to collect the monies Dr. Hodgson owed it for 2010. Azzore also cited from section seven of the agreement, which essentially states that the failure to insist on strict compliance is not a waiver of Az-zore’s right or power. This was sufficient to defeat a motion for summary judgment. Therefore, we reverse and remand on this point.
Reversed and remanded.
Gladwin, C.J., and Kinard, J., agree.
. At some point, Dr. Hodgson admitted to owing Azzore $16,262.23, but claimed that Azzore waived its right to collect the amount due at the end of 2010. Therefore, the district court awarded Azzore the $16,262.23 and $15,000 in attorney's fees.
. In an email dated June 16, 2011, Miller stated, "Since you started so late in the year, we waived the year-end calculation/account balance for 2010.”
. "Failure to insist upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such terms, covenants or conditions, nor shall any waiver or relinquishment of any right or power granted hereunder at any particular time be deemed a waiver or relinquishment of such rights or power at any other time or times.”
. Mercy Health Sys. of Nw. Ark., Inc. v. Bicak, 2011 Ark. App. 341, 383 S.W.3d 869.
. Id.
. Id.
. Id.
. Id.
. (2013).
. Mercy, supra.
. Id.
. Id.
. Id.
. Id.
. Id. | [
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RAYMOND R. ABRAMSON, Judge
|, This is an appeal from an order in which the Saline County Circuit Court found that, because the parties’ agreement for their minor children’s parochial-school education was an independent contract separate from child support, the court had no jurisdiction to modify the payments. On appeal, Michael Fischer argues that payments for education are more closely related to an award of support than to a settlement of property rights or alimony, and therefore the circuit court had jurisdiction to modify those expenses. Based on the facts of the instant' case, we disagree with Michael’s argument and affirm the trial court.
Melanie and Michael Fischer were married on October 25, 1997, and their divorce decree was entered of record on May 25, 2011. In the twenty-four page decree, which contained numerous category headings, the parties included a heading titled “Primary Education (K-12th Grade)” in which Michael agreed to be solely responsible for all tuition and books related to all three of their minor children’s primary education at Immaculate | ^Conception School (IC) for kindergarten through eighth grade, and then Mount St. Mary Academy (MSM) for ninth through twelfth grade.
Paragraph 4 of the decree states: “The parties have executed a written Property Settlement Agreement for providing for the disposition of their marital property and disposition of their financial affairs. The parties have requested that their Agreement be incorporated into this Decree. The Agreement executed by the parties is set forth verbatim as follows,” and then it sets out every item under the main heading “Custody, Support, and Property Settlement Agreement.” The decree further includes each and every item that the parties agreed to under sepa rate headings such as “Real Property,” “Vehicles,” “Accounts and Funds,” “Personal Property,” “Debts,” “Alimony,” “Child Custody,” “Child Support,” “Insurance,” “Taxes,” “Primary Education (K-12th Grade),” etc.
On January 3, 2014, Melanie filed a motion for contempt after receiving notification that Michael would no longer be making tuition payments at either parochial school. The next day, Michael filed a motion to modify the decree, arguing that his child-support obligation should be decreased due to lower earnings and that the children should be allowed to attend public school. On March 5, 2014, Melanie filed a motion for partial summary judgment, which the court granted on May 20, 2014. The court found that the school payments were contractual between the parties and therefore not modifiable; that there had been a change in Michael Fischer’s income and reduced his bi-weekly child support to $1526; that Michael was to reimburse Melanie for tuition she had paid at a biweekly rate of $194.53; and that Michael had the ultimate decision-making power regarding the children’s medical issues. From that order, this appeal follows.
|sOn appeal, Michael contends that, because the agreement to pay the children’s educational expenses is more closely related to child support than to property settlement or alimony, the court erred in finding it did not have jurisdiction to modify the payments. Melanie argues that the agreement was incorporated into the decree and is a valid, independent contract, which, under well-settled Arkansas law, is enforceable but not modifiable by the trial court.
This court reviews the trial court’s conclusion of law de novo. Houston v. Houston, 67 Ark. App. 286, 999 S.W.2d 204 (1999). Courts always retain jurisdiction to modify child-support issues, even if the parties previously agreed upon those issues. Brown v. Brown, 76 Ark. App. 494, 68 S.W.3d 316 (2002). However, when parties enter voluntarily into an independent agreement that is incorporated into a decree of divorce, it cannot be subsequently modified by the court. Law v. Law, 248 Ark. 894, 897, 455 S.W.2d 854, 856 (1970). When a contract is unambiguous, its construction is a question of law for the court and the intent of the parties is not relevant. Kennedy v. Kennedy, 53 Ark. App. 22, 918 S.W.2d 197 (1996). Here, the parties were represented by able counsel and entered into the contract voluntarily, so it must be enforced. Furthermore, this court has long held that an independent property-settlement agreement, if approved by the court and incorporated into the decree, may not be subsequently modified by the court. Jones v. Jones, 26 Ark. App. 1, 4, 759 S.W.2d 42, 44 (1988). Such is the case here.
Although the court may modify a child-support obligation after the moving party shows a material change of circumstances, we agree with the trial court that the separate |4agreement — in this case for the husband to pay for K-12 parochial-school tuition and books — is not part of the child-support obligation and thereby is not modifiable.
Arkansas Code Annotated section 9-12-312(3)(A)-(C) (2013) provides:
In determining a reasonable amount of support, initially or upon review to be paid by the noncustodial parent, the court shall refer to the most recent revision of the family support chart. It shall be a rebuttable presumption for the award of child support that the amount contained in the family support chart is the correct amount of child support to be awarded. Only upon a written finding or specific finding on the record that the application of the support chart would be unjust or inappropriate, as determined under established criteria set forth in the family support chart, shall the presumption be rebutted.
A trial court may deviate from the chart amount if it exceeds or fails to meet the needs of the children. Ceola, v. Burnham, 84 Ark. App. 269, 139 S.W.3d 150 (2003). Administrative Order No. 10(V) sets forth the following factors to be considered when deviating from the amount set by the chart: food, shelter and utilities, clothing, medical expenses, educational expenses, dental expenses, child care (including nursery, baby sitting, day care or other expenses for supervision of children necessary for the custodial parent to work), accustomed standard of living, recreation, insurance, transportation expenses, and other income or assets available to support the child from whatever source.
While Administrative Order No. 10 does list educational expenses as one of the factors to be considered when deviating from the chart’s set amount, in the instant case, there is no direct language linking the parochial-school tuition to child support. In setting the child support, the trial court did not deviate from the chart amount because of the tuition payments. Under the heading “Child Support” in the divorce decree, it specifically states that the husband shall pay child support in the amount of $1703 bi-weekly. However, it | jjfurther states:
So long as Husband is paying the house payment as set out herein the amount of the house payment will be considered child support and not in addition to child support. Upon the home being sold and the mortgages paid in full at closing, Husband’s child support obligation as set out herein shall commence and be payable to Wife for the benefit of the children.
This is direct language linking the mortgage payments to child support in the decree — both in the child-support section and in the real-property section. Conversely, there is no language in either the child-support section or the primary-education section that links the tuition payments to child support. Since the parties included the language about the mortgage payments in lieu of child support, they and their respective counsel were clearly aware that it could have been included. Michael could have petitioned the court to deviate from the set chart amount for support if he wanted to have the educational expenses count as part of his child-support obligation.
Child support is defined as “only those support obligations that are contained in a decree or order of the circuit court which provides for the payment of money for the support and care of any child or children.” Ark. Code Ann. § ll-9-110(g) (Repl. 2002). The tuition payments in this case do not “support” or “care” for the children because Michael voluntarily agreed to pay the tuition in addition to his regular biweekly child-support payment which was based on his income when applied to the child-support chart. Michael did not seek a deviation from the chart or an offset of other financial obligations because of his agreement to pay the tuition in full. Further, the language throughout the divorce decree indicates that the tuition is separate and apart from his child-support obligation. There is no link between |fithe child support' and the tuition payments.
If Michael wished for his tuition payments to be counted toward his child support, he could have bargained to do so just as he presumably did with the mortgage payment. There is no language in the parties’ agreement that payments of the tuition and books at parochial school for the three minor children were made in lieu of Michael’s child-support obligation or were made in order for the court to deviate from the chart-based amount. As such, we must affirm the lower court in its decision that, as a matter of law, it did not have jurisdiction to modify the separate agreement that Michael would be responsible for payment of parochial-school tuition and books for his three children from kindergarten through twelfth grade.
We note that this issue presents a case-by-case determination, and under other circumstances, private-school tuition could be a factor for the lower court to consider when modifying child support. However, given the facts of this case and the issue at hand, this is a completely separate and independent agreement made by the parties, incorporated into the decree and signed by both parties. Just as this court held in Jones, an independent property-settlement agreement, if approved by the court and incorporated into the decree, cannot be subsequently modified by the court. Here, the trial court held that there was an independent property-settlement agreement, citing the separate headings and the lack of language tying the tuition to child support. The trial court found that the tuition payments were in. addition to the normal chart-ordered support and were bargained for, whether wisely or not, by both parties. The trial court was correct in concluding that it did not have jurisdiction to modify 17the provision, and therefore, we affirm.
Affirmed.
Hixson and Hoofman, JJ., agree. | [
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Donald L. Corbin, Justice.
Appellant Joe Willie Graydon appeals the judgment of the Jefferson County Circuit Court convicting him of rape and second-degree battery and sentencing him to a term of life imprisonment and six years’ imprisonment, respectively. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. l-2(a)(2). Appellant’s sole assignment for reversal is that the trial court erred in excluding evidence of prior sexual conduct between himself and the victim, which he offered as evidence of the victim’s consent. We find no error and affirm.
The record reflects that the crimes occurred on September 4, 1995, in Pine Bluff, under a bridge on the Arkansas River. The victim, an eighteen-year-old girl, was taken to the hospital emergency room that same date and later admitted to the hospital with injuries to her face and back, consisting of bruising, swelling, lacerations, and abrasions. There was massive swelling on one side of the victim’s face, such that her eyes were swollen shut, her lips were swollen, and she had blood on her head and face. The victim also sustained a broken cheek bone and a cracked bone in her sinus area. Her injuries required sutures on her right temple, above her right eye, and below her chin. Additionally, officers observed bruised areas on each side of her neck that were consistent with finger impressions.
Prior to trial, Appellant filed a motion pursuant to Ark. Code Ann. § 16-42-101 (Repl. 1994) requesting that the trial court set a hearing to determine the admissibility of evidence that he and the victim had been lovers for a period of time before the date of the alleged incident. Appellant asserted that this evidence was relevant to the issue of consent. A hearing was held, during which both Appellant and the victim testified. Appellant stated that he had been engaged in a sexual relationship with the victim, whom he referred to as “Pee Wee,” for about four months prior to the time of the offense. He stated that every time they had sexual intercourse, the victim was a willing participant. He stated that they would sneak off together and that no one knew about their relationship because he was living with another woman at the time and the victim was much younger than he was. The victim, on the other hand, testified that she did not know Appellant at all until the day of the rape. She stated that she had never had sexual intercourse with Appellant. She stated further that no one calls her “Pee Wee.”
Monica Hadley, the victim’s sister, testified that she and her sister were living together at the time of the crime. She indicated that they were close and that her sister would talk about her boy friends. She stated that she had never heard her sister mention Appellant’s name or that anyone called her “Pee Wee.”
Wilda Chadick, a teacher at Pine Bluff High School, testified that she had been tutoring the victim after school and that she would often give the victim a ride home after the sessions. She stated that during those rides, she and the victim would talk. She also indicated that she would see the victim every day and would visit with her at ball games and other times. She stated that she had never heard of Appellant until the day of the incident and that she had never heard anyone call the victim “Pee Wee.”
According to the probable-cause statement, which was admitted as an exhibit at the hearing, the victim reported the attack to police while she was in the hospital. She told the police that she had been walking home after work when a vehicle pulled up alongside her. The man in the vehicle asked her for directions to Kentucky Street. Although she knew where the street was, she did not feel that she could give proper directions, so she told the man she did not know how to get there. The man then drove away, and she continued walking. A short time later, the man pulled up alongside her again. This time the man told her that he was from out of town and needed directions to the homes of Tameka Brimmer and Felicia Jones. The man then read to her the written directions he had been given to the Jones home. He asked her if she could show him how to get there and told her he would give her a ride home if she would help him. She agreed and got into his car.
The victim told the police that the man stopped for gas along the way and that she had waited in the car. The man then drove to the north side of a bridge on the Arkansas River. When he drove up under the bridge, she repeatedly told him that he could turn around, as they were apparently not going in the right direction. The man then stopped the car and immediately grabbed her around the neck and began choking her. He put his hand between her thighs and told her not to scream because no one would hear her out there. He then pulled off her shorts and panties and performed oral sex on her. She told him several times to stop. After a short time, the man stopped performing oral sex and asked her if it felt good. She told him that it did not feel good and put her hands between her legs. The man then started choking her again. When he stopped, he took off his pants, crawled on top of her, and began having sexual intercourse with her. When she tried to squeeze her legs shut, the man choked her again and hit her in the face. The man forced her legs open and continued having sexual intercourse again. He then climbed off her, put on his clothes, and walked around to her side and told her to get out of the car. She then dressed and got out of the car. The man then asked for a hug, which she gave him. He told her that the hug was not right and began choking her again. She told the police that she believed it was at that point she passed out and fell to the ground. When she woke up, she walked to the freeway and flagged down a passing motorist, who drove her to the hospital. She told police that she had never seen the man before that date. She was able, however, to provide a detailed description of the man and the car. Two days following the attack, the victim immediately identified Appellant as the assailant from a photographic lineup.
When Appellant was informed by the police that he was a suspect in the rape, he denied any involvement or knowledge of the battery or rape. He told police that on the date of the rape, he had had sexual intercourse with another woman under the same bridge where the attack had occurred. After further interview, however, he recanted that statement and claimed that he had had consensual intercourse with the victim, whom he referred to as “Pee Wee,” under the bridge. He stated that he had initially picked up the girl at the Jiffy “J” convenience store after having received a message from her. He stated that afterwards, he had dropped her off on West 13th Street and then drove home. Appellant then changed his statement again, claiming that after he had dropped off the victim on West 13th Street, he picked her up again and they returned to the bridge and had intercourse a second time. He then stated that after they finished having sex, the victim had asked him for money and that when he refused to give her any, they began to fight. He stated that the victim kicked him in the groin area and that he struck her three to five times in the face with his fist and his elbow. He also admitted that he kicked her in the stomach, knocking her to the ground. He stated that he then got into his car and drove away, leaving the injured girl under the bridge. He claimed that he did not rape the girl and that the two of them had engaged in sexual intercourse numerous times in the past.
Several days after the hearing, the trial court issued a written order denying Appellant’s motion. The order reflected that after hearing the testimony of the witnesses and argument of counsel, it was the court’s judgment that the uncorroborated evidence of prior sexual conduct between Appellant and the victim would not be admissible at trial. Appellant now contends the trial court’s ruling was erroneous. We disagree.
Section 16-42-101, commonly referred to as the rape-shield statute, provides that evidence of a victim’s prior sexual conduct is inadmissible at trial except where the court, at an in camera hearing, makes a written determination that such evidence is relevant to a fact in issue and that its probative value outweighs its inflammatory or prejudicial nature. State v. Sheard, 315 Ark. 710, 870 S.W.2d 212 (1994) (citing Marion v. State, 267 Ark. 345, 590 S.W.2d 288 (1979)). The purpose of the statute is to shield victims of rape or sexual abuse from the humiliation of having their personal conduct, unrelated to the charges pending, paraded before the jury and the public when such conduct is irrelevant to the defendant’s guilt. Harris v. State, 322 Ark. 167, 907 S.W.2d 729 (1995). The trial court is vested with a great deal of discretion in ruling whether the victim’s prior sexual conduct is relevant. Id. We will not overturn the trial court’s decision unless it constituted clear error or a manifest abuse of discretion. Id.; Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1993).
Appellant argues that the evidence of the victim’s prior sexual intercourse with him was relevant to show that she consented in the present case. Prior acts of sexual conduct are not within themselves evidence of consent in a subsequent sexual act. Sterling v. State, 267 Ark. 208, 590 S.W.2d 254 (1979). There must be additional evidence connecting the prior acts to the consent alleged in the subsequent act before the prior acts become relevant. Id. Here, Appellant argues that the evidence connecting the prior acts to the present act is the fact that the victim voluntarily got into his car on the date of the offense. We are not persuaded by this argument, which, taken to its logical conclusion, implies that the act of helping a stranger is tantamount to establishing a previous relationship between two people such that any act of sexual contact would be deemed consensual.
In light of the evidence presented at the hearing, we cannot say the trial court’s decision to deny admission of the proffered evidence constituted clear error or manifest abuse of discretion. To the contrary, the only evidence presented that supports Appellant’s version of events was his own self-serving testimony. There was no corroborating evidence that even linked Appellant with the victim prior to the date of the offense, let alone evidence of their having carried on a clandestine affair for several months. The primary purposes of the rape-shield statute are to protect the victim and encourage rape victims to participate in the prosecution of their attackers. Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980). Such worthy purposes would surely be thwarted if every defendant in a rape case was allowed to present uncorroborated “evidence” that he and the victim had previously engaged in sexual intercourse over the victim’s denial that she had ever known her assailant before the incident. Particularly in this case, where the victim was badly beaten and injured, the minute probative value of allegations of prior consensual intercourse between the victim and the attacker are clearly outweighed by the inflammatory nature of the alleged evidence. Furthermore, Appellant failed to offer any additional evidence connecting the alleged prior acts to the consent alleged in the present incident.
In accordance with Rule 4-3 (h) of the Arkansas Supreme Court Rules, the record has been reviewed for adverse rulings objected to by Appellant but not argued on appeal. No such errors were found. For the aforementioned reasons, the judgment of conviction is affirmed. | [
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Ray Thornton, Justice.
Donna M. Masterson owns and controls DG’s Shiloh Two, Inc. Both aré appellants in this action. Between January 1993 and August 1996, DG’s Shiloh Two owned, and Donna Masterson managed, two bingo halls located in Springdale, Arkansas. In January, 1993, the State of Arkansas ex rel. Winston Bryant, Attorney General, appellee, filed a complaint in the chancery court of Washington County against appellants alleging that the bingo operations constituted public nuisances and seeking an order to abate and enjoin such activities. Other operators of bingo halls were named but were dismissed when they discontinued their bingo operations. Appellants continued to operate their bingo halls and agreed with appellee to submit the matter to the chancery court upon stipulated facts.
Appellants argued that appellee failed to allege irreparable harm as a basis for injunctive relief, and urged that the adoption by the state of Ark. Code Ann. §§ 26-52-1501 — 1507 (Supp. 1995), which taxes gross receipts from bingo operations, under which appellants remitted $316,266.00 in taxes to the state, supports appellants’ contention that the bingo halls are not public nuisances. Appellants also argued that the chancery court lacked subject-matter jurisdiction.
On August 12, 1996, the chancery court entered a decree abating the bingo activities as a public nuisance and enjoining the appellants from continuing such activities. On appeal, appellants assert that the chancery court erred in finding that their bingo operations constituted a public nuisance, and further contend that the court lacked subject-matter jurisdiction to conclude that bingo is a lottery or to abate and enjoin such activity. Finally, appellants argue that the court erred in not granting their motion for summary judgment. We have considered each assignment of error and have determined that the trial court should be affirmed. This resolves any issue concerning summary judgment.
Subject-Matter Jurisdiction of Chancery Court
Appellants correctly state the general rule that a chancellor has no criminal jurisdiction. State v. Vaughan, 81 Ark 117, 98 S.W. 685 (1906). Further, it is correct that “except in narrow circumstances . . . equity will not enjoin the commission of a crime because the remedy at law is adequate.” Bates v. Bates, 303 Ark 89, 93, 793 S.W.2d 788, 791 (1990). However, there are circumstances to which we refer in Bates and other cases where both criminal and equitable relief are appropriate. In a case involving an erroneously granted exception to the provisions of a city ordinance prohibiting the erection of a nonfireproof building, the chancery court refused to issue an injunction against the prohibited structure because the ordinance prescribed criminal punishments of a fine for each day of violation. Meyer v. Seifert, 216 Ark 293, 225 S.W.2d 4 (1949). The appellees in that case argued that the criminal penalty was exclusive. We disagreed and reversed, stating in the words of Justice Robert A. Leflar:
That equity will not act to restrain ordinary violations of the criminal law, but will leave the task of enforcing the criminal laws to courts having criminal jurisdiction, is basic learning in our legal system. But it is equally basic that if grounds for equity jurisdiction exist in a given case, the fact that the act to be enjoined is incidentally violative of a criminal enactment will not preclude equity’s action to enjoin it.
Id. at 296-97, 225 S.W.2d at 6.
In State ex rel. Att’y Gen. v. Karston, 208 Ark. 703, 187 S.W.2d 327 (1945), we decided that the chancery court erred in refusing to entertain jurisdiction of an injunction proceeding brought by the Attorney General seeking to enjoin the operation of a gambling house and stated:
The chancery court held that it had no jurisdiction in this case. We have repeatedly recognized that equity has authority to abate a public nuisance. In Ross et al. v. State, 184 Ark. 385, 42 S.W.2d 376, we quoted from Marvel v. State, 127 Ark. 595, 193 S.W.2d 259, 5 A.L.R. 1458, as follows: “The Legislature has not conferred the jurisdiction upon the chancery court to abate public nuisances. This jurisdiction they have always had.”
Id. at 710, 187 S.W.2d at 330 (emphasis added).
We also quoted with approval the statement from 39 Am. Jur. 410, as follows:
Where the act is both a public nuisance and a crime, the state may suppress it by a suit in equity, or resort to a criminal prosecution, or may do both. ... To warrant an injunction where the nuisance is also a crime, there must be proof of what that law denominates a nuisance as distinguished from a mere crime.
Id. at 711, 187 S.W.2d at 330.
In an earlier case involving the same gambling house, Albright v. Karston, 206 Ark. 307, 176 S.W.2d 421 (1943), we reversed the local chancellor’s decree protecting the gambling house from interference by the state police. We pointed out that “a gambling house was a public nuisance at common law, and the operation of a gambling house has by statute been made a felony in Arkansas.” Id. at 311-312, 176 S.W.2d at 328.
In State ex rel. Att’y Gen. v. Karston, supra, we cited many decisions declaring a gambling house to be a public nuisance at common law, determined that the Attorney General has the power and duty under common law to institute equitable proceedings to enjoin the nuisance, and summed up as follows:
[B]y the weight of authority, equity may act to suppress a public nuisance, even though the maintenance of the nuisance is a crime, where there is alleged in addition to the pubhc nuisance, some facts which show the remedy at law, by prosecution of the criminal, is inadequate and incomplete to effect relief.
Id. at 712, 187 S.W.2d at 331.
In the case under consideration we note that the stipulation of facts, considered together with the principles we have reviewed, support the chancery court’s following conclusions of law:
That each of the bingo halls at issue in this case have operated (openly, publicly, repeatedly, continuously, persistently, and intentionally) on a regular basis for an extended period of time, notwithstanding any potential application or enforcement of any criminal statutes. It appears to this court that, whatever remedy may exist at law, it has proved to be inadequate. (Emphasis added.)
We will not reverse the findings and conclusions of a chancery court unless they are clearly erroneous. Osborne v. Power, 318 Ark. 858, 890 S.W.2d 570 (1993). We conclude that the findings are not clearly erroneous, and agree with the chancery court’s conclusion of law “that this Court, as a court of equity, has jurisdiction to abate a public nuisance.” We hold that the chancery court has subject-matter jurisdiction.
Bingo Halls as a Public Nuisance
In reviewing the question whether the chancery court had subject-matter jurisdiction to enjoin a pubhc nuisance, we cited Albright v. Karston, supra and State ex. rel. Att’y Gen. v. Karston, supra, for guidance as to the availability of equitable relief when criminal penalties are also available. In these cases, we pointed to many other cases that declared gambling houses to be pubhc nuisances at common law. The availability of equitable relief to enjoin a gambling activity was discussed in Meyer v. Seifert, where we stated:
In one of the most publicized cases that ever arose in Arkansas, Chancellor Martin enjoined the holding at Hot Springs of a world championship heavyweight prize-fight between James J. Corbett and Robert Fitzsimmons. State ex rel. Atty. Gen. v. Corbett, Fitzsimmons, et al, Martin’s Chanc. Decisions 366. Judge Martin conceded that ordinarily equity does not enjoin the commission of crimes, but pointed out that it does issue such injunctions where property interests are involved, and emphasized the prospective property injuries threatened by the prizefight, notably the payment of money by purchases of tickets of admission to the illegal enterprise, losses by bettors ....
Id. at 297, 225 S.W.2d at 6-7.
This articulation of possible property losses incurred through gambling activities may reflect the rationale for decisions that a gambling house constitutes a public nuisance at common law. The protection of property rights of the public affected by illegal gambling activities meets the test for equitable relief suggested by Chief Justice Hill in State v. Vaughan, where after denying the injunction in the particular case, we added:
On the other hand, if the public nuisance is one touching civil property rights or privileges of the public, or the public health is affected by a physical nuisance, or if any other ground of equity jurisdiction exists calling for an injunction, a chancery court will enjoin, notwithstanding the act enjoined may also be a crime.
Id. at 126, 98 S.W. at 690.
Appellants argue that because the state is taxing its bingo operations, those operations cannot be considered a nuisance. We have considered a similar argument that Act 939, (codified at Ark. Code Ann. §§ 26-52-1501 — 1507 (Supp. 1995)), legalizes bingo in our recent decision in Billy/Dot, Inc. v. Fields, 322 Ark. 272, 908 S.W.2d 335 (1995), where we stated:
Billy/Dot admits that it operates a bingo establishment where money is at risk, but it is wrong in contending that Act 939 legalizes bingo. The Act specifically does not make bingo legal, as is evidenced by its Emergency Clause: “[T]hat this tax and the requirement for annual registration are not intended to address any question of legality or illegality of the conduct of playing bingo;” Act 939 only provides for taxation of bingo revenues. Because there is no lawful business operation at issue here, there is no valid property right to be protected in this matter.
Id. at 277, 908 S.W.2d at 337. In Billy/Dot, we also made the following determination:
Here, there is no question but that playing bingo for money constitutes gambling which is a criminal offense under our statutes, and the chancery court so found. In doing so, the court correctly cited State v. Tones, 309 Ark. 422, 831 S.W.2d 903 (1992), in its order.
Id.
The operation of a commercial bingo hall meets the definitions of a gambling house, and is therefore a common-law public nuisance. In the case before us it was stipulated that the operation of the bingo halls has been profitable enough to make necessary the payments of taxes of $316,266.00 on gross receipts from July 1993 until June of 1996, and that appellants intend to continue the activities, thereby showing that the operation of the gambling houses have resulted in losses to the public patrons of money from their purchase of cards and pull-tabs from which the proceeds are at least sufficient to pay appellant’s taxes. It was also stipulated that no prosecution has been initiated against those operations by anyone, thereby showing that the prosecuting attorney has not brought criminal charges. Whether this is because of the difficulty in gaining convictions, or a belief that other criminal violations have higher priority, or because the prosecuting attorney simply chooses not to prosecute is not relevant. The stipulation that no prosecution has occurred notwithstanding the open continuous, and lucrative operation of the public nuisance supports the chancery court’s conclusion that there is no adequate remedy at law. Equity may act to suppress a public nuisance where the remedy at law is inadequate and incomplete. State ex rel. Att’y Gen. v. Karston, supra.
Appellees urge that appellants’ operation of commercial bingo halls should be declared to be a public nuisance because it flouts the public policy of Arkansas, as expressed in the prohibition against lotteries contained in Ark. Const, art. 19, § 14. We need not address that argument because of our determination that appellants are operating gambling houses, and that such activities are public nuisances under the common law.
Conclusion
On the basis of the stipulations agreed to in this case, the chancery court found that appellants’ bingo halls are public nuisances that have operated openly, continuously, and intentionally, for an extended period of time, without any application or enforcement of criminal penalties. The chancery court made specific findings and conclusions of law, including the following:
That each of the bingo halls. . .have operated on a regular basis for an extended period. . .notwithstanding any potential application or enforcement of any criminal statute. It appears to this court that, whatever remedy may exist at law, it has proved to be inadequate.
That the bingo activities conducted by defendants should be abated as a public' nuisance and each defendant should be enjoined and restrained from conducting any further bingo activities.
These findings and conclusions are not clearly erroneous, and are consistent with the principles of law we have articulated. The judgment of the chancery court is affirmed.
Corbin, J., dissents.
Article 19 § 14 provides, “no lottery shall be authorized by this state, nor shall the sale of lottery tickets be allowed.” The term “lottery” has been defined in Burks v. Harris, 91 Ark. 205, 120 S.W. 979 (1909), as containing three essential elements; consideration, chance, and prize. We also note that Ark. Code Ann. § 5-66-119 (Repl. 1993), provides that engaging in activities ordinarily described as chain letters or pyramid schemes for cash or other compensation is participation “in a lottery, which is declared to be unlawful,” and further provides for the chancery court to enjoin such activities upon complaint by the Attorney General or prosecuting attorney.
This legislative declaration that equitable relief is appropriate to abate the public nuisance of an unlawful lottery is consistent with our own holding. | [
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Robert L. Brown, Justice.
Appellant Michael Henderson was found guilty of capital murder for the shooting death of Billy Little; attempted capital murder of the victim’s brother, Arley Lithe; and aggravated robbery. He was sentenced to life in prison without parole for capital murder. He appeals on grounds of (1) insufficiency of the evidence; (2) trial court error in not suppressing his statement to police officers; and (3) trial court error in allowing hearsay statements from an uncharged co-conspirator. Henderson raises a fourth issue of trial court error in not giving a manslaughter instruction, but he concedes in his brief that our case law renders this issue either moot or harmless error. We agree with him that his statement to deputy sheriffs should have been suppressed, and we reverse and remand for further proceedings.
The events in question occurred on May 7, 1994. At trial, Arley Little testified that he and his brother, Billy Little, owned a used furniture store and that it was common for them to be carrying large amounts of cash. He stated that on May 7, 1994, he and Billy Little met with Larry Harris, who had purchased a refrigerator from them and wanted a refund because the appliance did not function properly. Little explained that he and his brother picked up the refrigerator and loaded it on their truck, refunded the money to Larry Harris, and left for an auction in DeValls Bluff. Arley Little estimated that on that date he and his brother were carrying about $16,000 to $20,000 in cash.
Little further testified that they left the auction in DeValls Bluff and drove into Pulaski County on Highway 70 after 9:00 p.m. At that time, he heard a loud noise and saw that his brother had been shot in the jaw. He testified that a small white car passed them, continued down the road, turned, came back, and fired again at the truck. On the white car’s second pass, his brother was shot in the head and collapsed on his shoulder. He testified that he took control of the truck and continued to drive along Highway 70 when the white car approached from behind and came alongside the truck for a third time. Arley said that shots were again fired into the truck and that the white car continued ahead of them until it took an entrance ramp onto Interstate 40. Arley Litde survived the incident without serious injury, but he could not identify any occupants of the white car and was unable to testify as to the precise number of shots fired into the truck. Billy Litde died as a result of the gunshot wounds to his head.
Corporal Terry Ward of the Pulaski County Sheriff s Department testified that he spoke with Larry Harris at the sheriffs department on September 27, 1994, and that Larry told him where he could find the gun that was used in the crime. The weapon, a .380 semiautomatic pistol, was retrieved in Lonoke County. Ronald Andrejack, a firearms and toolmark examiner with the Arkansas State Crime Lab, opined that the three bullets retrieved from Billy Little’s truck and the shell casings retrieved from Highway 70 were fired from the .380 semiautomatic pistol found by the investigating officers.
The issue of who fired the shots at the Little truck was contested at trial. Corporal Ward introduced a taped statement given by Henderson to Pulaski County deputy sheriffs on September 28, 1994. In that statement, Henderson explained that on May 7, 1994, he and Gary Harris, his cousin and the brother of Larry Harris, planned to rob the Littles. He stated that Gary Harris drove his white Nissan Maxima with Henderson as a passenger and they followed the Little truck after the Littles left the auction in DeValls Bluff. Henderson stated that they pulled alongside the truck to order it to pull over when the truck swerved at them. Henderson explained in his statement: “[H]e swerved at us, things got out of hand, and we passed him after I pulled the trigger the first time, and then, then I freaked out and ah, of course, I didn’t want no witnesses, you know, or anything like that, saying that we did it[.]” He stated that Gary Harris drove the vehicle but did not do any of the shooting.
Gary Harris testified at trial for the prosecution and acknowledged that he pled guilty to first-degree murder, attempted capital murder, and attempted aggravated robbery and received a sentence of 80 years’ imprisonment for his involvement in the crime. He testified that Henderson and Larry Harris, his brother, planned the robbery and that he only learned of the plan to rob the Littles the day the crime occurred. He stated that his job was to drive his car, the white Nissan Maxima. He admitted that he owned the .380 semiautomatic pistol used in the crime. He stated that they made three passes at the Little truck, and Henderson fired all of the shots.
In his own defense, Henderson testified that he turned 18 on May 4, 1994, and that he was celebrating three days later on the day of the murder by drinking alcohol and taking crystal methamphetamine when Gary and Larry Harris came to him with the idea to rob the Littles. During the robbery attempt, when their car pulled up beside the Little truck, Henderson stated that Gary Harris swerved and the gun “went off.” Henderson testified that from that point he “was just freaking out and telling Gary to go on and leave and go[.]” According to Henderson, the remaining shots, which were the fatal shots, were fired by Gary Harris. Henderson maintained at trial that he “did not personally kill Mr. Little.”
Also testifying for the defense was Jennifer Collier, Henderson’s former girlfriend, who stated that Gary and Larry Harris came to Henderson with the plan to rob the Litdes. She testified that she heard Gary Harris say later that he had “shot a round and it felt good.”
I. Sufficiency of the Evidence
We first address Henderson’s contention that the evidence against him was insufficient. We do so because the double-jeopardy clause precludes a second trial when a judgment of conviction is reversed for insufficient evidence. King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996); Jones v. State, 323 Ark. 655, 916 S.W.2d 736 (1996).
At trial, Henderson moved for a directed verdict on all three counts against him on the sole ground that, while there was sufficient evidence of his intent to rob the Littles, there was no proof that he actually attempted to commit the robbery. Henderson maintains that because the charge was for capital felony murder, which requires the element of a killing in the furtherance of an enumerated felony, proof of attempted robbery was critical. Ark. Code Ann. § 5-10-101(a)(l) (Repl. 1993).
We decline to reach the merits of this issue. Compared to the relatively narrow motion for directed verdict made by Henderson which was limited to the State’s failure to prove an actual robbery attempt, Henderson now contends that the State’s evidence was insufficient as a matter of law because his conviction rested on two untrustworthy items of evidence: (1) the testimony of an accomplice, Gary Harris, who was also charged in this matter; and (2) his statement to police officers, which should not have been admitted into evidence due to an illegal arrest. Because of this, the State urges that Henderson has changed his sufficiency argument on appeal. We agree.
It is blackletter law that a party cannot change his grounds for an objection or motion on appeal and that parties are bound by the scope and nature of their arguments made at trial. Evans v. State, 326 Ark. 279, 923 S.W.2d 872 (1996); Campbell v. State, 319 Ark. 332, 891 S.W.2d 55 (1995). In this regard, specific arguments in support of a directed-verdict motion are waived if not made to the trial court and may not be raised for the first time on appeal. Id. Following Evans v. State, supra, we refuse to consider Henderson’s arguments of insufficient evidence made for the first time on appeal.
II. Illegal Arrest and Suppression of Statement
Prior to trial, Henderson moved to suppress his statement to Pulaski County deputy sheriffs as the fruit of the poisonous tree. His point in part was that the underlying arrest was illegal because it was made by deputies from the Pulaski County Sheriffs Department while in Lonoke County, which was outside their territorial jurisdiction. The trial court denied his motion, and he makes the same argument on appeal.
At the suppression hearing prior to trial, Corporal Terry-Ward testified about the circumstances leading up to Henderson’s arrest and his statement to Pulaski County deputy sheriffs. He testified that Gary Harris, after confessing to his involvement in the murder, volunteered to wear a body mike in order to implicate Henderson. Corporal Ward testified that he contacted Ernest Bush, who was a member of the Pulaski County Sheriff s Department and who was also a member of the Metropolitan Little Rock Violent Crimes Joint Task Force (MetRock). Detective Bush had been deputized both as a special agent with the F.B.I. and as a U.S. Marshal. He testified that his MetRock duties often caused him to act in an official capacity outside of Pulaski County, and, thus, he had been deputized throughout the state. Detective Bush testified that he acquired a body recording device from the F.B.I. and received permission to do so from his supervisor, F.B.I. Special Agent Peatross. He testified that he was not told by his supervisor to make an arrest; rather, he was given permission to use the recording device. However, he stated that Special Agent Peatross knew that he would be involved in the investigation of the crime.
Corporal Ward testified that the decision was made to arrest Henderson without a warrant in Lonoke County after overhearing his conversation with Gary Harris. It was made, after discussing the matter with a deputy prosecuting attorney, because Henderson told Harris that he would not be taken alive and that there would be a shootout if the police came to his house. Corporal Ward testified that Henderson was taken into custody due to safety considerations. Shortly after his arrest, Henderson waived his Miranda rights and gave the statement that was the subject of the suppression motion, wherein he admitted doing all of the shooting. His statement to the deputy sheriffs contradicted his testimony at trial because he placed the blame for the fatal shots on Gary Harris.
The central issue presented by this point is what effect, if any, the presence of Detective Bush, who was also a MetRock deputy and U.S. Marshal, had on the legality of a warrantless arrest by deputies of the Pulaski County Sheriff in Lonoke County. The State, citing Logan v. State, 264 Ark. 920, 576 S.W.2d 203 (1979), argues that the arrest was legal because Detective Bush, who was deputized across the state, participated in Henderson’s arrest.
In Logan, a Crittenden County deputy sheriff sought to arrest Logan on charges of aggravated robbery while he was in St. Francis County. In order to effect the arrest, deputy sheriffs from Crittenden County requested the assistance of a St. Francis County deputy sheriff. After the arrest, Logan confessed to the crime and consented to a police search of his apartment. At the suppression hearing and on appeal, Logan sought to exclude his confession and the items seized as the fruit of an illegal arrest. This court dismissed the argument in summary fashion: “We need not discuss these contentions, because it is a fair inference from Davis’s testimony that Sam Hughes, the St. Francis County deputy, participated in the arrest.” Logan v. State, 264 Ark. at 922, 576 S.W.2d at 205.
In the instant case, the State argues that, as in Logan, Detective Bush participated in the arrest, thus avoiding any illegality. The State also cites this court to the standard of review, which carries a presumption in favor of the trial court’s determination that the arrest was legal, with the burden of proving error resting on the appellant. See Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997); Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989). Henderson, however, directs this court’s attention to Perry v. State, 303 Ark. 100, 102, 794 S.W.2d 141, 142-43 (1990), where we stated the blackletter law:
A local peace officer acting without a warrant outside the territorial limits of the jurisdiction under which he holds office is without official power to apprehend an offender, unless he is authorized to do so by state statute. (Citing authority.)
Id. After citing Davis v. Mississippi, 394 U.S. 721 (1969), this court went on to conclude that evidence obtained as a direct result of an illegal detention was subject to the exclusionary rule.
In Perry, this court also listed the four instances where the General Assembly had delegated the authority for law enforcement officers to make an arrest outside of their jurisdictions: (1) “fresh pursuit” cases under Ark. Code Ann. § 16-81-301 (1987); (2) when the police officer has a warrant for arrest, as provided by Ark. Code Ann. § 16-81-105 (1987); (3) when a local law enforcement agency requests an outside officer to come into the local jurisdiction and the outside officer is from an agency that has a written policy regulating its officers when they act outside their jurisdiction, as stated in Ark. Code Ann. § 16-81-106(3)-(4) (Supp. 1995); and (4) when a county sheriff requests that a peace officer from a contiguous county come into that sheriff’s county and investigate and make arrests for violations of drug laws pursuant to Ark. Code Ann. § 5-64-705 (Repl. 1993). Perry v. State, 303 Ark. at 103, 794 S.W.2d at 143. None of those situations applies to the instant case.
At the time of Henderson’s arrest, three things are certain: (1) no federal offense was involved; (2) Detective Bush was not involved in a MetRock operation; and (3) Detective Bush was not given explicit permission by Special F.B.I. Agent Peatross to effect an arrest. While we can infer that he “participated” in the arrest under the reasoning of Logan v. State, supra, absent a federal crime or specific authority from his F.B.I. supervisor to make the arrest, Detective Bush had no authority to arrest Henderson for a state crime in Lonoke County. Hence, the arresting officers only had the authority to arrest that is granted a private citizen. Perry v. State, supra.
Though we hold that Henderson’s arrest was illegal, we still must examine whether that ultimately decides the matter. Before Henderson gave his incriminating statement to the deputy sheriffs in Pulaski County one hour after his arrest in Lonoke County, he was given his Miranda warnings. Thus, the question arises whether the Miranda warnings salvage a statement made by an accused irrespective of the illegality of the arrest. Though neither Henderson nor the State addresses the case of New York v. Harris, 495 U.S. 14 (1990), we feel constrained to do so.
In New York v. Harris, supra, police officers entered Harris’s home without an arrest warrant, transported him to the police station, read him his Miranda rights, and took an incriminating statement. The New York Court of Appeals suppressed the state ment as the fruit of a Fourth Amendment violation, and the Supreme Court reversed regardless of the fact that the arrest was made in Harris’s home without a warrant in violation of Payton v. New York, 445 U.S. 573 (1980). The Court stated:
We hold that, where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton.
Neiu York v. Harris, 495 U.S. at 21.
The case before us is not a Harris situation where the sanctity of the home was at issue. While probable cause clearly existed for Henderson’s arrest before his statement was given, comparable to the circumstances in Harris, the arresting officers had no authority to make an arrest in a different jurisdiction — Lonoke County. To hold otherwise would countenance a procedure where an arresting officer could, with impunity, effect an arrest outside of his county, bring the accused back to his jurisdiction, and take an incriminating statement so long as the arresting officer advised the accused of his Miranda rights before obtaining the statement. We do not believe that Harris goes that far, and we decline to sanction police arrests beyond their territorial borders. The policy considerations behind our decision are significant. As we said in Perry v. State, supra:
The traditional concept of territorial jurisdiction for peace officers is a sound one since a local community is best served by the requirement that local officers familiar with local neighborhoods make arrests in the community. People v. Hamilton, 666 P.2d 152 (Colo. 1983). If such a concept were not followed a Pocahontas policeman could make an arrest in Paragould, a Texas Ranger could make an arrest in Fordyce, and a K.G.B. agent could make an arrest in Fort Smith. Such a “practice would lead to more violence than it would suppress.” McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79 (1906).
Perry v. State, 303 Ark. at 103, 794 S.W.2d at 143.
We hold that the statement of Michael Henderson given to deputy sheriffs in Pulaski County shortly after an illegal arrest in Lonoke County must be excluded. It was, therefore, error to receive it into evidence. Nor can we subscribe to the State’s alternative argument that sufficient evidence remained at trial irrespective of Henderson’s statement to the deputy sheriffs to support a guilty verdict and the sentence. Without Henderson’s statement that he alone fired the fatal shots, the jury would be left with a “swearing match” between Gary Harris and Henderson as to who was the trigger man. Though under his own scenario, Henderson was an accomplice to the killing, we cannot say that his status as the actual killer did not influence the jury’s verdict of capital murder as opposed to first-degree murder or second-degree murder as well as his sentence of life without parole. We reverse and remand this matter for further proceedings.
There is one final matter that may reoccur on retrial. The prosecutor attempted to have Gary Harris testify about what Larry Harris told him about the plan to rob the Littles. Defense counsel objected on hearsay grounds and because the co-conspirator exception did not apply since Larry Harris had not been charged. We agree with the State that statements by a co-conspirator are not hearsay, if made during the course of and in furtherance of a conspiracy. See Ark. R. Evid. 801(d) (2) (v). Moreover, we agree that Rule 801 (d) (2) (v) applies when a conspiracy is proved at trial by evidence independent of the statement regardless of whether the declarant is charged as a conspirator. Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993), cert. denied, 510 U.S. 1197 (1994); Smithey v. State, 269 Ark. 538, 602 S.W.2d 676 (1980).
Reversed and remanded.
Arnold, C.J., Glaze, and Thornton, JJ., dissent.
The jury verdict at sentencing was life without parole for capital murder and six years for attempted capital murder. The judgment and commitment contains only the conviction for capital murder and a sentence of life imprisonment without parole. | [
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Tom Glaze, Justice.
Appellant Allen Polk was charged as a habitual offender with (1) being a felon in possession of a firearm under Ark. Code Ann. § 5-73-103(a)(l) (Supp. 1995), and with two class C misdemeanors, (2) disorderly conduct, and (3) obstructing governmental operations. At a bench trial, the circuit judge found Polk guilty on all charges. Fie sentenced Polk to six years on the felony count and ninety days and a $1,000 fine on the misdemeanor crimes, to run concurrently. On appeal, Polk’s sole argument is that, under Ark. Code Ann. § 5-2-604 (Repl. 1993), commonly labeled the choice-of-evils defense, he was justifiably in possession of the gun found on him when arrested, and asks that his case be remanded for a new trial.
Polk commences his contention by arguing that the constitution and legislation provides for all citizens to defend themselves regardless of their classification. He specifically relies on § 5-2-604(a)(1) and (2) as an affirmative defense, which in relevant part provides as follows:
(a) Conduct which would otherwise constitute an offense is justifiable when:
(1) The conduct is necessary as an emergency measure to avoid an imminent public or private injury; and
(2) The desirability and urgency of avoiding the injury outweigh, according to ordinary standards of reasonableness, the injury sought to be prevented by the law proscribing the conduct.
In arguing § 5-2-604’s applicability, Polk points to his and his fiancee’s (Virginia Irene Johnson’s) testimony where they claimed they met a “John” and his wife at the Arkansas River “somewhere” in North Little Rock. During the initial visit, Polk and Virginia claim they agreed to meet at John’s house. Upon arrival, Polk suggests John wanted to show him some bombs and books on how to make them, and sometime after discussing the subject, “John placed a fake bomb and bomb information or material in Polk’s truck.” Polk said that he complained about John placing the bomb and material in the truck, and John sometime thereafter pulled a gun on him. In self-defense, Polk said he snatched the gun from John. Polk admitted both he and John were drunk. Polk called for Virginia, and during this period, John allegedly had obtained a crowbar, and struck Polk on his arm, fracturing it. Polk shot the gun to scare John, threw the gun in the seat of his truck, and he and Virginia drove away and returned to Virginia’s house in Vilonia in Faulkner County.
After returning to Virginia’s house, Polk said that he called the Faulkner County Sheriffs Office, and upon the officers finding a gun on Polk, they cuffed and arrested him. Polk further testified that he had never intended to keep the gun found on him. In her testimony, Virginia confirmed most of Polk’s story, but she claimed (contrary to Polk’s own testimony) that she would not have called Polk drunk. Virginia added that, when they returned to Faulkner County, Polk retrieved the gun from the truck and took it into her house. She also said she knew Polk had just been released from the penitentiary, but she did not know he was not to possess a weapon.
In sum, Polk’s justifiable defense argument is that, under § 5-2 — 604(a)(1) and (2), having someone pull a gun on him constituted an emergency measure, and the urgency of avoiding the injury outweighed the harm sought to be prevented by § 5-73-103, which prohibits a felon from possessing a firearm. Because he chose to flee and notify the police concerning the firearm, Polk concludes that his conduct is not the type the General Assembly intended to punish.
First of all, Polk’s argument wholly ignores subsection (c) of § 5-2-604, which provides that the justification defense is unavailable if the actor is reckless or negligent in bringing about the situation requiring a choice of evils or in appraising the necessity for his conduct. It has been said that, the choice of evils, or more modernly called the defense of necessity, is a rarely used defense. See Wayne R. LaFave, et al., Criminal Law § 5.4, at 441-450 (2d ed. 1986). We mention, too, Maryland v. Crawford, 521 A.2d 1193 (1987), where the Maryland Supreme Court held that necessity is a valid defense to the crime of unlawful possession of a handgun when five elements are present. The Maryland Court stated the following:
(1) the defendant must be in present, imminent, and impending peril of death or serious bodily injury or reasonably believe himself or others to be in such danger; (2) the defendant must not have intentionally or recklessly placed himself in a situation in which it was probable that he would be forced to chose the criminal conduct; (3) the defendant must not have any reasonable, legal alternative to possessing the handgun; (4) the handgun must be made available to the defendant without preconceived design; and (5) the defendant must give up possession of the handgun as soon as the necessity or apparent necessity ends. We emphasize that if the threatened harm is property damage or future personal injury, the defense of necessity will not be viable; nor can the defense be asserted if the compulsion to possess the handgun arose directly from the defendant’s own misconduct. Maryland v. Crawford, 521 A.2d 1193 (1987). (Emphasis added.)
Consistent with such observation, § 5-2-604 is to be narrowly construed and applied. See Koonce v. State, 269 Ark. 96, 598 S.W.2d 741 (1980).
Here, Polk conceded that, as a parolee, he knew he was not allowed to leave Faulkner County; nonetheless, he did. He had been drinking all day, and admitted he was drunk. Obvi ously, even by his own testimony, Polk had knowingly and recklessly placed himself in a position or in circumstances where he could get into trouble — if for nothing else, for violating parole conditions. Also, our case law is well settled that the trial court was not required to believe Polk’s version of what occurred, especially since Polk had an interest in the outcome of the proceedings. See Patterson v. State, 306 Ark. 385, 815 S.W.2d 377 (1991); Hudson v. State, 294 Ark. 148, 741 S.W.2d 253 (1987).
In summarizing the evidence, the trial judge revealed there were several factors about the case that concerned him. The judge was bothered that “John” could not be identified and that, if Polk’s concern was to give John’s gun to law enforcement, Polk could have traveled a short distance to the North Little Rock Police Department to turn in the firearm or he could have given the weapon to Conway’s or Vilonia’s police. He also could have called his parole officer. From the defense’s testimony, the judge further did not understand how or why the firearm was found in Polk’s possession after it was first placed in Polk’s truck, and then seen in Virginia’s house, if Polk’s only intention was to turn the gun over to the police. To confuse this matter further, the Faulkner County officers testified that they were called regarding a “bomb threat” and that was what the officers said they were investigating when arriving at Virginia’s house — not a firearm. In fact, Polk never mentioned a gun, until an investigating officer asked Polk to take his hand out of his pocket. Only then did Polk reveal he had a gun in his possession.
In conclusion, we believe the record supports the trial court’s holding that Polk was not justified in possessing the firearm, and therefore we affirm. | [
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Per Curiam.
On July 14, 1997, Thomas Travis, counsel for appellants Basilio Reyes and Rogelio Reyes, moved this court to appoint him as counsel nunc pro tunc from November 31, 1995. He states in his motion that “he has not been compensated for his past or future representation in this case.” He further states that his clients refused to sign an affidavit of indigency, and he, accordingly, has attached his own affidavit to his motion attesting to his clients’ indigency. The appeal in the appellants’ case was submitted to this court for consideration on September 11, 1997.
The history of counsel’s representation of the Reyeses on appeal can be gathered from the Supreme Court file in this case. On January 21, 1997, the Reyeses, who are incarcerated, filed their motion for substitution of counsel and attached two affidavits of indigency showing no assets. On February 6, 1997, Thomas Travis moved to withdraw as their counsel and set out in his motion that he had been paid only $3,000 for trial representation and that $2,000 was still owed him plus $1,000 which he paid for the trial transcript. Both motions were denied by this court. Mr. Travis’s motion to be appointed as counsel due to his clients’ indigency was then filed on July 14, 1997.
Though we question the diligence of Mr. Travis in filing his appointment motion, our file in this matter does show that the Reyeses have filed the proper affidavits of indigency in connection with their own motion to substitute counsel. Because the clients’ affidavits establishing indigency have been filed in this appeal, we grant Mr. Travis’s request to be appointed, but only with respect to the appeal. His motion as it relates to appointment nunc pro tunc for representation at trial is denied. It is clear that Mr. Travis was retained for his trial work and compensated in part for that representation. | [
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Per Curiam.
Petitioner Edward G. Partin II has filed a petition for admission to the bar of Arkansas and a motion for consideration of previous record and briefs and request for oral argument.
Petitioner sought admission to the Bar of Arkansas in 1993. He had completed the necessary educational requirements and had passed the Arkansas bar examination. The Board of Law Examiners refused to recommend his admission on the ground that he was not morally qualified. The Board concluded that Petitioner’s efforts at rehabilitation were not complete in view of what members perceived as his lack of candor. On appeal, this court affirmed the Board’s decision. Partin v. Bar of Arkansas, 320 Ark. 37, 894 S.W.2d 906 (1994).
Petitioner again seeks admission to the bar of Arkansas and alleges that he has completed the necessary educational requirements and that he has passed the Arkansas Bar examination and the Multistate Professional Responsibility examination. Petitioner further alleges that he was admitted to the bar of Louisiana on April 25, 1995.
Rule XIII of the Rules Governing Admission to the Bar requires that any application for initial admission shall be submitted to the Executive Secretary of the Board and that the determination of eligibility shall be made by the Board in accordance with Rule XIII. In the event the Board denies eligibility, the applicant may appeal the Board’s decision to this court for review de novo upon the record.
The Board’s decision to deny Petitioner’s previous application for admission to the bar of Arkansas was affirmed by this court in 1995. Partin v. Bar of Arkansas, supra. Pursuant to Rule XIII of the Rules Governing Admission to the Bar, Petitioner must first submit any application for initial admission to the Board for determination of eligibility. This court does not have original jurisdiction of petitions for admission to the bar of Arkansas. Rather, this court’s jurisdiction in connection with applications for admission to the bar is solely for appellate review of the Board’s decisions. Rule XIII of the Rules Governing Admission to the Bar.
The petition for admission to the bar of Arkansas is, therefore, dismissed for lack of original jurisdiction. The motion for consideration of previous record and briefs and request for oral argument is, therefore, moot.
Brown, J., not participating. | [
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W.H. “Dub” Arnold, Chief Justice.
The appellant, Albert Allen Dirickson, was convicted of three counts of attempted capital murder and single counts of attempted rape and residential burglary. He was sentenced to a total of 140 years’ imprisonment for the offenses. Naked, intoxicated, and armed with a hunting knife, appellant unlawfully entered the home of Lyndell and Nedra Martin in DeQueen, Arkansas, on September 5, 1995, and stabbed Mrs. Martin and her eleven-year-old and sixteen-year-old sons. On appeal, the appellant contends that the trial court erred in denying his motions for funds to hire a neuropsychologist and for a continuance to obtain an additional mental evaluation to more folly investigate his diagnosed congenital abnormality, “agenesis of the corpus callosum.” We hold that the trial court did not abuse its discretion in denying appellant’s requests and affirm.
We recently reviewed the guidelines to which we adhere in determining whether the denial of a continuance is error in Miller v. State, 328 Ark. 121, 124, 942 S.W.2d 825, 827 (1997):
The grant or denial of a continuance is within the sound discretion of the trial court, and the decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Turner v. State, 326 Ark. 115, 931 S.W.2d 86 (1996). . . A.R.Cr.P. Rule 27.3 provides:
The court shall grant a continuance only upon a showing of good cause and only for so long as necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case.
The following factors are to be considered by the trial court in deciding a continuance motion: (1) The diligence of the movant; (2) the probable effect of the testimony at trial; (3) the likelihood of procuring the attendance of the witness in the event of a postponement; and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true. Turner, 326 Ark. 115, 931 S.W.2d 86.
The pertinent facts to this appeal are as follows. The felony information was filed in appellant’s case on September 5, 1995. On September 11, 1995, the defense filed a motion giving notice that they intended to raise the defense of mental disease or defect. On this same date, the trial court entered an order committing appellant to the state hospital for a mental evaluation.
While in jail awaiting trial, appellant began complaining of headaches and was seen by Dr. Richard Ridlon, who ordered a CAT scan that was conducted on October 9, 1995. Dr. John Pestaner interpreted the CAT scan and opined that appellant had a dysgenetic corpus callosum. Dr. Pestaner suggested that appellant be evaluated by a neurologist.
On November 22, 1995, the defense filed a motion for continuance on the ground that the mental evaluation had not been completed. On March 1, 1996, the original trial date, the trial court granted the defense motion and set a new trial date of July 1, 1996. Subsequently, on March 27, 1996, appellant was admitted to the state hospital for evaluation.
In a letter dated May 1, 1996, Drs. Michael J. Simon and O. 'Wendall Hall III of the state hospital announced their conclusions that, at the time of the commission of the alleged offenses, appellant did not lack the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law, had the capacity to have the culpable mental state to commit the offenses charged, and was capable of cooperating with an attorney in the preparation of his defense. According to Dr. Simon, a clinical psychologist, despite appellant’s attempts to exaggerate his problems, appellant’s alcohol problem was the most significant factor in his alleged criminal behavior. While in the state hospital, appellant underwent a magnetic resonance imaging scan of the brain, an electroencephalogram, and a full neurological evaluation. The letter further indicated that a neurologist, Dr. Reginald J. Rutherford, had conducted a forensic evaluation of appellant and had determined that he had an “agenesis of the corpus callosum,” an “incidental congenital abnormality” that, in his opinion, would not influence appellant’s mental state or behavior and had “no connection” to his alleged criminal behavior.
At a June 20, 1996, pretrial hearing, appellant’s trial counsel admitted to having received a copy of the state hospital’s May 1, 1996, letter “a few days” afterwards. However, it was not until June 6, 1996, that counsel asked the trial court to order the state hospital to send supporting documents from the mental evaluation for her review. On June 12, 1996, the trial court granted the request.
On June 13, 1996, the defense filed a motion for continuance for the purpose of obtaining and examining appellant’s records from the state hospital. On June 25, 1996, the defense filed another motion for continuance for the purpose of having Dr. Michael Gelbort, a neuropsychologist from Chicago, Illinois, evaluate appellant. On June 26, 1996, the defense filed a motion requesting funds to help pay Dr. Gelbort’s $3,750.00 fee. On June 28, 1996, the defense filed yet another motion for continuance, this time for the purpose of allowing an Arkansas neuropsychologist, Dr. Ronald Huisman, to examine and evaluate appellant. In support of the motions, appellant submitted the affidavits of both physicians. Dr. Gelbort averred that very serious behavioral disorders and discontrol syndromes can occur with agenesis of the corpus callosum. Dr. Huisman averred that appellant had not been adequately evaluated and needed a neuropsychological evaluation. According to Dr. Huisman, there are multiple syndromes associated with appellant’s condition, and approximately one-half of patients with this condition have seizure disorders or mental retardation. The trial court denied appellant’s requests, stating that appellant’s abnormality appeared to have been negated by his intoxicated condition, that Dr. Gelbort had a financial interest in being paid for his opinion, and that it was in the best interests of society for the case to proceed.
Appellant contends that the trial court’s rulings in his case violated the principles espoused in Ake v. Oklahoma, 470 U.S. 68 (1985), in which the Supreme Court held that when a defendant makes a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that the State assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. In Arkansas, the statutory procedures to be followed when the defense of mental disease or defect is raised are found in Ark. Code Ann. § 5-2-305 (Repl. 1993). We have repeatedly held that a defendant’s right to examination under Ake is protected by an examination by the state hospital as provided by this statute. Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992), cert. denied 115 S.Ct. 1126 (1995); Day v. State, 306 Ark. 520, 816 S.W.2d 852 (1991); Coulter v. State, 304 Ark. 527, 804 S.W.2d 348, cert. denied 502 U.S. 829 (1991); Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420, cert. denied 499 U.S. 913 (1990); Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989). An evaluation performed under this section does not normally require a second opinion, Richmond v. State, 320 Ark. 506, 899 S.W.2d 64 (1995), and further evaluation is discretionary with the trial court. Rucker v. State, 320 Ark. 643, 899 S.W.2d 447 (1995). Stated simply, the State is not required to pay for a defendant to shop from doctor to doctor until he finds one who will declare him incompetent to proceed with his trial. Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994). In the present case, appellant was examined at the state hospital, and, thus, the requirements under Ake were satisfied.
Appellant maintains that the State’s own experts, particularly a Dr. Knight, a psychologist at UAMS, evaluated appellant and recommended that he see a neuropsychologist. However, appellant has not abstracted any records that indicate that he was seen by a Dr. Knight, much less any recommendation by a State’s expert that appellant needed to be evaluated by a neuropsychologist. As we have said many times, the record on appeal is confined to that which is abstracted. Newman v. State, 327 Ark. 339, 939 S.W.2d 811 (1997). Moreover, there is nothing in the record to indicate that a Dr. Knight made such a recommendation. It is the appellant’s burden to bring up a record sufficient to show that the trial court erred. Winters v. Eiders, 324 Ark. 246, 920 S.W.2d 833 (1996). For these reasons, we will not consider this portion of appellant’s argument.
Appellant further relies on two cases from the Eighth and Eleventh Circuits; however, a review of the facts in those cases reveals that they are clearly distinguishable. In Starr v. Lockhart, 23 F.3d 1280 (8th Cir. 1994), Starr had been previously placed in institutions for the mentally retarded and had been diagnosed as mildly to moderately retarded. In that case, the Eighth Circuit held that an additional opinion may be justified when it has been shown that further examination could aid the defense. In Cowley v. Stricklin, 929 F.2d 640 (11th Cir. 1991), Cowley had been previously committed to mental institutions some 16 times and had been diagnosed as a schizophrenic. While the appellants in Starr and Cowley had significant histories of mental illness, appellant’s mental history in the case at bar began only after he was jailed for the present offenses. As Dr. Rutherford observed, appellant’s abnormality had gone undiscovered for some twenty-eight years. Thus, appellant’s argument is unpersuasive.
Even if we were to hold that appellant’s evaluation at the state hospital was insufficient, it was appellant’s burden to prove the existence of a mental disease or defect. See Miller, 324 Ark. at 124. He could have attempted to do so as early as October of 1995, when he complained of headaches and his condition was discovered. As in Miller, the defense chose to employ the strategy of waiting to see what the State’s doctors would find before seeking to obtain their own experts for an evaluation. Moreover, appellant’s trial counsel admitted to having received the state hospital’s report “a few days” after it was written on May 1, 1996. However, she waited over one month to request supporting documents on June 6, 1996. In sum, appellant was not diligent in attempting to secure the necessary information on which to build a defense of mental disease or defect. Miller, 328 Ark. at 129.
Appellant has also failed to show that the probable effect of Drs. Gelbort’s and Huisman’s testimony would be to establish that appellant’s condition prevented him from appreciating the criminality of his conduct. See Miller, supra. According to appellant’s trial counsel, Dr. Gelbort was concerned about appellant’s blood alcohol level because it affects the abnormality. The state hospital report indicated that appellant’s alcohol problem was the most significant factor in his criminal behavior. Under these circumstances, the probable effect of Dr. Gelbort’s testimony would have been of little benefit to appellant’s defense.
Based on the foregoing, we hold that the trial court did not abuse its discretion in denying appellant’s motions for expert funds and a continuance.
Affirmed.
Glaze, Imber, and Thornton, JJ. dissent. | [
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David Newbern, Justice.
This is an adoption case in which the natural father of the adopted child challenges the adoption on the ground that he received no notice and did not give his consent. He further contends the adoption was not in the best interest of the child. We affirm the decision.
The appellant, John Wesley Kang, and a woman whose name is now Sharon Lybrand married in 1976. They divorced and then remarried. After the divorce and prior to their remarriage in 1984, Kristen Dyan Lybrand was born to Ms. Lybrand. Mr. King and Ms. Lybrand thereafter divorced again, and the decree did not mention Kristen. Ms. Lybrand married Joseph Lybrand in 1986. In 1987, Ms. Lybrand sued Mr. King alleging that he was the father of Kristen and seeking child support. Mr. King denied paternity, and apparendy the action was dropped by Ms. Lybrand.
In March 1995, Mr. King filed a “visitation motion” in Pulaski County where he resides, asserting that he is the father of Kristen. In May 1995, Mr. Lybrand petitioned the Grant Probate Court to adopt Kristen. On June 13, 1995, Mr. King’s Pulaski County action was dismissed, as venue was improperly laid. It was refiled as a paternity action by Mr. King in Grant County on June 16, 1995. Ms. Lybrand answered and denied Mr. King’s allegation that he was Kristen’s father.
On August 22, 1995, a final adoption order was entered in favor of Mr. Lybrand. On August 31, 1995, Ms. Lybrand moved to dismiss Mr. King’s paternity suit, attaching to her motion the final adoption decree making Kristen the daughter of Mr. Lybrand.
Mr. King moved to set aside the adoption decree and to “reopen” the adoption proceeding. He claimed he was entitled to have notice of the adoption proceeding but had not received notice. The motion to set the adoption aside was granted, and the proceeding was thus reopened. Prior to the ensuing hearing, Ms. Lybrand filed a further response to Mr. King’s paternity action, and she admitted that Mr. King was Kristen’s father.
At the ultimate hearing, there was testimony about acrimony between Ms. Lybrand and Mr. King. The evidence showed that, although Ms. Lybrand allowed the child to spend considerable time with Mr. King’s mother, she attempted to keep Mr. King from seeing the child. Mr. King asserted that he had indeed seen Kristen despite the attempts to keep her away from him and that he had supported her to some extent by reimbursing his mother for gifts and expenditures she had made for Kristen.
The Lybrands contended Mr. King was not entitled to notice of the adoption proceeding because he had not registered as a putative father pursuant to Ark. Code Ann. § 20-18-702 (Repl. 1991) and because he had abandoned or deserted Kristen. The Trial Court’s order dismissed Mr. King’s paternity petition and granted Mr. Lybrand’s adoption petition. Mr. King has raised four points of appeal.
1. Jurisdiction
Mr. King contends that he was not given notice of the initiation of the adoption petition by Mr. Lybrand. He contends the failure to give him notice was fatal to the Trial Court’s “jurisdiction” because of the lack of strict compliance with the adoption statutes requiring such notice. Although he does not say so directly, Mr. Bang’s suggestion seems to be that the Court in that circumstance lacks jurisdiction of the subject matter. That is not so. The cases Mr. King cites have to do with jurisdiction of the person.
In Hughes v. Cain, 210 Ark. 476, 196 S.W.2d 758 (1946), the natural parent of an adopted child petitioned for habeas corpus contending that the adoption was invalid because the natural parents had not been given notice. The writ was granted, and we affirmed. Our holding was that the adoption was void because the nonresident parents of the child had not been given notice by publication as required by statute. We held, “it was necessary that service be obtained by publication as provided in § 256 of Pope’s Digest, . . . before the probate court could acquire jurisdiction of the person of the appellee.” Hughes v. Cain, 210 Ark. at 482, 196 S.W.2d at 760 (emphasis added).
In Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979), we held that lack of notice was not sufficient to void an adoption where the complaining natural parent had entered an appearance in the proceeding. In Schrumm v. Bolding, 260 Ark. 114, 539 S.W.2d 415 (1976), the natural parent of the child sought to be adopted was a minor. We voided the adoption because she had not received service of process. The opposing argument was that she had entered her appearance in the adoption proceeding. We rejected that argument on the ground that, as a minor, she was unable to enter an appearance except through a guardian, and that had not occurred.
The last case cited by Mr. King on the jurisdiction point is Olney v Gordon, 240 Ark. 807, 402 S.W.2d 651 (1966), in which we held a foreign adoption decree entered without notice to the natural parent or evidence of his entry of appearance was void and thus not entitled to full faith and credit. Again, the issue was not jurisdiction of the subject matter.
Mr. King did clearly appear in the adoption proceeding. Instead of asking that it be dismissed for lack of notice to him, he asked that the adoption be set aside and the proceeding reopened. The request was honored, and we have no hesitation in concluding the Trial Court had personal jurisdiction of Mr. King.
2. Putative Father Registry Act
One of the Lybrands’ contentions before the Trial Court with respect to the notice issue was that, as Mr. King had not registered his paternity claim pursuant to the Putative Father Registry Act, Ark. Code Ann. §§ 20-18-701 through 20-18-705 (Repl. 1991 and Supp. 1995), he was not entitled to notice. On appeal, Mr. King argues, as he did before the Trial Court, that the Act is unconstitutional. We decline to address the argument, as the abstract of the record does not demonstrate that any ruling was made on the point. Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997); Vanderpool v. Fidelity & Casualty Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997); Haase v. Starnes, 323 Ark. 263, 915 S.W.2d 675 (1996).
3. Consent
Mr. King contends his consent to the adoption was necessary and was obviously not given. Ark. Code Ann. § 9-9-207 (Repl. 1993) provides:
(a) Consent to adoption is not required of:
(1) A parent who has deserted a child without affording means of identification or who has abandoned a child;
(2) A parent of a child in the custody of another, if the parent for a period of at least one (1) year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree.
“Abandonment” is defined in Ark. Code Ann. § 9-9-202(7) (Repl. 1993) as:
. . . the failure of the parent to provide reasonable support and to maintain regular contact with the child through statement or contact, when the failure is accompanied by an intention on the part of the parent to permit the condition to continue for an indefinite period in the future, and failure to support or maintain regular contact with the child without just cause for a period of one (1) year shall constitute a rebuttable presumption of abandonment.
This definition is relevant to § 207(a)(1), as that provision excuses the necessity of consent from a parent who has “abandoned” a child and was cited by the Trial Court as a ground for granting the adoption despite the lack of consent from Mr. King.
The “abandonment” definition overlaps a bit with the language in § 207(a)(2). Under both provisions, the question is whether the periods of non-communication or non-support resulted “without just cause” or were “justifiable.” The justification proffered by Mr. King is that Ms. Lybrand was the sole reason he was unable to see his daughter.
Adoption statutes are strictly construed, and a person who wishes to adopt a child without the consent of the parent must prove that consent is unnecessary by clear and convincing evidence. In Re Adoption of K.F.H. and K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993); Harper v. Caskin, 265 Ark. 558, 561, 580 S.W.2d 176, 179 (1979)(stating adoption petitioner’s burden is “heavy”). A finding that consent is unnecessary on account of a failure to support or communicate with the child is, however, not reversed unless clearly erroneous. K.F.H, supra. “We view the issue of justifiable cause as factual but one that largely is determined on the basis of the credibility of the witnesses. This court gives great weight to a trial judge’s personal observations when the welfare of young children is involved.” K.F.H, 311 Ark. at 423, 844 S.W.2d at 347.
In analyzing these consent statutes, some additional principles are relevant. A “failure to communicate without justifiable cause” is one that is “voluntary, willful, arbitrary, and without adequate excuse.” K.F.H., 311 Ark. at 421, 844 S.W.2d at 346. The one-year period, moreover, may be any one-year period, not merely the one-year period preceding the filing of the adoption petition. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979). It is not required that a parent fail “totally” in these obligations in order to fail “significantly” within the meaning of the statutes. Pender v. McKee, 266 Ark. at 28, 582 S.W.2d at 934. The duty to support is not excused on the basis of other people’s conduct unless such conduct prevents the performance of the duty of support. Pender v. McKee, 266 Ark. at 31, 582 S.W.2d at 935.
Mr. King’s justification argument must be considered in light of his denial of paternity when support for Kristen was sought by Ms. Lybrand in 1987 and his failure to assert his paternity until 1995. Although Mr. King and his mother testified that he supported Kristen somewhat through his mother and that he sneaked visits with Kristen when she was visiting with his mother, there is no “paper record” of support whatever. Given the deference we accord to the Trial Court’s determination of the credibility of the witnesses, we cannot say it was clearly erroneous to hold Mr. King’s consent was not required.
4. Best interest
In this fourth point, the question is whether the judge was correct to conclude that the adoption was in Kristen’s best interest. We will not reverse a probate court’s decision regarding the best interest of a child to be adopted unless it is clearly against the preponderance of the evidence, giving due regard to the opportunity and superior position of the trial court to judge the credibility of the witnesses. In the Matter of the Adoption of Perkins/Pollnow, 300 Ark. 390, 779 S.W.2d 531 (1989); Dixon v. Dixon, 286 Ark. 128, 689 S.W.2d 556 (1985).
The evidence presented with respect to Mr. Lybrand’s relationship with Kristen was all positive. His marriage to Ms. Lybrand is apparently stable, and he has worked for the same employer for sixteen years and is apparently able to continue supporting his family. There was some evidence that in the past Mr. Lybrand had a drinking problem and exhibited some tendency toward violence, but there was also evidence that he had quit drinking. On the whole, we cannot say that the Trial Court erred in granting Mr. Lybrand’s petition.
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Battue, J.
Robert Bailey alleged that he was in the employment of the St. Louis, Iron Mountain & Southern Railway Company, earning at the rate of one dollar and forty cents a day; that there was due him $28 for labor performed; that he was discharged by the railway company on the 23d day of November, 1906; that, he having requested it, at that time, to send the amount due him to its agent at Newport, it failéd to do so, and he is entitled to his wages until the same be paid. The railway company denied these allegations.
Bailey was in the employment of the railway company, but the evidence is conflicting as to his having been discharged or his having requested that his wages be sent to him at any particular station, or whether he applied for his wages at any particular place after the expiration of seven days after bis discharge; one witness having testified that he issued to him a check for his wages when he quit work which called for his pay ’.if presented at the pay car.
The court instructed the jury as follows:
“Gentlemen of the jury, in this case the suit is for wages which the plaintiff complains the defendant owes, him for work and for penalty for not paying him when it should have been done, within seven days, up until the time suit was brought. I instruct you, to start out with, 'that the verdict in this case should be for the plaintiff in some amount, and that amount is tbe actual time he worked at the sum agreed to be paid him less the board which was the amount agreed upon should be for board. The next question is, after you find that amount, you want to further find and answer these questions that will determine the question as to whether or not there will be a penalty. The first question is: How many days did plaintiff work? You must determine that in order to fix the amount due him for his actual work. What was the amount due plaintiff for such work ? What was the actual amount due plaintiff for labor performed after all such credits were • given ? Did plaintiff voluntarily quit the service of the defendant? If he voluntarily quit, the penalty does not apply. It only applies when he was either refused work or when they discharged him. When they did either of these,.then it was their duty to pay him within seven days by money or check, which might be sent at his request to the agent at some station. The next question is, did plaintiff present to the agent at Newport a request for his pay within seven days after quitting the service or’ at any other time? If so, when? Now you can answer each one of those questions, and it will be the form of the verdict.”
The defendant objected to the giving of the following portions of the court’s charge as above set out, and saved its exceptions to the giving of same, to-wit:
“When they did either of these, then .it was their duty to pay him within seven days by money or check which might be sent at his request to the agent at some station.”
“The next question is, did plaintiff present to the agent at Newport a request for his pay within seven days after quitting the service, or at any other time; if so, when ?”
The court propounded to the jury the following interrogatories to be answered in the verdict, to-wit:
“ist. How man)' days did plaintiff work?
“2d. What was the actual amount due plaintiff for such work ?
“3d. What amount was actually due plaintiff for labor performed after all just credits were given?
“4th. Did plaintiff voluntarily quit the service of defendant?
“5th. Did plaintiff present to the agent at Newport request for his pay within seven days after quitting the service or at any other time, and, if at any other time, when?”
The jury returned the following- verdict:
“ist. We, the jury, find that plaintiff worked 20 days.
“2d. Amount due plaintiff $28.
“4th. That plaintiff was discharged.
“5th. The plaintiff applied within seven days after being discharged at proper place for his money.”
Upon the reading of the verdict, before it was accepted and before the jury was discharged from the case, defendant ohjected to the verdict, and to the form thereof, upon the grounds that it was not responsive to the questions propounded to- the jury, and not responsive to each of said questions, and because the verdict did not respond in any manner to the third interrogatory; but the court overruled the objections, and discharged the jury, to which defendant saved its exceptions. The court rendered a judgment for plaintiff for $28 debt and $92.50 penalty; and the defendant appealed.
The statute provides that when any railroad corporation shall discharge or refuse to further employ any servant or employee thereof, “the unpaid wages of any such servant or employee then earned at the contract rate, without abatement or deduction, shall be and become due and payable on day of such discharge or refusal to longer employ; and any such servant or employee may request of his foreman or the keeper of his time to have the money due him, or a valid check therefor, sent to any station where a regular agent is kept, and if the money aforesaid, or a valid check therefor, does not reach such station within seven days from the date it is so requested, then as a penalty for such non-payment the wages of such servant or employee shall continue from the date of the discharge or refusal to further employ at the same rate until paid.” Acts of 1905. page 538. Under this act the wages of the discharged servant, becomes 'due when he is discharged, and no penalty accrues unT less he requests his foreman or the keeper of his time to have the money due him, or a valid check therefor, sent to a specified station where a regular agent is kept, and the money or check does not reach such station within seven days from the date it is requested. Wisconsin & Arkansas Lbr. Co. v. Reaves, 82 Ark. 377.
The court in this case did not submit to the jury'the question as to whether plaintiff requested his money or check sent to any particular station. The law allows seven' days 'after the request for the railway company to have the money' or check at the specified station. The jury found that he applied within seven days after being discharged. The could errei in rendering judgment for the penalty.
If the appellee will remit within two weeks from .this date so much of the judgment as was rendered for the penalty, the remainder will stand affirmed; otherwise the entire judgment will be reversed, and the cause will be remanded for a new trial. | [
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Hart, J.
This was air action of replevin brought by A. N. Downey before a justice of the peace to recover a mare upon which he had a mortgage. He alleged that there was a balance due of $104.83, a portion of which ($18.48) was interest upon the purchase price of a span of mules. The object of the suit was the foreclosure of the mortgage.
Frank Shaffstall, the defendant, in his answer admitted that there was $86.35 due 01:1 the original mortgage, but pleaded as an offset an account against plaintiff for nursing in his family during the illness of plaintiff and of his mother. .He denied that he owed plaintiff any sum whatever for interest. Defendant gave a bond to retain the property. The judgment in the justice’s court was in favor of the defendant. Upon appeal to the circuit court, there was a trial de novo, and the jury returned the following verdict: “We, the jury, find in favor of the plaintiff a return of the property in question, towit: one bay mare or its value, $105, and we further find that the defendant is due the plaintiff $25.”
Judgment was rendered in accordance with the verdict, and the costs were taxed against the defendant. The defendant filed a motion to retax the costs, and in support of it read from the docket of the justice of the peace the following: (Caption and style of the court omitted.) “On this nth day of February, 1907, comes the parties to this cause and in open court, after court was called, the defendant, Frank Shaffstall, offered thirty dollars ($30.00) to A. N. Downey, and asked that it be accepted, and the suit stopped.”
The court refused to retax the costs. Defendant then filed a motion for a new trial, and, upon it being overruled, appealed to this court.
His first contention is that the court erred in refusing to give to the jury the instructions asked by him. Without setting out the instructions given or refused, it is sufficient to say that we think the theory of the case contended for by the defendant was fully covered by the court’s instruction to-the jury. This is evidenced by the finding of the jury as to the amount due plaintiff by the defendant.
In the selection of the jury to try this cause, Dee Mack, a member of the regular panel of petit jurors was asked whether he was related to either party to the suit. He answered that he was related to the plaintiff, Mr. Downey, but that he did not know 'in what degree. The court pronounced him competent. The defendant excepted to the ruling of the court, and, upon his objection being overruled, peremptorily challenged the juror, and in so doing exhausted his peremptory challenges.
A person selected and returned as a juror is presumed to be qualified and competent to serve, and the burden is upon the challenging party to show to the contrary, who must at least make out a prima facie case. 24 Cyc. 346.
Section 4491 of Kirby’s Digest provides that “no person shall serve as a petit juror who is related to either party to a suit within the fourth degree of consanguinity or affinity.”
The examination of the juror did not disclose that he was related in the prohibited degree. The challenging party should have made out a prima facie case of the juror’s relationship within the prohibited degree by questions asked by the juror or by the offer of other proof. Failing to do this, there was no error in the ruling of the court pronouncing him a competent juror.
We think the transcript from the justice’s docket shows an offer to confess judgment. It is a matter of common knowledge that justices do not keep their records with that accuracy and formality that is generally observed in courts of record. The verdict of the jury in the circuit court is evidence that it was the intention of the defendant to confess judgment; for the amounts are nearly the same, and in either case the verdict is far below the amount claimed by the plaintiff. In Petsinger v. Beaver, 44 Ark. 562, this court held: “When, on appeal to the circuit court, plaintiff recovers less than defendant offered to confess judgment for in the justice’s court, all costs subsequent to the offer must be taxed to the plaintiff.” Therefore the court erred in not granting defendant’s motion to retax the costs.
The court also erred in the form of the judgment. The plaintiff was entitled to the possession of the mare only for the purpose of foreclosing the mortgage. The jury found the balance due him on the mortgage to be $25. The court then should have rendered judgment for the property or the balance due on the mortgage, in accordance with the provisions of section 6869 of Kirby’s Digest.
The judgment is therefore reversed, and .the cause remanded with directions to the court to render judgment on the verdict found by the jury for the mare or the balance found due on the mortgage in accordance with the provisions of section 6869 of Kirby’s Digest, and to adjudge all costs against the plaintiff after the refusal of the offer of the defendant to confess judgment in the justice of the peace court. | [
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Wood, J.,
(after' stating the facts.) It was beyond the scope of the employment of the yardmaster to throw coal 'from appellant’s car in the manner shown by the evidence. Appellant had not invested him with such authority, either real or apparent. The act was not for the benefit of appellant, and was a tort for which appellant was not liable. St. Louis, I. M. & S. Ry. Co. v. Grant, 75 Ark. 579; St. Louis, I. M. & S. Ry. Co. v. Bryant, 81 Ark. 369; Railway Co. v. Bolling, 59 Ark. 395.
The evidence does not show that Lavendusky was upon the public highway. It is not shown that the path where he was at the time of his injury was a part of the public highway. He was therefore a trespasser, Adams v. St. Louis, I. M. & S. Ry. Co., 83 Ark. 300; St. Louis, I. M. & S. Ry. Co. v. Wilkerson, 46 Ark. 513. The appellant owed him no positive duty to exercise ordinary care to protect him from injury. The doctrine that railway companies are liable for injuries to trespassers caused by failing to exercise ordinary care to avoid injuring them after their perilous situation has been discovered can have no application in cases where the servant’s acts causing the injuries are beyond the scope ¡of his employment.
The case of Fletcher v. Baltimore & P. Rd. Co., 168 U. S. 135, relied upon by appellee, is not in point. Fletcher, the plaintiff in error, at the time of his injury was upon a street crossing, where he had the right to be, and where the company owed him the duty to exercise ordinary care to avoid injuring him. Likewise, in the case of St. Louis S. W. Ry. Co. v. Underwood, 74 Ark. 610, the party injured was upon the public street. Other reasons also distinguish these and other cases relied upon by counsel for appellee in his oral argument from the case at bar.
For the reasons expressed the judgment is reversed, and t'he cause is remanded for a new .rial. | [
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Hart, J.,
(after stating the facts). The principal point which appellants urge for the reversal of this case is the giving of the second instruction. The vice of this instruction consists in the fact that it ignores the testimony of appellants to the effect that the supply account was also secured by the mortgage on the mules and wagon. Applying the proceeds of the Brewer note 'to the payment of the $195.00 note under appellee’s theory of the case, there might still be a balance due appellants on the supply account. The second instruction took from the consideration of the jury the question of whether or not the account for supplies had been paid, or was secured by a mortgage on the property in controversy. This error was eliminated from the sixth instruction, which covered the same phase of the case,' but the two instructions are irreconcilable and conflicting. No attempt was made to explain the first instruction in the latter. It can not be known whether the jury found for the appellee because it believed that the Brewer note was given to secure the purchase price of the mules and wagon and was sufficient to pay it, as directed by the second instruction; or because it believed that the mortgage was given to secure both the $195 note and the account for supplies, and that the whole indebtedness had been paid.
An erroneous instruction is not cured by another instruction which is correct, if it can not' be said which influenced the jury. St. Louis, Iron Mountain & Southern Ry. Co. v. Beecher, 65 Ark. 64.
For the error in giving the .second instruction, the judgment is reversed and the cause remanded for a new trial. | [
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■Hart, J.
Plaintiff brought this suit as administrator of the estate of David F. Evans, deceased, and also as next of kin of said deceased, against the defendant to recover damages on account of the killing of said Evans.
The complaint alleges in substance that Evans was struck and killed by a train of the defendant on the night of July 14, 1907; that it was a starlight night, and that the track was perfectly straight, with the view unobstructed for 'two miles or more east of where Evans was struck and killed by the train; that he and his companion were lying asleep on the north side of the track; that after discovering him defendant’s servants in charge of the locomotive negligently failed to give any danger signals or check the speed of the'train, but recklessly ran into him, thereby causing his death.
The railway company answered, making a general denial, and averred that the death of Evans was caused by his own negligence. After hearing the evidence, on motion of the defendam, the court directed the jury to render a verdict for the defendant, and the case is here on appeal.
David F. Evans and T. B. Falls lived at Galla Creek in Pope County. On the night that Evans was killed, they had been to visit the sister of Falls in Knoxville, Johnson County. They were each about 20 years of age. They desired to return home that night. The night train did not stop' at Knoxville, but did stop'at the Junction about two and a half miles west of Knoxville. They walked toward the Junction, and, it being a warm night, .they stopped to rest. Falls went to sleep eight or ten feet from the north side of the track. Falls woke up and noticed that Evans was lying right up- to the end of the ties. He told Evans to get up; that a train was likely to come along and kill him. He remembered Evans raising up. They were waiting for an east-bound train. The body of Evans was lying nearly parallel with the track, and his head was resting on the end of a tie when Falls told him to get up. His head was towards the east. The train which killed him was going west. Falls did not wake up again until the train had half way passed him. Fie jumped up and looked down the track and saw the engineer’s head sticking out of the cab on the side he was on, looking back. Falls then began to look for Evans, but did not find him. He then went back to Knoxville. The next morning, he and the railroad agent went back and found the remains of Evans a rail or two west of where he was lying when he was hit. The track was straight 900 feet or more east of where the two- boys were lying, and there was nothing to obstruct the view of the engineer. The foregoing was the version given by Falls.
George Embrey testified that hé was the engineer in charge of the locomotive that killed deceased; that he was running about thirty-five miles an hour, and was keeping a lookout for people and stock on the track or right of way; that he did not discover that Evans or his companion were human beings until he was severity-five feet from them; that he made no effort to stop the train because they were in the clear, that is to say, that the train could pass without striking them; that he did not have time to stop -after he discovered that they were human beings; that he made a statement at Knoxville the next day in which he said that he saw two men lying beside the track; that he thought they were in the clear, and thought if ’he blew- the whistle he might scare them, and they would jump on the track.
James Evans, the brother of the deceased, testified that he discovered blood and hair on the right side of the cow catcher which resembled the hair of his brother. The testimony also showed that -a train composed of the number of cars of the one in question, could be stopped with safety to passengers in 200 feet, and when running forty miles an -hour in 400 feet.
We -are of the opinion that it was a question for the jury to determine under the evidence whether or not -the defendant railway company exercised the proper care, after discovering the dangerous situation of the deceased, to avoid injuring him. It is only where the facts are undisputed, and are such that reasonable minds may draw but one conclusion from them, that the question of negligence- is one of law for the court. Of course, under the undisputed facts as disclosed by the record, no reasonable man would say that the engineer could have stopped the train in time to have saved the deceased from injury after he discovered his perilous position, but he might have given an alarm by sounding the whistle. No doubt, the -engineer thought he was acting for the safety of deceased in not giving the alarm signal; for he gives as a reason for not doing so that he feared that it would cause the boy to jump towards the track, and that he was in no danger in the position in which he was when first seen. It is probable that the deceased was not awakened, by the noise of the approaching train; for his companion s-ays that -he was not awakened until the train had half way passed him. If the noise of the approach of the train did not awaken him, it is evident that the engineer is mistaken in saying that he was lying -clear of danger from-the passing train; for he was struck by the cow catcher of the locomotive. On the other hand, if the engineer had sounded the whistle, its sharp, shrill warning might have awakened the sleeping boy, and have caused him instinctively to have rolled away from the train. The locomotives of railroad trains are equipped with bell and whistle for sounding danger signals. We are of the opinion that it was a question for the jury whether or not, under the emergency shown by the testimony, the engineer should have used them for that purpose.
This is in accord .with the rule announced by the previous decisions of this court, and special reference is made to the case of the St. Louis, Iron Mountain & Southern Ry. Co. v. Evans, 74 Ark. 407, as being more nearly applicable to the facts of this case.
The judgment is therefore reversed, and the case remanded for -a new trial. | [
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Wood, J.,
(after stating the facts.) This court in Arkansas Southern Rd. Co. v. Loughridge, 65 Ark. 300, held (quoting syllabus) : “Where a railway employee is injured, while in the discharge of his duties, at a point distant from the company’s chief offices, and there is urgent necessity for the employment of a surgeon to render professional services, the conductor, if he is the highest agent of the company on the ground, has authority to bind the company by the employment of a surgeon to render the services required by the emergency.”
This is the language of the court in St. Louis, A. & T. R. Co. v. Hoover, 53 Ark. 377, a case in which a doctor sued the railway company for surgical attendance upon and board of a passenger injured by the company’s train. In the latter case the court held the company not liable, for the reason that “the emergency, which alone could have given the conductor implied authority,” had terminated before the doctor was employed. The-court further said: “The authority existing in such cases is exceptional; it grows out of the present emergency, and the absence — and consequent inability to act — of the railway’s managing agent; its existence can not extend beyond the causes from which it sprang.”
In Northern Central Ry. Co. v. State, 29 Md. 441, a stranger was injured in a collision, and the court said:' “We are.next brought to the question whether the defendant be liable-for the negligence of its agents in their treatment and disposition of the deceased subsequent to the collision. This, we think, free from doubt or difficulty. From whatever cause the collision occurred, after the train was stopped, the injured man was found upon the pilot of defendant’s engine, in a helpless and insensible condition, and it thereupon became the duty’ of its agents in charge of the train to remove him and do it with proper regard to his safety and the laws of humanity. If, in removing and locking up the unfortunate man, though apparently dead, negligence .was committed, whereby death was caused, there is no principle of reason or justice upon which defendant can be exonerated from responsiblity. To contend that the agents were not acting in the scope of their employment in so removing and disposing of the party is to contend that the duty of the defendant extended no farther than to have cast off by the wayside the helpless and apparently dead man without taking, care to ascertain whether he was dead or alive, or, if alive, whether his life could be saved by • reasonable assistance timely rendered.” In Dyche v. Vicksburg, Shreveport & Pac. Rd. Co., 79 Miss. 361, Dyche was a trespasser, and was run over by the company’s train. The company was not negligent in running its train over him, but after the injury the company’s agents took charge of 'him, and undertook to administer to his needs in his wounded condition. The court said: “Assuming the charge of Dyche as it did, it was charged with the duty of common humanity, and the jury should have been allowed to pass upon whether or not it performed this duty. It is to be charged with no higher? degree of duty than that of ordinary humanity, but the jury must settle that on the facts.”
In Marquette & Ontonagon Rd. Co. v. Taft, 28 Mich. 289, at page 297, Judge Cooley said: “There can be no doubt that it is within the scope of somebody’s employment for a railway company to cause a beast which is injured in carriage or run over at a crossing to be picked up and have the attention proper and suitable to its case; and if no one is authorized to do so much for the faithful servant of the company who is in like manner, injured, but all persons in its service are impliedly forbidden to incur on its behalf any expense beyond what may be necessary to remove him out of the way of their trains or machinery — 'even to convey him to his house, or to save his life by binding up a threatening wound, — then, if such is the law, the courts must not hesitate to apply it, even though it be impossible to avoid feeling that it ought not to be the law, and that no business of this extensive and hazardous nature ought to be suffered to be .carried on with no one for the major part of the time impowered to recognize and perform a duty which, at least on moral grounds, is so obvious and imperative. But we do not think (such is the law.” In Yazoo & M. V. Rd. Co. v. Byrd, 42 So. 286, it is said: “Railroads owe to their passengers the consideration and care of ordinary humanity, it matters not how negligent a passenger may have been in producing the injury for which he sues; * * * and if, when injured, the railroad company neglects this care which common humanity would dictate, and the passenger suffers damage, he may recover against the railroad company for its dereliction.”
I have quoted liberally from the above cases to show that the authorities, whether in the case of a stranger and trespasser or of an employee and passenger, hold the company liable for failing to-exercise ordinary care to administer to the absolute needs of the one whose unfortunate injury it has produced, notwithstanding it may have been without fault in producing such injury, and notwithstanding the injury may have been the direct result of the party’s own negligence. In so holding the company' liable in such an emergency, it will be observed that the rationale of the doctrine, whether in the case of a stranger and trespasser, or of an employee or passenger, is found in the duty imposed by the dictates of common humanity. The authorities stress the moral obligation, and find from that the legal duty to alleviate as far as possible .the sufferings and to administer to the necessities which the company has contributed, however innocently, to produce. We confess that if the duty, and the consequent liability for failure to discharge that duty, grow out of the obliga tions which the impulses of our common humanity would suggest and impose, under such circumstances, then we do not see that the status or relationship of the party injured to the party producing the injury could affect the question of the appellee’s right to recover. For, from the humane viewpoint, clearly it could make no difference whether the helpless and unfortunate victim of the accident were trespasser, employee or passenger. We do not here either controvert or approve the doctrine of the above cases, but merely cite them to show the extent to which the authorities have gone. The doctrine of our own court, in the cases cited supra, although announced in cases where an employee and passenger were injured, applies here. It is a question of the authority of the conductor to act for his company. The emergency creates .that authority. Some one, as Judge Cooley holds, must have authority to represent the company under such circumstances. The conductor is the highest agent on the ground, and is in command of the train that did the injury. Before sufficient time had intervened to ascertain whether the accident was caused by the negligence of the company, he certainly had at least the implied authority to protect his company by doing what might be necessary to lessen the damages in the event it should be afterwards ascertained that the company was liable. This authority would be sufficient to bind the company xor his contract with the surgeon, but not for the surgeon’s contract with others.
The judgment is therefore reversed, and the cause is remanded with directions to overrule the demurrer, and for further procedings not inconsistent with this opinion. | [
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PER CURIAM
|TIn 2001, petitioner James E. Smith was found guilty by a jury of two counts of rape for engaging in sexual intercourse with his girlfriend’s daughters when they were both under the age of fourteen. Pe titioner had taken the stand at trial and admitted that he had sex with the victims, but he contended that they were eighteen and twenty years old when the acts occurred and that both had consented. Petitioner was sentenced to a term of twenty years’ imprisonment for each count to be served consecutively. The Arkansas Court of Appeals affirmed. Smith v. State, CR02-228, 2003 WL 57416 (Ark. App. Jan. 8, 2003) (unpublished) (original docket no. CACR 02-228).
After the judgment was affirmed, petitioner sought postconviction relief in the trial court in a petition pursuant to Arkansas Rule of Criminal Procedure 37.1 (2001). The petition was denied, and we affirmed the order. Smith v. State, CR-05-294, 2006 WL 418721 (Ark. Feb. 23, 2006) (unpublished per curiam).
In 2012, petitioner .filed in this court a pro se petition approximately .200 pages in length 12to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. The petition was denied. Smith v. State, 2012 Ark. 403, 2012 WL 5304089 (per curiam).
Now before us is petitioner’s second petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis, which is also approximately 200 .pages in length. In the petition, petitioner again repeats the claims for relief alleged in the first petition, albeit in somewhat different language, pertaining to inconsistent statements made by the victims. The State has filed a response in which it urges this court to deny relief on the basis that the second petition constitutes an abuse of the writ in that it reiterates claims already settled when this court denied the first petition.
We first noté that a petition for leave to proceed in the trial court is necessary because the circuit court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Henderson v. State, 2014 Ark. 180, 2014 WL 1515878 (per curiam); Cloird v. State, 2011 Ark. 303, 2011 WL 3135958 (per curiam).
A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Pitts v. State, 2014 Ark. 132, 2014 WL 1096185 (per curiam); Martin v. State, 2012 Ark. 44, 2012 WL 310981 (per curiam). The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the circuit court and which, through no negligence. or fault of the defendant, was not brought forward before rendition of judgment. Camp v. State, 2012 Ark. 226, 2012 WL 1877371 (per curiam). To warrant a writ of error coram nobis, a petitioner has the burden of bringing forth some fact, extrinsic to the ' | ..record, that was not known at the time of trial. Cloird, 2011 Ark. 303, 2011 WL 3135958. Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Cherry v. State, 2014 Ark. 81, 2014 WL 689026 (per curiam).
In the instant petition, petitioner raises some claims of trial error and argues that the evidence was insufficient to sustain the judgment, but the allegations primarily pertain to petitioner’s claim that the victims were not truthful in their testimony at trial and in their statements to the police and that the inconsistencies in the victims’ statements prove that he was innocent. He also contends, as he did in the original petition, that the prosecution withheld the statements of the victims from the defense in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), thereby denying the defense the opportunity to compare the statements with the police report concerning the offenses. Petitioner asserted in his first petition that he lied when he told the police, and later testified, that he had consensual sex with the victims after they had turned eighteen to hurt their mother. In the instant petition, he argues that he was actually innocent. Petitioner does not fo- • cus, as he did in the first petition, on the claim that the victims were not under the age of fourteen when the offenses occurred and that his sexual conduct with the victims occurred after their eighteenth birthdays. Instead, he contends that the victims were untruthful. The same handwritten statements by the victims that were appended to the first coram-nobis petition are appended to this latest petition.
As with the original petition, petitioner has not stated a ground for the writ. This court has previously recognized that a writ of error coram nobis was available to address errors found in only four categories: insanity at the time of trial, a coerced guilty plea, material evidence 1 ¿withheld by the prosecutor, or a third-party confession to the crime during the time between conviction and appeal. Philyaw v. State, 2014 Ark. 130, 2014 WL 1096201 (per curiam); Camp, 2012 Ark. 226, 2012 WL 1877371. Allegations of a Brady violation fall within one of the four categories of error that this court has recognized. Camp, 2012 Ark. 226, 2012 WL 1877371; Hogue v. State, 2011 Ark. 496; 2011 WL 5589257 (per curiam). The fact that a petitioner alleges a Brady violation alone is not sufficient to provide a basis for error-coram-nobis relief. Camp, 2012 Ark. 226, 2012 WL 1877371. Assuming that the alleged withheld evidence meets the requirements of a Brady violation and is both material and prejudicial, in order to justify issuance of the writ, the withheld material evidence must also be such as to have prevented rendition of the judgment had it been known at the time of trial. Id. To merit relief, a petitioner must demonstrate that there is a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the information been disclosed at trial. Id. It is a petitioner’s burden to show that the writ is warranted. Scott v. State, 2009 Ark. 437, 2009 WL 3047239 (per curiam). This court will grant permission for a petitioner to proceed with a petition for writ of error coram nobis only when it appears that the proposed attack on the judgment is meritorious. Hogue, 2011 Ark. 496, 2011 WL 5589257. We are not required to accept the allegations in a petition for writ of error coram nobis at face value. Charland v. State, 2013 Ark. 452, 2013 WL 5968924; Goff v. State, 2012 Ark. 68, 398 S.W.3d 896 (per curiam).
The evidence contemplated in Brady is “evidence material either to guilt or punishment.” 373 U.S. at 87, 83 S.Ct. 1194. The Court later defined the test for material evidence in the context of a Brady violation as being “whether there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would be different.” Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); see also Lacy v. State, 2010 Ark. 388, 377 S.W.3d 227. To establish a Brady violation, three elements are required: (1) the evidence at issue must be favorable to the accused, either because it is exculpate- ry or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; (3) prejudice must have ensued. State v. Larimore, 341 Ark. 397, 404, 17 S.W.3d 87, 91 (2000); see Lee v. State, 340 Ark. 504, 11 S.W.3d 553 (2000). This court has recognized that the withholding by the prosecution of material evidence is a ground for reinvesting jurisdiction in the trial court to consider a writ of error coram nobis. See Buckley v. State, 2010 Ark. 154, at 1, 2010 WL 1255763 (per curiam).
The crux of petitioner’s argument is that the victims gave inconsistent statements that would have cast doubt in the minds of the jurors as to whether he had engaged in sexual relations with the victims. The evidence adduced at trial against petitioner was overwhelming. Both victims testified that petitioner had sexual intercourse with them frequently when they were in elementary school, below the ages of twelve. Petitioner conceded in cross-examination at trial that he had engaged in sexual relations with the victims but only after each one seduced him within a two-week period when they were adults over the age of eighteen. It was the jury’s task to assess the credibility of the witnesses. See Laswell v. State, 2012 Ark. 201, 404 S.W.3d 818. The significance of the inconsistent statements that petitioner alleges were hidden from the defense must be weighed against the totality of the evidence to determine if the statements at issue would have prevented rendition of the judgment had the existence of those documents been known at the time of trial. Goff, 2012 Ark. 68, 398 S.W.3d 896; Sanders v. State, 2011 Ark. 199, 2011 WL 1687837 (per curiam). We consider the cumulative effect of the allegedly suppressed evidence to determine | fiwhether the evidence that was alleged to have been suppressed was material to the guilt or punishment of the defendant. Goff, 2012 Ark. 68, 398 S.W.3d 896. Here, the victims’ testimony was sufficient to establish that they had been raped at ages well below fourteen. While petitioner asserts that there were myriad inconsistencies between the victims’ hand-written statements and their testimony at trial, petitioner has not shown any specific inconsistency between the statements and the testimony that was substantial enough to impeach the victims’ testimony that they had been raped almost daily beginning at a very young age. Petitioner has not demonstrated a Brady violation that warrants issuance of a writ of error coram nobis.
As he did in the first petition, petitioner argues throughout his petition that the inconsistent statements of the victims rendered the evidence insufficient to sustain the judgment. The issue is not cognizable in a coram-nobis proceeding. Philyaw v. State, 2014 Ark. 130, 2014 WL 1096201. The sufficiency of the evidence and the credibility of witnesses are matters to be addressed at trial. Id.
The petition before us also contains a number of assertions that amount to allegations of mere trial error. Such allegations by their very nature constitute issues known at the time of trial that were addressed, or could have been addressed, at that time. Such claims are not grounds for the writ. Anderson v. State, 2012 Ark. 270, 423 S.W.3d 20 (per curiam). This applies even to issues of trial error of constitutional dimension that could have been raised in the trial court. Travis v. State, 2014 Ark. 82, 2014 WL 689056 (per curiam).
After examining the claims raised in the petition, we conclude that .petitioner’s successive application for coram-nobis relief in this court is an abuse of the writ in that he alleges no fact |7sufficient to distinguish his claims in the instant petition from the claims in the first. He did not establish in the first petition that there was any basis for the writ, and his reassertion of largely the same claims in the second petition is a misuse of the remedy. Accordingly, the petition is dismissed. Rodgers v. State, 2013 Ark. 294, 2013 WL 3322344 (per curiam) (“[A] court has the discretion to determine whether the renewal of a petitioner’s application for the writ, when there are additional facts presented in support of the same grounds, will be permitted.”); Jackson v. State, 2010 Ark. 81, 2010 WL 1006491 (per curiam) (citing Jackson v. State, 2009 Ark. 572, 2009 WL 3788895 (per curiam)); see also United States v. Camacho-Bordes, 94 F.3d 1168 (8 th Cir.1996) (holding that res judi-cata did not apply to bar a second petition for writ of error coram nobis, but abuse-of-writ doctrine was applied to subsume res judicata).
Petition dismissed.
. The petition was ’assigned the docket number for the direct appeal of the judgment of conviction. | [
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LARRY D. VAUGHT, Judge
|, At the conclusion of this condemnation case, the Circuit Court of Benton County entered a judgment awarding attorney’s fees to landowners, appellees Larry Mu-ruaga, Kathy Muruaga, and La-De, LLC (s/k/a De-La, LLC) (collectively “the Mu-ruagas”), against appellant, City of Siloam Springs, Arkansas (“the City”). On appeal, the City argues that the trial court ■ erred as a matter of law in awarding attorney’s fees against it in the absence of statutory authority. The City also argues that the trial court clearly erred in finding that it assumed state liability for attorney’s fees. We agree with both points and reverse.
On September 1, 2011, the Arkansas State Highway Commission (ASHC) filed a complaint and a declaration of taking against the Muruagas, stating that it was taking title to the Muruagas’ real property pursuant to its power of eminent domain under the authority of Arkansas Code Annotated sections 27-67-301 to -321 (Repl. 2010). In the declaration, the ASHC 12stated that just compensation for the real property being condemned was $13,950, which was placed in the court’s registry. An order of possession was entered on September 9, 2011, granting the ASHC the right of immediate possession of the property pursuant to sections 27-67-301 to - 309. The Muruagas answered, claiming that they were entitled to just compensation for the condemned property in excess of the amount offered by the ASHC, and they requested a jury trial.
On June 8, 2012, an order substituting the City for ASHC was entered. The order stated that the ASHC filed the condemnation action, the City should be substituted as the proper plaintiff, and the ASHC was dismissed from the action. The order directed the City to file an amended complaint setting forth its condemning authority. Finally, the order expressly stated that the Muruagas consented to the substitution of the City.
As directed, the City, on January 7, 2014, filed an amended complaint for condemnation and an order of immediate possession. The City alleged that it was authorized to proceed with condemnation under the authority granted to municipalities pursuant to Arkansas Code Annotated sections 18-15-301 to -309. The City sought immediate possession of the property and stated that compensation for the taking, $13,950, had been deposited in the court’s registry.
The Muruagas answered the City’s amended complaint. They admitted that the City was proceeding pursuant to sections 18-15-301 to -309. The Muruagas, however, denied that the amount of money in the court registry was just compensation for the taking.
|SA trial was held on February 20, 2014, and the jury rendered a verdict in favor of the Muruagas, finding that they were entitled to just compensation in the amount of $22,253. On February 28, 2014, the Mu-ruagas filed a motion for attorney’s fees pursuant to section 27-67-317(b).
On May 6, 2014, the trial court entered a judgment detailing the jury verdict and awarding the Muruagas attorney’s fees. That same day, the trial court entered a separate order granting the Muruagas’ motion for attorney’s fees. The trial court found that pursuant to the authority and provisions of sections 27-67-801 to -821, the Muruagas’ property was acquired by the ASHC and that the City affirmatively sought and received court approval to assume the ASHC’s liability for just compensation owed.
The City’s first argument on appeal is that section 27-67-317(b) cannot support the attorney’s-fees award as a matter of law. Our standard of review for issues of statutory construction is well settled:
We review issues of statutory construction de novo. We are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. When reviewing issues of statutory interpretation, we keep in mind that the first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. When a statute is clear, however, it is given its plain meaning, and this court will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used.
City of Little Rock v. Carpenter, 374 Ark. 511, 516-17, 288 S.W.3d 647, 651 (2008) (citing Harris v. City of Fort Smith, 366 Ark. 277, 280, 234 S.W.3d 875, 878 (2006)).
USection 27-67-317(b) provides:
If the compensation finally awarded exceeds the amount of money deposited by ten percent (10%) or more, the court shall enter judgment against the State of Arkansas and in favor of the party entitled thereto for the amount of the deficiency and shall award the party entitled to judgment its costs, expenses, and reasonable attorney’s fees incurred in preparing and conducting the final hearing and adjudication, including without limitation the cost of appraisals and fees for experts.
Ark. Code Ann. § 27-67-317(b) (Supp. 2013) (emphasis added). The plain meaning of the language used in section 27-67-317(b) authorizes attorney’s fees against the State of Arkansas. The language of this statute does not authorize attorney’s fees against the City. Our supreme court has said that attorney’s fees are not allowed except where expressly provided for by statute. Harris, 366 Ark. at 280, 234 S.W.3d at 878. Therefore, we hold that the trial court erred as matter of law in granting the Muruagas’ motion for attorney’s fees against the City based on section 27-67-317(b).
The City’s second point on appeal is that the trial court clearly erred in finding that the City assumed ASHC’s liability under sections 27-67-301 et seq.— including liability for attorney’s fees authorized in section 27-67-317(b) — to the Muruagas. A decision to grant or deny a motion for attorney’s fees will not be set aside absent an abuse of discretion by the trial court. Ellis v. Ark. State Highway Comm’n, 2010 Ark. 196, at 8, 363 S.W.3d 321, 326. While the decision to award attorney’s fees and the amount awarded are reviewed under an abuse-of-discretion standard, we review factual findings by a trial court under a clearly erroneous standard of review. Id, 363 S.W.3d at 326.
We agree that the trial court’s finding that the City assumed the liabilities of the ASHC is clearly erroneous. There are no facts in this case supporting the trial court’s conclusion that | Bthe City assumed the liabilities of ASHC under sections 27-.67-301 to -321. The City could not have and never stated that it was proceeding pursuant to state-condemnation authority authorized in sections 27-67-301 et seq.' The order substituting the City for the ASHC as the plaintiff does not provide that the City assumed the liabilities of the ASHC. When the City subsequently filed its amended complaint, it averred that it was proceeding under the authority of a different statute — sections 18-15-301 to - 309. The City consistently and expressly stated that it was proceeding under the authority granted to municipalities in sections 18-15-301 et seq.
Significantly, the Muruagas, in their answer to the City’s amended complaint, admitted the allegation that the City was proceeding under the municipal-condemnation authority found in sections 18-15-301 et seq. The Muruagas did not lodge any objection to the City proceeding under sections 18-15-301 to -309 until after the jury’s verdict. These facts demonstrate that the Muruagas admitted and agreed to the City’s position throughout the case— until they filed their posttrial motion for attorney’s fees. Accordingly, we hold that the trial court clearly erred in finding that when the City was substituted as plaintiff for the ASHC, the City assumed the ASHC liabilities for attorney’s fees pursuant to section 27-67-317(b).
Reversed.
Harrison and Whiteaker, JJ., agree.
. The order states that the City moved for the ' substitution of party; however, the motion is not in the record. The order further states that there was no objection to the entry of the order,
. Under sections 18-15-301 et seq., a municipal corporation has the power and right of eminent domain. Ark. Code Ann. §§ 18 — 15— 301 to -309 (Repl. 2003 & Supp. 2013). Section 18-15-307(a), which governs compensation for and possession of condemned property, does not authorize an award of attorney’s fees. Ark. Code Ann. § 18-15-307(a) (Repl. 2003). | [
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PER CURIAM
|TIn 2009, appellant Danny Wright entered a plea of guilty to kidnapping and stalking in the first degree. He was sentenced to serve an aggregate sentence of 180 months’ imprisonment with suspended imposition of a sentence of 60 months’ imprisonment.
In 2011, appellant filed in the trial court a motion to withdraw the guilty plea, which constituted a request for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2009). See Bell v. State, 2011 Ark. 379, 2011 WL 4396975 (per curiam). The trial court denied the motion, and appellant appealed to this court. He subsequently filed a motion to dismiss the appeal, which we granted on January 26, 2012.
In 2013, appellant filed in the trial court a pro se petition for writ of error coram nobis. In the petition, he alleged that he was “coerced, however subtly,” into pleading guilty by threats from his retained counsel that he would receive a life sentence if he elected to go to trial. He further contended that he was advised by counsel that he would only be required to serve one-Lthird of his sentence before being eligible for parole, but he later learned that a prior conviction in Texas in 1995 for attempted murder would obligate him to serve 100 percent of his sentence. The trial court rejected the allegations as grounds for issuance of a writ of error coram nobis, and appellant brings this appeal. He reiterates in his brief the claims raised in the petition as grounds for reversal of the- order.
The standard of review of a denial of a petition for writ of error coram nobis is whether the circuit court abused its discretion in denying the writ.. Wilburn v. State, 2014 Ark. 394, 441 S.W.3d 29 (per curiam). An abuse of discretion occurs when the circuit court acts arbitrarily or groundlessly. Nelson v. State, 2014 Ark. 91, 431 S.W.3d 852. We do not find cause to reverse the trial court’s order.
A writ of error coram nobis is an extraordinarily rare remedy more known for its denial than its approval. Millsap v. State, 2014 Ark. 493, 449 S.W.3d 701 (per curiam) (citing Cromeans v. State, 2013 Ark. 273, 2013 WL 3179379 (per curiam)). Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Greene v. State, 2013 Ark. 251, 2013 WL 2460096 (per curiam). The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the circuit court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Id. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Mooney v. State, 2014 Ark. 453, 447 S.W.3d 121 (per curiam); Burks v. State, 2013 Ark. 188, 2013 WL 1858857 (per curiam).
The writ is allowed only under compelling circumstances to achieve justice and to address |serrors of the most fundamental nature. Cromeans, 2013 Ark. 273. We have held that a writ of error coram nobis is available to address certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Greene, 2013 Ark. 251.
We first note that, to the degree that appellant’s allegations could be construed as claims of ineffective assistance of counsel, such allegations are not cognizable in a coram-nobis proceeding. Assertions of inadequate counsel with respect to entry of a guilty plea are properly brought pursuant to Rule 37.1. Schrader v. State, 2014 Ark. 379, 441 S.W.3d 1 (per curiam). We have consistently held that a petition for writ of error coram nobis is not a substitute for raising claims of ineffective assistance of counsel in a timely petition under the Rule. McArthur v. State, 2014 Ark. 367, 439 S.W.3d 681 (per curiam).
As to the issue concerning whether appellant’s plea was coerced, appellant did not demonstrate that his plea was obtained through intimidation, coercion, or threats inasmuch as the petition did not allege that the plea was the result of fear, duress, or threats of mob violence as previously recognized by this court as cognizable in coram-nobis relief. See Weekly v. State, 2014 Ark. 365, 440 S.W.3d 341 (per curiam). The mere fact that appellant’s trial counsel informed him that he could receive a more severe penalty if he went to trial did not rise to the level of coercion within the purview of a coram-nobis proceeding. Nelson, 2014 Ark. 91, 431 S.W.3d 852.
While appellant contends that his attorney, the prosecution, and the trial court all knew |4at the time the plea of guilty was entered that he would be required to serve 100 percent of his sentence, he offered no proof that either the prosecution or the trial court was aware of the 1995 Texas conviction, and appellant did not allege that the prosecution or the court made any statements that appellant would be eligible for parole. Moreover, the facts concerning statutes applicable to appellant’s potential parole eligibility were public record and not a withheld or hidden fact. See Morgan v. State, 2013 Ark. 341, 2013 WL 5306051 (per curiam). Clearly, the fact that appellant had a prior conviction in 1995 was known to him. Furthermore, we have specifically held that such claims do not demonstrate that there was some fundamental error of fact extrinsic to the record and that allegations pertaining to a petitioner’s parole-eligibility status do not fit within one of the four categories for coram-nobis relief. Davis v. State, 2012 Ark. 228, 2012 WL 1877350 (per curiam). We have also held that the Arkansas Department of .Correction’s calculation of a petitioner’s parole-eligibility date is not a ground for granting a writ of error coram nobis. Id.
As there was no fact extrinsic to the record cited by appellant that could not have been known at the time that his plea of guilty was entered, he did not state a ground for the writ. See Millsap, 2014 Ark. 493, 449 S.W.3d 701 (citing Demeyer v. State, 2013 Ark. 456, 2013 WL 5968928 (per curiam)). Accordingly, the trial court did not err in declining to issue the writ.
Affirmed.
. Even if counsel had been aware of the 1995 conviction, appellant’s argument that he was not advised properly by his attorneys when he entered his plea was a claim of ineffective assistance of counsel that should have been addressed in a timely Rule 37.1 proceeding. See State v. Tejeda-Acosta, 2013 Ark. 217, 427 S.W.3d 673. | [
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Per Curiam.
In granting the State’s motion to release the transcript, we refer to our per curiam order of March 19, 1997, in Ivy v. State, 327 Ark. 683, 939 S.W.2d 843 (1997), in which we denied Mr. Ivy’s request to unseal the records, but allowed references to be made to them in a Rule 37 petition that we required to be submitted under seal. The State is also bound by this procedure and should be allowed access to the transcript of the hearing for the purposes of preparing its brief, subject to the provision of our March 19 order that the records and references to them not be released to anyone other than the Court, the parties to this appeal, and the parties’ attorneys. | [
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Donald L. Corbin, Justice.
This is an appeal by Appellant Patricia Love of the order by the Union County Circuit Court denying the award of attorney’s fees in her case against Appellee Smackover School District involving the Teacher Fair Dismissal Act of 1983, Ark. Code Ann. §§ 6-17-1501 to -1510 (Repl. 1993). This is the second appeal of this case. In the first appeal, this court reversed the trial court’s ruling that Appellant was not a “teacher” as contemplated by the Act and remanded the case to determine the amount of compensation to which she was entitled. Love v. Smackover Sch. Dist., 322 Ark. 1, 907 S.W.2d 136 (1995). Jurisdiction of this appeal is therefore properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(10) (as amended by per curiam July 15, 1996).
Pursuant to this court’s mandate, the Union County Circuit Court held a hearing on June 19, 1996, to determine Appellant’s damages pursuant to the mandate. The trial court ruled that Appellant was entitled to judgment against Appellee for $6,893.36 plus interest. The trial court also granted Appellant reinstatement as a half-time teacher for the 1996-97 school year. Appellant requested attorney’s fees, but the trial court denied her request holding that such fees are not authorized under the Teacher Fair Dismissal Act, referring to the trial court’s previous decisions in other Teacher Fair Dismissal act cases as well as the recent decision of Piggee v. Jones, 84 F.3d 303 (8th Cir. 1996). In Piggee, the United States Court of Appeals, Eighth Circuit, held that a violation of the Teacher Fair Dismissal Act was not a breach of contract claim for which attorney’s fees may be awarded under Ark. Code Ann. § 16-22-308 (Repl. 1994).
The sole issue presented by this appeal is whether attorney’s fees are available in an action brought under the Teacher Fair Dismissal Act as contemplated by section 16-22-308. We conclude that attorney’s fees are available and we reverse the ruling of the trial court and remand this case to determine whether in this instance attorney’s fees are warranted.
The American rule, which is the rule observed in Arkansas, is that attorney’s fees are not chargeable as costs in litigation unless specifically permitted by statute. Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990); Millsap v. Lane, 288 Ark. 439, 706 S.W.2d 378 (1986); see Hall v. Thompson, 283 Ark. 26, 669 S.W.2d 905 (1984); Harper v. Wheatley Implement Co., Inc., 278 Ark. 27, 643 S.W.2d 537 (1982). Section 16-22-308 provides:
In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney’s fee to be assessed by the court and collected as costs.
This court has previously determined that an action brought pursuant to the Teacher Fair Dismissal Act is a civil action within the meaning of section 16-22-308. Sosebee v. County Line Sch. Dist., 320 Ark. 412, 897 S.W.2d 556 (1995). Likewise, a claim for “labor or services” is within the meaning of the statute and attorney’s fees are allowed for such claim under section 16-22-308. City of Fort Smith v. Driggers, 305 Ark. 409, 808 S.W.2d 748 (1991). In reliance upon those two decisions, the court of appeals recently determined that the subject matter of the underlying litigation is solely dispositive of whether section 16-22-308 may be invoked. Junction City Sch. Dist. v. Alphin, 56 Ark. App. 61, 938 S.W.2d 239 (1997). In Alphin, the court of appeals reversed the trial court’s disallowance of attorney’s fees to a teacher who prevailed in an action brought pursuant to the Teacher Fair Dismissal Act, where the disallowance was based on the Act’s omission of a procedure to award attorney’s fees.
Similarly, in Hall v. Kingsland Sch. Dist., 56 Ark. App. 110, 938 S.W.2d 571 (1997), the court of appeals determined that the trial court failed to exercise discretion to either award or deny attorney’s fees and reversed and remanded to determine whether fees were warranted. In that case, the trial court had found that because the proceeding was brought pursuant to the Teacher Fair Dismissal Act, which makes no specific provision for attorney’s fees, the motion for attorney’s fees should be denied. The teachers argued on appeal that the trial court erred in finding that the Act’s failure to mention attorney’s fees prohibits consideration of an award of fees to the prevailing party. The court of appeals held that while the Act does not expressly provide for the award of attorney’s fees, an award is nonetheless permissible under section 16-22-308.
In the first appeal of the present case, this court determined that Appellant had a written contract with the school board which entitled her to rights under the Teacher Fair Dismissal Act. Love, 322 Ark. 1, 907 S.W.2d 136. We now determine that actions brought pursuant to that Act are actions in contract for labor or services such that attorney’s fees may be awarded by the trial court pursuant to section 16-22-308, the general statute authorizing attorney’s fees. We further conclude that the Eighth Circuit’s decision in Piggee, decided before this court had definitively spoken on this issue, was an erroneous interpretation of this State’s law.
Although the award of attorney’s fees is discretionary, see, e.g., Chrisco, 304 Ark. 227, 800 S.W.2d 717, here, the trial court did not exercise its discretion when it declined to award Appellant attorney’s fees. Because we conclude that attorney’s fees are recoverable in a Teacher Fair Dismissal Act action, we reverse and remand this case to the trial court to determine if an award of attorney’s fees is warranted. | [
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Donald L. Corbin, Justice.
Appellant Paul Steven Jones appeals the judgment of the Drew County Circuit Court convicting him of possession of a controlled substance (cocaine) and sentencing him to a total of ten years’ imprisonment in the Arkansas Department of Correction, with imposition of all but fifty-three months suspended. Appellant asserts that the trial court erred by denying the motion to dismiss for lack of speedy trial. Because this appeal involves an interpretation of our Court Rules, our jurisdiction is pursuant to Ark. Sup. Ct. R. l~2(a)(17)(vi). We affirm.
Appellant was arrested on May 27, 1994. Later, an amended information was filed charging him with possession of a controlled substance (cocaine) with intent to deliver and felon in possession of a firearm. There were four orders entered of record by the trial court, which excluded various periods of time from the calculation of time for a speedy trial. The trial was held on August 17, 1995. Before the jury had been selected, Appellant made an oral motion to dismiss the charges for lack of a speedy trial. The motion was denied, and Appellant was tried on both charges and convicted of possession of cocaine.
Appellant argues that pursuant to A.R.Cr.P. Rules 28.1 and 28.2, he was entitled to be tried within twelve months from the date of his arrest, excluding any periods of delay authorized by Rule 28.3. When a defendant is not brought to trial within a twelve-month period, the State has the burden of showing the delay was legally justified. Hulsey v. Smitherman, 328 Ark. 234, 943 S.W.2d 568 (1997). Once a defendant has made a prima facie showing of a violation of Rule 28.1, the State bears the burden of showing that there has been no violation, in that some of the time comprising the one-year period provided in the rule is to be excluded as “legally justified.” Id. at 239, 943 S.W.2d at 570. 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. Tanner v. State, 324 Ark. 37, 918 S.W.2d 166 (1996). The burden is on the courts and the prosecutors to see that trials are held in a timely fashion. Id. Under Rule 28.2, the speedy-trial period commences to run “without demand by the defendantf.]” Id. at 42, 918 S.W.2d at 169.
Appellant was tried on a date eighty-two days beyond the twelve-month constraint of Rule 28.1. He thus established a prima facie case that a speedy-trial violation had occurred. The burden then shifted to the State to show that the delay was the result of Appellant’s conduct or was otherwise legally justified. See Cupples v. State, 326 Ark. 31, 929 S.W.2d 150 (1996). The pertinent inquiry on appeal is whether there were excludable periods of time in excess of eighty-two days.
Rule 28.3(i) provides that all excludable periods shall be set by the court in a written order or docket entry. Goston v. State, 326 Ark. 106, 930 S.W.2d 332 (1996). A trial court should enter written orders or docket notations at the time continuances are granted to detail the reasons for the continuances and to specify, to a day certain, the time covered by such excluded periods. Hicks v. State, 305 Ark. 393, 808 S.W.2d 348 (1991). However, a trial court’s failure to comply with Rule 28.3(i) does not result in automatic reversal. Goston, 326 Ark. 106, 930 S.W.2d 332.
Rule 28.3 provides that certain periods of time are excludable from computing the time for trial. Notably, Rule 28.3(c) provides:
The period of delay resulting from a continuance granted at the request of the defendant or his counsel. All continuances granted at the request of the defendant or his counsel shall be to a day certain, and the period of delay shall be from the date the continuance is granted until such subsequent date contained in the order or docket entry granting the continuance.
We conclude that there were two such excludable periods of time, which totaled 127 days, noted in the present case.
On November 22, 1994, the trial court entered an “Order Excluding Time Under ARCrP 28” revealing that fifty-seven days, from November 22, 1994, to January 18, 1995, would be excluded on motion by counsel for the defendant. Where a case is delayed by the accused and that delaying act is memorialized by a record taken at the time it occurred, that record may be sufficient to satisfy the requirements of Rule 28.3(i). Goston, 326 Ark. 106, 930 S.W.2d 332. Where the trial court specifically noted that the time period did not apply to speedy trial because the appellant was granted a continuance, and the record clearly demonstrated that these were attributable to the appellant or were legally justified, the appellant could not complain about the delays he requested. Id. We therefore conclude that this time period of fifty-seven days should be excluded from the calculation of the one-year period, as it was a delay granted at Appellant’s request.
On May 1, 1995, the trial court signed another “Order Excluding Time Under ARCrP 28,” which excluded seventy days, from May 4, 1995, to July 13, 1995. As with the previous time period, the court excluded this seventy-day period as being on motion by counsel for defendant. Appellant conceded to the exclusion of this time period at trial, and thus he may not complain of its exclusion on appeal. See Goston, 326 Ark. 106, 930 S.W.2d 332. Accordingly, we affirm the trial court’s denial of Appellant’s motion to dismiss as we conclude that his constitutional right to a speedy trial' was not violated.
Affirmed. | [
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Per Curiam.
This is a petition for writ of prohibition filed by the defendants in a case that involves what are alleged to be faulty breast implants. Complaints have been filed by 19 plaintiffs against both Bristol-Meyers Squibb Company (Bristol-Meyers) and Medical Engineering Corporation (MEC) for (1) strict liability in tort for supplying a defective and unreasonably dangerous product, (2) negligence in the design and manufacture of the product, and (3) fraud in the marketing and distribution of the product. The 19 plaintiffs also assert claims for strict liability in tort based on supplying a defective product against defendant doctors and medical facilities residing and located in Washington County, Garland County, and Pulaski County. Of the 19 plaintiffs, only one, Brenda Davis, resides in Saline County, where the action was filed.
Plaintiffs claim that venue is proper in Saline County because they have brought an action for fraud, and pursuant to Ark. Code Ann. § 16-60-113(b) (1987), venue is proper in any county where any one plaintiff resides. Defendants respond that the real character of the action is one for personal injury, which, pursuant to Ark. Code Ann. § 16-60-112(a) (1987), requires that the action be brought either in the county where the accident occurred or in the county where the plaintiff resided at the time of the injury. Defendants petition this court for a writ of prohibition to the Saline County Circuit Court to dismiss the claims of those 18 plaintiffs, other than Brenda Davis, who did not reside in Saline County at the time of their alleged injury. We agree with the defendants and grant the writ.
In Coca-Cola Bottling Co. v. Kincannon, Judge, 202 Ark. 235, 150 S.W.2d 193 (1941), this court discussed the applicability of Act 314 of 1939, now codified at § 16-60-112(a):
This act is — as it professes to be — a venue statute, and localizes actions for personal injury by requiring that such actions shall be brought (a) in the county where the accident occurred which caused the injury or death, or (b) in the county where the person injured or killed resided at the time of the injury [.]
Coca-Cola Bottling Co. v. Kincannon, Judge, 202 Ark. at 237-38, 150 S.W.2d at 194. The term “accident” has been defined as the “incident” or “wrongful act” that caused the injury. Coca-Cola Bottling Co. v. Kincannon, Judge, 202 Ark. at 239, 150 S.W.2d at 194. Furthermore, the “injury” complained of must be corporeal or physical in nature. See, e.g., Belin v. West, 315 Ark. 61, 864 S.W.2d 838 (1993); Tilmon v. Perkins, 292 Ark. 553, 731 S.W.2d 212 (1987). The application of this venue provision to cases involving recovery for personal injury is mandatory. Forrest City Machine Works v. Colvin, 257 Ark. 889, 521 S.W.2d 206 (1975).
In their second amended complaint, plaintiffs asserted claims against Bristol-Meyers and MEC for fraud and negligence and a claim against all defendants for strict liability in tort. Although numerous causes of action are pled, this court has long held that venue is controlled by the provisions of the Arkansas Code rather than the characterization of a claim given by a plaintiff. See, e.g., Arkansas Bank & Trust Co. v. Erwin, 300 Ark. 599, 781 S.W.2d 21 (1989)(holding that personal-injury statute applied to a claim for negligent entrustment that resulted in death); Evans Laboratories v. Roberts, Judge, 243 Ark. 987, 423 S.W.2d 271 (1968)(holding that personal-injury statute controlled even though plaintiff asserted a claim for breach of implied warranty that resulted in physical injury). Furthermore, when two or more actions are pled that lie in different venues, venue is determined by the real character of the action and the principal right being asserted. See Fraser Bros. v. Darrah Co., 316 Ark. 297, 871 S.W.2d 367 (1994); Frank A. Rogers & Co. v. Whitmore, Judge, 275 Ark. 324, 629 S.W.2d 293 (1982); Atkins Pickle v. Burrough-Uerling-Brasuell, 275 Ark. 135, 628 S.W.2d 9 (1982).
Based on the review mandated by our case law, we conclude that plaintiffs’ primary purpose is to recover damages for personal injury suffered due to the use of the implants during their breast-augmentation procedures. As a result, the mandatory provisions of § 16-60-112(a) must be applied. See Forrest City Machine Works v. Colvin, supra. Undoubtedly, plaintiffs have stated facts sufficient to support an action for fraud against Bristol-Meyers and MEC that, under other circumstances, would provide an appropriate venue for all plaintiffs against Bristol-Meyers and MEC in Saline County. See Ark. Code Ann. § 16-60-113(b). See also Quinney v. Pittman, 320 Ark. 177, 895 S.W.2d 538 (1995). However, viewing the complaint as a whole in order to determine the real character of the action, it is clear that plaintiffs seek a recovery that would otherwise require each to proceed either in the county where the accident occurred or where each resided at the time of the injury. See Ark. Code Ann. § 16-60-112(a). See, e.g., Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989). Saline County is an improper venue as to the 18 plaintiffs whose accident occurred in either Washington County, Garland County, or Pulaski County, and who did not reside in Saline County at the time of the injury.
Based on our review of the pleadings, we determine that the writ should issue to the Saline County Circuit Court with instructions to dismiss the claims of those plaintiffs other than Brenda Davis.
Writ granted.
Glaze and Thornton, JJ., not participating. | [
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Per Curiam.
Michael S. Phillips, by and through his attorney, has filed a motion for a rule on the clerk. His attorney, Joel O. Huggins, admits in his motion that the record was tendered late 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 In re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
The motion is therefore granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Per Curiam.
The petitioner, Gregory Lamont Childress, filed a motion for an expedited appeal to hear the issue presented in his Petition for a Writ of Mandamus. The State does not contest this motion, and accordingly it is granted.
The petitioner also filed a motion for a writ of mandamus asking us to compel Judge Marion A. Humphrey of the Pulaski County Circuit Court to set bail pending his trial on criminal charges. In Henley v. Taylor, 324 Ark. 114, 918 S.W.2d 713 (1996), we held that certiorari is the proper remedy to review a circuit court’s determination of the availability of bail. Thus, we will treat Childress’s petition for a writ of mandamus as a petition for a writ of certiorari.
The Arkansas Constitution declares that “All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption is great.” Ark. Const., art. 2, § 8. Accordingly, we grant the Childress’s petition for a writ of certiorari, and direct Judge Humphrey to hold a hearing and to set a reasonable bond.
Motion for Expedited Appeal granted.
Petition for a Writ of Certiorari granted.
Corbin, would deny. | [
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David Newbern, Justice.
Michael Watson was convicted of two counts of first-degree battery, one count of felon in possession of a firearm, and one count of terroristic threatening. The evidence showed that Mr. Watson shot and injured Kenyon Coleman and Jonathan Young and pointed his pistol at Tremmel Prudhomme outside a fraternity house in Arkadelphia while a party was in progress. He was sentenced to 102 years in prison. Mr. Watson’s sole point of appeal relates to the battery convictions. He contends the Trial Court erred in refusing to instruct the jury on the lesser-included offense of second-degree battery. We affirm because no such instructions were proffered to the Trial Court.
On numerous occasions, most recently in Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997), and Wallace v. State, 326 Ark. 376, 931 S.W.2d 113 (1996), we have restated the rule that an appellant who seeks reversal based on the failure to instruct the jury as requested by the appellant must present a record showing a proffer of the requested instruction. The record in this case does not contain any such proffer; thus, we must affirm on the point without further consideration.
The State has cross-appealed from a directed verdict or dismissal granted in Mr. Watson’s favor with respect to a charge of terroristic act. Ark. Code Ann. § 5-13-310(a)(2) (Repl. 1993). The statute prohibits shooting “with the purpose to cause injury to persons or property at an occupiable structure.” As abstracted by Mr. Watson, it appears that the Trial Court granted a directed-verdict motion but in the course of doing so said the charge was “dismissed” because Mr. Watson was shooting at a person rather than at an occupiable structure.
Whether the charge was dismissed due to a technical defect or resulted in no conviction because of insufficiency of the evidence, it is apparent that the language of the allegation is significant. We have no idea what the allegation was because neither Mr. Watson nor the State has abstracted an information or amended information charging Mr. Watson with a terroristic act. It is an appellant’s, in this case a cross-appellant’s, duty to present a record to the Court sufficient to permit review of the error it asserts. Failure to abstract a critical document precludes this Court from considering issues concerning it. Jackson v. State, 316 Ark. 509, 872 S.W.2d 400 (1994); Porchia v. State, 306 Ark. 443, 815 S.W.2d 926 (1991).
Affirmed on appeal and affirmed on cross-appeal.
Arnold, C.J., not participating. | [
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W.H.“Dub” Arnold, Chief Justice.
This case involves the interpretation of the Teacher Fair Dismissal Act, codified at Ark. Code Ann. § § 6-17-1501 to -1510 (Repl. 1993). The trial court found that appellant Nettleton School District failed to strictly comply with the Act when it terminated appellee and cross-appellant Pam Owens’s contract for the 1993-94 school year. Both parties appeal the trial court’s order. We affirm the trial court’s ruling that the termination of Ms. Owens’s contract was void.
Ms. Owens entered into a contract with the district to serve as a counselor at University Heights Elementary School for the 1993-1994 academic year. At approximately 8:00 p.m. on January 11, 1994, Ms. Owens, accompanied by her three children, went to her classroom. According to Ms. Owens, prior to going to the school, she had consumed one glass of wine and had taken one tablet of prescription medication for anxiety and stress. She became drowsy while in the classroom and put her head down on her desk. When the children could not awaken her, they called their father, whom Ms. Owens had served with a divorce complaint the previous day. Mr. Owens contacted principal Kay Darby, who in turn contacted administrator Michael Johnson. The three proceeded to Ms. Owens’s classroom. According to Ms. Owens, she became upset and began crying when her husband entered her classroom.
According to principal Darby, she found Ms. Owens asleep on the floor of the classroom on the night in question. It was Ms. Darby’s opinion that Ms. Owens was intoxicated, as she could smell alcohol on her breath. Mr. Johnson also observed that Ms. Owens had been drinking. Ms. Darby and Mr. Johnson helped Ms. Owens to her car, and Mr. Owens drove the children home.
When Ms. Owens reported to work the following morning, principal Darby asked her to take some time off work. Thereafter, Ms. Owens checked herself into Green Leaf Hospital for treatment for chemical dependency and anxiety. On January 21, superintendent John Sawyer hand delivered a letter to Ms. Owens notifying her that she was suspended. In the letter, Mr. Sawyer stated that, because she had been under the influence of alcohol in her classroom on January 11, he would recommend to the school board that she be terminated due to her violation of the district’s Drug Free Work Policy.
The school board conducted a hearing on February 24, 1994, at which superintendent Sawyer distributed to each board member three documents, which, according to him, led to Ms. Owens’s suspension: 1) a memo from principal Darby to Mr. Sawyer dated January 19, 1994, which included not only a summary of the January 11 incident, but reports that Ms. Owens had been suspected of drinking at school activities on May 14, 1993, and September 21, 1993; 2) a letter written by Mr. Johnson dated January 12, 1994, in which he related that Ms. Owens had previously appeared on campus in an intoxicated condition; and 3) Mr. Sawyer’s January 21, 1994, notification letter to Ms. Owens. Ms. Owens and her treating physician at Green Leaf, Dr. David Silas, testified at the hearing. According to Dr. Silas, while Ms. Owens had developed a dependency on alcohol, she was not a chronic alcoholic. Ms. Darby and Mr. Johnson also testified at the hearing. The board inquired about the January 11, 1994, incident, as well as the 1993 incidents. At the conclusion of the hearing, the board went into executive session for approximately two hours, after which superintendent Sawyer recommended in an open session that Ms. Owens be terminated. The board voted unanimously to accept Sawyer’s recommendation. No other vote was taken.
On March 3, 1994, Ms. Owens received a letter from board president Lennie Hogan. According to Mr. Hogan, the board unanimously concluded that the following were the true reasons for her termination: 1) she violated the district’s Drug Free Work Place Policy; 2) she violated the district’s personnel policy; 3) she failed to meet the expectations of an elementary counselor; and 4) her termination was in the best interests of the students.
Ms. Owens filed suit in Craighead County Circuit Court, alleging that the board’s action was arbitrary and capricious. The trial court conducted a hearing, at which Ms. Owens testified on her own behalf. Following her testimony, the district moved for directed verdict. The trial court denied the motion, after which the district presented the testimony of Ms. Darby, Mr. Johnson, Mr. Hogan, and board member Richard Carvell. At the conclusion of the hearing, the trial court ruled that Ms. Owens’s termination was void due to the district’s failure to conduct a separate vote on whether the reasons in support of superintendent Sawyer’s recommendation for termination were true. On March 12, 1996, the trial court entered an order awarding Ms. Owens the balance of her contract for the 1993-94 school year, but denying her request for attorney’s fees for representation at the board hearing and before the Arkansas Employment Security Division. On April 4, 1996, the trial court entered an order denying Ms. Owens’s claim for attorney’s fees for representation in the circuit court action.
On direct appeal, the district claims that the trial court erred in fading to grant its motion for directed verdict at the close of Ms. Owens’s case. Because the district waived any reliance on its motion when it chose to go forward and put on its own case, its contention is meritless. See Willson Safety Prods, v. Eschenbrenner, 302 Ark. 228, 788 S.W.2d 729 (1990).
The district further challenges the trial court’s ruling that it failed to strictly comply with the Act when it terminated Ms. Owens’s contract without conducting a separate vote on the truth of each reason given in support of the recommended termination. The provision in question, § 6-17-1510(c), provides as follows:
Subsequent to any hearing granted a teacher by this subchapter, the board, by majority vote, shall make specific writte„n conclusions with regard to the truth of each reason given the teacher in support of the recommended termination or nonrenewal.
The trial court ruled that the termination of Ms. Owens’s contract was void because the district, while voting unanimously to accept superintendent Sawyer’s recommendation of termination, failed to conduct a separate vote on the reasons or the truth of the reasons in support of the termination. The district argues that § 6-17-1510(c) does not require a separate vote. Describing the termination of Ms. Owens as “unique,” the district contends that the board’s vote on the recommended termination and the vote on the reasons given in support of the recommendation were simulta neous and thus were in compliance with the Act. In support of its argument, the district refers to board president Hogan’s March 3, 1995, letter to Ms. Owens, in which he related the board’s unanimous conclusion that there were four true reasons for her termination: 1) violation of the district’s Drug Free Work Place Policy; 2) violation of the district’s personnel policy; 3) failure to meet the expectations of an elementary counselor; and 4) that Ms. Owens’s termination was in the best interests of the students. While the plain language of the statute does not speak in terms of a “separate” vote, § 6-17-1510(c) plainly requires a majority vote on the truth of each reason given the teacher in support of the recommended termination. The board must make specific written conclusions with regard to each of these reasons. Board member Richard Carvell testified that the only vote taken by the board was to accept Mr. Sawyer’s recommendation:
Mr.. Hogan: We are in open session to the press. Mr. Sawyer, do you have a recommendation?
Mr. Sawyer: Mr. President, my recommendation is that Pam Owens be terminated from Nettleton Schools as of February 25, 1994, and that would begin tomorrow.
Motion: Ed Wilson, to accept the recommendation of the Superintendent.
Second: Richard Carvell
Action: 5-0
Motion: Ed Wilson, to adjourn at 9:00 p.m.
Second: Richard Carvell
Action: 5-0
Regarding Mr. Hogan’s March 5 letter, he admitted at the hearing before the trial court that he did not write it, but merely signed it after it was presented to him by superintendent Sawyer. According to Mr. Carvell, the board did not vote to authorize Mr. Hogan to write the letter to Ms. Owens. Moreover, the parties stipulated that the board’s vote to accept superintendent Sawyer’s recommendation to terminate Ms. Sawyer’s contract was the only vote taken at the hearing and that there was no separate vote on the four issues supporting the termination.
The trial court found that Ms. Owens’s termination was void because the board failed to conduct a separate vote on the reasons or the truth of the reasons in support of the termination. We conclude that the district did not strictly comply with § 6-17-1510(c) when the board failed to obtain a majority vote with regard to the truth of each reason given Ms. Owens in support of the recommended termination. We will affirm the ruling of a trial court if it reached the right result, even though it may be for a different reason. Summers Chevrolet, Inc. v. Yell County, 310 Ark. 1, 832 S.W.2d 486 (1992). In this case, the trial court reached the correct result, even though we affirm that result for a reason other than the one stated.
The district’s failure to obtain a majority vote with regard to the truth of reasons in support of the recommended termination becomes even more troublesome when considered together with Ms. Owens’s point on cross-appeal that the district failed to give her notice that incidents in May 14, 1993, and September 21, 1993, would be considered at the hearing. At the conclusion of the hearing, the trial court addressed this issue as follows:
[T]he incidents in May and September of 1993, they weren’t part of the reasons the superintendent gave in his letter, but there was testimony related to those reasons. In fact, the board members asked questions in the transcript about those two instances, and if those incidents were a part of the reason for termination, then I couldn’t uphold the termination because they weren’t — The teacher wasn’t given notice in the superintendent’s letter that those were part of the grounds for termination. I don’t know that those were part of the reasons.
The provision at issue, § 6-17-1507(c), provides that “[t]he notice (of termination recommendation) shall include a simple but complete statement of the grounds for the recommendation of termination ...” Without information that the 1993 incidents would be considered, Ms. Owens’s “preparation for a hearing was well nigh impossible.” Hamilton v. Pulaski County Special Sch. Dist., 321 Ark. 261, 900 S.W.2d 205 (1995). While Messrs. Carvell and Hogan testified that everyone on the board understood that he or she was voting only on the four grounds cited in the superintendent’s letter, their testimony contradicts the superintendent’s opening address at the hearing:
At this time Mr. President I would like to hand out to you three documents. One is a document . . . written by Kay Darby, the other is (by) Mike Johnson and the third is part of, it is the letter that was hand delivered by Kay Darby and myself to Pam Owens on approximately the twenty-first of January.
Mr. President I know you’ve had the opportunity to, you and the board, to review the three documents that are in front of you. Those documents led to the suspension that was issued and in that suspension there was a recommendation for termination . . .
(Emphasis added.) As the trial court observed, there was testimony regarding both the May and September 1993 incidents at the hearing. The board members asked questions about both incidents. If, contrary to the superintendent’s opening remarks, the 1993 incidents indeed were to have no bearing whatsoever on the board’s decision to terminate, we question the purpose behind their presentation to the board. Because the notice of termination recommendation did not include the 1993 incidents, we must conclude that the district failed to comply with § 6-17-1507(c). When considering the violation of this provision together with the district’s violation of § 6-17-1510(c), we hold that the district’s decision to terminate Ms. Owens’s contract was void.
Ms. Owens further contends that the district faded to engage in remedial or rehabilitative measures as mandated by § 6-17-1504(c). She also complains that the district did not strictly comply with § 6-17-1507(c), which requires that the superintendent send his notice of termination recommendation by registered or certified mail. Our holding that the termination of Ms. Owens’s contract was void due to the district’s failure to strictly comply with § § 6-17-1510(c) and 6-17-1507(c) renders moot any claims by Ms. Owens that the district failed to strictly comply with other provisions of the Act, as a district’s termination of a teacher is void unless the district strictly complies with all provisions of the Act. See § 6-17-1503 (emphasis added). With limited exceptions not applicable here, this court does not address moot issues. Leonards v. E.A. Martin Machinery Co., 321 Ark. 239, 900 S.W.2d 546 (1995).
On cross-appeal, Ms. Owens claims that the trial court erred in refusing to award her attorney’s fees. The trial court entered his judgment on Ms. Owens’s appeal of her termination on March 12, 1996. In this order, the trial court denied Ms. Owens’s request for attorney’s fees for representation at the board hearing and before the Employment Security Division. Ms. Owens filed her notice of cross-appeal on April 22, 1996, which recited that she was appealing the trial court’s March 12 judgment. On April 4, 1996, the trial court entered an order denying Ms. Owens’s request for attorney’s fees for representation in the circuit court action.
The district asserts that Ms. Owens’s claim for attorney’s fees for the circuit court representation is procedurally barred since she did not appeal the April 4 order. We agree, as we have held that the issue of attorney’s fees is a collateral matter. Mason v. Jackson, 323 Ark. 252, 914 S.W.2d 728 (1996). Because no notice of appeal was filed from the April 4 fee order, we will not review this issue.
Regarding the attorney’s fees issue pertaining to the board and Employment Security Division representation, neither was a civil action. See Sosebee v. County Line Sch. Dist., 320 Ark. 412, 897 S.W.2d 556 (1995). Thus, the attorney’s fees statute, Ark. Code-Ann. § 16-22-308 (Repl. 1994), does not apply, and the trial court was correct in denying Ms. Owens’s request in his March 12 order. Based on the foregoing, we affirm the decision of the trial court.
Affirmed on direct appeal; affirmed on cross-appeal.
Brown, J., concurs.
Corbin, J., dissents. | [
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Tom Glaze, Justice.
Appellant Nobia Benedict brought this lawsuit against National Bank of Commerce after her house and lot, including a pin oak tree, sustained damages as a result of fire. Benedict’s house and lot adjoined the Bank’s property, which contained a dilapidated structure. The Bank gave written permission to the El Dorado Fire Department to conduct a “controlled burn” of the structure on its property, and the department agreed to burn the structure as a training exercise. Although the department established a “water curtain” between Benedict’s and the Bank’s adjoining properties, Benedict’s house sustained damages to one of her windows, to some melted shingles on its roof, and she also suffered loss of an oak tree and some other vegetation.
Because Benedict concluded that she could not successfully sue the City of El Dorado for its fire department’s negligence, she brought her action solely against the Bank, alleging absolute liability on the Bank’s part, asserting the Bank had engaged in ultrahazardous activity by “ordering the burning.” The parties’ respective cases were tried to the court, and the court issued a letter opinion, holding in the Bank’s favor and dismissing Benedict’s complaint with prejudice. On appeal, Benedict contends the trial court erred in refusing to hold that the Bank’s use of fire was a hazardous activity for which the Bank bore absolute liability. However, we are unable to address the merits of Benedict’s argument because Benedict failed to file a timely notice of appeal.
We first note that the trial court issued its letter opinion on June 27, 1996, and filed it on June 28, 1996. Before the trial court entered its order dismissing Benedict’s complaint, Benedict filed on July 3, 1996 a pleading captioned “Petition for Rehearing.” Without ruling on Benedict’s “Petition,” the trial court entered its order on July 11, 1996, and Benedict delayed in filing her notice of appeal until August 15, 1996 — outside the thirty-day period required for filing a notice of appeal under Ark. R. App. P. 4(a).
Benedict argues that, under Ark. R. App. P. 4(b), her time of appeal was extended because she had filed a petition for rehearing which in substance was a motion for new trial as provided in Rule 59 of the Arkansas Rules of Civil Procedure. The Civil Appellate Rule 4(b) provides that a motion for new trial under ARCP Rule 59(b) may extend the time for filing a notice of appeal if such a timely motion is filed in trial court, and provision (c) of Civil Appellate Rule 4 further provides the time for appeal shall run from the entry of the order granting or denying a new trial. If the trial court neither grants nor denies the new-trial motion within thirty days of its filing, the motion will be deemed denied as of the thirtieth day, and the moving party then must file a notice of appeal within thirty days from when the parties’ motion was deemed denied. See Ark. R. App. P. 4(c).
Even if we were to agree with Benedict that her “Petition for Rehearing” was in essence a new-trial motion and, as such, could possibly extend her time for filing a notice of appeal, Benedict failed to file such a motion no later than ten days after the entry of judgment as is required by ARCP Rule 59(b). See Webster v. State, 320 Ark. 393, 896 S.W.2d 890 (1995) (where party filed motion for new trial before the judgment was entered, court held motion was untimely and ineffective under ARCP Rule 59 and Ark. R. App. P. 4(b)); Guinn v. State, 323 Ark. 612, 917 S.W.2d 529 (1996) (court held that to be effective, a motion for new trial under ARCP Rule 59 must be filed within ten days after the entry of the judgment); see also Jackson v. Arkansas Power & Light Co., 309 Ark. 572, 832 S.W.2d 224 (1992).
Here, Benedict failed to file her motion within the ten-day period provided in ARCP Rule 59(b), so it was ineffective. Consequently, her motion failed to extend her time to file a notice of appeal. In these circumstances, Benedict was required to file her notice of appeal thirty days after entry of the trial court’s July 11, 1996 order, and having failed to do so, we must dismiss her appeal as untimely.
The Bank’s property had been listed for sale, and the real estate broker handling the Bank’s property determined the property would sell better without the structure. Thus, the broker made arrangements with the El Dorado Fire Department to burn the structure.
We need not decide whether Benedict’s “Petition for Rehearing” should be considered a motion for new trial for Rule 59(a) purposes, because, even assuming it is a new-trial motion, it was filed untimely, was therefore ineffective, and failed to extend her time for filing a notice of appeal.
The Reporter’s Note to Rule 59 underscores Section (b) and marks a significant departure firom Arkansas practice, stating that, under this section, a motion for new trial must be filed within ten days after the entry or filing of the judgment. | [
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Per Curiam.
The appellant’s attorney, James R. Marschewski, has filed a motion for rule on the clerk. The attorney, James R. Marschewski, admits that the transcript was untimely filed due to negligence on his part.
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Ray Thornton, Justice.
Appellants are the named plaintiffs in a certified class of approximately 3,100 corporations seeking a refund of corporate income taxes levied by Act 1052 of 1991. Each of the named plaintiffs, ACW, Inc.; Phillips Development Corporation; and United Wholesale Florists, Inc., filed Arkansas state income-tax returns reporting Arkansas net taxable income in excess of $100,000. Each paid corporate income tax at the flat rate of 6V2% on their entire net income. After seeking refunds individually, the named plaintiffs filed a verified claim for repayment of overpayment of taxes on their first $100,000 of net taxable income, on behalf of themselves and others similarly situated. They contended that the proper assessment would be a graduated rate on the first $100,000, as is applied to corporations with net taxable income of $100,000 or less.
After exhausting their administrative remedies, appellants filed a complaint in chancery court, which alleged: (1) Act 1052 violates the provisions of Ark. Const, art. V, § 38; (2) the Act requires application of graduated rates on the first $100,000 of income, or in the alternative, that it is ambiguous; (3) if the Act unambiguously levies a 6lh% flat rate on the first $100,000 of income, it violates equal protection; (4) the Act results in a confiscatory tax. They requested class certification pursuant to Ark. R. Civ. P. 23 and Ark. Const, art. XVI, § 13, and asked for refunds, injunctive relief, and the establishment of a common fund.
The trial court granted class certification, but affirmed the decision of the Commissioner imposing the flat rate and denied the requested relief. It found that the Act was subject to the provisions of Ark. Const, art. V, § 38, which requires that the passage of the Act be a response to an emergency allowing the imposition of such a tax by a three-fourths vote of each House of the General Assembly, and that an emergency had been stated. Regarding the ambiguity argument, the trial court acknowledged that the language of the statute could be read to reach three divergent results, but concluded that the interpretation offered by appellees, the Department of Finance and Administration and the Commissioner of Revenues, should prevail. Finally, the court found that the statute did not violate equal protection.
On appeal, appellants contend that (1) there was not an emergency allowing the passage of the tax as provided by Ark. Const, art. V, § 38; (2) the statute is ambiguous and should be resolved in favor of the taxpayer; and (3) the Department’s interpretation of the Act results in a confiscatory tax and violates equal protection. We agree with the trial court’s finding that the requirements under the Arkansas Constitution for adoption of the statute had been met, and affirm on this point.
While we agree with the trial court’s finding that the statute could be read to reach divergent results, we disagree with its ruling that the Department’s interpretation should prevail; and we reverse on this point.
Finally, we consider appellees’ cross-appeal, contending that the doctrine of sovereign immunity invalidates the certification of a class of taxpayers seeking refunds in this case. On the basis of our recent decisions in State v. Tedder, 326 Ark. 495, 932 S.W.2d 755 (1996), and State v. Staton, 325 Ark. 341, 942 S.W.2d 804 (1996) (substituted opinion granting rehearing), we agree with appellees that no class certification should have been ordered, and reverse the certification.
The Existence of an Emergency
We first address the trial court’s determination of the existence of an emergency. Appellants argue that the tax imposed by Act 1052 of 1991 must fail because it was not a response to an emergency allowing passage of the tax by the votes of three-fourths of the members of each house of the General Assembly. We agree with the trial court that the emergency clause did state an emergency sufficient to meet the requirements of the Arkansas Constitution under art. V, § 38. Section 9 of Act 1052, the emergency clause of the Act, provided the following:
It is hereby found and determined by the General Assembly that additional funds are necessary to provide higher quality educational programs which are accessible by all segments of the population in the state; that recent studies have shown that in the year 2000, workers must have a minimum of fourteen (14) years of education to function in the work force; that the state is in desperate need of training, retraining and upgrading the work force; that this act will provide the funding necessary to provide every citizen with an opportunity to participate in vocational-technical training or college transfer programs; and that it is necessary for this act to become effective immediately to provide the funding needed for these programs as soon as possible. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.
For a thorough understanding of the provisions and requirements of Ark. Const, art. V, § 38, a brief review of its historical background is required. At the time the article was adopted as Amendment 19 in 1933, Arkansas was in the throes of financial emergency. More than 165 million dollars of highway and road improvement bonds were in default, and checks drawn on the state treasury were nearly worthless. The regular session of the General Assembly of 1933 cut state spending in half, established a sinking fund to pay off checks, and proposed a constitutional amendment limiting the issuance of bonds or other evidence of indebtedness. That amendment, together with Amendment 19, were proposed by the legislature, and adopted by overwhelming majorities at the general election on November 6, 1934.
Among its other provisions, and with a notable exception for paying the just debts of the state, Confederate pensions, and expenditures for educational and highway purposes, Amendment 19 prohibited expenditures exceeding, two and one-half million dollars during any biennial period “unless approved by the votes of three-fourths of the members elected to each House of the General Assembly.”
Amendment 19 also provided that:
None of the rates for property, excise, privilege or personal taxes, now levied shall be increased by the General Assembly except after the approval of the qualified electors voting thereon at an election, or in case of emergency, by the votes of three-fourths of the members elected to each House of the General Assembly.
We observe that this amendment does not require either an emergency or an extraordinary vote to adopt new classes of taxes. The limitations of the amendment apply only to increased rates for property, excise, privilege, or personal taxes in existence at the time the amendment was adopted. Other taxes, such as sales and use taxes, or other means of increasing revenues, such as the repeal of deductions applicable to the computation of tax liabilities on income taxes, may be adopted without any declaration of emergency, and without an extraordinary majority vote. For example, while we have decided that higher rates of income taxes are included in the class of taxes requiring an extraordinary three-fourths majority for adoption under Amendment 19, Hardin v. Fort Smith Couch & Bedding Co., 202 Ark. 814, 152 S.W.2d 1015 (1941), we have also determined that a three-fourths vote is not necessary to repeal a deduction or. an exemption from federal taxes used in computing state income taxes, Morley v. Remmel, 215 Ark. 434, 221 S.W.2d 51 (1949).
The selective targeting of certain specific classes of tax increases by Amendment 19 may perhaps express a preference for other means of raising revenues, but does not establish a public policy opposed to raising revenues for significant and appropriate public purposes, such as education, highways, and the payment of public debts. To the contrary, the public policy of our state clearly favors sustaining public schools and defraying necessary expenses of government. For example, as long ago as 1927, we held that the maintenance of institutions of higher education was a necessary expense of government that did not require an extraordinary majority vote from both houses of the General Assembly. Hudson v. Higgins, 175 Ark 585, 299 S.W. 1000 (1927).
In a long fine of cases interpreting emergency clauses adopted in accordance with Amendment 7’s provision on initiative and referendum matters, we have given great deference to legislative determination whether an emergency exists. Such emergency clauses must state not only a grave problem, but because the effect of the clause is to allow an act to become effective upon passage, there must also be a showing of a need to promptly begin a response to the circumstances that have generated the emergency. However, it is not essential that the emergency be suddenly discovered or that the remedy be immediately effective. In Priest v. Polk, 322 Ark. 673, 912 S.W.2d 902 (1995), we pointed out that the revision of our state’s Constitution was properly described as an emergency, even though the problems were not recently discovered, and the remedies would not bring immediate results. The following reasoning articulated by U.S. District Court of Oregon in Daugherty Lumber Co. v. United States, 141 F.Supp. 576 (1956), is useful for our consideration:
Legislative emergencies are those situations where the common good or public interest is legislatively declared to be paramount to individual interests. Common knowledge tells us that legislative action effective immediately, has on legion occasions been adopted to correct an adverse public interest of long standing.
Id. at 581.
Emergency legislation is enacted for the purpose of alleviating grave conditions. Norman J. Singer, Sutherland Statutory Construction § 71.06, at 282. If legislation shows a remedial purpose, it will be given generous construction. Id. As another court stated, the facts must show a necessity for immediate action. Osage Outdoor Advertising v. State Highway Comm’n, 687 S.W.2d 566 (Mo. App. 1984).
Statutes are presumed constitutional, and the burden of proving otherwise is upon the challenger of the statute. Ports Petroleum Co. v. Tucker, 323 Ark. 680, 916 S.W.2d 749 (1996). Here appellants bear the burden of proving that there was no emergency.
We recognize that it may require many years of inadequate support of education before there is a legislative realization of an emergency that has resulted from the economic and societal impact of that inadequate education. We also observe that educational problems cannot be corrected immediately. As expressed by the emergency clause in Act 1052, the goal is to provide access to all segments of the population so that fourteen years of education is available by the year 2000. We note that the length of time required to address the problem is in itself a strong and rational basis for getting started toward a solution.
In light of the history of Ark. Const, art. V, § 38, and the expressed public policy of our state, we hold that an emergency existed, enabling the General Assembly to pass the Act by the extraordinary vote of three-fourths of the entire membership of each house of the General Assembly.
We have also considered appellants’ argument that the measure must fail because 3% of the revenues will be allocated to the Constitutional Officers Fund and the State Central Services Fund. The application of revenues to be derived from this tax is subject to review and legislative action during the years in which the revenues are realized. Some overhead costs can be expected, and as pointed out by the trial court, once the threshold question of the existence of an emergency is resolved, the trial court lacked the authority to substitute its priorities for those expressed in the statute.
Finally, it should be emphasized that the adoption of an emergency clause does not deprive the people of their rights to refer any measure to a popular vote. Jumper v. McCollum, 179 Ark. 837, 18 S.W.2d 359 (1929).
Statutory Interpretation
Appellants next urge that even if the passage of Act 1052 met the requirements of art. V, § 38, its application by appellees either reflects a misinterpretation of the language of the Act, or in the alternative, results in an unconstitutional levy of a confiscatory tax, as well as the imposition of arbitrarily unequal taxation in violation of state and federal equal protection guarantees.
Each appellant filed Arkansas state income-tax returns reporting Arkansas net taxable-income tax in the excess of $100,000.00 per year. Each paid corporate income tax at the flat rate on their entire net income. Each sought refunds, contending that the correct tax liability should be based on a graduated tax rate of 1% up to 6% on the first $100,000.00 of net income, identical with that applied to corporations having a net income of $100,000.00 or less; and that the final bracket of 6V2% should apply, “on net income exceeding $100,000.00. . . .” Appellees contend that the statute creates two distinct classes of taxpayers, those making $100,000.00 or less, and those making $100,000.50 or more, and that those in the second group are required to pay more taxes on their first $100,000.00 of income than required of those in the first group.
Act 1052 of 1991, codified at Ark. Code Ann. § 26-51-205 (Repl. 1992), provides as follows:
(a) Every corporation organized under the laws of this state shall pay annually an income tax with respect to carrying on or doing business on the entire net income of the corporation,. . .received by the corporation during the income year, on the following basis:
(1) On the first $3,000 of net income or any part thereof............................................ 1%
On the second $3,000 net income or any part thereof .. 2%
On the next $5,000 of net income or any part thereof.. 3%
On the next $14,000 of net income or any part thereof. 5%
On the next $75,000 of net income or any part thereof, but not exceeding $100,000 ............................. 6%
(2) On net income exceeding $100,000, a flat rate of six and one-half (6V2 %) percent shall be applied to the entire net income.
Similar language in subsection (b) applies to foreign corporations.
We agree with the trial court’s statement that “the language set fourth in the subsection (a) (2) . . . when read in conjunction with sections (a)(1) . . . can be read to reach any of the three results set forth in the plaintiffs exhibit no. 35.”
There is absolutely no language in section (a)(1) to indicate that any corporation shall pay any tax on the first $100,000 of net income other than the graduated taxes provided by that section. To the contrary, the statute provides the following: “Every corporation. . .shall pay. . .on the following basis:” and then sets out the graduated schedule that clearly applies to all corporations. Without any reference to the clear and unambiguous schedule of (a)(1), the first phrase of the next sentence reads as follows: “(2) On the net income exceeding $100,000, a flat rate of . . . 6V2% shall be applied. . . .”
We note that until this point in the statute, the interpretation remains unambiguous, but the next five words render the statute ambiguous. Those words are “. . .to the entire net income.” We are next told by appellees that those words take precedence over the language of (a)(1) and repeal the graduated scale of taxes contained in that section, with the effect that the taxpayer is charged with a 6V2% tax applied “to the entire net income. ...” However, this interpretation becomes even more strained when the same words in the section dealing with foreign corporations must be interpreted as meaning something other than “the entire net income.”
We have determined that a statute is ambiguous where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. City of Little Rock v. Arkansas Corp. Comm’n, 209 Ark. 18, 189 S.W.2d 382 (1945). We hold that the statute before us is internally inconsistent and ambiguous.
When a statute is ambiguous, we must give effect to the legislative intent. Omega Tube & Conduit Corp. v. Maples, 312 Ark. 489, 850 S.W.2d 317 (1993). Therefore, our review now turns to an examination of the whole Act, reconciling provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. Id. at 493, 850 S.W.2d at 319. To determine legislative intent, this court looks to such appropriate matters as the legislative history, the language, and the subject matter involved. Id. at 495, 850 S.W.2d at 320. The manner in which a statute has been interpreted by executive and administrative officers may also be considered, and will not be disregarded unless clearly wrong. Id.
Following the adoption of Act 1052, the official Arkansas Legislative Tax Handbook prepared by the Legislative Council of the Arkansas General Assembly for the years 1992-93 and 1994 set out the corporate income taxes as enacted by the Act 1052, as follows:
On the first $3,000 of net income.................... 1%
On the second $3,000 of net income................. 2%
On the next $5,000 of net income................... 3%
On the next $14,000 of net income.................. 5%
On the next $75,000 of net income but not exceeding $100,000 .......................................... 6%
On all net income in excess of $100,000 .............. 6.5%
In a further reference to the effect of Act 1052 of 1991, the handbook contained the following: “ Act 1052 of 1991 — the 6.5% applies to the entire net income over $100,000.”
We note with interest that the 1991-1993 Official Biennial Budget of the State of Arkansas, prepared by the director of appellee, Department of Finance and Administration, as abstracted at page 9, contains the following summary on page 16: “ Act 1052 - Increases the corporate income tax on corporations with net income exceeding $100,000. The new tax is a flat 6.5% on the net taxable income that exceeds $100,000.”
The above official documents suggest that the legislative intent was to impose a flat tax of 61A% only on income in excess of $100,000. Notwithstanding these earlier interpretations of the Act, the Department finally decided that the 6V2% tax rate repealed the graduated schedule for the first $100,000 of net income and replaced it with the higher 6V2% levy. The result is that like the statute itself, the executive and administrative interpretations show that reasonable minds could differ and that the statute is clearly ambiguous.
We have often stated that a tax cannot be imposed except by express words indicating that purpose, and that any ambiguity or doubts must be resolved in favor of the taxpayer. Leathers v. Active Realty Inc., 317 Ark. 214, 876 S.W.2d 583 (1994). Based upon our review of the legislative intent and consistent with our own decisions relating to the interpretation of tax measures, we find that the statute imposes a graduated tax applying to all corporations for the first $100,000 of net income, and a flat tax of 6V2% on the entire net income above $100,000. The uniform application of tax rates on all corporations resolves the issues of confiscatory taxation and alleged violations of equal protection guarantees.
Class Certification
Appellees argue on cross-appeal that because there was no waiver of sovereign immunity, the chancellor lacked authority to certify the members of the class that did not file refund claims. We agree, and reverse the order granting class certification.
Our constitution prohibits suits against the state, Ark. Const, art. V, § 20; however, this sovereign immunity may be waived in certain limited circumstances. State v. Staton, 325 Ark. at 344, 942 S.W.2d at 805. The legislature allows a taxpayer to sue the state for an improperly collected tax only after that taxpayer has requested a refund and that request has been denied. Ark. Code Ann. § 26-18-507(e)(2)(A) (Repl. 1992). In State v. Tedder, 326 Ark. at 496, 932 S.W.2d at 756, we determined that only the taxpayer who has requested and has been denied a refund under this statutory provision has obtained a waiver of sovereign immunity. “A trial court acquires no jurisdiction where the suit is one against the State and there is no waiver of sovereign immunity.” State v. Staton, 325 Ark. at 344, 942 S.W.2d at 805.
In the instant case, only the named plaintiffs have followed the procedure outlined in Ark. Code Ann. § 26-18-507(e)(2)(A) by applying for a refund. Under our prior holdings, the named plaintiffs are the only persons for whom sovereign immunity has been waived. Therefore, the order granting class certification must be reversed.
Conclusion
In sum, we hold that Act 1052 of 1991 meets the requirements of art. V, § 38 of the Arkansas Constitution. We observe that its ambiguous language can be reconciled into a consistent, harmonious, and sensible interpretation that provides the same graduated tax rates upon the income of all corporations, both foreign and domestic. We hold that the statute, so interpreted, does not violate constitutional provisions of equal protection; and finally, we hold that the doctrine of sovereign immunity bars the certification of a class of taxpayers to seek refunds of taxes.
We affirm in part, and reverse and remand in part for further proceedings consistent with this opinion.
Newbern and Glaze, JJ., dissent.
Brown, J., dissents in part concurs in part. | [
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Per Curiam.
Will Alfred James, by his attorney, has filed a second motion for rule on the clerk. His attorney, James P. Massie, requests that the clerk accept the late record, and he admits in his motion that the record was tendered late due to a mistake on his part. Mr. Massie also requests that this court appoint another counsel in order to relieve him from representation.
We find that an error causing delay in submission of the brief on appeal, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion to allow acceptance of the belated brief. See In re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). Because Mr. Massie admits mistake in this second motion, appellant’s motion for rule on the clerk to accept the belated record is therefore granted.
Appellant also requests that the court appoint another attorney to represent appellant due to the fact that Mr. James lacks the financial resources to continue this appeal. Once the notice of appeal has been filed, Rule 16 of the Rules of Appellate Procedure — Criminal requires that trial counsel continue to represent a convicted defendant throughout appeal unless the supreme court relieves counsel and appoints new counsel. See also Ark. Sup. Ct. R. 4-3(j)(l). Counsel may not abandon an appeal merely because the client lacks the money for the appeal. Jackson v. State, 325 Ark. 27, 923 S.W.2d 280 (1996). Regardless of the defendant’s financial circumstances, when an attorney knows of his desire to appeal, the attorney is obligated to do the following before he may be relieved: (1) file a notice of appeal; (2) file a partial record, consisting of at least the judgement and notice of appeal in the appellate court, along with a motion to be relieved containing a statement of the reasons for the request to withdraw; (3) mail a copy of the motion to be relieved to the defendant. Id. at 29, 923 S.W.2d at 281.
This court presently has no knowledge regarding appellant’s contractual relationship with Mr. Massie or his financial ability to pay Mr. Massie for services rendered. Until Mr. Massie presents a motion that includes appropriate documentation such as an affidavit of indigency, if applicable, together with a statement of reasons supporting his withdrawal, this court will neither relieve counsel from representation nor appoint new counsel. For the foregoing reasons, we deny the portion of this motion requesting that we appoint another attorney.
The present motion for rule on the clerk is granted in part and denied in part. A copy of this opinion shall be forwarded to the Committee on Professional Conduct. | [
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David Newbern, Justice.
Sean Riggins appeals from denial of his request for postconviction relief sought pursuant to Ark. R. Crim. P. 37. Mr. Riggins was convicted of first-degree murder and sentenced to fifty years’ imprisonment on July 20, 1993. We affirmed his conviction in an opinion delivered on September 12, 1994. Riggins v. State, 317 Ark. 636, 882 S.W.2d 664 (1994). Mr. Riggins sought postconviction relief on the ground that his counsel failed to communicate to him an offer by the State of a plea agreement pursuant to which the State would have recommended a sentence of fifteen years’ imprisonment in exchange for Mr. Riggins’s agreement to testify against others involved in the crime. He also contended his counsel failed to seek a sentence consistent with those received by others involved in the crime of which he was convicted as an accomplice. The other defendants received sentences of no more than 35 years. We affirm the denial of postconviction relief.
As recited in our opinion affirming the conviction, the evidence showed that Mr. Riggins joined with others in shooting at a vehicle in which one occupant was killed and the other wounded. Mr. Riggins wielded a shotgun while his compatriots shot with pistols. The death and injury were caused by pistol bullets, but two shotgun slugs also hit the target car.
i. Plea agreement
Counsel who represented Mr. Riggins at the trial testified at the postconviction hearing that he could not remember whether an offer of a plea agreement had been made by the State. Mr. Riggins and the State, however, stipulated that such an offer was made. Failure to communicate a plea agreement offer to a defendant has been held to be ineffective assistance of counsel. Elmore v. State, 285 Ark. 42, 684 S.W.2d 263 (1985); Rasmussen v. State, 280 Ark. 472, 658 S.W.2d 867 (1983). The issue thus became whether the offer was communicated to Mr. Riggins.
We cannot gainsay the Trial Court’s remark that “there [was] no substantial evidence to support the defendant’s claim that his counsel failed to convey a plea offer to him.” Counsel’s statement that he could not recall a plea offer to Mr. Riggins did not constitute an admission of failure to convey such an offer. He was not asked if he failed to communicate any offer that might have been given or if it was his practice in any case to decline to convey such an offer to a client.
The Trial Court’s statement that there was no substantial evidence that the offer was not conveyed was a clear indication that he did not regard Mr. Riggins’s testimony as credible on the point. The Judge was, of course, not required to believe that testimony. Thompson v. State, 307 Ark. 492, 821 S.W.2d 37 (1991); Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985).
2. Comparative sentences
While it is true that the Trial Court could have honored a request for leniency pursuant to Ark. Code Ann. § 16-90-107(e) (1987), Mr. Riggins has not shown that the outcome of his trial would have been different had his counsel requested consideration of the sentences received by the others who were involved in the crime of which he was convicted. We do not reverse absent such a showing, Strickland v. Washington, 466 U.S. 668 (1984); Johnson v. State, 325 Ark. 44, 924 S.W.2d 233 (1996), and absent a showing that the Trial Court’s decision on the matter was clearly erroneous. Rowe v. State, 318 Ark. 25, 883 S.W.2d 804 (1994).
Affirmed. | [
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Hart, J.
(after stating the facts). There is nothing in the contention of appellant that the mayor of the city of Brinkley had no authority to revoke his license because the prosecution was had for a violation of the liquor laws of the State, and not for a violation of a city ordinance. The mayor has the same jurisdiction to hear and determine cases within the limits of his jurisdiction under the criminal laws of the State as has a justice of the peace. Kirby’s Digest, § 5590; Marianna v. Vincent, 68 Ark. 244. Section 5247 of Kirby’s Digest provides that “when.ever any physician and surgeon or person engaged in the practice of medicine or surgery in this State shall be convicted of any crime and misdemeanor involving moral turpitude, in addition to the other penalty or penalties imposed upon him shall be added a revocation of his license to practice medicine and surgery.” This section makes the revocation of the license a part of the punishment for the offense, and contemplates that it shall be imposed by the court in which the case is tried.
The second ground relied upon by appellant for reversal is whether or not the sale of intoxicating liquors contrary to the statute is a misdemeanor involving moral turpitude, and that is the real question in the case.
“Offenses against the liquor laws, such as illegal sales of intoxicants, keeping liquor in possession with the intent to dispose of it unlawfully, illegally transporting liquor from place to place, and the like, are statutory crimes, not being punishable at common law. They are also of the description mala prohibita, as there is no inherent immorality in such acts, and their illegality lies only in the fact of their being positively prohibited.” Black on Intoxicating Liquors, Par. 383.
“Moral turpitude is defined to be an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen or to society in general.” 20 Am. & Eng. Ency. of Law, 872. See also Ex parte Mason, 54 Am. St. Rep. 772; In re Kirby (S. D.) 39 L. R. A. 856.
Moral turpitude implies something immoral in itself, regardless of the fact whether it is punishable by law. The doing of the act itself, and not its prohibition by statute, fixes the moral turpitude. It seems clearly deducidle from the above cited authorities that the words “moral turpitude” had a positive and fixed meaning at common law, and that the illegal sale of intoxicating liquors, not being an offense punishable at common law, does not come within the definition of a crime involving moral turpitude.
In a statute using • a word the meaning of which is well known, and which has a definite sense at common law, the word will be restricted to that sense. Buckner v. Real Estate Bank, 5 Ark. 536.
Counsel for appellee contends that the judgment should be affirmed because the appellant saved no exceptions to the trial court's conclusion of law. No declarations of law were asked, and none were given by the court. Appellant contends that the judgment of the court is not.sustained by the evidence. In such cases no exceptions were necessary, as the exceptions were prop erly preserved in the record and carried forward in the motion for a new trial.
For the error in pronouncing a revocation of appellant’s license to practice medicine, the judgment is reversed, and the case dismissed. | [
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Hill, C. J.
W. H. Blackwell owned a tract of timber land in Perry County, and on December 1, 1896, sold the timber thereon to J. M. Crist. The timber was to be cut and removed by December 1, 1904. Crist took possession of the land, and cut some timber therefrom. On the 19th of February, 1901, he entered into a written contract with B. Faisst by which he sold Faisst all the merchantable timber suitable for making lumber upon said lands.
The terms of payment were provided in said contract, including the payment to the heirs of Blackwell for the amount which would accrue to them under the terms of the contract between Blackwell and Crist. The aggregate amount due the Blackwell heirs was $1025. It was further provided that the amount of all the timber sold should be paid for within two years from the date 'thereof. <
Faisst was president of the Bryant Lumber Company, and it was admitted that he made the contract in his own name but on behalf of the lumber company and for its benefit. The lumber company cut timber from said land, and made various .payments therefor, and among others made a settlement with Mrs. Burrow for the heirs of Blackwell on the 14th of October, 1902.
Crist brought suit in his lifetime against the lumber company for the amount due under the contract, but it ■ was dismissed. Fie subsequently died, and this action was brought by his administratrix to recover for the timber cut by the company and the timber not used by it at the expiration of the lease. It was shown that the lumber company and Faisst were familiar with terms of the lease by which Crist’s rights ceased on the first of December, 1904. The administratrix recovered judgment for $1500, and the lumber company and Faisst have appealed.
1. The first contention is that the verdict is not supported by the evidence. There is a conflict in the testimony as to the amount'of timber on the land and as to. the amount cut by the lumber company. The appellants insist that the evidence adduced by the appellee to sustain the amount cut by the company and that left upon the land is vague, indefinite and uncertain, and not sufficiently reliable to constitute the basis of a recovery. It is contended that it was not possible to measure the stumps of the trees and then measure the tops of the trees when the intervening log was gone, and then determine whether or not the intervening timber contained in the tree was merchantable after several years had elapsed and the land had been inundated by floods, in some instances covering the stumps with sediment, and sometimes carrying away the tops.
Witnesses for appellee, however, said that 'they were able, except in a few instances, to find the tops, of the trees and by the rule of scaling timber to make an estimate of the amount taken therefrom; and, where they were unable to do so, to make an approximation thereof; that they were able to recognize the stumps from their age which had been made by the cutting of the lumber company, and did not estimate the cuttings which had been made some years prior thereto by Crist. The argument made against the testimony goes solely to its weight, and does not reach to its competency. The evidence was sufficient to sustain the verdict, and the court was right in refusing to exclude the testimony of certain witnesses as requested by appellants.
' II. It is contended that there was a' settlement between Mr. Crist and Mr. Faisst in the lifetime of Mr. Crist of the matters in controversy, and that Mr. Faisst’s testimony upon this point was undisputed. But Mrs. Burrows, with- whom the settlement was made, gives another version of the transaction, and she says that after the settlement was made Crist still retained the right to the standing timber until the first of December, 1904, and that he only surrendered to her the agricultural portion of the land, and not the timber, as a result of the settlement. The issue as to the settlement was properly sent to- the jury, and their finding is not without evidence to support it. In addition to Mrs. Burrow giving a different version of the transaction, there were other facts in evidence not necessary to review which were in conflict with the testimony given by Mr. Faisst on this point. The jury was warranted in not accepting his testimony of the settlement.
III. Appellants asked an instruction of the court to the’ effect that appellee could not recover for any timber left standing on the land by the appellants, but that the appellants were only liable for timber actually cut, scaled and received by them. This was an erroneous construction of the contract. It was a sale to Faisst of “all the merchantable timber suitable for making lumber, standing and lying (being) on the following described lands' . . . Then follows a description of the lands, and following that the terms of payment, concluding with this clause: “And the payment of all of said timber hereby sold shall be completed within two years from date hereof.”
This was a sale of all the merchantable timber suitable for lumber, and all of such timber had to be paid for, whether used by the lumber company or not. Crist had a right to utilize every foot of the timber until December 1, 1904. ' Instead of utilizing it himself, he sold it to the lumber company; and it was reasonable and business-like that he should sell all of the timber that he had, instead of selling’only such as the lumber company saw fit to use. At any rate, such were the terms of the contract, and it must be enforced as written.
IV. Objection is made to an instruction which told the jury 'that if they .found that Faisst was president and manager of the lumber company, and while acting as such made the contract with Crist, and that the lumber company acted under the contract, it would be liable; and also to an instruction that if Faisst executed the contract in his own name he is bound by such contract. These instructions were right and pertinent to the case. Where an agent makes a contract, he is primarily liable, and the principal, when discovered, can be held liable, at the election of the party who has dealt with the agent. In such cases both parties are liable. Mechem on Agency, 695-696; 1 Am. & Eng. Enc. 1122; Miss. Val. Const. Co. v. Abeles & Co., ante p. 374; Benjamin v. Birmingham, 50 Ark. 433.
Some other matters are presented, and all have been carefully considered; but the court finds no error in the record, and the judgment is affirmed. | [
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Hire, C. J.
The Reporter will state the substance of the agreed statement of facts and so much of the ordinance as is material, in the statement of facts; and it will be seen therefrom that the city of ITot Springs exacted a tax of six hundred dollars per annum upon each person, firm-or corporation engaging in the saloon business, and each dealer in wines and liquors, keepers of dramshops or tippling houses except wholesale deal ers in malt liquors; and upon them a tax of $300 per annum Was exacted.
It is first insisted that the city council- was not- invested-with authority to pass this ordinance. Section 5438 of Kirby’s Digest, which confers general powers upon municipal corpora-tions, authorizes them “to license, regulate, tax or suppress * * * tippling houses, dramshops, any dealer in wines and liquors by the quantity, or otherwise than as keeper of tippling houses or ■dramshops.” Appellant is an agent of a large brewery concern, and sells beer by the wholesale in barrels not less than five gallons each, and bottle beer in cases and barrels. The beer is delivered to his customers from a storage room in the city, and is distributed in wholesale lots by wagons, upon orders from local saloons or dramshop keepers in said city, and in no way does he maintain any place where such malt liquors are kept for sale by retail. .It is argued that the Legislature in the statute above quoted must have intended all places where liquor was retailed in drinking places, and not with such forms of business for which the word “license” or “regulate” would be a misnomer. The argument is that the power to license, regulate and tax tippling houses and dram-shops, etc., must harmonize with the hody of the law, including the power of taxation, and that this power of taxation is limited to the regulation 'of such houses as call for police regulation by the nature of their business, such as tippling houses, dramshops,’ and other drinking places, and is inapplicable to warehouses where beer is stored and sold only to retail dealers. This argument might have force if addressed to the legislative department of the government, but lacks force when addressed to the judiciary, which is requred to enforce the law as written when the writing is plain and the meaning clear. There is no room for construction of the above clause of the statute. Tippling houses, dramshops, and dealers in wines and liquors by the quantity, and other dealers than those having tippling houses and dram-shops, are all classed in the same category, and the city given authority to license, regulate, tax or'suppress them. Whether it was wise or unwise to so class these dealers was a matter far the Legislature, and not for the courts. Ita lex scripta est.
It is insisted that the ordinance is void for discrimination in sfeeking to tax wholesale dealers in malt liquors and leaving dealers in wines, whiskies, spirituous and other liquors exempt therefrom. Mr., Black, a learned law writer, who has given special study to t'he laws regulating the sale of intoxicating liquors, having written a treatise upon it, is the author of a chapter on intoxicating liquors in the Cyclopedia of Law and Procedure, and in dealing with this subject says: “The constitutional requirement of uniformity in taxation does not prevent the classification of occupations; and a statute imposing a tax on the business of liquor selling is not unconstitutional because the State permits other occupations to be pursued without taxation, nor because the liquor dealer' is required to pay his tax in advance, while milder terms are imposed upon other vocations which also are taxed. And, whilq it is necessary that all persons pursuing the same occupation in the same way should be taxed alike, it is permissible for the Legislature to divide liquor dealers into different classes, and discriminate between them in respect to the amount of taxation imposed, if the classification is based upon proper and reasonable grounds of distinction, such as the difference between manufacturing and retail selling, or as to the character of the liquors dealt in, or with reference to the locality where the business is carried on, or to the relative volume of business done, the tax being graduated according to the amount of sales made by the particular dealer.” 23 Cyc. 85. The cases in the notes sustain’the text. See on the same subject Black on Intoxicating Liquors, § 109. On the question of taxing privileges generally, see Waters-Pierce Oil Co., v. Hot Springs, 85 Ark. 509.
Other questions are raised in the discussion, but they are all answered by the conclusions reached under these two heads. Touching other attacks upon the ordinance, it may be well to note that the State has the full constitutional power to impose a tax upon the business of liquor dealers, wholesale as well as retail, and to declare who shall constitute such dealers; and that an exaction, whether imposed as a license fee or under the name of a tax, is not primarily designed as a means of raising revenue, but as a means of limiting and restricting a traffic which is dangerous to the best interests of the community, and therefore it is not in reality an exercise of the taxing power of the State, but of its police power. Black on Intoxicating Liquors, § 55-
When this is bonne in mind, then the difficulties in the way of the statute in question, and ordinances passed under its authority, cease to be vexing.
Judgment is affirmed. | [
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Hart, J.
This action was brought by appellee against appellant to recover upon a policy of life insurance. This is the second appeal of the case. The opinion on the first appeal is reported in 81 Ark. 87 (Industrial Mut. Ind. Co. v. Perkins), and contains a full statement of facts.
The same facts as reported there, were adduced in evidence at the trial in the court below, and, in addition thereto, W. C. Nicholson, who was not a witness at the former trial, testified that he was the agent of appellant. That he gave 'the policy to Henry Howell, and asked him to deliver it and collect the premium. That Howell reported to him that he had delivered the policy, but failed to collect the premium. That afterwards he went to see Perkins, the person insured by the policy,' for the purpose of collecting the premium. That Perkins did not pay him, and shortly afterwards died without paying it.
There was a jury trial and verdict for appellee. Appellant contends that there is no evidence on which to base a verdict for appellee.
We think the evidence now overcomes the prima facie case made by the delivery of the policy and receipt. The testimony adduced at the former trial has been reinforced by that of Nicholson, the agent of the company, whose duty it was to collect the premium, and who was in a better position than any one else to know whether or not it had been paid. The testimony is uncontradicted and not weakened by cross-examination. It is reasonable and leaves no room for doubt. It shows conclusively that the premium was not paid. Hence, there was no issue of fact to submit to the jury, and the court should have directed a verdict for appellant.
Reversed and dismissed. | [
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Hart, J.
On the 31st day of October, 1902, David A. Earnest was a conductor on appellee’s line of railway, which extends from Cape Girardeau in Missouri to Pocahontas in Arkansas. On that day at the town of Delta in Missouri, while engaged in his duties as freight conductor and while attempting to uncouple two cars of defendant’s train, said David A. Earnest was caught between the cars and mashed. He died from the wounds received in a few days thereafter.
Appellant alleges that the injury and death was caused by the negligence of the appellee. That she is the widow of said David A. Earnest, deceased. Thant said deceased had no minor children. That she has resided in the State of Arkansas since the death of her husband, and was never a resident of the State of Missouri.
The action was commenced in the circuit court of Randolph County, Arkansas, on the 16th day of July,. 1904.
Appellee filed a general demurrer to the complaint. The demurrer was sustained, and judgment was rendered in favor of the defendant for costs. An appeal was granted to this court.
This suit is based on section 2864 of the Revised Statutes of Missouri in 1899, which reads as follows:
“Whenever any person shall die from any injury resulting from or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant, or employee whilst running, conducting or managing any locomotive, car' or train of cars, or of any master, pilot, engineer, agent or employee whilst running, conducting or managing any steamboat, or any of the machinery thereof, or of any driver of any stagecoach or other public conveyance whilst in charge of the same as a driver; and when any passenger shall die from any injury resulting from or occasioned by any defect or insufficiency in any railroad, or any part thereof, oi- in any locomotive or car, or in any steamboat or the machinery thereof, or in any stage coach or other public conveyance, the corporation, individual or individuals in whose employ any such officer, agent, servant, employee, master, pilot, engineer or driver shall be at the time such injury is committed, or who owns any such railroad, locomotive, car, stage coach or other public conveyance at the time any injury is received resulting from or occasioned by any defect or insufficiency, unskillfulness, negligence or criminal intent above declared, shall forfeit and pay for every person or passenger so dying the sum of five thousand dollars, which may be sued for and recovered: First, by the husband or wife of the deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased, whether such minor child or children of the deceased be the natural born or adopted child or children of the deceased; provided' that if adopted such minor child or children shall have been duly adopted according to the laws of adoption of the State where the person executing the deed of adoption resided at the time of such adoption; or, third, if such deceased be a minor and unmarried, whether such deceased unmarried minor be a natural born or adopted child, if such deceased unmarried minor shall have been duly adopted according to 'the laws of adoption of the State where the person executing the deed of adoption resided at the time of such adoption, then by the father and mother, who may join in the suit, and each shall have an equal interest in the judg ment; or if either of them be dead then by the survivor. In suits instituted under this section it shall be competent for the defendant, for his defense, to show that the defect or insufficiency named in this section was not of a negligent defect or insufficiency, and that the injury received was not the result of unskillfulness, negligence or criminal intent.”
Section 6 of the act of December 12th, 1855, now section 2868 of the Revised Statutes of 1899, reads as follows:
“Every action instituted by virtue of the preceding sections of this chapter shall be commenced within one year after the cause of action shall occur.”
The first question presented by the record is whether this statute of Missouri creates a statutory liability?
At common law a right of action existed for an injury to the person, which did not result in death, but no right of action existed for the death of a human being. Counsel for appellant seems to have been confused in regard to the two classes of cases.
In Barker v. Hannibal & St. Joseph Railroad Co., 91 Mo. 91, the Supreme Court of the State of Missouri said in discussing this statute: “It may be observed that damages for the tort to a person, resulting in death, were not recoverable at common law, nor could husband or wife, parent or child, recover any pecuniary compensation therefor against the wrongdoer. Our statute on this subject both gives the right of action, and provides the remedy for the death, where non'e existed at common law: and where an action is brought under the statute, it can only be maintained subject to the limitation and conditions imposed thereby.” .
This case was cited and followed in Brink v. Wabash Ry. Co., 160 Mo. 92, and the following quotation adopted from the case of Insurance Company v. Brame, 95 U. S. 754 :
“The authorities are so numerous and so uniform to the proposition that by the common law no civil action lies for an injury which results in death, that it is impossible to speak of it as a proposition open to question. It has been decided in many cases in the English courts and in many of the State courts, and no deliberate, well-considered decision to the contrary is to be found.”
In the case of Little Rock & F. S. Ry. Co. v. Barker, 33 Ark. 353, this court said: “By the common law the death of a human, being could not be made the subject of a civil action.” And in Davis v. Railway, 53 Ark. 117, this court said:
“The English rule, which is commonly followed by the courts of the States whose statutes embody the provisions of Lord Campbell's Act, is that the rights of action given by the latter statutes to the personal representative of one whose death has been caused by another is created by the statute, and is not a continuation of the right of action which the deceased had in his lifetime, although the new right, it has been ruled, arises only by preserving the cause of action which was in the deceased.”
The Supreme and Appellate courts of Missouri hold that the provisions of the Missouri statute above quoted as to the parties who may sue, and the time within which they may sue, are conditions attached to the right itself given by the statute and not limitations merely. Barker v. Hannibal & St. Joseph Rd. Co., 91 Mo. 86; Case v. Cordell Zinc & Lead Min. Co., 103 Mo. App. 477; Packard v. Hannibal & St. Joseph Rd. Co., 181 Mo. 421.
The general rule is that where a cause of action does not exist at common law, but is created by the statutes of a State, it only exists in the manner and form and for the length of time prescribed by the statutes of the State which created it. Finnell v. Southern Kan. Ry. Co., 33 Fed. 427.
The rule has been announced and approved in the following cases: Munos v. Railroad, 51 Fed. 188; Theroux v. Northern Pac. Ry. Co., 64 Fed. 84; Pittsburg, etc., Railway Co. v. Hine, 25 Ohio St. 629; Eastwood v. Kennedy, 44 Md. 563; Negaubauer v. Gt. Northern Ry. Co., 99 N. W. 620; Dennis v. Atlantic Coast Line Rd., 49 S. E. (S. C.), 869 ; Stern v. La Compagnie Generate Transatlantique, no Fed. 996; Boston & Maine Rd. v. Hurd, 108 Fed. 116.
In the case of The Harrisburg, 119 U. S. 199, in discussing a like statute, the court said: “The time within which the suit must be brought operates as a limitation of the liability itself, as created, and not of the remedy alone. It is a condition to sue at all.”
In Hamilton v. Hannibal & S. J. R. Co., 18 Pac. 57, the Supreme Court of Kansas, in passing upon the precise question presented here, said:
“The statute of Missouri provides who may bring an action and the time and conditions within which it must be instituted, and compliance with these requirements is essential to the maintenance of the action. If the injury was not actionable in Missouri where it was inflicted, certainly it is not actionable here; and, unless it appears from the record that the widow could maintain an action in that State, she. has no cause of action which she can assert in this jurisdiction.”
Therefore we conclude that it is now well settled that where a statutory right of action is given which did not exist at common law, and the statute giving the right also fixes the time within which the right may be enforced, the time so fixed becomes a limitation or condition upon the right of action and will control, no matter in what forum the action is brought.
As a rule, the statute of limitation cannot be taken advanatge of by demurrer to the complaint, in an action at law, unless the complaint shows that a sufficient time had elapsed to bar the action and the non-existence of any ground of avoidance. Dowell v. Tucker, 46 Ark. 438.
But counsel for appellant has not raised this question, and besides we have held that the. time fixed by the statute is not strictly a statute of limitation, but attaches as a condition to the right to sue.
The demurrer in this case was properly sustained, and the judgment is affirmed | [
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Hiuu, C. J.
On April 16, 1907, there was filed in the county court of Benton County a petition on behalf of the town of Gravette, signed by the mayor, the designated agent of the town, and twenty-one petitioners, praying for the annexation to that town of certain described territory. It was alleged that the proceedings were pursuant to an ordinance passed on February 19 by the town council and voted upon April 12 at the regular election.
On the 9th of May, a petition signed by twenty-one persons “living and freeholders within the boundaries set forth in the petition above referred to, who do most positively protest and remonstrate against the granting of said petition,” was filed with the county clerk.
The 10th of June was the date the petition for annexation was set for hearing, and it was submitted on that day; and on the 17th of June it came on for final hearing, and the courc granted it, and declared the described territory to be annexed and made a part of the town of Gravette. The judgment recited that it appeared from the certificate of the election commissioners that at the regular municipal election on the 12th of April there was a vote on the subject, resulting 59 to 39 in favor of annexation, and that notice had 'been duly published pursuant to the statute. No reference was made in the judgment to the remonstrance, but the judgment refers to the submission of the cause and the final hearing of it on the 17th of June.
On the 15th of July three of the signers of the petition of remonstrance joined in an affidavit and prayer for an appeal from this judgment of the county court. It was filed on the 17th of July with the circuit clerk, and the appeal by him granted. Appellants on the same day filed with the county clerk a notice to him of the appeal, and that they had filed “a complaint against the annexation.” The complaint against annexation filed in the circuit court set forth in nine paragraphs their reasons for opposing the annexation. It is unnecessary to consider them on this appeal.
The town moved the circuit court to dismiss the appeal, on the ground that it did not appear from the record of the county court that the appellants were made parties or asked to be made parties to the proceedings in the county court. The court found that the said appellants had filed with the clerk of the county court a protest on the ninth of May against the annexation of the designated territory, but that none of them were ever made parties to the proceedings or asked to be made parties thereto, or contested the same in the county court, and held that they had no right to appeal from the judgment of the county court in the matter, and dismissed 'the appeal; and the remonstrants have appealed to this court.
The appeal from the county court was properly prosecuted and the statute complied with, and the sole inquiry is whether the filing of the protest was such a joining of the parties as to entitle them to appeal from the judgment annexing the designated territory, against which annexation they in apt time remonstrated.
The authority for the annexation is sec. 5519, Kirby’s Digest, and the procedure is provided in said section and in 5574, 5575 and 5576, as far as applicable. Thirty days are allowed for a notice of complaint against such annexation; and where such complaint has been heard and dismissed, then thirty days must elapse before the order of annexation shall be made. This thirty days after the dismissal of the complaint is evidently in order to allow the remonstrants to appeal. There can be no other purpose for it in the legislative scheme. That.course was pursued in this case, and was a proper recognition by the county court that a complaint had 'been filed. While it was not formally dismissed, yet the contrary judgment was a denial of the contentions of the remonstrants. No reasons, legal or otherwise, are alleged in the remonstrance against the petition. It is a mere protest! But it is sufficient to entitle the parties to a hearing. There do not have to be reasons for attacking the validity of the proceedings in order to defeat the annexation. Sec. 5575 provides that any person interested may appear and contest the granting of the petition; and sec. 5576 provides that it shall only be granted where the statutory provisions are complied with, and it “be deemed right and proper in the judgment and discretion of the court that said petition should be granted.”
The nature of this proceeding is fully discussed by Mr. Justice Eakin in Dodson v. Fort Smith, 33 Ark. 508. While some of the language of the discussion may not be in accord with the since settled practice of trials de novo in the circuit court, yet the case as a whole is undoubtedly sound. These remonstrants became parties to the proceedings in the way in which they were authorized by the statute to become so — that is, by filing a petition against the annexation within the time prescribed by the statute. Under the repeated decisions of this court in analogous cases, this made them parties and entitled them to take an appeal. Dodson v. Fort Smith, 33 Ark. 508; McCullough v. Blackwell, 51 Ark. 159; Lee County v. Robertson, 66 Ark. 82; Reese v. Steel, 73 Ark. 66; Whissen v. Furth, 73 Ark. 366; Bowman v. Frith, 73 Ark. 523.
The court erred in not entertaining the appeal and hearing the case de novo.
Judgment reversed and cause remanded. | [
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McCueloci-i, J.
This is a proceeding instituted by appellant railway company in the circuit court of Ashley County against appellee to condemn, for railroad purposes, a strip through a lot in the town of Hamburg.
The jury returned a verdict assessing appellee’s damage at the sum of $600, and the railway company appealed.
The chief argument of learned counsel for appellant is that the damages were assessed at a grossly excessive amount.
The testimony was conflicting, and consisted mainly of the opinion of a number of witnesses who professed familiarity with the land in question and its market value. It is unnecessary for us to state on which side we think the preponderance lies, as there was sufficient evidence to warrant the verdict.
Exceptions were saved to the refusal of the court to give one instruction asked by appellant and the giving of two instructions at the appellee’s request. The bill of exceptions does not purport to set forth all of the instructions, though the clerk has copied in other parts of the transcript a long list of instructions said to have been given at the instance of each party. In this state of the record we cannot determine whether the jury received proper instructions or not. The bill of exceptions must incorporate the instructions of the court, otherwise they cannot be considered by this court on appeal. J. F. Hartin Com. Co. v. Pelt, 76 Ark. 177.
The case was tried before a special judge who, the record shows, was duly elected to preside on account of the sickness of the regular judge of the court. The validity of .the proceedings is attacked on the alleged ground that the regular judge was present during the progress of the trial and from time to time interrupted the progress of the trial long enough -to make orders in other cases. We have no evidence of these facts before us except the recitals of the bill- of exceptions, and.,the records of the court can not be contradicted or varied in that manner. Arkadelphia Lumber Co. v. Asman, 72 Ark. 320.
We find no prejudicial error in the record, and the judgment is therefore affirmed. | [
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Per Curiam.
' Plambright recovered judgment in the Miller Circuit Court against the St. Louis, Iron Mountain & Southern Railway Company in the sum of $5,000, and said cause has been appealed to this court, and is now pending! Hambright executed an assignment of one-half of said .judgment and one-half of his interest in the cause of action to his attorneys, and duly acknowledged the same, said assignment being made in conformity to the act of April 4, 1899 (sec. 4457, Kirby’s Digest). The attorneys offer said assignment for filing in this court.
This act evidently refers to the filing of assignments of judgments or causes of action in the court wherein the judgments are rendered or the cause pending, and not in this court. Provision is made for the transfer to be entered on the record of the court where the judgment is recorded, or on the docket where a suit is pending, if it has not proceeded to judgment. That record may properly be included in the transcript to this court, apd in that way notice is given in this court as well as in the lower court, and the object of the statute fully attained.
Questions of fact -may well arise in regard to these assignments; and the trial courts, and not appellate courts,' are the proper place to determine them. There is nothing in the lan-' guage or purpose of the act that would indicate that it was intended that these assignments be filed in the Supreme Court. The assignment will not be filed in this court, and the clerk is directed to return it to the attorneys who presented it. | [
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Hill, C. J.
Hall & Hughes, two physicians, sued Henderson & Campbell, a firm of lawyers, alleging that said firm engaged the professional services of the plaintiffs to visit, examine and report upon the physical condition of one Mrs. Caroline Wyse, a client of theirs, who was alleged to have been injured through the negligence of a railroad company, and that the plaintiffs performed such services and for the same'the defendants agreed that they would pay to them the sum of two hundred dollars. The answer admitted the employment for the'purposes stated, but denied that they had agreed to pay the sum of $200 or any other certain sum, but alleged that they had agreed to pay the sum that the services would reasonably be worth. They alleged that the services were worth $34, but they tendered $40 ■before suit, and continued the tender in their answer.
The plaintiffs testified to facts which, if believed, would have sustained their allegation that the defendants had promised to pay them $200 for théir services. Dr. Hughes testified to the services rendered, and that thereafter he went to Jonesboro on private business, and while there saw Dr. Dutterloh (the physician for the railroad company), who stated to him that he thought t'he railroad company would pay $1,000 to the injured woman and $100 each to Dr. Hall and himself; that on his return he told Mr. Henderson' that the case could be settled on these terms, and that Henderson approved it; and he was further permitted to testify as follows: “I consider the services we rendered the defendants were worth $200 to them because we piade the case for them and got the compromise for them.”
The defendants offered testimony which, if believed, would prove that there was no contract for a fixed sum, and that they were liable for reasonable services only. The plaintiffs in rebuttal offered testimony from several doctors that the charge of $200 was reasonable in view of the fact that the services rendered were not ordinary services, and the further fact that the doctors might be made to appear in court as witnesses. The defendants in rebuttal of this introduced testimony tending to prove that the amount tendered by them was full compensation for the services rendered.
The court gave two instructions to the jury: The first was that if they found by a preponderance of the testimony that defendants agreed to pay plaintiffs the sum of $200 for the services rendered, they should render verdict against the defendants for that sum; the second was to the effect that if there was no contract for any certain amount entered into between the parties, then it was their duty to find for the plaintiffs in such sum as they fcund would be a fair and reasonable compensation for the services rendered by the plaintiffs to the defendants under the contract that was entered into between them; and in arriving at their con elusion as to the amount that was due them that they should weigh and consider all the facts and circumstances in the case.
The jury returned a verdict for $130, and therefore it must be taken that the jury found against the plaintiffs as to a contract to pay $200. It is objected that the plaintiffs should, not have recovered on a quantum meruit when they sued on a contract, and that it was error to give the second instruction and admit testimony of the value of the services. The answer admitted the employment and contract for services, and alleged that the amount was not agreed upon but should be the usual fees for such services. This made it permissible for either party to introduce evidence as to the value of the services, and the second instruction was proper in submitting to the jury the case as presented in the answer. This was the view which prevailed with the jury, although they fixed the compensation higher than defendants’ witnesses put it, and less than the plaintiffs’ put it.
But the. court erred in admitting testimony. In the first place, the testimony that the doctors brought about the compromise, and that their services were worth $200 to the defendants because they made their case for them and got a compromise for them, was without the issues and highly prejudicial. The suit is solely for recovery of the value of medical services, ■and not for services as negotiators of a compromise; and when the court admitted this testimony the jury had a right to assume that they should find for the value of their services in this regard as well as their medical services.
The court also erred in admitting testimony of several doctors to the effect that the plaintiffs’ services were worth $200 because they were not ordinary services, and the further fact that the plaintiffs might have had to attend court as witnesses. One of their witnesses was asked on cross-examination if the case had been dismissed before the time for fixing a fee what his charge would be, and he replied that then the charge should be as for ordinary services; and this amount he fixed at less than the amount tendered. As the case of the client was settled before this controversy arose, it was pure speculation as to what the physicians might have been called upon to have done had not the ■case beem settled. They were called to render professional services in a physical examination of a lady, and were entitled to pay for the value of those services, and not for any speculative incidents that might or might not have followed from this service.
Other matters are presented; but as the judgment is reversed for the above errors, it is not necessary to consider them, as they will not occur in a second trial.
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Wood, J.,
(after stating the facts). Upon the undisputed facts, appellant was entitled to his commission. While appellee shows that the understanding was that appellant was not to have his commission until the deal was cloáed and the purchase money was paid, and that the commission was to be paid out of the proceeds of the sale, yet it appears that appellant had furnished the purchaser, who entered into a contract with the appellee for the purchase of his land. Appellee, by entering into the contract with the purchaser furnished by appellant, accepted such purchaser as satisfactory. It is not pretended by appellee that the contract was unenforcible.
The law is well settled that “where a real estate broker contracts to produce a purchased who shall actually buy, he has performed 'his contract by the production of one financially able, and with whom the owner actually makes an enforcible contract of sale. The failure to carry out that contract, even if the default be that of the purchaser, does not deprive the broker of his right to commissions.”' Lunney v. Healey, 44 L R. A. 593. In note to the above case it is said: “The business of a real estate broker or agent, generally, is only to find a purchaser, and the settled rule as stated by the courts is that, in the absence of an express contract between the broker and his principal, the implication generally is that the broker becomes entitled to the usual commissions whenever he brings to his principal a party who is able and willing to take the property and who enters into a valid contract upon the terms then named by the principal, although the particulars may be arranged and the matter negotiated and completed between the. principal and the purchaser directly.” (Citing numerous authorities.) There was nothing in the contract of appellee with appellant, taking appellee’s statement of the contract as correct, that takes it out of the purview of the general doctrine above announced.
In the absence of a contract to the effect that appellant was to see that the purchase price was paid by the purchaser before any commission should be due him or before he could receive any commission, the duty of collecting the purchase money for the sale of the land would not devolve upon him. That was the duty of the seller, the principal, and not the broker. Therefore there was no consideration for the promise on the part of appellant to pay half the costs of the chancery suit, conceding that he made it. Such promise was voluntary on his part. But, if not, it was wholly collateral to the matter in controversy. Such a promise, unfulfilled, would not warrant appellee in refusing to.enforce the contract for the sale of his lands and in failing to pay appellant the commission he had earned when appellee entered into that contract with a purchaser whom appellant had furnished, and who was financially able to pay. The sale was. closed, so far as appellant was concerned, when an enforcible contract of that kind was executed.
The fact that appellant was postponed in his right to receive the commission until the purchase money was paid could not relieve appellee of the duty of collecting the money and paying appellant his commission out of it, when collected. And when appellee, by dismissing his suit in chancery to enforce the contract, virtually refused to collect the purchase money, fie immediately became liable to appellant for his commission.
The case cannot be differentiated in principle from the recent decision of .this court in Boysen v. Frink, 80 Ark. 254. See also Hill v. Jebb, 55 Ark. 574, where we said: “The employment of a broker to sell a tract of land constitutes a special agency, and when a sale is made the only purpose of the agency is accomplished.”
The judgment of the court on the undisputed facts is contrary to law. It is therefore reversed, and the cause is remanded for new trial. | [
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McCueeoch, J.
Appellee was employed by appellants, Pettus & Buford, to work in a cotton gin, and sues them to recover damages for physical injuries received while at work replacing a 'belt which had escaped from a pulley. He alleged in his complaint that apellants negligently fastened a -rope to the pulley and the shaft on which it revolved, and left it there with a loose, knotted end six or eight inches long, and that while he was in the act of replacing the belt his clothing was caught by the knotted end of the rope, throwing him against the shaft and injuring him. It is also alleged that the rope on the pulley was in a dimly lighted place, that its presence there was not observable without close inspection, and that appellants were also guilty of-negligence in failing to warn appellee of the presence of the rope. The testimony adduced at the trial tended to establish the allegations of the complaint, and was sufficient for that purpose. The jury rendered a verdict in favor of appellee, assessing his damages at five hundred dollars.
It is earnestly insisted that the testimony is insufficient to sustain the charge of negligence, but, as already stated, we are of the opinion that it was legally'sufficient to justify the verdict of the jury. It is undisputed that the pulley did' not fit on the shaft, that it had to be tightened with the rope, and that it was unusual to fasten a rope to the pulley and shaft.
There is a conflict in the evidence as to there being a knotted end of the rope extending from the pulley or shaft, but the evidence abundantly establishes the fact, and that it caught appellee’s clothing while he was attempting to replace the belt on the pulley. It is true that no one saw the end of the rope catch the clothing, but from the condition of the clothing wrapped around the shaft and rope and from the position .appellee occupied, according to his testimony, the jury could legitimately draw the inference that the injury occurred in that way. The evidence tends to show that it was not proper to have the pulley fastened in that way, that the rope with the knotted, loose end was situated in a dark place where it could -not be readily observed, that it frequently became necessary for an employee to go there to replace the belt, and that its presence there caused the injury to appellee. This was sufficient to make out a charge of culpable negligence on the part of appellants in the discharge of their duty to their employees in the exercise of ordinary care to provide a safe place where they were required to work.
Error is assigned in the giving of' the following instruction at the request of appellee:
“It was the duty of the defendants to furnish the plaintiff with suitable machinery, tools and appliances and a safe place for him to . work, and the plaintiff had a right to presume that the defendants would do their duty in this respect; so, when directed by proper authority, or when in the performance of his duty, he was required to perform certain services, or to perform them in a certain place, he would be justified in obeying orders, without being chargeable with contributory negligence or with the assumption of the risk in- so doing.”
The chief objection urged to this instruction is that it defines the duty of the master to be to furnish a safe place to the servant, instead of a reasonably safe place. The objection to the instruction was general,' and the attention of the court should have been called to the defect by specific objection.
The court also gave the following at appellant’s request:
“Reasonably safe appliances furnishes the test of the proprietor’s duty to the laborer; and if you find the’shaft and pulley were reasonably safe to those working about it at the time of the accident, you will find for the defendants.”
The two instructions are not in conflict with each other, but the latter explains and qualifies the former. Citizens’ Electric Co. v. Thomas, 75 Ark. 260. The latter explains what is meant by a safe place, and tells the jury that the master fully discharges his duty to the servant if he furnishes reasonably safe appliances.
Both instructions were erroneous in failing to state that the duty of the master would be discharged by exercising ordinary care in providing reasonably safe appliances with which to work, instead of saying that it was the absolute duty to provide such appliances. That is the real defect in the instruction, but no objection has been made either here or below on that ground, and a general objection was not sufficient. St. Louis, I. M. & So. Ry. Co. v. Barnett, 65 Ark. 255.
Instead of objecting on that ground, appellant requested the court to give the instruction quoted above which contains the same defect. Having induced or acquiesced in the error, they cannot complain. Fort Smith L. & T. Co. v. Barnes, 80 Ark. 169.
If, however, the instructions just quoted were calculated to give an erroneous impression of the law of the case, it must have been entirely removed by the following instruction which the court gave:
“The law holds one operating machinery liable for only such mishaps as a reasonably prudent person should anticipate and foresee as a probable result of the condition of the machinery; and, unless you find from- the proof by a preponderance that the rope was the cause of the accident, and that it was upon the shaft and pulley in such a way that those in charge, as reasonably prudent persons, should have foreseen and anticipated the probability of an accident such as happened, you- will find for the defendants.”
The further objection is urged to the instruction first quoted is that it told the jury in effect that, because of the presumption which the servant had the right to indulge that the master had discharged his duty, he could not be guilty of contributory negligence in so doing, nor could he be held to.have assumed the risk. We do not think the instruction could have been so understood by the jury, so far as the question of contributory negligence is concerned, for the court in another instruction given at appellant’s request clearly sübmitted that question to the jury.
As to the question of assumption of risk, it was entirely correct to say that a servant has the right to act upon the presumption that the-master has discharged his duty with reference to providing suitable appliances and a safe place, and that he does no't assume the risk of danger caused by the negligence of the master. Choctaw, O. & G. Rd. Co. v. Jones, 77 Ark. 367; Southern Cotton Oil Co. v. Spotts, 77 Ark. 458.
Objection is made to another instruction given at request of appellee, but we find no error therein.
The record is free from error, and the judgment must be affirmed. It is so ordered. | [
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Wood, J.,
(after stating the facts). The letter which appellant exhibits and makes the basis of his complaint is fatal to his cause of action. We must construe it as a whole, and, considering all of its parts, read it so as to make it intelligible if it can be done. Kelly v. Dooling, 23 Ark. 582; Railway v. Williams, 53 Ark. 58. For we must assume that the author of tiie letter intended that it should convey some meaning. “Words which are omitted by inadvertence from a written contract may be supplied by construction at law, without resort to reformation, if the context shows what words are omitted.” 2 Page on Contracts, § 1125; Richelieu Hotel Co. v. International Military Encampment Co., 140 Ill. 248, s. c. 33 Am. State Rep. 234.
The omission of the word “not” before the word “promise” is a plain inadvertence, or clerical misprison which the context itself readily and naturally supplies. Otherwise the different parts of the latter are not only contradictory, but absurd and meaningless. No one could read the letter without seeing that the word “not” was intended to be used before the word “promise.” Gran v. Spangenberg, 53 Minn. 42, s. c. 54 N. W. 933; Wallis Iron Works v. Monmouth Park Association, 19 L. R. A. 456; Sisson v. Donnelly, 36 N. J. L. 432; 9 Cyc. 585, note 30.
The court did not err therefore in sustaining the demurrer; and, as appellant did not offer to amend, the judgment dismissing the complaint is affirmed. | [
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Hill, C. J.,
(after stating the facts). It is earnestly insisted that the evidence does not sustain the verdict; and it must be admitted that it is doubtful' whether the record shows sufficient evidence .to sustain the verdict that there was no indebtedness. It was within the province of the jury to disallow the item of $50 for gathering the- crop, and possibly some other items that were attacked as unreasonable, which are not definitely explained in the evidence; and the jury were authorized, under the defendant’s evidence, to have allowed him some credits which he was not given. But whether, allowing the full force to all of the defendant’s evidence, there was enough evidence to sustain the verdict may well be questioned. As the instructions were erroneous, however, it is not necessary for the court to pass upon the sufficiency of the evidence, as the case may be more fully developed at another trial.
At the time of the attachment, Turner was owing the orchard company $175.30, after allowing him full credit for three and half bales of cotton that it had received. If the fair market value of the property that he left was sufficient to have paid the plaintiff’s claim at that time, then the plaintiff had no ground of attachment. It might have been that the market value of his crop at that time was not equal to the plaintiff’s debt, and that the plaintiff, by good husbandry, worked out the crop so that it did pay its claim; in which event the attachment should be sustained, and the cost incident thereto be adjudged against the defendant up to the time the debt was liquidated by plaintiff’s realization of the crop. On the other hand, the crop may have been of a market value more than sufficient to have paid the plaintiff’s claim, and yet the plaintiff, by poor husbandry, had not received enough therefrom to pay its debt; in which event the attachment should not be sustained. There was another issue as to whether the debt had been paid. If the debt had been paid by the plaintiff so gathering and marketing the crop that it liquidated the indebtedness, then there should be no recovery. in favor of the plaintiff for the debt; and if it overpaid it, there should be a recovery in favor of the defendant for the excess; and if, under proper care, the' crop had not paid the debt, the plaintiff should have judgment for the balance. This is a separate issue from the one. on the attachment, and should not be confounded with it, and the fate of the attachment made to hang upon it.
In the third instruction the court correctly instructed the jury as to striking a balance betwen' the plaintiff and defendant and giving judgment accordingly; but in the fourth instruction the jury were told after such balance was struck they should find for the defendant on the account, then they should give him judgment for damages in whatever sum the evidence showed was the reasonable usable value of the property attached from the date of the attachment. This was confounding the two issues, and made the sustaining of the attachment dependent upon the outcome of the crop as handled by the plaintiff. It was proper for the question of debt to be determined by that, but not proper for the issue on the attachment to be so determined, for the reasons heretofore explained. .
Judgment reversed and cause remanded. | [
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Wood, J.,
(after stating the facts.) The written contract is plain. There is a clause expressly making “time of the essence of the contract,” and other clauses which clearly show that the parties intended at the time of the execution of the contract that the payments should be made at the times stipulated. From the language of various provisions of the contract the conclusion is irresistible that payment at the time specified was made a condition precedent to the right of appellant to acquire the title, and to obtain a deed to the land. This being true,, the case, so far as the written contract is concerned, comes well within the rule announced by Mr. Pomeroy and quoted by Judge Riddick in Carpenter v. Thornburn, 76 Ark. 578, as follows: “It is well settled that when the parties have so stipulated as to make the time of payment of the essence of the contract, within the view of equity as well as of the law, a court of equity can not relieve a vendee who has made default. With respect to this rule there is no doubt the only difficulty in determining when time has thus been made essential. It is also equally certain that, when the contract is made to depend on a condition precedent — in other words, when no right Shall vest until certain acts have been done, as, for example, until the vendee has paid certain sums at certain specified times — then also a court of equity will not relieve the vendee against the forfeiture incurred by a breach of such condition precedent.” 1 Pom. Eq., § 455; see also Ish v. Morgan, 48 Ark. 413; Cheney v. Libby, 134 U. S. 68; 4 Pomeroy, § 1408. But it does not follow that, because there has been a forfeiture under the strict letter of the contract, the vendor is entitled to insist upon it. That depends upon his conduct with reference to it. The Supreme Court of the United States in Cheney v. Libby, supra, after announcing the doctrine we have mentioned as to the proper construction of a contract where timé is essential, says: “The discretion which a court of equity has to grant or refuse' a specific performance, and which is always exercised with reference to the circumstances of the particular case before it, may, and of necessity must be controlled by the conduct of the party who bases his refusal to perform the contract upon the failure of the other party to strictly comply with its conditions.” Some of our. own cases to the same effect are Little Rock Granite Co. v. Shall, 59 Ark. 405; Morris v. Green, 75 Ark. 410; Bowman v. Banks, 83 Ark. 524.
The real difficulty in this case has been to determine, on the' issue of fact, as to whether appellee’s conduct was a waiver of the forfeiture. Appellant and appellee are the witnesses pro and con respectively on this issue, and as is Said by Chief Justice Hill in Bowman v. Banks, supra: “Where there is a conflict, it is a mere difference between two witnesses detailing the same transaction, and the court accepts in such conflict the testimony accredited by the chancellor, nothing else appearing to determine the preponderance.” There was a clear waiver of any forfeiture on account of a failure to pay the first note when it became due. The testimony of appellee himself shows that. For-among other things 'he says: “I always told Souter at t'he time of making the contract, and after that, that if he would pay the notes by the time the last note was due it would be all right.” The appellant, before the first note was due, went to the appellee and told him that he (appellant) was making improvements, and that he would not be able to make all of the first payment when due, and that thereupon appellee gave “an affirmative grunt.” He says that he had been doing business with appellee before this time, and had owed him' money, but that appellee had never insisted on payment when the money was due, and was always willing to extend the time. Therefore appellant concluded that appellee was willing for him to have additional time on the second note as well as the first. But appellant did not ask appellee about payment on the second note until after same was due. Then he found that appellee was unwilling to extend the time claiming that appellant was too late, etc. Appellant testified that he understood from what appellee said and did that he was willing to extend the time of payment after the last note became due. But appellant fails to point out any conduct on the part of appellee before or after the time for the payment of the last note that would warrant appellant in believing that appellee would extend the time for payment beyond the date when the last note was due.
Appellee testified that his indulgence to appellant was with reference to the first payment. True, he says that “may be he would have taken the money and given appellant a deed had he come up with the money in full before January I, 1907,” the day the contract was marked cancelled. But appellee says it was a bona fide sale, and “the forfeiture clause was put in the contract to show that he was to pay me so much money before he could get t'he land according to the stipulations of the contract.” The fact that appellee never asked appellant to pay any rent on the place, and that appellee retained the notes after the expiration of t'he time of payment, can not be taken as a waiver of the forfeiture. Appellee says that he told appellant in January, 1907, when he spoke about the matter, that he, appellant, could get the contract and notes at any time. He says that he did not intend to charge him rent, and there was nothing said about it; that what he did since December 1, 1906, the time for the final payment, he would have done outside of the contract and not under it.”
The faot that appellee did not charge appellant rent may be regarded as an act of kindness to appellant rather than an acknowledgment on -the part of appellee that he did not own the land. The testimony is set out in full, and it fully sustains the finding of the chancellor. His decree is therefore affirmed. | [
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Per Curiam.
The questions arising upon the motion to quash the execution, should have been tried by the court, but were, by consent, submitted to a jury. The evidence was conflicting, and their finding will not be disturbed.
But upon finding against appellant upon his motion to quash the executions, the court rendered judgment against him and the sureties upon an appeal bond for the amount of the justice’s judgments. This was error.
Reverse the judgment and enter judgment here against the appellant and his sureties for the costs of the justice’s and Circuit Court.
Reversed. | [
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Hemingway, J.
Although property, of which conversion is alleged, is in the custody of a Chancery Court, an action for its conversion may be brought in a law court, since it does not affect the possession of the property, or interfere with its custody.
If the chattels belonged to the appellee, and were converted by the appellant, this was a wrong for which a right of action arose to the appellee individually; and although there was a pending suit in chancery between the parties for an account and settlement of partnership affairs, the appellee could bring a separate action for the conversion, and was not required to litigate this claim in the chancery suit. If the objects of two suits are different, they may progress at the same time, although the thing about, or in reference to which, they are brought, is the same in each case. Wilmer v. A. & R. Ry. Co., 11 Myers Fed. Dec., sec. 300; Buck v. Colboth, 3 Wal., 334; Hatch v. Spofford, 22 Conn., 485.
The charge of the court fairly submitted the cause to the jury under the law as we have stated it, and the judgment will be affirmed. | [
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Per Curiam.
If the charge of the court demanded of the appellants a greater degree of diligence than the law sanctions in ascertaining the boundaries of the land upon which they had permission to hunt, it did not prejudice them, because there is no evidence in the abstract tending to show that they used any diligence at all. Clark v. State, 50 Ark., 570.
Braithwait was the owner of the land within the meaning of the act. Affirm. | [
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Per Curiam.
A person temporarily residing in another State, who has a domicile in this State,-may claim his exemption of personal property from sale under process, under Sec. 1, Art. 9, of the Constitution of 1874.
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The act of November 27, 1875, gives no right not granted by this clause, and is constitutional. Winter & Co. v. Simpson et al., 42 Ark., 410.
The judgment is affirmed. | [
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Per Curiam.
The appellant was convicted of murder in the second degree. The killing was admitted and the plea of necessary self-defense interposed.
The altercation began and ended in a store-room. The defendant and deceased were both armed with pistols. There was testimony tending to show that the deceased made the first demonstration of violence by attempting to draw his pistol; that the defendant first succeeded in getting his pistol in condition for use, and fired while the deceased was attempting to extricate his pistol from entanglement in a handkerchief which he carried in the same pocket; that, while the defendant fired, the deceased slowly moved off, seeking constantly an opportunity to return the fire. He never passed the door of the room, and fell with his pistol in his hand. The court instructed the jury, among other things, as follows :
“The jury are instructed that the killing of a human being can be justified only in necessary self-defense, and the slayer is guilty of murder when he pursues an adversary and kills him in retreat, unless the proof should show that the deceased at the time had given such provocation as to evidence a sudden and irresistible passion, in which case it would be manslaughter."
The deceased never retreated to a place from which he •could not, if he had desired, have shot the defendant. The evidence tended to show that he was not attempting to retire from the combat, but was merely seeking a situation more favorable for waging it. If such was true, it was not incumbent on the defendant to suspend his defense until the deceased .had gained the situation he sought, but he had the same right to defend himself as if the deceased were standing and attempting to shoot him. If the deceased was in fact seeking to retire from the combat, and his conduct manifested such purpose, the defendant was not justified in shooting him. The instruction quoted, properly declared the law in the view of the facts taken by the State, but fails to state it in the view taken by the defense. The law should have been declared as applicable to any view that might be taken.
We do not think it is sufficiently done in any other instruction given. If the seventh instruction asked by the defense had been given without modification, it would have supplied the omission in the instruction quoted. But this instruction as modified, with the instruction quoted, might reasonably have impressed the jury that the defendant could not excuse himself for shooting the deceased while withdrawing, although he were doing so to secure a position from which he might renew the combat more effectively.
For this reason the judgment is reversed and the cause remanded.
Sandels, J., Hughes, J., and Hemingway, J., concurred. | [
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Per Curiam,
1. Maria Brown, the plaintiff, was not prejudiced by the court’s refusal to instruct the jury that they ... . ... might return a verdict for punitive damages, because by their finding she was entitled to nothing.
2. The plaintiff’s third prayer for instruction was inconsistent with the ruling in Monday v. St. L., I. M. and S. Ry. Co., 49 Ark., 257. Moreover, it was not responsive to the cause of action stated in the complaint.
3. Upon the cause of action made by the complaint, it was necessary for the plaintiff to prove that the deceased was knocked or thrown from the defendant’s train before she could recover; and without an amendment to the complaint showing a cause of action for negligence by being run over by another train (if such amendment was permissible), there could be no recovery for that cause. There was no error in. instructing the jury to that effect.
4. The objection to the prejudice of the juror came too late after the verdict, inasmuch as the plaintiff had not availed herself of the opportunity to examine him on the voir dire .and was not misled or deceived in reference thereto.
5. The newly-discovered evidence was cumulative only. Affirmed. | [
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Cockrill, C. J.
No reason is disclosed for allowing a recovery for the benefit of Thomas E. McMahon in the name of John McMahon. He is not a trustee for Thomas E.; the mort gage contract was not made in his name; nor is he a person with whom the contract was made and therefore entitled to sue in his own name, within the meaning of sec. 4936 of Mansf. Dig. It is true that the plaintiff, John McMahon, conducted the negotiations which led to the mortgage, and also directed its execution, but he is not a party to the instrument, and in all his dealings was only the agent of Thomas E. McMahon, the mortgagee. An agent, who makes a contract for his principal, in the principal’s name, is not, in any legal sense, a person with whom the contract is made; the contract in such a case is with the principal only, and he alone is authorized to enforce it. Bliss on Code Pl., sec. 56. The agent in such a case has not necessarily even the implied authority to discharge the contract by receiving what is due upon it, much less the right to enforce payment by suit. Meyer, Bannerman & Co. v. Stone, 46 Ark., 210.
The court erred, therefore, in instructing the jury that John McMahon could in any event recover the property in dispute upon the faith of the mortgage executed to Thomas E. McMahon.
If John McMahon was the bailee of the property, or had a special interest in it, as he testified, he could maintain an action in his own name against one who wrongfully deprived him of the possession. Bliss Code Pl., sup. But the evidence was conflicting upon that phase of the case, and we cannot disregard the error pointed out.
Reverse the judgment and remand the cause for a new trial in accordance with this opinion. | [
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