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KENNETH S. HIXSON, Judge
[ tAppellant Saad Waqar Salim appeals from the Mississippi County Circuit Court’s order of forfeiture. On appeal, Sal-im contends that (1) the circuit court improperly refused to dismiss the State’s forfeiture petition for lack of prosecution; (2) the circuit court’s findings that the money was related to drug trafficking and in close proximity to contraband are clearly erroneous; and (3) he was prejudiced by the circuit court’s refusal to dismiss the forfeiture proceeding, as the State would be prohibited from refiling its forfeiture complaint. We disagree and affirm.
This case began after the State filed a forfeiture complaint on May 30, 2013, pursuant to Arkansas Code Annotated section 5-64-505 (Repl. 2016), naming Salim and Tiffany Stevens as defendants. The State alleged that the $1,400 seized during the execution of a ^search warrant at a Shell Superstop was subject to forfeiture. Appel lant filed an answer and requested that the complaint be dismissed and the money returned to him.
Subsequently, appellant filed a motion to dismiss for failure to prosecute on October 6, 2014. In his motion, he alleged that there had been no activity in the case for over twelve months and that the circuit court had the inherent power to dismiss a case due to a failure to prosecute with due diligence, citing Gordon v. Wellman, 265 Ark. 914, 582 S.W.2d 22 (1979). In its response, the State explained that, to avoid any double-jeopardy issues, it did not want to proceed with the disposition of the forfeiture action before the criminal action was decided. However, the State further explained that the criminal proceeding had just been disposed of on October 6, 2014, and that it would be seeking to dispose of the forfeiture action. Appellant filed a reply, additionally alleging that the case should be dismissed pursuant to Arkansas Rule of Civil Procedure 41(b). .
The record reflects that on June 29, 2015, the State requested that the case be set for trial, and a scheduling order was sent on the same day setting the case for nonjury trial on October 8, 2015. The next day, appellant filed an amended motion to dismiss for failure to prosecute, requesting that the circuit court enter an order dismissing the case for the State’s failure to prosecute. On the day of trial, the circuit court addressed the pending motions. The circuit court noted that the record did not reflect that a notice had been sent by the court pursuant to Rule 41(b), triggering the State to show good case as to why the case should not be dismissed; appellant’s counsel conceded that a notice had not been issued. Appellant’s counsel additionally admitted that he had not scheduled or obtained a hearing date to address the pending original or amended motion to dismiss but asked the court to [ ¡¡address the motion at that time and dismiss the case. The State responded that appellant had not shown that he had been disadvantaged by the delay and argued that he had, in fact, benefited from the delay because appellant had been facing both a civil and a criminal case at the same time. Additionally, the State explained that its office had been short-staffed.
After hearing oral argument, the circuit court denied the motion and made the following findings:
It’s the court’s determination that at least it’s a, number one, that under 41(b) it’s the court’s action that would trigger if 41(b) relief or if a dismissal is to be entered pursuant to 41(b), then it would be after the court initiated or sent notice to the parties, particularly the plaintiff, that the case had been without action for a significant period of time, in the excess of twelve months, and in this case, that wasn’t done.
Frankly, the filing of a civil forfeiture action with a pending criminal action that’s been filed in our district, typically, thqse pending civil actions, unless pending for an extensively long time, if there are criminal actions that involve the same evidence, the same time, share of the same allegations, then typically the civil action is delayed or continued until the criminal action is brought to some conclusion, one way or another.
One of the reasons being that with a criminal action pending, any possible testimony on the part of the defendants may force them into a situation if the case is scheduled, that a person facing criminal charges for allegations of possession of the same items may very well be forced and put in a position where they have to choose between their right to remain silent, or be placed in-a position where they waive or give up that right because the civil action is being pursued initially.
And for those reasons, typically, the civil action is delayed until some disposition on the criminal action takes place.
But the court did not send notice; without notice, the State couldn’t be triggered or required to respond. This is the service with July 22nd, 2013. We’re two years down the road, basically, at this point, or it was two years down the road when the case was scheduled for trial. For civil actions, that’s not an unusually long time.
There are no allegations that because of the delay in time there’s been a loss of any evidence that there’s been a prejudice to the defendant to proceed, and finally, it appears to the court that once this matter was scheduled and notice up for hearing 14in June or July of this year, and it’s scheduled, that all witnesses are present, all parties are present.
And even if the court was to somehow, without the notice required by Rule 41(b), if the court was to dismiss it, it would be without prejudice and the State would have the right to bring the action again.
So we would be right back to where we are now with the parties back here having that opportunity and the court just finds that the provisions of 41(b), there has not been an undue delay that would merit the court exercising its discretion to dismiss the action for failure to prosecute the action or to proceed on the action as the plaintiff in a civil matter and that because no notice was sent out to perform, then in accordance with 41(b) that it would be improper for the court to dismiss it based under that rule.
So the court is going to deny the motion, the request for motion to dismiss, an order to dismiss based on the original motion, and as well as amended motion.
At trial, Sergeant Chris Griggs with the Second Judicial District Drug Task Force testified that he had been assigned to the case involving the execution of a search warrant at the Shell Superstop. He had previously received information that the store had been illegally selling synthetic marijuana (also known as K-2). Therefore, two undercover controlled buys were set up at the store, the first one on March 21, 2013, and the second one on April 12, 2013. At the second controlled buy, the confidential informant exchanged fifty dollars with the cashier for suspected K-2, and the confidential informant reported that the cashier had placed the money into a safe. Afterward, a search warrant was obtained and executed the same day.
As a result of the search, the task force found K-2 and other drug paraphernalia located underneath the counter and “Blueberry Muff’ (a controlled substance) in a computer case located on top of the store counter. Additionally, $1,400 was recovered from a safe located underneath the counter and within four feet of the drugs and other drug [ .¡¡paraphernalia, which included the $50 used in the second controlled buy. Salim and Stevens, who were working at the store at the time, were arrested. Sergeant Griggs further explained that Salim had entered a guilty plea in his criminal case to possession of a controlled substance with purpose to deliver, possession of drug paraphernalia used to manufacture and distribute K-2, and possession of drug paraphernalia used to ingest or inhale K-2 and that the charges against Stevens had been nolle prossed. On cross-examination, Sergeant Griggs clarified that the substance obtained from the second controlled buy was not an illegal substance, so the controlled buy was not illegal at the time. However, there were substances found during the search that tested positive as controlled substances. Sergeant Griggs further testified that he had thought that the money obtained in the search of the safe was from the sale of K-2 because of the way it was packaged. There were no printouts from where a cashier might have cleared out the cash register or deposit slips; instead, the money was just found in the safe.
Salim testified that he worked at the Shell Superstop, and the store sold many different products in addition to gasoline. Salim further testified that the store had only the one safe and that he would just drop money in the safe to keep the cash register low in case of any robberies. He admitted that he had sold about twenty to thirty bags of K-2 at $50 each, and he did not know how many bags Stevens had sold. Although the store sold other products on a daily basis, Salim failed to introduce any records or receipts from any sales. Salim additionally admitted entering a guilty plea to several criminal charges that he received as a result of the search and that he received a total of twenty-four months’ suspended imposition of sentence.
[fiThe circuit court subsequently filed an order of forfeiture, specifically finding the following:
1. This is an in rem action for the forfeiture of personal property seized in Mississippi County, Arkansas, filed pursuant to A.C.A. 5-64-505.
2. The subject matter of this action is $1,400.00 in United States Currency.
3. The property seized, $1,400.00 in United States Currency, was found in close proximity to the controlled substances that were found.
4. The $1,400.00 seized was co-mingled with $50.00 of Drug Task Force Buy Money.
5. The defendant, Saad Salim, testified he had sold approximately 30 packets of K2 at this location at $50.00 per packet.
6. That Saad Salim did not overcome the presumption that any money found in close proximity to a forfeitable controlled substance is presumed to be for-feitable under Arkansas Code Annotated § 5—64—505(a)(7)(A).
7. The court does find that the $1,400.00 in United States Currency seized in this matter is hereby forfeited and shall be disposed of according to the law.
This appeal followed.
Appellant first argues that the circuit court improperly refused to dismiss the State’s forfeiture petition for lack of prosecution. Appellant alleges that the circuit court “ruled that it was the ‘usual’ practice to wait until a criminal proceeding was resolved before going forward with a forfeiture proceeding, reasoning that doing otherwise would cause double jeopardy or self-incrimination issues in the criminal case.” Appellant specifically argues that the circuit court refused to send a notice pursuant to Rule 41(b) and then accepted an erroneous interpretation of the law that there were double-jeopardy concerns as a good excuse for the State’s delay in prosecuting the case. He thus reasons that the circuit court abused its discretion in denying the motion to dismiss.
Appellant’s arguments are premised on the fact that the circuit court denied his motion to dismiss under a misunderstanding of the law that a delay was warranted because there would be double-jeopardy implications if the court were to proceed with the |7forfeiture action while the criminal action was still pending. A careful reading of the circuit court’s ruling reveals that the circuit court found that “there has not been an undue delay that would merit the court exercising its discretion to dis miss the action for failure to prosecute the action or to proceed on the action as the plaintiff in a civil matter.” However, the circuit court did not mention double-jeopardy concerns as the reason for its ruling. Instead, the circuit court explained,
One of the reasons being that with a criminal action pending, any possible testimony on the part of the defendants may force them into a situation if the case is scheduled, that a person facing criminal charges for allegations of possession of the same items may very well be forced and put in a position where they have to choose between their right to remain silent, or be placed in a position where they waive or give up that right because the civil action is being pursued initially.
And for those reasons, typically, the civil action is delayed until some disposition on the criminal action takes place.
The circuit court additionally reasoned that two years for a civil trial was not an unusually long time to wait and that all the parties and witnesses were present at that time to proceed with the trial.
As the State correctly notes in its responsive brief, appellant does not specifically argue that the circuit court erred in its self-incrimination reasoning for denying the motion to dismiss in his initial brief. When a circuit court bases its decision on more than one independent ground and appellant challenges fewer than all those grounds on appeal, we will affirm without addressing any of the grounds. Fennell v. City of Pine Bluff, 2016 Ark. App. 275, 492 S.W.3d 887. Furthermore, to the extent appellant addresses the grounds for the circuit court’s denial in his reply brief, an argument made for the first time on reply comes too late. Orintas v. Point Lookout Prop. Owners Ass’n Bd. of Dirs., 2015 Ark. App. 648, 476 S.W.3d 174. Unless an appellant files an initial brief with all its arguments for | ¿reversal, an appellee has no opportunity to respond to those arguments in writing, and it is well established that we will not consider an argument made for the first time in a reply brief. Id. Therefore, we must summarily affirm appellant’s first point on appeal without addressing the'merits.
Next, appellant argues that the circuit court’s findings that the money was related to drug trafficking and in close proximity to contraband are clearly erroneous. He contends that the money in the safe more than likely came from the sale of consumer goods that were legal rather than from the sale of controlled substances as found by the circuit court. He further argues that the State’s proof in this case raised nothing more than speculation and conjecture and that the State’s forfeiture action should have been denied due to a lack of proof. We disagree.
A forfeiture is an in rem proceeding, independent of the criminal charge, to be decided by the circuit court by a preponderance of the evidence. $15,956 In U.S. Currency v. State, 366 Ark. 70, 233 S.W.3d 598 (2006). We will not set aside a circuit court’s decision granting forfeiture unless it is clearly erroneous. Id. A circuit court’s decision is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with a definite and firm conviction that a mistake has been committed. Id.
The statutory provision governing forfeitures is set forth in Arkansas Code Annotated section 5-64-505(a), which provides in relevant part as follows:
(a) Items Subject to Forfeiture. The following are subject to forfeiture upon the initiation of a civil proceeding filed by the prosecuting attorney and when so ordered by the circuit court in accor dance with this section, however no property is subject |9to forfeiture based solely upon a misdemeanor possession of a Schedule III, Schedule IV, Schedule V, or Schedule VI controlled substance:
6)(A) Anything of value, including firearms, furnished or intended to be furnished in exchange for a controlled substance or counterfeit substance in violation of this chapter, any proceeds or profits traceable to the exchange, and any money, negotiable instrument, or security used, or intended to be used, to facilitate any violation of this chapter.
(7) Rebuttable Presumptions.
(A) Any money, coin, currency, or firearms found in close proximity to a forfei-table controlled substance, a counterfeit substance, forfeitable drug manufacturing or distributing paraphernalia, or a forfeitable record of an importation, manufacture, or distribution of a controlled substance or counterfeit substance is presumed to be forfeitable under this subdivision (a)(7).
(B) The burden of proof is upon a claimant of the property to rebut this presumption by a preponderance of the evidenced]
Ark. Code Ann. § 5-64-505(a)(6)-(7)(B).
Thus, under Arkansas law, for property to be subject to forfeiture, the State must prove by a preponderance of the evidence that the property was “used, or intended to be used” to facilitate a violation of the Uniform Controlled Substances Act. Ark. Code Ann. § 5-64-505(a)(6). If, however, the property is found in close proximity to a forfeitable controlled substance, then it is presumed to be forfeitable, and the burden of proof rests with the claimant of the property to rebut this presumption by a preponderance of the evidence. Ark. Code Ann. § 5-64-505(a)(7). The circuit court applied the presumption in this case.
In this case, the money found in the safe was located within four feet of the forfeita-ble property, controlled substances and drug paraphernalia. Sergeant Griggs testified that some | inof the samples seized in the search of the Shell Superstop tested positive for a Schedule VI controlled substance. Moreover, appellant admitted that he had pleaded guilty to the possession charges based on the evidence seized and further testified that he had sold between twenty to thirty packages of K-2 for $50 per package. Although appellant argues that the money could have come from the sale of legal items, he did not introduce any receipts or records to support this claim. Therefore, we cannot say that the circuit court’s findings were clearly erroneous, and we affirm the circuit court’s order of forfeiture.
Appellant lastly argues that he was prejudiced by the circuit court’s refusal to dismiss the forfeiture proceeding, as the State would be prohibited from refiling its forfeiture complaint. He specifically argues that the savings statute applicable to non-suits under Arkansas Code Annotated section 16-56-126(a)(l) (Repl. 2005) does not apply to forfeiture actions and that if the circuit court had dismissed the case for failure to prosecute under Rule 41(b), then the savings statute would not permit the State to refile. However, as we explained above, the circuit court found that there was not an undue delay in prosecution, and whether he was prejudiced by the circuit court’s failure to dismiss the case is therefore now irrelevant. As such, we affirm.
Affirmed.
Gladwin, C.J., and Kinard, J., agree.
. Tiffany Stevens is not a party to this appeal. | [
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RAYMOND R. ABRAMSON, Judge
| Appellant Shaun Allen was convicted by a Faulkner County jury of two counts of rape. On appeal, he contends that the circuit court abused its discretion and committed reversible error by admitting into evidence prior consistent statements of the victim, M.R. He also argues that the circuit court erred in denying his motions for directed verdict on both counts of rape. We affirm.
A motion for a directed verdict is a challenge to the sufficiency of the evidence, Steele v. State, 2014 Ark. App. 257, 434 S.W.3d 424, and although this is Allen’s second point on appeal, double-jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence before the other issues on appeal. See Jones v. State, 349 Ark. 331, 78 S.W.3d 104 (2002).
When the sufficiency of the evidence is challenged on appeal from a criminal 2conviction, we consider only that proof that supports the conviction. Singleton-Harris v. State, 2014 Ark. App. 436, 439 S.W.3d 720. We view that evidence and all reasonable inferences deducible therefrom in the light most favorable to the State. Davis v. State, 2011 Ark. App. 261, 378 S.W.3d 873. We will affirm if the finding of guilt is supported by substantial evidence. Id. 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. Clayton v. State, 2011 Ark. App. 692. The jury is free to believe all or part of a witness’s testimony, and we do not weigh the credibility of witnesses on appeal, as that is a job for the fact-finder and not the appellate court. Sizemore v. State, 2015 Ark. App. 295, 462 S.W.3d 364.
A person commits rape if “he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen (14) years of age.” Ark. Code Ann. § 5-14-103(a)(3)(A) (Repl. 2013). Sexual intercourse is penetration, however slight, of the labia majora by a penis. See Ark. Code Ann. § 5-14-101(11). Deviate sexual activity is defined by statute as any act of sexual gratification involving (A) the penetration, however slight, of the anus or mouth of a person by the penis of another person; or (B) the penetration, however slight, of the labia majora or anus of a person by any body member or foreign instrument manipulated by another person. Ark. Code Ann. § 5-14-101(1).
Viewing the evidence, as we must, in the light most favorable to the State, the record reflects that Allen is M.R.’s stepfather’s brother. Twelve-year-old M.R. testified at trial that Allen “put his middle in my middle.” When asked by the State to clarify what middle part she was talking about, M.R. stated that Allen “put his middle part where he pees from into |amy middle part where I pee from.” M.R. also testified that she saw both Allen and Ronald White’s “middle” and that they differed in length and width.
Allen argued in his motion for directed verdict that M.R. never testified that he put his penis or any other part of his body into her vagina. However, M.R.’s use and description of the word “middle” demonstrated knowledge of the location of the penis and the vagina on the human body. A child victim’s use of her own terms for body parts, rather than the correct anatomical terms, is sufficient evidence if it demonstrates a knowledge of what those body parts are and where they are located on the body. Tinsley v. State, 338 Ark. 342, 346, 993 S.W.2d 898, 900 (1999).
Allen also claims that M.R. was unable to give a full and detailed account of his actions, and therefore, there was insufficient proof that he had raped her. But, in rape cases, the requirement of substantial evidence is satisfied by the rape victim’s testimony. Bishop v. State, 310 Ark. 479, 484, 839 S.W.2d 6, 9 (1992). The uncorroborated testimony of a rape victim that shows penetration is sufficient evidence for a conviction. Lamb v. State, 372 Ark. 277, 282, 275 S.W.3d 144, 148 (2008). M.R. testified that Allen molested her when she was ten years old, which was sufficient to satisfy the statutory element requiring that the victim be less than fourteen years old.
When asked by the State what she meant when she said Allen “molested” her, she replied that he “had sex with me.” She then elaborated as to what she meant by having “sex with me,” and replied that Allen “put his middle part where he pees from into my middle part where I pee from.” As noted above, it was established that M.R.’s terms “his middle” prefers to Allen’s penis and “my middle” refers to M.R.’s vagina.
While a rape victim’s testimony need not be corroborated by forensic evidence, additional evidence was introduced during trial that supported her testimony. Semen was found on M.R.’s panties, and forensic DNA analyst Sarah Stoeckel gave expert testimony that established, within all scientific certainty, that the DNA on the panties belonged to Allen.
M.R.’s testimony, corroborated by forensic expert testimony, is more than substantial evidence to show that Allen raped her. The jury was not required to resort to speculation or conjecture in reaching its verdicts. Accordingly, we affirm.
Allen’s argument that the circuit court abused its discretion by admitting M.R.’s prior consistent statements is not preserved for our review. Trial courts are afforded wide discretion in evidentiary rulings, and an appellant must demonstrate an abuse of discretion resulting in prejudice to justify reversal. McCoy v. State, 354 Ark. 322, 123 S.W.3d 901 (2003). Allen argues that the circuit court erroneously allowed a hearsay statement under the prior-consistent-statement exception. Ark. R. Evid. 801(d)(1). However, Allen never objected or raised the hearsay arguments in the circuit court that he now argues on appeal. Therefore, this argument is not preserved for appellate review. It is well settled that we will not consider arguments that are raised for the first time on appeal. Johnson v. State, 2009 Ark. 460, 344 S.W.3d 74 (per curiam) (citing Green v. State, 362 Ark. 459, 209 S.W.3d 339 (2005)). As such, we will not address this argument.
For the foregoing reasons, we affirm.
5Affirmed.
Gladwin, C.J., and Whiteaker, J., agree.
. Ronald White was M.R.'s stepfather. | [
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PRO SE PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS [UNION COUNTY CIRCUIT COURT, NO. 70CR-08-482]
PER CURIAM
_JjIn 2008, Benjamin Carter, Jr., was found guilty by a jury of possession of cocaine with intent to deliver, possession of marijuana with intent to deliver, possession of drug paraphernalia, simultaneous possession of drugs and a firearm, and maintaining a drug premises located in El Dorado. He was sentenced to a term of life imprisonment and a $25,000 fine on the cocaine-possession charge, 240 months’ imprisonment and a $25,000 fine on the marijuana-possession charge, 480 months’ imprisonment on the simultaneous-possession charge, 240 months’ imprisonment and a $10,000 fine on the paraphernalia charge, and 144 months’ imprisonment and a $10,000 fine on the drug-premises charge. The sentences were ordered to be served consecutively. This court affirmed. Carter v. State, 2010 Ark. 293, 367 S.W.3d 544.
Carter subsequently proceeded in the trial court with a petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2008) in which he contended that his trial counsel was ineffective. The petition was denied, and this court dismissed an | ^appeal from the order brought by Carter on the ground that the claims raised were conclusory in nature and did not warrant relief under the Rule. Carter v. State, 2011 Ark. 226, 2011 WL 1896765 (per curiam).
Now before us is Carter’s pro se petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis in the case. The petition for leave to proceed in the trial court is necessary because the trial court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Westerman v. State, 2015 Ark. 69, at 4, 456 S.W.3d 374, 376; Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.
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 trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Newman, 2009 Ark. 539, 354 S.W.3d 61. The petitioner has the burden of demonstrating a funda mental error of fact extrinsic to the record. Roberts, 2013 Ark. 56, 425 S.W.3d 771. The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental .nature. Id.. A writ of error coram nobis is available for addressing 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. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. These categories, however, are not absolute and may be expanded when there is a showing of a procedural gap whereby a petitioner in a particular case would be denied due process of law if a coram-nobis proceeding were not allowed to fill the void. See Strawhacker v. State, 2016 Ark. 348, 500 S.W.3d 716; see also Pitts v. State, 2016 Ark. 345, 2016 WL 6123443.
As grounds, for the writ, Carter asserts that the State violated his right to due process of law pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by concealing that it had induced Robert Moore to testify falsely against Carter by threatening Moore that Moore would be sent to prison for life if he did not “implicate Benjamin Carter as a drug dealer and drug kingpin.” Carter has appended to his petition Moore’s affidavit in which Moore avers that he was pressed by the State to testify untruthfully that drugs found in his possession were obtained from Carter. He further avows that, after he had given the false testimony at Carter’s 2008 trial, he informed Carter’s mother in 2009 that Carter, contrary to Moore’s trial testimony, had not been in possession of drugs. Moore further states that he and Carter’s mother and sister visited the attorney who represented Carter on direct appeal and provided the information to the attorney and were told that his having given false testimony would not be “relevant” to the direct appeal. Carter contends that his mother never mentioned Moore’s statement to him and that he learned of Moore’s recantation of his trial testimony approximately six years after Moore informed his mother that Moore had committed perjury. Carter offers no further evidence to support Moore’s statement that ' Moore was | ¿induced by the State to give false testimony, and the lack of factual support for a claim in a coram-nobis petition is, in itself, cause to decline to issue the writ. See Noble v. State, 2015 Ark. 215, at 3, 462 S.W.3d 341, 344 (per curiam). A court considering a claim of a Brady violation in a coram-nobis petition is not required to take the petitioner’s allegations at face value without substantiation. Thacker v. State, 2016 Ark. 350, 500 S.W.3d 736.
There are three elements necessary to establish a Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; (3) prejudice must have ensued. Howard v. State, 2012 Ark. 177, at 8, 403 S.W.3d at 44. Evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Newman, 2009 Ark. 539, at 13-14, 354 S.W.3d at 69. When determining whether a Brady violation has occurred, it must first be established by the petitioner that the material was available to the State prior to trial and the defense did not have it. Cloird v. State, 357 Ark. 446, 452, 182 S.W.3d 477, 480 (2004); see also Berger v. State, 2016 Ark. 129, 4, 487 S.W.3d 815, 818 (per curiam).
If Moore’s affidavit is considered as a recantation his trial testimony, it is well settled that a claim of recanted testimony, standing alone, is not cognizable in an error-coram-nobis proceeding. Stenhouse v. State, 2016 Ark. 295, at 4, 497 S.W.3d 679 (per curiam); see also Smith v. State, 200 Ark. 767, 140 S.W.2d 675 (1940) (holding that the writ was not available to afford relief on the ground that the principal witness against the accused had recanted and that others since the accused’s conviction had confessed to the crime). This is so because a writ of error coram nobis may not be used to contradict any fact already adjudicated. Smith, 200 Ark. 767, 768, 140 S.W.2d 675, 676. As stated, Carter couches his claim concerning Moore as a Brady violation rather than a claim of recanted testimony by alleging that the defense was not aware at the time of trial that Moore had been induced by the State to testify falsely.
Carter’s assertion fails as a Brady violation because, when the totality of the evidence is considered, Carter has not shown that the outcome of the trial would have been different had the defense known at the time of trial about Moore’s allegation of coercion by the State. Carter has failed to assert any facts to give rise to the type of fundamental error required for issuance of the writ. There is a distinction between fundamental error which requires issuance of the writ and newly discovered information which might have created an issue to be raised at trial had it been known. Jackson v. State, 2010 Ark. 81, at 4, 2010 WL 1006491 (per curiam); see also Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001) (per curiam).
In view of the testimony and evidence adduced against Carter at trial, Carter has not established that the jury would have reached a different verdict had the defense challenged ^Moore's inculpato-ry testimony as having been coerced by the State. In a eoram-nobis proceeding, the court must weigh the significance of the information that was alleged to have been concealed from the defense against the totality of the evidence to determine if the hidden information or evidence at issue would have been such as to have prevented rendition of the judgment had the existence of that material been known at the time of trial. See Smith v. State, 2015 Ark. 188, at 5-6, 461 S.W.3d 345, 350 (per curiam); see also Goff v. State, 2012 Ark. 68, 398 S.W.3d 896 (per curiam). We consider the cumulative effect of the allegedly concealed information or evidence to determine whether what was alleged to have been hidden was material to the guilt or punishment of the defendant. Id.; see also Lamar v. State, 2014 Ark. 245, 2014 WL 2158138 (per curiam). We need not reiterate the discussion in our opinion on direct appeal that concluded that there was substantial evidence to support the judgment. It will suffice to say that the contents of Moore’s affidavit, even if Carter had offered any factual substantiation for its truth, would not have demonstrated a Brady violation that warrants issuance of a writ of error coram nobis.
Petition denied.
. Carter attributes his decision to file a co-ram-nobis proceeding in this court to federal court opinion rendered on January 21, 2016, in the United States District Court for the Western District of Arkansas, in Carter v. Hobbs, 2016 WL 264941 (W.D.Ark. 2016), that denied his petition for writ of habeas corpus, In the habeas petition, Carter contended that the State acted wrongly by threatening witnesses with harsh sentences to induce their cooperation with the State in building a case against him. To substantiate his claim, Carter produced the affidavits of three people, Michael Hunter, Markesia Fai-son, and Rolanda Loggins, who each averred that it was Hunter who was the drug dealer rather than Carter. The habeas petition was denied. The magistrate noted that Carter knew of the three people on the day of his arrest; and, moreover, there was ample evidence of Carter’s guilt introduced at trial to sustain his conviction such that it could not be said that no reasonable juror would have reached a different conclusion regarding his guilt if the information in the three affidavits had been brought out at trial. | [
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ROBIN F. WYNNE, Associate Justice
11 This is an interlocutory appeal of the Clark County Circuit Court’s order granting class certification. An order granting or denying a motion for class certification is immediately appealable to this court under Rule 2(a)(9) of the Arkansas Rule's of Appellate Procedure-Civil (2016). We affirm the circuit court’s order.
In September 2013, appellant CACH, LLC, filed a complaint against appellee William Echols in the Clark County District Court. CACH alleged that Echols had breached his contract with GE Money Retail Bank when he defaulted on his obligation to pay for the charges incurred on a credit card (approximately $5000), and that as the assignee and current owner of the account,. CACH was entitled to payment of the balance due on the credit card. Echols filed an answer, class-action counterclaim, and class-action third-party complaint against CACH and its owner, SquareTwo Financial Corporation. The district court transferred the case, to the Clark County Circuit Court. CACH filed its answer |2and a motion to dismiss with incorporated brief. Third-party defendants SquareTwo Financial Corporation and SquareTwo Financial Commercial Funding, d/b/a Squar-eTwo filed a separate answer.
On September 15, 2014, Echols filed a first amended class action counterclaim. Citing this court’s opinion in Simpson v. Cavalry SPV I, LLC, 2014 Ark. 363, 440 S.W.3d 335, Echols alleged that CACH is a collection agency as defined in Arkansas Code Annotated sections 17-24-101 and 17-24-301, that it had not obtained the required license from the Arkansas State Board of Collection Agencies (ASBCA), and that it had therefore violated the Arkansas Deceptive Trade Practices Act (ADTPA) and the common law when it demanded payment from and filed suit against Echols and thousands of other Arkansas residents. The counterclaim asserted causes of action for violations of the ADTPA, unjust enrichment, malicious prosecution, and abuse of process and sought an award of actual damages, punitive damages, disgorgement of profits, costs and attorney’s fees, and injunctive relief. That same day, Echols filed a motion for class certification and appointment of class counsel and memorandum of law in support. CACH and SquareTwo filed an answer to the amended class-action counterclaim and a response and brief opposing the motion for class certification. On April 8, 2015, Echols filed a second amended class-action counterclaim; no amended motion for class certification was filed.
On April 29, 2015, CACH filed a motion to voluntarily dismiss its lawsuit pursuant to Rule 41(a) of the Arkansas Rules of Civil Procedure. Also on April 29, 2015, CACH and SquareTwo filed a notice of removal in the United States District Court for the Western District of Arkansas, which divested the Clark County Circuit Court of jurisdiction and delayed the class-certification hearing scheduled for the following day. In July 2015, the federal district court remanded the case to the Clark County Circuit Court. The circuit court held a hearing on the motion for class certification on October 12, 2015. At the hearing, appellants objected to any consideration of the second amended class-action counterclaim on the ground that it had been filed after the motion for class certification.
On December 17, 2015, an order was entered granting the motion for class certification. The circuit court found that the putative class action raised claims based on CACH’s uniform debt-collection activities and that class certification was appropriate. The circuit court certified the following class:
All Arkansas residents who were subject to collection actions by CACH (including both non-judicial and judicial methods of collection) when CACH was not licensed to engage in debt collection activities in Arkansas during the period of time five years immediately preceding the filing date of this lawsuit up through and including thejjdate of judgment. Excluded from the Class are the judge presiding over this case and his/her immediate family members, and CACH, its members, parent, any subsidiaries, officers, directors, agents, and employees. Echols was named class representative and his counsel were appointed to serve as class counsel. This appeal followed.
I. Rule 23 Elements
In reviewing a circuit court’s decision to grant or deny class certification, we give circuit courts broad discretion and will reverse only when the appellant can demonstrate an abuse of discretion. Rosenow v. Alltel Corp., 2010 Ark. 26, at 4-5, 358 S.W.3d 879, 884. Our focus is “whether the requirements of Rule 23 are met” and “it is totally immaterial whether the petition will succeed on the merits or even if it states a cause of action.” Philip Morris Cos., Inc. v. Miner, 2015 Ark. 73, at 3, 462 S.W.3d 313, 316 (quoting Am. Abstract & Title Co. v. Rice, 358 Ark. 1, 9, 186 S.W.3d 705, 710 (2004)). Our law is well settled that the six requirements for class-action certification, as stated in Rule 23, are (1) numerosity, (2) commonality, (3) typicality, (4) adequacy, (5) predominance, and (6) superiority. GGNSC Arkadelphia, LLC v. Lamb, 2015 Ark. 253, at 9, 465 S.W.3d 826, 831. On appeal, appellants challenge commonality, typicality, adequacy, predominance, and superiority. See, e.g., Philip Morris Cos., 2015 Ark. 73, 462 S.W.3d 313 (addressing only those prerequisites to class certification specifically challenged on appeal).
A. Adequacy
The three elements of the adequacy requirement are: (1) the representative counsel must be qualified, experienced, and generally able to conduct the litigation; (2) that there Bbe no evidence of collusion or conflicting interest between the representative and the class; and (3) the representative must display some minimal level of interest in the action, familiarity with the practices challenged, and ability to assist in decision-making as to the conduct of the litigation. FirstPlus Home Loan Owner 1997-1 v. Bryant, 372 Ark. 466, 477, 277 S.W.3d 576, 585 (2008). Here, appellants argue that Echols is not an adequate class representative because his interests conflict with the interests of the class members. Appellants characterize Echols as having two separate claims, a “debt settlement claim” and a “licensing claim.” They contend that Echols’s debt-settlement claim creates an inherent conflict with the class members’ common licensing claim because it is in his interest to focus on the debt-settlement claim, creating a conflict in litigation strategy. However, Echols’s “debt settlement claim” was in fact raised as an affirmative defense to CACH’s complaint, not a separate claim, and the class-action claims are based on the allegation that CACH engaged in uniform debt-collection activities without having a license from the ASBCA. We are not persuaded that there is any conflict to prevent Echols from serving as class representative.
Appellants also argue that Echols’s interests conflict with class members against whom CACH’s claims were reduced to judgment and who must overcome a res judicata bar. Appellants point generally to a “need for differing evidence, tactics, and legal theories” that puts Echols’s interest at odds with the class. This argument is both undeveloped and unavailing. We hold that the circuit court did not abuse its discretion in finding that Echols is an adequate class representative.
B. Typicality
IsNext, appellants challenge the typicality requirement. One prerequisite to the certification of a class action is that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Ark. R. Civ. P. 23(a)(3). In addressing typicality, this court has quoted with approval H. Newberg, Class Actions § .3.13 (1985) as follows:
Typicality determines whether a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct. In other words, when such a relationship is shown, a plaintiffs injury arises from or is directly related to a wrong,to a class, and that wrong includes the wrong to the plaintiff. Thus, a plaintiffs claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory. When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of varying fact patterns which underlie individual claims. [Footnotes omitted.]
Teris, LLC v. Chandler, 375 Ark. 70, 79-80, 289 S.W.3d 63, 70 (2008).
Just as above, appellants’ argument is centered on the premise that Echols has an individual “debt settlement claim” that is at odds with the class “licensing claim” and defeats typicality. Here, the circuit court found that Echols’s claim is typical “since it arises from the same event, practice or course of conduct that gives rise to the claims of other class |7members.” We hold that there was no abuse of discretion in the circuit court’s finding that the typicality requirement had been met.
C. Commonality
Next, appellants challenge Rule 23(a)(2)’s requirement of “questions of law or fact common to the class.” They cite Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011), in which the United States Supreme Court reversed the certification of a class of female employees who brought a Title VII action against their employer alleging sex discrimination. In addressing the commonality requirement for class certification under Federal Rule of Civil Procedure 23, the Court stated that the common questions necessary for class certification must be questions that generate “common answers apt to drive the resolution of the case.” Here, the circuit court found that the allegations in the counterclaim are based on the same conduct (taking action to collect debts without the necessary license) that affects each putative class member. We hold that the circuit court did not abuse its discretion on this point.
D. Predominance
Rule 23(b) requires that “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members.” This court has stated that this requirement has been met where there are predominating questions that can be answered before individualized ones. Campbell v. Asbury Auto., Inc., 2011 Ark. 157, at 18, 381 S.W.3d 21, 34-35. Here, appellants argue that the predominance requirement has not been met because an examination of the elements of the causes of action shows that 1 ^resolution of those claims is fact specific. This court has affirmed the certification of class actions brought under the ADTPA and for unjust enrichment on numerous occasions, and appellants’ argument on this point must fail. E.g., Asbury Auto. Grp., Inc. v. Palasack, 366 Ark. 601, 237 S.W.3d 462 (2006) (class of vehicle purchasers challenging a documentary fee charged by car dealerships, alleging in part a violation of the ADTPA); Kersten v. State Farm Mut. Auto. Ins. Co., 2013 Ark. 124, 426 S.W.3d 455.
CACH’s debt-collection practices, which were undertaken without a license from the ASBCA, are the central issue of this litigation, and the circuit court did not abuse its discretion in finding that the predominance requirement had been met.
E. Superiority
Appellants argue under this point that a class action is not “superior to other available methods for the fair and efficient adjudications of the controversy.” Ark. R. Civ. P. 23(b). They contend that because the class includes persons who were or are currently parties to separate lawsuits, the issues raised in this case would be best left to the courts that have entered judgments, presided over the proceedings, and/or entered orders of dismissal following settlement. Appellants argue that those courts have “the individualized and specialized knowledge for each of those individual cases.” This argument is unpersuasive.
With respect to superiority, this court has held that the requirement is satisfied if class certification is the more “efficient” way of handling the case and if it is fair to both sides. USA Check Cashers of Little Rock, Inc. v. Island, 349 Ark. 71, 82, 76 S.W.3d 243, 248-49 (2002). Real efficiency can be had if common, predominating questions of law or fact are |9first decided, with cases then splintering for the trial of individual issues, if necessary. Id. Here, common issues can be resolved on a class-wide basis, and appellants’ concern for fashioning appropriate remedies (reversing previous judgments, staying eases already filed, unwinding settlement agreements) can be addressed at a later .time.
II. Mootness
Following this court’s decision in Simpson v. Cavalry SPV I, LLC, 2014 Ark. 363, 440 S.W.3d 335, the General Assembly passed Act 1249 of 2015, codified at Arkansas Code Annotated section 17-24-103, which provides for the “retroactive licensing” of collection agencies by payment of a civil penalty to the ASBCA. Section 17—24—103(b)(3) provides that “[t]he remedies in the form of civil penalties provided in this section for failing to obtain a license issued under this chapter shall be the only consequence of and remedy for the failure of a collection agency to obtain a license when required under this chapter.” Appellants contend that the circuit court erred in granting class certification because all claims are moot now that it has obtained a license from the ASBCA. Appellants note that, at the time of the class certification, the ASBCA had not set the retroactive licensing procedure, and they argue that this court should reverse and remand for documentation of the record of CACH’s retroactive licensing pursuant to the amended statute.
As a general rule, the appellate courts of this state will not review issues that are moot. Terry v. White, 374 Ark. 387, 391, 288 S.W.3d 199, 202 (2008). To do so would be to render advisory opinions, which this court will not do. Id. We have generally held that a case becomes moot when any judgment rendered would have no practical legal effect upon |ina then-existing legal controversy. Id. In other words, a moot case presents no justi-ciable issue for determination by the court. Id. Here, appellants’ mootness argument is, in fact, an attack on the merits of the class members’ claims. This court has stated the following:
We have held that “neither the trial court nor the appellate court may delve into the merits of the underlying claim in determining whether the elements of Rule 23 have been satisfied.” Id. Our court has said on this point that “a trial cou/rt may not consider whether the plaintiffs will ultimately prevail, or even whether they have a cause of action.” Id. We, thus, view the propriety of a class action as a procedural question. See id.
Gen. Motors Corp. v. Bryant, 374 Ark. 38, 42, 285 S.W.3d 634, 638 (2008) (quoting Carquest of Hot Springs, Inc. v. Gen. Parts, Inc., 367 Ark. 218, 223, 238 S.W.3d 916, 920 (2006)). We will not delve into appellants’ asserted defense of retroactive licensing in this interlocutory appeal of the class-certification order. Accordingly, we reject appellants’ mootness argument and affirm on this point.
III. Standing
Finally, appellants argue that Echols does not have standing to pursue any claims against SquareTwo Financial Corporation, the parent company of CACH, because SquareTwo did not pursue any collection activity against him. Appellants failed to obtain a ruling on this argument below, and failure to obtain a ruling from the trial court is a procedural bar to our consideration of an issue on appeal. E.g., Travis Lumber Co. v. Deichman, 2009 Ark. 299, at 20, 319 S.W.3d 239, 252.
Affirmed.
. In Simpson, in answering a federal district court's certified questions of law, this court held that an entity that purchases delinquent accounts and then retains a licensed Arkansas lawyer to collect on the delinquent accounts and file lawsuits on its behalf in Arkansas is a “collection agency” pursuant to Arkansas Code Annotated section 17-24-101 and is required to be licensed by the Arkansas State Board of Collection Agencies pursuant to Arkansas Code Annotated section 17-24-301(4).
. The second amended class-action counterclaim added Gene Slayton as a third-party plaintiff; Slayton was sued by CACH for collection of an alleged credit-card debt, and he made payment without consulting an attorney. It also dropped the claim for malicious prosecution and added a claim for violations of the federal and state Fair Debt Collection Practices Act. There is no indication that the circuit court considered the second amended class-action counterclaim in its order granting class certification.
. To the extent that appellants rely on Echols’s deposition testimony under this point,, we reject any contention that his testimony regarding his claim under the ADTPA controls over the pleadings. | [
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KAREN R. BAKER, Associate Justice
hOn March 20, 2015, appellant, Randy William Gay, was convicted by a Garland County Circuit Court jury of one count of capital felony murder in the 2011 death of Connie Snow and sentenced to death. Gay appealed and presents seven issues on appeal: (1) the circuit court violated Gay’s right to a fair and impartial trial by allowing Gay’s entire “pen pack” to be submitted to the jury; (2) the circuit court erred by violating Gay’s rights to due process by refusing to allow defense counsel to question potential jurors in depth regarding their views on the death penalty and mitigation; (3) the circuit court’s inconsistent approach to rehabilitative questions to veniremen resulted in the improper removal of jurors for cause that denied Gay the right to a fair and impartial jury; (4) the circuit court erred in granting the State’s motion for a mental-health evaluation of Gay over Gay’s objection; (5) the circuit court erred by refusing to allow jury instructions AMI Crim. 2d 202 and AMI Crim. 2d 206, which were proffered by the defense; (6) the circuit court erred in denying the defense |2mitigator of “lingering doubt” in the penalty phase; and (7) the circuit court erred for refusing to allow Gay to introduce as a mitigating circumstance that Gay had a calming influence on others while in custody.
I. Facts
Gay does not challenge the sufficiency of the evidence. Therefore, only a brief recitation of the facts is necessary. James Westlake testified he and his family operated a timber business in Garland County in 2011. James testified that he paid Gay “a few hundred dollars each week” to “keep an eye” on their equipment overnight. On May 10, 2011, James, Jim West-lake, and Rickey Stewart were attempting to repair machinery at their logging business in a wooded area of Garland County. Around 5 p.m. that day, Gay arrived in a pickup truck, and Snow was in the passenger seat. James testified that Gay exited the truck and ordered Snow out of the truck; Snow did not comply, and Gay went back to his truck and retrieved a shot gun and ordered Snow out of the truck. As Snow was attempting to exit the truck; Gay shot Snow in the right side of her face. The testimony demonstrates that James and Stewart both witnessed the shooting. James testified that Gay loaded Snow’s body into the back of his truck and exited the property. Snow’s body was recovered four days later in a shallow creek, and Gay was charged with capital murder. In 2013, Gay’s first trial ended with a mistrial after the circuit court discovered that members of the jury had violated instructions by conducting independent research. Prior to the first trial, on a motion from the State and over an objection from Gay, the circuit court ordered a mental evaluation of Gay. The State retried Gay in March 2015 and on March 20, 2015, the jury convicted |sGay, sentenced him to death, and this appeal followed.
II. Points on Appeal
A. Gay’s “Pen Pack”
For his first point on appeal, Gay asserts the circuit court violated Gay’s right to a fair and impartial trial by allowing Gay’s entire “pen pack” to be submitted to the jury. During the sentencing phase, Gay introduced the “pen pack” that “spanned all periods of time that [Gay] had been incarcerated in the Arkansas Department of Correction. It consisted of approximately 300 pages and contained a large amount of information that was highly prejudicial to [Gay].” Gay contends that the “pen pack” should not have been introduced and considered by the jury and urges this court to reverse and remand this matter for a new trial.
At trial, during the sentencing phase, Gay called Shelly Hamilton, the classification administrator at the Department of Correction. Hamilton testified regarding Gay’s two prior convictions for second-degree murder on two separate occasions, a felony conviction for felon in possession of a firearm, Gay’s background, alleged parole violations, furloughs, and Minnesota Multi-phasic Personality Inventory test results. However, Gay elicited the testimony and introduced the “pen pack.” Further, Gay did not object to the introduction of the “pen pack.”
Here, “before considering the merits of this point on appeal, we must first determine whether the issue was properly preserved for appellate review .... It is well settled that arguments not raised at trial will not be addressed for the first time on appeal.” Ray v. State, 2009 Ark. 521, at 3-4, 357 S.W.3d 872, 876 (internal citations omitted). Further, “Arkansas does not recognize plain error, i.e., an error not brought to the attention of the trial court by objection, but nonetheless affecting substantial rights of the defendant.” Green v. State, 362 Ark. 459, 468, 209 S.W.3d 339, 344 (2005) (internal citations omitted). “It is well settled that a contemporaneous objection is required to preserve an issue for appeal, but this court has recognized four exceptions to the rule, known as the Wicks [v. State, 270 Ark. 781, 606 S.W.2d 366 (1980)] exceptions.” Springs v. State, 368 Ark. 256, 260, 244 S.W.3d 683, 686 (2006); Anderson v. State, 353 Ark. 384, 108 S.W.3d 592 (2003). These exceptions occur when (1) a trial court, in a death-penalty case, fails to bring to .the jury’s attention a matter essential to its consideration of the death penalty itself; (2) a trial court errs at a time when defense counsel has no knowledge of the error and thus no opportunity to object; (3) a trial court should intervene on its own motion to correct a serious error; and (4) the admission or exclusion of evidence affects a defendant’s substantial rights. Springs, 368 Ark. at 261, 244 S.W.3d at 686.
Here, Gay did not preserve the issue for review and has not asserted that the error falls within one of the exceptions in Wicks. Finally, we have repeatedly stated that a defendant cannot agree with a circuit court’s ruling and then attack the ruling on appeal. See, e.g., Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001); Roberts v. State, 352 Ark. 489, 504-05, 102 S.W.3d 482, 493 (2003). Based on the record before us, we do not find error with regard to the introduction of the pen pack and affirm the circuit court.
B. Questioning Potential Jurors Regarding the Death Penalty and Mitigation
For his second point on appeal, Gay contends that the circuit court violated Gay’s dueHsprocess rights by refusing to allow Gay’s counsel to question potential jurors in depth regarding their views on the death penalty and mitigation. Gay asserts that the circuit court restricted voir dire examination of potential jurors in two major areas: (1) the potential jurors’ views on the death penalty and (2) mitigation. The State responds that the circuit court acted with sound discretion, and the circuit court repeatedly warned defense counsel that he was “fact qualifying” the potential jurors.
At issue is the voir dire examination of potential jurors. In Isom v. State, we explained our standard:
The extent and scope of voir dire examination is within the sound discretion of the circuit judge, and the latitude of that discretion is wide. See Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992). The judge’s restriction of that examination will not be reversed on appeal unless that discretion is clearly abused. Id. Abuse of discretion occurs when the circuit judge acts arbitrarily or groundlessly. See Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991).
Arkansas Rules of Criminal Procedure provide the procedure for the conduct of proper voir dire in a criminal trial:
(a) Voir dire examination shall be conducted for the purpose of discovering bases for challenge for cause and for the purpose of gaining knowledge to enable the parties to intelligently exercise peremptory challenges. The judge shall initiate the voir dire examination by:
(i) identifying the parties; and
(ii) identifying the respective counsel; and
(iii) revealing the names of those witnesses whose names have been made known to the court by the parties; and
(iv) briefly outlining the nature of the case.
(b) The judge shall then put to the prospective jurors any question which he thinks necessary touching their qualifications to serve as jurors in the cause on trial. The judge shall also permit such additional questions by the defendant or his attorney and the prosecuting attorney as the judge deems reasonable and proper.
IfiArk. R.Crim. P. 32.2(a) and (b).
The fact that the Rules allow the circuit judge to permit such additional questioning as he or she deems proper underscores the discretion vested in the circuit judge.
Isom, 356 Ark. 156, 171-72, 148 S.W.3d 257, 267-68 (2004).
Here, Gay contends that the circuit court erred by not allowing voir dire for further questions into the veniremen’s beliefs concerning the death penalty and mitigation and whether lack of premeditation was mitigation to an intentional murder. Gay further contends that the State was allowed to ask jurors questions regarding intoxication, which was mitigation evidence, and Gay was not able to ask questions regarding mitigation. Gay points to one specific instance in which he alleges that, when questioning Juror McLernon, he was unable to adequately explore the juror’s views regarding the death penalty and was therefore not able to conduct a thorough voir dire. The State responds that the circuit court “even-handedly” applied the same discretion in limiting questions by the State and by Gay.
Gay briefly points to language in his questioning of McLernon. The following colloquy is the questioning Gay complains about:
DefeNsb Counsel: Besides the taking of a life, a homicide, do you feel that there are other circumstances where the death penalty should be applied?
MoLeenon: I do not think so.
Defense Counsel: ... Some people are of the belief, because of religion, the way that they were raised, what they’ve read, life experiences, I couldn’t tell you what it would be, that if you take a life you should forfeit your life. Do you 17believe that?
McLeRnon: It depends on how bad of the situation. Other than taking someone’s life.
Defense Counsel: Okay. Now if I understand what you said, how bad a situation beyond the taking of a life. Is that what you said?
McLernon: There’s other circumstances that can make things a lot worse than just taking the life.
Defense Counsel: All right. Taking that last statement, would you be able to look at any circumstances there were presented to you to convince you that the death penalty’s not appropriate?
MoLeenon: I’m still on the side of the death penalty, so I can’t really answer that question.
Defense Counsel: And let me just tell you. We’re not allowed to give you examples and say—
McLernon: Oh, I know. I know.
Defense Counsel:—if this is proven, would you do this.
McLernon: I understand.
Defense Counsel: You know it’s not like a—
McLernon: I understand.
Defense Counsel: —slot machine, where you put it in, pull the handle and get an answer.
McLernon: I know.
Defense Counsel: So that’s why we’re talking in a vacuum.
McLernon: I understand.
IsHere, Gay asserts that he was unable to adequately explore Juror McLernon’s view; but makes conclusory statements and does not develop this argument. However, based on the record discussed above, the record does not support Gay’s argument. Further, we “do not consider an argument when the appellant presents no citation to authority or convincing argument in its support, and it is not apparent without further research that the argument is well taken.” Decay v. State, 2009 Ark. 566, at 3-4, 352 S.W.3d 319, 324 (internal citations omitted). Further, based on our review of the record, Gay did not preserve this issue for review. Gay did not contemporaneously object to the voir dire or proffer questions he sought to ask the potential jurors.
Accordingly, based on our discussion above, we affirm the circuit court on Gay’s second point.
C. Improper Removal of Jurors Based on the Circuit Court’s Inconsistency
For his third point on appeal, Gay asserts that the circuit court erred when it employed an inconsistent approach to rehabilitative questions to veniremen, which resulted in the improper removal of jurors for cause that denied Gay the right to a fair and impartial jury. Further, Gay asserts that voir dire serves a critical function in assuring a fair trial and that the circuit court’s uneven treatment regarding rehabilitation of jurors who favored the death penalty as opposed to those who had problems with the death penalty constitutes an abuse of discretion. Thus, Gay urges us to reverse and remand the matter for a new trial.
Here, Gay challenges rehabilitative questions by the circuit court to the following prospective jurors: Sandra Barker, Blanche Young, Elmer George, Samantha Brown, and |9Carolyn Wetthington. Barker, Young, and Wetthington were struck by the defense with peremptory challenges. The prosecution struck George with a peremptory challenge. The record demonstrates that Gay did not object to the circuit court’s questioning or treatment of these potential jurors that he now complains of in this appeal.
On the prosecution’s motion, the circuit court excused Brown for cause. However, Gay did not object or preserve the issue for review. The record demonstrates that Gay did not object below after Brown had been struck. This court has repeatedly stated that we will not consider arguments raised for the first time on appeal. See Phavixay v. State, 2009 Ark. 452, 352 S.W.3d 311; see Decay, 2009 Ark. 566, at 7, 352 S.W.3d at 326.
Further, the record does not support Gay’s argument. The extent and scope of voir dire examination is within the sound discretion of the circuit court judge, and the latitude of that discretion is wide. Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992). The circuit court’s restriction of that examination will not be reversed on appeal unless that discretion is clearly abused. Id. Abuse of discretion occurs when the circuit court acts arbitrarily or groundlessly. See Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991). “This court has said that the proper test to be used in releasing a prospective juror for cause is whether the person’s views would prevent or substantially impair the performance of his or her duties as a juror in accordance with his or her instructions and oath. Williams v. State, 288 Ark. 444, 705 S.W.2d 888 (1986). Because Arkansas recognizes the death penalty, jurors in a capital murder case must be able to consider imposing a death sentence if they are to perform their function as jurors. Id.” Isom, 356 Ark. at 171-2, 148 S.W.3d at 267-68.
| tpHere, when asked whether she could consider guilt or innocence of capital murder in the first phase of the trial without considering the death penalty, prospective juror Brown stated that she was hesitant about being able to separate guilt from punishment. Brown also stated that she did not want to make a decision about the death penalty, and “I’ve never thought an eye for an eye ... thing.” Gay has failed to assert error by the circuit court and makes conclusory allegations. Further, based on our review of the record, we are unpersuaded that the circuit court erred on this point, and we affirm the circuit court.
D. Motion for Mental Examination
For his fourth point on appeal, Gay asserts that the circuit court erred in granting the State’s motion for a mental examination of Gay pursuant to Ark. Code Ann. § 5-2-305(a)(l)(B) (Repl. 2013). Pursuant to Ark. Code Ann. § 5-2-305(a)(1)(B), which was in effect at the time of the motion, the circuit court may, on its own, suspend all proceedings and order a mental examination when there is “reason to believe” a mental disease or defect of the defendant has become an issue in the case. The State based its motion on the fact that Gay had previously been convicted of two murders, and in one of those cases, Gay put his .fitness to proceed as an issue. Thus, the State contended that it anticipated Gay might put his mental condition at issue at some point, including sentencing, and the State was entitled to have Gay submit to a mental examination. Gay objected and asserted that if the motion was granted, the evaluation should be limited in scope; he also requested that counsel be present. On May 14, 2012, the circuit court entered an order allowing the examination, denied Gay’s request for a limited exam and granted Gay’s motion for counsel to be present on the | n premises.
Here, the record demonstrates that on August 14, 2012, psychologist Courtney A. Rocho met with Gay. However, Gay refused to participate. Further, the examination was not used against Gay. Although Gay asserts the circuit court erred, the examination was not introduced at trial. Because Gay’s evaluation was never used at trial, he cannot demonstrate prejudice. Hayes v. State, 274 Ark. 440, 447, 625 S.W.2d 498, 502 (1981) (“We fail to perceive nor has appellant demonstrated how he was prejudiced by the non-use of these statements.”);. see Simpson v. State, 339 Ark. 467, 6 S.W.3d 104 (1999). Accordingly, we affirm the circuit court on Gay’s fourth point.
E. AMI Grim. 2d 202 and 206
For his fifth point on appeal, Gay asserts that the circuit court erred in refusing to give AMI Crim. 2d jury instructions 202 and 206. With regard to jury instructions, “a trial court’s ruling on whether to submit a jury instruction will not be reversed absent an abuse of discretion. Hill v. State, 344 Ark. 216, 40 S.W.3d 751 (2001).” Grillot v. State, 353 Ark. 294, 318, 107 S.W.3d 136, 150 (2003).
Gay challenges two separate instructions. First, AMI Crim. 2d 202, Inconsistent Statements, provides,
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.
At trial, Gay asserted that the instruction was applicable because witness Rickey Stewart had been inconsistent with his testimony and statement given to the FBI. The State | ^objected, and the circuit court refused to submit the instruction but allowed Gay to proffer the instruction. The following is the entire exchange regarding the instruction:
Defense Counsel:. I also submitted an inconsistent statement instruction.
The Court: 202?
Defense Counsel: 202, I believe .... The only potential witness that I— witness that this came up with was Mr. Stewart.
The Couet: Okay.
Defense Counsel: And it’s—like I said, he’s the only'—I don’t recall Ms. Nev-éis or Ms.—is it McElroy?
The Court: And what were the inconsistent statements that Mr. Stewart made?
Defense Counsel: Well, during cross I asked him about things he said to the FBI agent. There weren’t many questions, but when he was being interviewed. And that’s the only thing, ’cause Mr. Westlake, that wasn’t the case. And then no one else—everybody else would’ve been crime lab or police.
The Court: State object to that instruction being given?
ProseCutor: Yes, Your Honor. I don’t believe that there was anything where [defense counsel] pointed out you said • this differently in your statement. He might’ve asked about the statement but I don’t think there was any inconsistencies that were pointed out.
Defense Counsel: If you’ll just show that proffered for the record on behalf of the Defendant, please.
The Court: I’ll do that.
Here, Gay does not develop his argument but simply makes conclusory allegations. We “do not consider an argument when the appellant presents no citation to authority or 113convincing argument in its support, and it is not apparent without further research that the argument is well taken.” Decay, 2009 Ark. 566, at 3-4, 352 S.W.3d at 324 (2009) (internal citations omitted). Further, based on the record, at trial, Gay did not identify the inconsistent statements supporting his request for the instruction or explain why the instruction should have been given. Accordingly, we do not find merit in Gay’s argument and affirm the circuit court with regard to AMI Crim. 2d 202.
Second, Gay asserts that the circuit court erred in refusing to submit AMI Crim 2d. 206, Corroboration of Confession. Gay asserts that the circuit court mistakenly interpreted AMI Crim. 2d 206 to have a corroboration requirement. Gay contends that the circuit court should have given the instruction because Gay had provided a statement which the State introduced at trial, and the State referred to the statement in closing arguments.
AMI Crim. 2d 206 provides,
A confession of a defendant, [unless made in open court], will not warrant a conviction unless accompanied with other proof that the offense was committed.
The circuit court refused to submit the instruction but allowed Gay to proffer it:
Defense Counsel: I did submit a 206 because there was a statement given to the authorities that the State introduced into evidence.
The Court: But this is a corroboration. But, you know, I don’t think the statement ever admitted the crime. Well it was—I think the—well, I can’t suggest the purpose, but from what— the way I understood it was they put it in to show that he was not telling the truth .... But I mean, this is a corroboration instruction of a confession and I just—
| uDefense Counsel: Well, I did it—I did it ’cause I think it’s—
The Court: I’m gonna show this proffered too but I don’t think I’m gonna give it ... ’Cause I think it’s gonna be confusing.
At trial, during closing arguments, the State referred to notes provided by Special Agent Scott Falls of the FBI during his investigation when Gay was questioned about the crime. The State referred to Falls’s notes where Falls stated that Gay had claimed Gay was drunk and did not remember anything and also stating that he had spent the day in Mt. Pine. Gay asserts that the State’s closing argument was the “confession” and that the circuit court should have submitted AMI Crim. 2d 206 to the jury. The portion of the closing argument he asserts merits the instruction being given is as follows:
When you look at the statement that he gave, I submit to you, ladies and gentleman, that clearly shows that Ran dy Gay is not telling the truth about what he told the officers. Let’s go through that.
In the statement he gave to Scott Falls, he first claims he’s an alcoholic who suffers from blackout spells and passes out frequently. Second, he has trouble recalling and cannot remember what he’s done. He states that on Tuesday, May 10th, 2011, he had bought some beer and whiskey and stopped at a friend’s house at nine in the morning and stayed there ’til 8:15 that night drinking. Ms. Nevels said that did not happen. He showed up at 6:30 after the murder.
At approximately 8:15, he left with a girlfriend and went to her residence. He admits that he owns a white Chevy pickup with a silver toolbox. He admits that he has a shotgun. He admits that he works for James Westlike (sic). He stated that he had knew—he knew Connie Snow, but had not seen her for about two years. He denied having seen her for about two years. He denied having seen her within the past few days.
When accused by Special Agent Falls of shooting and killing her in front of witnesses, he alternates between “Uh, I was drunk and I can’t remember” to maintaining that he had spent the day in Mountain Pine with the Nevels, which Ms. Nevels says he did not do. And most heinously, when asked where he had hidden the 11fibody after he left her, took the pickup and dumped her, he said “He couldn’t help.” “I don’t remember anything and I can’t report what I don’t remember.”
Here, the record demonstrates that the State made arguments regarding Gay’s truthfulness in statements provided to law enforcement, but there was not a confession. The State argued, ‘When you look at the statement he gave, I submit to you, ladies and gentlemen, that clearly shows that Randy Gay is not telling the truth about what he told the officers.” Accordingly, the statement or information was not used as a confession but questions to Gay’s truthfulness. Further, the statement was made by the State during closing arguments and was not evidence submitted to the jury. The jury had been instructed that closing arguments are not evidence in the trial. Based on our standard of review and the record before us, we do not find error on this point and affirm the circuit court.
F. “Lingering Doubt” Defense in Penalty Phase
For his sixth point on appeal, Gay asserts that the circuit court erred in denying his proffered jury instruction regarding “lingering doubt” as a mitigating-circumstance. Gay offered the following as a mitigating circumstance:
There are lingering doubts as to Randy Gay’s guilt as to the offense and as to eligibility for the death penalty. Even though these doubts may not rise to the level of ‘reasonable doubt’ under the instructions given during the penalty phase of trial.
During the penalty phase of the trial, Gay requested that the circuit court submit the instruction and the following colloquy occurred:
Prosecutor: That instruction does not go to anything about the Defendant. He is targeting the jurors in terms of saying even though you found the Defendant guilty of capital murder, this may not have been your verdict. I do not bethink that is a true mitigator.
Defense Counsel: I would first point out that the jury can very easily check the box that “no member of the jury find that this is a mitigating circumstance that probably exists.” Beyond that, if there is even a single juror that has any lingering doubt, it is absolutely a mitigator in the sense that it makes the death penalty inapplicable.
PkoseoutoR: The issue is that, during that stage of the trial, they should not even be concerned about what the punishment will be later on. They were instructed not to do that and he is saying they have a lingering doubt.
The Court: I am going to agree with the State on this. I am striking [it].
Gay asserts that the circuit court erred in denying this instruction. Gay urges us to revisit the holding in Ruiz v. State, 299 Ark. 144, 164, 772 S.W.2d 297, 308 (1989), where this court held that it was not error to reject a “lingering doubt” instruction. Gay also asserts that recent studies have shown that “lingering doubt” is the most significant factor in deciding whether a defendant will receive a life sentence.
In Ruiz, we held,
The trial court refused an instruction proffered by the appellants which told the jury it could consider in mitigation any lingering doubt it might have as to appellants’ guilt. It was not error to refuse this proposed instruction. See Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988); Mitchell v. State, 527 So.2d 179 (Fla. 1988).
Id.; see also Nooner v. State, 2014 Ark. 296, at 58, 438 S.W.3d 233, 263 (“Mitigating circumstances are not limited to those in existence at the time of the capital murder but may include events that have occurred after the defendant’s arrest or even during imprisonment pending a successful appeal from a death sentence. Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), followed in Pickens v. State, 292 Ark. 362, 730 S.W.2d 230 (1987). The trial court is not required to instruct that a lingering doubt regarding guilt may be considered a mitigating circumstance. Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989).).”
Here, based on the record before us, Gay does not provide a convincing argument that we should reconsider our holding in Ruiz, and we decline to revisit our holding in that case and affirm the circuit court.
G. Calming Influence as a Mitigator
For his final point on appeal, Gay asserts that the circuit court erred in refusing to allow Gay to introduce as a mitigating circumstance that Gay had a calming influence on others while in custody. During the sentencing phase, Gay sought to submit the following mitigating circumstance to the jury:
Defense Counsel: Randy Gay has had a calming influence with others while he has been in custody.
Prosecutor: I have reviewed the ... Defense exhibit on the records from the Department of Correction and I do not believe there is any document in that file that would indicate that and there’s been no testimony from any of the Defense witnesses, from anyone he’s been in custody with that he’s had a calming effect upon anyone.
Defense Counsel: Judge, I think that the jury could reasonably infer that he’s had a calming influence, just based on the absence of any disciplinary infraction in his correctional record.
The Court: Okay, Again I agree with the State on that.
Arkansas Code Annotated § 5-4-602(4), “[m]itigation evidence must be relevant to the issue of punishment.” See also Simpson v. State, 339 Ark. 467, 6 S.W.3d 104 (1999). We 11shave observed that Ark. Code Aim. § 5-4-602 does not totally open the door to any and all matters simply because they might conceivably relate to mitigation. McGehee v. State, 338 Ark. 152, 174, 992 S.W.2d 110, 123 (1999) (internal citations omitted). Relevant mitigating evidence is limited to evidence that “concerns the character or history of the offender or the circumstances of the offense.” Greene v. State, 343 Ark. 526, 532-33, 37 S.W.3d 579, 584 (2001) (internal citations omitted).
Here, Gay did not introduce evidence that he had a calming influence on others but sought to submit the mitigating evidence based on an inference from Gay’s lack of disciplinary record. However, Gay did not submit evidence to support this mitigating circumstance. Accordingly, we hold that the circuit court did not err in its refusal to submit the mitigation instruction regarding Gay’s calming influence on others.
III. Rule 10 Review
Finally, we note that under Rule 10 of the Arkansas Rules of Appellate Procedure-Criminal, the entire record has been reviewed, including those issues that were not properly preserved for appeal, and we hold that no reversible error exists. The record has also been reviewed under Arkansas Supreme Court Rule 4—3(i) (2016). No reversible error has been found.
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RITA W. GRUBER, Judge
| T Appellant, Addisen Entmeier, brings this appeal from an order of the Sebastian County Circuit Court granting appellees’ motion for summary judgment in this case, which was brought under the Arkansas Whistle-Blower Act (the Act). Appellees are the City of Fort Smith; Kevin D. Lindsey (chief of the Fort Smith Police Department); and Alan Haney, Brandon Bird, Chris Harris, Dewey Young, Gerald Schaefer, and Chris Boyd, Sr. (all officers of the Fort Smith Police Department). The court found that Entmeier failed to meet proof with proof—relying instead on “innuendo and supposition” to support his whis- tie-blower claim—in the face of appellees’ evidence that Entmeier was fired for poor job performance and not because he was a whistle-blower. On appeal, Entmeier contends that the circuit court erred in failing to grant additional time to complete discovery before ruling on the motion for summary judgment and that the court misapplied the burdens, standards, and ahaly-sis |grequired to grant a motion for summary judgment. We find no error, and we affirm the circuit court’s order.
Entmeier began working for the Fort Smith Police Department (the Department) in November 2010 as a civilian employee in a “non-uniformed” position. He worked in the Communications Unit, also known as Dispatch or 911, until March 2011. At that point, one of his supervisors, Sergeant Waymon Parker, told Entmeier that he was behind in his training and had a limited time frame to improve or that he could transfer to the Meter Enforcement Unit. Entmeier testified that he had a “gut feeling” that he was being offered a transfer because he had “made someone mad.” Entmeier transferred to the Meter Enforcement Unit in April 2011, where he remained until July 2012.
The events surrounding Entmeier’s claimed status as a whistle-blower occurred in 2011 during an investigation of the Communications Unit conducted by Sergeant Dawn Sprayberry with the Professional Standards Unit. The purpose of the investigation was to examine the reasons for the unit’s high turnover and general personnel problems. At the time of the investigation, Entmeier had already transferred into the Meter Enforcement Unit, but he was interviewed on May 26, 2011, regarding his experience working in Dispatch. Entmeier worked under Emily Haney while in Dispatch. Ms. Haney is married to Captain Alan Haney, one of the appellees herein. On March 6, 2012, Captain Haney improperly | .¡accessed Sergeant Sprayberry’s investigatory files without authorization, which included Entmeier’s interview statement.
In June 2012, Entmeier applied to become an officer with the Department. Ent-meier had suffered a panic attack at work in February 2012 while in the Meter Enforcement Unit, and he failed to include this information on the medical form in his application. During a polygraph examination, the discrepancy was discovered, and a review board conducted an investigation regarding whether his failure to disclose the attack prevented him from being accepted into probationary-officer training. Captain Haney was on the review board, which found no wrongdoing and accepted Entmeier as a probationary officer. Ent-meier’s year-long probationary training began in July 2012.
After the initial training, Entmeier began his “field training” in November 2012, which continued until March 2013, when he was assigned to a troop and permitted to work on his own. He was initially assigned to Troop 1, but before he began, he voluntarily agreed to transfer into Troop 3 in order to help another officer who wanted to switch for personal reasons. Captain Haney was the commander of Troop 3. From March through June, Entmeier’s supervisory officers, in Troop 3, appellees herein, reported numerous problems with his job performance. Entmeier was terminated on July 5, 2013, less than two weeks before his probationary training period was scheduled to end.
On December 26, 2013, Entmeier filed a complaint under the Arkansas Whistle-Blower Act, alleging that he had been fired from Captain Haney’s Troop 3 in retaliation for accusing Ms. Haney of abuse of overtime in his interview during the 2011 investigation of |4the Communications Unit. No discovery was conducted, and on June 3, 2015, appellees filed a motion for summary judgment contending that Ent-meier could not show facts beyond mere speculation and conjecture to support the claim that he had been fired because he had engaged in whistle-blowing activity. They contended that, even if Entemeier could prove that he was a whistle-blower, he had been terminated for poor job performance, not for any alleged whistle-blowing activity. Entmeier responded that the motion was premature and prevented him from engaging in discovery. He also argued that the motion was based on self-serving affidavits that were false or intentionally misleading and that the motion ignored genuine issues of material fact. The circuit court granted appellees’ motion, finding that Entmeier had failed to sufficiently meet proof with proof and that there were no genuine issues of material fact.
I. Discovery
For his first point on appeal, Ent-meier argues that the circuit court erred in failing to grant him additional time to complete discovery before ruling on appellees’ motion. The circuit court rejected Entmeier’s argument, stating that the motion for summary judgment had been filed almost eighteen months after Entmeier had initiated the lawsuit and that no discovery efforts had been conducted during that time. The court recognized that Entmeier did not file discovery until a month after the motion for summary judgment had been filed. The court also noted that defense counsel had stated at the hearing that appellees had assembled and made available to Entmeier thousands of pages of discovery documents, which, as of the date of the hearing in September 2015, had not been reviewed by anyone on IfiEntmeier’s behalf. The court found that the motion was not premature.
A trial court has wide discretion in matters pertaining to discovery, and we will not reverse its decision absent an abuse of that discretion. Lancaster v. Red Robin Int’l, Inc., 2011 Ark. App. 706, at 11, 386 S.W.3d 662, 670. In support of his argument that the motion was premature, Entmeier cites our supreme court’s decision in First National Bank v. Newport Hospital & Clinic, Inc., 281 Ark. 332, 663 S.W.2d 742 (1984). In that case, the court reversed the trial court’s summary judgment, holding that the motion should not have been granted until discovery that was “clearly pertinent” to the issues in the case had been completed. Id. at 335, 663 S.W.2d at 743. There, the defendants in a medical-malpractice case filed motions for summary judgment after the plaintiff had requested production of certain “pertinent” medical records. Id. The supreme court specifically noted that there had been “no suggestion of a lack of diligence by the plaintiff in discovery efforts.” Id. Here, in contrast, no discovery was conducted for eighteen months, and none was propounded until after appellees’ motion for summary judgment had been filed. Finally, Entmeier did not review the documents that had been provided to him before the summary judgment hearing. On this record, we hold that the circuit court did not abuse its discretion in refusing to withhold its ruling on the motion to allow Entmeier to conduct additional discovery.
II. Summary Judgment
Before we turn to the circuit court’s ruling, we set forth the relevant provisions of the Arkansas Whistle-Blower Act, found in Arkansas Code Annotated sections 21-1-601 et seq. (Repl. 2004 & Supp. 2015). Pursuant to the Act,
| fi(a)(l) A public employer shall not take adverse action against a public employee because the public employee or a person authorized to act on behalf of the public employee communicates in good faith to an appropriate authority:
(A) The existence of waste of public funds, property, or manpower, including federal funds, property, or manpower administered or controlled by a public employer; or
(B) A violation or suspected violation of a law, rule, or regulation adopted under the law of this state or a political subdivision of the state.
Ark. Code Ann. § 21-1-603 (emphasis added).
To prevail in an action brought under this Act, the public employee must show that he has suffered an adverse action because he engaged or intended to engage in an activity protected under the Act. Ark. Code Ann. § 21-l-604(c). The Act also provides that a public employer has an affirmative defense to a whistle-blower lawsuit if the adverse action taken against the employee “was due to employee misconduct, poor job performance, or a reduction in workforce unrelated to a communication made pursuant to § 21-1-603.” Ark. Code Ann. § 21-l-604(e)(l).
Summary judgment is to be granted by a circuit court only when it is clear that there are no genuine issues of material fact to be litigated and the party is entitled to judgment as a matter of law. Gallas v. Alexander, 371 Ark. 106, 114, 263 S.W.3d 494, 501 (2007). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Bingham v. C & L Elec. Coop., 2015 Ark. App. 237, at 4, 459 S.W.3d 831, 833. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact 17unanswered. Town of Gilbert v. Fruehauf 2013 Ark. App. 17, at 2, 425 S.W.3d 816, 817. Finally, when evaluating evidence in a motion for summary judgment, we must resolve all doubts and inferences against the moving party. Quarles v. Courtyard Gardens Health & Rehab., LLC, 2016 Ark. 112, at 8, 488 S.W.3d 513, 519.
Entmeier argues that the circuit court improperly shifted the burden of proof to him and failed to resolve all doubts and inferences against appellees. We disagree. Entmeier alleged that he was terminated for communicating in good faith to the Office of Professional Standards regarding the waste of public funds. Specifically, he alleges in his complaint that the information he provided in his interview regarding overtime waste by Emily Haney was improperly discovered by Captain Haney and that, because of this, he was terminated while under Captain Haney’s supervision in Troop 3. To support his whistle-blower status, Entmeier points to the following statement from his 29-page interview:
Personally, I think that they get so much overtime in there, and then, you know—say I work in there, and I’m a dispatcher. We’re shorthanded, get all this overtime, you’re supposed to be making $30,000 a year. You’re making $80,000 a year because you’re getting all this overtime. Hey, if we all get together and we scare off all these people or, you know, we try to fail them any way we can, then we’ll keep ’em from filling these slots up to where we don’t lose pay.
In response, appellees alleged in their motion that Entmeier was not fired because he was a whistle-blower but because of poor job performance. Their motion for summary judgment refuting Entmeier’s allegations that they violated the Act included depositions taken in a separate whistle-blower case that concerned many of the same underlying facts. See Bales, supra. Appellees also attached the affidavits of the parties and several other witnesses with knowledge about Entmeier and his employment with the Department. These documents |scontained abundant evidence supporting appellees’ affirmative defense that Entmeier was not terminated because he was a whistle-blower but because of his own poor job performance. Once the moving party makes a prima facie showing of entitlement, the opposing party may not rest upon mere allegations or denials, but must “meet proof with proof’ and set forth specific facts showing that there is a genuine issue for trial. Wirth v. Reynolds Metal Co., 58 Ark. App. 161, 166, 947 S.W.2d 401, 403-04 (1997).
Appellees presented the following evidence to support their motion. First, ap-pellees presented Entmeier’s deposition testimony in which he admitted to various performance issues. First, he testified that when he was offered the transfer from Dispatch to the Meter Enforcement Unit, he was told that he would be terminated if he did not either improve in four weeks or transfer to the Meter Enforcement Unit. He admitted that he chose to transfer rather than attempt improvement. He also testified that he had suffered a panic attack at work while working in the Meter Enforcement Unit in February 2012. He admitted that he had lied in his application about the panic attack but then recognized that he had been hired as a probationary officer in spite of this. Captain Haney was on the review board that investigated this issue and approved of Entmeier’s hiring in July 2012. This occurred more than a year after Entmeier’s alleged whistle-blowing activity and several months after Captain Haney had improperly obtained access to the file.
Entmeier also testified that when he began field training for probationary officers in November 2012, he worked with Jason Thompson and Daniel Honeycutt. He said that Honeycutt had pointed out various areas in which Entmeier was having problems, including | ^geographical awareness—that is, taking the shortest route to a call—and being able to identify specific laws. Entmeier remembered an incident in which Thompson had counseled him about issuing the wrong citation and several incidents when Thompson had counseled him regarding officer safety. He also recalled having been counseled for failing to turn on his police cruiser camera and failing to turn on his uniform mic so that his conversations were recorded.
Entmeier began working in Troop 3 under Captain Haney in March 2013. He testified regarding several arrests in May that Officers Bird and Young told him were handled improperly. They suggested that he become more familiar with the loitering statute. On another arrest, Ent-meier had overlooked some drug paraphernalia on the subject when he patted him down, which was later discovered on the subject at the jail. Entmeier testified regarding numerous counseling sessions, including the “bad arrest” of a man in the curtilage of his business, during which Captain Haney told Entmeier to study the laws of disorderly conduct, public intoxication, loitering, and obstructing governmental operations. Regarding a subsequent counseling session on June 5, Entmeier testified that his supervisors in formed him that he was “doing poorly,” that he needed more assistance than his peers, and that he was calling the sergeants too much for direction. They asked him whether he had been studying the laws. Captain Haney told Entmeier that he was on a “short leash” and had only five weeks to improve performance before the end of the probationary period or he would face termination.
He testified that he was counseled again by Officers Bird and Young concerning the unlawful arrest of a drunk female who was passed out on a couch. He removed her from the l1flhome and then arrested her for public intoxication. Officers Bird and Young told Entmeier that the arrest was unlawful and directed him to call the prosecutor to have the charge nolle prossed. Entmeier testified that he thought he was being treated unfairly because they “kept conferencing with me,” but he admitted that the counseling sessions were about “legitimate things”—“learning the laws and becoming more familiar with the Department’s policies.”
Each affidavit attached to appellees’ motion also detailed a variety of problems with Entmeier’s job performance while he was under appellees’ supervision in Troop 3. Appellee Sergeant Brandon Bird detailed issues with Entmeier occurring from March through June 2013. Most of these concerned Entmeier’s lack of knowledge regarding the criminal laws and procedure, his inability to “rationalize his way though complex problems,” and his unwillingness or confusion in taking direction from senior officers.
Appellee Chris Boyd, Sr., a major in charge of the Patrol Division, stated in his affidavit that he was aware of concerns from several supervisors about Entmeier’s performance. He stated that Entmeier was having difficulties making proper decisions during encounters with the general public and with suspects, was having continual shortcomings regarding knowledge and application of the law, and was making mistakes that someone with his level of training and experience should not have been making.
Captain Haney emphasized in his affidavit and notes that Entmeier was not sufficiently familiar with the criminal code and the common charges a patrol officer uses on a daily basis. In spite of Captain Haney’s continual pleas to Entmeier to study the laws and learn the points for each arrest, Entmeier had not made any improvements. Sergeant Chris Harris, who In conducted a “ride along” to evaluate Entmeier from June 27-30, 2013, stated that Entmeier was unable to take the most direct routes to call locations, did not appear able to thoroughly investigate a complex case or see multiple ways to handle a situation, and- seemed confused and unsure about how to handle the pursuit of a suspect. Sergeant Harris expressed reservations that remedial training would be successful given Entmeier’s failure to embrace past efforts to train him from his chain of command.
Finally, Chief Kevin Lindsey, the chief of police' for the City of Fort Smith, stated that his decision to terminate Entmeier was based on information he received from Entmeier’s chain of command. The decision was not based on any single factor but on the totality of the information. He stated that when he was approached by -Sergeant Rick Entmeier, Entmeier’s father, and another officer, Sergeant Don Paul Bales, regarding Entmeier’s having been terminated based on “false information,” he instructed the Office of Professional Standards to investigate the claim. He reviewed the investigation file and determined that there were no facts on which to base a conclusion that Entmeier had been terminated for any reason other than his inadequate job performance as a probationary training officer.
Captain Jarrard Copeland—who, as the head of the Office of Professional Standards, investigated Entmeier’s termination—collected notes from Officers Thompson and Honeycutt, who had conducted Entmeier’s field training from November 2012 through March 2013 before he began working in Troop 3. The officers’ comments from the training included numerous concerns regarding Entmeier’s lack of geographical awareness, his failure to understand the law, and his failure to issue the proper citation. The following are only a 112few examples of these comments, which continued through March.
Honeycutt: 11-26-12—“Still having trouble locating addresses. He needs to improve his geographical awareness.” 12-19-12—“Needs to continue to improve his geographical awareness.” 2-4-13—“I explained to Addisen that he should not be making these mistakes at this point in his training.” 2-10-13—“He did not take the most immediate route which caused a delay in our response times.” 2-11-13—“He did have some problems identifying the specific law that was broken. I instructed him to study the most common laws we deal with and familiarize himself with them.”
Thompson: 1-1-13—“I still had to assist him in taking the shortest route to calls.” 2-13-13—“He issued the wrong citation on an accident .... ” 2-24-13— “He did not know how to handle a child custody case. He called another officer for assistance.”
In response to appellees’ motion and documentation, Entmeier provided the affidavit of Officer Wendall Sampson; the affidavit of his father, Sergeant Entmeier; and the affidavit of Sergeant Don Bales, all from the case of Bales v. City of Fort Smith, 2016 Ark. App. 491, 505 S.W.3d 705. None of these officers had worked with Entmeier during his probationary training period and none had any firsthand knowledge of his job performance. Sergeant Entmeier stated that he had been told that his son was “messing up left and right.” He also said that Captain Ed Smalley had informed him that he was not aware of any issues with his son’s training. Captain Smalley was the Police Training Coordinator, but there is no evidence that he ever worked with Entmeier directly, and Captain Smalley did not provide an affidavit.
Sergeant Bales stated in his affidavit that Entmeier had told him that he had been passed by both of his training officers, Honeycutt and Thompson, but that he had been informed by Sergeant Bird, Sergeant Young, and Captain Haney that his performance was not up to standards and that he would be fired if he did not make immediate improvements. Sergeant Bales stated that, based on his knowledge of the probationary officer training, if Ent-meier’s | ^allegations were true, the program was not being followed properly. Sergeant Bales, however, testified in his deposition that he had never personally worked with Entmeier, evaluated him, or overseen him in any way concerning his job performance. Neither Sergeant Bales’s deposition nor his affidavit explained the specific rules of the training program that he alleged had been violated. Further, none of Entmeier’s documents provide any evidence other than speculation that he was terminated for statements he had made in his interview and not for the many performance problems he had experienced during his entire probationary-officer training. Entmeier did not provide any depositions or affidavits from an officer who had directly supervised him during his probationary training year, or any other individual with direct knowledge of his job performance, to refute appellees’ extensive evidence on this issue.
The circuit court found that Entmeier had failed to meet proof -with proof. The court found the statements of Entmeier’s father to be mere hearsay, uncorroborated by those who allegedly had made the statements. The court also noted that Ent-meier himself testified to many of the performance issues and that he had been silent regarding these performance issues in his response to appellees’ evidence. Again, the court found that Entmeier had failed to meet proof with proof and had relied on innuendo and supposition to support his claims.
The circuit court determined as a matter of law that appellees had an affirmative defense to Entmeier’s claim and that his termination was due to poor job performance. Entmeier has failed to demonstrate the existence of a genuine issue of material fact that he was not terminated for poor job performance. Accordingly, we affirm the circuit court’s order granting summary judgment.
| ^Affirmed.
Kinárd and Vaught, JJ., agree.
. No depositions were taken in this case; however, depositions were taken in another whistle-blower case against the City of Fort Smith that was proceeding at the same time. See Bales v. City of Fort Smith, 2016 Ark. App. 491, 505 S.W.3d 705, Some of the issues and evidence in that case dovetail with this case. | [
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JOSEPHINE LINKER HART, Associate Justice
11 This is a class-action case. Appellants SEECO, Inc., DeSoto Gathering Company, LLC, and Southwestern Midstream Services Company (collectively SEECO), are subsidiaries of Southwestern Energy Company. In this interlocutory appeal, SEECO challenges an order of the St. Francis County Circuit Court granting class certification to a group of landowners who entered into natural-gas leases with SEECO. SEECO also challenges whether Mrs. Stephanie DeVazier is a proper substitute class representative. After the circuit court had certified the class, SEECO filed an appeal to this court and completed briefing, but before submission of the case, Mrs. Stewmon passed away. This court entered, on appellee’s motion, an order for substitution of a new qualified class representative. Before the substitution was made, Circuit Judge L.T. Simes passed away. Judge Kathleen Bell was assigned as Judge Simes’s replacement. |aOn March 22, 2016, Judge Bell entered an order finding that DeVazier was a - qualified class representative and approved her as a substitute for Stewmon.
SEECO timely filed a supplemental notice of appeal and presented an additional 27 pages of argument, some of which duplicates what was presented in the original brief. When appropriate, we will combine the redundant arguments in our discussion.
In the original appeal, SEECO argues: (1) the prior filing of Snow precludes this case from going forward; (2) the class definition erroneously requires a determination of the merits to identify class members; (3) appellee did not introduce evidence to prove the Rule 23 requirements for class certification; and (4) the redundant class certification violates appellants’ federal and state constitutional rights to due process. For its “supplemental” argument, SEECO argues: (A) Mrs. DeVazier has not properly joined this suit and must be dismissed. (B) Even if Mrs. DeVazier were permitted to enter the case, she is not a proper class representative under Rule 23. (C) The circuit court lacked jurisdiction to hear Mrs. DeVazier’s claims because they are already being litigated in the June Merrell lawsuit and in the concurrently pending Snow class action. (D) When class certification is pending on appeal and the class representatives dies, the certification must be vacated as moot.
At issue is a provision in more than 16,000 of SEECO’s standard gas leases that allows SEECO to deduct from royalty payments reasonable expenses incurred in gathering, [ ^compression, treatment, and marketing the natural gas that is extracted from the wells. The St. Francis County Circuit Court defined the class as
[a]ll residents of the State of Arkansas who entered into leases with Defendant SEECO (up through September 27, 2013) for the development and operation of natural gas wells on property located in the State of Arkansas and who signed leases allowing for deduction of reasonable costs for gathering, compression, treatment and marketing. Specifically excluded are any leases which have non-Arkansas residents as parties to the lease.
(Hereinafter, “the class.”)
SEECO, Inc. is an energy company engaged in the exploitation of natural-gas deposits found in the geological region of Arkansas known as the “Fayetteville Shale.” SEECO secures gas leases and drills the gas wells. DeSoto Gathering Company, LLC, and Southwestern Midstream Services Company engage in gathering, compression, treatment, and marketing natural gas. The appellees/lessors’ complaint, filed September 27, 2013, alleges that the relationship between the aforementioned SEECO defendants allowed SEECO to manipulate the costs associated with bringing the natural gas to market through upcharging for services provided by the subsidiary companies and by allowing the subsidiary companies to use natural |4gas without authorization or com pensation to the owners. As a result, SEECO deducted “fraudulent” and “unfair” expenses from the lessors’ royalties. It asserted causes of action for breach of contract; unjust enrichment; breach of the “Prudent Operator Standard,” a statutory duty of good faith to accurately pay royalties in accordance with Arkansas Code Annotated section 15-73-207, including treble damages and attorney fees for underpayment of royalties; deceptive trade practices; and fraud.
The lessors’ dissatisfaction with SEE-CO’s deductions from their royalty payments has, to date, spawned two other class-action lawsuits. On May 7, 2010, El-dridge Snow became lead plaintiff in a similar lawsuit filed in Conway County. On October 14, 2014, the Conway County Circuit Court entered an order that certified the proposed class in Snow. SEECO, Inc. v. Snow, 2016 Ark. 444, 506 S.W.3d 206, is also on appeal and is a companion case to the case-at-bar. A third class-action, Smith v. SEECO, was certified in federal court.
At the certification hearing in the instant case, the St. Francis Circuit Court had before it the complaint, Stewmon’s copy of the SEECO form gas lease, the Dedicated Field Services Agreement entered into between SEECO and DeSoto Gathering Company that sets the rates for gathering charges on gas SEECO produces in the Fayetteville Shale, which does not make any special provisions for a particular gas well; SEECO’s admission that over 10,000 leases |ncontain similar language to the deduction clause in the Stew-mon lease; SEECO employee Stephen Guidry’s deposition in which he testified that 66.2% of the 16,760 or 11,095 leases with SEECO are implicated by the class definition proposed by Stewmon. It also had copies of check stubs memorializing the deductions to Stewmon’s royalties. Also submitted was a deposition from Stewmon and the entire record from the Snow case, which contained copies of additional SEECO gas leases. Based on the information that the circuit court had before it, it certified the class.
On appeal, SEECO first argues that the prior filing of Snow precludes this case from going forward. It contends that this court prohibits co-equal lower courts from competing with each other over the same action and the same parties under an exclusive-jurisdiction rule that provides either for dismissal on appeal or an extraordinary writ. Citing Foster v. Hill, 372 Ark. 263, 275 S.W.3d 151 (2008), and Edwards v. Nelson, 372 Ark. 300, 275 S.W.3d 158 (2008), SEECO asserts that both class-action lawsuits are barred by the “doctrine of concurrent jurisdiction.” According to SEECO, this doctrine is based on comity and the necessity of avoiding conflict in the execution of judgments by independent courts. SEECO notes that the class descriptions in Snow and in the instant case include “the same class of Arkansans who have leases with SEECO providing for deduction of reasonable costs for gathering, treatment, and marketing” the extracted natural gas. SEECO argues further that there is no meaningful distinction between the terms “resident” and “citizen.” It contends that eliminating competing lawsuits is necessary to preclude “interference” from the other lawsuit, which it |7contends has already occurred, with Snow attempting to intervene in the case-at-bar. As an alternative position, SEECO urges this court to use its superintending authority over the inferior courts of this state to “end the feud” between the parties in the competing lawsuits. It asserts that “this class action chaos cannot continue.”
Stewmon asserts that at this stage of the proceedings, an interlocutory appeal of the class certification, the issue of whether competing class-action lawsuits should be allowed is outside the scope of what SEECO designated for appeal. Stew-mon argues that this issue was raised and rejected by the circuit court in a motion for summary judgment, which is not ap-pealable in this case. We find merit in Stewmon’s argument.
In pertinent part, Rule 2(a) of the Arkansas Rules of Appellate Procedure-Civil provides,
(a) An appeal may be taken from a circuit court to the Arkansas Supreme Court from:
1. A final judgment or decree entered by the circuit court; (or)
9. An order granting or denying a motion to certify a case as a class action in accordance with Rule 23 of the Arkansas Rules of Civil Procedure.
Certainly SEECO’s argument is outside the scope of the class certification. This court has made it clear that it will not entertain other issues in an interlocutory appeal pursuant to Rule 2(a)(9) under the guise of a challenge to class certification. Lenders Title Co. v. Chandler, 353 Ark. 339, 107 S.W.3d 157 (2003). Furthermore, in United American Ins. Co. v. Smith, 2010 Ark. 468, 371 S.W.3d 685, this court stated that in an interlocutory appeal from a class] scertification order, a party could not acquire impermissible interlocutory review of the denial of a summary-judgment motion.
We are also unpersuaded by SEE-CO’s contention that the “concurrent-jurisdiction doctrine” bars competing class-action lawsuits. In our view, there is no such “doctrine.” Rather, it is a legal response to the situation in which there are two actions between the same parties on the same subject that test the same rights. In Askew v. Murdoch Acceptance Corp., 225 Ark. 68, 279 S.W.2d 557 (1955), a case that predated the Arkansas Rules of Civil Procedure, there was merely a situation that would today fall under Rule 12(b)(8). Rule 12(b)(8) provides for the dismissal of a case if a party asserts that there is the “pen-dency of another action between the same parties arising out of the same transaction or occurrence.” However, in the instant case, because the Stewmon and Snow lawsuits have different lead plaintiffs and different participants—there can be only one recovery per aggrieved party—the parties are not the same. Accordingly, the factual predicate to assert a 12(b)(8) defense is simply not present.
SEECO next argues that the class definition erroneously requires a determination of the merits to identify class members. It urges us to find analogous Southwestern Bell Yellow Pages, Inc. v. Pipkin Enterprises, Inc., 359 Ark. 402, 198 S.W.3d 115 (2004), where this court reversed a certification order that defined a class as: “[a]ll Arkansas customers of Defendants who paid or were charged usurious interest charges since November 15, 1997.” The court agreed that the class definition was “invalid on its face” because it “depends on a determination of the ultimate question, i.e., whether Yellow Page’s [Southwestern Bell’s] charges were usurious.”
This court reviews class certification under an abuse-of-discretion standard. Id. An 19abuse of discretion means discretion exercised improvidently, thoughtlessly and without due consideration. Id. A class must be susceptible to precise definition. Id. Before a class may be certified under Rule 23, the class description must be sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member of the proposed class, and the identity of the class members must be ascertainable by reference to objective criteria. Id.
SEECO’s reliance on Pipkin Enterprises, Inc. is misplaced. Whereas the Pipkin class description required a determination of the ultimate issue, the class in Stewmon is defined simply by residency and whether the class members signed a gas lease with SEECO that contained a specific clause. The ultimate issue, whether SEE-CO deducted money from royalty checks in excess of “reasonable costs for gathering, compression, treatment and marketing” is reserved for the finder of fact.
Finally, we decline SEECO’s invitation to exercise our superintending control to manage these competing lawsuits. While amendment 80 to the Arkansas Constitution gives this court broad superintending control over the courts of this state, we have to this point primarily employed this power to exercise administrative control over the inferior courts. We do not believe it is necessary for us to take a more active role in this case.
For its third point on appeal, SEECO argues that Stewmon did not introduce evidence to, prove the Rule 23 requirements for class certification. It contends that the circuit court erroneously relied on “allegations and arguments” in support of its Rule 23 findings.
The record belies SEECO’s argument. As previously noted the circuit court had before | init a considerable quantity of evidence and other documentation to justify its findings. In making this argument, SEECO misapprehends the role of the circuit court in certifying a class action. Unlike the federal courts, which require a “rigorous analysis,” Arkansas courts are much more liberal in allowing certification. See 2 David Newbern et al., Civil Practice and Procedure § 8:1 (4th ed.). In Chandler, supra, this court stated that the circuit court is obligated to “undertake enough of an analysis to enable us to conduct a meaningful review of the certification issue on appeal. At a minimum, this requires more than a cursory mention of the six criteria or bare conclusions that those criteria have been satisfied. The trial court cannot simply rubber stamp the complaint.” 353 Ark. at 349, 107 S.W.3d at 162. Class certification is governed by Rule 23 of the Arkansas Rules of Civil Procedure, which states in part:
(a) Prerequisites to Class Action.. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties and their counsel will fairly and adequately protect the interests of the class.
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. At an early practicable time after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. For purposes of this subdivision, “practicable” means reasonably capable of being accomplished. An order under this section may be altered or amended at any time before the court enters final judgment. An order certifying a class action must define the class and the class claims, issues, or defenses.
As appellees note, in United American Insurance Co. v. Smith, 2010 Ark. 468, 371 S.W.3d 685, this court has allowed a circuit court to consider anything in the record to determine whether to certify a class, including deposition testimony, documents and “even emails.” We hold that in determining the nature of the cause of action, the circuit court had sufficient means before it to make a sufficient inquiry into the required factors to justify its decision on certification.
SEECO, however, does not merely argue that the proof submitted in support of the certification is incompetent. It argues further that the proof offered was also inadequate. SEECO challenges each of the elements that Rule 23 requires for certification of a class: ascertainability, numer-osity, typicality, adequacy, commonality and predominance and superiority. We address each in turn.
a. No Evidence of Ascertainability.
Citing Ferguson v. Kroger Co., 343 Ark. 627, 631, 37 S.W.3d 590, 593 (2001), SEECO asserts that ascertainability requires that “the class description must be sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member of the proposed class” and that “the identity of the class members must be ascertainable by reference to objective criteria.” It argues that while the affidavit relied on by Stewmon “identifies whether a lessor has a mailing address inside or outside Arkansas, it says nothing about whether a lessor actually resides at that address, or at a place inside or outside of Arkansas.”
SEECO seems to confuse the issue of whether a circuit court can determine by objective criteria whether a person is or is not a member of the class with whether the proposed class | ^description is under-inclusive or overinclusive. The class description requires only that of its members that they be residents of Arkansas and that they have signed a gas lease with SEECO prior to September 27, 2013. These two facts are easily proved by proof of residence and a copy of the gas lease. Both constitute objective criteria.
b. No Evidence of Numerosity.
SEECO argues that Rule 23 requires “that the class is so numerous that joinder of all members is impracticable.” BPS Inc. v. Richardson, 341 Ark. 834, 842, 20 S.W.3d 403, 406 (2000) (quotation and citation omitted). However, it asserts that Stewmon introduced only one lease into evidence, her own, and then erroneously relied on the Guidry affidavit, which states that “[t]here are 16,760 oil and gas leases with' SEECO in Arkansas” and that 5,662 of those leases have one or more lessors with current addresses outside of Arkansas, so they are not in the certified class. SEECO contends that it was improper for her to infer from the affidavit that the class met the numerosity requirement, because she overlooks the fact that the affidavit does not address whether the leases contain the same deductions for gathering, compression, treatment and ■ marketing costs, which is left to speculation. SEECO argues that the trial court erroneously found that “[a]ll members have leases which allow for the deduction of gathering, compression, treatment and marketing costs which are the subject of the Class Action Complaint.” This argument fails to persuade.
We have previously indicated, the Gui-dry affidavit was properly before the circuit court, and the circuit court did not err in relying on it to certify the class. Additionally, the circuit court had before it the Dedicated Field Services Agreement entered into between SEECO and | iaDeSoto Gathering Company that sets the rates for gathering charges on all gas that SEECO extracted in the Fayetteville Shale. In BPS Inc. v. Richardson, 341 Ark. 834, 842, 20 S.W.3d 403, 406 (2000), this court stated,
[w]e held that the exact size of the proposed class and the identity of the class members need not be established for the court to certify a class, and the numer-osity requirement may be supported by common sense. We have not adopted a bright-line rule to determine how many class members are required to satisfy the numerosity requirement.
It is therefore not improper for the circuit court to infer that, out of approximately 10,000 gas leases held by Arkansas residents and a uniform policy of upcharging the gas-lease lessor, a potential class of at least several thousand members would emerge.
c. No Evidence of Typicality.
SEECO asserts that Rule 23(a) requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” However, it argues that it presented unrebutted evidence that Ms. Stewmon is “subject to unique defenses that threaten to become the focus of the litigation.”
Because Stewmon has died and been substituted as class representative, and because SEECO makes an equivalent argument with regard to DeVazier in its supplemental point B, we decline to further address this argument because it is moot.
d. No Evidence of Adequacy.
Because this argument was directed toward Stewmon, and she is no longer the class representative, argument under this rubric is moot. However, we are mindful that this point is essentially revived with regard to DeVazier in supplemental point C, so we will defer our | ^discussion.
e. No Evidence of Commonality and Predominance.
SEECO next argues that Ms. Stewmon failed to present any evidence of commonality and predominance. Instead, she erroneously presumed that she could rely on another lawsuit decided almost 20 years ago, SEECO v. Hales, 330 Ark. 402, 954 S.W.2d 234 (1997). This reliance was misplaced, SEECO argues, because commonality and predominance are “case specific.” It asserts that Stewmon never attempted to offer any evidence on commonality and predominance, and the only SEECO lease she offered was her own. SEECO contends that commonality requires questions on which the case turns and are common to each class member.
The commonality element under Rule 23(a)(2) of the Arkansas Rules of Civil Procedure requires a determination by the trial court that “there are questions of law or fact common to the class.” BPS, Inc., 341 Ark. at 841, 20 S.W.3d at 405. Commonality requires that the defendant has engaged in some course of conduct that affects a group of persons and gives rise to a cause of action in which one or more of the elements of that cause of action will be common to all of the persons affected. Id. Here the commonality is established by the alleged inside dealing among the Southwestern Energy subsidiaries. Contrary to SEECO’s representations, the record is sufficient for the circuit court to find that the complained of activity was experienced by the class members. As with the other elements, proof of commonality could be gleaned from multiple sources, including the Dedicated Field Services Agreement, not just Stewmon’s absent oral testimony.
SEECO also challenges Stew-mon’s proof of predominance. As with the commonality 11fiargument, it asserts that she relied entirely, and erroneously, on Hales, supra, a 20-year-old lawsuit about other issues. It notes that she called no witnesses and that argument of counsel was not evidence. This argument is not persuasive.
In Kersten v. State Farm Mutual Automobile Insurance Co., 2013 Ark. 124, 426 S.W.3d 455, this court stated that the predominance requirement is whether a common wrong has been alleged against the defendant. Stewmon’s complaint certainly describes a common wrong suffered by all the lessors who signed the standard gas lease.
f.Multiple Class Actions Destroy Superiority.
Finally, under this section, SEE-CO argues that Rule 23(b) requires “that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” It asserts that superiority exists when representative litigation promotes judicial efficiency and is fair to both sides and that the avoidance of multiple suits lies at the heart of any class-action decision. However, it contends that the in-fighting between the Snow and Stewmon lawsuits, which resulted in the invocation of judicial process to enjoin each other’s case, put the lie to any claim of superiority. Further, SEECO asserts that Ms. Stewmon did not offer any evidence to support superiority, and the record overwhelmingly defeats superiority because (1) SEECO is subject to multiple cases involving the same class and claims, (2) SEECO is subject to the risk of inconsistent rulings and judgments in two state courts and a federal court, (3) judicial efficiency is destroyed by multiple proceedings, and (4) there is nothing fair to SEECO (or absent class members) in either the warring state-court cases or the split of SEECO’s lessors between federal and state forums. It argues that this destroys superiority because “there exists [ iñthe possibility of a multiplicity of suits across the state with the potential that circuit courts may reach inconsistent results. We disagree.
In spite of the fact that there are three class actions, they represent a substantial amount of judicial economy when there are over 16,000 gas leases potentially involved. We note further that, although it is couched in terms of challenging an element required for class certification, it is really attempting to have this court address, yet again, the propriety of multiple class actions filed against SEECO. As we stated in SEECO’s first point, we will not entertain other issues in an interlocutory appeal pursuant to Rule 2(a)(9), under the guise of a challenge to class certification. Lenders Title Co. v. Chandler, supra.
For its fourth point, SEECO argues that the redundant class certification violates its federal and state constitutional rights to due process. It asserts that the “astounding deviations from fair, orderly, and traditional rules of practice” in this case violate SEECO’s state and federal constitutional rights to due process of law. Specifically, it contends that the mere pen-dency of this action is forbidden by the previously filed Snow lawsuit and defeats any notion of superiority, finality, and fairness to SEECO. Further, Judge Simes should have shut it down immediately. In addition, it argues that the circumstances of this ease deprive SEECO of any meaningful opportunity to be heard on the reasonableness of costs for gathering, treatment and marketing based on actual costs of service to each well and on whether the SEECO lessor is barred by the notiee-of-breach clause. We decline to discuss the merits of this point for several reasons.
First, this argument is outside the scope of what is permitted for this interlocutory | appeal. Lenders Title Co. v. Chandler, supra. As with SEECO’s first point, the argument exceeds the bounds prescribed by Rule 2(a)(9) of the Arkansas Rules of Appellate Procedure-Civil. Second, it is not the function of this court to police everyday aspects of trial practice via interlocutory appeal; Rule 23(d) gives the circuit court broad authority to make appropriate orders affecting fairness and the “fair conduct of the action.” Finally, in oral argument, SEECO confirmed our observation that it did not secure a ruling in any circuit court regarding the activity it now complains of on appeal. We will not address arguments that are not raised and ruled upon below. Beverly Enters.-Ark., Inc. v. Thomas, 370 Ark. 310, 259 S.W.3d 445 (2007).
Next we consider SEECO’s supplemental points. It first argues that DeVazier was not properly substituted as lead plaintiff. It asserts that Rule 25 of the Arkansas Rules of Civil Procedure was not complied with, and neither was Rule 24, if she was entering the lawsuit as an intervenor. This argument has no merit.
First, we do not address SEE-CO’S Rule 24 argument as it is not cognizable in this interlocutory appeal. Regarding SEECO’s Rule 25 argument, as noted previously, after Stewmon’s untimely demise, appellees filed a motion to substitute a class representative pursuant to Rule 25. Upon consideration of the motion, we entered the following order:
APPELLEE’S EMERGENCY MOTION. TO TEMPORARILY REMAND FOR SUBSTITUTION OF A DECEASED PARTY IS GRANTED FOR THE PURPOSE OF SUBSTITUTING A NEW QUALIFIED CLASS REPRESENTATIVE.
SEECO’s contention that Rule 25 of the Arkansas Rules of Civil Procedure were not 11sfollowed is of no moment. This was a situation where no procedure was specified under our rules. Accordingly, our order purposely did not limit the circuit court to make a substitution in accordance with Rule 25. We, and the circuit court pursuant to our mandate, acted in a manner authorized by Rule 81(c) of the Arkansas Rules of Civil Procedure, which provides, “When no procedure is specifically prescribed by these rules, the court shall proceed in any lawful manner not inconsistent with the Constitution of this State, these rules or any applicable statute.” We hold that there is no error here.
SEECO next argues that Mrs. DeVazier is not a proper class representative and that class counsel is not adequate. It first contends that the appellees failed to present competent proof because it submitted no live testimony. As we previously opined in this opinion, affidavits may supply sufficient proof of required elements in class certification when viewed in conjunction to pleadings and other materials before the circuit court. It is the totality of all the evidence before the circuit court that forms the basis of the circuit court’s order. Thus we cannot say that the circuit court abused its discretion.
SEECO further argues that De-Vazier is not an adequate class representative because she is a member of other classes, Smith and Snow and has her own lawsuit pending. We, however, do not believe that this is a conflict that might disqualify her. Currently, she is a member of the class that has been certified by the circuit court. Moreover, DeVazier has promised via her affidavit that she would dismiss her other lawsuit and that she was “willing to pursue this suit |19on behalf of all class members, and will in every respect act to protect the class, and act in the best interests of the class as a whole.” This promise had to be credited by the circuit court in finding that she was an adequate class representative. We cannot conclude that in so doing, the circuit court clearly erred.
Arguing further, SEECO asserts that DeVazier would be unable to serve as class representative because she will be unable to dismiss her pending lawsuit because it would constitute a second dismissal under Rule 41(a) of the Arkansas Rules of Civil Procedure. However, in this interlocutory appeal, whatever problem that Rule 41(a) may or may not present to DeVazier is outside the scope of what we may consider on appeal. The circuit court found that she was a proper class representative under the Rule 23 criteria, and that is what we must consider. We are mindful that broader issues exist within this lawsuit and that additional issues may develop in the future. However, in this interlocutory appeal we are limited to the issues directly related to class certification. We may not address the broader issues that SEECO keeps seeking to argue.
SEECO also contends that DeVazier has defenses unique to her situation that will make her atypical of other members of the class. We find these arguments unpersuasive.
A class representative satisfies the Rule 23 requirement of typicality if the claims and defenses are representative of the class. The Money Place, LLC v. Barnes, 349 Ark. 518, 78 S.W.3d 730 (2002). Here DeVazier’s claim, like that of the putative class, emerged from |2nSEECO’s previously mentioned upcharg-ing practice. The practice arose from a provision in SEECO’s standard lease that was entered into by every member of the putative class. It is true that the notice provision, which also appears in the standard lease, might arguably be asserted by SEECO. However, this defense does not overshadow the wrong complained of in the lawsuit. It is only when the unique defenses threaten to become the focus of the litigation that class certification is hot appropriate. BPS Inc. v. Richardson, supra. Assuming, without deciding, that the notice provision is applicable to this litigation, it would not make DeVazier atypical as it is a defense common to every class member who signed the same standard lease that DeVazier signed. Further, in Barnes, supra, we held that even an arbitration agreement in the class representative’s contract did not make her claims and defenses atypical from the other class members’ usury complaints. We hold that the circuit court did not clearly err in finding that DeVazier satisfied the typicality requirement.
SEECO next asserts that because De-Vazier has a “multiplicity” of “recycled” lawsuits against SEECO, plus unique claims and defenses, she is not “typical” of other members of the class and therefore cannot be class representative. Of particular concern is the notice provision in her lease that gave SEECO the opportunity to cure. This argument is unpersuasive.
121 In DIRECTV, Inc. v. Murray, 2012 Ark. 366, 373, 423 S.W.3d 555, 564, this court stated that under Arkansas law, “The typicality requirement is satisfied if the class representative’s claim arises from the same wrong allegedly committed against the members of the class.” Accordingly, a representative’s “claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if [the representative’s] claims are based on the same legal theory.” Id. Our focus in reviewing typicality is, therefore, the extent to which the lead plaintiffs claim is similar to the other potential class members, not how it is different. DeVazier is an Arkansas resident and her lease contains the provision that SEECO allegedly violated. We require no more in this case.
Finally, SEECO argues under this point that the remand raised additional issues concerning the adequacy of class counsel. It notes that the appellees considered Stewmon’s personal representative and the spouse of class counsel before selecting DeVazier. SEECO faults the appellees for not selecting the “obvious” successor, Stewmon’s surviving spouse. We reject this argument.
Class counsel- is presumed to be adequate. Diamante, LLC v. Dye, 2013 Ark. 501, 430 S.W.3d 710. Given the unprecedented procedural issues raised by this case, we hold that SEECO has failed to overcome the presumption that class counsel is adequate.
SEECO next argues that the circuit court did not have jurisdiction because De-Vazier’s claims are being litigated in the June Merrell lawsuit and the Snow class action. It contends that | ⅞⅞⅛⅛ involvement is a matter of subject-matter jurisdiction which may be raised at any time. Citing Tortorich v. Tortorich, 324 Ark. 128, 923 S.W.2d 858 (1996), and Foster v. Hill, 372 Ark. 263, 275 S.W.3d 151 (2008), it again claims that pursuant to the “concurrent-jurisdiction doctrine” we are obligated to act. Furthermore, SEECO contends that claim preclusion bars splitting claims into distinct actions. This argument also fails for the same reasons we cited in rejecting SEECO’s first point in its original brief. However, some additional discussion is warranted.
SEECO’s reliance on Tortorich and Foster is misplaced. In the supplemental opinion on denial of rehearing in Tortorich, this court made it very clear that its decision was based on the fact that Saline County was the improper venue for a suit for absolute divorce when a suit for separate maintenance and divorce from bed and board was pending in Pulaski County. The case turned on statutory interpretation, not subject-matter jurisdiction being argued for the first time on appeal. Further, the Tortorich court made it clear that Rule 12(b)(8) provided a defense, not a rule of subject-matter jurisdiction.
SEECO’s reliance on Foster is likewise misplaced. There, this court exercised its superintending authority, but only in regard to the administrative decision of whether a duly appointed special prosecutor acting in one division of a circuit court would conduct a murder investigation rather than the division that regularly handled criminal matters. See Smith v. Simes, 2013 Ark. 477, 430 S.W.3d 690 (granting a writ of certiorari where circuit judge exceeded his authority to disqualify an elected prosecutor and appoint a special prosecutor). Here, SEECO | Mhas not made a proper application for an extraordinary writ. SEECO merely mentioned that it desired an extraordinary writ in its prayer for relief. This application does not comport with Arkansas Supreme Court Rule 6-1.
Finally, SEECO argues that when Stewmon died, the class-certification order should have been dismissed. We hold that this issue is outside the scope of the interlocutory appeal that we have before us. In this appeal, our role is to determine whether the circuit court abused its discretion in certifying the class that we have before us. We have already determined that the circuit court did not err in finding that DeVa-zier was a suitable class representative. Nothing more is required in this appeal. Furthermore, when Stewmon died, we remanded this case to the circuit court to allow for a proper substitution. Nothing argued by SEECO suggests to us that this court lacked the authority to make such an order.
Affirmed.
Special Justices Bob Estes, Scott P. Richardson, and - M. Scott Willhite, join. Brill, C.J., and Wood, J., concur.
Danielson, Baker, and Goodson, JJ., not participating.
. SEECO, Inc. v. Snow, 2016 Ark. 444 (CV-15-197), 506 S.W.3d 206, 2016 WL 7156511. Like the case at bar, Snow is a class-action case certified in Conway County that addresses essentially the same issues raised by the class in the instant case.
. The Fayetteville Shale is a geographic region in Arkansas that runs in a band just north of Little Rock from Sebastian and Washington Counties to Phillips County. According to the US Energy Information Administration, the Fayetteville Shale is estimated to cover 5,853 square miles, 60 to 575 feet thick, at a depth of 1450—6700 feet. It holds 13,240 billion cubic feet of improved, technically recoverable gas. The average well was estimated to produce 1.3 billion cubic feet of gas.
.At the certification hearing, the class attorney asserted that through discovery he learned that processing the gas cost SEECO twenty-seven cents per thousand cubic feet, and SEECO deducted from royalty payments almost sixty cents per thousand cubic feet.
. All non-excluded persons or entities who are citizens of the State of Arkansas as of the commencement date of this civil action (that is, the date of filing of the original Complaint) and who are, or were, royalty owners in wells producing natural gas from the Fayetteville Shale where SEECO, Inc. is or was the operator and/or working interest owner/lessee under oil and gas leases that provide for the payment of royalty as follows:
(a) "Lessee shall pay Lessor [stated fraction or %] of the proceeds derived from the sale of all gas (including substances contained in such gas) produced, saved and sold by Lessee. Proceeds are defined as the actual amount received by the Lessee for the sale of said gas. In calculating the proceeds derived from the sale of gas produced, saved and sold by Lessee, Lessee shall be entitled to deduct all reasonable gathering, transportation, treatment, compression, processing and marketing costs that are incurred by Lessee in connection with the sale of such gas” and
(b) "Lessee shall have the right to use, free of cost, gas, oil and water found on said land for its operations, except water from the wells of the "lessor,”
from and after January 1, 2006, and where DeSoto Gathering Company, LLC and Southwestern Energy Services, Inc. are gathering and purchasing the natural gas, respectively. The Class Claims relate only to the proper payment of royalty arising from SEECO, Inc’s sales of natural gas to these affiliated entities and produced from the wells completed in the Fayetteville Shale and located in the State of Arkansas. The Class does not include overriding royalty owners or other owners who derive their interest through the oil and gas lessee. The Class is limited to natural gas production from the Fayetteville Shale.
The Class Claims shall not include royalty owners' claims in those wells and during those periods where SEECO, Inc. did not, through itself or DeSoto Gathering Company, LLC and Southwestern Energy Services, Inc., gather, market and sell natural gas.
The persons or entities excluded from the Class are (a) all governmental entities, including federal, state and local governments and their respective agencies, departments, or instrumentalities, (b) the States and territories of the United States or any foreign citizens, states, territories or entities; (c) the United States of America, (d) publicly traded entities and their respective parents, affiliates, and related entities, including SEECO, Inc., DeSoto Gathering Company, LLC and Southwestern Energy Services, Inc.; (e) owners of any interests and/or leases located on or within any unit operations of an entire pool created under A.C.A. § 15-72-308 et seq. and any federally created units, including the Ozark Highlands Unit, (f) owners of any non operating working interest for which SEECO, Inc., or its agents or representatives, as operator, disburses royalty, and (g) any persons or entities that Plaintiff’s counsel is, or may be, prohibited from representing under the Arkansas Rules of Professional Conduct, including SEECO’s counsel, their firms, and member's of their firms (the "Class” or "Class Members”).
. DeVazier is suing SEECO along with another individual, June Merrell. Hereinafter, this will be referred to as the June Merrell lawsuit.
. We note that, in oral argument, SEECO stated that this lawsuit was dismissed prior to being served.
. The lease includes the following notice-of-breach clause:
11. In the event lessor considers that lessee is in breach of any of its obligations hereunder, lessor shall notify lessee in writing of the facts relied upon as constituting a breach hereof, and lessee, if in breach hereof, shall have sixty days after receipt of such notice in which to commence the compliance with the obligations imposed by virtue of this lease. Until such time as . lessee has been given the above described written notice and opportunity to cure the asserted breach, lessee shall not be considered in default under the terms of this lease. | [
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BRANDON J. HARRISON, Judge
hA jury convicted Terrance Washington of grievously injuring then three-month-old T.W. by violently shaking him. Washington was sentenced to 10 years’ imprisonment. He appealed the sentencing order and now argues that the circuit court erred when it admitted an unauthenticated CT scan of T.W.’s brain and refused him the opportunity to obtain testimony from his own mother, and another witness, that T.W.’s mother may have injured the baby. Was' the Computed Tomography ' (CT) Sean of T.W.’s Injured Brain Properly Authenticated?
Washington does not argue that the State failed to prove beyond a reasonable doubt that he committed a first-degree battery against baby T.W., so it is enough to report that T.W. was taken to LeBonheur Children’s Hospital in Memphis, Tennessee, on 23 November 2018, after his mother, Dominique Roberts, called- 911. A few days later, T.W. was diagnosed as being a victim of a “severe shaking episode” by child-abuse specialist Dr, IgKaren Laken. Given the severity of his head injuries, hospice care was arranged. But T.W. survived, though he is now nourished through a feeding tube, and suffers from seizures and cerebral palsy.
Dr. Laken was not only a consulting doctor on T.W.’s case at LeBonheur; she also appeared as an expert witness for the State during Washington’s criminal trial. On direct examination, the doctor testified that, before the trial, she had reviewed medical records from T.W.’s hospitalization and follow-up outpatient evaluations related to his physical and occupational therapies. The doctor made clear that she had relied on medical records of other doctors and nurses when she formed her opinion, all of which is information an expert in her field might commonly rely on. While on the stand, Dr. Laken said that T.W. experienced an acute subdural hemorrhage on the right side of his brain, explained the physiology behind the condition, its effect on his health, and that it was a traumatic injury given the child’s clinical presentation. The doctor also told the jury about a special type of fracture that T.W. had suffered in his right femur—an atypical “chip” fracture consistent with “torsional action” a limb may undergo when a child is violently handled. Apart from Dr. Laken’s testimony about the fracture, an X-ray of T.W.’s injured leg was received as evidence, without objection, during the State’s case-in-chief. Washington did, however, object to the admission of State’s Exhibit 11, a paper copy of a CT scan of a human brain.
Dr. Laken identified Exhibit 11 (a black- and-white paper copy) as being a CT scan of T.W.’s injured brain and agreed that it would help the jury understand the acute trauma he had suffered. Washington objected to the exhibit based on chain of custody, lack of authentication, and hearsay. The circuit court then asked the State to further lay a | .¡foundation. When questioned by the prosecutor, Dr. Laken said that she “believed” the image was taken on November 24, that it was-part of T.W.’s medical record, and that she had examined him on November 26. She also said that the image was normally used and relied on by doctors handling a case like T.W.’s. This colloquy occurred when Washington’s attorney asked about the image:
Defense Counsel: How do you , know this is the medical records of [T.W.]?
Dr. Laken: These are the ones I just looked at before I came.-
Defense Counsel: That’s the . only way you know that?
Dr. Laken: These are also the ones that I submitted to [the prosecutor].
Defense Counsel: And where did you obtain them from?
Dr. Laken: From LeBonheur, from the records.
Defense Counsel: The custodian of the records?
Dr, LaKEN: I’m sorry?
Defense Counsel: From the custodian of records at LeBonheur?
Dr. Laken: No. We use electronic medical records.
Defense Counsel: Then you didn’t, you didn’t have anything to do with the taking of these?
Dr. Laken: No. The radiologist doesn’t either. The radiology tech takes the x-rays.
Defense Counsel: And they take them and then they do what with them?
Dr. LaKEN: Put them in to the electronic medical records for the radiologist and all the physicians to have access to.
Defense Counsel: And then you obtained them off that?
Dr. Laken: That’s it, yes. That’s the only way we can do it.
LDefense Counsel: I object to them being introduced.
Court: All right. I’m going to overrule the objection. I find that the objection , goes more to the weight of the evidence rather than its admissibility. It will be admitted, State’s Exhibit 11.
Washington argues that there was “no testimony from any person who could establish that the CT scan, which was taken from the electronic medical records was, in fact, the CT scan of [T.W.] There was no testimony from the LeBonheur custodian of records by affidavit or otherwise.”. He cites a chain-of-custody case, Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997), Arkansas Rule of Evidence 901, and portions of the Hospital Records Act (Ark. Code Ann. §§ 16-46-305, 306) to support his argument. The State responds that CT scans are expressly excluded from the definition of “records,” so the process for authenticating medical records under the statutes does not apply. It also argues that the circuit court properly admitted the CT scan under Arkansas Rule of Evidence 703.
On the legal authority, the State is partially correct. The applicable rule for the CT scan issue is Arkansas Rule of Evidence 901, not 703. The former rule is the one that addresses the need to authenticate a document before it may be admitted as evidence. And it states in part that the “requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Ark. R. Evid. 901(a) (2016); see also Davis v. State, 350 Ark. 22, 39-40, 86 S.W.3d 872, 883 (2002) (discussing authentication).
Rule 901 further states, as previously summarized by our supreme court, “that the testimony of a witness with knowledge that a matter is what it is claimed to be can authenticate evidence, and also that appearance, contents, substance, internal patterns, or |Bother distinctive characteristics, taken in conjunction with circumstances can be used to authenticate evidence.” Gulley v. State, 2012 Ark. 368, at 13, 423 S.W.3d 569, 578; see also Ark. R. Evid. 901(b)(1) & (4). One subsection of the rule allows evidence to be authenticated by “[a]ny method of authentication or identification provided by [the Supreme Court of this State or by] a statute or as provided in the Constitution of this State.” Ark. R. Evid. 901(b)(10). That subsection leads us to some statutes that many lawyers and judges will know as Arkansas’s Hospital Records Act, which provides ways to authenticate medical records using records custodians. Here the State is correct on the law: the statute does not, for some unexplained reason, cover diagnostic images like CT scans. Under Ark. Code Ann. § 16-46-301(2)(B), the term “‘records’ shall not mean and include X rays, electrocardiograms, and similar graphic matter.” So we remain with Rule 901 for the purpose of addressing the CT scan’s authentication.
No party points this out, but it warrants mentioning that Rule 901 should be read with Rule 1001(2), which lumps X-rays with photographs. Because there is no good reason to treat an X-ray image differently from a computed tomography image for authentication purposes, the extension makes sense.
As a matter of historical interest, many years ago this court recognized that hard- and-fast rules regarding the admissibility of an X-ray would be unwise because
[i]t is neither possible nor wise to establish specific foundational requirements for the admissibility of photographic evidence under the ‘silent witness’ theory, since the context in which the photographic evidence was obtained and its intended use at trial will be different in virtually every case. It is enough to say, that adequate foundational facts must be presented to the trial court, so that the trial court can determine that the trier of fact can reasonably infer that the subject matter is what its proponent claims.
Fisher v. State, 7 Ark. App. 1, 8, 643 S.W.2d 571, 575 (1982). In keeping with this court’s pragmatic approach, today’s opinion does not implement a static rule on the admissibility of a diagnostic medical image like a CT scan. Still, a handful of questions seem likely to arise when medical images are at issue, especially with the widespread implementation of electronically stored and accessed medical information. See, e.g., Use of CAT Scans in Litigation 8 Am. Jur. Proof of Facts 3d 145 § 11 Authentication (discussing authenticating modern medical-imaging scans, including computed tomography).
There is some concern on whether the image in this case was properly authenticated before the circuit court received it as evidence against Washington for a few reasons:
• The image (a poorly reproduced paper copy at that) is not readily identifiable as being one of T.W.’s brain because there is no name, birthdate, or some other specific personal identifier on the reproduced image that links it to T.W.
• Dr. Laken said the image was of T.W.’s brain, but she did not order or conduct the scan; and no other medical-care provider corroborated who ordered it, who oversaw the scanning process, and most importantly, as we just said, that the image was actually T.W.’s brain.
• No witness described with particularity the process Dr. Laken used to access and retrieve T.W.’s electronic medical file, much less how the image was entered into the database in the first place; in other words, no one explained at all how CT images are handled to ensure the correct image is entered under the correct patient’s medical file.
We need not decide if the CT scan was properly authenticated because even if it was not, its admission would be a harmless error given the whole of Dr. Laken’s testimony and the multiple sources of medical information she relied on when giving her opinion—including the X-ray of T.W.’s leg that the doctor used to show that he had a fracture consistent with having experienced severe physical abuse. Rodriguez v. State, 372 Ark. 335, 339, 276 S.W.3d 208, 212 (2008) (harmless-error doctrine). The circuit court is therefore affirmed on this point.
Should Washington Have Been Allowed to Use “Reverse i0í(b)” Character Evidence?
During his defense at trial, Washington tried to introduce some “bad acts” of T.W.’s mother, Dominique Roberts.. The goal was to inform the jury, through Washington’s mother (Katina Hall), how Dominique had treated Washington and her children in the past. Washington’s lawyer told the court he anticipated that Hall would testify about two events. One involved an incident when Dominique allegedly jumped on Washington at their house; the second incident involved Dominique placing T.W.’s sibling at the door step, ringing the doorbell, and leaving the child on the front porch.
Washington’s lawyer also told the circuit court that he had a witness, whose name is not mentioned, who could testify that “he saw her shaking [T.W.].” No additional details were provided during the proffer of the unnamed witness.
When asked about the purpose and relevancy of the proffered testimony, Washington’s lawyer answered that it was allowed under Rule 404(b) and relevant to Dominique’s knowledge, temperament, and that “she was with [T.W.] right before she left and it shows that she’s got a tendency to be violent or have anger problems.” The circuit court allowed Hall (Washington’s mother) to testify about Washington’s education but did not allow her to testify about Dominique, because Washington had not stated that Dominique had an “angry outburst” or “a rage” directed toward T.W. Nor did the court permit Washington’s unnamed witness to testify that Dominique had previously shaken T.W. The circuit court also stated,
|s[T]he testimony that’s before the Court now doesn’t suggest anything about anything she might have done or anything of the baby crying or anything that would suggest ... this is a little more dealing with evidence of possible guilt of other people, and there always has to be something more than he had a speculation or conjecture.
Here is the rest of the colloquy:
Defense Counsel: [M]y other witness that’s supposed to be here, that’s what he’s going to testify to is he saw her shaking [T.W.] ... It falls under, it doesn’t fall under 404(b)?
COURT: If he [Washington] had said he had heard the baby crying and all of a sudden the baby stopped and he wasn’t in the room, you know, just before she left, something like that, that would be one thing ... But the testimony has been that she fed him and put him down.
Defense Counsel: And he [Washington] couldn’t wake him.
Court: Yeah, after she left couldn’t wake him, but there was nothing about the baby crying or about her being angry or doing anything, not hearing anything. And I mean, nothing to suggest that she might have done it.
Defense Counsel: Well, except for the fact that she was the last one to have him before he could, he wouldn’t wake.
Court: I’m not going to allow it.
Under Rule 404(b), evidence of other crimes, Wrongs, or acts by a party other than the defendant may not be admitted to show that the party acted in conformity with a known character trait, but the evidence may be admitted for other purposes—such as to show motive, opportunity, intent, identity, a plan, knowledge, or absence of a mistake or accident. Ark. R. Evid. 404(b) (2016); Price v. State, 365 Ark, 25, 223 S.W.3d 817 (2006).
|9In his brief, Washington characterizes his argument as being a “reverse 404(b)” argument, which means he essentially wanted to use prior alleged bad conduct by Dominique (T.W.’s mother) to establish that she had a propensity for irresponsible and, more importantly, violent behavior against T.W. and was therefore inclined to physically harm T.W. the day he received emergency medical treatment. For “reverse 404(b)” evidence to be admissible, the alleged prior wrongs by someone other than the targeted defendant must be so closely connected in time and method that the evidence can cast doubt upon whether the defendant committed the crime. See Tomboli v. State, 100 Ark. App. 355, 361-62, 268 S.W.3d 918, 922 (2007).
The testimony Washington sought to have admitted is character evidence that Rule 404(b) and the case law prohibits. Given the record before us and the standard of review we must apply to this issue, Conte v. State, 2015 Ark. 220, 463 S.W.3d 686 (abuse of discretion), we hold that the circuit court did not err when it excluded the proffered testimony. The circuit court’s sentencing order is therefore affirmed.
Affirmed.
Hoofman, J., Agrees.
Gruber, J., Concurs. | [
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ROBERT J. GLADWIN, Chief Judge
pThe Ashley County Circuit Court considered competing motions for summary judgment from Southern Farm Bureau Casualty Insurance Company (Farm Bureau) and Shelter Mutual Insurance Company (Shelter) and ordered that they were equally liable for uninsured motorist (UM) coverage. On appeal, Farm Bureau argues that the trial court erred in holding that there was coverage under its policy, and on cross-appeal, Shelter contends that, while the trial court correctly determined that there was coverage under the Farm Bureau policy, it erred in finding the coverage should be divided equally instead of by pro rata distribution as set forth in Shelter’s policy. We reverse on direct appeal, thereby holding that the issue on cross-appeal is moot.
|¾1. Facts
Tommy Roberson was driving a vehicle owned by a third party when it was rear-ended by an uninsured vehicle, forcing his car into the back of the vehicle in front of him. Roberson was insured by Farm Bureau, and the car he was driving was insured by Shelter. Having been injured in the accident, Roberson filed a lawsuit seeking damages from both insurance companies under their UM provisions. Shelter settled the matter with Roberson, obtained a release for itself and Farm Bureau in exchange for $6000, and left it for the trial court to decide the respective liabilities of the two insurers.
Shelter filed a motion for summary judgment claiming that both it and Farm Bureau provided UM coverage for the accident. Shelter argued that its policy provided that when a claim is covered by UM insurance by another company, then Shelter’s coverage would apply only as excess over all other such insurance. Further, Shelter’s policy coverage would be applied in a pro rata manner if it were impossible to reconcile the provisions of other applicable policies. Shelter’s policy provides uninsured-motor-vehicle-liability coverage in Part IV-Coverage E as follows:
Subject to all conditions, exclusions, and limitations of our liability, stated in this policy, we will pay damages that an Insured, or an Insured’s legal representative, is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of an occurrence that arose out of the ownership or use of that uninsured motor vehicle.
Insured means an individual included in one of the following categories:
CATEGORY A:
(a) You;
(b) Relatives; and
(c) Individuals listed in the Declarations as an “additional listed insured” who do not own a motor vehicle, and whose spouse does not own a motor vehicle.
CATEGORY B:
la Any individual who is not included in Category A, while he or she is using the described auto with permission or general consent.
If a claim covered by Coverage E of this policy is also covered by uninsured motorist insurance issued by a company other than ... Shelter ... the coverage under this policy will apply only as excess over all such other insurance. Coverage E will then apply only in the amount that its limit of liability exceeds the combined limits of all such other uninsured motorist insurance.
If it is impossible to reconcile the provisions of all applicable policies to determine the order in which their benefits apply, the limits of Coverage E will be prorated with all such other policies, based on the applicable limits of each, up to the combined limits of all such policies.
Shelter argued that the issue was whether its UM policy should be “applied to the accident as excess or at least in a pro-rata manner.”
Farm Bureau’s UM policy states as follows:
If you sustain bodily injury while occupying an auto not owned by you or any covered person, this coverage will be:
a. excess over any uninsured motorist coverage which applies to the auto as primary coverage; but
b. only for the amount by which this coverage exceeds the primary coverage.
Shelter claimed that Farm Bureau’s'argument was that its policy was excess over the Shelter .policy, while Shelter maintained that its liability was pro rata due to the irreconcilable language between the two policies. Shelter argued that the issue turnéd on the interpretation of the two polices. It asked the trial court that, if it could not find that Shelter’s coverage was excess, it enter an order requiring Farm Bureau to reimburse Shelter for its pro rata share of the accident.
Farm Bureau filed its motion for summary judgment claiming that primary coverage follows the vehicle and not the person. Therefore, Farm Bureau asked that Shelter’s claims 14be dismissed and/or for a declaration that Shelter’s UM coverage was primary. In support of its argument that it held no liability for coverage, Farm Bureau relied on Arkansas Code Annotate ed section 23-89-403 (Repl. 2014), the UM statute, and section 23-89-215, which provides that an automobile’s liability-insurance policy is primary when the motor vehicle is driven by an insured or any other person not excluded from coverage under the policy, with the. permission of an insured. Farm Bureau claimed that, because UM coverage is required along with liability insurance on an automobile registered in Arkansas, it is implied in the statute that UM coverage, like liability insurance, follows the automobile.
Farm Bureau relied on Shelter Mutual Insurance Company v. Williams, 69 Ark. App. 35, 9 S.W.3d 545 (2000) (Shelter Mutual), for the proposition that, under a standard automobile policy, primary liability is generally placed on the insurer of the owner of the automobile involved, and the policy providing the nonownership coverage is secondary. Farm Bureau argued that the issue of primacy is determined by who insured the vehicle actually involved in the accident. Thus, Farm Bureau urged the trial court to find that Shelter held primary coverage, thereby negating Farm Bureau’s liability under the terms of its policy, as the total amount paid was less than Shelter’s policy limits.
A summary-judgment hearing was held on January 11, 2016. The trial court found that the policies provided by Shelter and Farm Bureau both provided UM coverage for the benefit of Roberson and should equally share in the settlement that was paid to him by Shelter. Farm Bureau was ordered to reimburse Shelter in the amount of $3000 for its one-half share of the settlement. The order was filed on February 1, 2016, and this appeal and cross-appeal timely followed.
| bII. Statement of Law
A circuit court grants summary judgment when a party is entitled to judg ment as a matter of law. Humphries v. Nationwide Mut. Ins. Co., 97 Ark. App, 125, 127, 245 S.W.3d 156, 158 (2006) (citing Lewis v. Mid-Century Ins. Co., 362 Ark. 591, 210 S.W.3d 113 (2005)). Whether the language of the policy is ambiguous -is a question of law to be resolved by the court. Harasyn v. St. Paul Guardian Ins. Co., 349 Ark. 9, 75 S.W.3d 696 (2002). An issue involving a question of law is reviewed de novo and is given no deference on appeal. Travelers Cas. & Surety Co. of America v. Cummins Mid-South, LLC, 2015 Ark. App. 229, 460 S.W.3d 308. If the language of an insurance policy is unambiguous, we give effect to the policy’s plain language without resorting to the rules of construction, but if the language is ambiguous, we construe the policy liberally in favor of the insured and strictly against the insurer. Humphries, supra. Policy language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one reasonable interpretation. Id.
This court stated that
[i]n Arkansas, insurance policies are to be interpreted like other contracts. Agricultural Ins. Co. v. Ark. Power & Light Co., 235 Ark. 445, 361 S.W.2d 6 (1962). The language in an insurance policy is to be construed in its plain, ordinary, and popular sense. Tri-State Ins. Co. v. Sing, 41 Ark. App. 142, 850 S.W.2d 6 (1993). Contracts of insurance should receive a practical, reasonable, and fair interpretation consonant with the apparent object and intent of the parties in light of their general object and purpose. First Financial Ins. Co. v. Nat’l Indemnity Co., 49 Ark. App. 115, 898 S.W.2d 63 (1995). If . there is no ambiguity, and only one reasonable interpretation is possible, it is' the duty of the courts to give effect to the plain wording of the policy. See Western World Ins. Co. v. Branch, 332 Ark. 427, 965 S.W.2d 760 (1998).
Foster v. Farm Bureau Mut. Ins. Co., 71 Ark. App. 132, 133, 27 S.W.3d 464, 465 (2000).
IfiThe law regarding construction of am insurance contract is well settled. Once it is determined that coverage exists, it then must be determined whether the exclusionary language within the policy eliminates the coverage. Norris v. State Farm Fire & Cas. Co., 341 Ark. 360, 16 S.W.3d 242 (2000). Exclusionary endorsements must adhere to the general requirements that the insurance terms must be expressed in clear and unambiguous language. Castaneda v. Progressive Classic Ins. Co., 357 Ark. 345, 166 S.W.3d 556 (2004).
III. Competing Insurance Clauses
Arkansas Code Annotated section 23-89-215 provides that the liability-insurance policy covering a motor vehicle is primary when the motor vehicle is driven by an insured or any other person with the permission of an insured. Arkansas Code Annotated section 23-89-403(a)(l) provides that no automobile-liability insurance may be issued in this state unless coverage is provided for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles.
Shelter argues that the trial court correctly determined that Farm Bureau’s policy issued to Roberson provided UM coverage for the accident. Shelter maintains that Arkansas law does not mandate that Shelter has primary coverage, arguing that it cannot be inferred from reading the statutes cited by Farm Bureau that the legislature intended that UM coverage should be treated the same as liability coverage and follow the automobile. Shelter asserts that, because section 23-89-215 does not specifically state that it applies to UM coverage and section 23-89-403 contains no language that sets forth a priority of coverage, then the priority of coverage rests with the terras of the insurance policies at issue, not the statute governing the issuance of UM coverage. Shelter contends that section 23-89-403 |7does not address whether the coverage should follow the car versus following the person; therefore, it argues that this court cannot interpret the statute to address an issue that is clearly not contained therein, and the terms of the policy should dictate.
Shelter further contends that its policy mandates that its coverage is excess under the facts of this case and as such is in direct conflict with the Farm Bureau policy. Shelter claims that if there is more than one UM policy applicable to an incident, and those policies cannot be reconciled, then its policy provides pro rata coverage. Shelter asserts that Farm Bureau’s argument is that its policy is excess over the Shelter policy because Shelter’s policy is statutorily deemed primary. Shelter contends that Farm Bureau’s policy coverage is excess only if the coverage applied to the auto is “primary coverage.” Shelter argues that if Farm Bureau be-liéved that every policy maintained on the automobile was the “primary coverage,” the provision in its policy would have stated “excess over any uninsured motorist coverage which applies to the auto.” Shelter maintains that Farm Bureau’s policy would not have contained the superfluous language “which applies to the auto as primary coverage.”
Shelter contends that insurance policies are to be interpreted like other contracts and are to be construed in their plain, ordinary, and popular sense. Foster, supra. Shelter claims that the first question to be answered is whether its policy is deemed primary. Shelter argues that its policy is primary only if there is no other UM policy in existence. It relies heavily on the approval of its policy language by the Arkansas State Insurance Commission, and it claims that the general rule is that policy language approved-by the Commission has precedential authority and generally provided with weight when there has been no reduction in overall coverage provided to the insured. Shelter Gen. Ins. Co. v. Williams, 315 Ark. 409, 867 S.W.2d 457 (1993).
Shelter contends that Farm Bureau admittedly maintained a policy of insurance containing UM coverage that was issued to Roberson. Shelter argues that Shelter Mutual, supra, which was cited by Farm Bureau for the proposition that primary coverage absolutely rests with the automobile, is distinguishable because the matter there involved an insured’s attempt to stack un-derinsured-motorist coverage. Shelter also contends that Shelter Mutual merely stated that, generally, coverage is placed primarily on the insurer of the automobile, but it did not set forth that an insured cannot consent to policy language that mandates coverage be excess or distributed in a pro rata manner with another insurer for the same accident. Further, Shelter notes that even though-it was involved in both cases, it has changed its policy language since Shelter Mutual, which revolved around Shelter’s antistack-ing language. Here, Shelter contends that there is no antistacking language at issue.
.Shelter contends that its current policy clearly states that if there is other UM coverage applicable to the incident, then its coverage is excess. Shelter also contends that Farm Bureau’s policy maintains that if there is other coverage that is considered “primary” then its' coverage is excess. Shelter argues that, because Farm Bureau did not define the term “primary,” Farm Bureau is relying on the general proposition that the coverage on the automobile is generally primary. However, Shelter argues that the UM statute does not mandate any specific allocation of coverage as the liability statutes require. Further, it argues that Shelter’s policy language, which mandates that its coverage is not applicable when other ^similar insurance applies to the incident, defeats the general proposition that coverage on the automobile is “generally” primary.
Farm Bureau contends that the trial court erred in holding that there was coverage under its policy. We agree with Farm Bureau’s argument that primary automobile-insurance coverage follows the vehicle, not the person. By reading the applicable statutes together—Arkansas Code Annotated section 23-89-215 and section 23-89-403(a)(l)—it can be inferred that the legislature intended that UM coverage, like liability insurance, follows the automobile because it requires that UM coverage be offered on every liability policy. Farm Bureau contends that, because the legislature explicitly deviated from the general rule by providing that no-fault benefits follow the person, see Arkansas Code Annotated section 23-89-204(b), it is clear that the legislature intended that auto insurance, other than no-fault benefits, follows the vehicle rather than the person.
In Shelter Mutual, supra, this court considered the question of whether an insurance policy issued by Shelter prevented stacking of underinsured-motorist coverages. There, the appellee’s son had died in an automobile accident where he was the passenger, and appellee sought underinsured motorist coverage from his policy with Shelter. Shelter Mutual, 69 Ark. App. at 36-37, 9 S.W.3d at 546-47. Shelter denied liability under its policy’s underinsured-motorist provision that contained an “other insurance” clause barring recovery. Id. at 37, 9 S.W.3d at 547. The question turned on whether the term “primary” contained in the underinsured-motorist clause was ambiguous. Id. at 41, 9 S.W.3d at 549. Shelter argued that the term was not ambiguous because it had only one reasonable construction—that, in 11ftthe context of un-derinsured-motorist coverage, the “primary” coverage is that provided for the automobile in which the insured was riding. Id. We agreed and stated as follows:
As a fundamental principle of insurance law, under a standard automobile policy, primary liability is generally placed on the insurer of the owner of the automobile involved and the policy providing the nonownership coverage is secondary. 7A AM.JUR.2D Automobile Insurance § 543 (1997). We recognized this basic rule in State Farm Fire & Cas. Co. v. Amos, [32 Ark. App. 164, 798 S.W.2d 440 (1990)]. Additionally, we note that this “other insurance” clause is contained within the [underinsured-motorist] endorsement to the policy. Hence, it is clear that State Farm’s coverage was primary and [Shelter’s] was secondary. Therefore, the only reasonable construction of this provision of the policy is that it prohibits the stacking of this coverage with that provided by State Farm to the vehicle in which [appellee’s son] was riding.
Id. at 41-42, 9 S.W.3d at 550. We agree with Farm Bureau’s contention that the same logic should apply here.
In its reply brief, Farm Bureau cites First Security Bank of Searcy v. Doe, 297 Ark. 254, 760 S.W.2d 863 (1988), where the Arkansas Supreme Court concluded that Arkansas Code Annotated section 23-89-403, which provides for UM coverage, expressed the intent of the General Assembly to include in UM coverage the persons included in liability coverage. First Security Bank cites with approval Crawford v. Emcasco Insurance Company, 294 Ark. 569, 572, 745 S.W.2d 132, 134 (1988), where the court disagreed with the appellant’s argument that Arkansas’s UM statute provided for personal insurance as opposed to vehicle coverage; instead, the court read § 23-89-403 to provide “automobile liability insurance coverage with respect to the ownership, maintenance, or use of any motor vehicle registered or principally garaged in this state.” Farm Bureau contends that the Arkansas Supreme Court’s interpretation of section 23-89-403 is dis-positive of this case—that coverage on vehicles In involved in an accident is primary unless specifically stated by the legislature. As such, Farm Bureau argues there is no coverage under its policy for this claim.
We agree, and it follows that Shelter insured the vehicle involved in this accident, and, thus, its policy provided the primary UM coverage available to Roberson. The Shelter policy provides that if a UM claim is also “covered” by another policy, its coverage is secondary. Roberson’s elaim is not covered under Farm Bureau’s policy because he was injured in a nonowned auto that had primary coverage. Moreover, the UM claim was settled for less than Shelter’s limits and, therefore, Shelter’s was the only policy applicable to Roberson’s claim.
IV. Cross-Appeal
On cross-appeal, Shelter argues that, while the trial court correctly determined there was coverage under the Farm Bureau policy, it erred in finding that the coverage should be divided equally instead of by a pro rata distribution as set forth in Shelter’s policy. Because we have reversed the trial court’s determination that Farm Bureau’s policy provided coverage for the UM claim, Shelter’s argument on cross-appeal is moot.
Reversed on direct appeal; cross-appeal rendered moot.
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COURTNEY HUDSON GOODSON, Associate Justice
|, This case, which presents an issue of first impression regarding rehabilitative alimony, is- before us on a petition for review from the Arkansas Court of Appeals pursuant to Arkansas Supreme Court Rule 1-2(e). Appellant Christopher Foster appeals the divorce decree entered by the Garland County Circuit Court awarding rehabilitative alimony and attorney’s fees and costs to appellee Leah Foster. For reversal, Christopher argues that (1) the circuit court erred in its interpretation of the rehabilitative-alimony statute when it applied the factors relevant to permanent alimony to support the award of rehabilitative alimony to Leah; (2) the circuit court abused its discretion by deciding that Leah’s proffered plan of rehabilitation supported an award of $408,000 in alimony payable over ten years; and (3) the circuit court abused its discretion by awarding attorney’s fees and costs in addition to rehabilitative alimony. We affirm the circuit court.
|2Christopher and Leah Foster were married on February 12, 2002, and three children were born of their marriage: A.F. (age eleven); E.F. (age seven); and F.F. (age five). Christopher filed a complaint for divorce in September 2013, alleging general indignities. Leah answered and counterclaimed for divorce, requesting alimony, child support, and an unequal distribution of marital assets.
The parties reached an agreement with respect to child custody, visitation, and the disposition of the marital residence, and a hearing was held on March 19, 2014, on the issues of the remaining marital property, child support, alimony, and attorney’s fees. Testimony by both parties established that Christopher was the primary source of income for the family, while Leah was the primary caregiver to the children. Christopher testified that he was an independent contractor for a company that sells employee-benefit plans to small businesses. He introduced into evidence his 2011 and 2012 tax returns, which reflected that his average gross income for those years was approximately $163,000. Christopher indicated that his income is around $3,000 per month after all of his expenses are paid and that with the addition of his anticipated child-support payments, he could not afford to pay alimony to Leah. He further stated that Leah had a real-estate license and claimed that there was no reason why she could not work.
On cross-examination, Christopher agreed that Leah transported the children to and from school each day and stayed home with them when they were sick. Christopher explained that the family lived in Hot Springs but that his office was in Little Rock, and he testified that he commuted to Little Rock each day and also traveled throughout the state for work. Thus, he indicated that he was typically unable to take the children to their |sextracurricular activities as well. With regard to the monthly expenses listed on his affidavit of financial means, Christopher stated that the family’s monthly expenses were approximately $11,000 each month, while his expenses, alone, totaled around $7,000. He agreed that Leah'would have additional expenses when she took over the marital residence, including mortgage payments, taxes, insurance, and yard maintenance.
Leah testified that she and Christopher had both agreed that she would be a stay-at-home mother so that the children did pot have to attend day care full time. She had graduated from high school but did not have a college degree. While Leah stated that she had obtained her real-estate license in 2004, she indicated that the license had been inactive during much of her marriage due to the births of her children. According to Leah, even when her license was active, she had sold only one or two houses per year, primarily to friends and family members. Information from the parties’ 2011 and 2012 joint tax returns indicated that Leah’s taxable income from selling real estate was $8,552 and $4,500, respectively. Leah testified that Christopher had paid all of the family’s expenses during their marriage and that her income was used only to supplement his income and to pay for vacations. She stated that she had maintained the home, cared for the children, and transported them to and from school and various exteacurricular activities. Leah testified that she did not ask Christopher to stay home 'with the children when they were out of school because he told her that was her job. She further stated that Christopher had told her that she would be on welfare if she were not married to him.
Leah testified that.she was asking for spousal support because the child support would not be adequate to support the family’s monthly expenses of $6,615 as reflected in her | ¿affidavit of financial means. She stated that there was an economic imbalance between her earning ability and Chris’s, indicating that she would be unable to earn a substantial. income as a realtor at the present time. According to Leah, the spousal support awarded would need to be higher for the first several years because the children were not old enough to stay at home by themselves, and she would be limited in her employment opportunities. She requested $5,000 per month for the first three years, followed by $2,500 for the next couple of years, when she would have her career started and would be earning more income, and then $2,000 for several more years, at which time the alimony would terminate. She attempted to introduce a written rehabilitative alimony plan; however, Christopher objected to its admission. The circuit court allowed Leah to proffer the plan and to testify about it. She indicated that the $5,000 per month she was requesting in alimony was not even half of his income and that it would be easier for her to grow her real-estate business or to look for other employment as the children got older. She further stated that she had considered extending her education in the future.
In addition to alimony, Leah testified that she was asking Christopher to pay her outstanding legal fees because she could not afford to do so. She introduced an itemized list from her attorney, which included $14,190 in attorney’s fees and $647.18 in expenses for the court reporter and for postage.
On cross-examination, Leah agreed that she had a responsibility to earn an income sufficient to provide for her children. However, she indicated that it was difficult for her to sell real estate in her current situation, even on evenings and weekends when Christopher had the children, because she still had to pick up the children from school on weekdays and |Kcare for them until Christopher got home from work. In addition, on weekends, Leah stated that both parents had to work together to juggle the children’s activities.
Paul Burge, who worked with Leah at Hot Springs Realty, testified that the real-estate market in Garland County had declined in value over the past seven or eight years. He indicated that realtors who had been selling real estate for ten to twenty years could make a good income but that it was very difficult for realtors who were starting out due to the time it takes to develop contacts and referrals. Burge further testified that realtors at Hot Springs Realty must pay their own monthly dues, advertising expenses, signage, and transportation-related expenses. According to Burge, the real-estate business is not a nine-to-five job, and it requires odd hours. He indicated that only one agent out of thirty-four agents at Hot Springs Realty had earned more than $100,000, and that occurred six years ago.
Following the hearing, the parties submitted proposed findings of fact and con- elusions of law at the circuit court’s request. Both Leah and Christopher stated in their proposed findings that Leah was requesting $5,000 per month in alimony for the first three years following the divorce, $3,000 per month for the next three years, and $2,500 per month for the last four years. These were also the same amounts that were set forth in Leah’s proffered rehabilitative plan, although she had mentioned slightly different amounts in her testimony at the hearing.
The circuit court entered the divorce decree on July 28, 2014. By agreement of the parties, Leah was awarded primary custody of the children, with Christopher receiving three weekend visits with the children each month and one overnight visit each week. The court [ ^calculated Christopher’s average monthly income as $10,363, which resulted in a monthly child-support obligation of $2,477. The circuit court also approved the parties’ settlement agreement regarding the disposition of the marital residence and the parties’ personal property. Per this agreement, Leah was granted the marital residence as her separate property after paying Christopher $35,000 for his share of the equity in the home. The circuit court found that the parties’ IRAs were marital property and divided them equally. Christopher was awarded his brokerage accounts in the amount of $219,262.66 as his separate property, while Leah was awarded her bank stock valued at $204,052 as her separate property.
With respect to alimony, the circuit court found that there was an economic imbalance between the parties and that Christopher had been the main source of income for the family. The court stated that Leah had been unable to generate significant income from her occupation as a realtor due to the downturn in the real-estate market and due to her status as the primary caregiver to the children. The court found that the parties had enjoyed a good standard of living while they were married and that Christopher had deposited approximately $12,000 each month into the parties’ checking account to pay for the family’s monthly expenses. While both parties owned pre-marital property, the circuit court noted that Leah’s bank stock was in both her name and her father’s name and found that she had no other sources of income, while Christopher had a large income as well as a large amount of easily accessible funds.
Based on the evidence set forth above, the circuit court found that an award of rehabilitative alimony was appropriate under Arkansas Code Annotated section 9-12—312(b) |7(Repl. 2015). The circuit court also found that Leah’s proposed ten-year rehabilitative plan was reasonable in terms of its duration because it allowed her to transition into the workplace as the children became older and more independent. However, the court stated that Leah’s requested amount of alimony was unreasonable. The court thus awarded her a lesser amount of alimony for the first three years in the amount of $4,500 per month, finding that this amount, when combined with child support, was sufficient to sustain her regardless of how much income she was able to generate as a realtor or from a different job. For the following three years, the court awarded Leah $3,500 in alimony, noting that by that time, she should have acquired employment to supplement her income. The court then awarded Leah $2,500 for the final four years. The circuit court concluded that this plan was reasonable in both duration and amount because it allowed Leah to support herself and her household while she established sufficient income as the children grew older and required less immediate care.
In addition to alimony, the circuit court awarded Leah $14,190 in attorney’s fees and $647.18 for expenses incurred in litigation. The court found that Leah was not in a financial position to pay her attorney’s fees and that Christopher had liquid funds to do so.
Christopher timely appealed the circuit court’s award of alimony and attorney’s fees to the court of appeals, which affirmed. Foster v. Foster, 2015 Ark. App. 530, 472 S.W.3d 151. Christopher then filed a petition for review with this court, alleging that this appeal raises issues of first impression and substantial public interest concerning an award of rehabilitatiye alimony after the enactment of Act 1487 of 2013. We granted the petition | sfor review on this basis. When we grant a petition for review, we treat the appeal as if it had been originally filed in this court. Moore v. Moore, 2016 Ark. 105, 486 S.W.3d 766.
In his first point on appeal, Christopher argues that the circuit court erred in its interpretation of Act 1487 because it applied the factors applicable to permanent alimony to support the award of rehabilitative alimony to Leah. This is an issue of first impression, as we have not previously had an occasion to interpret the 2013 amendment to Arkansas Code Annotated section 9-12-312(b). We review issues involving statutory interpretation de novo on appeal, as it is for this court to determine what a statute means. Moore, supra. However, unless it is shown that the circuit court erred, we will accept its interpretation as correct. Holbrook v. Healthport, Inc., 2014 Ark. 146, 432 S.W.3d 593.
An award of permanent alimony is-authorized under Arkansas Code Annotated section 9-12N>12(a) (Repl. 2015), which states that when a divorce decree is entered, the circuit court may enter an order concerning alimony as is “reasonable from the circumstances of the parties and the nature of the case.” Prior to 2013, section 9-12-312(b) also authorized an award of temporary alimony “under proper circumstances to either party in fixed installments for a specified period of time .... ” In Act 1487 of 2013, the legislature amended the language in section 9—12—312(b) to provide as follows:
(b)(1) Alimony may be awarded under proper circumstances concerning rehabilitation to either party in fixed installments for a specified period of time so that the payments qualify as periodic payments within the meaning of the Internal Revenue Code.
(2) When a request for rehabilitative alimony is made to the court, the payor may request or the court may require the recipient to provide a plan of rehabilitation for the court to consider in determining:
(A) Whether or not the plan is feasible; and
(B) The amount and duration of the award.
|a(3) If the recipient fails to meet the requirements of the rehabilitative plan, the payor may petition the court for a review to determine if rehabilitative alimony shall continue or be modified.
(4) A person paying alimony is entitled to petition the court for a review, modification, or both of the court’s alimony order at any-time based upon a significant and material change of circumstances.
We have stated that the purpose of alimony is to rectify the economic imbalances in earning power and standard of living in light of the particular facts in each case. Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007). The primary factors to be considered in determining whether to award alimony are the financial need of one spouse and the other spouse’s ability to pay. Kuchmas v. Kuchmas, 368 Ark. 43, 243 S.W.3d 270 (2006). In addition, the following secondary factors should be considered: (1) the financial circumstances of both parties; (2) the couple’s past standard of living; (3) the value of jointly owned property; (4) the amount and nature of the parties’ income, both current and anticipated; (5) the extent and nature of the resources and assets of each of the parties; (6) the amount of income of each that is spendable; (7) the earning ability and capacity of each party; (8) the property awarded or given to one of the parties, either by the court or the other party; (9) the disposition made of the homestead or jointly owned property; (10) the condition of health and medical needs of both husband and wife; (11) the duration of the marriage; and (12) the amount of child support. Moore, supra.
Christopher recognizes, correctly, that the above-cited factors are relevant to an award of permanent alimony. However, he contends that the legislature intended by its 2013 amendment for different factors to apply to rehabilitative alimony. He bases his argument on the fact that the amended version of section 9-12-312(b) uses different language than that in section 9-12-312(a). Specifically, he asserts that subsection (a) uses the | ^language “reasonable from the circumstances of the parties and the nature of the case,” while subsection (b) uses the language “under proper circumstances concerning rehabilitation.”
Under our principles of statutory interpretation, the basic rule is to give effect to the intent of the legislature. Moore, supra. We thus construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. Where the language is plain and unambiguous, we determine legislative intent from the meaning of the language used. Simpson v. Cavalry SPV I, LLC, 2014 Ark. 363, 440 S.W.3d 335. A statute is ambiguous only where it is open to two or more interpretations, or where it is of such obscure and doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. Id. We are very hesitant to interpret'a legislative act in a manner contrary to its express language, unless it is clear that a drafting error or omission has circumvented legislative intent. Moore, supra.
Contrary to Christopher’s argument, the language in the amended version of Arkansas Code Annotated section 9—12— 312(b) does not indicate that the legislature intended different factors to apply to rehabilitative alimony. Rehabilitative alimony was first recognized by our court of appeals in Bolan v. Bolan, 32 Ark. App. 65, 71, 796 S.W.2d 358, 362 (1990), in which it was defined as “alimony payable for a short, but specific and terminable period of time, which will cease when the recipient is, in the exercise of reasonable efforts, in a position of self support.” Since then, both this court and the court of appeals have analyzed the concept of rehabilitative alimony utilizing the same factors that are applicable to permanent alimony. See, e.g., Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999); Dozier v. Dozier, 2014 Ark. App. 78, 432 S.W.3d 82; Dew v. Dew, 2012 Ark. App. 122, 390 S.W.3d 764; Whitworth v. Whitworth, 2009 Ark. App. 410, 319 S.W.3d 269. When construing a statute, we presume that the General Assembly, in enacting it, has full knowledge of judicial decisions under preexisting law. Corn v. Farmers Ins. Co., 2013 Ark. 444, 430 S.W.3d 655. If the legislature had intended for different factors to apply to rehabilitative alimony, it could have expressly indicated so in the language of the amended statute. Furthermore, similar factors have been used by other states in determining whether to award rehabilitative alimony versus another type of alimony. See, e.g., St. Cyr v. St. Cyr, 228 Md.App. 163, 137 A.3d 332 (2016) (discussing statutory factors such as the parties’ past standard of living, their earning ability and capacity, and the duration of their marriage in determining whether rehabilitative alimony was appropriate); Gnall v. Gnall, 222 N.J. 414, 119 A.3d 891 (2015) (holding that the trial court was required to consider all statutory factors in considering whether permanent, limited-duration, rehabilitative, or reimbursement alimony was warranted); Ward v. Ward, 233 W.Va. 108, 755 S.E.2d 494 (2014) (discussing statutory factors applicable to all awards of spousal support); Mayfield v. Mayfield, 395 S.W.3d 108 (Tenn. 2012) (same); Armstrong v. Armstrong, 618 So.2d 1278 (Miss. 1993) (same). See also David H. Relsey and Patrick P. Fry, The Relationship Between Permanent and Rehabilitative Alimony, 4 J. Am. Acad. Matrim. Law 1 (1988).
Christopher basically admits in his supplemental brief to this court that the traditional factors applicable to alimony are also relevant to the consideration of rehabilitative alimony. He argues that the circuit court should have engaged in a two-step analysis by first finding that the circumstances necessary to support a conventional alimony award exist and then also finding the existence of proper circumstances concerning rehabilitation. However, this 11⅞⅛ essentially what the circuit court did in this case. The circuit court found that there was an economic imbalance in the earning power and standard of living of the parties and that Christopher had been the primary source of income for the family. The court also discussed the extent and nature of the assets and resources available to both parties. Because Leah had been a stay-at-home mother for most of the parties’ twelve-year marriage, and because the children were still at an age where they needed intensive parental care, the court found that she needed rehabilitative alimony for a certain period of years so that she would be able to transition back into the workforce and earn the amount of income necessary to support herself and her household.
While Christopher argues that these facts are not sufficient to support an award of rehabilitative alimony, our court of appeals upheld a rehabilitative-alimony award under similar circumstances in Dew v. Dew, supra, where the wife possessed a veterinary license but had not worked for many years. The circuit court in that case awarded $8,000 per month in alimony for a duration of four years. Further, in Dew, the wife was not the custodial parent, and she therefore did not have many of the same barriers to her reentry into the workforce that are present in this case.
We have held that a wife’s homemaker status is an appropriate factor to consider in awarding permanent alimony. See, e.g., Taylor, supra; Kuchmas, supra; Schumacher v. Schumacher, 66 Ark. App. 9, 986 S.W.2d 883 (1999). Christopher’s argument that this same | ^factor is not relevant to a decision whether to award rehabilitative alimony, which is temporary in nature and is awarded for the specific purpose of allowing the spouse to become self-supporting, is not persuasive. Leah had not been an active participant in the workforce for twelve years due to her status as a stay-at-home mother to the parties’ chil dren, and she testified that Christopher told her during their marriage that she would be on welfare if she left him. Despite these facts, Christopher argued to the circuit court that Leah was not entitled to any amount of alimony, whether rehabilitative or permanent. This was unreasonable, and the circuit court was correct in considering Leah’s history as a homemaker in deciding whether she was entitled to rehabilitative alimony.
Christopher also contends that the circuit court erred in awarding rehabilitative alimony to Leah because she failed to present a rehabilitative plan containing concrete goals and requirements that she must meet in order to become self-sufficient. However, Arkansas Code Annotated section 9-12-312(b) does not mandate that a rehabilitative plan be submitted or approved. Instead, the statute states that a plan “may” be requested by the payor or required by the circuit court. Christopher made no such request in this case. While Leah proffered a written rehabilitative plan, Christopher objected to its admission, and the circuit court sustained the objection. Instead, the court ruled that Leah was allowed to testify about her proposed plan. Contrary to Christopher’s argument, there is no ^requirement in the statute that a rehabilitation plan contain specific goals or requirements regarding education or training on the part of the payee. We will not read words into a statutory provision that are not there. Scoggins v. Medlock, 2011 Ark. 194, 381 S.W.3d 781. For this same reason, Christopher’s claim that the circuit court rendered section 9-12—312(b)(3) meaningless by not requiring a plan with specific and concrete goals is also without merit. This subsection merely allows the payor to petition the court for a review if the requirements of a rehabilitative plan are not being met. The statute does not mandate that a plan be submitted; nor does it require that any plan that is submitted contain specific, measurable requirements.
Christopher further argues that the circuit court failed to find that Leah’s proposed plan was “feasible” as required by the statute. Again, however, there is no requirement that a rehabilitative plan be submitted in order to award rehabilitative alimony. Furthermore, the circuit court specifically found after analyzing all of the appropriate factors, including the financial circumstances of both parties, that Leah’s proposed plan was reasonable as modified by the court. Thus, the circuit court did not err in its interpretation of section 9-12-312(b) or in its finding that Leah was entitled to rehabilitative alimony under the facts in this case.
In his second point on appeal, Christopher contends that the circuit court erred- by awarding Leah a total of $408,000, which included the awards of both rehabilitative alimony and attorney’s fees and costs. He specifically argues that the circuit court abused its discretion in setting both the amount and the duration of the alimony award.
hrAn award of alimony.is a question within the sound discretion of the circuit court, and we will not reverse the circuit court’s decision to award alimony absent an abuse of that discretion. Brave v. Brave, 2014 Ark. 175, 433 S.W.3d 227; Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007). We have held that the circuit court may make an award of alimony that is reasonable under the circumstances, and the amount of alimony should not be reduced to a mathematical formula because the need for flexibility outweighs the need for relative certainty. Brave, supra. We have further emphasized that the circuit court is in the best position to view the needs of the parties in connection with an award of alimony. Taylor, supra.
Here, Leah presented evidence that her monthly expenses were $6,615. This was also supported by Christopher’s testimony that the family’s expenses were approximately $11,000 each month and that he had deposited $12,000 per month in the parties’ checking account in order to pay their expenses during the marriage. The circuit court found that it was not unreasonable for Christopher to pay $4,500 per month in rehabilitative alimony for the first three years because this amount, when combined with child support, would be adequate to support Leah and her household for that time regardless of how much income she was able to generate from her employment as a realtor or from another job. The court then reduced the amount of alimony to $3,500 for the following three years, when Leah should have acquired employment sufficient to supplement her income. For the final four years, the alimony award was reduced to $2,500, because the children will grow older and require less intensive care, allowing Leah more opportunity to engage in full-time employment. The circuit court noted that the ten-year period of rehabilitation is | ^appropriate because at the end of that time, the parties’ youngest child will still be under eighteen years of age. ,
While Christopher argues that the circuit court faked.to take into account his own monthly expenses, this is incorrect, as the court found that his average income for child-support purposes exceeded $10,000 per month and that he also had easily accessible sources of income from his separate, pre-marital property. Christopher attempts to bolster his contention that the alimony award was excessive in this case by asserting that the total sum Leah will receive during the ten-year period, including the award of attorney’s fees, is $408,000. However, based on the circuit court’s calculation of Christopher’s monthly income, he will have earned $1.2 million during that same ten-year period. Furthermore, it was not unreasonable to allow Leah ten years in which to become completely self-supporting given that she had contributed to the development of Christopher’s career during their twelve-year marriage by being the primary caregiver to their three children. Thus, there was no abuse of discretion by the circuit court with regard to the amount or the duration of the rehabilitative-alimony award in this case.
In Christopher’s third and final point on appeal, he contends that the circuit court abused its discretion by awarding $14,190 in attorney’s fees and $647.18 in litigation-related expenses to Leah. The circuit court has the inherent authority to award attorney’s fees in domestic-relations cases, and we will not reverse an award of fees absent an abuse of discretion. Baber v. Baber, 2011 Ark. 40, 378 S.W.3d 699. See also Ark. Code Ann. § 9-12-309 (Repl. 2015) (attorney’s fees in domestic-relations matters). We have also held that the circuit court is in a superior position to determine whether to award fees due to the |]7court’s intimate acquaintance with the record and the quality of the services ren dered. Harrill & Sutter, P.L.L.C. v. Kosin, 2012 Ark. 385, 424 S.W.3d 272.
Christopher challenges the circuit court’s award of attorney’s fees based on several alleged errors in the billing statement provided by Leah’s attorney. Specifically, he argues that the billing statement does not reflect work that Leah testified was done by an associate, that it charges an hourly fee for a temporary hearing that he contends was instead resolved by an agreed order, and that it does not reflect two payments that had already been made by Leah. He therefore contends that the billing statement was insufficient to support an award of fees because it could not be determined what work was performed, who performed the work, the hourly rate at which the work was performed, or what payments had been made toward the outstanding fees.
None of Christopher’s arguments demonstrate an abuse of discretion by the circuit court in its award of attorney’s fees. All of these contentions were raised by Christopher but were ultimately rejected by the circuit court, which awarded Leah the full amount she had requested. In addition, as Leah asserted in her proposed findings of fact and conclusions of law, the billing statement included only work performed through' mid-March 2014, and it therefore did not include fees for work her attorney did in connection with the divorce hearing, posthearing briefing, or preparation of the proposed order.
Christopher also claims that Leah was not entitled to $647.18 in costs for the court reporter and for postage. He argues that Arkansas Rule of Civil Procedure 54(d) (2016) limits an award of costs to those items listed in subsection (d)(2) and that court-reporter fees and postage are not included in that list. However, Rule 54(d)(2) further states that other 118expenses specifically authorized by statute are allowed, and Arkansas Code Annotated section 9-12-309(a)(2) provides that in a divorce action, the circuit court may award either the wife or the husband costs of court, in addition to a reasonable attorney’s fee. Thus, the circuit court did not err by awarding litigation-related expenses such as court-reporter fees and postage, in addition to attorney’s fees.
The circuit court found that Leah was not in a financial position to pay her attorney’s fees, while Christopher had liquid funds to do so. This finding was supported by the evidence presented. Accordingly, the circuit court did not abuse its discretion in awarding Leah her requested amount of attorney’s fees and expenses.
Affirmed; court of appeals’ opinion vacated.
Danielson and Wood, JJ., concur in part and dissent in part.
Brill, C.J., dissents.
. While Justice Wood's dissenting opinion argues that an award of rehabilitative alimony should address or concern a divorced person’s needs to join the workforce and achieve financial autonomy, the circuit court’s findings reflect that the alimony awarded in this case was structured in such a way as to address those very issues.
. We have held that the use of the word "may” instead of “shall” indicates that the statute is permissive or discretionary rather than mandatory. Hopper v. Garner, 328 Ark. 516, 944 S.W.2d 540 (1997). Thus, Chief Justice Brill’s dissent is incorrect that the circuit court failed to adhere to the “statutory requirement” for a rehabilitative plan. The legislature expressly chose not to malte a rehabilitative plan a mandatory prerequisite to an award of rehabilitative alimony; nor did the legislature choose to impose specific requirements on the recipient of rehabilitative alimony, such as education or training. | [
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Battle, J.
This case was before this court in October, 1901, on appeal by T. S. Noe. A. S-. Layton was appellee. The judgment appealed from was reversed, and the cause was remanded for a new trial, as will more fully appear in 64 Ark. 880. Since then A. S. Layton has died, and the action has been revived in the name of W. E. Layton, as administrator of the estate of A. S. Layton, deceased. The action was brought by A. S. Layton against Noe to recover possession of a bale of cotton. A new trial was had in the Marion Circuit Court on substantially the same testimony as in the former trial, and a verdict and judgment were rendered for plaintiff, Layton. Appellant filed his motion for a new trial, which was overruled, and asked for an appeal to Supreme Court, which was granted, and appellant was given twenty days in which to file his bill of exceptions, and by agreement of appellant’s counsel and the Hon. E. G. Mitchell, the circuit judge of the 14th judicial circuit of Arkansas, before whom said cause was tried, the bill of exceptions was to be signed at the Marshall Circuit Court, the week following the Marion Circuit Court, which would be within the twenty days’ time given appellant in which to file his bill of exceptions. -When counsel for appellant appeared at the Marshall Circuit Court with his bill of exceptions duly prepared, the circuit judge, the Hon. E. G. Mitchell, had vacated the bench, and gone to Western Oklahoma, a distance of eight hundred or a thousand miles, thereby rendering it impossible for appellant to secure the signature of the circuit judge to his bill of exceptions, and have same filéd in the circuit clerk’s office within' the twenty days allowed, thereby cutting him off from his right of appeal, unless this court holds that the chancery court has the right to grant relief in such cases by allowing a new trial.
Noe on the 16th day of October, 1903, filed in the Marion Chancery Court a petition for a new trial, and stated in substance as follows:
“That at the August term, Í903, of the Marion Circuit Court, the case of W. E. Layton, administrator aforesaid, v. T. S. Noe, was tried. The trial was before a jury, and the verdict and judgment were for W. E. Layton, administrator. That at the same term of the circuit court, and within three days after the rendition of the judgment, T. S. Noe filed a motion for a new trial, which was overruled, exceptions were saved, and an appeal was prayed and granted. That twenty days were given T- S. Noe in which to prepare and file his bill of exceptions. That appellant’s attorneys represented two other parties whose cases were decided at the same August term of the court, in which they appealed, and were given twenty days to prepare and file bill of exceptions, and they as diligently as they could got up bills of exceptions. It was further understood and agreed by the parties and the Hon. E. G. Mitchell, judge of the circuit court, that bills of exceptions should be prepared and presented to the judge at the Searcy court at its next term, to be held the next week, beginning Monday, the 7th day of September, 1903, and that on Wednesday, September 9, 1903, the appellant, through one of his attorneys, attended the Searcy Circuit Court with the bills of exceptions prepared to present to the judge for his signature. This was five days before the expiration of the twenty days given for filing bill of exceptions. That Judge E. G. Mitchell had, on Tuesday, after opening court in Searcy County, vacated the bench and caused the election of a special judge, the Hon. J. C. Eloyd, who had been of Layton’s counsel in the Marion Circuit Court, and that the regular judge, the Hon. E. G. Mitchell, before the arrival of the appellant’s attorney, departed this State, and remained out of it until after the expiration of „ the twenty days given for filing the bill of exceptions in the Marion Circuit Court.
“Appellant was informed and believed that the circuit judge had gone to Beaver City, Okla. Ter., a point so remote from this State that it would have been impossible to have reached him, obtained his signature, and returned to this State in time to file the bill of exceptions within the twenty days, which expired on September 14, 1903. Appellant states that,' by reason of the foregoing facts, he was prevented from filing his bill of exceptions, and his right of appeal was cut off, thereby causing plaintiff a great and irreparable wrong.
. “Plaintiff further states that the facts, as shown by the evidence on the trial of the cause in the circuit court, were as' follows, towit: In 1899, Alex and Andy Davis, brothers, raised crops on the lands belonging to and in the possession of T. S. Noe, the complainant here, and under an agreement with them Noe furnished the lands, farm implements, work animals and feed for same, and supplies to the Davises for raising a crop during the year 1899. That Noe was to give the Davises for raising crop one-half thereof, after deducting therefrom the value of supplies furnished the Davises by him. Noe furnished them at the store of J. S. Cowdrey, in Yellville, Ark., with supplies to the following amounts, — to Andy Davis, $25.77; to Alex Davis, $21.58. The amount of cotton raised under said agreement going to Alex Davis, and subject to lien for supplies, was 500 pounds in the seed,' and the amount going to Andy Davis under the agreement was 900 pounds in the seed, subject to the lien for supplies. T: S. Noe had the part of Alex Davis brought and placed in his crib, and afterwards he and Andy Davis hauled both parcels to the gin and placed it there for ginning. In order to keep his accounts with the Davises correctly, the cotton was placed in the gin in the name of Alex and Andy Davis. Noe gave direction to the ginner,- in the presence of Andy Davis, as the aggregate amount of cotton was too small to make two bales, to place it all in one bale, and then told Andy Davis that he (Noe) would go to town and learn whether the best prices were paid for cotton in the seed or in the bale, and allow the Davises the best price therefor. After the cotton was baled, ginned and numbered, Alex Davis (without the knowledge or consent of Noe) went to the ginner, and got the number of the bale and its weight on a piece of paper signed by the ginner, and, with this only to support his statement that he and his brother owned a bale of cotton, sold the same to I. J. Baker, the agent of A. S. Layton (the defendant’s intestate) for $29.64. Afterwards, when Noe learned of the sale of the cotton, he went to Baker and Layton, and told them that he had a landlord’s lien on the same, and then took the cotton from the gin, and hauled it to McBee’s Landing on White River, a distance of some eight or ten miles from Hurt’s gin, where the cotton was ginned. This gin was situated two or three miles from Yellville, where Layton lived, and did business, and the cotton was never in Layton’s possession. After Noe hauled the cotton off, Layton brought suit in replevin, and took possession of the cotton. Before Noe hauled the cotton away, towit: on November 12th and November 20th, Andy Davis paid $12 on his supply account on the first date-, and $5 on the latter date. Andy Davis testified that this was from money received from the sale of the cotton. The evidence is conflicting whether Noe knew that these payments were from the Layton money, before he hauled the cotton off. Alex Davis never paid a cent on his supply account, and had abandoned all claim to the cotton in behalf of Noe before the cotton was placed in the gin.
“The bill of exceptions prepared to be presented to the Hon. E. G. Mitchell, the judge of the Marion Circuit Court, by complainant’s attorneys, is filed herewith, made a part hereof, and marked exhibit ‘A.’ * * *
“And that the Hon. Circuit Judge, E. G. Mitchell, committed errors during the trial prejudicial to this appellant, to which appellant excepted at the time, and that the verdict of the jury was without evidence to support it, and the judgment unjust and inequitable. That appellee, through the replevin suit, procured possession of the bale of cotton in question, valued at $30.29, and converted it to his own use.
“Wherefore plaintiff prays that this cause be heard, and that the defendant be compelled to submit to a new .trial at law, or that he be ordered to return to the plaintiff the $30.29, the value of the cotton, with interest, and pay all costs and for all other equitable relief.”
The instructions given by the court to the jury and copied in the writing attached to the petition, called bill of' exceptions, and made exhibit, so far as is necessary to copy in this opinion, are as follows:
“No. 1. This is a cause in which A. S. Layton is the plaintiff, said A. S. Layton being dead; and the suit, revived in the name of W. E. Layton, seeks by replevin to recover a bale of cotton of the value of $30.29 from the defendant, T. S. Noe. Before the plaintiff can recover, the burden is on him by a preponderance of the evidence to show that he is the owner and entitled to the possession of the cotton. Plaintiff claims that he bought the cotton from the Davis Brothers. It is admitted that the Davis Brothers were tenants or employees of the defendant, Noe, and admitted that the Davis Brothers got supplies from the defendant for which he is entitled to a lien. I instruct you that this lien on the cotton raised by the Davis Brothers continued to the cotton gin, where it was hauled and ginned, and he, the defendant, had the right of possession to it at the gin, notwith-' standing the fact that the Davis Brothers had taken the ginner’s receipt and sold it to Layton, unless Layton showed by a preponderance of the evidence that when he bought the cotton from the Davis Brothers, Noe, the defendant, consented to the sale at the time the same was made, or that he afterwards, and before the bringing of this suit, waived his lien and released same.”
■“No. 2. I instruct you that if you find from the preponderance of the evidence that the defendant Noe was in possession of the cotton in controversy, and while in such possession he knew that Davis.Brothers had sold the same to Layton, and that Layton had bought in good faith, believing that Davis Brothers had the right to sell, and afterwards that defendant accepted part of the money paid by Layton to Davis Brothers, he thereby ratified the sale, and you will find for the plaintiff, although you may believe that at the time the sale was made Davis Brothers had no right to sell the cotton.”
The defendant, Dayton, filed a demurrer to the petition, and the court sustained- it, and dismissed the petition for want of equity, and the plaintiff, Noe, appealed.
In Whitehill v. Butler, 51 Ark. 341, it is said'. “It is not enough to warrant the extraordinary interference of equity with a judgment at law that an accident has prevented the losing party from pressing a motion for a new trial based upon technical errors occurring at the trial, even though they might be sufficient to warrant a reversal on appeal. Johnson v. Branch, 48 Ark. 535. A party who has obtained judgment after a full investigation of the controversy by a competent tribunal will not be forced by a court of equity .to submit to a new’ trial, unless justice imperatively demands it. If must clearly appear to that court that it would be contrary to equity and good conscience to allow the judgment to be enforced, else it declines to impose terms upon the prevailing party.”
In the case before us the appellant, Noe, had a lien on the cotton in controversy for supplies furnished the Davis Brothers. Alex Davis, one of the owners of it, sold it to A. S. Dayton, without the knowledge or consent of Noe. Andy Davis paid to Noe out of the proceeds of the sale on November 12th and 20th, 1899, $*7; on the amount he and his brother were owing for supplies. Appellant, in his petition, alleges that “the evidence is conflicting as to whether Noe knew that these payments were from the Dayton money before he hauled the cotton off.” He fails to show in any way what this evidence was. He shows that he testified that he did not know, but does not show the evidence which conflicted with his on that point. In “Exhibit A” to his petition it appears that the court instructed the jury that, if they found from the preponderance of the evidence that Noe accepted part of the money paid by Dayton to Davis Brothers or either of theni, and knew that it was the money paid by Dayton to the Davis Brothers for the cotton, they would find for Dayton. The jury returned a verdict in favor of Dayton, and thereby found that Noe knew that the money received by him was a part of the proceeds of the sale of the cotton. Construing the petition and the exhibits, which were made a part thereof, together, it is evident that the jury found from the evidence that Noe knew, at the time he received the money, that it was a part of the proceeds of the sale of the cotton to Layton. Unless they did, they could not, under the instructions of the court, have returned the verdict. If this finding be true, Noe thereby ratified the sale to Layton, and he is not, in law or equity, entitled to the possession of the cotton.
The verdict being sustained by evidence, the judgment he attempts to appeal from is not reversible; and there is no equity in his petition for á new trial.
Decree affirmed. | [
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Griffin Smith, Chief Justice.
The appeal is from a decree that a deed executed by Mrs. Sarah A. Bales Cover was not delivered, notwithstanding the fact that Fred H. Woodruff for whose benefit, prima facie, it was executed, received the document at the grantor’s direction.
Mrs. Cover died intestate August 31, 1945, owning certain real property. She had owned other property, some of which had been disposed of. When death occurred Mrs. Cover resided at Lincoln, Washington County. She had formerly lived in Fayetteville at 318 East Lafayette Street. This is the property described as part of lots five and six of the Masonic Addition. It was one of five tracts appellees claim Mrs. Cover owned at the time of her death, and is included with other descriptions in the deed executed August 7, 1941, under which appellants claim.
Fred H. Woodruff, 64 years of age, is a farmer, wood-cutter, and laborer in general, living at Lincoln a short distance from the place selected as a home by his aunt, Mrs. Cover, when she moved from Fayetteville. In 1941, before going to Lincoln, Mrs. Cover wrote her nephew, requesting that he meet her at the bank in Lincoln. Mrs. Cover was accompanied by Mrs. Little M. Martin Hughes, who acted as a secretary, doing other incidental tasks, such as driving an automobile, running errands, etc. She served in this capacity from September 1939 until Mrs. Cover died.
August 7, 1941, Mrs. Cover and Mrs. Hughes went to the Lincoln bank. Mrs. Cover had some deeds’or other papers containing descriptions of the property being dealt with. She explained to W. T. Shannon — then cashier of the bank, but now president — that she wanted a deed “made or changed”, and that the property was to go to Fred H. Woodruff “and his bodily heirs”. The heirs were named: Freddie Woodruff, Jr.; Vernon Eugene Woodruff, and James Monroe Woodruff; “their heirs and assigns ’ ’. When the deed had been prepared it was signed by Mrs. Cover and indorsed “Executed in the presence of James English, Jr. [and] Mrs. Lillie M. Martin Hughes”. Woodruff, Sr.., handed Mrs. Cover a dollar bill and Mrs. Cover directed Shannon to give the deed to Woodruff, which he did.
This deed was filed a few hours after Mrs. Cover died, for the purpose of having it recorded. It is undisputed that Mrs. Cover gave instructions to Woodruff not to record the deed during her lifetime; and, acting under this compulsion and seemingly acquiescing in Mrs. Cover’s right to attach this condition to manual delivery, Woodruff accepted the document and retained it with his personal papers for more than four years.
During the interim between execution of the deed and death, Mrs. Cover dealt with the property as though no conveyance had been made. It is shown that on a previous occasion she had deeded lands to Woodruff, who held at his aunt’s convenience and then reconveyed. It is intimated that Mrs. Cover was threatened with litigation [with possibility of a judgment against her] and for this reason she attempted to conceal her holdings. There was no substantial evidence to sustain this alleged motive, and it is not to be considered, although a deed' was in fact made.
Litigation resulting in this appeal began when R. A. Miller, Lula J. Osborne, and Shelby Niceum brought an action in Chancery reciting that Mrs. Cover died intestate owning the real estate they described, including the residential property in Fayetteville. They were nieces and nephews of Mrs. Cover, and their aunt, as was alleged, had been fraudulently imposed upon by Woodruff when he procured the deed. Primarily, however, it was asserted that the deed was not delivered with intent that it should vest in Woodruff or his children title to any of the property, it being Mrs. Cover’s purpose to retain control, with the right to sell, lease, give away, or otherwise utilize or make disposal. The prayer was that the deed be cancelled and the property partitioned.
Immediately following Mrs. Cover’s death Woodruff was appointed administrator of the estate. He was succeeded by Pat Johnson.
Woodruff demurred to the complaint on the ground that a claim was pending in Probate Court and a sale of the property would be.necessary to satisfy creditors.
Numerous pleadings were filed, including an amendment to the complaint in which all of the heirs of Mrs. Cover were named, or sought to be named. In the amendment A. A. Adams was made a party on allegation that shortly before her death Mrs. Cover leased to Adams the north half of a building at 29 North Block Street in Fayetteville. After the lease was executed a supplemental agreement relating to Adams’ right to make alterations was executed. Adams demurred to the amended complaint. Woodruff filed what he termed “an interpleader against the interpleaded defendant, Pat Johnson, as administrator”. It was alleged that the lease directed the monthly rentals of $25 to be paid to Woodruff — this being in the nature of an assignment. Woodruff contended that by reason of the assignment all rentals received by the administrator since August 30, 1945, should be paid to him.
July 25, 1946, Woodruff, acting for himself and ás. guardian of his minor children, brought an action in Washington Circuit Court, alleging that Mrs. Cover’s deed of August 7th, 1941, conveyed to the plaintiffs a fee simple title to all of the property therein described. In disregard of this deed, said these plaintiffs, the grantor conveyed to Elbert II. and Emma Heath certain parts of the property identified as Ttem-No: 1; to J. C. Waits a lot identified as Item No. 2; to J. S. Bates a part of Lot 20 identified as Item No. 3, and to Nick Kabouris Lot No. 3 identified as Item No. 4. By reason of these wrongful conveyances to 'bona fide purchasers Woodruff assei’ted that he had been damaged to the extent of $8,800, and asked judgment for that sum. This cause was transferred to equity.
It would unnecessarily burden this opinion and tax without reason the patience of those who must read it if we should set out in detail all of the pleadings as they have been abstracted. An exhibit is Woodruff’s claim filed in Probate Court February 26, 1946, in the action against Johnson as administrator. It listed the four items referred to in the Circuit Court action and alleged that the present values were respectively, $1,000, $300, $2,500, and $5,000. The contention was that Woodruff,. Sr., had been damaged in the sum of $800 — his estate being for life — and that the minor children had been damaged $8,000. ' ■
In substance, the Chancellor found that Mrs. Cover’s deed to the Woodruffs should be cancelled because not delivered; that the lease to Adams was effective, but the provision assigning rentals to Fred Woodruff, Sr., was void because contrary to public policy; that the Circuit Court action based upon Probate Court claim and consolidated in Chancery should be dismissed; and that those who bought from Mrs. Cover subsequent to her deed to the Woodruffs were innocent purchasers.
The decree expressly finds- that after execution of the deed Mrs. Cover continued in possession. She paid all taxes and special assessments, had insurance written in her own name, and paid the premiums. Fred Wood-ruff, Sr., assisted her in making two of the sales and witnessed execution of the deeds. It was also found, contrary to Woodruff’s contention, that he knew of the other sales.
It is our view that these findings — other than the one relating to payment of rentals under Adams ’ lease— are sustained by clear and convincing evidence. From1 appellants’ standpoint the difficulty is that Mrs. Cover and Woodruff were wrong in assuming that title could be conferred with one hand and withheld by the other. It appears clear tliat Woodruff did not at any time question his aunt’s continuing ownership; nor did he move in any manner to assert the rights he later claimed were his when seeking to recover for value of property sold.
Mrs. Riley Miller testified that shortly before August 31, 1945, Mrs. Cover asked her to write Stella Bynum in California. In the letter Mrs. Cover told Stella that if she would move back home — “meaning the home place or Lafayette Street property in Fayetteville” — and live with her she (Mrs. Cover) would move back. Mrs. Cover also said she had a chance to sell for $9,000, hut thought the property was worth $10,000. Fred Woodruff was present when this conversation occurred, and he knew what was in the letter to Stella Bynum. Mrs. Miller knew this to be true because after writing the letter she read it to Mrs. Cover in Woodruff’s-presence.
There was testimony that Mrs. Cover told friends the deed had been executed and that “Fred” had been told not to have it recorded because “taxes would be mixed up”, etc. The facts are virtually conceded; hence the question is, What was the legal effect of admitted conduct ?
There is 'a strong presumption in favor of a deed when it is shown to have been executed by a competent person not acting under compulsion-or undue influence if the document remains in the hands of the grantee who is named. Carter v. McNeal, 86 Ark. 150, 110 S. W. 222; Morton v. Morton, 82 Ark. 492, 102 S. W. 213. Any disposal of a deed, accompanied by acts, words, or attended by circumstances clearly indicating that the grantor intended it should take effect as a conveyance, is a sufficient delivery. Russell v. May, 77 Ark. 89, 90 S. W. 617.
It is contended bjr appellants that the controlling fact is that Mrs. Cover had the deed delivered immediately to Woodruff and thereafter she did not, at any time, have manual possession of it. Conversely, it is conceded that she gave instructions the deed was not to .be recorded. Can it be said, then, that delivery of the executed paper was delivery of title, and that by this act Mrs. Cover conveyed to Woodruff complete control of the property, free from any interest she formerly had in it? or is it not true that title was not intended to be passed until the grantor should die, and in the meantime she would be at liberty to deal as she saw fit? This view finds support in Mrs. Cover’s decision to ask Stella Bynum to come live with her in the Fayetteville home place — the one remaining item not then sold. Nothing could be clearer than that until the very last her dominion was exclusive. Woodruff says he once remarked to his aunt that she was selling too much' property, and her reply was that proceeds would be retained for him. Even so, she asserted the right to sell in spite of the objection he offered, and he did not challenge the privilege she claimed.
This is not a ease where the grantor, by express words in the deed, provided that it should take effect after death. See Cribbs v. Walker, 74 Ark. 104, 85 S. W. 244. There the grantor named his wife as trustee, conveying the real property to her for life for her own use, with remainder as designated. Cribbs gave the deed to his wife, explained to her what his attorney had said in regard to its effect, told his wife to read it carefully, and then it was agreed that the granting husband should take the deed and put it in his safe. The Court held this was an effective delivery, saying: “Nothing is found in the law to prevent [the grantor] from accomplishing, by the execution of a deed immediately conveying the legal title in trust, the same result which would be secured by a will, if he adopted the proper form and method. We think he did this by the execution and delivery of the deed in centroversy”.
In Owen v. Owen, 185 Ark. 1069, 51 S. W. 2d 424, it was said that a deed from father to son containing a covenant that the son- should support the father and that the father should • remain in possession, the deed to become operative after death, was good. That would be true in the instant case if the intent had been expressed. But it was not; nor can that purpose be inferred when it is conceded that the grantor was directed not to have the deed recorded, and was thereafter denied any interest in the property, other than rentals on the Adams tract.
There are many cases, some of our own, where retention of possession by the grantor has not been held controlling in determining what the intention was. Johnson v. Young Men’s Building & Loan Association, 187 Ark. 430, 60 S. W. 2d 925; Hunter v. Hunter, 198 Ark. 8, 127 S. W. 2d 249.
In Davis v. Davis, 142 Ark. 311, 218 S. W. 827, Mr. Justice Hart said: “In order to constitute [delivery of a deed] there must be an intention to pass the title immediately, . . . and that the grantor shall lose dominion over the deed”. In Bray v. Bray, 132 Ark. 438, 201 S. W. 281, there was testimony that the grantor gave the deed to the grantee, who later returned it. The grantor placed the deed in a trunk for safe keeping, an agreement being that “when the old man died” appellee was to open the trunk, get the deed, and have it recorded. It was held there was no delivery. The Court said: “We have said that the question of delivery is generally one of intention manifested by act or word, and that there is no delivery unless there is an intention upon the part of both of the actors in the transaction to deliver the deed in order to pass the title immediately, . . . and that the grantor shall lose dominion over the deed”.
Delivery is sufficient if it is manifest that the grantor intended to part with the deed as an effective conveyance, and the question is largely one of intention upon the part of the grantor.-Hardin v. Russell, 175 Ark. 30, 298 S. W. 481. There is no delivery unless what is said and done by the grantor and grantee manifests their intention that the deed shall at once become operative to pass title, and that the grantor shall lose dominion over the deed.-Ford v. Moody; 169 Ark. 649, 276 S. W. 595. See, also, Cavett v. Pettigrew, 182 Ark. 806, 32 S. W. 2d 808; Graves v. Carlin, 194 Ark. 473, 107 S. W. 2d 542; Thomas v. Langley, 200 Ark. 220, 138 S. W. 2d 380; Van Huss v. Wooten, 208 Ark. 332, 186 S. W. 2d 174, Many other cases are to the same effect.
We think the controlling question in the case at bar in so far as Woodruff’s contentions are concerned is whether by any reasonable construction of the transaction he was justified in believing that title passed immediately. On a former occasion as has been shown, Mrs. Cover had deeded property io him, and at her request it was deeded back. There is little doubt this would have been Woodruff’s course in respect of the last deed had Mrs. Cover made the request. If this is true, and if Mrs. Cover also intended to deal with the property as she liad done in the past, there was no delivei’y within the meaning of the law.
The Court erred in holding that Woodruff was not entitled to rentals on the Adams lease. The decree affirmed validity of the lease and protected Adams in his rights during remainder of the term, but as we have seen, there was a finding that the assignment of interest (o Woodruff was violative of public policy. Mrs. Cover signed the lease, but did not sign the supplemental contract providing for repairs. The initial transaction discloses that Mrs. Cover signed by mark, and that Wood-ruff indorsed “Under power of attorney from Lessor”. There can be no objection to the assignment of rentals to Woodruff under the evidence touching this agreement; hence the decree will be modified in a way to carry out the express terms, with Woodruff as the beneficiary. In other ways it is affirmed.
A part of Lots 4 and 5, Block 4, Masonic Addition to Fayetteville, described by metes and bounds. Lot 2, Block 17, Original Town of Fayetteville. Part of the Southeast Quarter of the Southwest Quarter of Sec. 30, Township 15 North, Range 32 West, in Washington County, described by metes and bounds. Lots 3 and 4, Block 2, Rose Hill Addition to Fayetteville. Part of the Southeast Quarter of, the Northeast Quarter of Sec. 8, Township 16 North, Range 30 West, in Washington County, containing one acre. | [
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Robins, J.
This suit was instituted in the lower court' by appellants, Maurice .0. Wilkins, Jr., Katherine Wilkins Pennington, and Marice Wilkins Paladino, against their father, appellee, Maurice O. Wilkins, Sr., and their sister, Virginia Sue Wilkins. They alleged in their complaint that they and their father and sister were tenants in common of certain lands by virtue of a deed executed by their paternal grandfather on February 16, 1923; and they prayed for a partition of these lands.
Appellee, Maurice O. Wilkins, Sr., answered, denying that appellants had any interest in the lands described in the complaint, and alleging by way of cross-complaint that it was intended that the deed should convey to him a fee simple title to the land, and that, if the 'deed failed to convey such title, it should be reformed.
It was stipulated that W. A. Wilkins (the grandfather) and his wife are both deceased,. that appellants were the only children of appellee, Maurice O. Wilkins, Sr., at the time the deed was executed by Mr. Wilkins, and that none of the parties was in physical possession of the lands involved.
Both the scrivener who drew the deed and appellee, Maurice O. Wilkins, Sr., gave testimony tending to show that the intention of the grantors was that a fee simple title to the land should he conveyed to said appellee upon the death of grantors. It was also shown that shortly after the execution of the deed on February 16, 1923, W. A. Wilkins executed another deed identical in form with the first, except for an attempt to add. a reservation of possession of the land for the benefit of Willie A. Wilkins, wife of W. A. Wilkins, for her life.
The deed involved herein is as follows:
“Know All Men By These Presents:
“That we, W. A. Wilkins and Willie A. Wilkins, his wife, for and in consideration of the sum of. One Dollar ($1.00) this day in hand paid by Maurice Owen Wilkins, the receipt of which is hereby acknowledged, and for the further consideration of the love and affection which the said W. A. Wilkins has for his son Maurice Owen.Wilkins, hath granted, bargained, sold and conveyed, and by these presents doth hereby grant, bargain, sell and convey unto the said Maurice Owen Wilkins and to his children, the following described land lying in the County of St. Francis, State of Arkansas, to-wit:
“The northwest fractional quarter, (N.W.Frl. %) of section one (1), in township four (4) north, range three (3) east, and containing one hundred forty-two and 17/100 (142.17) acres of land, more or less.
“To have and to hold the within granted land and premises unto the said Maurice Owen Wilkins; and unto his children and assigns forever together with all the appurtenances thereunto belonging.
“And I, the said W. A. Wilkins do hereby covenant to and with the said Maurice Owen Wilkins, my son, and with his children, that I am lawfully seized in fee of the aforesaid premises, that I have a good right to sell and convey the same, and that I will forever warrant and defend the title to said land unto my said son, the said Maurice Owen Wilkins, and unto his children, heirs and assigns against all lawful claims whatsover.
“And it is hereby expressly understood, that the said W. A. Wilkins, shall have and retain the use and enjoyment of said land during the remainder of his natural life, and that this grant, bargain, and sale shall not be operative and shall not take effect until his death, at which time the said Maurice Owen Wilkins shall take possession of said land, but not until then.
“It is also distinctly understood that this deed does not convey any mineral rights whatever, in said land, but that all mineral rights of whatever kind or nature are retained and held by the said W. A. Wilkins to the same extent as though this deed had-not been given.
“And I, Willie A. Wilkins, wife of the said W. A. Wilkins, for and in consideration of said sum of money, do hereby release and relinquish unto the said Maurice Owen Wilkins, and to his children all my right of dower and homestead in and to the said land.
■“Witness our hands and seals on this 16th day of Feb. 1923.”
The lower court found that the deed conveyed no interest to appellants and dismissed their complaint. Prayer of appellee, Maurice O. Wilkins, Sr., for reformation was denied. Apellants prayed an appeal and said appellee prayed a cross-appeal from that part of the decree denying reformation of the deed. However, no relief on his cross-complaint is asked here by said appellee.
Since we are not asked to reverse that part of the lower court’s decree denying reformation of the deed, it is not necessary for us to discuss in detail the testimony offered by appellee to obtain reformation. It may he said, however, that the testimony did not tend to show any such mistake in the drafting of the deed as would authorize the reformation, even if the deed reflected a sale for a valuable consideration. At most this testimony merely showed that the parties made a mistake of law— that they did not understand the legal import of the language that they employed. Such a showing, under the rule long adhered to by us, is not sufficient to entitle a party to reformation. Fullerton v. Storthz, 182 Ark. 751, 33 S. W. 2d 714.
The sole question in this case is: What estate passed under the deed set forth above?
Appellants argue that this case is controlled by our decision in the case of Kelly v. Kelly, 176 Ark. 548, 3 S. W. 2d 305, wherein we construed a will containing the following: “All the property ... I give and bequeath to my son Tom and his children.” We held in that case that “Tom” and his children were made tenants in common by this grant in the will, saying: “Primarily the term • ‘ children ’ is a word of purchase and not one of limitation, and for that reason cannot be construed as equivalent of the words ‘heir’'or ‘heirs of the body’, unless there is something in the context showing that the testator intended -to use the term in the sense of heirs.” (Emphasis supplied).
We think there was sufficient in the context of the deed under consideration here to show that W. A. Wilkins used the words “his children” as words of limitation and did not use them as words of purchase so as to constitute these children, all of whom were very young at the time, as tenants in common with their father.
The consideration of the deed was recited as being $1.00 paid by Maurice Owen Wilkins and “the love and affection which the said W. A. Wilkins has for his son, Maurice Owen Wilkins.” In the warranting clause it is recited that the grantor “will forever warrant and defend the title to said land nnto my said son, the said Maurice Owen Wilkins, and unto his children, heirs and assigns . . .” (Emphasis ours). In the paragraph of the deed by which the grantor retained the right of possession during his lifetime, it is provided that at the death of W. A. Wilkins “the said Maurice Owen Wilkins shall take possession of said lands . •. .” (Emphasis ours).
In the case of Watson v. Wolff-Goldman Realty Company, 95 Ark. 18, 128 S. W. 581, Ann. Cas. 1912A, 540, the deed under consideration was somewhat similar to the one here involved, reciting that “I, Atlas J. Dodd, for and in consideration of the natural love and affection that I have for my daughter, Martha F., and for the further sum of one dollar to be paid by the said Martha Florence, my daughter, do hereby grant, bargain and sell unto the said Martha Florence and unto her bodily heirs and assigns forever the following lands: . . . To have and to hold the same unto the said Martha Florence and unto her bodily heirs and assigns forever, . . .” In that case it was held that the deed created a life estate in the daughter, Martha F., and remainder in fee simple to her surviving children and per stirpes to the issue of such as died during the life of Martha F., the daughter.
In Dempsey v. Davis, 98 Ark. 570, 136 S. W. 975, the conveyance was to a married daughter of grantors “and her children, the natural, offspring of her body, . . . .” This was held to create (under § 735, Kirby’s Digest, § 1799, Pope’s Digest) a life estate in the grantee with remainder in fee to the heirs of her body.
In Maynard v. Henderson, 117 Ark. 24, 173 S. W. 831, Ann. Cas. 1917A, 1157, a grantor had conveyed to M. ‘1 and to her natural heirs. ’ ’ This deed was held to create a life estate in M. with fee in her son, her only bodily heir.
We conclude that when the language of this deed is considered in the light of the situation of the parties it must be held that it was not intended that this deed should vest title in appellee and his small children as- tenants in common, but that the word children was used to limit the grant to appellee and his bodily heirs, and that therefore the deed was effective to vest in appellee an estate for life with remainder in fee simple in all of his children. We think this view is in accord with the modern trend of .decisions. “The tendency of the courts is to construe a devise or a grant-to a person and her children as constituting a life estate with a remainder to the children, . . .” Annotation, 12 L. it. A. (N.S.), p. 294.
It follows that the appellants were not entitled to enforce partition of the lands during the lifetime of .appellee, and their suit for that purpose was properly dismissed. However, the finding that appellants had no interest in the land was erroneous. Accordingly, the decree of the lower court is reversed and the cause remanded with directions to set aside this erroneous finding and to dismiss appellants’ complaint for want of equity. | [
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Holt, J.
Appellee, Ted McDaniel, brought this action against Ira Minton (appellant) to recover damages for an alleged breach of a contract for the sale of cotton.
He alleged in effect that he entered into an oral contract May 14,1946, with appellant whereby appellant sold him twenty-four bales of low grade cotton at eighteen cents a pound, which he (appellee) resold to Little Rock brokers; that appellant failed to live up to the contract and refused to surrender possession of the cotton to him; that he, appellee, “made every effort to buy the cotton at the price defendant (appellant) had agreed to sell it to him, but due to an advance in the cotton market the plaintiff was unable to purchase the cotton at that price and was forced to pay $35.25 extra for each of the twenty-four bales he had sold the brokers in Little Rock.” That as-a result he was damaged in the sum of $846 on account of appellant’s failure to live up to the contract.
Appellant interposed a general denial and affirmatively pleaded the Statute of Frauds as a defense.
From a jury’s verdict in the amount of $846 in favor of appellee comes this appeal.
Appellant admitted that he sold not a part, but all of the twenty-four bales of cotton involved here to appellee on an oral contract at eighteen cents per pound, but contends that he never made such delivery of any part of the cotton to appellee as would take the contract of purchase out of the Statute of Frauds (§ 6061 of Pope’s Digest), and therefore that the contract was unenforcible. This was the real issue in the case.
The facts upon which the suit was based were to the following effect. Appellee testified that he had been in the cotton business since 1929. Mr. Minton had 24 bales of low grade cotton he had been trying to buy for some weeks, so he went by to see him and told him he thought he could get eighteen cents for it and they agreed on that price; that they went out to his gin and got the samples which appellee took with him and. sold it, and came back and gave appellant instructions where to ship it. Appellee took the samples to Little Rock and sold the cotton to Rauch & Turner, and came back and told appellant, he could ship it to either Hope or Little Rock, but Hope was preferred, and he could draw on him at Arkadelphia with compress receipts attached, and appellant agreed. He waited about two weeks, but the draft didn’t come in and he stopped by to see Mr. Minton. “Q. Every time you stopped, was he still going to let you have it? A. Yes, sir, as soon as it got dry. Q. There was no argument about the contract? A. No, sir, and it goes on somewhere about, I would say 30 days, maybe six weeks, after that and I stopped by and Mr. Minton wasn’t there and one of the ladies or the boy there told me they carried a truckload — I don’t know whether it was all of it or how many bales, but they were delivering the cotton that day. Q. That was the cotton you had bought? A. Yes, sir. Q. That was at the Hope Compress according to your contract? A. Yes, sir, and a week or two after that, he still hadn’t drawn on me for the cotton and I stopped by again and Mr. Minton told me he had carried a truckload of the cotton down there — anywhere from five to ten bales— five, six or seven bales of the cotton and then they run into wet cotton and the Compress wanted to dock him so much for it, he didn’t feel like putting it in and being docked so much for it, he didn’t bring the balance down there, and I said, Mr. Minton, I would put it all under the shed, the ginning season is all over with, and I would put it inside the gin house. I told him I would put it under the shed and let it dry out. Q. Did he do that? A. Yes, sir. Q. That was the cotton you had bought? A. Yes, -it was the cotton I had bought — that is all that he had at the gin. He had delivered five or six or seven bales of it.”
Appellant testified: “Q. They did accept five or six bales? A. For me, yes, sir. Q. That was cotton that you agreed to sell to Mr. McDaniel? A. I wouldn’t be sure about it. It was some cotton recently ginned — this other cotton had been ginned two months before that. Q. You did tell Mr. McDaniel that you took five or six bales of it down there ? A. Of that load, yes, sir. Q. And you told him to wait until you got the rest and at that time you meant to let Mr. McDaniel have the cotton? A. If the compress had taken the cotton, I would have sold it to Ted. ... It was the understanding, I would either put it on the platform and get railroad bill of lading or deliver it to the compress. . . . Q. Did you have some other cotton other than the 24 bales ? A. No, sir. Q. That was all the cotton you had? A. Yes, sir. ’’
The court, in effect, correctly told the jury that if it found any part of the cotton in question had been accepted and actually received by the appellee, then appellee should recover.
On the evidence presented, we think it was for the jury to determine whether a partial delivery of the cotton had been made.
The general rule, appears well settled that there may be a delivery sufficient to take the transaction out of the Statute of Frauds even though the actual possession of all or part of the goods remain in the seller.
American Jurisprudence, Yol. 49, p. 592, % 277, states the rule as follows: “Where Goods Remain in Possession of Seller. — A transaction may be brought within the exception of the statute applicable to the acceptance and receipt of goods pursuant to an oral contract of sale, notwithstanding actual possession of the goods remains in the seller. Even though the statute specifically provides that there must be an actual receipt, it is well settled that the statute does not mean that the goods must pass into the custody of the purchaser. There may be an actual receipt notwithstanding the custody remains unchanged. It is sufficient if the custodian holds them in a different character or capacity, for instance, as agent or as bailee of the buyer. The question whether there has been a delivery and actual receipt, where the goods remain in the custody of the seller, is one of- the sufficiency of the evidence, so that varying results have been reached in particular cases involving factually such transactions as sales of horses, cattle, oxen, or sheep, hay, growing timber, lumber or wood, produce, corn, cotton, etc., stock in trade, goods in store .or warehouse, dresses and clothing left for alterations, and various miscellaneous items and chattels. In all cases the proof must be clear and unequivocal, and establish an'actual change of the relation of the parties to the property. ’ ’
In 37 O. J. S., p. 641, § 159, the author says: “The acceptance and receipt may be by the buyer or by one authorized by him. The acceptance and receipt which the statute of frauds requires must be by the buyer himself or by someone authorized to accept and receive in his behalf. When delivery is made to a third person, under the direction of the buyer that such shall be done, this is sufficient to take the case out of the statute. ’ ’
Here, according to appellee’s testimony, which the jury accepted as true, it was agreed that the cotton should be delivered to appellee at the Compress at Hope. The appellant actually carried at least five bales of cotton and unloaded it on the platform of the Compress at Hope with the admitted intention of delivering it to appellee in accordance with the contract. It was a sale on credit — no lien was claimed by appellant.
In these circumstances, the jury was justified in finding that there was therefore accomplished a partial delivery and this would satisfy the requirements of the Statute of Frauds, and whether, as claimed by appellant, after said partial delivery he went back to the Compress and repossessed and removed the cotton, did not destroy the effect-of such delivery in the circumstances here.
When we give, as we must, the strongest probative force to all the testimony and every reasonable inference deducible therefrom in favor of appellee and the jury’s verdict, we are unable to say that there was no substantial testimony to support the jury’s finding that there was accomplished a partial delivery which satisfied the requirements of the Statute of Frauds.
Finding no error,, the judgment is affirmed.
The Chief Justice concurs. | [
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Grieein Smith, Chief Justice.
The action was for damages resulting from libelous matter written by Paul and John G. Coughlin and printed in West Memphis News, a weekly publication they own. The cause was transferred from Crittenden to Craighead County on a change of venue requested by the defendants. The plaintiff, C. H. Bond (who is County Judge) asked for $10,000 to compensate actual and punitive damages. Prom a judgment for $500 in his favor the publishers have appealed.
The defendants, admitting responsibility for the editorials in question, sought threefold avoidance: (1) All reasonable efforts had been exerted to ascertain the facts, and the charges made were true. (2) Even if it could not be shown that the accusations were substantially correct, words actuall}7 used were not susceptible of the construction plaintiff placed upon them. (3) The plaintiff was not in fact injured in reputation or purse.
C. H. “Cy” Bond was a candidate in the primary election of August 1946, seeking the nomination for County Judge. He was opposed by an independent affiliated with tbe GI group. Bond’s principal support came from tbe democratic organization with wbicb be bad for many years been affiliated. It is commonly conceded that he. was titular head of the organization. As such, and by reason of his personal popularity, Bond exercised a dominant influence in county politics. He is shown by the record to be aggressive, but not in a belligerent way. It was sought to show that opponents were penalized, and that power of the “machine” was used against those who for a protracted period refused to align themselves with the group that had so long prevailed.
Influential members of the forces so recently mustered out with honorable discharges believed that through local mobilization and application of the vigor shown in their country’s behalf they could establish a new political deal- — and, as they so enthusiastically expressed the plan, restore government to the people. Opposing this experiment there were those who wholeheartedly gave to Bond and his associates the full measure of their confidence. They steadfastly denied that subversive methods were employed, or that penalties were applied where loyalty was lacking.
It necessarily followed that in circumstances like these the opposing factions would wage bitter warfare. This they did.
Two Crittenden County newspapers featured in the controversies: the “Times,” published by C. H. Brown, favoring Bond’s group, the other — West Memphis News —bearing allegiance to the GI cause. The News was purchased in March 1945 by the Coughlin Brothers. Although John G. registered for the draft at Trumann, Arkansas, yet when released from the Navy he went to Pensacola, Florida, where Paul was stationed. Together they went to West Memphis and shortly after March 8th, 1945, began publishing the News. Each of the brothers was familiar with proceedings had in Federal Court at Jonesboro wherein certain Crittenden County officers were charged with having conspired, in violation of Criminal Code Sec. 37, 18 U. S. C. A. Sec. 88, to commit an offense against the United States by depriving, under color of State law, certain persons of the rights, privileges, and immunities secured to them by the Constitution and laws of the United States. Three were convicted- and judgments against them were affirmed when reviewed by the Circuit Court of Appeals.
According to testimony given by the defendants, they had believed that the Federal Court trials had corrected the abuses charged by the United States, and were surprised to learn that some of those who had been accused were still.holding public office and exercising influence in party councils. Believing, as the publishers expressed it, that a deplorable situation required drastic treatment as an incident to reformation, they began the assault August 27 with an editorial entitled, “One Step Ahead of the ‘G’ Men”. In the text, notice was given that “We will, for instance, show how Judge Bond has corrupted the county road program to his own financial betterment”.
August 30 the headline was, “Evidence Enough to Convict Whole Gang”. It was then said: “This is for you, Judge Bond, recognized leader of the corrupt remnant of the county gang whose shameless Nazi-like violations of civil liberties of countless American citizens brought a federal investigation, trials, convictions, and resulting bad nationwide publicity and disgrace to Crittenden County and the Státe of Arkansas. . . . Now you say [Coughlin Brothers] are afraid to come out in the open. . . . Well, wait and see! These ex-soldiers who fought for their country while you and your gang got rich allowing gambling dens and brothels to operate openly, by misuse of county funds to build roads on and to your own property, by cheating ignorant Negroes, and various other grafts”.
September 13th the question was asked, “Is It MudSlinging to.Print the Truth About Politicians Who Get Rich in Office 1 ’ ’ And then: — ‘1We print the undeniable fact that Judge Bond has used county funds to build roads for his own personal benefit, and for the benefit of machine supporters. . . .”
Referring specifically to Editor Brown of the competing newspaper] the following appeared October 15: “Shame on you, Mr. Brown! ■ Your attempt to smear Dicky Sanders ■ is a disgrace to our profession. Mr. Brown, you too may lmve some explaining to do in court, once the G-I’s get their hands on the county’s records. The least you can hope for is a civil suit to recover some of the money you have been handed by the County Judge under the guise of payment for ‘printing and supplies’ ”.
October 18th it was asserted that the “Machine [is] in Last Ditch Fight”. The text supporting this headline was: “GI’s attacking forces establish beach-head. Denouncing Machine Rule, they fire point-blank at Crittenden’s high command. Your outfit, and similar gangs, have occupied the courthouse for twenty years. And what have you done for the County? You have served for your own personal betterment, growing rich from exploitation of your offices. Worse than that, you have so corrupted the ballot by your vote-stealing judges and clerks that you have reduced the citizenship of this county to a state of political peonage. Your callous disregard for the principles of democratic government has caused great numbers of our citizens to refuse to vote, knowing that their vote against your gang would not be counted. We who have fought against European dictatorship, backed b}r other liberty-loving citizens, will on Y-C Day liberate this county from the shackles of Cy Bondage”.
John G. Coughlin, when asked as a witness what he meant when he published the editorial ‘ ‘ One Step Ahead of the ‘G’ Men”, explained that the reference was not to gun-men. The intent, asserted this defendant, was to say that “they” were still ahead of the Federal investigation, or making an attempt, “so they wouldn’t be getting into another mess like they did before”.
Question on cross examination: “Now] under the heading, ‘We will, for instance, show how Judge Bond has corrupted the county road program to his own financial betterment’ — will you tell the jury what you meant by the word ‘corrupt?’” Answer: “To start with, that wasn’t the main part of the article. By the word ‘corrupt’ I meant he used it to his own advantage. I didn’t mean to say he had broken any law, or anything else, and I didn’t mean to say Judge Bond was one step ahead of the G-men because he corrupted the road program. I meant to show he had done it. Corrupt is a sort of general term. I think that when anything is being misused or mishandled it has been in a sense corrupted. . . . I meant he had used the road program wrong, and by wrong I meant he had used it to his own interest instead of the interest of everyone. For instance, if some one unfriendly to [Judge Bond] had owned Marland Swamp he wouldn’t have seen any great necessity for building the roads. . . . [What I meant was] that as a county official he used his influence to see that roads were put where they would enhance the value of his land, and he did it”. There was the later explanation that “I did not say Judge Bond violated the law: I said he did something wrong”.
•Regarding the publication of August 30th in which it was asserted enough of evidence was at hand “to convict the whole gang”, the witness said he was referring to a conviction in the eyes of the' public. There was no intent to allege the commission of a crime in a legal sense.
Questioned concerning the editorial, “This is for you, Judge Bond — recognized leader of the corrupt remnant of the county gang”, Coughlin answered that he meant it. By the word “corrupt” he intended to say to the public that there were gambling places, brothels and bootlegging in the county. These things, thought the witness, were corrupt “in the worst meaning, and as leader of the gang doing it. I didn’t say he was doing it at all”. Pursuing the same line of interrogation, the question was asked: “You did mean to include Judge Bond in that gang?” Answer: “I have never said Judge Bond got any rake-off of any gambling places: I said he associated with, people who did. I didn’t say he did it at all — that he took anything”.
When asked about the salutation, “This is for you, Judge Bond”, and the subsequent charge that “you and your gang got rich allowing [the law to be violated and by] cheating ignorant Negroes, and various other grafts”, the defendant replied, “I was not saying Judge Bond cheated anybody”.
Finally, Coughlin was asked what his meaning was in asserting Jhat Bond’s “outfit and similar gangs” had served officially for twenty years, “growing rich from exploitation of their offices, . . . [and] worse than that, you have so corrupted the ballot by your vote-stealing judges and clerks, . . . ” etc. The answer was: “I meant that in a machine county — especially in Crittenden county — an election is. determined by the judges and clerks. ... I did not refer to Judge- Bond especially, but the machine had been violating the State law in doing it”.
Coughlin first said he was referring to the “machine” when the pledge was publicly made to liberate the county from the shackles of Bondage”. He then said C. IT. Bond was not being “especially” referred to. When a direct yes or no answer was demanded the witness denied that the plaintiff was intended or that the reference was to him. The term was used merely as a rallying slogan.
The evidence as abstracted covers 232 printed pages. Judge Bond denied that he had built roads to or near his’ own property for the purpose of improving its facilities. Much of his land was in a neighborhood almost exclusively white, as contrasted with an average colored population of eighty per cent, for the county as a whole. For this reason roads had been built to accommodate the community as a whole. There was, of course, an incidental advantage, but it accrued becáuse of necessary road improvement to which the neighborhood was entitled. Other witnesses testified that dirt roads in various parts of the County were impassable during winter months and that work was' neglected because improvements would benefit Judge Bond’s political enemies.
There was testimony that election boxes had been “stuffed” by the addition of ballots on behalf of registrants who were not present. Other irregularities were said to have occurred, but appellee was not connected with these transactions by any testimony. Witnesses favorable to Judge Bond thought his administration of road funds and distribution of betterments had been appropriate. Their summations were highly commendatory.
In their brief appellants seek refuge in their construction of the language used in the several publications, insisting that it does not, by any fair inference, constitute libelous castigation or accusation. There is no charge that Bond committed a crime. On the contrary, they contend, the assertion that Bond “corrupted the county road program to his own financial betterment” is merely a statement that he “corrupted, or used, the county road program to his own financial betterment”. The assertion that Bond was the recognized leader “of the corrupt remnant of the county gang whose shameless Nazi-like violations of civil liberties ’ ’. brought on a Federal investigation and criminal convictions, was not actionable, it is insisted, “for the reason that it would constitute no crime or misdemeanor for Judge Bond to be a recognized leader of the remnant of that gang, [for] it is not alleged in said article that Judge Bond had anything to do with the gang”. These expressions are fairly-representative of others dealing with the extenuating attitude taken by appellants.
Mr. Justice Hart, when writing the Court’s opinion in Simonson v. Lovewell, 118 Ark. 81, 175 S. W. 407, said that matter published by Simonson in the Luxora Commonwealth of March 19, 1910, was actionable per se. In an article advocating the candidacy of. C. B. Hall for Sheriff of Mississippi County, Simonson attacked Hall’s opponent, John A. Lovewell, who had formerly served as Sheriff. Simonson said that Lovewell “has proven his utter inefficiency and unworthiness and has abused and forfeited every right he may have had to the support, confidence and respect of the people. . . . Lovewell is the worst retarding influence we have. . . . The most [his] supporters seem to be able to say for him is that he saved the poor people from [drainage] improvements and that he has been their friend, and How? By squandering and appropriating to his own use the thousands of dollars of the people’s money that should have been turned into the treasury of the county. . . . In the case of the County vs. Lovewell, just tried in the Chancery Court, Lovewell made no defense that he had appropriated the county’s funds as charged, but that he was saved from prosecution by the three years’ statute of limitation and the Judge held only that . . . time was a bar to the prosecution. . . . The confidence man always poses as your friend and always will while getting his graft. ... It would be far more pleasant and infinitely to the credit of the county if such records as this had never been made, though such records and their maker, who is entitled to no screening or support, should be brought into the light and given their due, then buried forever, and newer and better men and records supplant them at the earliest opportunity”.
Judge Hart said: “The article.was libelous per se. Patton v. Cruce, 72 Ark. 421, 81 S. W. 380, 65 L. R. A. 937, 105 Am. St. Rep. 46; Murray v. Galbraith, 86 Ark. 50, 109 S. W. 1011, 126 Am. St. Rep. 1078; Murray v. Galbraith, 95 Ark. 199, 128 S. W. 1047. ...”
In the Patton-Cruce case the defendant published the following: “John Patton, who is mayor, announces in last week’s Headlight that he will in the near future launch a first-class weekly newspaper in this city, to fill ‘the long felt want’, and that it will have a larger circulation than the ‘Weeldy Bunghole Sucker’ . . . He does not state whether or not he will backbite his friends and lay down with his enemies, or even whether he will tell secrets out of the lodge. There are many things he left off his prospectus that the public is intensely interested in, but then he is a rather peculiar individual, who can change friends and issues upon very short order”.
It was alleged in the complaint that by this publication the defendant intended to falsely accuse Patton of being a secret slanderer and scandal monger, with betraying lodge secrets, and betraying his friends. In the Court’s opinion Mr. Justice Riddick said that “This, if proved, was clearly libelous per se.”
In the second Murray-Galbraith case (95 Ark. 199, 128 S. W. 10471 it was held that one who publishes a false article calling into question the character of another for probity will not be liable for exemplary damages, but only for compensatory damages, unless there 'was ill will against the person assailed or the publication indicated a wicked and abandoned disposition on the publisher’s part; nor may one who publishes a false article impeaching another’s integrity prove the circumstances for the purpose of mitigating or reducing the amount of compensatory damages, as the law implies malice from the publication of a libel and gives the party injured redress by way of compensation”.
The statement by a mill manager that one from whom lumber was being purchased was “short-stacking in order to get more scale”, or that he was “stealing lumber scale”, justified the jury in finding that the defendant was entitled to compensatory damages. Joslyn Manufacturing & Supply Co. v. White, 211 Ark. 362, 200 S. W. 2d 789.
In the instant case the jury did not allow exemplary damages. It is apparent that the triers of fact found, generally, that the charges were not sustained, but that they were made in the heat of a partisan or political campaign, and in circumstances where the parties directly concerned are apt to magnify and treat as important things that might otherwise be disregarded. It is a time when charges and countercharges find easy expression; when rival factions accept uncertain rumor as confirmation strong as proof of holy writ. But, irrespective of the impulse to accuse, under our system of government there are excesses beyond which one may not go without assuming the responsibility of compensation.
It was for the jury to say whether the publishers in asserting they had evidence enough to convict the “whole gang”, were referring to criminal conviction or a conviction at the bar of public opinion. Likewise, when they denominated Judge Bond as leader of the corrupt remnant of the county gang — a gang that had brought federal investigations, convictions, wide publicity, and disgrace. to the County and State, the ordinary implications could not be brushed aside with an explanation that no offense was intended. There was the further charge that “You and your gang got rich allowing gambling dens and brothels to operate openly”. The implication is that in “allowing” the law violations complained of, these leaders were corrupted, for it is said that they got rich. Cheating, ordinarily, is a crime. When the defendants publicly proclaimed that the “gang” had cheated ignorant Negroes, and' had [engaged in] various other grafts — in consequence of which they had grown rich — no construction other than a charge of dishonesty could attach, and the words were actionable per se. Their truth was the only defense. The jury chose to believe that the defamatory phrases did not find support in the conduct established.
Appellants think they were prejudiced by the Court’s refusal to give their requested Instructions Nos. 3 and 4. No. 3 would have restricted the jury to consideration of editorials in which Judge Bond was directly named. The Court properly rejected it. Implications — that is, whether Judge Bond was or was not the object of attack — were for the jury’s determination. This is true because it is a question of fact whether a reasonable person, while reading the publications, would have been justified in believing Judge Bond was being accused.
Requested Instruction No. 4 would have told the jury to find for the defendants if it determined that the editorial of August. 27th did not misstate conditions when it asserted Judge Bond' had corrupted the county road program to his own financial betterment. Effect would have been to peremptorily instruct as to the other charges, and confine the jury’s consideration to the single edi torial. This, of course, could not be done, since even stronger language was found in some of the other publications.
The verdict was signed by ten of the jurors, and it expressly found that the award was for compensation.
The record is free of prejudicial errors, and the judgment must be affirmed. It is so ordered.
Included in the complaint and named as defendants were West Memphis News, Inc., Arkansas Publishing Company, Inc., and the two Coughlins. [Records in the office of the Secretary of State do not disclose an Arkansas Publishing Company incorporation. Charter of West Memphis News was cancelled April 5, 1946],
See Culp v. United States, 131 Fed. 2d 93: also Milsaps v. Straus, 208 Ark. 265, 185 S. W. 2d 933. | [
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Smith, J.
This suit was filed by the State, ex rel. the Prosecuting Attorney of the second judicial circuit of which Craighead county is a part, against certain dairymen operating dairies in that county, to enforce compliance with a certain regulation of the State Board of Health requiring inspection of cattle to ascertain whether they were free from, or infected with, a disease popularly known as Bang’s disease. It was alleged that the dairymen persistently refused to comply with the inspection regulations and it was prayed that they be enjoined and restrained from selling and distributing their rmlk products until the tests required by the regulations of the Board of Health had been complied with.
In answer to a motion that a bill of particulars be filed the following response was filed:
“Comes the plaintiff herein, for his response to the defendant’s motion for Bill of Particulars herein states:
“First: That the rules and regulations made inquiry of by the defendant and under which the plaintiff is basing his allegation on as set out in his complaint is found in Division A'of section 2 (Dairies) of Chapter 10 as found in rules and regulations of the State Board of Health of Arkansas, issued for the year of 1940. Said section ma3^ be found on page 67 of said rules and regulations.
“Second: The term reactor as used in the plaintiff’s petition is meant that the animal or cow which shows positive from test made by a veterinarian accredited by the U. S. Bureau of Animal Industry and approved by the State Livestock Sanitary Board, for Bang’s disease. Such reactors should be removed from the herd, which in reality means that the milk produced from such animals (reactors) will not be made available to the public either b3^ sale or otherwise. It is not the purpose of this petition to determine the final disposition of such cattle when removed from the herd.
“Third: The plaintiff denies, that any representative of the State Health Department stated that such animals declared as reactors would be slaughtered within fifteen (15) days.”
A voluminous answer was filed. It -was denied by the defendant dairymen that the milk that they were selling was a great danger or any danger to the public, and they denied that they are selling milk in violation of any valid law of the state.
It was answered that it was required that the cattle be inspected under regulations which require the slaughter of all cattle reacting to the blood agglutination test, within fifteen days, and further that reactors are required to be branded in a manner which destroys from fifty to sixty per cent of their value.
It was further answered that the tests required by the regulations with which they have not complied are so inaccurate for diagnostic purpose that the requirement for slaughter based upon such tests deprives the defendants of their property without due process of law. That a vaccine has been developed which is proving satisfactory. in the elimination of Bang’s disease, and that the Bureau of Animal Industry of the United States Department of Agriculture now recommends three different methods of control as follows: (1) Test and slaughter, (2) Test and slaughter with calfhood vaccination, and (3) Test and retention of reactors with calf-hood vaccination.
It was further answered that competent research indicates that in most animals Bang’s disease is curable, either by the animal developing a natural immunity or by an immunity created by vaccine; that undulant fever is not a serious health problem and that the chances of contracting it from the use of raw milk are highly improbable.
It was further answered that pursuant to paragraph 15 of § 2, of Act 114 of 1941, the City of Jonesboro (in which city only the defendants sell their milk) has in force a standard milk ordinance approved by the Board of Health, which is being enforced by and through the Milk Inspector and City Health Officer, and that the exclusive right of control and enforcement is vested in the city authorities, hence petitioner is without right to maintain this $uit; that the existence of any disease in humans traceable to the milk supply of the City of Jonesboro is so rare as to be unrecognizable and the public health is adequately safeguarded by the activities of the city authorities. The paragraph of % 2 referred to reads as follows:
“Provided, that nothing in this Act shall be construed to deprive any city of the First or Second Class of any of its police powers now or hereafter granted. Nothing in this section or in any other section of this Act shall be construed as authorizing or directing in any fashion the State Board of Health to assume, to take over, or to discharge exclusively any of the functions and duties (or responsibilities) now, or hereafter customarily performed by Cities of the First or Second Class, operating under and enforcing an ordinance approved by the State Health Department dealing in dairy or other Sanitary Milk Inspection Work or the bacteriological sampling of milk.
“And, provided further that the duties discharged under the terms of this Act shall be discharged in so far' as is practicable and reasonable in cooperation with the municipal authorities whereever such authorities exist.”
It was further answered that criminal informations have been filed, charging the defendants with violation of rules and regulations of the State Health Department, •and that by this action the State seeks to enjoin what it claims to be a criminal act, and for this reason the court is without jurisdiction to grant relief by injunction.
It was further answered that: “Throughout the United States the vaccination method of control has, and now is meeting the increased approval of state and federal authorities and does not impose upon the herd owners the economic loss incident to the requirement for slaughter of animals that are in fact infected with Bang’s disease. These defendants are ready and willing to enter into such a method of control as is suggested by No. 3 hereinabove pleaded (that is, test and retention of reactors with calfhood vaccination) with the view to gradual elimination of Bang’s disease, without the great economic loss involved by the slaughter of reactors. These defendants state that if Bang’s disease is prevalent to anything like the extent suggested by, and contended for by representatives of the State' of Arkansas, compliance with the applicable regulations for the slaughter' of reactors would drive them out of business and' eliminate-a useful and necessary source of food supply to the City of Jonesboro. To base a requirement for slaughter upon any method of diagnosis so inaccurate as the blood agglutination test is wholly unjustified and contrary to law. ’ ’
The testimony took a wide range and many divergent opinions were expressed, and there were offered in evidence numerous newspaper and magazine articles written by persons who professed to have expert knowledge on the cause, effect and treatment of Bang’s disease. Much of this testimony relates to the question, whether undulant fever is commonly contracted by humans being by drinking milk containing the germ of the disease, such germs being transmitted from cows suffering from Bang’s disease. "Without reviewing this testimony, or passing upon the question of its preponderance, it may be said that testimony was given by witnesses highly intelligent, and of wide experience, as to the cause of undulant fever, and of the proper methods of preventing its spread, to the effect that undulant fever could be, and is, contracted by the consumption of milk produced from cows suffering from Bang’s disease. It may not therefore be said that the State Board of Health acted arbitrarily in the adoption of regulations designed and intended to prevent the contraction of a disease by human beings.
As has been said, the Bureau of Animal Industry now recommends three different methods for the control of Bang’s disease, and there is much conflicting testimony as to the relative merits of these methods. The court found all questions of fact in favor of the State, and directed that the defendant owners submit their cows to a proper inspection, but held that an inspection under regulations which required or permitted the slaughter of reactors was unreasonable and arbitrary and therefore void and that the regulations of the State Board of Health conferred this power of slaughter, and that the dairymen would not be required to submit their cows to inspection until the regulations were so amended as to divest the inspectors of this power.
The court held, however, that the provision for slaughter or destruction is separable from other provision of the regulations and that when the provision for slaughter is eliminated, the dairymen could and would be prohibited from selling their milk and milk products until they had complied with the amended regulations. Prom this decree the State has appealed and the dairymen have prosecuted a cross appeal.
The State Board of Health disclaims having the intention to have slaughtered any cows, even those definitely found to be reactors. The applicable regulations found in the printed Rules and Regulations of the State Board of Health provide in § 2, of Chapter 10 of these regulations as follows:
“All milk and milk products consumed raw shall be from herds or additions thereto which have been found free from Bang’s disease, as shown by blood serum test for agglutinins against Brucella abortus made in a laboratory approved by the State Health Officer. All such herds shall be retested at least every twelve months and all reactors removed from the herd. A certificate identifying each animal by number, and signed by the laboratory making the test, shall be evidence 'of the above test.
‘ ‘ Cows which show an extensive or entire induration of one or more quarters of the udder upon physical examination, whether secreting abnormal milk or not, shall be permanently excluded from the milking herd. Cows giving bloody, stringy or otherwise abnormal milk, but with only slight induration of the udder shall be excluded from the herd and their milk shall be discarded until reexamination shows that the milk has become normal. ’ ’
Evidently the regulation quoted was confused with § 3 of the Arkansas Livestock Sanitary Board rules. .
We find it unnecessary to determine whether a regulation requiring or permitting the slaughter of reactors would be void as unreasonable, for the reason that we find no such rule of the State Board of Health. The court was therefore in error in requiring the elimination of this rule as a condition precedent for requiring the defendants to submit their cows for inspection. Jurisdiction of the cause was retained for the purpose of determining whether or not the demand for inspection and test authorized under the decree has been complied with by the defendants, and they have appealed from that order for the reasons herein stated.
The regulations here under review contemplate that if the blood test indicates that a cow is a reactor, it shall be segregated from its herd and it shall-be so branded as to indicate that it is a reactor and appellees say this is not the proper method to control the disease, and that vaccination is the only reasonable and logical method of controlling the disease.
Much testimony was offered supporting and contradicting this contention, but it is not our function to pass upon the relative merits and efficacy of the different methods of controlling Bang’s disease. Segregation of the infected animal is one of the methods recommended by the Bureau of Animal Industry of the United States Dept, of Agriculture.
Cases are almost beyond numbering which deal with these questions many of which .are cited in the annotated cases found in 18 A. L. R. 219; 80 A. L. R. 1212 and 1225; 130 A. L. R. 606. The cases therein cited are to the general effect that the Legislature may constitutionally confer on boards of health the power to enact sanitary orders such as, to prevent the sale of adulterated or contaminated milk, which order shall have the force of laws within the district over which their jurisdiction extends. And the annotated cases above cited are also to the effect that if the rules and regulations adopted for the protection of the public health are not arbitrary and unreasonable, the courts will not inquire whether some other method might not have been adopted which is more efficacious. Otherwise stated the courts consistently hold that the relative merits of different methods to be employed will be left to the Legislature or to the administrative tribunals created by the Legislature and that the method approved will be sustained by the court as long as it is an approved method, even though other methods are more generally employed. All of which is to say that the courts will not substitute their judgment for that of the administrative boards when the action of the boards is not arbitrary or unreasonable.
The concession is made by appellees, as indeed it must be, that the Legislature may delegate authority to a state board to promulgate reasonable regulations designed to protect the public health. If the subject were in doubt notwithstanding the infinite number of cases so holding, our own cases would be conclusive of the existence of this power. Brazil v. State, 134 Ark. 420, 204 S. W. 622; Allen v. Ingalls, 182 Ark. 991, 33 S. W. 2d 1099; Davis v. State, 126 Ark. 260, 190 S. W. 436.
We find and hold that the regulation that reactors be segregated and be so branded as to indicate that they were found to be reactors is not an unreasonable or arbitrary rule.
The argument that the granting of an injunction restraining a criminal act is not. properly within the scope of equitable jurisdiction is answered by the opinion in the recent case of State ex rel. Williams v. Garston, 208 Ark. 703, 187 S. W. 2d 327, where, to quote a headnote, it was held “That the act constituting a nuisance is also a crime does not deprive a court of equity of jurisdiction to abate the nuisance.” The leading case of People ex rel. Kerner v. Hulls, 355 Ill. 412, 189 N. E. 346, was one in which the state’s attorney sought to restrain the owner of certain cattle from interfering with the agent of the Department of Agriculture in'maldng a tuberculin test of such cattle. In granting the relief prayed the Supreme Court of Illinois said that while as a general rule equity will not take jurisdiction to enjoin threatened illegal acts which constitute a breach of the criminal law, yet when the acts complained of constitute a nuisance, or danger to the public health, or the public welfare, and a more complete remedy is afforded by injunction than by criminal proceedings, a court of equity will on request of the duly constituted authority grant relief by injunction. Evidently the impending prosecution has been held ineffective to compel the dairymen to submit their cows to the required inspection, as they are still refusing to submit to the inspection. An injunction restraining them from selling their milk in Jonesboro, or elsewhere, will no doubt prove more effective.
Upon the contention that paragraph 15 of § 2 of Act 114 of 1941 has deprived the State Board of Health of its power to make regulations relating to the sale of milk in cities of the first and second class, but little needs to be said. This paragraph has been quoted above.
We think it apparent that the purpose and proper construction of this legislation is that it supplements and does not supplant the efforts of the State Board of Health to protect the public health and the State Board may continue to perform its functions, but not to the exclusion of the action of the officers of the City of Jonesboro.
Upon the whole case we ponclude that the regulations of the State Board of Health are reasonable and a valid exercise of the state’s police power, and that a proper method to enforce them is to prevent the sale of milk produced in their violation. The decree of the court below will therefore be reversed and the cause will be remanded with directions to enjoin appellees from selling milk in Jonesboro, or elsewhere, until they have complied with these regulations. | [
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Robins, J.
This is an appeal from judgment of the circuit court refusing appellants’ prayer for quashing of two judgments (one against each of appellants) rendered by a justice of the peace in replevin suits.
Separate certiorari proceedings were instituted, but as the grounds of attack on the magistrate’s judgments were the same in each case the proceedings were without objection consolidated in the circuit court for trial.
Botlnof the suits before the justice of the peace were instituted by appellee, Rush Clark, to recover certain hogs, or their value. In one case there was a judgment against appellant, William Price, and the sureties on his bond for $75, and in the other a judgment against Mrs. Homer Mitchell and her sureties for $40.
It is first urged that the judgments of the justice of the peace were void because the magistrate had failed to provide himself with an appropriate docket, in compliance with § 8370, Pope’s Digest. While it is eminently proper that every justice of the peace have a regularly bound book in which to record his proceedings, the statute does not make the possession of such a docket a jurisdictional requirement. The justice of the peace testified that he entered the judgments complained of on an ordinary tablet which he used for that purpose. We cannot say that the judgments were void for that reason.
It is nest argued that there were no affidavits for delivery filed. The transcript before us shows that an affidavit for delivery was made in each case by the plaintiff before the justice of the peace on September 30,1946.
It is finally urged that no process was served on appellants in the replevin suits. The transcript of docket entries, which the justice of the peace introduced in evidence at the trial below, reflected that service- of process was had. Furthermore, it is not disputed that, after the suits had been filed, there was an agreement by appellants as to continuance in each case. Such agreement, we have held, amounts to an appearance, and constitutes a waiver of service of process. St. Louis Iron Mountain & Southern Railway Company v. Barnes, 35 Ark. 95; Metropolitan Life Insurance Company v. Baker, 197 Ark. 61, 122 S. W. 2d 951.
Appellants objected at the trial in circuit court that copies of the docket entries, instead of the original tablet in which they were entered, were produced; but in their petitions for certiorari appellants did not ask for this record — they prayed only that a transcript tliéreof be filed. Nor did they seek to have this informal docket brought in by subpoena duces tecum. Appellants therefore may not complain as to this.
No error appearing, the judgment of the lower court is affirmed. | [
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Smith, J.
Appellant, Mrs. Tucker, seeks hy this suit to have canceled a quit claim deed executed by her on May 28, 1945, to appellee, Mrs. Davis, on the ground that she was mentally incapacitated on account of illness, to execute the deed at the time of its execution. Her suit was dismissed as being without equity, and from that decree is this appeal.
There are many conflicts in the testimony, but that credited by the chancellor, as reflected by the decree rendered, was to the following effect. The property in question, a lot in the City of Hot Springs, referred to as the Belding property, was conveyed by deed, dated June 14,1940, from the widow and heirs at law of Oscar Davis, to Mrs. Davis, appellee, and R. G. Tucker, for the recited consideration of $3,600 cash in hand paid. Notwithstanding some conflict in the testimony we think the fact was clearly established that the entire consideration was paid by Mrs. Davis, The nature and extent of Tucker’s interest, and the manner of its acquisition will presently be stated.
On June 28,1940, for the recited consideration of $10, Mrs. Davis executed a quit claim deed to Tucker for the property, in which it was recited that “This conveyance is executed with the reservation to the grantor herein of a life estate in and to said property, coupled with the right to the grantor to occupy the residence found on said property so long as she survives.” The effect of these two conveyances was to put the record title to the lot in Tucker, subject to the reserved estate.
Tucker had married Mrs. Davis’ niece, appellant here, and had built a cottage at Kirby, Arkansas. Mrs. Davis made certain contributions to the erection of this building, the amount of which is disputed, but, we think unimportant, and she had lived with the Tuckers in this house as a member of the family for about seven months. Mrs. Davis bought a home in Hot Springs, referred to as the Oaklawn property, and established her home there, and the Tuckers lived there with Mrs. Davis for about two years, when Mrs. Davis bought the property here in question, which was conveyed to her and Tucker by the deed hereinbefore referred to. Mrs. Davis testified that she bought and paid for this property, and had the deed made to herself and Tucker pursuant to the following understanding. The Tuckers were to live in the house with her, and agreed to take care of her. Mrs. Davis is of advanced age and apparently Mrs. Tucker was her nearest relative. At first they all lived together as a single family, but the building was converted into a duplex and thereafter separate households were maintained. The testimony is conflicting as to how and in what proportion the household expenses were paid, but is not reviewed as we do not regard it as being of controlling importance.
Tucker and his wife became estranged, and were divorced and a property settlement was affected, the details of which are riot clear, but eventuated in Tucker executing to Mrs. Tucker a quit claim deed dated April 10, 1945, conveying the property in question. This deed contained the recital that “it being understood that Mollie Davis has a life estate in one-half of the above described property, and that this deed is made subject to that life estate.” Mrs. Davis was advised of this deed and apparently consented to its execution. Mrs. Davis and Mrs. Tucker continued to live in the house, and are even now living in it apparently in harmony, until Mrs. Tucker’s son was discharged from the army and returned home, after the execution of the deed here sought to be canceled. After returning home Mrs. Tucker’s son demanded that Mrs. Davis reconvey the property to his mother and when that demand was refused this suit was brought to cancel the deed.
It is insisted, and we think established by the testimony, that this son is responsible for this litigation, as Mrs. Tucker’s right to occupy the home had not been questioned and she is now living in it apparently without objection. Mrs. Davis testified that Mrs. Tucker never questioned the fact that she, Mrs. Davis, was in fact the owner of the property prior to the return of Mrs. Tucker’s son, as she had paid the entire consideration of $3,600 for the lot with her own money.
Mrs. Davis testified that when she consented that the deed from the Oscar Davis heirs be made to herself and Mr. Tucker jointly, Mr. Tucker agreed that he would sell his house at Kirby and apply the proceeds of the sale to the part payment of the property here in question referred to as the Belding property, but that he did not apply any of the proceeds of the sale of his property to the agreed purpose. She further testified that in part consideration of having the deed to the Belding property made to her and Tucker jointly, Tucker agreed to take care of her and the-property, but failed to perform his agreement. Mrs. Davis told her niece that as Mr. Tucker “had deserted them” the property should be restored to her, and that Mrs. Tucker acquiesced in this view as the proper thing to do. This deed from Mrs. Tucker to Mrs. Davis recited that it was executed “for and in consideration of the sum of one dollar and other considerations.” The testimony in regard to the one dollar is to the effect Mrs. Davis tendered .Mrs. Tncker a dollar, which Mrs. Tucker refused to accept, and Mrs. Davis then put the dollar in Mrs. Tucker’s handbag and it was never returned ; but the dollar was not the only consideration.
The contention that Mrs. Tucker lacked the capacity to execute the deed is very conflicting, but is supported by the testimony of her son and his wife, and her pastor and his wife, but is opposed' by that of two ladies, neighbors and friends of Mrs. Tucker who had known Mrs. Tucker for a number of years, and at the time of the execution of the deed, and according to their testimony Mrs. Tucker was in full possession of her mental faculties, although she was a sick woman, about the time the deed was executed.
There are certain circumstances which strongly support the Chancellor’s finding that Mrs. Tucker was not mentally incompetent when she made the deed. One of these is that the suit was not filed until August 30', 1946, which was a year and three months after the execution of the deed, and was aftér the return of Mrs. Tucker’s son, until which time Mrs. Tucker made no complaint about the deed. Mrs. Tucker’s testimony as. to the involved transaction relating to this title shows a clear comprehension of the details, although she testified that she did not realize the effect of her deed. However, she did not deny that she knew she was signing and had signed a deed. The notary who took the acknowledgment testified that before doing so he asked Mrs. Tucker if she knew what she was signing, and she stated that she. did, and that while she was sick and in bed he had no reason to believe that she was not fully'aware of what she was doing. Mrs. Tucker testified that at the time she signed the deed she was under the medical care of a Dr. Benedict, and after all the testimony had been taken the request was made that the submission be postponed until this doctor’s testimony was taken, and the submission was postponed for that purpose. It is said, and not denied, that the doctor’s deposition was taken, but it was not offered in evidence.
It was not shown that Mrs. Davis threatened to file suit to cancel the deed whereby Mr. Tucker claimed title, on account of his failure to apply the proceeds of the sale of his Kirby property to the part payment of the purchase price of the lot paid the widow and heirs of Oscar Davis, or because of his failure to take care of Mrs. Davis, but it clearly appears that he did not perform his agreement in either respect. It was for these reasons that Mrs. Davis told her niece that the property should be reconveyed to her. Mrs. Davis had bought the property and paid for it, and for a number of years had provided shelter for the Tuckers and Mrs. Tucker continues to reside with Mrs. Davis.
The deed from Mrs. Tucker to Mrs. Davis recited that it was executed “for and in consideration of one dollar and other considerations” and when asked what the other considerations were, Mrs. Davis answered “it just means that she had a home to stay in.” This being true Mrs. Tucker has the right to occupy this property in conjunction with Mrs. Davis, not as a matter of favor, but of contractual right. '
The deed from Mrs. Davis to Tucker recites that “This conveyance is executed with the reservation to the grantor herein of a life estate in and to said property, coupled with the right of the grantor to occupy the residence found on said property, so long as she survives.”
Mrs. Davis therefore had the right of occupancy before Mrs; Tucker executed the deed here sought to be canceled, as long as she lived, so that whatever the state of Mrs. Tucker’s health may have been when-the deed from her was executed, it cannot be said that the deed was without a valid and legally sufficient consideration.
The decree will therefore be modified to' the extent of recognizing Mrs. Tucker’s right to joint personal occupancy, and the cause will be remanded for that purpose. An error was made in the description of the lot by beginning the description by metes and bounds at the northeast corner of the lot, when the northwest corner-should have been the point of beginning of this description. It is not questioned that this error was, made, and[ as it was obvious that the deed was intended to describe the Belding property, the decree ordered the description to be corrected accordingly. There was no error in doing this.
The effect of the views here expressed is that Mrs. Davis has the title to this lot and the decree so adjudging is affirmed, but she has this title subject to the right of joint personal occupancy by Mrs. Tucker.
The decree from which is this appeal recites that all costs have been paid, and for that reason no judgment for costs was awarded and that holding will be affirmed. The costs of the appeal will be divided equally between appellant and appellee. | [
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McHaney, Justice.
Piney Grove School Dist. No. 17 is a large rural school district in Hempstead county and appellants are electors residing therein. On September 14,1945, a petition was filed.with the Hempstead County Board of Education signed by Otto Sisson and other electors of said district, praying that said Board call a special election therein to determine the question of whether said district should be dissolved and its territory annexed in part to Hope 'Special School District No. 1-A, ¿nd in part to Blevins School District No. 2, said petition particularly describing the parts of said territory to be so annexed. The latter two districts are the appellees here.
The County Board heard the petition and ordered the election held on October 4, 1945. The election was held in Piney Grove as ordered and the results certified to the County Court to cast up the returns. The court found that a majority had voted against dissolution and annexation. An appeal was taken to the County Board and after a hearing it was determined by said Board that a majority had voted in favor of dissolution and annexations, and, based on this finding and resolutions of acceptance filed by the boards of directors of appellee districts, the County Board entered an order dissolving Piney Grove and annexing its- territory to appellee districts as prayed. Prom this order an appeal was taken to the Circuit Court, where, on October 11, 1946, the court held the order of the County Board void on the ground that no petitions for elections and no elections held in the two annexing districts, appellees. No appeal was taken from the judgment of the Circuit Court.
While said appeal was pending in the Circuit Court, and, on or about May '22, 1946, petitions were filed by appellee districts with the County Board praying that an election be called in each district to determine whether the electors in each district favored the annexation of. part of Piney Grove to it. The County Board found the petitions to be sufficient and ordered an election to be held in each district on June 22, 1946. The elections were held as ordered, returns made to said Board and it found that a majority favored annexation, and, on October 22, 1946, entered an order dissolving Piney Grove and annexing its territory as prayed.' An appeal was taken to the Circuit Court, where, on April 11, 1947, the order of the County Board was affirmed. This appeal followed.
The facts as stated above were stipulated. The election in the Piney Grove District was held on October 4, 1945. Elections were held in each of the appellee districts on June 22,1946. It is the contention of appellants that the elections in all three districts would have to be called and held at the same time under the provisions of § 11482 of Pope’s Digest, which provides: “The county court, upon a petition of ten per cent of the qualified electors in the territory affected, may submit to the electors at the annual election or at a special election the question of a change of boundaries, or the formation of a new district, or the dissolution of a district and the annexation of the territory thereof to another district, as provided for in § 11477, and shall canvass and publish the results of such election of the annual election. Any contests of such elections may be made within the time herein provided for contesting school' elections, and not thereafter.” It is insisted that the words in said section “in the territory affected” necessarily includes the annexing districts as well as the district to be dissolved, that all three districts in this case constitute “the territory affected.”
In Fomby Special School District No. 26 v. Williams, 203 Ark. 235, 156 S. W. 2d 220, we held that the words “territory affected,” in § 11486 of Pope’s Digest, providing for the creation of school districts of territory in two or more counties, do not mean each district affected, that is, that it does not require the vote of a majority in each district, but a majority in the whole territory affected. In that casé we further held that §§ 11481 and 11482 had reference to dissolutions and consolidations, etc., of territory in a single county; that under § 11481 it could be by petitions signed by a majority in each district, or it could be by elections under § 11482. We there said: "But by § 11482 the same-thing may be done by election upon a petition signed by 10 per cent of the qualified electors ‘in the territory affected,’ but the vote at the election, if called, must be a majority in each district, as provided by § 11477.”
So, we conclude that, if the procedure, as here, was under § 11482, the elections in all the districts, "the territory affected,” would have to be held at the same time. Not having been so held the order of dissolution and consolidation is void, and the court erred in not so declaring it.
The judgment is reversed and remanded with directions to quash the order of the County Board of October 22, 1946. | [
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McHaney, Justice.
Appellant is the daughter of B. L. Lewis who died intestate in Sebastian county on October 7, 1942, and brought this action for herself and for the other heirs of said intestate, she and they being his children by his first wife. Appellee, Julia M. Lewis, is the widow of intestate, and was his second wife. The other appellee, Halton Henry is her son by her first husband.
The object of the suit was to cancel and set aside a deed executed by B. L. Lewis on May 18, 1942, conveying to his wife certain real estate in Sebastian county, on the grounds with another hereinafter mentioned, of incompetency of the grantor and fraud and undue influence of appellees. We understand appellant has abandoned these allegations as grounds for cancellation on this appeal.
The deed conveyed to appellee, the wife, certain real estate described therein by metes and bounds which was duly recorded, and which we will refer to as tract No. 1. Thereafter, more than two years after the death of B. L. Lewis, appellee Henry, with the knowledge and consent of his mother, had said deed altered and changed so as to add thereto the description of a number of lots and blocks “in the Town of Salem, Arkansas,” and one and one-eighth acres of unplotted land described by metes and bounds. The deed was then re-recorded. We understand this tract is the home place, where they were living at the time of B. L. Lewis’ death, and we will refer to it as tract No. 2.
Appellee Julia M. conveyed tract No. 1 containing 11 acres, to E. H. Richmond on October 20, 1944, for a consideration of $550, and on the same date conveyed tract No. 2 to her son, appellee Henry.
Appellant attacked the conveyance of tract No. 2 as being fraudulent, it having been admittedly added to the original deed without any authority. Appellees sought by cross-complaint to have the original deed reformed so as to include tract No. 2 on the ground that it was the intention of the grantor, B. L. Lewis, to convey all his real estate to his wife in the deed, of May 18, 1942, but through error or mistake of the scrivener it was omitted.
Trial resulted in a decree sustaining the conveyance as to both tracts. As to tract No. 2, the court held that the addition of said tract to the deed was of no force and effect, but did not constitute such an alteration thereof as to render it void; that the evidence sufficiently established the intent of B. L. Lewis to convey to his wife both said tracts; that both of them thought it did since his attorney was instructed to prepare said deed so as to include them; and that said attorney inadvertently omitted tract No. 2 from said deed. A decree was entered dismissing appellant’s complaint for want of equity, reforming said deed so as to include tract No. 2, and confirming the title to said tract in appellee Henry. This appeal followed.
We agree with the learned Chancellor as to tract No. 1, but disagree as to tract No. 2. We assume that the evidence was sufficiently clear, cogent and convincing to justify a reformation of the deed, that is, that B. L.Lewis intended to convey tract No. 2 to his wife, and we would sustain it if this were not a voluntary conveyance, — one without consideration except love and affection. It has long been the rule of this court, and in general, that a voluntary conveyance cannot be reformed. Wells v. Smith, 198 Ark. 480, 129 S. W. 2d 251. The former cases were there reviewed extensively and we will not repeat them here.
Appellee relies upon the exception to the rule above stated that a voluntary conveyance may be reformed where the grantee entered into possession and made valuable improvements. If we assume. that appellee, Julia M., made valuable improvements on tract No. 2 during the lifetime of her husband, there is no evidence of her possession during such time other than that she lived there with her husband. He continued in possession as long as he lived. In fact, she had no semblance of title thereto until said deed was altered about two years after his death.
The decree will be affirmed as to tract No. 1, but will be reversed as to tract No. 2 and remanded with directions to cancel the deed of Julia M. to Halton Henry, and to quiet the title in appellant and the other heirs of B. L. Lewis to tract No. 2, subject to the dower and homestead rights of Julia M. Lewis. | [
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Smith, J.
This appeal questions the constitutionality and validity of Ordinance No. 472 of the City of Blythe-ville, a city of the first class, entitled, “An Ordinance Regulating, Supervising and Controlling the Operation of Motor Vehicles Used in the Transportation of Persons for Compensation Over the Streets of Blytheville, Arkansas.” The recited purpose of the ordinance was to regulate the taxicab business in that city, and was apparently enacted under the authority of Act 213 of the 1939 session of the General Assembly. Certain sections of that act were held to be unconstitutional in the case of No. Little Rock Transportation Company v. City of North Little Rock, 207 Ark. 976, 184 S. W. 2d 52, as authorizing the passage of municipal ordinances which would stifle competition and create monopolies in the operation of the taxicab business. But it was held that as the provisions of the act were separable, the unconstitutionál provisions of the act might be stricken, and that the parts remaining were valid. These provisions held •valid authorized the imposition of an occupation tax upon that business.
Section 2 of the ordinance requires an applicant for license to pay a fee of $25 for regulation and inspection purposes. This § 2 in connection with § 3 requires the applicant to give the names of the drivers to be used by the applicant, and contemplates that an examination will be had as to the character and reputation and competency of such driver, with authority to deny license to unfit persons, with a right to a hearing on these questions before the City Council.
In opposition to this feature of the ordinance, it is insisted that while the ostensible purpose of the imposition of the $25 fee is to secure regulation and supervision, its actual purpose and effect is to raise revenue for the reason-that the fee charged bears no fair or reasonable relation to the service to be performed in that behalf.
We have frequently held that a municipality may not pass a regulatory ordinance in the exercise of its police power for the purpose of raising revenues, but that the fee for regulation must bear some fair relation to the cost of supervision and that if the fee is so disproportionate as to show an intent to raise revenue instead of securing regulation, the ordinance is void. See Shaw v. Conway, 179 Ark. 266, 15 S. W. 2d 411, and cases there cited. We think the testimony does not show that this $25 fee is imposed for revenue purposes, and is not unreasonable in view of the services performed in that behalf.
A more serious question raised on this appeal relates to the validity of § 17 of the ordinance, which reads as follows: “Every person, firm or corporation, their lessees, trustees, or receivers, operating any motor propelled vehicle for transportation of persons for compen sation over any of the streets and avenues of the City ofBlytheville, Arkansas, shall pay an annual license fee of. three hundred dollars ($300) for the first vehicle, two hundred dollars ($200) for the second vehicle, and fifty dollars ($50) for each additional vehicle operated.”
It is insisted that this section is arbitrary and discriminatory and is so excessive as to be conducive to the creation of a monopoly in the operation of the taxicab business. The appellants here who were engaged in the operation of taxicabs at the time of the passage of this ordinance, paid, under protest, the fees required by the ordinance, and seek to have returned fees in excess of $50 per cab which they were required to pay under threat of arrest if they operated without paying the license fee which the ordinance required.
It was shown that three operators have combined their operations and now operate as a single unit. One of those persons had operated three cabs, and each of the other two operated four cabs, and fees were charged those persons, under § 17 of the ordinance, as follows: $300 for one cab, $200 for a second cab, and $50 for each of the remaining cabs, while the plaintiffs were required to pay, and did pay a fee of $300 for each of the cabs operated by them.
It was alleged that it was an arbitrary discrimination, and it was prayed that the excessive fees be returned, and that the city be enjoined from hereafter demanding the fee of $300 which they are each required to pay. The relief prayed was denied, and from that decree is this appeal.
We dispose of this contention by saying that it was not shown that the ordinance had operated to create a monopoly. The plaintiffs here and others are still operating.
Act 213 of the Acts of 1939 confers the power to impose an occupation tax on the operation of taxicabs, which is of course conferred for the purpose of raising revenue, and city councils have the power to determine the amount of the tax, subject to certain limitations.
First, the tax must not be arbitrary or discriminatory, but must apply alike' to all persons in the same classification, and
Second, it must not be so excessive as to prevent one from engaging in a lawful occupation, or amount to the suppression of a business^ or occupation which is not in itself unlawful or injurious to public health or morals. Rogers v. Rogers, 174 Ark. 486, 295 S. W. 708; Helena v. Russwurm, 190 Ark. 601, 79 S. W. 2d 995.
In the case last cited, we quoted from the case of Fitzgerald v. Gates, 182 Ark. 655, 32 S. W. 2d 634, as follows: “Whether a license tax is prohibitory is primarily a legislative question. ‘AH presumptions and intendments are in favor of the validity of the tax; in other words, the mere amount of,the tax does not prove its invalidity.’ The reasonableness of an occupation tax does not depend on whether or not a hardship results in an isolated case, but instead upon the general operation of the tax in the class to which it applies. The amount of the tax is not to be measured by the profits of the business taxed, and the mere fact that the particular person taxed conducted his business at a loss does not of itself make a tax unreasonable. Cooley, Taxation, (4th Ed.) 3433.’’
Cases cited in the annotation of Vernor v. Secretary of State, Ann. Cas. 1915D, p. 128, are to the effect that there can be no gradation of fees imposed merely for police regulation, but other cases cited in the note to the text appearing in the Chapter on Automobiles, 5th, Am. Jur.. § 130, p. 582, are to the effect that in levying a tax or license fee which is a revenue measure, the impost may be graduated. Examples of distinction which may, be made are those based on horse power of the vehicle, its weight, seating capacity, etc., but whatever the distinction, the tax must apply alike to all persons who are included in the classification made.
iSome classifications are based upon the number of units employed or involved, the most common of which is the tax on chain stores, where the amount of the tax is dependent upon the number of stores in the chain. The power to levy this graduated tax was upheld by the Supreme Court of the United States in the case of State Board of Tax Commissioners v. Jackson, 283 U. S. 527, 51 S. Ct. 540, 75 L. Ed. 1248, 73 A. L. R. 1464.
Here the tax is graduated upon the basis of the number of taxis employed by each person, and the unusual feature of the ordinance is that it is graduated down, and not upward in proportion to the number of taxis operated.
It is within the power of the General Assembly to impose graduated taxes for state purposes, the most familiar examples of which are our income and inheritance tax laws, and we do not hold it is beyond the power of the General Assembly to confer such authority upon the cities of the state, but we do hold that this power has not been conferred in Act 213, supra. In fact, that power is denied.
It is provided in § 3 of Act 213,1939, that “All rates, tariffs and regulations initiated, prescribed, approved or enforced by any such municipality shall apply equally and uniformly to all taxicab operators in such municipality.”
The ordinance takes no account of the kind of taxis operated, yet it imposes a graduated tax which Act 213 does not authorize, and there is, therefore, no authority for the graduated tax which the ordinance imposes.
The decree from which is this appeal upheld the ordinance as valid, and made no finding as to what amounts, if any, taxicab operators who had paid the full amount of $300 for single cabs, should recover. It was error therefore for the town council to enact this graduated tax, and the decree will be reversed, and the cause remanded for further proceedings not inconsistent with this opinion. | [
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Holt, J.
December 15, 1945, Ernie W. Clanton and his wife conveyed to appellant, T. Z. Dees, certain timber on a forty-acre tract of land in Bradley county. Twenty acres of the land appears to have been cleared and approximately seventeen acres in timber. This timber deed was not filed for record until May 17,1946.
On June 5,1946, Dees conveyed to appellant, Carl F. Williams, and his wife, his interest in the timber and thereafter on January 30,1946, before the timber deed to Dees was recorded, the Clantons, who owned the land in question, conveyed by warranty deed to appellee, Fred Kitchell, the forty-acre tract upon which the timber sold to Dees was located. This warranty deed contained the usual warranty clause and contained no mention of timber deed, liens, or incumbrances of any kind.
The present suit was instituted by appellee, Kitchell, to enjoin appellants from cutting or removing any timber from the land in question, and for damages for all timber cut and removed.
Appellants answered with a general denial and further alleged that appellee purchased from the Clantons with full knowledge of the outstanding timber deed of the Clantons to Dees, and, therefore, was not an innocent purchaser. There was also the allegation that the warranty deed from the Clantons to Kitchell was not properly acknowledged, that the recording of said deed was unauthorized, and was no notice to appellants.
Upon a hearing, the court below entered a decree in favor of appellee, Kitchell, and this appeal followed.
Appellants say that the “real issue in this case is: ‘Was the plaintiff, Kitchell, a bona fide purchaser for value without notice?’ ” We agree that this is the real question and we think the decisive and controlling one in the case.
Whether the acknowledgment on the warranty deed from the Clantons to appellee, Kitchell, was valid or the deed recorded, we think immaterial in the circumstances here for the reason that the rule is well settled, and this court has held that “a deed delivered, passes the title as between the parties, although it is neither acknowledged nor recorded; and is good, though without date, as it takes effect from delivery.” Floyd et al. v. Ricks, 14 Ark. 286 (headnote 6) 58 Am. Dec. 374. See, also, Dawkins v. Petteys, 121 Ark. 498, 181 S. W. 901, and eases there cited.
The Clantons, who executed the warranty deed, supra, to appellee are not parties to this suit. We are concerned with whether Kitchell at the time the Clantons conveyed the land to him had notice of appellants ’ claims under their then unrecorded timber deeds, supra. This presented a question of fact which need only be established by a preponderance of the evidence, and unless we can say from the findings of the trial court that appellee, Kitchell, had not been put upon notice of appellants’ claims were against the preponderance of the testimony, we must affirm.
This rule was announced by this court in Broderick v. McRae Box Co., 138 Ark. 215, 210 S. W. 935, and the principles of law applied there are controlling here. In that case it was said: “It is true that Broderick denied that Hall told him that he had sold the timber at the time he made the contract with him for the sale of the land; but the testimony as to notice need only be established by a preponderance of the evidence. ’ ’
The evidence on the part of appellee is to the following effect: Appellee, Kitchell, purchased the forty-acre tract of land here in question for a consideration of $1,000 from the Clantons January 30, 1946, and recorded his deed February 11,1946. The improvements consisted of a small house, badly in need of repair, and a barn with the roof “rotted off.” The fences were practically all down.
All negotiations leading to his purchase from the Clantons, who lived in Detroit, were carried on by letters and by wire.
Kitchell had, at one time, lived near the property, but had only seen it one time “in four or five years” prior to his purchase. In all letters and communications from the Clantons which culminated in the warranty deed from them to Kitchell, nothing was disclosed as to outstanding timber deeds or incumbrances on the land. Kitchell, a short time before his purchase, procured a taxi in Warren and drove out to the property and he testified that he “took a view of the house and fields from the road and I could see the timber standing on the right-hand side and it all looks like timber unless you go out and look. You can see the timber standing all around the best I knew where it all laid at that time.” During this inspection trip it was raining and Kitchell testified that he went only to the house and to the lower side of the road and that he did not see where any timber had been cut and saw no logs stacked on the land. He first discovered that there had been some logs cut about three weeks or a month after he took possession.
Kitchell further testified (quoting from appellants’ brief): “I first came back to town and went in to Mr. Beasley’s, the man who is clerk, and I asked him if Mr. Clanton could make a good deed to that 40 and he wept and looked and said, yes, he could, because the bank had made Ernie Clanton a deed. He went also to see Mr. Roddey, Circuit Clerk arid Recorder, and asked him if there were any deeds of any kind against this land or any mortgages. Mr. Kitchell stated that he was told by Mr. Roddey that there was nothing he could see or find.” Kitchell testified positively that he had no notice of appellants ’ claims under their timber deeds.
There was other evidence on the part of appellee of a corroborative nature.
There was evidence on the part of appellants that, prior to appellee’s purchase, timber had been cut from the tract, a number of logs stacked near the road, and there were tops of fallen trees on the land.
Here, we quote from the Chancellor’s findings: “The inquiry to the Clerk, if there appeared a timber deed of record, does raise an inference of knowledge on the part of the plaintiff, but this inference is not supported byi a scintilla of substantial evidence of prior facts or circumstances, which would prové the plaintiff had knowledge of the timber deed, unless it be found that he saw the logs banked along the Vick-Ingalls road on the land to be purchased and the tops of fallen trees on the land, and deduced from this the existence of a prior conveyance. The inference standing alone is insufficient to base a finding. ’ ’
We agree that the fact that logs were stacked near the road was not alone sufficient to constitute notice tó appellee, nor do we think Kitchell’s inquiry from the Clerk as to liens showed that he had knowledge of appellants ’ claims, rather, we think, in the circumstances here, it was but the ordinary precaution that a purchaser of land would exercise.
We think it unnecessary to attempt to detail all the testimony. It suffices to say that we have reviewed it carefully and have reached the conclusion that the findings of the Chancellor to the effect that appellee purchased the land in question without'notice of appellants’ claims was not against the preponderance of the testimony, and accordingly, the decree must be and is affirmed. | [
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Holt, J.
Proceeding under provisions of § 11488 of Pope’s Digest, on September 3,1946, there was filed with the County Board of Education of Lonoke County a petition purporting to be signed by a majority of the qualified electors in Austin Special School District in said county, praying for the dissolution of the Austin District and that its territory be annexed to that of Cabot Special School District in Lonoke county. The Board of Directors of the Cabot District also filed petition praying for the dissolution of the Austin Special School District and that its territory be annexed to that of Cabot Special School District.
Due notice of hearing on these petitions was given in accordance with the provisions of § 11481 of Pope’s Digest, as amended by Act 271 of 1943, and on September 2,1946, a hearing was duly had before the County Board of Education and the Board made a finding that “a majority of the qualified electors of said district had signed said petition, that notice of hearing as required by § 11481 of Pope’s Digest had been given, and that the Board of Directors of Cabot Special School District has given written consent to have the'territory of said Austin Special School District annexed to said Cabot Special School District.
“And it further appearing to the Board that everything has been done and performed for the dissolution of said Austin-Special School District, and that an order should be entered by the Board, dissolving said school district and annexing the territory thereof to the Cabot Special School District.” It then made the following-order :
“It is therefore considered, ordered, and adjudged by the Board of Education that said Austin Special School District be and the same is dissolved and the entire territory thereof be and the same is hereby annexed to 'Cabot Special School District.”
In apt time an appeal was taken by the Austin -Special School District to the Lonoke Circuit Court.
Upon a hearing before the Circuit Court on February 12, 1947, all parties being present by their attorneys, the cause was submitted “upon the petition of the petitioners, the proof of publication of notice as required by law,” and testimony of witnesses. '
The court found “that a majority of the qualified electors of the Austin Special School District had signed the petition to annex the said Austin Special School Dis trict to the Cabot Special School District; that notice of hearing as required by § 11481 of Pope’s Digest had been given, and that the Board of Directors of the Cabot Special School District had given written consent to have the territory of said Austin Special School District annexed to said Cabot Special School District,” and ordered “that the said Austin Special School District be and the same is hereby dissolved and the entire territory thereof be and the same is hereby annexed to Cabot Special School District, etc.”
This appeal followed.'
Section 11488 of Pope’s Digest, as amended by Act No. 327 of 1941, provides: “The county board of education may dissolve any school district and annex the territory thereof to any district, when petitioned to do so by a majority of the qualified electors of the district to be dissolved, and the board of directors of the district to which the territory is to be annexed. Provided further, that no district shall be attached to another district without the consent of the board of directors of the district to which the dissolved district is to be annexed. ’ ’
This section relates to the power of the County Board of Education to dissolve any school district and annex its territory to another district, which requires a petition of a majority of the qualified electors in the district to be dissolved, and the consent of the Board of Directors of the district to which it is to be annexed.
Here, the proceedings below appear to have been regular and the great preponderance of the testimony, as we read the record presented, sustains the findings and orders of the County Board of Education and the findings and judgment of the Circuit Court of Lonoke county.
For reversal of the Circuit Court judgment, appellants, among other things, contend that the papers on appeal to the Circuit Court from the County Board of Education were not filed earlier than approximately seven days before the hearing February 12,1947, and that they were denied sufficient time to examine the papers. We think this contention wholly without merit for the reason that the record discloses that no motion was filed for a continuance on this ground and no objection appears to have been made to the trial on February 12th in the Circuit Court. No abuse of discretion has been shown.
Appellants ’ next contention that the court should not consider the petitions in question for the reason that only one was marked “filed” and none sworn to, is, we think, likewise without merit. It is undisputed that all of the petitions were before, and considered by, the County Board of Education and the Circuit Court on appeal and one of them bore a filing date of September 3,1946, prior to these hearings, and it further appears that appellants raised no objections as to the validity of the petitions on this ground at either hearing. They made no claim that they were not familiar with the contents of these petitions or had been prejudiced, and, in these circumstances, they cannot be heard to complain here for the first time.
In proceedings such as are presented here, we find no statute, and appellants have pointed to none, requiring that the petitions, supra, be verified by the person who circulated them.
Appellants next contend that the entire proceedings below were void because, as they aver, J. M. Park, a member of the County Board of Education, was also a member of the Board of Directors of the Cabo't Special School District and therefore disqualified to act in the matter. This contention, even if a valid one, which we do not decide, was not properly or seasonably raised below.
Other objections were assigned and it suffices to say that we have considered them all and find each to be untenable.
On the whole case, finding no error, the judgment is affirmed. | [
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Grieein Smith, Chief Justice.
The only error urged is that testimony of accomplices was not corroborated. Pope’s Digest, $ 4017.
Estes Bright, with Elmer, Chester, and Harvey Davis — appellant’s half brothers — were charged with having feloniously entered the Bailey Chevrolet Building at Cabot and stealing an iron safe containing money. Grand larceny was predicated upon theft of $210. Bright was found guilty on both charges and his punishment fixed at six years in prison. The three Davis brothers entered pleas of guilty, but had not been sentenced when Bright was tried.
The Davis brothers, with appellant, came to Arkansas from Oklahoma. Appellant’s wife’s parents lived near Cabot. The trip to Arkansas was made in a 1947 ‘‘Fleetline” Chevrolet owned by Chester. It had a green body and was “bluish” on top. On two occasions — Sunday preceding the. burglary that night, and probably-Saturday — appellant was seen with the three Davis boys. They bought cold drinks in Cabot from a man named Goforth. H. It. Peterson, State investigator, took casts of automobile tracks left near the Bailey building. The moulages corresponded with designs on the Fleetline Chevrolet Chester Davis owned. Appellant’s wife, who was with her parents, testified that her husband was away from home Sunday night- from about 9:30 to ‘ ‘ around eleven o ’clock. ’ ’ There was testimony that when arrested several days after the crimes, appellant told an officer he was not “copping” anything.
The three Davis brothers testified in detail. They told how a window was broken and entrance gained through it; how the safe was placed in the Chevrolet and taken about two miles, where it was opened near a culvert. Appellant assisted with all operations. The content — approximately $210 — was divided. The Davis boys then drove to North Little Bock and spent the night. Monday morning they read in newspapers that the burglary had been discovered, and. that E. L. Bailey claimed $6,000 had been taken. The Davis brothers, in an effort to recoup a loss they then thought due to inefficiency, drove back to the culvert, but could not find the money Bailey claimed the safe contained. When arrested and confronted with the charge that $6,000 had been taken, appellant is alleged to have asserted, “We didn’t get $6,000.” All of the officers who .testified agreed that Bright consistently denied participating, but remarked that he was “like the Negro who was caught working the combination on a safe.”
The statute relied upon by appellant has been cited too often to need amplification. Corroboration is not sufficient if it merely shows the offense was committed and circumstances attending it. The independent evidence must “tend” to connect a defendant with the crime. Sufficiency of corroboration has been held to be a jury question. But suspicion, though founded on moral belief, does not meet the test. As Mr. Justice Knox said in Underwood v. State, 205 Ark. 864, 171 S. W. 2d 304, the corroborating testimony must be of a substantial character “which, of itself and independently of the statement [s] of the accomplice [s], tends in some, degree to connect the defendant with the commission of the crime, although such evidence need not in itself be sufficient to support a conviction.”
It is not contended that money found on appellant was sufficient in amount to form the basis for an independent presumption of guilt. There are circumstances from which it may be supposed that appellant was with the three who have confessed, but no testimony other than that given by the accomplices placed Bright near the scene of action. We might readily agree with the jury that appellant’s innocence is inconceivable; but this conclusion would rest entirely upon testimony of the accomplices, the defendant’s bad reputation, (he had served a prison term for burglary and grand larceny, beginning in 1938) and upon the fact that he was with his half brothers an hour or two before the breaking took place.
Because there was no substantial corroboration, the judgment is reversed. The cause, however, is remanded. | [
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Bobins, J.
In her unlawful detainer suit against appellant, N. S. Garrott, appellee, Mrs. Leona W. Kendal, was by a jury verdict awarded possession of the lands, $7,560 for rent and $2,027.80 for “special damages.” The trial court reduced the amount allowed for rent to $7,000 and entered judgment in favor of William L. Johnson Company, Inc., (which had purchased the lands from appellee, Mrs. Kendal, after this suit was filed) against appellant and his suretjr for possession of the lands and in favor of appellee, Mrs. Kendal, for $9,027.80 damages. From that judgment comes this appeal.
Appellant urges here no objection to that part of the judgment below whereby appellee recovered possession of the lands.
These two grounds of reversal or modification of the circuit court’s judgment are urged here:
1. That the award <5f $7,000 for rental was excessive.
2. That the award of $2,027.80 for “special damages” was imwarranted and excessive.
I.
Appellant had rented the lands involved here, approximately 500 acres adjacent to West Memphis, from appellee and her deceased husband for a number of years up to and including 1945. For each of these years a written rental contract was executed.
In the fall of 1945, appellee, as she testified, refused to rent the lands longer tp appellant and entered into a written contract by which she rented same to W. W. Smith for 1946. Appellant, however, claiming he had an oral rental agreement with appellee for 1946, refused to surrender the lands, and cultivated same during the crop year of 1946.
Appellee served “notice to quit” on appellant on January 4, 1946, and on January 17, 1946, instituted this proceeding.
In order to retain possession pending trial appellant executed the statutory bond.
The testimony as to the rental value of the lands was in sharp conflict; but there was testimony of a substantial nature from which the jury might have calculated the rental value of the property to be. $7,000 or higher. Therefore, we may not disturb the verdict in this particular.
II.
After appellee was thwarted in her attempt to obtain the lands in January, 1946, by reason of appellant giving the .bond to retain possession thereof, her new tenant, W. W. Smith, sued her for damage accruing to him by reason of her failure to deliver possession to him. In that suit Smith recovered a judgment against her for such damage amounting to $1,608 and $19.80 for costs. She was compelled to expend $200 for attorney’s fee in defending Smith’s action against her and $100 for traveling expenses to and from her home in Grand Rapids, Michigan, in attending to the litigation. She thereupon filed an amendment to her complaint, asking recovery of the amount required to pay the judgment in favor of Smith and of costs and traveling expenses amounting to $200 and attorney’s fee of $200, incurred in that case.
The principal objection, as to this part of the verdict, is that item of $200 for attorney’s fee'was improper and should have been withdrawn from the jury.
In support of this contention appellant cites our holding in Oliphant v. Mansfield, 36 Ark. 191, that upon the dissolution of an attachment, attorney’s fees in that suit, incurred by defendants, were not allowable to them as damages. There is no analogy in the situation presented by the Oliphant case and that here. In the casp at bar appellant, when demand was made on him, could have surrendered to appellee possession of the demised property and avoided all liability for damages. He chose, however, to retain the lands wrongfully, and, in order to do so, executed a bond whereby he agreed to pay appellee, not only rent on the lands but any damage she might incur by reason of his wrongful withholding. Section 6044, Pope’s Digest.
Appellee, acting within her rights, had rented the land for 1946 to Smith, and when appellant, by his wrongful detention, caused appellee to become liable to Smith for breach of her contract to deliver possession to Smith, appellant rendered himself liable for the damages recovered by Smith against appellee and all necessary expenses incurred by appellee in defending the suit. Appellee’s outlay in discharging the judgment in favor of Smith and her expenses in defending the case must be held to be damages that proximately flowed from appellant’s wrongful detention of the lands. There is no intimation in the record that the judgment of Smith was collusive or excessive or that the attorney’s fee claimed by appellee Was unreasonable.
It is finally insisted that the item of $200 for traveling expenses incurred by appellee in going to and from her home in Michigan to Crittenden county to attend to the Smith suit was not a proper item of damage. We think the damages allowable to appellee in this case are somewhat analogous to those recoverable on breach of warranty; and in the latter cases we have held that the covenantee is entitled to recover not only his attorney’s fees but reasonable expenses incurred in a bona fide defense of an action against him. Beach v. Nordman, 90 Ark. 59, 117 S. W. 785. While, ordinarily, traveling expenses might not be a recoverable item, we cannot say, from the record before us, that such expenses were not, in this particular case, a proper element of damage. Appellee testified that the incurring of this expense was made necessary by appellant’s wrongful detention of her lands. She was not'cross-examined as to why the incurring of this expense was made necessary by the Smith litigation, nor was her testimony as to this item disputed in any way. However, an examination of her testimony discloses that she did not assert that she made but one trip, costing $100, in her effort to defend the suit brought by Smith. The judgment is therefore excessive in the sum of $100.
It follows that the judgment must be so modified as to reduce appellee’s recovery by the sum of $100 and as so modified it is affirmed. | [
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Holt, J.
Appellants, taxpayers and owners of outstanding Drew County Courthouse and Jail Bonds, brought this suit to enjoin the issuance and sale of bonds for the purpose of building a County Hospital.
They alleged in their complaint that in order to construct a courthouse and jail, “the County Court of Drew county, Arkansas, on the first day of September, 1931, entered an order . . . authorizing the issue and the sale of the bonds of said county in the aggregate principal sum of one hundred and fifty thousand ($150,000) dollars to be issued and sold as of September 1, 1931, bearing interest at the rate of five per cent. (5%) per annum . . . , and by said order a pledge was made, including, among other things, the' following: ‘For the prompt payment of this bond and interest thereon, the said County of Drew hereby pledges its.full faith, credit and taxing power, including the additional tax authorized by said Amendment No. 17 to the Constitution and applicable solely to the payment of this bond and other bonds issued for the improvement hereinbefore mentioned. ’
‘ ‘ That the bonds described in said order were in fact issued and sold as authorized by the provisions of said order; and bonds numbers one (1) to one hundred and five (105) inclusive, of said series and all interest coupons attached to all of the bonds of said series maturing on or before September 1, 1947, have been paid; but the bonds maturing' on or after September 1, 1948, to-wit: bonds numbers one hundred and six (106) to one hundred fifty-five (155), inclusive, aggregating the principal sum of forty-nine thousand five hundred ($49,500) dollars, and all coupons thereto attached maturing after September 1, 1947, aggregating six thousand four hundred ($6,400) dollars, remain outstanding and unpaid, said principal and interest coupons so remaining outstanding and unpaid, aggregating the sum of fifty-five thousand nine hundred ($55,900) dollars.
‘ ‘ That said County Court order of May 16,1931, was entered, and said Drew County Courthouse Bonds were issued and sold, pursuant to an election which had been regularly called and held in Drew county, Arkansas, under the provisions of Amendment No. 17 of the Constitution of Arkansas, at which election a majority of the qualified electors of Drew county voting at said election had authorized the construction of a courthouse and jail for Drew county, and the levying of a tax for said purposes.
“That pursuant to the action of the electors of Drew county, Arkansas, above referred to, the Quorum Court of Drew county, Arkansas, legally called and assembled, did on the 16th day of July, 1931, make an initial levy of two (2) mills on the taxable property of Drew county to provide a sinking fund for the payment of said courthouse bonds, . . .
“That at the regular meeting of the Quorum Court of Drew county for the year 1931, . . . said Quorum Court increased the levy of taxes for the purpose of retiring said Drew County Courthouse Bond issue to three (3) mills for the year 1933; ...”
They further alleged that thereafter the Levying Court annually made a building fund tax levy, which for the years 1932 and 1933 was 3 mills, for 1934, 3% mills, 4 mills for each year 1935 to 1938, inclusive, no levy at all for 1939, 2 mills for 1940, 3 mills for 1941, 4 mills for each of the years 1942 to 1945, inclusive, and 3% mills for the year 1946.
That “the last four (4) mill tax levy made for the purpose of retiring said courthouse bonds was levied by the meeting of the Quorum Court held November 19, 1945, ...”
They further alleged that “under the provisions of Amendment No. 17 of the Constitution of Arkansas the highest rpillage levied by the Quorum Court of Drew county, Arkansas, for the purposes of retirement of said Drew county courthouse and jail bonds, to-wit, the four (4) mill levy made to be collected in each of the years 1936 to 1939 inclusive, and in each of the years 1943 to 1946 inclusive, became a continuing levy, and may not be lawfully reduced; furthermore the entire taxing power vested in the county under the provisions of said constitutional Amendment No. 17, as amended by Amendment No. 25 to the Constitution of Arkansas, for the purposes therein specified, have been pledged to the holders of said Drew county courthouse and jail bonds, to be used exclusively for the purposes of payment of said bonds and interests accruing thereon and expenses incident thereto; and the taxing power of Drew county for the purpose specified in said constitutional amendments has been thereby exhausted.”
That notwithstanding the allegations above set forth, appellee, on January 6, 1947, “entered an ‘Order Determining the Necessity for the Construction of a County Hospital’ for Drew county, Arkansas, under the provisions of Amendment No. 17 to the Constitution of Arkansas, as amended by Amendment No. 25 to the Constitution,” appointed architects, made plans, which appellee approved, including an estimate of $300,000 required to build the hospital; that by said order a special election was called resulting in a vote by the electors favoring the building of the hospital and the building tax to provide for its cost.
They further alleged that “on the 7th day of April, 1947, the defendant again purporting to act in his capacity as County Judge, called a special meeting of the Quorum Court of Drew county.which convened on the 12th day of April, 1947, and undertook to levy a five (5) mill tax on the taxable property of Drew county for the dual purpose of discharging the remaining outstanding Drew county courthouse bonds and interest coupons thereto attached, and paying the cost of construction of the three hundred thousand ($300,000) dollar hospital proposed to be constructed by and for the county of Drew; and the defendant, Boy L. Sanderlin, is now about to proceed, purporting to be acting in his capacity as judge of the County Court of Drew county, Arkansas, to enter an order for the issuing and sale of bonds, of Drew county in the aggregate principal sum' of three hundred thousand ($300,000) dollars, to provide funds for the construction of said proposed Drew county hospital, under the provisions of Amendment No. 17 to the Constitution of Arkansas, as amended by Amendment No. 25, and to pledge for the payment of said bonds, principal and interest as much as three-fifths part of the proceeds of the five (5) mill tax levied against the taxable property of Drew county, Arkansas, by the Quorum Court at its meeting held April 12, 1947, as above alleged, collectible in the years 1948 to 1951, inclusive, and all of said tax collectible in succeeding years ”; that appellee is about to sell bonds in the amount of $300,000 for the erection of said hospital at private sale contrary to the provisions of the constitution and laws of Arkansas.
Their prayer was that appellee be permanently enjoined from selling the hospital bonds.
Appellee answered, admitting all of the material allegations of fact set out in appellants’ complaint, but differed with them in their conclusions of law. The answer further alleged that the 5 mill levy of April 12,1947, was expressly made first “to pay off and discharge the remaining outstanding indebtedness of the county incurred for the construction of the Drew county courthouse and jail, as evidenced by the remaining outstanding and unpaid 5% courthouse bonds of Drew county, and also to defray the cost of the construction of the proposed Drew county hospital, the construction of which was authorized by the qualified electors of Drew, county, Arkansas, at the special election held March 4, 1947, or to provide a sinking fund for said purposes; of which total 5 mill levy, such part thereof as the County Court of Drew county, Arkansas, may find to be required, not exceeding 3y2 mills, shall be allocated to provide funds required for the payment of the principal and interest on the remaining- outstanding- and unpaid Drew county courthouse bonds, until said Drew county courthouse bond issue and indebtedness thereby evidenced is fully discharged, and the remainder of said 5 mill annual levy shall be allocated to the payment of the costs incident to the construction of said Drew county hospital, and to pay the principal and interest on any notes or bonds of Drew county issued for the purpose of constructing said hospital, or to provide a sinking fund for said purpose.”
A demurrer to this answer was overruled by the trial court and upon appellants’ refusal to plead further, their complaint was dismissed for want of equity and this appeal followed.
For reversal, appellants say: (1) “The pledge contained in the County Court order of September 1, 1931, authorizing- the issuance of courthouse bonds, and as contained in the bonds themselves, prohibits the issuance of any bonds at this time for county hospital purposes.” (2) “The appellee is prohibited from issuing- and selling-bonds for hospital purposes which will require, for the payment thereof, the levy of a tax in excess of one mill. ’ ’ (3) “The appellee is prohibited from selling the hospital bonds at a private sale.”
(1) and (2)
We consider appellants’ contentions (1) and (2) together.
In short, appellants earnestly argue that the taxing-power of Drew county for the pui-poses specified in Amendments 17 and 25 to our Constitution has been exhausted, that appellee is without authority to issue additional bonds at this time for hospital purposes since Drew county has contracted with the holders of the remaining- outstanding courthouse and jail bonds not to use its taxing power for any other purposes under Amendments 17 and 25 until the courthouse and jail bonds have been paid in full.
We cannot agree.
The situation presented in this case prior, to the 5 mill levy of April 12, 1947, briefly stated, was that the Drew County Levying Court, proceeding under Amendment 17 of the Constitution of Arkansas, on May 16,1931, after a favorable vote of the electors, levied a 2 mill tax ‘ ‘ to provide a sinking fund from which to pay the principal and interest on the bonds of Drew county in the aggregate principal sum of $150,000,” the proceeds from the sale of said bonds to be used, and were used, to defray the cost of constructing a courthouse and jail. The effect of this levy; which was duly and properly made, under the provisions of § 5 of Amendment 17, was to make it a continuing one and in force from year to year until the principal and interest of all bonds, and the cost of construction, had been paid in full.
The Amendment, supra (§ 5), so provides in the following language: “if a majority voting in such election vote for such building or buildings, as the case may be, and for tax, then the levying court at any regular, special or adjourned term thereafter held, may levy, in addition to all other taxes now authorized by law, to be levied against all taxable property in the county, a special building tax not exceeding one-half of one per cent, on the dollar of the assessed valuation of such property to pay for such improvements, or to provide a sinking fund for said purpose, which levy, when once made, shall continue and be in force from year to year, and extended on the tax books and collected until sufficient funds are collected to pay off and discharge the cost of such improvement, or any bonds or notes and interest thereon, sold to raise money for the payment of such improvement, ’ ’ and §6 provides: “ ... And the same is hereby secured by said special tax levied for the purpose, which shall be and is hereby pledged as security for the payment of such evidences of indebtedness, and shall never be diverted to, or expended for, another purpose, nor collected for any greater amount or length of time than is necessary to pay off and retire said principal and interest evidenced by such bonds or notes.”
The holders, therefore, of these remaining courthouse and jail bonds have the positive pledge of Drew county that this 2 mill levy will never be reduced and shall continue from year to year until all bonds, with interest and costs, have been paid in full.
Under our holding in Turnbow v. Talkington, 191 Ark. 492, 86 S. W. 2d 940, in which the initial levy was. iy2 mills for the cost of a county courthouse and jail, the levying court of Drew county in the instant case had the continuing discretion and authority to levy a higher rate than the initial 2 mill levy, supra, if required to pay the cost of the courthouse and jail so long as the rate did not exceed 5 mills. “Until this limitation has been reached a discretion abides in the levying court.”
It is our view, and we so hold, that such additional and increased levies made subsequent to the initial levy authorized by § 5, Amendment 17, will not be effective beyond the year for which the increased rate is voted and that the only continuing levy was the initial levy of 2 mills.
Coming now to the action of the Drew County Levying Court, on April 12, 1947, in which a levy of 5 mills was made for the purpose of constructing a county hospital at a cost of $300,000, the court, on April 12, 1947, following an overwhelming vote of the electors favoring the erection of a county hospital, increased the building fund tax levy to 5 mills, the limit under the Constitutional Amendments, supra, allocating to the payment of the few remaining outstanding courthouse and jail bonds the proceeds of 3y2 mills of said 5 mills (which was 1 y2 mills in excess of the guaranteed continuing levy for that purpose) “until said Drew county courthouse bond issue and indebtedness thereby evidenced is fully discharged. ’ ’
This' action of the court had the effect of leaving the 2 mills (originally voted for courthouse and jail bonds) unimpaired and leaving 3 mills, and allocating same as stated, in accordance with our holding in the recent case of Rogers v. Parker, County Judge, 211 Ark. 957, 203 S. W. 2d 401, in which we said: “Of course, if a tax of less than five mills was levied by the levying court for the construction of tlie courthouse, an amount of millage equal to the difference between the rate so levied and five mills would still be available for the construction of .a hospital.”
Here, as indicated, the initial continuing levy for the courthouse and jail was 2 mills, which left 3 mills available for the construction of a hospital. Cértainly, we think appellants may not complain since 3y2 mills of the 5 mill levy — 1 y2 mills above the guaranteed continuing levy — was allocated to pay the remaining courthouse and jail bonds.
(3)
Appellants’ third contention that the bonds must be sold at public sale to the highest bidder is meritorious and must be sustained.
Amendment 17 authorizing the construction of courthouses and jails was voted on in 1928 and declared adopted by the Legislature in 1929. Section 6 of this amendment, in part, provides: “The County Court, or Judge thereof, may issue and sell interest bearing negotiable bonds or notes in siich form as may be deemed proper . . . and sell same upon such conditions and in such manner as the County Court may by order deem proper for the purpose of raising funds for the construction of such improvement.”
Amendment 25 was adopted in 1938 and amended, in effect, § 1 of Amendment 17 by adding the words ‘ ‘ County Hospital” so that, as thus amended, § 1 of Amendment 25 now reads: “The power and right is hereby vested in the qualified electors of each respective county in this state by a majority of the said electors voting on the question, to authorize the construction, reconstruction, or extension of any county courthouse, county jail, or county hospital, and to authorize the levy of a tax not to exceed one-half of one per cent, on the dollar of the valuation of all properties in such county subject to taxation to defray the cost and expenses thereof, or to take up any indebtedness existing at the time of adoption hereof incurred in building, construction or extending any county courthouse, jail, or hospital. ” The words in italics being the only ones added.
Prior to the adoption of Amendment 25, the 1929 Legislature, by Act 294, provided: “Section 6. Bonds that may be issued to pay for courthouses or jails, or both, which are now being built or extended, or which may hereafter be built or extended, shall be sold only at public auction or on sealed bids after notice given by order of the county court and published once a week for at least three insertions in some newspaper published and having a bona fide circulation in the county, the last insertion to be not less than seven (7) days before the date of sale. Such notice shall state the amount and maturities of the bonds and the purpose for which they are issued. The county court may reject any and all bids for any bonds within the scope of this act, and may order a new publication and a new sale, to be conducted in like manner; but the sale must always be to the highest bidder.”
When we treat Amendment No. 25 as enlarging Amendment No. 17 to the extent only of authorizing the sale of bonds for hospitals, other provisions of Amendment 17 remain intact. Yet between adoption of the two amendments The General Assembly saw fit to declare a public policy — one requiring that courthouse and jail bonds be sold at public auction. The language found in § 6 of Amendment 17 authorizing the County Court to sell bonds in such “form” as he may deem proper, and maturing at such ‘ ‘ times ’ ’ as may be determined, and to. conduct the sale “upon such conditions and in such mam ner ’ ’ as the court may direct, is not inconsistent with the legislative mandate that an opportunity must be given for competitive bidding. It will not be presumed that framers of the Amendment intended to promulgate an ironclad policy whereby competition could be excluded, and Act 294 of 1929 in no sense infringes Amendment 17. All matters expressly bearing upon the court’s right to direct the sale are unimpaired when effect is given to Act 294. It is not inappropriate to say, in connection with the case at bar, that there is no suggestion or intimation of irregularity in connection with the proposed sale of the bonds and the utmost good faith appears to have been exercised. The only difficulty is' that there was failure to comply with Act 294.
Accordingly, the decree will be modified to provide for the public sale of the bonds in accordance with the view herein expressed, and in all other respects, the decree is affirmed. | [
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Smith, J.
Fire insurance policies were issued to appellee Arnold by appellant fire insurance companies covering a granary and a quantity of soy beans stored therein. The coverage for tbe building and the beans was in separate amounts. A fire occurred which resulted in the total loss of both the building and its contents. Separate suits were brought against the insurance companies, which were consolidated and as the same defenses were interposed by all the insurance companies, the causes were tried as a single case and from the judgments against the companies is this appeal.
Inasmuch as the granary was totally consumed by the fire, a verdict for its insured value was returned in the plaintiff’s favor under the instructions of the court, and of this action no complaint is made. The question litigated related to the quantity and value of the beans destroyed and plaintiff’s right to have judgment for the full amount of the recovery. By the terms of the policies only plaintiff’s interest in the beans was insured, and it was insisted that the plaintiff was not the sole owner of the beans and should have been allowed to recover only the value of his proportionate interest.
The beans, or most of them, appeared to have been grown on land owned by one W. B. Arnold, at the time of his death, although the granary was on land owned by plaintiff in severalty. Plaintiff was one of the heirs of W. B. Arnold, and there were four others, a brother and three sisters. The companies filed a motion that the other heirs be made parties to the suit, and in response to this motion the other heirs filed an intervention in which they alleged their respective interests in the land on which the beans had been grown, and they prayed that they have judgment for their proportionate part of any recovery on account of the beans. The right of the interveners was not submitted to the jury; and upon submission the intervention was dismissed, and no appeal has been prayed from that action.
The interveners were neither necessary nor proper parties to this litigation. No one of the policies insured any interest of the interveners and the only interest insured was that of the plaintiff.
It was competent of course, to show that plaintiff was not the sole owner of the beans, and that other parties had an interest therein, this for the purpose of.de termining what appellee’s interest in fact was, as he was entitled to recover the value only of his own interest and not the interest of his co-tenants. In Yol. 5, § 3661, p. 497, Appleman’s Insurance Law and Practice, it is said: “Where, by the terms of the policy, the insurer is not to be liable beyond the interest of the insured in the property, a stranger to the contract cannot collect thereon simply because he was the owner of an undivided interest in the property destroyed.”
The only testimony offered in support of the allegations of the intervention was the introduction of certain deeds showing the title of the interveners to certain interests in the land which plaintiff did not deny. But in his answer to the intervention he alleged that before planting the beans he had a contract with his co-tenants that he “would plant and cultivate the beans in order that AAA would let the farm have more land to plant in cotton, and that he was to have the soy beans.” In support of this answer to the intervention plaintiff offered testimony which was not disputed to the following effect. The farm owned by him and his brother' and three sisters was quite large and his brother wanted to plant his part in cotton, but they were required to plant 220 acres of land in soil building crops. He explained to his sisters that it would require six or eight thousand dollars to buy the equipment and seed for that crop, but they were not interested in putting out any money in planting that crop, and told him that if he wanted to plant the beans in order to comply with the AAA regulations thereby permitting a larger acreage to be planted in other crops, he might do that, and that if he did so “they were my soy beans.” If this testimony is true, and it is not disputed, plaintiff was the sole owner of the beans, although he was not the sole owner of the land on which they grew.
The chief ground relied upon for the reversal of the judgment is that it was grossly excessive and is not sustained by the testimony. There are many contradictions in plaintiff’s testimony and appellants urge that it is so contradictory as to be unworthy of belief, but we cannot say that it is not legally sufficient to support the verdict.
The judgment on account of the beans was for the sum of $12,320, the full amount sued for. Before filing suit plaintiff presented a claim for a much larger quantity of beans than he sued for. He had built on his land a granary in which there were four bins each 16'sl6' and 16' high. In his claim he had stated that there were five of these bins. He had been accumulating the beans in the granary over a period of several years and the testimony on the part of the insurance companies was to the effect that the beans had caked and spoiled and had lost their commercial value. Plaintiff admitted that he lost about 150 bushels of beans because they had been stored when green, but he testified that he took those out of the granary and fed them to his hogs, but that the remaining beans were good.
There was testimony that a cubic foot of beans weighed 18 pounds, and that 60 pounds made a bushel. On this basis plaintiff’s testimony would fully support the verdict as to the quantity of beans burned. But it is argued that there were beans in only two of the bins, and that the ashes after the fire showed that only one of the bins was full.
The jury was told that they could not disregard an established physical fact, but we are unable to say that this was done. The testimony was conflicting as to the depth of the ashes in the bins, and as to whether any, and if any, how much of the ashes had been washed away by rain before the investigation was made by the Fire Marshal and the adjuster, for the insurance companies, and the testimony of these witnesses was to the effect that ashes were found near the site of the granary in addition to those found where the bins had been located.
These questions of fact are concluded by the verdict of the jury and as plaintiff’s testimony was to the effect that there were more beans destroyed than he had recovered judgment for, we cannot say that the verdict contravenes any established physical fact. There was but little corroboration of plaintiff’s testimony as to the quantity of beans destroyed, but it was not required that there should have been if the jury believed his testimony to be true. We said in the case of Ocker v. Nix, 202 Ark. 1064, 155 S. W. 2d, 58, that ‘ ‘ The mere fact that appellee stands alone in his testimony . . . and that he is contradicted by several witnesses, . . . does not justify us in saying there was no substantial evidence to support the verdict.” In the case cited we quoted from the case of Norton & Wheeler Stave Co. v. Wright, 194 Ark. 115, 106 S. W. 2d, 178, as follows: “The question as to where lies the preponderance of the evidence is not for us to say. That .is the duty of the trial judge, who, by his refusal to set aside the verdict, has set his seal of approval upon the truthfulness of the testimony given by appellee. ’ ’ Appellee’s testimony, however contrary to other evidence is sufficient to sustain the verdict and the judgment must therefore be affirmed. | [
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Smith, J.
On June 27, 1927, the commissioners of Sewer Improvement District No. '94 of the City of Little Bock, brought suit to foreclose the lien of the district against certain lots in the district for delinquent assessments. A lot in this district owned by Mrs. Emma Thurman, the mother of appellee here, was not included in the original suit. On July 18, 1935, an amendment to the original complaint was filed, seeking to foreclose the lien for delinquent assessments for the year 1934 and prior years against numerous tracts of land, and among others a lot described as lot 22, block 23, Biverside Bark, which description was used in all the subsequent proceedings to which the record in this case refers ' A foreclosure decree was rendered November 23, 1937, and a sale thereunder was had on March 16, 1938, at which sale the lot which is the subject matter of this litigation was struck off and sold to the district for the taxes, penalty and costs due thereon, amounting to $12.90. The commissioner making the sale issued to the district a certificate of purchase. Many other certificates for other lots were also issued to the district pursuant to the sale.
Subsequent to the sale by the commissioner, but prior to the expiration of the time allowed by law for redemption, the court appointed a receiver to take charge of all lots acquired by the district under which order redemptions could be effected only through application to the receiver, and the payment to him of all the taxes, penalty, interest and costs for which the lots had sold, plus 10 per cent thereof as the receiver’s fee. •
With the approval of the court, the receiver sold certificates of purchase held by the district to the lot in question, and a number of others, and appellant as assignee of certain of these certificates obtained a deed to the lot here in question. These certificates were sold for $5.40 each, which in most cases, as in this, was less than the taxes, etc., for which the lots had been sold. It is conceded that these sales were made without reference to the value of the lots. The testimony shows that the lot here involved was worth more than $5,000. The certificates were assigned by the receiver August 14, 1943, and on the approval by the court of such sale and assignment of these certificates the commissioner who made the sale under the decree foreclosing the district’s delinquent tax liens, presented to the court for its approval deeds based upon these assigned certificates, and the deeds from the commissioner were approved by the court.
Appellee who is the only heir of Emma Thurman, who for many years occupied, as owner, Lot 22, Riverside Park Addition, to the City of Little Rock, the lot here in litigation, removed from Little Rock and was unaware of the sale of the lot which she had inherited from her mother, and she paid the general taxes assessed against the lot under the discription of Lot 22, Riverside Paris Addition. When she learned that her property had. been sold she filed an intervention in the foreclosure suit, in which she attacked the sale of her property and prayed the cancellation of the commissioner’s deed thereto. This relief was prayed upon numerous grounds, but the only one we consider is that there is no tract of land in the improvement district described as Lot 22, Block 23, Riverside Park Addition. The indebtedness of the district, evidenced by bonds which it had issued, was paid in full on April 30, 1941.
It is conceded that there is no lot properly described as Lot 22, Block 23, Riverside Addition, but it is contended that there is a Lot 22, Riverside Addition, and it is insisted that the addition of the block number as a part of the description should be disregarded as mere surplusage.
The relief prayed was granted for the reason just stated and upon other grounds as well, and the commissioners’ deed was cancelled as a cloud upon appellee’s title, and this appeal is from that decree.
Upon the authority of the case of Brinkley v. Halliburton, 129 Ark. 334, 196 S. W. 118, 1 A. L. R. 1225, and Shelton v. Byrom, 206 Ark. 665, 177 S. W. 2d 421, appellant concedes the law to be as stated in headnotes to the case last cited reading as follows:
“A description of land in a tax proceeding must be such as will apprise the owner, without recourse to the superior knowledge peculiar to him as owner, that a particular tract of his land is sought to be charged with a tax lien; it must also be such as will notify the public what lands are to be offered for sale in case the tax is not paid.
“A description which is intelligible only to persons possessing more than the average intelligence or the use and understanding of which is confined to the locality in which the land lies is insufficient to support a sale fox-taxes. ’ ’
Oxie possessing lmowledge which the description employed did xxot coxivey might have lmowxx that the locus in quo had been known as Worthen Sub-Divisioxx in which lands were described by block xxumbers axid that there was a block No. 23. But in November 1889, which was prior to the time the sewer improvement district was formed, a Bill of Assurance was filed by the owxxer which provides that the lands embraced in the plat attached thereto should be forever known and desigxxated as Riverside Park, and no reference is made to a sub-division by block numbers. There are 27 lots ixi the additioxi shown by the plat, numbered from oxxe to 27 inclusive.
The west 30 feet of blocks 23 axxd 24 of Wortheix SubDivision were not included in the plat of Riverside Park and Lincoln Avenue, as extended on that plat, includes a portion of the lots formerly platted as block 23, Woi’then Sub-Division. It was stipulated that the plat just referred to was the only plat of Riverside Park Addition on record. After this plat had been placed of record, all descriptions for general taxation purposes were made with reference to it. In other words, the plat attached to the Bill of Assurance superceded prior descriptions which referred to the lot as a part of Worthen SubDivision.
Throughout all the proceedings leading to the execution of the commissioners’ deed here canceled by the decree from which is this appeal, no lot was included which was described as lot 22, Riverside Park Addition, bnt a lot was included described as lot 22, block 23, Riverside Park. According to the plat which superceded all other descriptions, the proper description of appellee’s lot was lot 22, Riverside Park Addition. The use of the words “block 23” as part of the description tended to confuse the description and may not be disregarded as mere surplusage.
Inasmuch as appellee’s lot was not proceeded against under its correct description, the sale thereof was void and the commissioners’ deed was properly canceled inasmuch as'appellee made a tender of all taxes, penalty, interest and costs which could be collected against the land.
This view accords with our holding in the case of Massey v. Bickford, 208 Ark. 685, 187 S. W. 2d 541, where a lot otherwise properly described was referred to as being in Fishback No. 2 Addition to the City of Ft. Smith, when there was in fact no No. 2 Fishback Addition, and the sale was held void for that reason. See, also, Boswell v. Jordan, 112 Ark. 159, 165 S. W. 295.
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Ed. F. McFaddin, Justice.
This appeal results from a proceeding instituted by appellants to establish an alleged lost will of Fred Polatty, who died August 31, 1946, a citizen and resident of Phillips county, Arkansas.
Immediately after the death of Fred Polatty, John C. Sheffield was appointed administrator of the estate. Sheffield made a diligent search for a will, and reported to the probate court that no will could be found. Thereupon the appellants (Eugene Porter, Elliott Porter and Jake Wise) filed suit in the chancery court to establish the alleged lost will. They named as defendants: (a) John C. Sheffield, administrator of the estate of Fred Polatty; (b) three other persons, each of whom was alleged to be a relative of Fred Polatty; and (c) “the unknown heirs of Fred Polatty. ’ ’
Under the last designation, 14 persons filed a joint answer, thus: making themselves known, claiming to be the heirs of Fred Polatty, and resisting the attempt to establish a lost will. These 14 persons — whom we refer to as the Polatty heirs — were the real defendants below, and are the real appellees here. The cause was submitted to the chancery court on depositions. A decree was rendered dismissing the complaint, and finding that Fred Polatty died intestate, and adjudicating the respective interests of the 14 Polatty heirs. From that decree comes this appeal.
At the outset, we point out that this is a proceeding brought under §§ 14560-3, inclusive, Pope’s Digest. Section 14560 reads:
“Whenever any will shall be lost, or destroyed by accident or design, the court of chancery shall have the same power to take proof of the execution of such will, and to establish the same, as in the case of lost deeds.”
Section 14563 reads:
“No will of any testator shall be allowed to be proved as a lost or destroyed will, unless the same shall be proved to have been in existence at the time of the death of the testator, or be shown to have been fraudulently destroyed in the lifetime of the testator; nor unless its provisions be clearly and distinctly proved by at least two witnesses, a correct copy or draft deemed equivalent to one witness.”
We have many cases involving these sections; some of them are: Dudgeon v. Dudgeon, 119 Ark. 128, 177 S. W. 402; Bradway v. Thompson, 139 Ark. 542, 214 S. W. 27; Rose v. Hunnicutt, 166 Ark. 134, 265 S. W. 651; All- nutt v. Wood, 176 Ark. 537, 3 S. W. 2d 298; Lumpkin v. Askins, 187 Ark. 1009, 63 S. W. 2d 984; Hanna v. Magee, 189 Ark. 330, 72 S. W. 2d 237; and Harrell v. Harrell, 207 Ark. 905, 183 S. W. 2d 293. As regards the sufficiency of the evidence required to establish a lost will, we quoted, in Hanna v. Magee, supra, from 1 Underhill on Wills, § 175:
“The burden of proof to establish the execution and contents of the lost will is upon the party who claims under it. The petitioner is usually required to prove the execution and the contents of the lost will by evidence which shall be strong, cogent and convincing. It is sometimes said that the evidence must be clear, full and satisfactory, though he is never required to produce evidence sufficient to remove all reasonable doubt from the mind of the court.”
In the more recent ease of Harrell v. Harrell, supra, we said:
“Many cases have held that this power to restore and establish either a lost or a destroyed will or deed will be exercised only upon the clearest, most conclusive and satisfactory proof, . . .”
With the foregoing cases and general principles established, we proceed to state the facts in this cas.e, and then to weigh the evidence by the recognized scales.
I. Drafting of the Will. Fred Polatty lived in Phillips county for a number of years. In the last years of his life he operated a store and lived in a room adjoining it. His wife, Mary Polatty, died early in March, 1946; and he was without children, or relatives, in the State of Arkansas. On March 2-6, 1946, he went to the office of K. T. Sutton, an attorney in Helena, and gave him instructions as to the drafting of a will. Sutton prepared the instrument, and mailed it to Polatty the next day. A few days later Polatty returned to Sutton, desiring certain changes in the draft. Sutton made the changes, and mailed the new instrument — unsigned- — to Polatty on April 6, 1946. That an instrument was prepared for execution is shown by abundant proof: the stenographer who typed the will produced her shorthand notes showing both the first and the second draft; and from these notes she typed a copy which was introduced in evidence.
II. The Witnessing of the Will. We come then to the more serious question: Was the will duly witnessed? Two persons were offered as witnesses to the will. Rudolph Lederman testified that he went with Fred'Polatty to Sutton’s office, and understood that a will was to be prepared; that some time between April 24th and May 1,1946, witness went to Polatty’s store, and Polatty:
“. . . pulled the will out of the safe and put it on top and said, ‘Rudolph, 1 want you to sign it, and I want Bill Coburn to sign it, and Mr. Clark to sign it. ’ ”
Lederman testified that Polatty had already signed the instrument, and that Lederman signed as a witness.
Neither side offered Coburn as a witness. The other person produced as a witness was E. E. Clark. He testified, on direct examination, that he signed a paper for Fred Polatty in the spring of 1946, and that he understood that it was a will he was witnessing; that Polatty said it was a will, and witness signed the paper and did not read it. Then the following occurred in the cross-examination of this witness:
“Q. . . . how many papers did Mr. Polatty ask you to sign? A. Just one. Q. As I understand it, you didn’t know what the paper was that you signed? A. No. Q. Did he tell you it was in connection with some will? A. No, he told me they were trying to mess him orit of his business and.asked me to sign the paper. Q. He said they were trying to beat him out of his business and property and askéd you to sign the document for him and you are positive during that period of time, three or four months, you only signed one time for him? A. Yes. Q. I am going to hand you what appears to be the executor’s bond of Fred Polatty executed on the 20th day of March, 1946, and ask you if that is your signature to that bond right below the signature of Fred Polatty? A. Yes, it is. Q. That is the only document you signed? A. Yes. Q. Is that the instrument yon signed for Fred Polatty there? A. Yes.”
E. E. Clark then identified — as the only paper he had signed for Fred Polatty — the bond of Fred Polatty as executor of the estate of his wife, whose estate was being administered in the Phillips Probate Court. Appellants were entirely unsuccessful in their efforts to weaken the quoted testimony of E. E. Clark, who had been called by them.
Thus the evidence fails to show that Fred Polatty ever had two witnesses to his will; and, therefore, appellant’s proof fails to show a duly executed will under the requirements of § 14512, Pope’s Digest. Until it was shown that a will had been duly executed, there could, of course, be no establishment of a lost will.
III. Destruction of the Will. There is another and more cogent reason why there could be no decree in this case establishing a lost will; and that is the fact that appellants failed to overcome the presumption that Fred Polatty had destroyed the alleged will. The proof showed that Fred Polatty kept his papers in the safe in his room, and that he had access to the alleged will at all times. It was not shown that anyone else ever had access to the safe or the will. After Fred Polatty’s death the alleged will could not be found. In Rose v. Hunnicutt, supra, we said:
“It will be presumed that a testator destroyed a will executed by him in his lifetime, with the intention of revoking same, if he retained custody thereof, or had access thereto, and if it could not be found after his death. ’ ’
The stated presumption may be overcome by proof —as was done in Braclway v. Thompson, supra — but in the case at bar the evidence is insufficient to overcome such presumption. One witness testified that Fred Polatty — two or three weeks prior to his death — talked to the witness about a will. Here is the record:
■ “Q. Do you remember whether he said anything about a will or not? A. I believe he told me that he was intending to make a will of some kind, bnt never told me definitely whether he had accomplished this or not. Q. But he did say that at his death he wanted the store, fixtures and stock of goods to go to Jake Wise? A. Yes, that was the statement he made.
“Q. But he did tell you he had contemplated making a will but had not gotten around to it? A. He talked about making a will, but never told me definitely whether he had or not. He never showed it to me. Q. Did he say anything about Mr. Eugene Porter .and son? A. He spoke about Mr. Porter often. Q. You don’t know whether Mr. Polatty made a will or not? A. No. Q. He did not tell you that he had made a will, did he ? A. No. ”
The foregoing excerpt from the record is a fair summary of the evidence introduced in the effort to overcome the presumption that Polatty had, himself, destroyed the will. In short, there is no substantial evidence to overcome the said presumption; and the chancery court was correct in refusing to establish the lost will.
CONCLUSION
The decree of the chancery court is affirmed insofar as it refused to establish the lost will. The chancery court went further, however, and decreed that certain of the Polatty heirs had designated interests in the estate. This determination of heirship and distribution was without sufficient proof, and is also wanting in other controlling respects; so that part of the decree is vacated. In all other respects the decree is affirmed; and all costs are adjudged against the appellants. | [
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JIM HANNAH, Chief Justice
| t Appellant Richard G. Gawenis appeals from an order of the Van Burén County Circuit Court affirming an order of appel-lee Arkansas Oil and Gas Commission to integrate-Gawenis’s unleased mineral interests into a drilling unit. For reversal, Gawenis contends that the Commission’s forced integration of his mineral interests is an unconstitutional taking of his property and that the Commission’s order deprived him of his constitutional right to a jury trial to determine just compensation for his property. This., appeal requires interpretation of the Arkansas Constitution; therefore, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(1) (2014). We affirm the circuit court’s order.
Gawenis is the owner of the oil, gas, and other minerals beneath a .69 acre tract in Van Burén County, Arkansas, that is situated within the Ozark Highlands Unit (“OHU”). Formed by the United States of America Bureau of Land Management, the OHU is believed to be prospective for natural-gas exploration and development, from the Fayetteville Shale | ¡formation. The OHU is composed mostly of mineral interests owned by the .United States of America, but it also contains some privately owned mineral interests, such as the .69 acre mineral tract owned by'Gawenis.
On May 22, 2012, the Commission held a public hearing to receive evidence related to SEECO’s application seeking to create a 5,154-acre oil-and-gas drilling unit in the OHU and to integrate all unleased and uncommitted mineral interests within the unit. On June 4, 2012, the Commission established the unit and integrated all of the unleased and uncommitted mineral interests within the unit,, except for the un-leased mineral interests of Gawenis.
On June 26, 2012, the Commission held a hearing to receive evidence related to SEECO’s request to integrate Gawenis’s unleased mineral interests into the drilling unit. Gawenis testified at the hearing, stating that he believed that the forced-integration procedures of the Commission amounted to a taking of his property, that the risk-factor percentage was inappropriate, that his rights and his land belonged to him, and that he had not been afforded a jury trial to determine just compensation for his mineral interests. In a July 12, 2012 order, the Commission approved SEECO’s application and integrated Gaw-enis’s unleased mineral interests into the drilling unit.
Gawenis sought review of the Commission’s decision in the circuit court pursuant to the Arkansas Administrative Procedure Act, Arkansas Code Annotated sections 25-15-201. to -219. At a hearing before the circuit court, Gawenis argued that the Commission’s forced-integration procedures amounted to a taking of his property and that he was | .¡entitled to have a jury determine compensation. On March 31, 2014, the circuit court entered an order affirming the Commission’s decision and finding, inter alia, that the forced-integration procedures are constitutional and that the terms provided under the Commission’s order were fair and reasonable consideration for an oil-and-gas lease. Gawenis appeals.
A brief review of the history of relevant oil-and-gas law is helpful to an understanding of Gawenis’s arguments. In early twentieth-century Arkansas,- the “rule of capture” governed the production and use of oil and gas. This court defined the rule of capture in a 1912 case as follows:
Petroleum, gas, and oil are substances of a peculiar character..'.. They belong to the owner of-land, and are part of it so long as they are part of it or in it or subject to his control; but when they escape and go into other land or pome under another’s control, the title of the former owner is gone. If an adjoining owner drills his own land and taps a deposit of oil or gas extending under his neighbor’s field, so that it comes into his well, it becomes his property.
Osborne v. Ark. Terr. Oil & Gas Co., 103 Ark. 175, 180, 146 S.W. 122, 124 (1912) (quoting Brown v. Spilman, 155 U.S. 665, 669-70, 15 S.Ct. 245, 39 L.Ed. 304 (1895)). Under the rule of capture, a landowner had an unrestricted right to drill for oil and gas on his or her land, and if oil and gas were found, the landowner would not be liable to adjacent landowners whose lands were also drained. Each landowner was encouraged to produce as much oil and gas from the reservoir as possible, even though “[t]he resultant ‘race’ to the depletion of the reservoir wasted oil and gas reserves, as well as economic resources, and jeopardized property rights.” Phillip E. Norvell, Prelude to the Future of Shale Gas Development: Well Spacing and Integrating for the Fayetteville Shale in Arkansas, 49 Washburn L.J. 457, 459 14 (Winter 2010).
In 1939, the General Assembly enacted the Arkansas Conservation Act. See 'Act of Feb. 20, 1939, No. 105, 1939 Ark. Acts 219. The Act modified the rule of capture and established the Arkansas Oil and Gas Commission to regulate the development and production of oil and gas in the state.
To prevent waste and to avoid the risks arising from the drilling of an excessive number of welis, the Commission has statutory , authority to establish drilling units, designate the number of wells that may be drilled and produced, and regulate the spacing among wells within a unit. See Ark.Code Ann. § 15-72-302(b). The Commission also has the authority Rto integrate production in drilling units. See id. § 15-72-303. Owners of tracts or interests within an established drilling unit may voluntarily pool, combine, and integrate their tracts or interests for the development, or operation of that drilling unit. See id. § 15-72~303(a). But if the owners fail or refuse voluntarily to integrate their interests, the Commission .shall, upon the application of any owner or operator, inte grate all tracts and interests in the drilling unit for the development or operation of the drilling unit and the sharing of production, from the drilling, unit. Id. § 15-72-3.03(b). “Forced integration” or “compulsory pooling,” as it is known in other jurisdictions, “is the remedy that permits development of the drilling unit in the event that the mineral-interest owners cannot agree to pool voluntarily.” Norvell, supra, at 463.
Integration orders are made after notice and a hearing and “upon terms and conditions Which are just and reasonable and which will afford the owner of each tract or interest in the drilling unit the opportunity to recover or receive his or her just and equitable share of the oil and gas in th!é pool without unnecessary expense.” Ark.Code Ann. § 15-72-304(a). When, as in this case, there is no well drilled in the unit, the integration order (1) authorizes the 'drilling, equipping, and operation of a well on the drilling unit, (2) provides who shall | (¡drill, complete, and operate the well, (3) prescribes the time and manner in which all owners in the drilling unit who may desire to pay their share of the costs of such operations and participate therein may elect'to do so, and (4) provides that an owner who does not affirmatively elect to participate in the risk and cost of the operations shall transfer his or her rights in the drilling unit and the production from the unit well to the participants for reasonable consideration and on reasonable terms. See id. § 15-72-304(b)(l)-(4).
The integration order at issue in this case gave Gawenis four options: (1) lease his mineral interests to any party on mutually agreed terms, (2) lease his interest to the participating owners for a cash bonus of $938.36 per net mineral acre and a 1/5 royalty, (3) participate as a working interest owner in the drilling of the proposed well by paying his proportionate share of the costs and receiving his proportionate share of the proceeds, or (4) become a “Non-Drilling (Non-Consenting) Party” who receives compensation for produced minerals after the participants have been paid a certain amount as' a risk-factor percentage. If Gawenis failed to elect one of the options, then his mineral interests would be deemed integrated into the unit for a cash bonus of $938.36 per net mineral acre and a 1/5 royalty.
Gawenis contends that the forced-integration' provisions of sections 15-72-303 through -304 authorize an unconstitutional taking' of his property in violation of article 2, section 22, of the Arkansas Constitution. Arkansas statutes are presumed constitutional, and the party attacking a statute has the burden of showing that the challenged statute clearly violates the Arkansas Constitution. E.g., Hall v. Tucker, 336 Ark. 112, 117-18, 983 S.W.2d 432, 435 (1999). Article 2, section 22 states that “[t]he right of property is before and higher than any | ^constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.” Gawenis contends that, because forced integration under sections 15-72-303 and 15-72-304 is, for all intents and purposes, a taking of the mineral owner’s property, it is not enough that the Commission determines “reasonable” compensation for the owner’s mineral rights, see Ark.Code Ann. § 15-72- 304(b)(4). According to Gawen-is, he and other owners subject to forced integration are constitutionally guaranteed “just” compensation.
Although the issue whether the forced-integration procedures amount to an unconstitutional taking is one of first impression in Arkansas, we note that the Oklahoma Supreme Court confronted a similar issue in Anderson v. Corporation Commission, 327 P.2d 699 (Okla.1957). In that case, the appellant asserted that Oklahoma’s conservation statute made- him a tenant-in-common owner of the unit well, which was not located on his land. He also asserted that the Oklahoma commission’s order, which required him to either participate in the cost of the unit well or accept a bonus and a royalty, constituted an unconstitutional taking of -his property. The court rejected the appellant’s arguments:
In the case of Amis v. Bryan Pei. Corp., 185 Okl. [Okla.] 206, 90 P.2d 936, 939, an almost identical relationship existed by reason of municipal zoning ordinances controlling drilling. It was there said that,
‘Here the city created the relationship as it now exists between the parties. Had it not been for' the zoning ordinance none of the lot owners would have held an interest in the oil and gas rights beneath the lots of the others. The relationship in the nature of a tenancy in common resulted merely as an incident to the application of the city’s police powers. The tenancy ... is entirely subject thereto. The parties cannot' successfully assert their common law rights as tenants in common, for such a-tenancy actually does not exist.’ J&”
The order complained of did not constitute a taking of property of Anderson in any manner. It granted him the right to participate in the production from a well on Ellison’s property, but on condition that certain requirements were met.
The-limitation of one well to eighty acres was a proper exercise of the police power in furtherance of conservation of natural resources. ■ That he was allowed to share in the production or to receive a bonus instead of that participation was a grant to him at the expense of Ellison merely because of the recognition of correlative rights. On the other hand, Ellison was not deprived of anything because he was granted the right to'drill the only well which would be permitted on the eighty acre drilling unit upon condition that Anderson (and other owners of leasehold interests) could participate in the production upon payment of his part of the cost. Both were forced to co-operate for the benefit of both and for the protection of the public generally.
Anderson, 327 P.2d at 702-03.
We find persuasive the reasoning in Anderson. Similar to the conservation statute discussed in Anderson, the forced-integration provisions of the Arkansas Conservation "Act do not “take” anything away from Gawenis. Rather, the integration order allowed Gawenis to lease his interest in the-drilling unit in exchange for compensation or to participate in the drilling of the well and receive monetary benefits.
We are not persuaded by Gawenis’s argument that Anderson is inapposite because' the Oklahoma Constitution differs from the Arkansas Constitution in its treatment of property rights. Even assuming, as Gawenis contends, that the Oklahoma Constitution is “more lax [than the Arkansas Constitution] in the limitations placed-upon takings,” this court has recognized that, although article 2, section 22 protects individual property rights, the individual’s use and enjoyment of property is always subject to reasonable regulations in order to preserve the welfare of the public at large. Yarbrough v. Ark. State Highway Comm’n, 260 Ark. 161, 166, 639 S.W.2d 419, 421 (1976). We have also recognized that the valid exercise |flof the police power through land-use regulations does not constitute a compensable “taking” because “the owner of such property is sufficiently compensated by sharing, in the general benefits resulting” from the regulations. See City of Little Rock v. Sun Bldg. & Developing Co., 199 Ark. 333, 338, 134 S.W.2d 682, 685 (1939). We hold that the Commission’s integration of Gawenis’s .69 acre mineral interest is not a compen-sable taking but a constitutional exercise of the State’s police power.
Finally, we disagree with Gawenis’s contention that the Commission’s order deprived him of his constitutional right to a jury trial to determine just compensation for his property. Article 12, section 9, of the Arkansas Constitution states that
[n]o property, nor right of way, shall be appropriated to the use of any corporation, until, full compensation therefor shall be first made to- the .owner, in money; or first secured to .him by a deposit of money; which compensation, irrespective of any benefit from any improvement proposed by such corporation, shall be ascertained by a jury of twelve men, in a court of competent jurisdiction, as shall be prescribed by law.
Gawenis cites no authority for the proposition that the forced-integration provisions constitute a corporate “appropriation” of his property. Accordingly, he has no con-stitutipnal right to a jury trial on the issue of compensation.
In this case, Gawenis has failed to satisfy, his burden of showing that the challenged statutes clearly violate the.Arkansas Constitution. The circuit court’s order is affirmed.
Affirmed.-.
Special Justices Sarah Capp and Dustin Jones join in this opinion.
Hart, J., dissents.
Danielson and Baker, JJ., not participating.
. The Act has been amended from time to time and is now codified at Arkansas Code Annotated sections 15-72-101 to -407 (Repl. 2009).
. -In a section titled "Declaration of Policy,” the Act stated,
In recognition of past, present, and imminent evils occurring in the production and use of oil and gas, as a result of waste in the production and use thereof in the absence of co-equal or correlative rights of owners of crude oil or natural gas in a common - source of supply to produce and. , use the same, this law is enacted for the protection of' public and private interests against such evils by prohibiting waste and compelling ratable production.
See Act of Feb. 20, 1939, No. 105, § 1, 1939 Ark. Acts 219, 219; currently codified at Ark. Code Ann. § 15-72-101; see also Susan Webber Wright, The Arkansas Law of Oil and Gas, 9 U. Ark. Little Rock L.J. 223, 231 (1986-87) ‘ (noting that "[i]f the rule [of capture] were - allowed to operate without governmental regulations, each landowner could drill as many oil or gas wells as he could afford and could produce as rapidly as possible in order to drain the common pool before the others did so”). = }■
. "Owner,” as used in the Act, "means the person who has the right to drill into and to produce from any pool and to appropriate the . production either for himself or herself, or for himself or herself and another, or others.” Ark.Code Ann. § 15-72-102(9).
. An "operator” is a "person who has the right as an owner or by agreement with an owner to enter upon the lands of another for the purposes of exploring, drilling, and devel oping for the production of brine, oil, gas, and all other petroleum hydrocarbons.” Ark. Code Ann. § 15-72-102(8). | [
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ROBIN F. WYNNE, Associate Justice
11Rufus Barner appeals from the Pulaski County Circuit Court’s dismissal of his appeal to that court from Pulaski County District Court. He argues the following on appeal: (1) that precedent from this court relied on by the State and the circuit court is not applicable to his case; (2) that Arkansas Code Annotated section 5-4-305(a)(1) creates a right to appeal from the imposition of probation in the absence of a judgment of conviction; and (3) that the dismissal of his appeal by the circuit court violated his constitutional right to a jury trial. Because this case presents an issue of first impression and a significant issue needing clarification or development of the law, our jurisdiction is pursuant to Arkansas Supreme Gourt Rule l-2(b)(2) and (5) (2014). We affirm.
On September 12, 2013, appellant pled nolo contendere to a charge of third-degree domestic battery and was sentenced to one year of probation and assessed a fine and costs |2pursuant to Act 346 of 1975, also known as the First Offender Act, which is codified at Arkansas Code Annotated sections 16-93-301 to -305. The order of probation states that it is being entered without a finding of guilt and that if appellant demonstrates rehabilitation and fulfills the terms and conditions of his probation, an order will be entered upon petition or motion dismissing the case, discharging appellant without an adjudication of guilt, and expunging the record.
Appellant appealed to the Pulaski County Circuit Court from the order of probation. He subsequently executed á waiver of jury trial in circuit court. On November 14, 2013, the State filed a motion to dismiss the appeal to circuit court in which it alleged that a defendant who enters a plea of nolo contendere and is ordered to complete probation pursuant to Act 346 of 1975 is not eligible to appeal the order of probation to circuit court. After a hearing on January 22, 2014, which consisted solely of argument by counsel, the circuit court made an oral ruling granting the State’s motion to dismiss the appeal on the basis that there was no conviction in district court from which appellant could appeal to circuit court. Appellant filed a motion to reconsider on February 12, 2014, in which he argued that section 5-4-305 granted him the right to appeal to circuit court and that dismissing his appeal would violate his right to a trial by jury. The circuit court entered a written order granting the State’s motion to dismiss the appeal from district court on March 6, 2014. This appeal followed.
In seeking to dismiss appellant’s appeal from district court, the State relied on this court’s decision in Lynn v. State, 2012 Ark. 6, 2012 WL 205881. In that case, the defendant entered a negotiated plea of guilty to possession of marijuana and possession of drug.paraphernalia in circuit court.|sand was sentenced under the First Offender Act. She subsequently appealed to this court • Arkansas Rule of Appellate Procedure-Criminal 1(a) (2014) provides that any person convicted of a misdemeanor or felony by virtue of a trial in circuit court has the right to appeal to the-Arkansas Court of Appeals ■ or Arkansas Supreme Court. In our opinion dismissing the appeal, we reiterated our statement from prior decisions that pleas of guilty or nolo contendere tendered pursuant- to the First Offender Act are not convictions. See Montoya v. State, 2010 Ark. 419, 2010 WL 4366905; Harrell v. State, 331 Ark. 232, 962 S.W.2d 325 (1998); Duncan v. State; 308 Ark. 205, 823 S.W.2d 886 (1992). Because the defendant was not -convicted in' circuit court, we held that she could not appeal to an Arkansas appellate court. ■
Appellant’s first argument on appeal is that Lynn is not controlling authority in this case. He alleges that this is the case for the following three reasons: (1) Lynn involved an appeal from circuit court to an appellate court, not an appeal from a district court to circuit court; (2) the court in Lynn did not address a defendant’s right to trial by jury; and (3) Lynn did not address the possibility that a First Offender Act disposition in district court is,- for the purposes of an appeal to circuit court, a conviction. The differing circumstances presented in this case as compared to Lynn clearly make this ■ case' distinguishable from Lynn and-prevent it from being controlling authority on the issue present ed. However, its holding that a plea of nolo contendere tendered pursuant to the First Offender Act is. not a conviction is instructive to our analysis of the case at bar, and the State’s reliance on Lynn does not provide a. basis for reversal.
Appellant next contends that Arkansas Code Annotated section 5-4-305(a)(1) grants |4a defendant the right to appeal from district court to circuit court, despite the language‘ of Arkansas 'Rule of Criminal Procedure 36. Pursuant to Arkansas Rule of Criminal Procedure 36(a) (2014), a person convicted of a criminal offense in a district court, including1 a person convicted upon a plea of guilty, may appeal the judgment of conviction to the-circuit court- for- the judicial district in which the conviction occurred. The State successfully argued to the circuit court that because, pursuant to Lynn and similar cases, a plea of nolo contendere .tendered' under the First Offender Act is not a conviction, appellant was not-permitted to appeal to circuit court under Rule 36(a). Appellant argues that this decision interferes with the right to appeal he contends was granted ;to him under Arkansas Code Annotated section 5-4~305(a)(l) (Repl. 2013), which states as follows:
(a) If a court suspends imposition of sentence on a defendant or places, him or her on probation, the fact that a judgment of conviction is not .entered does not preclude:,, ( ,.
(1) An appeal on the basis of any error in the adjudication of guilt or any error in the entry of the order of suspension or probation^]
Appellant is incorrect that section 5-4-305 grants him the right to appeal to circuit court from the district court’s order of probation. Section 5-4-305(a)(Z) allows an appeal on two bases: (1) an allegation of error in the adjudication of guilt and (2) an allegation of error in the entry of the order of suspension or probation. There has been no adjudication of guilt in this case; the district court’s order of probation explicitly states this. Appellant also never alleged any error in the entry of the order of' suspension or probation. Therefore, section 5-4-305(a)(l) does not apply in this case and does not provide a basis to reverse the circuit court’s order dismissing the appeal from district court.
| ^Appellant’s final argument is that the circuit court’s order- dismissing his appeal from district court denied- him his rights under the constitutions of the -United States and the State of Arkansas to a trial by jury. However, he is mistaken. In district court, appellant availed himself of the First Offender Act which, as codified, states in relevant part that
[wjhenever an accused enters a plea of guilty or nolo contendere prior to an adjudication of guilt, the judge of the circuit court or district court, in the ease of a defendant who previously has not been convicted of a felony, without making a finding of guilt or entering a judgment of guilt and with the consent of the defendant, may defer further proceedings and place the defendant on probation for a period of not less than one (1) year, under such terms and conditions as may be set by the court.
Ark.Code Ann. § 16-93-303(a)(l)(A)(i)(Supp. 2013) (emphasis supplied). The Act further provides that upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Ark.Code Ann. § 16-93-303(a)(2). Appellant voluntarily agreed to defer his criminal proceedings and be placed on probation for at least one year. If his probation is successful, he will be discharged without an adjudication of guilt, his case will be dismissed, and his record will be expunged. Ark. Code Ann. § 16-93-303(b). If he violates his probation and is adjudicated guilty of the offense charged, he will be able to appeal to circuit court at that time. Thus, appellant’s right to a trial .by jury was not violated by the circuit court’s dismissal of his appeal from district court.
Affirmed. | [
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PHILLIP T. WHITEAKER, Judge
11Appellant Deon Henderson appeals the decision of the Arkansas Board of Review (Board)'that he failed to show good cause for failing to appear at his initial hearing before the Appeal Tribunal (Tribunal). Because the Board’s decision is not supported by substantial evidence, we reverse.
Henderson was employed as a welder by Welspun Pipes. Welspun terminated Henderson after he had received several written warnings for failing to wear safety glasses. Henderson applied for unemployment benefits, but the Arkansas Department of Workforce Services denied his request, finding that he had been discharged from his last work for misconduct. Henderson appealed this decision to the Tribunal, which scheduled a hearing for ^September 25, 2014. Henderson did not appear, for the hearing, and the Tribunal upheld the denial of benefits.
Henderson requested that the matter be reopened by the Tribunal pursuant to'Arkansas Code Annotated section 11-10-524(d)(1) (Repl. 2012). The Tribunal then conducted a hearing to determine whether Henderson had good cause for failing-to appear at the previous Tribunal hearing and whether he was entitled to have the matter reopened.' At that hearing, Henderson testified that he had received notice that his ’initial hearing would be held on September 25, 2014, at 10:30 a.m. Pursuant to instructions, Henderson provided a cell-phone number for participation in the hearing. On the day of the hearing, he was .called on the cellphone number he had provided. He had- a bad connection, however, and was unable to communicate with the hearing officer. Henderson explained that he “went down to the office” in Little Rock to provide his home number so he could have a better connection to speak with the hearing officer. When the hearing officer attempted to call Henderson back, his wife answered the phone and said that he was not home. Henderson said that he had previously been unaware that he- had bad cell recep tion, and he tried- to contact the Tribunal within ten minutes of the starting time of the hearing, although he could not remember to whom he spoke.
Based on this testimony, the Tribunal found that Henderson had received notice of the September 25 hearing but did not call ahead of time to leave his contact information. The Tribunal further found that when the hearing officer attempted to call Henderson, the officer was advised that he was not available. Finally, the Tribunal found that Henderson did not Ucontact the Tribunal'ten minutes after the start of the hearing as instructed. The Tribunal therefore found that Henderson did not present good cause for failing to appear at the previous héaring and was thus not entitled to have the case reopened.
Henderson appealed the Tribunal’s decision to the Board, which affirmed. Like the- Tribunal, the Board found that Henderson did not appear at the initial hearing, did not provide a contact number to the Tribunal prior to the hearing time, and did not contact the Tribunal ten minutes after the hearing’s scheduled start time-when he failed to receive a call. The Board determined that Henderson did not follow the instructions on the notice that would have ensured his ability to participate. in the initial, hearing. The. Board therefore concluded that Henderson did not show good cause for failing , to appear at the initial hearing.
On appeal, the Board’s findings of fact are conclusive if they are supported by substantial evidence. Marshall v. Dir., 2012 Ark. App. 317, 2012 WL 1526344. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support the Board’s conclusion. Id. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findingsv Id. Even when there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id. Whether the Board’s findings are supported by . substantial evidence is a question of law, and, on appeal, this court may reverse if those findings are not supported by substantial evidence. Grace Drilling Co. v. Dir., 31 Ark. App. 81, 790 S.W.2d 907 (1990).
|4We conclude that the Board’s findings are' riot supported by substantial evidence. The only testimony before the Board was Henderson’s, and he testified that he had a bad cellphone connection and tried to contact the Tribunal to provide a home phone number with a better connection. He also testified that he did attempt to contact the Tribunal within ten minutes. Thus, the only evidence before the Tribunal and the Board was that Henderson did, in fact,. comply with the instructions regarding the hearing. Because we conclude the Board’s decision could not reasonably be reached based upon the evidence before it, we reverse and remand for further proceedings. See Green v. Dir., 2015 Ark. App. 200, 2015 WL 1276167, (reversing and remanding where the facts recited in the Board’s decision were incorrect).
Reversed and remanded.
Kinard and Hoofman, JJ., agree. | [
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LARRY D. VAUGHT, Chief Judge.
| iSomers Matthews appeals the trial court’s order increasing his present alimony obligation and striking, as a discovery sanction, his own motion requesting reimbursement for a previous overpayment of alimony. We affirm.
The parties were divorced in 1995. At that time, Somers was ordered to pay Katherine alimony in the amount of $4500 per month until September 1, 1997, when the alimony would decrease to $4000 per month until September 1, 1998, when the alimony would decrease to $3500 per month until September 1, 1999, when the alimony would decrease to $3000 per month until Katherine died or remarried. However, alimony was reduced to $1935 per month in May 1996, due to Somers leaving his employment at 12Stephens, Inc. Subsequently, alimony was increased to $3500 per month in March 2006, but this award was reversed by this court in April 2007, and the $1935 per month alimony was reinstated.
In June 2007, Somers filed a motion to modify the amount of life insurance he was required to maintain on his life; to terminate the charging order by which his funds were held in the registry of the court; and to require reimbursement by Katherine of $12,520 in overpayments of alimony resulting from the reversal of the 2006 increase in alimony by this court. In response, Katherine filed a counterclaim for an increase in alimony, alleging that there had been a substantial change in circumstances that justified such an increase.
In September 2007, Katherine filed a motion to compel Somers to respond to interrogatories and requests for production of documents she had submitted to him in late June 2007; in response, Som-ers alleged that Katherine, too, had failed to respond to discovery requests submitted to her. The trial judge ordered Somers to provide the information requested by Katherine on or before September 21, 2007. On September 26, 2007, Katherine filed a second motion to compel, stating that Somers had furnished bank statements from May 2006, through July 2007, but had not furnished: (1) a copy of his 2005 federal and state income tax returns; (2) copies of his 2005 W-2, 1099, K-l or other documents showing income received in 2005; (3) a copy of his 2006 federal and state income tax returns; (4) copies of his 2006 W-2, 1099, K-l or other documents showing income received in 2006; (5) a copy of his affidavit of financial means; (6) copies of his bank |sstatements from January 1, 2006, through March 2006; (7) copies of his cancelled checks and deposit slips from January 1, 2006, through present; (8) copies of his credit card statements from January 1, 2006, through present; or (9) copies of accountant work papers for 2005 and 2006. The trial court gave Somers until 4:30 p.m. on November 15, 2007, to furnish the above identified information to Katherine. On November 16, 2007, Katherine filed a third motion to compel, stating that Somers had still not provided: (1) his 2005 state tax return; (2) 2006 federal and state tax returns; (3) an affidavit of financial means; (4) bank statements from January 1, 2006, through March 2006; (5) copies of cancelled checks and deposit tickets for the checking account from January 1, 2006, through present; or (6) a Form 1099 from Sherwood Land Company, Inc. She alleged that she had provided Somers with all information requested of her, including medical records.
A hearing on Katherine’s third motion to compel was held on November 29, 2007, one day before the hearing on the parties’ pending competing requests for relief. At that hearing, Somers’s counsel asserted that Somers was then at his counsel’s office completing his affidavit of financial means. His counsel also stated that the 2005 state tax return had been provided; the 2006 tax returns had not yet been prepared; and that there were no bank statements for the checking account. Somers’s counsel further conceded that there was no issue concerning Somers’s ability to pay alimony and that he had always had the ability to pay alimony. As a result of Somers’s failure to provide the requested information, the trial court sanctioned him by striking his motion requesting repayment of the excess alimony he [thad paid to Katherine. An order reflecting this sanction, as well as the finding that Somers had the ability to pay a reasonable amount of alimony, was subsequently entered on January 2, 2008. Additionally, Somers was ordered to pay a total of $1500 in attorney fees ($350 pursuant to an order to compel entered on November 19, 2007, and $1150 in the January 2, 2008, order).
The following day, Somers’s motion to reduce the insurance amount and terminate the charging order and Katherine’s request for an increase in alimony were heard. After the hearing, the trial court issued a letter opinion in which it found that the amount of alimony paid by Som- ers to Katherine should be increased to $4500 per month. In reaching this decision, the trial court gave substantial weight to Katherine’s rheumatologist, Dr. Columbus Brown IV, who testified that since the last hearing, Katherine’s disability rating had increased from 60-70% to 80-85%; that her rheumatoid arthritis was presently not under control; that he was of the opinion that she was unable to hold a full-time job; and that while he recommended an IV treatment of Orencia to treat Katherine’s disease, Katherine did not have the funds to avail herself of that treatment at this time. Likewise, the trial court gave no weight to Somers’s vocational rehabilitation expert, Bob White, who testified that he believed Katherine could work. The trial court found that White did not interview Katherine and used outdated medical information in his assessment. The trial court further found that Katherine’s management of her apartments, from which she earned about $1000 per month in income, was all the work Katherine was capable of performing and was all the |,fincóme she was capable of earning in light of her education and her health problems.
Katherine testified about her rheumatoid arthritis, her medication, and the fact that she was limited in what she could do. The trial court found that Katherine’s exercise with her personal trainer was determined by her doctor to be beneficial to her; that she was driving a vehicle that had 244,000 miles on it, that she was having mechanical problems with her vehicle due to its age, and that she needed a new roof on her house. The trial court also noted that Katherine had to use proceeds from an insurance settlement from a burglary to meet her monthly living expenses. The trial court found that Somers was in a far superior position to Katherine financially; that he clearly had the ability to pay alimony; that his income was substantially more than Katherine’s; that his resources were greater than Katherine’s; that he had a college degree while Katherine did not; and that he was capable of working while she was not.
After deducting expenses attributable to the parties’ daughter, who is attending Vanderbilt University, the trial court found that Katherine’s monthly expenses were $5365 (not including the $400 monthly Orencia treatments recommended by Dr. Brown), and her income, including current alimony, was $3012 per month, leaving her a monthly deficit of $2353 (the order erroneously states that there is a deficit of $2335). The trial court then awarded an increase in alimony to $4500 per month, which would increase Katherine’s total income to $5562 per month with expenses of $5365 per month. The trial court found that this amount would allow Katherine to meet her monthly living expenses and to meet | ^extraordinary and unusual living expenses, and it would allow her to reasonably maintain her standard of living. An order to this effect was entered on January 2, 2008. This appeal followed.
Alimony Increase
Somers’s first point on appeal is that the trial court abused its discretion by increasing the amount of Katherine’s alimony. In Bracken v. Bracken, 302 Ark. 103, 105, 787 S.W.2d 678, 679 (1990) (citations omitted), our supreme court stated:
An award of alimony is always subject to modification, upon application of either party. Such modification must be based, however, on a change in the circumstances of the parties. The burden of showing such a change in circumstances is always upon the party seeking the change in the amount of alimony. The primary factors to be considered in making or changing an award of alimony are the need of one spouse and the ability of the other spouse to pay. An award of alimony is in the sound discretion of the chancellor, and we will not reverse such an award unless the chancellor has clearly abused his discretion.
The purpose of alimony is to rectify the economic imbalance in earning power and standard of living of the parties to a divorce in light of the particular facts of each case. Harvey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988).
In this case, there is no question that Somers has the ability to pay the amount of alimony ordered by the trial court; in fact, that was conceded by his counsel. Therefore, the question becomes whether Katherine has a need for additional alimony. We cannot say that the trial court abused its discretion in awarding Katherine an increase in alimony. Katherine is being treated for the progressive disease of rheumatoid arthritis, which her doctor testified has become worse since the last hearing. Her doctor is now recommending a new treatment |7in addition to her current treatments, but she is unable to pay for the treatment at this time. Furthermore, her doctor testified that it was his opinion that she was unable to hold a regular job. The trial court gave her doctor’s testimony great weight. While Som-ers contends on appeal that according to his own expert, Bob White, Katherine could hold a job, the trial court specifically found White’s testimony was not entitled to any weight. It is the province of the trial court to determine witness credibility, as the trial court is in the best position to make credibility determinations.
We note that the increase in alimony makes Katherine’s monthly income exceed her monthly expenses on her affidavit of financial means; however, her affidavit did not include the $400 monthly Orencia treatments that Dr. Brown testified Katherine needed in addition to her other medications in an ongoing attempt to control her rheumatoid arthritis. The addition of that treatment would increase Katherine’s monthly expenses beyond her monthly income. Additionally, it appears that in setting the $4500 monthly alimony, the trial court took into consideration both Katherine’s need for a new vehicle at some point in time and some major home repairs that were going to need to be made.
Somers also makes other arguments against the alimony increase. He argues that the reason Katherine wants an increase in alimony is because she wants him to be responsible for their daughter’s allowance and clothing at college. However, the trial court removed any expenses attributable to the parties’ daughter in its computations, and Katherine still did not have enough income to cover her monthly expenses. He further argues that this increase in | salimony is equivalent to a distribution of his non-marital property. However, payment of alimony after a divorce comes from the payor’s separate property; therefore, the alimony payments from Somers to Katherine are necessarily paid from Somers’s separate property.
Discovery Sanction
Somers’s second point on appeal is that the trial court abused its discretion in striking his motion and denying him the right to seek reimbursement of the overpayment of alimony stemming from the 2006 appeal to this court in the amount of $12,520. We disagree.
When a party fails to obey a discovery order, the circuit court “may make such orders in regard to the failure as are just....” Ark. R. Civ. P. 37(b)(2). The Rule gives a non-exclusive list of examples of sanction orders. The list includes orders “striking out pleadings or parts thereofi.]” Ark. R. Civ. P. 37(b)(2)(C). Mr. Matthews’s motion for reimbursement was not a pleading as that term is defined by Rule of Civil Procedure 7(a). But, his motion contained a request for relief, and Rule 37(b)(2)’s general grant of sanction authority to the circuit court is broad enough to cover an order striking a motion. The imposition of sanctions for the failure to make discovery rests in the trial court’s discretion, and the appellate courts have often upheld the trial court’s exercise of discretion in granting severe Rule 37 sanctions for flagrant discovery violations. Rush v. Fieldcrest Cannon, Inc., 326 Ark. 849, 934 S.W.2d 512 (1996). There is no requirement that a trial court make a finding of willful or deliberate disregard prior to sanctions being imposed for failure to comply with discovery requirements. Coulson Oil Co. v. Tully, 84 Ark.App. 241, 139 S.W.3d 158 (2003).
|Somers argues that there was no flagrant discovery violation because many of the documents requested were not in his possession or did not exist. We do not agree. Katherine had to ask three times for documents; each time, Somers would provide a few of the documents. The day prior to the hearing, during the hearing on Katherine’s third motion to compel, it was revealed that Somers was at that time in his attorney’s office completing his affidavit of financial means. Somers cannot seriously argue that he did not have the information to complete his affidavit of financial means more than one day prior to the hearing where a request for an increase in alimony was being entertained. Surely he knew the extent of his income, the amount he owed creditors, and his average monthly expenses prior to that late date. His actions, indeed inaction, were a flagrant disregard of the trial court and its orders, his ex-wife, and the entire judicial system. We find no abuse of discretion in the trial court’s proper use of this sanction.
Finally, Somers makes the passing argument in his brief that “to strike the request to be reimbursed the overpayment of alimony ignores this Court’s directive from the last appeal.” We disagree. Our order was not impugned; it was not addressed. The trial court never reached the merits of the issue of reimbursement because that motion, which was subject to discovery-violation sanctions, was stricken by the trial court under Rule 37 of the Arkansas Rules of Civil Procedure. The trial court did not reach the merits of this argument; neither can this court.
Affirmed.
ROBBINS, MARSHALL, HENRY and BROWN, JJ., agree.
HART, J., dissents. | [
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DAVID M. GLOVER, Judge.
17A Drew County jury found appellant, Phillip Hammock, guilty of failing to register as a sex offender. Hammock was sentenced, as a habitual offender, to twenty-one years in prison. On appeal, he argues that Arkansas’s sex-offender registration requirement does not apply to him, that his conviction for failure to register as a sex offender is an unconstitutional ex post facto application of the law, and that the trial court’s ruling on a Batson challenge was against the preponderance of the evidence. We affirm.
It is undisputed that in June 1996 Hammock pleaded guilty in the state of Washington to the offense of third-degree rape. He was sentenced to fourteen months in prison, with two additional years of community placement, and required to register as a sex offender in Washington.
|2Testimony from Paula Stitz, the manager of the Arkansas Crime Information Center sex-offender registry, confirmed that Hammock registered as a sex offender on March 12, 2002, and then regularly sent back required verification letters every six months until February 2004, when he ceased doing so. Stitz further testified that if Hammock was required to register in any other state, he was also required to register in Arkansas.
For his first point of appeal, Hammock argues that his conviction for failing to register as a sex offender was an unconstitutional ex post facto application of the law and that the trial court erred in applying the registration requirements of the Sex Offender Registration Act of 1997, found at Arkansas Code Annotated section 12-12-901 et seq., to him. Specifically, he argues that section 12-12-905 (Supp.2007) did not apply to him because the statute did not become effective until after his conviction. This statute provides, in pertinent part:
(a) The registration or registration verification requirements of this subchapter apply to a person who:
(1) Is adjudicated guilty on or after August 1,1997, of a sex offense, aggravated sex offense, or sexually violent offense;
(2) Is serving a sentence of incarceration, probation, parole, or other form of community supervision as a result of an adjudication of guilt on or after August 1,1997, for a sex offense, aggravated sex offense, or sexually violent offense[.]
The trial court found that subsection (a)(2) was applicable to Hammock, as he was still serving some form of community supervi sion after August 1, 1997. Hammock argues that |3the language of the statute “states that registration is applicable to him only if he was serving some form of community supervision for an adjudication of guilt on or after August 1, 1997.” (Hammock’s emphasis.)
We hold that it is unnecessary to interpret section 12-12-905 in order to determine whether Hammock was required to register under it as a sex offender in Arkansas because the next successive statutory section, § 12-12-906(a)(2)(A)-(B)(i) (Supp.2007), clearly requires Hammock to register as a sex offender. This statutory section requires in more definite terms:
(2)(A) A sex offender moving to or returning to this state from another jurisdiction shall register with the local law enforcement agency having jurisdiction within three (3) business days after the sex offender establishes residency in a municipality or county of this state.
(B)(i) Any person living in this state who would be required to register as a sex offender in the jurisdiction in which he or she was adjudicated guilty of a sex offense shall register as a sex offender in this state whether living, working, or attending school or other training in Arkansas.
Hammock’s conviction in the state of Washington required that he register as a sex offender; therefore, under section 12-12-906(B)(i), he is also required to register as a sex offender in Arkansas.
For his second point of appeal, Hammock, who is African-American, argues that the trial court’s ruling on his Batson challenge was against the preponderance of the evidence. He argued that the State exercised five peremptory challenges, four against African-⅛ American jurors and one against a Caucasian juror, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
In Hinkston v. State, 340 Ark. 530, 538-39, 10 S.W.3d 906, 911-12 (2000), our supreme court set forth the three-step process to be used by our trial courts in the case of Batson challenges:
We have delineated a three-step process to be used in the case of Batson challenges. MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998). First, the strike’s opponent must present facts to raise an inference of purposeful discrimination; that is, the opponent must present a prima facie case of racial discrimination. Id. Second, once the strike’s opponent has made a prima facie case, the burden shifts to the proponent of the strike to present a race-neutral explanation for the strike. Id. If a race-neutral explanation is given, the inquiry proceeds to the third step, wherein the trial court must decide whether the strike’s opponent has proven purposeful discrimination. Id. Here, the strike’s opponent must persuade the trial court that the expressed motive of the striking party is not genuine but, rather, is the product of discriminatory intent. Id.
A trial court’s ruling on a Batson challenge will be reversed only when its findings are clearly against the preponderance of the evidence; some measure of deference is given to the trial court due to its opportunity to observe the parties and determine their credibility. Id. at 539, 10 S.W.3d at 912.
When it was determined that the court reporter’s recorder had not been on during his Batson challenge, the trial court summarized on the record both Hammock’s Batson^challenge and the State’s explanation. The trial court stated that defense counsel made a Batson challenge to the prosecutor’s five strikes; that the prosecutor explained that all of the strikes he made, including the one against the Caucasian juror, were supported by juror questionnaires that reflected that each juror had previous criminal charges filed against either the juror or a family member; and that the State’s explanation was not disputed by defense counsel. The trial court also noted that it had made the State take one of the stricken jurors despite her answers on the questionnaire. The trial court then asked defense counsel if there was anything else. In response, defense counsel stated only that he had made an exception to the other three strikes made by the prosecutor. The prosecutor then offered that one of the stricken jurors had stated the day before that he held it against the prosecutor that he had sent his brother to prison; the prosecutor also noted that he did keep a black male on the jury. The colloquy continued. The trial court then stated that it was trying to be practical about the situation, noting that “a lot” of African-Americans took themselves off the panel because of their reluctance to judge, which the court could do nothing about. Further, the trial court advised the prosecutor that the State was put on notice that if it was going to use the fact that the juror or a family member had been charged with any offense other than a traffic offense to strike a minority, there had to be “follow up” to find out if the offense “happened in the last twenty years or last two years, where did it happen, first cousin, second cousin, brother, sister.” For emphasis, the trial court explained |fithat being charged with an offense could not be used in an unlimited manner for excusing any particular race. Commenting that it was the best that could be done in the situation, the trial court reiterated that it had made the State take one of the stricken African-American jurors, which left two African-American jurors on the jury panel. Following this, the trial court, for the second time, asked defense counsel if there was anything else. Defense counsel responded only by asking that the record reflect that his client was African-American.
Here, Hammock concedes that the State’s reason for striking the African-American jurors was race neutral. His argument, therefore, lies within the third prong of the test for a Batson challenge— that the trial court did not give him the opportunity to persuade it that the State’s motive in striking the jurors was not genuine but was rather the product of discriminatory intent and he was therefore entitled to a new trial.
Our earlier recitation from the record of Hammock’s Batson challenge indicates that the trial court gave Hammock two opportunities to add anything further to his challenge. The first time, defense counsel noted, without more, that he had made an exception to the other three strikes made by the prosecutor. The second time, defense counsel responded by asking, without more, that the record reflect that his client was African-American. The record reflects there was no attempt by defense counsel to add anything further, even after being asked by the trial court on two occasions. Though Hammock had the opportunity to |7make additional arguments to the trial court, he failed to do so. In Weston v. State, 366 Ark. 265, 275, 234 S.W.3d 848, 856 (2006), our supreme court, citing Owens v. State, 363 Ark. 413, 417, 214 S.W.3d 849, 852 (2005) (internal citations omitted), held:
[I]t is the responsibility of the party opposing the strike to move the matter forward at the third stage of the process and to meet the burden of persuasion. This is not the trial court’s responsibility, as the trial court can only inquire into the evidence that is made available to it. According to this court, if the party opposing the strike does not present more evidence, no additional inquiry by the trial court is required.
Affirmed.
GLADWIN and GRUBER, JJ., agree.
. The trial court required the State to accept one of the African-American jurors that it initially struck; the State filed a notice of cross-appeal regarding this issue, but abandoned its pursuit of the cross-appeal. The jury panel ultimately had two African-American jurors seated on it. | [
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Wood, J.
Appellants were convicted of the crime of Sabbath breaking. The proof for the state was that appellants labored, operating the pumps and fan of the Western Coal & Mining Company at their mine in Franklin county, Arkansas. The defense was that the work alleged was of necessity. The proof on behalf of appellants was, in substance, that the pumps and fan were adapted to the mine in which they were used ; that it was necessary to operate them on Sunday to prevent the probable destruction of the mine, and to protect the lives of the miners; that the suspension of the pumps and fan on Sunday would involve serious loss, delay and inconvenience. The testimony in detail explained how these consequences would follow upon a failure to operate the pumps and fan on Sunday.
The state having shown that appellants labored on the Sabbath day operating the pumps and fan, it then devolved upon the defendants to show that such work was of necessity, unless the state by its own proof had shown such to be the case. Whether the work proved was a necessity, was a matter peculiarly within the knowledge of defendants. Cleary v. State, 56 Ark. 124; Fleming v. People, 27 N. Y. 334. The proof on behalf of the state showed that the work done was necessary to keep the mine from flooding with water, and from becoming dangerous by filling up with gas ; but it did not show that defendants could not have reasonably era-' ployed some other device, in the then condition of the mine, that would have answered the same purpose. Nor did the state’s proof show that by no ordinary prudence could this mine have been constructed in a way to avoid this Sabbath day labor. Hence the burden was left (after the state had shown that the work was done) upon the defendants to make good their special defense. Have they done so?
Courts in construing the term “necessity,” as employed in these Sunday statutes, have generally given it a liberal, rather than a literal, interpretation. It is not an absolute, unavoidable, physical necessity, that is meant, but rather an economic and moral necessity. 2 Bish. Cr. Law, sec. 959; Edgerton v. State, 67 Ind. 588; Hennersdorf v. State, 25 Tex. App. 597; McGatrick v. Wason, 4 Ohio St. 566; Commonwealth v. Knox, 6 Mass. 76; Flagg v. Inhabitants of Millbury, 4 Cush. 243; Wilkinson v. State, 59 Ind. 416.
If there is a moral fitness or propriety for the work done in the accomplishment of a lawful object, under the circumstances of any case, such work may be regarded a necessity, in the sense of the statute. Commonwealth v. Knox, 6 Mass. 76; Slone v. Graves, 145 Mass. 353. But work on the Sabbath, which is apparently in violation of the law, is not morally fit or proper in any case, unless it appears that by no ordinary •discretion or reasonable expense could such labor have been avoided.
Now, coal mining is among the most important and useful of all industries. It is a necessity in the manufacturing and commercial progress of the world. The legislature could not have contemplated the imposition of any restrictions upon this or any other lawful occupation; which would render it impossible or even impracticable. Nevertheless, it is the duty of those engaged in this or any other lawful enterprise to select and arrange the means and appliances incident thereto so as not to violate the law in their practical operation.
The proof nowhere shows that this mine was properly constructed. Nor does it show, either on behalf of the state or the defendants, that this Sabbath day labor of operating the pumps and fan might not have been avoided by a different construction of the mine, or by other appliances just as effectual; and that, too, without any unreasonable expenditure of time or money. One cannot negligently or willfully create the necessity which he pleads in his defense. The law declared by the lower court was as liberal to appellants as they could expect, and was in line with the opinion of this court in Cleary v. State, supra.
The prima facie case for the state was not overcome by proof on behalf of appellants, and the verdict of the jury was correct.
Affirm the judgment.
Battle, J.
Among the alleged errors enumerated by appellants in their motion for a rehearing is that part of the opinion in this case in which it is said that, if the labor performed by them on the Sabbath was necessary, the necessity of its performance on that day was within their peculiar knowledge, and the burden was on them to show it. They contend that, if this labor was not a work of necessity on Sunday, the state ought to prove it, because the evidence necessary for that purpose was not peculiarly within their knowledge. The work done by them was performed in the operation of machinery to propel fans and pumps for the purpose of keeping a mine free from gas and water. They say that the state could have used the inspector, or superintendent of the mine, or any of its employees, “or indeed anyone familiar with the operation and necessity of a coal mine,” to show whether or not this work was one of necessity, and hence this fact was not within their peculiar knowledge. To test the correctness of this contention it is necessary to refer to the rule upon this subject.
Mr. Greenleaf says: “Where the subject matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party. Such is the case in civil or criminal prosecutions for a penalty for doing an act which the statutes do not permit to be done by any persons, except those who are duly licensed therefor; as, for selling liquors, exercising a trade or profession, and the like. Here the party, if licensed, can immediately show it, without the least inconvenience; whereas, if proof of the negative were required, the inconvenience would be very great.” 1 Greenleaf on Evidence, sec. 79.
As to negative averments Mr. Wharton says : “Where, in a statute, an exception or proviso qualifies the description of the offense, the general rule is that the indictment should negative the exception, or proviso. In such cases, when the subject of the exception is peculiarly within the defendant’s knowledge, and the negative cannot be proved by the prosecutor, the burden of proving the affirmative may be on the defendant, as a matter of defence. But another distinction is to be kept in mind. It may be that the negative to be established is something which virtually imputes certain positive conditions to the defendant, as on indictments for false pretences, where the charge of untruth is equivalent to a charge of falsity, in which case the burden of proving the negative is on the prosecution ; and on an indictment for perjury, where to charge a defendant with swearing to a fact, not knowing it to be true, is equivalent to a charge of rash and false swearing, in which case the defendant’s want of knowledge must also be shown by the prosecution. On the other hand, where the negative involves no criminality on the part of the defendant, then the burden may be on him to prove the affirmative. Thus the burden of proving the defendant to be a ‘traveler,’ under the statutes prohibiting wearing of concealed weapons, is on the defence.” Wharton’s Cr. Ev. (8 ed.) sec. 128.
In cases in which the defendants are indicted for selling liquor without license, Mr. Bishop explains the rule as follows: “Must the negative averment, that the defendant was not licensed or otherwise authorized to make the sales be proved? Now, in principle, as this negative matter is a part of the government’s case against the defendant, it must in some way be made ;prima facie to appear at the trial. But not all of every case is established by oral testimony, depositions and other documents. Much is derived from presumption. One of the presumptions is that what is common in general prevails in the particular ; another, that a fact, the existence of which is once shown, continues. There fore, where the general law withholds from the mass of the people the right to make the particular sale in controversy, and permits it only to exceptional persons, of everyone of whom it is certainly true that at some time he was not allowed to do it, the jbrima facie presumption is double: first, that the instance in controversy accords with what is general; and secondly, that, as at one time the defendant had no license, he has none now. Hence, if he has a license, he must show it. And this doctrine promotes alike convenience and justice ; for it is troublesome, and it may be even impossible, to prove a negative, while, if the defendant has a license, he can readily produce it.” Bishop’s Statutory Crimes (2 ed.), sec. 1051.
The reason given by Mr. Bishop for the rule in the cases he was discussing is really the reason why the matter to be proved was in the peculiar knowledge of the defendant. As he is an exception in the mass of the people, it is to be presumed that the fact to be proved is more peculiarity within his knowledge. An illustration of this is the licensed liquor dealer. Another is Wiley v. State, 52 Ind. 516. In that case the defendant was indicted for carrying a concealed weapon, he not being a traveler. The court held that the burden was on him to prove that he was a traveler, and said: “We think the exception relates to the appellant personally, and is particularly within his knowledge. Besides, a majority of persons are not travelers. The presumption was, that the appellant was not a traveler, and if he desired to take himself out of the operation of the general rule, it was incumbent on him to make the proof.” United States v. Hayward, 2 Gall. 485; Rex v. Turner, 5 Maule & S. 205.
In the case before us, the appellants claimed to be an exception to a rule. The statute makes it a public offense for anyone to labor on the Sabbath, unless the labor performed is a work of charity or necessity. They claimed to be within the exception, because their labor was necessary to keep the mine in which they were working free from gas and water on Sunday, and thereby to preserve the mine, and make it a safe and fit place in which to work on Monday ana succeeding days. Whether this be true or not depends on the locality of the mine, the extent it is subject to be filled by water and gas, . the time and expense required to free it from the’ gas and water, and to preserve the walls. Without a knowledge of these facts, no one can tell whether it be necessary to work in or on the mines on the Sabbath in order to operate them at a profit on other days. These facts are peculiarly, not. exclusively, within the knowledge of the appellants. Their observation, experience, and knowledge as to the mine, its construction, the extent to which it is exposed to gas and water, the use and capacity of machinery usually employed in operating it, presumably enabled them to prove with more facility than the state can whether their work on Sunday was a necessity. It imposed on them no hardship, and exposed them to no penalty to do so. In fact, they should not violate the Sabbath unless it appeared to them to be a' necessity, and, when they do, ought to be able to prove that they come within the exception.
Appellants complain of this court misunderstanding an instruction to the jury which was asked for by them, and refused by the circuit court. It was as follows : “It is not necessary, in order for the defendants to be acquitted, that the evidence should satisfy the jury that the work done by the defendants was a work of necessity, but the jury should acquit them if there arises out of the whole evidence a reasonable doubt as to whether or not the work done by them was a work of necessity, as defined in the foregoing instructions.” Under the evidence we deemed it unnecessary to notice it, as, under the undisputed facts in the case, we thought the refusal to give it was not prejudicial to appellants.
Witnesses testified that the mine at which appellants labored on a Sunday was what is known as a “wet mine,” and was exposed to gas ; that it was necessary to use a pump and fan all the time in order to keep it in a safe condition; that, if the pump was not operated on Sunday, the inflow of water would be so great as to require the whole of Monday, and probably Tuesday, to pump it out, and the roof in some portions of the mine would be liable to fall in on account of the accumulation and effect of the water ; and that, unless the fan was continually kept in motion, gas would accumulate, and it would be dangerous for laborers to enter the mine. And they further testified that a pump of sufficient capacity to pump out on Monday all the water accumulating on Sunday, and a fan capable of expelling all the gas on Monday by noon, could be procured, but the pump and fan already in use were sufficient for that purpose if operated on the Sabbath. But no witness testified that the walls and roof of the mine could not have been so constructed at a reasonable expense as to prevent them caving or falling in after being exposed to the water.
The whole effect of this evidence was to show that it was more profitable to use, on the Bord’s day, the fan and pump already in operation, than to construct the walls and roof of the mine in such a manner as to prevent them falling in on account of the effects of the water, and to procure and to use a pump and fan of sufficient capacity to expel on Monday all the gas and water accumulating on the preceding Sunday. But this was not sufficient. If true, it does not prove that the labor performed by appellants was a work of necessity on Sunday. For, if the operation of the mine might have been made practicable and remunerative, at a reasonable cost, without laboring on Sunday, by the structure of its walls and roofs, and use of improved appliances, then there was no necessity for work on the Sabbath. Labor cannot be lawfully performed on the Lord’s day merely for the purpose of adding profit to the accumulation of a business already lucrative; for, if it could, all kinds of work might be a necessity, and it ■ would be a sufficient excuse for labor on Sunday to say that it was convenient and profitable; and all barriers to the desecration of the Sabbath would be thereby broken down.
[As to what constitutes Sunday labor, see note to Quarles v. State, (Ark.) 14 B- R. A. 192. — Rep.]
We deem it unnecessary to add anything further to what has been said in the opinion heretofore delivered in this case.
The motion of appellants is denied. | [
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Bunn, C. J.
A suit in chancery was pending in the Clark circuit court, wherein the appellant, Powers, was plaintiff and the Arkadelphia College was defendant, for a balance of $7,000 or $8,000 claimed by Powers to be still due him on his contract for erecting the college buildings. By agreement of counsel representing the respective parties, they met at Arkadelphia, and took depositions in the case on the 17th day of August, 1893. On the same day the complaint in this cause was filed by counsel for plaintiff herein, who were also counsel for defendant in the chancery cause in which the depositions were being taken, as stated ; and summons at once issued, and was served upon appellant, to be and appear in the Clark circuit court to defend herein.
At the following term of said circuit court, defendant, Powers, appeared for the sole purpose of moving the court to quash the summons served upon him as aforesaid, showing by affidavit that he was, at the time of the service of said summons, and continued to be, a resident of the city of Little Rock, in Pulaski county, as he had been for a long time previously, and that he was present in Arkadelphia on the 17th day of August, 1893, for the sole purpose of attending the taking of the depositions aforesaid, and that the same was necessary, and that advantage of attendance was taken to compel him to defend his said suit in another jurisdiction than that of his residence. He therefore prayed that the summons be quashed. His motion to that effect, however, was overruled, he saved exceptions, judgment was rendered against him, and he appealed.
There is really no controversy as to the facts, — at least none that could affect the issue. We think the judgment ought to be reversed. After several sections immediately preceding, designating where civil actions are to be brought, according to the nature of the subject-matter and the relative situation of the parties, section 5696 of Sandels & Hill’s Digest, reads thus: “ Rvery other action may be brought in any county in which the defendant, or one of several defendants, resides, or is summoned.” Similar statutes are found in all, or nearly all, the states. The appellee contends that the privilege of defendant should be restricted to the rule held by some of the courts, as in Illinois, for example, — that is to cases of arrest on civil process,- — and that the exemption does not extend to a non-resident suitor in ordinary cases, temporarily present in the state and county, or in the county, for the mere purpose of attending a suit to which he is a party, unless his presence has been procured by some artifice, trick or fraud of plaintiff or of his counsel.” Citing Greer v. Young, 120 Ill. 184. We' think, however, that the weight of authority is against that view of the subject. See Works, Courts and their Jurisdiction, pages 258, 259 and 260.
One line of authorities rests the privilege solely on the familiar constitutional ground of freedom from arrest on civil process, but we prefer to rest it also on the ground of a sound public policy, so aptly expressed by the supreme court of Ohio in the case of Andrews v. Lembeck, 46 Ohio St. 40, thus : “The question is one which profoundly concerns the free and unhampered administration of justice in the courts. That suitors should feel free and safe at all times to attend, within any jurisdiction outside of their own, upon judicial proceedings in which they are concerned, and which require their presence, without incurring the liability of being picked up and held to answer to some other adverse judicial proceeding against them, is so far a rule of public policy, that it has received almost universal recognition wherever the common law is known and administered,” [citing many authorities]. And, continuing, say that court: “The contention that the application of this principle should be or is confined to cases where the suitor is served with process while attending upon judicial proceedings without his state is not supported by sufficient force of reason to justify the distinction.” The statute of that state is similar to ours. In Lamkin v. Starkey, 7 Hun, 479, the supreme court of New York said: “The court has power, independently of the statute,.to protect its suitors, officers and witnesses.” And the same substantially is said by the same court in Matthews v. Tufts, 87 N. Y. 568. And it further appears, from the great weight of authorities, that the privilege is not only assured while one is attending upon strictly judicial proceedings, but upon any tribunal whose business has reference to or is intended to affect judicial proceedings.
[Noth. — As to immunity from process, see note to the above case by W. C. Rodgers, Esq., in 42 C. L. J. 397.]
In Larned v. Griffin, 12 Fed. Rep. 590, the court said: “It has long been settled that parties and witnesses attending in good faith any legal tribunal, with or without a writ of protection, are privileged from arrest on civil process during attendance, and for a reasonable time in going and coming;” and, further, “that this protection extends to attendance of parties and witnesses before arbitrators, commissioners and examiners.” That was a case of arrest, it is true; but it is cited to show the nature of the tribunal, an attendance upon which will come under the rule.
, In the case of Mulhearn v. Press Pub. Co. 11 L. R. A. 101, the supreme court of New Jersey said that the vice-president of a foreign corporation attending as a witness before a commissioner of that court, which testimony is to be used in a cause therein pending, is privileged from service of summons to appear in another action against said corporation.
The weight of authority is decidedly with the appellant, and the judgment is reversed, and the case is dismissed, without prejudice. | [
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Riddick, J.
Henry K. Fitzhugh, as administrator of the estate of John Franklin, deceased, brought suit and recovered a judgment in the Crawford circuit court against the defendants, Kansas & Arkansas Valley Railway' and Kittle Rock & Fort Smith Railway, for the sum of three thousand and fifty dollars. On the same day that the judgment was rendered, a motion for a new trial was filed, overruled, exceptions noted, appeal prayed, and sixty days granted defendants to prepare and file their'bill of .exceptions. Fight days afterwards, and before the bill of exceptions was prepared and submitted to the judge who presided at the trial, he died.. Thereupon said defendants filed their petition in this court, asking that the clerk of the Crawford circuit, court be compelled by a writ of mandamus to sign the-name of the presiding judge to said bill of exceptions..
The application for the writ must be denied. It, is not the duty of the clerk of the circuit court, under any circumstances, to sign the name of the-judge thereof to a bill of exceptions, and the writ of mandamus cannot be invoked to compel an officer to do-that which the law does not make it his duty to do. It. lies only to compel the performance of legal duties. Chicot Co. v. Kruse, 47 Ark. 85; Fitch v. McDiarmid, 26 Ark. 482; Brownsville v. Loague, 129 U. S. 493; Merrill on Mandamus, sec. 50. | [
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Hughes, J.,
(after stating the facts). The motion to make the complaint more definite and certain by inserting a full and proper description of the payee of the note sued on was properly overruled by the court. The note was made payable to the Southern Hedge Company, and the complaint alleged that it was endorsed before maturity, and this was not denied in the answer. The holder was not bound to set out a description of the payee.
The fact that the Southern Hedge Company was a fraudulent association was no defence to the suit by an innocent holder upon this note; and the appellant was not entitled to have the organizers of said association made parties; and there was no error prejudicial to appellant in striking out these allegations and requests from the answer. Thompson v. Love, 61 Ark. 81.
There does not appear any reason for transferring the cause to equity, and there was no error in the court’s refusal to do so.
Having executed his note payable to the Southern Hedge Company, the appellant could not deny its existence in a suit upon the note by an assignee thereof for value and without notice before maturity. Tiedeman on Commercial Paper, sec. 118.
The plea of “no consideration’’ in the amended answer could not be urged to the note in the hands of an assignee for value and without notice before maturity. Cagle v. Lane, 49 Ark. 465; Tabor v. Bank, 48 Ark. 454; Tiedeman on Commercial Paper, sec. 288.
The allegation in the amended answer that the note was not transferred to appellee by any one authorized to transfer the same was a good defence, though not stated with proper definiteness and detail. It should have set out the facts, rather than a conclusion. But the demurrer should have been treated as a motion to make more definite and certain, and the appellant should have been allowed to amend.
Por the error in sustaining a demurrer to the third ground of the amended answer, and refusing appellant leave to amend his answer, the judgment is reversed, and the cause is remanded, with instructions to overrule the demurrer as to the third defense in the amended answer, and that the appellant be granted leave to make same more definite and certain. | [
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Bunn, C. J.,
(after stating the facts.) The principal question in this case arises from the contention of the appellee, and the decision of the chancellor, that the statute digested as sections 1842 and 1843, and commonly known as the “Anti-Prize-Fighting Baw,” is invalid. The argument by which it has been sought to be shown to be invalid is this: The original act entitled “An act to punish and prevent prize fighting in Arkansas” approved March 31, 1891, was invalid as to its second section ; and that renders the corresponding section of the act of April 13, 1893, also invalid, the latter being but an amendment of the former; and, if the former be invalid, the latter cannot be valid, since there was nothing to amend to, when the amendment was made in 1893.
The history of the act may be briefly stated as follows : During the session of the general assembly in 1891, a bill was introduced and passed in the senate, entitled a bill for an “Act to punish and prevent prizefighting in the state of Arkansas.” It contained but two sections, — one, the declaratory section', denouncing prize-fighting with or .without gloves as an offense; and the other simply fixing the grade of the crime as a felony, and the punishment accordingly. The bill thus went to the house of representatives, and was there regularly amended and passed, the yeas and nays being called and entered in the journal as amended, and returned in that shape to the senate. The amendments by the house were three in number. Only one of them (the second) it is necessary to notice particularly. The second amendment changed the grade of the offense, as fixed in the original bill, so as to make it a misdemeanor, instead of a felony, and fixed the punishment accordingly different, that is, by fine and imprisonment in the county jail. When the senate received back for its consideration the bill as amended, it declined to concur in any of the three amendments adopted by the house, and requested the appointment of a committee of conference, appointing and naming at the same time its members of such committee, and the matter was then referred again to the house, which acceded to the request of the senate, and named the members of the conference committee to act on its part; and so the matter was by both houses referred to this conference committee, which some time afterwards reported to the two houses unanimously recommending that the senate adopt amendments numbers 1 and 3 of the house, and that the house recede from number 2. This report was re ceived and adopted in the house, and presumably in the senate, as no question is raised as to its disposition there.
The constitutional provision which, it is contended by the petitioner, was not observed in the recession of the house from its amendment number 2, is section 22, article 5 of the constitution, and is as follows, to-wit: “Every bill shall be read at length, on three different days, in each house, unless the rules be suspended by two-thirds of the house, when the same may be read a second or third time on the same day; and no bill shall become a law unless, on its final passage, the vote be taken by yeas and nays ; the names of the persons voting for and against the same be entered on the journal; and a majority of each house be recorded thereon as voting in its favor.” The only objection seriously made to this procedure is that, in its recession from the second amendment, the house did not vote by yeas and nays, as required to be done on the final passage of every bill.
Adhering to the doctrine laid down by this court, notably in Vinsant v. Knox, 27 Ark. 279 and Smithee, v. Garth, 33 Ark. 17, we hold that the provision of the constitution referred to is mandatory, and we would emphasize the doctrine with all the force that language can give. This, as we understand it, is all that the petitioner contends for, and all that the chancellor found necessary for a basis for his opinion.
, But, while the provision is thus mandatory, it must be confined in its application to cases and.phases of cases plainly .within the scope of its meaning. It is not expected, nor desired, that a constitution should enter into details, or to provide for every contingency and exigency that may arise in the course and progress of legislation. A fundamental law must, of necessity, be more or less a general law, and, in construing any of its provisions, we are never to lose sight of the manifest object of the same, whether that be in the shape of a permission or prohibition. Although learned jurists, authors, statesmen, politicians and courts have attributed to like provisions almost countless objects, yet the common meaning of it is that it is a precaution against mistake in the number of votes for and against the bill, and, secondarily, that it places a personal responsibility on each voter in the body, so that his constituency may know how he voted on the particular measure.
If, in the details of legislation, it becomes impossible, or even inconvenient, to rigidly adhere to the letter, and yet accomplish the desired end, by acting in the spirit of the constitution, the latter is preferable, because, while the letter killeth, the spirit maketh alive.
Narrowed down, the question is, is the disposition of amendments, either by vote of adoption, rejection or recession, a voting on the final passage of the bill? And, to reduce it down to the last analysis, is the vote on the appointment of a conference committee, or on the adoption of its report, a vote on the final passage of the bill? The more important of these two votes is the one agreeing to the appointment of the committee, for a conference committee is a sort of legalized arbitrator to whom is committed the function of settling differences between the two houses, each house, by its vote appointing the committee, agreeing that the legislation forming the ■subject-matter of the bill is of more importance than adherence to any differences ; and, when this committee ■can agree and recommend a course of action, it is practically adopted as a matter of course. There is no •question as to the majority vote, nor as to how anyone may have voted, for all are voting now on the propriety •of yielding something, rather than needful legislation ■should fail. These instances of voting are generally held as not . coming within the constitutional provision on the subject of voting on the final passage of bills.
To illustrate this point, we will take the case of Hull v. Miller, 4 Neb. 503, referred to by counsel, wherein a similar constitutional provision was construed. The supreme court of Nebraska in that case said :■ “It is disclosed that the bill for the act in question originated in the senate, where it was passed by the constitutional majority, the yeas and nays being duly •called, and entered on the journal. In the house, the bill was amended, and then duly passed. Upon its return to the senate, all that the journal discloses with respect to it is that the amendments of the house were adopted, but by what majority, or in what manner the vote was taken, the journal of the senate is silent. It is contended by counsel for the plaintiff in error, that the constitution requires the observance of the same formality in the vote by which the amendments of the house were concurred in, as was required on the final passage of the bill before it left the senate, and that the journal of that body should show an observance of this requirement. As to the final passage of the bill, in either house, the position of counsel is clearly correct. Section 11, article 2, of the constitution of 1867, declares that ‘On the passage of every bill in either house, the vote shall be taken by yeas and nays, and entered on the journal; and no law shall be passed in either house without the concurrence of a majority of all the members elected thereto.’ This provision is most clearly mandatory, and its non-observance in the passage of any bill would render the act absolutely void.” * * * But it will be observed that the provision of the constitution above quoted refers only to the vote on the passage of bills. There are numerous other votes necessary during the progress of a bill to its third reading, to which it has no sort of reference whatever. These are left to the control of the house, under its usual parliamentary rules.” The law was sustained, notwithstanding .the concurrence of the senate in the house amendments did not appear to have been obtained by a yea and nay vote.
To the same effect is the decision of McCulloch v. State, 11 Ind. 424, where the precise question was under consideration.
In the case of People v. Supervisors, 8 N. Y. 317, also cited in argument, the identical question presented in the case at bar was under consideration in the court of appeals of New York. The constitution of that state, adopted in 1846, and under which the case arose, contained this provision : “No bill shall be passed unless by the assent of a majority of all the members to each branch of the legislature, and the question upon the final passage shall be taken immediately upon its last reading, and the ayes and nays entered on the journal.” That case is thus stated and disposed of by that court: “On looking into the senate journal of 1851, it appears that the bill in question originated in that body, and that on its final passage the yeas and nays were taken and entered in the journal, and were 21 to % The assembly (the house) returned the bill to the senate with divers amendments. The senate had these amendments under consideration, and proposed certain amendments thereto, and then agreed to the amendments as amended by a vote of 23 to 1, the yeas and nays being taken and entered in the journal. The amendments thus amended were returned by the senate to the house. The latter body non-concurred in the amendments of the senate, and a joint committee of conference ■ was appointed, which recommended that the senate should recede from two of its amendments, and that the house should adopt the residue. This was agreed to by the house by a unanimous vote, eighty-sis voting by yeas and nays, which are entered in their journal. The senate receded from the two amendments as recommended by the joint committee, without a vote by yeas and nays, and without entering the names of those, voting in the journal. The omission to call the yeas and nays, on receding from these amendments, and recording the names of those voting, is the only fact objected to as a departure from the constitution.
“I think the requirement of the constitution was fully satisfied by the senate on the final passage of the bill before it was sent to the house, and on the final passage of the amendments. The course and practice of the legislature did not require that the whole bill should be again read on receding from the two amendments recommended to be abandoned by the joint committee of conference. There is nothing in the constitution which requires the yeas and nays to be taken in receding from an amendment which the senate had once adopted by the required vote and in the prescribed form. "In point of fact, every part of the law as it stands has received the requisite majority in both houses, the yeas and nays in both were taken on its-final passage and entered on the journal. The law, therefore, was passed without violating any of the forms of the constitution.
“Again ; the provision of the constitution requiring the question upon final passage of a bill to be taken immediately upon its last reading, and the yeas and nays to be entered on the journal, is only directory to the legislature.”
This last statement, it is contended by counsel for the petitioner, destroys the force of the decision as an authority with us, as we hold the provision to be mandatory, and not directory merely. This contention of counsel is, however, not well founded, for it will be observed that the argument preceding is to the effect that the constitutional provision was not violated, but that all its required formalities were observed, and, besides, the word “again,” as an introductory word in the statement, simply means that, even if what has already been said' be not sound and conclusive, the act is good anyway, since the constitutional provision is only directory.
As to the application of the strict mandatory rule regulating the method of voting on the final passage of bills to the methods of dealing with amendments, this court has spoken in no uncertain language.
The case of Chicot County v. Davies, 40 Ark. 200, presented this state of facts : An original bill, in the house, for an act to authorize county subscriptions for stock in railroads provided that the county court, upon application of the president and directors of the company, and one hundred of the voters of the county, should submit the question to a popular vote. The house journal showed that the bill was amended in that body by substituting the word “or” for “and,” so as to authorize the county court to'submit the question on the application of either the said company officers, or of the one hundred voters. The bill passed the house as amended, and was transmitted to the senate, and there passed, and sent to the governor, and by him approved. The enrolled bill, so approved by the governor, however, contained the word .“and,” as did the original bill, instead of the word “or,” as did the bill when amended by the house and sent to the senate. Then arose the contention that the bill enrolled and signed by the governor was not the same bill passed by the house and senate. Certainly it it was not the same as was passed by the house, for the change made by the substitution of “and” for “or” was-a marked and radical one. There was no affirmative showing in the journal of the senate that the' change had been made by a yea and nay vote, nor in fact was there any showing whatever as to the manner in which the change was made. This court, in effect, held that the strict mandatory rule did not apply to such a case, saying: “Now the constitution of 1868 (the same as the present constitution as to this subject) did not require amendments to bill to be entered on the journal; consequently, in order to uphold the act, we will presume that the house receded from its amendment substituting “or” for “and.” Citing Blessing v. Galveston, 42 Tex. 641; Miller v. State, 3 Ohio St. 475; McCulloch v. Stale, 11 Ind. 424; Supervisors v. People, 25 Ill. 182; Commissioners v. Higginbotham, 17 Kas. 62. In that case there was an entire absence of recitals in the journal as to any vote being taken upon the recession by the house. In the case at bar there is a recital, in effect, that the vote on the recession was had, but a failure to state how, although inferentially we conclude that it was taken in the usual method of adopting agreements made by conference committees. This makes little difference, for the contention is that the journal should affirmatively show a vote by yeas and nays, and the names of those voting for and against to be entered in the journal. This showing was not made. The court’s ruling was that it was not necessary, for it might be presumed that the house did not really recede from its amendment. The principle of that case is not materially different from the one involved in this case, so far as we are able to see.
Section 12, article 5 of the constitution provides that “ each house shall have the power to determine the rules of its proceedings.” Now, just at what point the strict mandatory rule of section 22, same article, may cease to be applicable in any given case, for reasons of systematic and convenient procedure, and at what point the parliamentary rules each house is empowered to make, by constitutional provision, may begin to be applied, is often a question of much difficulty of solution; and something doubtless may be properly left to the wisdom and sound discretion of the law-making department, to determine such a question as it may arise in each case. We are favored with no proof on the subject, but according to common knowledge and the authorities, these parliamentary rules seem to have much to do with the procedure through committees.
After all, the proposition before us is not that there is doubt as to the validity of the section of the statute thus called in question, but rather that the same is void beyond a reasonable doubt, for we are now proceeding under thé familiar, yet none the less rigid and inflexible, rule that all doubts must be resolved in favor of the legislative action. Entertaining the views above expressed, we are unwilling to say the section is invalid.
There is another theory upon which the validity of J L J the statute should be maintained. The first or deciaratory section of the original act of 1891 was admitted to be valid. Admitting, then, for the sake of argument, that the second section, or the section grading the offence and fixing the punishment, was void as contended, the question arises, how does that affect the whole act of 1893 ?
The declaratory part of the original act, or that part denouncing certain acts as a crime, truly expresses the legislative will in so far. Now, in anticipation(that, peradventure, at some time some bill might be passed, in which by oversight, neglect or ignorance, no punishment was fixed for the crime, the legislature at the outset enacted that, when just such a state of things should at any time exist, then rather than that legislation should fail altogether of its purpose, the punishment should be as at common law, with certain limitations. See sections 601, 2293 and 2294 of the digest. Thus the act was a valid law on the statute books, with declaratory part undisputed, and punitive or enforcing part derived from the general statutes, and thus remained until amended in 1893.
When the legislature in 1893 undertook to amend the prize-fighting law, it evidently regarded the act of 1891 as valid in its entirety, and therefore denominated the amendment made then as an amendment of the second section, the one now called in question. This amendment, it is contended, is void for- the reason that, the original section being void, there was therefore nothing to amend to. Such is a rule applicable to pleadings in court, but by what authority we are compelled to apply it to the law-making department in enacting laws we are not advised. ‘The rule for the guidance of the courts is to ascertain the intention of the legislature, and not the mistakes of the legislature, either of law or fact. Now, the manifest intention of the legislature was to change the law as it appeared on the statute books by simply making prize-fighting a misdemeanor, instead of a felony, and to change the punishment for a violation of the law accordingly. The amendment, which in fact is a substitution for the original second section, and not an amendment, properly speaking, was properly passed, with all proper reference to the whole act, as matter of identification.
Again, if it be true that the original second section was void, and the rule that an amendment of a void thing is also void should be considered as in any way affecting the legislative action, that still does not extend so far as to make void the amendment. By reference to the amendatory act of 1893, which is now the law on the subject, we see that it is entitled “An act to amend section 2 of ‘An act to punish and prevent prizefighting in the state of Arkansas,’ approved March 31st, 1891.” If the title had been to amend the act of 1891, instead of the second section, there would have been no objection to the act as amended. We are thus called upon to declare a law void, because, by mistake, neglect or ignorance, the legislature has identified and named its action by wrong • words and inappropriate language ; that it has done a vain thing. Sutherland on Statutory Construction, sec. 331.
The rule adopted by all the courts, so far as we know, is : “Any act which manifests a design that any particular provision shall be the law is a sufficient enactment.” Wood v. Wood, 54 Ark. 172; Postmaster General v. Early, 12 Wheaton, 136 ; fi}nd. Int. of Statutes, secs. 372-76; State v. Miller, 23 Wis. 634. And when the legislature has power to enact a law, and its intention is manifest, effect will be given to the intention, rather than to a mere failure of its language to express or describe what was intended.
We are of the opinion that the statutes in question are valid laws of the state, and, as the supposed invalidity of those statutes seem to have been the sole ground upon which the proceedings of the chancellor were had, the writ of habeas corpus is quashed, the proceedings thereunder annulled, and the respondent sheriff will proceed to execute his warrant, as the law directs and his duty may require. | [
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Hughes, J.
This is an appeal from the judgment of the circuit court, sustaining a demurrer to a demand presented to the county court, verified according to the statute, for allowance against the ■ county of Pulaski, which had been disallowed by the county court, and from which disallowance an appeal was taken to the circuit court. No formal pleadings were filed in the case, and none were required. Only the account of appellant, in two items — one of $2,000, and one of $6,400, for building Arch street turnpike, under contract with the county, properly verified — was filed, and to this the demurrer was sustained. This was error. A demurrer does not lie to a claim presented to the county court for allowance. Por this error the judgment is reversed, and the cause remanded for a new trial.
Several questions are raised and discussed in the brief of counsel, which will arise for determination on the' trial in the circuit court, and as a desire is intimated that these be considered now, we proceed to express our views upon them.
Can the county court authorize the letting of a .. contract tQ construct a turnpike road without an appropriation first made therefor? The statute itself answers this question in the negative, in section 1279, Sandels & Hill's Digest, which provides that “no county court or agent of any county shall hereafter make any contract on behalf of the county unless an appropriation has been previously made therefor, and is wholly or in part unexpended.” This is the act of March 19th, 1879.
Construing this act, this court held, in the case of Fones Hardware Co. v. Erb, 54 Ark. 645, that the county court could not make a contract for the building of a bridge across the Arkansas river, at the city of Little Rock, without an appropriation having been, first made therefor. In this case the court said : “It is the policy of the act to require .the concurring judgment of the levying court and of the county judge that a bridge should be built, before a contract for building it can be made. When the levying court makes an appropriation to pay for one, that signifies its favorable judgment; and the. county judge may afterwards signify his by letting the contract. * * * * While we think that a contract cannot be made before there has been an appropriation for it, we do not think that when an appropriation has been made, the contract will be limited to the amount appropriated. When the levying court appropriates any sum for the work, that signifies their judgment that the work should be done; and the county judge may then proceed to contract for it without further consulting them, the only limitation upon his power being found in other directions.”
We hold, upon this statute, and the authority of this case, that, without some appropriation made therefor by the quorum or levying court, the county judge has no power to let a contract to construct a turnpike road. Though he has jurisdiction to let such a contract, he must do so, if at all, within the limitations imposed by law upon the exercise of such jurisdiction. Otherwise there would be no restraint upon the extent of his power to contract, based upon the fact simply that he is invested with jurisdiction .to make the contract. Such unlimited exercise of his jurisdiction to make such contracts might involve the county in hopeless bankruptcy, and the limitation is but a wholesome safeguard against the abuse of the power to make contracts binding the county.
While the county court is invested with jurisdiction of roads and highways, to have them “laid out, opened and repaired,” by sec. 28, art. 7, of the constitution, and by sec. 1173 of Sandels & Hill’s Digest, conferring upon the county court exclusive original jurisdiction in ‘ ‘ all matters relating to county taxes, in all matters relating to roads,” etc., and by sec. 6746 of Sandels & Hill’s Digest, still the extent ' and exercise of this jurisdiction is -limited and controlled by law.
The counsel for appellant contends that the validity of the contract with the county is res judicata, because the work under it was accepted and approved by the county, and allowances were made the coiitractor upon the work. But we think otherwise. There was no jurisdiction, without an appropriation- first made, to make the contract upon the part of the county, and without such an appropriation it was void, and no adjudication could make it valid. If there was no power to make the contract, it was not, and could not be, ratified by the county’s acceptance of the work done under it, so as to estop the county from asserting that it was void. “A subsequent ratification cannot make valid an unlawful act, without the scope of corporate authority.” 1 Dillon, Mun. Corp. sec. 463.
In the case of Newport v. Railway Co., 58 Ark. 270, it is held that an incorporated town has no power to contract for the construction of a levee, nor to bind itself to pay therefor, and that it will not be held to have ratified such a contract by accepting the benefit of work done under it.
In 1 Dillon on Municipal Corporations, section 463, quoted in the opinion in the above case, it is said : “An absolute excess of authority by the officers of a corporation in violation of law cannot be upheld ; and, where the officers of such a body fail to pursue the requirements of a statutory enactment, under which they are acting, the corporation is not bound. In such cases the statute must be strictly followed ; and a person who deals with a municipal body is obliged to see that its charter has been fully complied with ; when this is not done, no subsequent act of the corporation can make an ultra vires contract effective.” Watkins v. Griffith, 59 Ark. 344. If this were not true, the county court would be above the law, and could make contracts without the authority of law, and then ratify them and bind the county, and thus the law would be set at defiance. “ It is a well settled rule of construction of grants by the legislature to corporations, wfiether public or private, that only such powers and rights can be exercised under them as are clearly comprehended within the words of the act, or derived therefrom by necessary implication.” Minturn v. Larue, 23 Howard, 435; Leonard v. Canton, 35 Miss. 189; Thomson v. Lee County, 3 Wallace, 327.
There is not only no express or implied power in the county court to make such a contract without an appropriation first made for the work to be done, but, as we have seen, there is a positive inhibition against it in the statute quoted above.
Riddick, J., did not participate in this case. | [
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Bunn, C. J.
(after stating the facts). The language of the statute on the subject is as follows, to-wit: “Section 1689. Persons marrying, who are within the degrees of consanguinity within which marriages are declared by law to be incestuous or void absolutely, or who shall commit adultery or fornication with each other, shall be deemed guilty of incest.” “ Section 4908. All marriages between parents and children, including grandparents and grand children of every degree; between brothers and sisters of the half as well as the whole blood ; between uncles and nieces, and between aunts and nephews, and between first cousins, are declared to be incestuous and absolutely void.” Sand. & H. Dig.
In this case the indictment charges the defendant and appellee with the crime of incest committed with one Bettie Ratcliffe, knowing himself to be her father and forbidden to marry her, by having carnal knowledge of her incestuously and adulterously, he being a married man.
The only objection to the indictment which has given us any considerable trouble is the fourth and fifth grounds of demurrer.
The able counsel of defendant has contended with much ability that the language of the indictment is not sufficiently explicit, in this: that, after laying the charge of carnal knowledge incestuously and adulterously, defendant is referred to as being a married man, and that it does not thereby definitely appear when he was a married man, whether at the time of the commission of the offense or at the time of the finding of the indictment; and that the usual words ‘‘then and there,” or their equivalents, should have been employed to definitely point out the time of the commission of the offense. The indictment is not artistically drawn, and the words suggested in argument of defendant’s counsel would with greater propriety have been employed. But we do not think the authorities cited support the contention that their employment is essential in all cases. On the contrary, the connection in which they may with great propriety be employed may be such as to render their use not absolutely essential. In other words, the connection, and the words and language employed in the connection, may be so explicit within themselves as to leave no room for reasonable doubt on the subject, and in such case greater particularity of expression would of course not be essential, however proper. We think the language in this indictment clearly indicates that the defendant was married at the time of the commission of the offense ; and to say that it meant that he was a married man at- the time of the finding of the indictment, rather than when the offense was committed, would be to say that it was objectless, if not meaningless. After all, we would lift the finger of caution to those having such matters in charge, for the line which marks the border land of uncertainty and doubt is not always too well defined.
The allegations that defendant was the father of the woman involved, and therefore within the prohibited degrees; that he was a married man, and therefore capable of committing adultery; and that he incestuously and adulterously had carnal knowledge of his daughter, clearly meaning that he committed adultery with her,— all taken together, we think, make up a good indictment for the crime of incest.
The other grounds of demurrer seem to be still more clearly untenable. Reversed and remanded. | [
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Hughes, J.,
(after stating the facts). The notice of loss given by John J. Sumpter at the instance of the assured was acknowledged by the company to have been received, and was sufficient. Notice by a local agent of the company, upon information communicated to him by the assured, is sufficient. West Branch Ins. Co. v. Helfenstein, 40 Pa. St. 289; Wood on Ins. (2 ed.), pp. 938, 939.
Notice in four days has been held “immediate,” and the policy of insurance in this case required immediate notice of loss. Hoffecker v. N. C. C. M. Ins. Co. 5 Houston (Del.), 101.
By its action in sending to the appellee a blank form for proof of loss after the thirty days in which pooof was to be made, and receiving the proof when made, without objection, so far as appears from the proof, the company waived the failure to make proof within the thirty days, and cannot be heard now to object on that account. “Courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture, or an agreement to do so, upon which the party has relied and acted.” The company is estopped from enforcing the forfeiture. Insurance Co. v. Eggleston, 96 U. S. 572; German Ins. Co. v. Gibson, 53 Ark. 494; Burlington Ins. Co. v. Kennerly, 60 Ark. 532.
Proof of loss may be waived by parol, though policy . . . , . ... T7 requires it to be m writing, lb.
The temporary absence of the tenant at the time of r r * the fire did not work a forfeiture, the policy . provided that if the house was allowed to become unoc cupied, the policy should be forfeited. May on Ins. secs. 248, 249 d; Wood on Fire Ins. 215, sec. 91.
Was it competent for the appellee to maintain this action alone? We think not. The policy provides that the loss, if any, shall be paid to the Jarvis-Conklin Mortgage Company, absolutely; not as its interests may appear, as is frequently provided in such cases, but the whole amount of the loss is made payable to it. The policy is, in effect, assigned to it, and the legal title is in it.
It, therefore, or its assignee, is the party entitled to sue and recover for the loss on this policy. While the Mortgage Company is entitled to sue and recover the entire loss, the assured (the appellee) may properly be made a party to protect his interest in the policy.
If the policy had been made payable to the mortgagee as its interest might appear, and it did not appear that its interest was greater or as great as the loss, the assured would be the proper party to sue ; but if the policy is payable absolutely to the mortgagee, then the assured can sue only with the express consent of the mortgagee (Coates v. Penn. F. Ins. Co. 58 Md. 172), unless the assured had paid or extinguished the mortgage debt before suit. Baltis v. Dobin, 67 Barbour, 507; 2 May on Ins. sec. 449; Ennis v. Harmony Fire Ins. Co. 3 Bosw. (N. Y. Superior Court) 516.
The policy of insurance in this case is for one thousand dollars ; the mortgage on the property is for five hundred dollars, as shown by the proof in the case; and it is apparent that the assured has an interest to the extent of the surplus, after the mortgage debt shall have been satisfied.
The judgment is reversed, and the cause is remanded with leave to the appellee to make the holder of the mortgage a party, and for a new trial.
Battle, J., absent. | [
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Battle, J.
George M. Traylor & Co. recovered a judgment against Claude Allen before a justice of the peace of Drew, and afterward filed a transcript of the same before a justice of the peace of Pulaski county, and thereupon caused the Arkansas Pire Insurance Company to be summoned to answer “what goods, chattels, moneys, credits or effects it may have in its possession or hands belonging to” Allen to satisfy their judgment. The insurance company answered, and admitted that it was indebted to Allen upon a certain policy of insurance in the sum of one thousand dollars. Upon this answer, Traylor & Co. seek to recover a judgment against the garnishee for the Amount of their judgment. The right to do so is- disputed on the ground that the justice of the peace had no jurisdiction of the garnishment.
The constitution of this state limits the jurisdiction of justices of the peace in all matters of contract to cases wherein the amount in controversy does not ■exceed three hundred dollars, exclusive of interest. It has been held by this court that a justice of the peace has no jurisdiction in a proceeding to garnish a debtof ■of a defendant against whom a judgment has been rendered, if the amount of the indebtedness of the g’arnishee to the defendant upon any single contract exceeds the limits of his jurisdiction ; and that when this appears in such a proceeding before him, it is his duty to dismiss it. Moore v. Woodruff, 5 Ark. 214; Woodruff v. Griffith, 5 Ark. 354; Martin v. Foreman, 18 Ark. 249. In this case the limit of the justice’s jurisdiction was $300, exclusive of interest, as before ■stated ; and the indebtedness of the garnishee to the defendant, Allen, was $1,000, without interest. The justice of the peace, consequently, had no jurisdiction ■of the garnishment, and the circuit court acquired none by appeal.
The case of Moore v. Kelley, 47 Ark. 219, does not •conflict with the cases cited. The difference is pointed out in *the last case.
The judgment of the circuit court is reversed, and the garnishment proceeding is dismissed without prejudice. | [
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Bunn, C. J.
Appellee was arrested cm affidavit before the county court of Johnson county on the charge of bastardy. He was convicted in the county court, appealed to the circuit court, and was acquitted. The court gave judgment against the state for costs, and ordered the circuit clerk to make out a certified- list of the cost in the case, which was done. The circuit court approved the same,' and ordered the county court to allow and pay the same. To this order of the court in taxing the cost against Johnson county, the state at the time excepted, and prayed an appeal to this court.
This raises the question, whether or not, in bastardy cases, in cases of failure in the prosecution, the costs of the procedure can be taxed against the county. It is well to state in the outset, that the statutes nowhere provide, in terms, who shall pay the costs in such cases. Under the constitution of 1868, when justices of the peace had jurisdiction of bastardy, it was treated in so far at least as a criminal matter that the costs were paid by the county as in misdemeanors, when the prosecution failed. At least we infer as much from decisions reported. Jackson v. State, 29 Ark. 62.
The county court now has, by the constitution, exclusive original jurisdiction of the subject ; and this court, under the new order of things, holds that bastardy is the subject of civil proceeding. The costs,therefore, cannot be assessed against the county, as in case of criminal proceedings. It was said in Cole v. White County, 32 Ark. 45, that “it is an established rule of law that, where the compensation of an officer is regulated by fees, he can only demand such fees as are fixed and authorized for the performance of his official duties, and he cannot charge for a particular service, for which no special fee is given, unless its payment is allowed by some general provision * * * to the effect that, in all cases where an officer or other person is required to perform any duty for which no fees are allowed by any law, he shall be entitled to receive such pay as would be allowed for similar services.” So much for the amount of the compensation or fees, and this is regulated by statute. See section 474, Sand. & H. Digest. But the court in Cole v. White County, supra, continuing, said : “Such general provision, however, does not embrace services required to be performed for the state, or county; for it is also another well settled rule that, in the construction of statutes declaring or affecting rights and interests, general words do not include the state, or affect its rights, unless it be especially named, or it be clear, by necessary implication, that the state was intended to be included.” And counties have the benefit of the same strict construction of statutes affecting them as has the state in like circumstances; for, continues this court in the same case: “Counties are civil divisions of the state, for political purposes, and are its auxiliaries and instrumentalities in the administration of its government.” And: “ It follows, then, that counties, which are component and essential parts of the state, and are necessary agencies of its government, embodiments of the public, are no more embraced in the general words of the statute than the state itself.”
Statutes regulating costs are to be strictly construed in favor of the party sought to be charged, and this even in cases where private persons alone are affected. Sutherland on Statutory Construction, sec. 371.
In Eagan v. Bergen, 56 Vt. 589, Bergen was before the appropriate court on a charge of bastardy. During the pendency of the proceedings, there was a miscarriage of the expected illegitimate child, and it became necessary to permit the proceedings to abate. The defendant demanded a trial on the issues made, — that is, as to his guilt or innocence, — and trial was had, and de fendant discharged. Court awarded costs to the defendant. Held that, as no costs were provided by statute, none could be awarded to defendant. The difference between that case and the one at bar is this: In the former the costs were not regulated by statute, while in the latter they are regulated, or rather fixed, by statute, and yet the statute fails to make any one bound for the same in case of adverse judgment.
Our conclusion is that no one is bound for costs, unless rendered so by some positive provision of law, or as a necessary implication from provision of law, and that neither the state nor the county is bound even by legal provisions, unless it is specifically or by necessary implication named or referred to therein, and that the judgment of costs against the county in this case is erroneous, and the same is reversed as to said costs. | [
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Hughes, J.
The appellant sued the appellee upon a negotiable promissory note, executed by appellee, payable to the order of the Southern Hedge Company for five hundred dollars, “for value received,” dated June 17, 1889; which was, by endorsement thereon before maturity, assigned, to the. appellant. for value without recourse.
The appellee in his answer admits the executioh of the note, but says that the execution of the same was •obtained by the Southern Hedge Company by fraud, misrepresentation and deceit, by Duval, president, and Marriatt, agent of said company, in payment for stock in a certain corporation, commonly known as the Western Arkansas Hedge & Wire Pence Company, whose assets were merely nominal, and whose stock was almost, if not entirely worthless, of which fact said Southern Hedge Company was well aware, and said defendant unaware. The answer charges that the Southern Hedge Company caused false and misleading reports to be circulated in regard to the value of its stock, and the prospects of the corporation ; and made and caused such statements to be made to the defendant; and that it represented that it was the owner of certain patents, which were valuable improvements in the growing and plashing of hedge fences ; and that large sums of money could be made in the hedge fence business; and that said Southern Hedge Company had contracted for the planting of about forty miles of hedge fence, which was to be transferred to the said Western Arkansas Hedge. & Wire Pence Company, which alone would nearly bring profit enough on the stock to liquidate the notes given for it; that these representations were made by Duval, president and general manager for said company, and were false, and known by them to be so when made, and that, by means of these representations, the defendant was induced to execute the note sued on in this case. The answer avers that said patents were void for the want of novelty, etc.; that defendant, having no experience in such matters, relied upon these representations made to him ; that he offered to rescind as soon as he discovered the fraud, and demanded his note, which the said Southern Hedge Company refused to deliver up, whereby defendant was cheated and defrauded, said stock being utterly worthless. The answer denies that the plaintiff is an innocent holder of said note, and says that he had full knowledge of all the facts and circumstances at the time he bought said note, and that he knew, at the time he purchased the same, that said Southern Hedge Company had agreed, as a part of the consideration for the execution of said note, that it would not negotiate the same.
The cause was submitted to the court sitting as a jury, and it found for the defendant, and gave judgment in his favor. The appellant moved for a new trial, which was refused, and he excepted and appealed to this court.
On the trial a large amount of evidence was introduced tending to prove the representations by Duval and Marriatt, as set out in the complaint, and that the stock of the Southern Hedge Fence Company was worthless ; but as to the value of this stock the evidence was conflicting.
All the evidence tending in any way to bring home to appellant knowledge of the alleged agreement by the Southern Hedge Fence Company that it would not negotiate the notes given for its stock is the testimony of W. H. Gee, who says : “Before he (plaintiff) bought said notes, he conferred with me, and made special inquiries in regard to the solvency and financial standing of the parties who had executed said notes. I informed him that the notes were good, and that I considered the parties all good for their contracts. I did tell him, however, that the Southern Hedge Company ought not to sell the notes ; that they had agreed not to sell them, and I asked him not to buy any notes given for stock in said company, and said if there was any money in it, I wanted to make it myself.”
It does not appear from this testimony that there was any agreement, which was part of the consideration for the execution of the notes, that the Southern Hedge Company would not sell or negotiate them.
The note sued on in this case with the notes of many others was given as part of the purchase price of the patent right of the Southern Hedge Company in twelve counties in Western Arkansas. The appellee was one of the incorporators of the Western Arkansas Hedge & Wire Fence Company of Dardanelle. The business authorized to be transacted by the Southern Hedge Company under its patent was the planting, growing and plashing of hedges, buying or selling territory rights or patents for the construction of hedges, with the right to buy or sell real estate. This patent right to the Southern Hedge Company was sold and transferred to the incorporators of the local company, in consideration for which these incorporators of the local company individually gave in payment their notes.
We cannot conceive how the doctrine of ultra vires, contended for by appellee, has any application in this case. The appellee certainly had the power and the right to execute the negotiable promissory note he gave, and the only question is, did the appellant by the endorsement of it to him, become a bona fide holder thereof? If so, he is protected by the law merchant, notwithstanding any fraud of the original payees inducing its execution.
In Burke v. Dulaney, 153 U. S. 233, the Supreme Court of the United States say: “The rule is settled that a negotiable instrument in the hands of an innocent purchaser for value cannot be contradicted to his prejudice by an oral agreement or understanding between the original parties variant from the terms of their written contract.”
To protect a holder of a commercial instrument against defenses that do not appear on the face of the instrument, it must be shown that he took it in good faith. “If he is guilty of bad faith, 7nalafides, he cannot claim to be a bona fide holder. It is therefore necessary to determine what constitutes such good faith as to make one a bona fide holder. The earlier English authorities maintained that mala fides in this case, as in any other legal transaction, meant participation in some fraud or other wrong. In a later case, Lord Tenterden so far modified the existing rule as to hold that one is not a bo7za fide holder who took the paper under circumstances which ought to have excited the suspicion of a prudent and careful man. This ruling was subjected to the universal criticism of both the legal and mercantile world, and the complaint of the merchants and bankers induced the court, under the lead of Lord Den-man, C. J., to require proof of gross negligence to take away from one the character of a bona fide holder.” Tiedeman on Commercial Paper, sec. 289. Lord Tenterden’s rule was followed by Chancellor Kent, and is still the rule in some of the states, says Mr. Tiedeman. “But . (he says) the great weight of authority in this country, as well as reason, supports the contrary doctrine, that the bona fide character of a holder can only be destroy ed by proof of his participation in a fraudulent transfer of the instrument.” Id. and cases cited in note 2 ; Hamilton v. Vought, 34 N. J. L., 187; Buchanan v. Wren, 30 S. W. 1077.
In our opinion, there is no evidence in this case that the appellant participated in a fraudulent transfer of the note sued on, or of bad faith on his part in the purchase of it, that deprives him of the character of an innocent holder. Morton v. Noble, 15 Ind. 508; Heist v. Hart, 73 Pa. St. 286.
In the case last cited it is held that a parol agreement, although made at the time of making negotiable paper, that the payee will not negotiate it, and would renew it, is inadmissible to vary the effect of the paper. 1 Daniel on Negotiable Instruments, secs. 771-775.
Reversed and remanded for a new trial.
Riddick, J., absent and not participating. | [
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Riddick, J.,
(after stating the facts). It is con- ■ tended by the appellant that he is not personally liable upon his contract employing appellees to prosecute the action against the railway company. But an administrator has no power to enlarge, by his contract, the liability of the estate that he represents. Whether he contracts as an administrator or not, it is his own undertaking, and not that of the decedent, and he incurs a personal liability. An attorney employed by the administrator of an estate has no claim against the estate, although his services may have inured to the .benefit of the estate. He must look for compensation to the administrator who employed him. Underwood v. Milligan, 10 Ark. 254; Bomford v. Grimes, 17 Ark. 567; Yarborough v. Ward, 34 Ark. 208; Devane v. Royal, 7 Jones, L. (N. C.), 426; Bowman v. Tallman, 2 Robertson (N. Y.), 385; Estate of Page, 57 Cal. 238; Schouler, Rx’ors & Adm’rs. sec. 256 ; 2 Woerner, Administration, p. 756. It follows that the proper practice, when the administrator refuses to pay for such services, is for the attorney to bring suit against him individually, and not in his representative capacity.
This is conceded by appellant to be correct, as a general rule, but it is argued that in this case there was an agreement that the appellant should not be personally liable, except for costs. The testimony on this point, to quote the language of one of the appellees, who testified as a witness, is as follows : “He was not to pay us anything out of his own pocket. We were to have our fee out of what we recovered.” We do not understand from this testimony that appellant was in no event to be liable. On the contrary,, it seems plain that the intention was that he should not be liable beyond the amount recovered in. the action against the railway company. Had nothing been recovered, he would have been liable in no amount; but, as he recovered twenty-five hundred dollars, he becomes liable for a reasonable fee. Nor such reasonable expenses necessarily incurred by the administrator in the discharge of his duties, he has, in common with other trustees, a lien on the assets in his hands, and, upon a proper showing, will be allowed credit therefor in the settlement of his account with the estate. When the appellant has paid the fee due appellees, he will be entitled to a credit therefor in his settlement as administrator, and the result will be, as stipulated in his contract, that he has “paid nothing out of his own pocket.”
Neither do we think that the amount of the fee in this case is controlled by section 217 of Sand. & H. Digest. That section, as was said in Turner v. Tapscott, 30 Ark. 320, has reference mainly to the collection of debts due estates, and fixes the compensation to be allowed attorneys for such suits, but does not apply in a case such as we have here.
Nor does it avail the appellant anything in this action that he failed to obtain the order of the probate court before employing an attorney. Fven without such an order it would still be within the discretion of the court to allow the administrator credit for fees paid an attorney for the prosecution of a suit which resulted to the benefit of the estate. Reynolds v. Canal & Banking Co., 30 Ark. 520. But that question is not before us; for whether the administrator is entitled to a credit for the fee which he has paid an attorney is a different question from the one as to whether he is personally liable to the attorney whom he employs. The statute referred to (sec. 219, Sand. & H. Dig. ) was intended to protect estates, not administrators, and, as this is an action against Tucker individually, and not against him as representative of the estate of Morrow, it has no application.’
The verdict of the jury has evidence to support it. Finding no error, the judgment of the circuit court is affirmed. '
Sec. 217, Sand. & H. Dig. provides : “ When it shall become necessary, in the opinion of the court, for any executor or administrator to employ an attorney to prosecute any suit brought by or against such executor or administrator, the attorney so employed shall receive, as a compensation for his services, eight per centum on all sums less than three hundred dollars, and on all sums over three hundred and less than eight hundred dollars, four per centum, and on all sums over eight hundred, two and a half per centum.”
Sec. 219, Sand. & H. Dig. provides: “Such attorney’s fees shall be paid as expenses of administration ; but no attorney’s fees shall be allowed any executor or administrator unless for the prosecuting or defending a suit under the direction of the court.” | [
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Hughes, J.
The appellant was indicted for the larceny of a hog. He was charged in the first count of the indictment with stealing the hog, and in the second count with receiving the hog knowing that it had been stolen, with the intent to deprive the true owner thereof.
The jury returned a general verdict of guilty, and he was sentenced to one year’s imprisonment in the penitentiary. The evidence tended to show that the hog had been stolen, and that the appellant knew of the theft, and assisted in concealing the head and offal; and that he also ate some of the pork into which the hog had been converted, at the home of another' in whose employment he was at the time, and who, he said, had killed the hog. There is no proof of the value of the pork appearing in the record.
The following instruction was given to the jury over the objection of the defendant, to which he excepted at the time: “You are further instructed that if you believe from the evidence beyond a reasonable doubt that the defendant received any portion of the hog mentioned in the indictment, knowing that it had been stolen, with the intent to deprive the true owner thereof, he would be guilty, as charged in the second count of the indictment.”
Upon an indictment for receiving a stolen hog, a defendant cannot” be convicted of stealing the pork.
As it does not appear upon which count of the indictment the appellant was convicted, and as he may have been convicted and sentenced for receiving the pork, knowing it to have been stolen, the instruction referred to above is erroneous.
The judgment is reversed, and the cause is remanded for a new trial. | [
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Bunn, C. J.,
(after stating ‘the facts). The court gave two instructions at the instance of the state, the first of which was objected to by the defendant. The defendant asked five instructions, the first and fourth of which were given, the third and fifth were refused, and the second was modified, and the defendant saved exceptions to the court’s refusal of the two and the modification of the other. In our view of the case, however, the first instruction given by the court at the request of the state, and over the objections of defendant, raises all the issues of law involved in this discussion; and, as this is properly based on the evidence, it is only necessary to discuss the evidence to determine its legal sufficiency to authorize the conviction of defendant. The defendant, Jake Leak, swore, in the trial of Dave Henry, that he did not know him, or that he was not certain that he knew him. There was no other evidence of the identity of Dave Henry with the crime charged against him, and none for any other purpose against him. The prosecution necessarily failed for want of proof. As defendant, Jake Leak, had testified before the grand jury that'found the indictment against Dave Henry, and upon his testimony that indictment was found, he was indicted for perjury in this: that on the trial of Dave Henry he (the said Jake Leak) swore that he did not know Dave Henry, as aforesaid, and that he did not know the person then presént as defendant to be Dave Henry, and did not know he was the person that had sold him the whisky, as charged; and, furthermore, swore that he had not stated before the grand jury that he knew him. It was shown that he had stated before the grand jury that he knew Dave Henry, and that he had bought the whisky from him, or words to that effect. Suppose that defendant herein had admitted on the trial of Dave Henry that he had stated before the grand jury that he knew him, notwithstanding he continued to say on the trial that he did not know him. That would not have justified the conviction of Dave Henry. Hence it was immaterial whether he admitted or denied stating what he was alleged to have stated before the grand jury. It was immaterial how mauy falsehoods he might tell as to previous, statements, since there was a total failure of proof against Dave Henry.
For a witness to impeach himself by contradictory statements is sometimes material, because one is guilty of perjury who in this way deprives another of the benefit of his true testimony, and thereby tends to defeat the ends of justice. But in such case it should appear that his false swearing had the effect, or might have had the effect, of influencing legitimately the determination of the issue concerning which he was called to testify.. Otherwise,'his testimony, be it true or false, is immaterial. The false swearing of defendant in the trial of Dave Henry could not have influenced the determination of the question of the guilt .or innocence' of Dave Henry the one way or the other, since there was no evidence for or against him.
Reversed and remanded. | [
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Riddick, J.,
(after stating the facts.) The first question for us to determine is whether the condition upon which the pardon was granted was valid or not. In other words, did the governor have power to annex to his pardon the condition that the petitioner should “depart from and remain without the borders of the state?” It is said, in Bacon’s Abridgment, that “it' seems agreed that the king may extend his mercy on what terms he pleases, and consequently may annex to his pardon any condition that he thinks fit, whether precedent or subsequent, on the performance whereof the validity of the pardon will depend.” Bacon's Abridgement, vol. 7, p. 412; 4 Blackstone, Com. p. 401.
It is now well settled that when the constitution gives an unrestricted power of pardon to the governor of the state, he has the right to annex to his pardon any condition, precedent or subsequent, provided it be not illegal, immoral, or impossible to be performed. Ex parte Hunt, 10 Ark. 284; United States v. Wilson, 7 Pet. 150; Ex fiarte Wells, 18 How. 307; Arthur v. Craig, 48 Iowa, 264; State v. McIntire, 59 Am. Dec. 576; 1 Bish. Crim. Law, sec. 914.
' Our constitution provides that the governor shall have power to grant pardons “under such rules and regulations as shall be prescribed bylaw,” and a statute expressly authorizes him to grant pardons oh condition that the convicted person “shall leave the state and never again return to it.” Sec. 18, Art. 6 Const. 1874 ; sec. 2412, Sand. & H. Digest.
But it is said that this statute is in conflict with section 21 of article 2 of the'constitution, which provides that under no circumstances shall any person be exiled from the state. We do not agree with this contention. That provision of the constitution forbidding exile was intended as a protection to citizens and inhabitants of the state. Any statute of the legislature, or order of the courts, or executive, inflicting upon a person banishment from the state would, under that section, be void. It forbids exile or compulsory banishment, but it does not say that a person may not, of his own volition, leave the state to escape punishment, or that the governor may not, by his pardon, permit him to do so. To hold that it did would be to construe a provision that was intended to protect the inhabitants of the state into one restricting the power of the governor when exercised in their behalf. Who can doubt that it would be esteemed a great boon by most of those unfortunates, against whom a sentence of imprisonment in the penitentiary for a long term of years has been rendered, to be allowed to escape it by leaving the state? When a citizen of another state or country commits a crime in this state, it might, under some circumstances, be to the best interest of all concerned that a pardon be granted on condition that he leave the state and never return. One can readily conceive of other instances when, to prevent the possibility of future strife between the convicted person and those against whose persons or property he had committed a crime, it would be proper to impose this as a condition of the pardon.
[Note. — Por conditions in pardons generally, see note to People v. Cummings (Mich.), 14 L,. R. A. 285. — Rep.]
We think the constitution does not deprive the governor of the power to grant pardons on such conditions. As Hawkins accepted his pardon on this condition, and afterwards violated it, the pardon by its own terms became void. His subsequent arrest and imprisonment were therefore legal. The judgment of the court dismissing his petition was, in our opinion, right, and is affirmed.
Bunn, C. J., concurred in the judgment on the ground only that, if the condition was void, the pardon ■ was also void. | [
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Wood, J.
The appellant was convicted before a justice of the peace on an information charging him with “keeping and exhibiting a gaming device.” He appealed to the circuit court, was again convicted, and appeals to this court. The proof was that the defendant employed one Charles .Mason “to look after” a machine in the Underwood saloon in Newport, Jackson county, Arkansas, called a “slot machine,” upon which money “was won and lost,” within twelve months prior to the filing of the information. The machine stood in John Underwood’s saloon. The witness came up to the saloon in the mornings, and “just looked after the machine to keep any person from breaking it.” Persons would slip a nickle in the slot ; and if the machine opened, the person putting in the nickle would get all in the box ; if the machine did not open, the person putting in lost his nickle.
The appellant complains that the verdict was contrary to the law and the evidence. The court instructed the jury “that the law does not tolerate any subterfuge in violation of its penal and gaming laws ; and in this case, if you believe from the evidence that the defendant employed any person to watch a machine of the description charged in the information, and that there was money lost and won upon it, you will be authorized to convict the defendant.”
Section 1613 of Sand. & H. Digest is as follows: “E}very person who shall set up, keep or exhibit any gaming table or gambling device ****** at which any money or property may be won or lost shall be deemed guilty of a misdemeanor,” etc. Section 1614. “If any person shall in any way, either directly or indirectly, be interested or concerned in any gaming prohibited by section 1613, either by furnishing money or other articles for carrying on gaming, etc., such person shall be deemed guilty of a misdemeanor.” It is insisted that the court, in its instruction, violated art. 7, sec. 23, of the constitution prohibiting judges from charging juries upon matters of fact.
The majority of us are of the opinion that the instruction is correct, and not open to the objection urged. The court did not tell the jury, as assumed by counsel, that the defendant was using a subterfuge to violate the law, but simply declared that the law “would not tolerate any subterfuge,” and left the jury to say whether the defendant used a subterfuge. There was no dispute about the facts. The defendant, it is conceded, “employed a witness to look after the machine.” It is not disputed that' the machine was one upon which money might be and “was lost and won”; i. e., a gambling device. So the only question was whether “employing one to watch” a gambling device was “keeping” such device in the meaning of the statute. The language of the witness was, “employed to look after the machine to '‘keef’’ any person from breaking it.” The court used in its instruction the words “to watch” instead of the words “to look after, to keep.”' “To look after” means “to watch after” (Webster), and “to watch” means “to tend,” “to guard,” “to have in keeping.” The defendant employed another “to look after a gambling device to keep same from being broken.” This was in a saloon, where' the public came and went ad libitum. To employ another to look after property indicates that the employer has an interest of some kind in that property. The law does not say what or how much the interest must be. “Directly or indirectly interested” is the language of the statute sufra. The instruction does not assume a single fact. The court, in the instruction, declared what the law was upon a given state of facts, and left the jury to find what the facts were.
The jury, by this instruction, were left to find whether the defendant employed anyone “to watch” a machine upon which money might be lost or won, and whether money was lost or won upon such a machine. In case they found such to be the facts, the instruction announced what the law was applicable to them.
Affirm the judgment. | [
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Hughes, J.,
(after stating the facts.) The guardian’s sale, without confirmation by the probate court, passed no title. There is no evidence of open, notorious, adverse and uninterrupted possession for the period of seven years. The five years statute does not apply, as there' was no sale, until the same was approved by the probate court. Reversed, and remanded for a new trial. | [
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Bourband, Sp. J.
This was a suit on the chancery side of the Crittenden circuit court by appellant, Pearl Burgett, as a child and only heir at law of I. W. Burgett, deceased, to redeem from tax sale certain lands described in her complaint, which were sold for the non-payment of the taxes for 1876 and 1877. It is alleged in the complaint that appellee is in possession of the lands, claiming title under a deed executed by the •commissioner of state lands by virtue of the act of March 14th, 1879. It is alleged that appellant’s father, I. W. Burgett, died in 1872 in possession of and claiming to •own several tracts ; that appellant reached the age of eighteen years on the 7th day of February, 1888, and in the year 1889 she applied to appellee to redeem the property. It is also alleged,.' in substance, that appellee, under frivolous pretext, denied her right to redeem, and continued to hold the possession. In her complaint appellant offers to bring into court the requisite amount •due, and prays that it be ascertained, and for such relief as the facts will warrant.
Appellee answered, in substance, denying appellant’s alleged offer and right to redeem, denying her ancestor’s possession and claim, but admitting her age and heirship as alleged. It is also alleged in the answer that valuable improvements have been made and taxes paid on the lands, but the value is not stated. And, among much redundant matter, there is a prayer for affirmative relief as to improvements and taxes, in the •event redemption be decreed.
Appellee’s answer was filed on the 6th day of November, 1891. Thereafter, as the record discloses, depositions were taken on both sides relating to the alleged possession and offer to redeem. In 1892, at the April term of the court, the cause, on motion of appellee, was continued to the succeeding term. No further action appears to have been taken until the November term 1893, when a motion was filed by appellee to dismiss, under section 2595 and 2596, Sandels & Hill’s Digest. The court sustained the motion, for failure of appellant to file the affidavit required by the section first named, and entered judgment accordingly, from which this appeal was prayed and granted.
Section 2595, Sandels & Hill’s Digest, which is part of the act of January 10, 1857, is as follows: “No person shall maintain an action for the recovery of any lands, or for the possession thereof, against any person who may hold such lands by virtue of a purchase thereof at a sale by the collector, or commissioner of state lands, for the non-payment of taxes, or who may have purchased the same from the state by virtue of any act providing for the sale of lands forfeited to the state for the non-payment of taxes, or who may hold such lands under a donation deed from the state, unless the person so claiming such lands shall, before the issuing of any writ, file in the office of the clerk of the court in which suit is brought an affidavit setting forth that such claimant hath tendered to the person holding such lands in the manner aforesaid, his agent or legal - representative, the amount of taxes and costs first paid for said lands, with interest thereon from the date of payment thereof, and the amount of taxes paid thereon by the purchaser subsequent to such sale, with interest thereon, and the value of all improvements made on such lands by the purchaser, his heirs, assigns or tenants, after the expiration of the period allowed by law for the redemption of land sold for taxes, and that the same hath been refused.” Ought appellant’s cause to have been dismissed on appellee’s motion, under this section? After mature consideration, we are of the opinion that it ought not to have been so dismissed. The purpose of the statute, which must be considered, was (1) to reduce to the minimum the non-payment of lawfully assessed taxes, by rendering procrastination in that regard at once exceptionally expensive and vexatious to the land owner ; and, upon the other hand, (2) to encourage persons to become purchasers at tax sales, by the assurance, found in the -terms of the act, that, despite the dangers to their permanent possession of the land consequent upon irregularities in the tax proceeding, that possession cannot be disturbed by litigation founded upon such irregularities, until the ligitimute expenditures of the tax purchaser, with unusual profits, shall have been tendered, and an affidavit to that effect filed in the clerk's office. Redemption belongs to a different class of remedies. It assumes the validity of the tax and the regularity of the tax proceeding; and while redemption is, of course, preceded, by dereliction upon the part of the land owner, that dereliction finds its penalties in the general revenue laws, and not in the act of 1857.
We are not unmindful of a very early case, — Craig v. Flanagin, 21 Ark. 319. There, as it appears, the tax purchaser had regularly obtained a tax deed, and in due time, by a proceeding in chancery, obtained a decree of confirmation, the effect of which was to bar any action to recover the land on account of any irregularity in the tax proceeding, and to complete the title in the purchaser ; and it was to avoid the effect of this decree that Craig, the appellant, filed his bill in equity attacking the decree as well as the tax deed. He failed to file the affidavit prescribed by the act under consideration, and a dismissal for this failure was affirmed. That was not a suit to redeem; but it is to be presumed that the court treated it as, in effect, an “action for the recovery of land or the possession thereof,” against a person “holding it under a collector’s deed.” However, if such a suit in chancery may be held to be “an action for the recovery of land or the possession thereof,” or if the tax purchaser may be said longer to “hold under a tax deed," after decree of confirmation, it is well to observe that the terms of the act, being penal, should not be extended beyond its letter.
As early as 1872, in Chaplin v. Holmes, 27 Ark. 414, which was a suit by a married woman, brought in equity, to remove a tax deed as a cloud upon her title, it was held that the filing of the affidavit was unnecessary, upon the ground that the act makes such affidavit a prerequisite only in “actions for the recovery of land or the possession thereof.” In Douglass v. Flynn, 43 Ark. 398, which was ejectment against a person holding under “a donation deed,” the affidavit was not required because “no one claiming as assignee or vendee of a donation claim, on which the donee has made no improvements at the time of his sale, can be said to be holding under it, inasmuch as the statute re-vests the land in the state upon such attempt to sell ; and therefore the act of January 10, 1857, ‘to quiet laud titles’ has no application, either as to the tender of taxes or limitation of the action expressed in the act.” And so in Kelso v. Robertson, 51 Ark. 397, opinion by Hemingway, J. There it appeared that the taxes for which the lands were sold had been previously paid by the land owner, and for this reason “the deed” under which the purchaser held was void, and the affidavit, consequently, unnecessary. The case of Anthony v. Manlove, 53 Ark. 423, was a suit in ejectment by a minor, who, it appears, filed the affidavit, and without, of course, questioning the essentiality of it, the defendant below sought to traverse its allegations. To this the court said : “The statute does not, in terms, provide that any issue may be made upon the allegations of the affidavit. There is no wise and beneficial object to be accomplished by the act which would justify the extension of its operation beyond its letter ; besides, being penal in its nature, it should be strictly construed.” Still a stronger, though an earlier, case is Hare v. Carnall, 39 Ark. 196. It was a suit in equity by certain landowners to enjoin the execution of a tax deed, and thus to avert a cloud upon the title. The bill was filed before the period for redemption had expired; and amongst other defenses interposed, it was sought to invoke the terms of the act of 1857. To that, however, this court in that case said : “This case does not come within the purview of the act of January, 1857. The effect of that act is that, before any suit for the recovery of land or its possession, shall be brought against any person holding it by virtue of a purchase at tax sale, etc., ****** an affidavit to the effect, etc., shall be first filed.” * * * * Continuing, the court in that case said : “This is neither an action for the recovery nor possession of land. The provisions of the law are severe, and will not be extended beyond the letter.”
There are many points of similitude to the case at bar in Carroll v. Johnson, 41 Ark. 59. The plaintiff’s land had been sold for taxes in 1876, while he was an infant'. In due time they were conveyed to the state, and by the state deeded to a person who conveyed them to the defendant, and the latter went into possession. The plaintiff was still a minor when his suit was instituted, and he had previously tendered to the defendant the price paid by his grantor to the state, the value of all improvements, taxes, interest, etc., and brought the money into court. And in that case this court, by Smith, J., delivering the opinion, after adverting to the act providing the manner in which minors and others laboring under disabilities shall redeem their forfeited lands, which is by sworn petition filed in the office of the commissioner of state lands, before the state has disposed of them, used this language: “No statute with which we are acquainted has prescribed the mode by which redemption is to be effected after a deed has been made to an individual, either upon purchase at the original tax sale, or upon purchase from the state after the land has come into the office of the land commissioner. Under such circumstances it becomes the duty of the courts to mould the remedy so as to give effect to the right. And no better course for the purpose of accomplishing justice to all parties in interest occurs to us than the course which was pursued here.” And, while the statute which we are considering was not directly passed upon in that case, apparently for the reason that all parties treated it as having no application, what would have been held, however, we think, is equally as apparent, had the question been • there directly presented, as it is here.
It may be conceded that in the case at bar, under the pleadings and general prayer for relief, appellant will be entitled, if the proof warrants it, to a decree as well for possession of the land as for redemption from the tax title; but it does not follow from this concession that the suit is “an action for the recovery of land or the possession thereof.” The incidental granting by chancery courts of relief peculiar to courts of law is a practice well established. The language “ actions for the recovery of land or the possession thereof” had a fixed legal meaning at the date of the act of 1857, and this meaning must be attributed to the legislature. Actions for the recovery of land were common law actions. They tried the title and the right to possession. And it is in the light of the law at the date of the act in question that its terms are to be construed. The right according to which appellant in this case was proceeding was granted long after the passage of the act of 1857. At that time there was no exception in the redemption statutes in favor of infants. Smith v. Macon, 20 Ark. 17; Acts of 1875, page 227; Gantt’s Digest, secs. 5195, 5197 and 5266. See, also, Bender v. Bean, 52 Ark. 132.
And, while now, as it was at the date of the act of 1857, a deed will be executed to the tax purchaser, at the end of two years allowed to persons, generally, for redemption, such deed is not now, as it was then, unqualified ; but the extension of the right of redemption to minors until two years after they reached their majority had the effect of making such right a condition subsequent to the tax deed executed to purchasers of their lands, and the right is qualified only by the laws of its creation and those enacted to govern its just and proper exercise.
It follows, therefore, that for the error indicated, this cause must be reversed.
We are unable to determine, however, from the transcript, that the cause was prepared in the court below for final submission. It is accordingly remanded, with directions to set aside the decree of dismissal, to overrule the motion to dismiss filed by the appellee, and to further proceed in the action according to the rules and practice in equity, not inconsistent with this opinion.
Riddick, J., being disqualified, did not participate. | [
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Bunn, C. J.
(after stating the facts). In the first place, this cause should not have been transferred to-the equity court, since there is no equitable question involved, and all the relief sought is obtainable in a court of law.
The court also erred in sustaining the motion to dismiss on account of the alleged want of interest of appellant in the suit.
In Beard v. Wilson, 52 Ark. 290, it was said by this court, after quoting section 3067 of Mansfield’s. Digest, that “it was doubtless the intention of the general assembly in passing this act (section 3067) to give the right of redemption from sales of real estate under any final process from courts of law. The justice or sound policy of a distinction between technical execution sales and sales made in execution of judgments in cases-where attachments have issued is not very apparent.” And we hold that a sale under a judgment and order of a court of law, in a suit in which an attachment issues, is not a judicial sale, from which there can be no redemption under our statute, but that the statute gives, the right of redemption from such sales.”
Por the same reason, we think the provisions of sections 3058 and 3059, Mansfield’s Digest, are applicable to sales under orders of attachment alike as under-execution- sales, and that the motion or complaint states a cause of action. On the other hand, we think the-answers of defendants, if true, constituted a good defense, that is to say, if the bid of Brundidge of the $4,750 was conditional, as alleged in his answer, and that he was not the unconditional agent of his co-defendant, as alleged in its answer, and these facts. were known to the plaintiff (sheriff) personally, or to his deputy making and conducting the sale, before the bid was made, and it was so made on condition, he (the said deputy) should not have received nor cried said bid, and therefore defendants were not responsible under the statute.
But the determination of these questions depends upon the facts in the case to be developed on the trial, in accordance with the pleadings.
The judgment of the circuit court is therefore reversed, and the cause remanded, with directions to transfer to the circuit court, and there proceed as herein indicated, and in accordance with this opinion. | [
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McCulloch, C. J.
This controversy involves the title to a tract of land in Jackson County, Arkansas, both parties to the suit claiming title from a common source, appellant claiming under a mortgage executed by one Thomas, and appellees claiming under a sale upon execution issued against the property of Thomas.
The question in the case relates to the priority of the respective liens.
On February 11, 1904, the grand jury of Jackson County returned an indictment against Thomas for misdemeanor, and he was arrested on a bench warrant in July of the same year.
After the return of the indictment against Thomas, some time during the month of February, 1904, the precise date not being shown, he negotiated the purchase of the tract of land in controversy from one Mustin, who was then the owner. The purchase price was to be $350, and Thomas borrowed $250 to complete the purchase, having only $100 of his own to pay on the land, and he executed the mortgage upon which appellant rests its claim of title to secure the amount so borrowed, which was used in paying the purchase price. The mortgage was dated February 26, 1904, and the deed from Mustin to Thomas bears date February 29, 1904, but the proof shows that the two transactions were simultaneous.
The mortgage was not recorded, however, until November 4, 1904.
On January 30, 1905, Thomas entered a plea of guilty, a fine of $50 was assessed against him, and judgment was rendered in favor of the State for the recovery of said fine and the costs of prosecution. In October, 1905, execution was issued on the judgment,.the land was sold, and appellees became the purchasers.
Subsequently appellant purchased the notes secured by the mortgage executed by Thomas, and foreclosed the mortgage and became the purchaser at the sale.
It is quite well settled by the authorities that a mortgage, given at the time of the purchase of real estate to secure the payment of purchase money, whether given to the vendor or to a third person, who, as a part of the same transaction, advances the purchase money, has pref ■erence over all judgments and other liens against the mortgagor.
“A purchase-money mortgage may,” says Mr. Jones, “be made to a third person who advances the purchase-money at the time the purchaser receives his conveyance, and such mortgage is entitled to the same preference over a prior judgment as it would have had if it had been executed to the vendor himself.” 1 Jones on Mortgages (6 .ed.), § 472.
' Professor Pomeroy has this to say on the subject:
“Even in the absence of any statute, and upon the general principles of equity, a purchase-money mortgage given at the same time as the deed, or as a part of the same transaction, has precedence over any prior general lien, such as that part of a prior judgment against the mortgagor. The same equitable rule applies in like manner to a mortgage given by the grantee to a third person, as security for money loaned for the purpose of being used, and which is actually used, in paying the purchase price.” 2 Pomeroy’s Equity Jurisprudence (3 ed.), § 725.
The following cases, among many others, fully sustain the text: Kaiser v. Lembeck, 55 Ia. 244; Clark v. Butter, 32 N. J. Eq. 664; Moring v. Dickerson, 85 F. C. 466; Rogers v. Tucker, 94 Mo. 346; Roane v. Baker, 120 Ill. 308; Courson v. Walker, 94 Ga. 175.
“The reason given,” says the Forth Carolina court in stating the principle in the above cited ease, “is that the execution of the deed and of the mortgage being simultaneous acts, the title to the land does not for a single moment rest in the purchaser, but merely passes through his hands, and without stopping, vests in the mortgagee, and during such instantaneous passage no lien of any character can attach to the title.”
The facts presented in this record bring the case within that rule as to the mortgage under which appellant claims title, but the real turning point in the case is whether or not appellant’s lien under the mortgage was superior to the State’s lien for the fine and costs assessed against Thomas.
The statute provides that “the property, both real and personal, of any person charged with a criminal offense, shall be bound from the time of his arrest, or the finding of an indictment against him, whichever shall first happen, for the payment of all fines and costs which he may be adjudged to pay.” Kirby’s Digest, § 2467.
This court, in an early case, speaking of that statute, said:
“This provision of law, we have no doubt, creates a lien in favor of the State, on all of the property of a person charged with a criminal offense, wheresoever it may be within the limits of the State, which attaches upon and binds it, not only in the hands of the accused, but .also in the hands of any other person who shall, in any manner, possess or hold it, from the time of the arrest or indictment found, as mentioned in the statute, until the accused is discharged from the prosecution, or such fines and costs as shall be adjudged against him are paid.” Lawson v. Johnson, 5 Ark. 168.
It is insisted by learned counsel for appellant that the lien which arises under the statute from the time of the finding of the indictment or the arrest, whichever first occurs, does not attach to after-acquired property.
But we think counsel are clearly mistaken in their interpretation of the statute. The binding force of the statute begins at the time of the arrest or finding of the indictment, but it gathers within its sweep all property owned by the accused from that time until the judgment subsequently rendered for fine and costs be paid.
Similar language is used in the statute creating liens in favor of judgment-creditors, the language being that a judgment shall be a lien “from the date of its rendition,” and this court held in Real Estate Bank v. Watson & Hubbard, 13 Ark. 74-82, that the lien attached to any property acquired subsequent to the rendition of the judgment.
The main question is whether the State’s lien attached as against the unrecorded mortgage.
It will he noted that under the authorities cited above a purchase money mortgage must be simultaneous with the execution of the deed of conveyance in order to take precedence over prior liens, for if there is any intervening, space of time during which the title rests in the purchaser the prior liens attach to it in preference to the mortgage. Cohn v. Hoffman, 50 Ark. 108.
The registration statutes of this State provide that “every mortgage, whether for real or personal property, shall be a lien on the mortgaged property from the time the same is filed in the recorder’s office for record, and not before.” Kirby’s Digest, § 5396.
This court has held that, notwithstanding the provision of the statute with reference to registration of mortgages, an unrecorded mortgage is valid between the parties and as against persons holding the property under voluntary conveyance. Main v. Alexander, 9 Ark. 112; Leonhard v. Flood, 68 Ark. 162-168.
This is obviously so, because the registration statute is not intended to apply between the parties to a mortgage or to a grantee under a voluntary conveyance.
But is it valid as against the State’s claim? We think not. If the statute, by express language, made the mortgage good except' as against third parties, it might well be argued that the State was not deemed to be a party within its meaning. But the language is quite different. It declares, unconditionally, that the mortgage “shall be a lien on the mortgaged property from the time the same is filed in the recorder’s office for record, and not before.”
When the two statutes involved in this case are read together, the one which declares that the property of an accused person shall.be bound for the fine and costs from the time of his indictment or arrest, and the one which declares when a mortgage lien shall take effect — the conclusion is unavoidable that the Legislature meant to give the State a lien against an unrecorded mortgage.
It does not follow that the State would have a lien as against equities , of third parties not within the registration statutes; but where the statute has, as in this case, unconditionally provided that there shall be no lien until the mortgage is recorded, it would he straining the language of the lawmakers to say that an unrecorded mortgage should he valid as against the State’s statutory lien.
We are of the opinion, therefore, that the State’s lien was superior and that appellees acquired a superior title under their purchase at the execution sale. The decree of the chancery court is, therefore, affirmed. | [
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Hughes, J.
The appellant was convicted of murder in the first degree, and has appealed to this court. The evidence in the case was circumstantial. Charles Hibdon, the person alleged to have been murdered, his nephew, Jesse Hibdon, and the appellant, acting in the capacity of a cook for the Hibdons, on the 18th February, 1894, camped together in a house in Bogan county, in this State, and, on the day following, the house in which they camped was burned, the Hibdons were missing, and the appellant was found in possession of their property, consisting of horses, a wagon, the gun of Charles Hibdon, the gloves and leather cuffs of Jesse Hibdon, and of Charles Hibdon’s pocket book, and various other articles of property identified by the evidence on the trial as the property of Charles and Jesse Hibdon. The night before the house burned, the reports of two gun-shots were heard in the direction of the house where they camped. In accounting for the disappearance of Charles and Jesse Hibdon, after the house had burned, the appellant first told that they had gone down into Scott county to see about trading some ponies; and he afterwards told that the Hibdons had fled, from fear of apprehension by the United States marshals, who were after them for selling whiskey in the Indian Territory, whence they came to Logan county to sell a drove of ponies, and where the appellant, who was a stranger there, engaged to accompany them as a cook. Burned bones supposed to be the bones of a human being were found in the ashes of the burned house and near it.
In the latter part of an instruction, numbered four, given to the jury by the court, the following language was used, to-wit: “The false, improbable and contradictory statements of the accused, if made, in explaining suspicious circumstances against him, are evidence to be considered by the jury, together with all the other facts and circumstances' in evidence tending to show his guilt or innocence, giving to them all their due and natural weight, considered in the light of your observation of human actions, motives and affairs.” This was excepted to by the appellant, and is urged here as error for which the judgment should be reversed. This instruction has been carefully and anxiously considered by the court, which has arrived at the conclusion that it assumes facts the existence of which should have been left to the determination of the jury upon the evidence. It appears to the court that it assumes either that the statements of the appellant were false, improbable and contradictory, or that there were suspicious circumstances against him.
While we are assured of the fact, from the known integrity, impartiality and ability of the court that tried the cause, as well as from his statements to the jury on the trial, that it was not his province or intention to interfere with the right and duty of the jury to determine the facts, uninfluenced by the opinion of the court, if he had said anything from which it might be inferred that he had intimated an opinion in any way as to the guilt or innocence of the defendant, still we are of the opinion that the part of the instruction referred to is erroneous, and we think was probably calculated to mislead the jury, and work prejudice to the defendant.
It is the province of the jury, in a capital case especially, to determine all the facts, upon the evidence in the cause, and to determine the weight and credibility of the evidence. “The judge should always direct the attention of the jury to a hypothetical state of facts, which they may or may not find from the evidence to be true. He should never so frame his instructions as to assume a disputed state of facts as proven. The rule is of equal application in civil and criminal cases.” 11 Am. & Eng. Enc. of Law, %54-d, and cases cited. Thompson, Charging the Jury, sec. 47, and cases cited. In the case of Thompson v. State, 30 Ala. 28, which was for forgery, the court instructed the jury as follows: “That if they find, from the proof, that the name of William Nice was attached to the note when he received it, and that he received it from the prisoner, they may infer from this, if it is unexplained, and other circumstances in the cause, that the prisoner put the name of said Nice to said note”—to which charg'e the prisoner -excepted. The Supreme Court of Alabama, in discussing this question, said: “But the defendant is entitled to a trial by jury. The determination of the facts ■which are essential to constitute his guilt must be left to the jury, and must not be assumed by the court. The credibility of the evidence must be left to the jury, and must not be assumed by the court. In the charge of the court excepted to by the defendant in this case, it is assumed that there were ‘ other circumstances in the cause.’ The credibility of the evidence, tending to prove those ‘other circumstances,’ was not left to the jury. In thus assuming the existence of ‘ other circumstances,’ without referring to the jury the credibility of the testimony by which they were assumed to be established, the court below erred.”
So it appears to the court in this case that the circuit court erred in assuming that the statements of the accused were false, improbable and contradictory, or that there were “suspicious circumstances” against him, without referring to the jury the credibility of the testimony by which their existence was assumed to be established. In some of the other instructions given in the case, and insisted upon here as (erroneous, there are expressions not to be approved, though probably not reversible error, as they were qualified and explained when given.
Por the error indicated, in giving the latter part of instruction numbered four referred to, the judgment is. reversed, and the cause is remanded for a new trial. | [
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Sam Robinson, Associate Justice.
The appellant, Earl Mullally, loaned his pickup truck to L. H. Heagwood to enable Heagwood to get to the place where Heagwood’s son had been involved in an accident. While Pleagwood was on this trip he had a collision with an automobile driven by appellee, Ed Carvill. There was damage to both Mullally’s truck and Carvill’s automobile. Mullally filed suit against Carvill for damages to the truck and Carvill filed a cross complaint asking compensation for damages to his automobile. There was a judgment for $645.00 on the cross complaint.
After all the evidence had been introduced, Mullally moved for a directed verdict in his behalf on the cross complaint contending there was no evidence of negligence on his part and that he is not liable for the negligence of Heagwood, if any, because Heagwood was in no manner acting for Mullally and that Heagwood’s negligence, if any, was not imputable to Mullally. The Court overruled Mullally’s motion for a directed verdict and in structed the jury that Heagwood’s negligence, if any, was imputable to Mullally. This was error.
Mullally was merely a gratuitous bailor and his motion for a directed verdict on the cross complaint should have been granted. There is no evidence of negligence on his part and since there is no evidence that Heagwood was in any wise acting for Mullally, Heagwood’s negligence was not imputable to him. In Sanders v. Walden, 212 Ark. 773, 207 S. W. 2d 609, the Court cited with approval Missouri Pacific R. R. Co., v. Boyce, 168 Ark. 440, 270 S. W. 519, which held that where a truck struck by a train had been loaned to the driver for use for his own pleasure, the driver’s negligence could not be imputed to the owner, nor be interposed as a defense as the negligence of a bailee is not imputable to the bailor where the subject of bailment is damaged by a third person. See also 5 Am. Jur. 781.
In 6 Am. Jur. 313 it is said: The relationship of bailor and bailee is not, as such, within the doctrine of respondeat superior; at common law it seems to be very well settled, both in bailments for gratuitous use and in lettings for hire, that the bailor cannot be held responsible to a third person for injuries resulting from his bailee’s negligent use of the bailed property, in the absence of any control exercised by the bailor at the time or of negligence of his own which proximately contributed to the injuries.” Dozens of cases are cited in support of the text.
The issue of the alleged negligence of the parties was submitted to the jury under the comparative negligence doctrine. The judgment states that the jury found no negligence on the part of appellee, Carvill. The jury having found Carvill guilty of no negligence, there is no error prejudicial to appellant, Mullally, on his complaint. As heretofore pointed out, there should have been a directed verdict for appellant on appellee’s cross complaint. The judgment is therefore reversed and the cause dismissed. | [
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Georoe Rose Smith, J.
This is a suit by the appellant to cancel a deed (conceded to have been in reality a mortgage) by which she and her late husband conveyed a 43-acre farm to the appellee, T. H. Johnson. The chancellor refused to cancel the instrument, holding that the debts secured by the equitable mortgage were neither usurious nor barred by limitations. This appeal is from a decree settling the accounts between the parties and ordering a foreclosure of the appellee’s lien for the balance found to be due.
The proof shows that in 1953 the appellant’s husband, T. E. Daniels, was indebted beyond his ability to pay. He owed more than $3,000 upon a mortgage to a federal lending agency. Foreclosure was threatened. He was also obligated upon six promissory notes, of which four were held by the appellee Johnson and the other two by a McGehee bank. Daniels’ application to a life insurance company for a refinancing of his mortgage had been refused.
In this situation Daniels sought Johnson’s help. On June 1, 1953, Daniels and his wife conveyed their farm to Johnson to enable him to obtain a refinancing of the real estate mortgage. This is the deed that the appellant seeks to cancel. Johnson testified that the agreement was “that I would take a deed to the property and hold it for what he already owed me and what I was to pay the Government” upon the federal mortgage. Johnson also agreed to assume the payment of the two notes held by the bank.
Daniels remained in possession of the land until his death in November, 1958. He made no payments upon the debts, but he did reimburse Johnson for the taxes that Johnson paid yearly. Early in 1958 the appellant obtained a $5,000 insurance policy upon her husband’s life, payable to Johnson, as additional security. After Daniels ’ death the proceeds of this policy were applied in reduction of the indebtedness. This suit for cancellation was filed in December, 1958.
The appellant makes three separate arguments to support her contention that she, as the surviving tenant by the entirety, should take the land free from her husband’s debts.
I. It is first argued that the appellant did not sign either the deed to Johnson or the promissory notes and that therefore her interest in the land ought not to be burdened with the debts. It is true that the appellant attempted to prove that her name was wrongfully signed to the deed by her daughter, but the decided weight of the evidence supports the chancellor’s finding that the appellant’s signature is genuine. By joining in the conveyance the appellant subjected her interest in the land to the indebtedness, of which she evidently had knowledge. She is right, however, in insisting that she is not personally liable, as she did not join in the execution of the notes. The chancellor’s opinion shows that the court did not intend to impose personal liability upon the appellant, but the decree did embody a money judgment against her. This inadvertent error may be corrected on remand.
II. It is contended that the appellee’s claims are barred by the five-year statute of limitations. Ark. Stats. 1947, §§ 37-209 and 51-1103. A sufficient answer to this argument is that the appellant is not in a position to take advantage of the statute. The title to the land is in the appellee. Even if the debts are barred the appellant cannot invoke the aid of equity without first doing equity herself by recognizing the validity of the appellee’s lien. Sturdivant v. McCorley, 83 Ark. 278, 103 S. W. 732, 11 L. R. A. N. S. 825. Here, as in the cascited, there is no contention that the debtors held the land adversely to the equitable mortgagee. To the contrary, Daniels and his wife repeatedly recognized John son’s security interest by repaying the taxes and taking out insurance as added indemnity.
III. The third argument is that Johnson’s demands are void for usury. At the outset it may be observed that there was no usury in Johnson’s original agreement with Daniels. In that transaction Johnson merely agreed that the land should stand as security for the refinanced mortgage debt and the six promissory notes. Those obligations did not bear an excessive interest rate, and there is no suggestion that the rate was increased when the land was conveyed to Johnson as security. Hence the claims were not usurious in the beginning.
A second opportunity for the intrusion of usury may have arisen on March 10, 1954, some nine months after the conveyance. Johnson testified that on that date Daniels agreed to consolidate the debts and pay them all by making ten annual payments of $1,080, which were intended to include both the principal and interest at 10 per cent. As corroborative evidence Johnson produced a vague memorandum, purportedly signed by Daniels, reading essentially as follows: “$1,080.00 per year for 10 years on October 15. Each. T. R. Daniels.”
Even if this memorandum should be accepted it does not in itself indicate usury, for the payment of $10,800 in ten equal annual installments would have been slightly less than the permissible maximum charge. The chancellor, however, quite properly rejected the memorandum and instead computed the indebtedness according to the original agreement. The incomplete memorandum is not convincing, especially now that Daniels ’ death has deprived the appellant of his testimony. It is doubtful if Daniels received any consideration for his supposed agreement to pay something more than he really owed. On the whole record we agree with the chancellor’s decision to disregard the 1954 memorandum.
With respect, however, to the two notes that were originally held by the bank Johnson sought by his pleadings and proof to recover interest at a rate in excess of 10 per cent per annum. In his cross complaint Johnson set out the 1954 memorandum and asked that the indebtedness be computed pursuant to its recitals. During the trial Johnson prepared and introduced in evidence an extended computation in which he undertook to show how the figure of $10,800 was arrived at in 1954. This exhibit does not succeed in confirming the accuracy of the memorandum, for Johnson’s computations at the trial result in a total claim that exceeds by $191.06 the memorandum figure of $10,800. Johnson was unable to explain this discrepancy satisfactorily, though he insists that his computations are correct.
This trial exhibit, based upon Johnson’s theory of the case, involves usury with respect to the two notes originally held by the bank. They were installment notes, with several monthly payments coming due after June 1, 1953, when Johnson assumed the responsibility for paying the bank. The fixed installments included not only the principal but also interest at the maximum rate of 10 per cent per annum until maturity. It follows that any additional charge before maturity would push the interest rate beyond the legal limit.
Upon assuming the notes Johnson did not go at once to the bank and pay them in full. Instead he paid the installments as they came due during the next nine months; this is clearly shown by his testimony and by the bank’s indorsements on the notes. Yet Johnson seeks to recover interest at the rate of 10 per cent per annum from June 1,1953, upon the full amount of his subsequent payments to the bank. Inasmuch as those payments already included the maximum permissible interest the additional 10 per cent charge is plainly usurious.
The claim upon these two notes should have been rejected. They are separable from the other debts, however; so their invalidity does not vitiate the rest of the claim. Hynes v. Stevens, 62 Ark. 491, 36 S. W. 689; Hughes v. Holden, 229 Ark. 15, 316 S. W. 2d 710.
In the main the decree is affirmed. In the particulars mentioned herein it is reversed and the cause remanded for further proceedings. | [
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Neill Bohlinger, Associate Justice.
A first degree murder information was filed against the appellant in the Saline Circuit Conrt on October 17, 1960. In that information appellant was charged with the murder of Pedro Rabb, alias Smiley Brown.
Upon a trial in the Saline Circuit Court, a jury found the appellant guilty of manslaughter and fixed his punishment by imprisonment in the State Penitentiary for seven years. To reverse this finding and judgment the appellant has appealed and for reversal relies upon the following points:
“1. The trial court erred in giving State’s Instruction No. 9 over the general and specific objections of the appellant.
2. The trial court erred in giving State’s Instruction No. 10 over the general and specific objections of the appellant.
3. The trial court erred in refusing to declare a mistrial at the request of the appellant because of the misconduct of the Prosecuting Attorney in his examination of defense witness, Jessie Johnson.”
In addition to these points, the appellant has argued in his brief that he was convicted of manslaughter when there was no proof of manslaughter ever introduced by the State and that the jury should have either found him guilty of first or second degree murder or acquitted him. With this theory we do not agree. Manslaughter is one of the degrees of murder and the act of the appellant in pleading self-defense placed the issue of manslaughter before the court.
In Bruder v. State, 110 Ark. 402, 161 S. W. 1067, this court said:
“* * * This court has held that where a jury believes that the defendant shot under the belief that he was about to be assaulted but that he acted too hastily and without due care, and was therefore not justified in taking life under the circumstances, he is guilty of manslaughter. Allison v. State, 74 Ark. 444, [86 S. W. 409], Brooks v. State, 85 Ark. 376, [108 S. W. 205].”
In Middleton v. State, 158 Ark. 642, 240 S. W. 413, this court found there was evidence sufficient to make out a case of voluntary manslaughter notwithstanding the fact that the jury might, from the testimony, have convicted appellant of a higher degree of homicide. The appellant cannot complain if he is found guilty of a lesser offense than the evidence justifies because that finding inures to his benefit.
Among other matters, the appellant contends that the trial court erred in giving State’s Instruction No. 9 which was as follows:
“You are instructed that manslaughter is the unlawful killing of a human being without malice, express or implied and without deliberation. Manslaughter must be voluntary upon sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible. That is voluntary manslaughter.”
Instruction No. 9 should be read in conjunction with State’s Instruction No. 10 which was as follows:
“You are instructed in this connection that if you have a reasonable doubt as to the degree of the offense you must give the defendant benefit of the doubt and find him guilty only of the lower degree. In other words, if he is guilty and you have a reasonable doubt as to whether it is murder in the first or murder in the second degree, you must convict only of murder in the second degree. If you have a reasonable doubt as to whether it is murder in the second degree or manslaughter, you should convict him only of manslaughter.
As I have stated to you, the burden of proof is upon the State to prove all the allegations in the indictment and that beyond a reasonable doubt. The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the defendant. Unless by proof on the part of the State, it is sufficiently manifest that the offense amount to only manslaughter, or that the accused was justified or excused in committing the homicide.”
Instruction No. 10, above, is not the same instruction that was given by the trial court in Mode v. State, 231 Ark. 477, 330 S. W. 2d 88. The instruction in the Mode case was as follows:
“The defendant, * * *, interposes a plea of self defense, that the killing of * * * under the circumstances constituted justifiable homicide. The burden of proof is upon the defendant, * * *, to prove such defense by a preponderance of the evidence.”
The error in the Mode case, supra, was the statement that the defendant in that case was required to prove such a defense by the preponderance of the evidence. We do not have that in the case before us. In this case the court instructed:
“The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the defendant. Unless by proof on the part of the State, it is sufficiently manifest that the offense amount to only manslaughter, or that the accused was justified or excused in committing the homicide. ’ ’
This instruction follows the statute and a similar instruction has been approved by this court in Covey v. State, 232 Ark. 79, 334 S. W. 2d 648; Brown v. State, 231 Ark. 363, 329 S. W. 2d 521; Hogue v. State, 194 Ark. 1089, 110 S. W. 2d 11, and Tignor v. State, 76 Ark. 489, 89 S. W. 96.
In the Brown case, sufra, we said:
“ * * * Appellant contends this instruction is misleading, in that the jury could feel that if there was a reasonable doubt of the guilt of Brown on the murder charge, they could still convict him of manslaughter. The instruction is copied from the statute (Ark. Stats. § 41-2246). In Tignor v. State, 76 Ark. 489, 89 S. W. 96, this court said: ‘Again, the court gave section 1765 of Kirby’s Digest [Ark. Stats. 41-2246], to the effect that, the killing being proved, the burden of proving circumstances that justify or excuse the homicide devolves upon the accused, etc. Now, this instruction is taken from the statute, and is the law, but it should have been accompanied with an instruction that on the whole case the guilt of the defendant must be proved beyond a reasonable doubt, so that the jury might understand that, though the burden of proving acts of mitigation may devolve on the accused, it is sufficient for him to show facts which raise in the minds of the jury a reasonable doubt as to his guilt. * * * ’
In Hogue v. State, 194 Ark. 1089, 110 S. W. 2d 11, the identical instruction was given. In an opinion written by the late Justice Frank Smith, we said: ‘It is argued that this instruction placed upon the defendant the burden of proving his innocence, inasmuch as he admitted the killing. Such, however, is not the effect of the instruction when read in connection with instruction No. 11, given by the court, reading as follows: “Under the law the defendant is presumed to be innocent. This presumption is evidence in his behalf and protects him from a conviction at your hands until his guilt is established to your satisfaction beyond a reasonable doubt.”
In the instant case, the jury was instructed that appellant started out in the trial with the presumption of innocence in his favor, and that such presumption ‘follows him throughout the trial’, and until they were convinced of his guilt beyond a reasonable doubt. ’ ’
The instructions before us meet the test laid out in the foregoing cases.
State’s instructions four and five are as follows:
[No. 4] “The defendant starts out in the beginning of the trial with the presumption of innocence in his favor. This is a presumption that begins with the trial of the case and continues throughout the trial, or until the evidence convinces you of his guilt beyond a reasonable doubt. You pass upon the guilt or innocence of the defendant, and in this case, you will decide according to the law and the evidence, if this defendant is guilty and what he is guilty of, and what his punishment should be, if guilty.”
[No. 5] “You have been told that you should give the defendant the benefit of a reasonable doubt. Reasonable doubt is not any possible or imaginary doubt, because everything that depends upon human testimony is susceptible of some possible or imaginary doubt. To be convinced beyond a reasonable doubt is that state of the case which, after a careful consideration and comparison of all the testimony, leaves the minds of the jurors in that condition that they feel an abiding conviction to a moral certainty of the truth of the charge. A moral certainty of the truth of the charge is such a certainty as you would be willing to act upon in the important affairs of your own life.
If you find the defendant guilty, and you are satisfied of that beyond a reasonable doubt, then it is your duty to convict him and to punish him in such a manner as commensurate with the crime that you find him guilty of. If you find that he is not guilty, or if you have reasonable doubt of his guilt, it is your duty to acquit him. This question you alone can decide. Exercise your reason, your judgment, your common sense and experience, as I have heretofore told you and give to the testimony of any and all witnesses such weight you think it is entitled to.”
There is thus correctly presented to the jury the law of presumption of innocence and reasonable doubt, and the matter of reasonable doubt is also included in Instruction No. 10.
The appellant contends that the court erred in refusing to declare a mistrial because of the examination by the prosecuting attorney of defense witness Jessie Johnson. The appellant objected to questions propounded by the prosecuting attorney to the witness, Johnson, as to whether or not the witness had been drinking that day. The witness testified that he had not had a drink in thirty years. The attorney for the appellant objected to the question and the court sustained the objection. The whole matter would have been closed then and there except that the attorney for the appellant, on redirect examination, asked his witness, Johnson, if he drank whiskey, how long it had been since he had had a drink, to which the witness replied that he did not drink and had not had a drink of whiskey since 1929. We do not know what prompted the question in the first place, but it is noted that the questioning by appellant’s attorney on redirect was more searching than that of the prosecuting attorney on cross-examination. We fail to see anything in the questions or answers that tended to impeach the witness or to lessen the weight of his testimony and we find that no prejudicial error resulted in the matter.
Finding no error, the case is affirmed.
In Be Bules Governing Admissions to the Bar.
Per Curiam:
Upon the recommendation of the State Board of Law Examiners the following orders are made with respect to that Board and its methods of procedure:
1. In the Buies Governing Admission to the Bar, subhead Bequirements for Taking Examination, paragraph 2a is amended to read as follows:
a. Graduation from a law school approved by the American Bar Association or by the State Board of Law Examiners, but each applicant must have completed at least 1,250 class room hours of instruction prior to hia graduation. This change is to be effective for bar examinations conducted after January 1, 1963.
2. The State Board of Law Examiners, in accordance with its existing practice, is expressly authorized to destroy all examination papers at the time of the next succeeding bar examination.
3. The per diem of the members of the State Board of Law Examiners is fixed at $25.00 per day.
4. The Board is authorized, effective July 1, 1963, to add Legal Ethics to the subjects included in the bar examinations and for that purpose to increase by thirty minutes the time allowed for the examination. | [
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George Rose Smith, J.
These two appeals were consolidated in this court. The principal case is a partition suit in which the main question is that of determining the exact proportion in which the parties own two adjoining 120-acre tracts as tenants in common. In that appeal the two appellants, Joe and Bill Nuckolls, contend that the chancellor erred in awarding each of them only an undivided two-ninths interest in each tract. The other appeal, from the probate court, involves a distribution of accrued rent and will be governed by the decision in the chancery case.
The facts are not simple. The parties’ common source of title, Samuel Anthony, formerly owned the entire 240 acres. Samuel had four children: Kate Sheppard, Edgar Anthony, Ethel Washam, and Emma Man-tooth. In 1914 Samuel conveyed the 240 acres (and other land) to two of his children, Kate and Edgar, for life, with remainder to their bodily heirs. In an earlier case, Hutchison v. Sheppard, 225 Ark. 14, 279 S. W. 2d 33, we construed the 1914 deed and held that (a) it created a life estate in the two grantees during their joint lives; (b) it created a life estate in the surviving grantee upon the death of the other grantee without bodily heirs; and (c) there remained in the grantor. Samuel, a reversion that would become an estate in possession upon the death of both grantees without bodily heirs. We also held that Samuel’s reversion could be transferred by deed, by will, or by inheritance.
Samuel died in 1917. By the residuary clause in his will his reversionary interest in the 240 acres passed to three of his children, Kate, Edgar, and Emma Man-tooth, equally.
In 1924 Kate and Edgar, who were entitled to possession as joint life tenants under their father’s 1914 deed, divided the land by partition deed. The north 120 acres, known as the Sheppard farm, went to Kate, and the south 120 acres, later known as the Hutchison farm, went to Edgar. The construction of this partition deed is really the principal point of controversy in the present appeals.
From this point on the two tracts have different chains of title. We consider first the Hutchison farm, which Edgar received in the partition. In 1927 Edgar conveyed his entire interest in this 120-acre tract to Yirgil Hutchison. In 1946 Emma Mantooth, who owned one third of the reversionary interest, died intestate. Her interest passed to her two sons, the appellees Loyd Mantooth and Herman Ireland. In 1953 Edgar died without bodily heirs.
Our decision in the first case was handed down in 1955, in a case involving only the Hutchison farm. In 1956 that farm was partitioned by a proceeding in equity. All the owners (Kate Sheppard, the two sons of Emma Mantooth, and the remote grantees of Yirgil Hutchison) were parties to that partition suit. It is now immaterial whether the court’s decree correctly determined the ownership of the parties, for there was no appeal. The partition was by public sale, and the land was bought in by Kate Sheppard as to an undivided four ninths and by Emma Mantooth’s two sons as to the other undivided five ninths. Kate died intestate in 1959, survived only by two adopted sons, the appellants Joe and Bill Nuckolls, who inherited her interest in the land.
The chancellor held that -the Hutchison farm is :owned two ninths hy Joe Nuckolls, two ninths by Bill Nuckolls, and the other five ninths by Emma Man-tooth’s two sons. This decision is plainly correct, for these interests conform to the purchase at the partition sale in 1956. Indeed, the only contention made by the appellants upon this phase of the case is that they are riot bound by that decree, it being argued that they were bodily heirs of Kate Sheppard and should therefore have been made parties to the partition suit in 1956. The short answer to this contention is that adopted children are not bodily heirs of their foster parent. Davis v. Davis, 219 Ark. 623, 243 S. W. 2d 739.
The title to the Sheppard farm presents a more difficult question. This property was not involved in any of the earlier litigation and has not been the subject of any conveyance since Kate and Edgar divided it in 1924. Inasmuch as both Kate and Edgar, the grantees in the 1914 deed, died without bodily heirs it will be seen that their father’s reversionary interest eventually ripened into complete title. One third of that reversionary interest passed under Samuel Anthony’s will to Emma Mantooth, and that one third is now owned by Emma’s two sons. The chancellor correctly so held. Another third of the reversionary interest passed by Samuel’s will to Kate Sheppard, and that one third is now owned by Kate’s heirs, her adopted sons. The chancellor correctly so held.
The dispute centers upon the remaining one-third interest in the Sheppard 120 acres. Under Samuel’s will this reversionary interest passed to Edgar Anthony. The question is, was that one third conveyed by Edgar to Kate in the 1924 partition deed! The appellees contend that it was not. In that view the interest was still owned by Edgar at his death intestate in 1953; it would now be .vested one third in Kate’s heirs, one third in Emma’s heirs, and one third in the other sister, the appellee Ethel Washam. The chancellor so held. On the other hand, the appellants contend that by the partition deed Edgar conveyed his reversionary interest in the Sheppard 120 acres to Ms sister Kate. In that view the interest is now owned by the appellants as the heirs of their foster mother.
The partition deed is perhaps open to either interpretation. It will "be remembered that in 1924 Edgar and Kate each owned three separate estates in the entire 240 acres: (1) A joint life estate as long as both were living; (2) an inchoate right to a life estate by survivorship if the other life tenant should die without bodily heirs; and (3) a one-third interest in the reversion, received under the will of Samuel Anthony. It seems probable that Edgar and Kate did not realize in 1924 that they had a reversionary interest in the land, but their deed is to be construed according to its language rather than according to the parties’ subjective intent. Stegall v. Bugh, 228 Ark. 632, 310 S. W. 2d 251.
The material parts of the partition deed read as follows:
“Whereas, the said Edgar Anthony and the said Kate Nuckolls are the owners for life as tenants in common and are in possession of the following described lands [240 acres described], and;
“Whereas, the said tenants in common acquired a life estate in said lands under ... a certain deed of conveyance from their father, Samuel W. Anthony, dated the 27th day of January, 1914 . . . and;
“Whereas, the said tenants in common have agreed upon a partition of said lands so that each may have and hold Ms or her interest therein in severalty and in dividing said lands have made the allotment to each as near in value as possible;
“Now, Therefore, for the purpose of making partition of all the real property above described, and in consideration thereof, the parties hereto do mutually covenant and agree, each with the other, as follows:
“First: The said Edgar Anthony and Auttie Anthony, his wife, for the purpose of this partition and in consideration thereof, do by these presents grant, sell and quitclaim unto the said Kate Nuckolls, all their right, title, interest, and claim, in and to [the Sheppard 120 acres].
“To have and to hold the same unto the said Kate Nuckolls, and unto her heirs and assigns forever, together with all the tenements thereon, and rights, ways, improvements, hereditaments and appurtenances thereunto belonging.
“Second: [Kate, in language similar to the above, conveys to Edgar the Hutchison 120 acres].”
The difficulty is this: Two of the preliminary recitals in the deed refer to the grantors’ life estate in the land. It is then stated that the tenants in common have agreed upon a partition “of said lands” so that each may hold his interest in severalty. The granting clause then conveys all Edgar’s “right, title, interest, and claim” to the Sheppard farm. The operative language in the deed, standing alone, would undoubtedly convey Edgar’s reversionary interest as well as his life estate. The question is whether the broad sweep of the operative language is limited by the preliminary references to the life estate alone.
We think the better view to be that the deed conveyed the reversionary interest. It is a familiar rule of construction that where there is a conflict between the recitals in a deed and its operative language the latter is controlling. Koplowitz v. Central Tr. Co., 135 N. J. Eq. 552, 39 Atl. 2d 452; Yuscavage v. Hamlin, 391 Pa. 13, 137 Atl. 2d 242. Of course this is not an inflexible rule in Arkansas, since we are committed to the principle of discovering the parties’ meaning from the language of the deed as a whole. Weatherly v. Purcell, 217 Ark. 908, 234 S. W. 2d 32. Nevertheless, recognized rules of construction may be of value in the search for the parties’ intention.
In this deed two of the prefatory paragraphs refer to the life estates vested in the grantors. But a third .preamble contains no such restriction; instead, it declares broadly that the parties’ purpose is to effect a division “of said lands so that each may have and hold his or her interest therein in severalty.” Similarly the granting clause, the most significant part of the deed, purports to convey all the grantors’ interest in the land, without reservation. The parties’ motive for partitioning the reversionary interest, which 'was held in common, was equally as strong as their motive for partitioning the life estate. In the circumstances we think the stability of real property titles will best be served by holding that these grantors meant all that they said, thus giving full effect to the plain language in the granting clause of their deed.
The appellees insist that in the earlier case, Hutchison v. Sheppard, supra, we held that the partition deed had the effect of dividing only the life estate that was jointly held by Edgar and Kate. We do not so construe the opinion. Our language was directed toward distinguishing between the joint life estate on the one hand and the survivorship life estate on the other. We held that the partition deed was effective as to the former but not as to the latter. We did not even consider what effect the deed might have had upon the reversion, for, as the opinion pointed out, the proof did not show when Samuel Anthony died and therefore did not show who owned the reversion at the time of the partition. There was no occasion for the court to speculate upon the abstract possibility that Edgar and Kate might have had an interest in the reversion in 1924 and that such an interest might or might not have been conveyed by the partition deed.
We conclude that the appellants are correct in contending that the Sheppard farm is owned one third by Joe Nuckolls, one third by Bill Nuckolls, one sixth by Loyd Mantooth, and one sixth by Herman Ireland. It follows that the chancery decree should have fixed the parties’ ownership in that proportion and that the probate court should have distributed the disputed portion of the rent in the same ratio, so that Joe and Bill Nuckolls would receive $166.44 each and- the two sons of .Emma Man-tooth would receive $83.22 each.
It is also contended by the appellants that the chancellor erred in ordering a public sale of the land instead of a division in kind. Our review of the proof convinces us that the weight of the.evidence supports the trial court’s conclusion that the lands cannot be fairly divided in kind.
With respect to the Hutchison farm the chancery decree and the probate court judgment are affirmed; with respect to the Sheppard farm they are reversed and the causes remanded for further proceedings.
McFaddin, J., would affirm the decree and judgment in all respects. | [
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Ed. F. McFaddin, Associate Justice.
Questions of usury and damages are presented on this appeal. Delbert House purchased a motor truck from Mowery-Gaskill Motor Company (hereinafter called “Mowery”) on a deferred payment title retaining contract. When House failed to make the payments, Mowery filed this action for the balance claimed due and also had the truck attached (§ 34-2301 Ark. Stats.). House claimed the contract of sale was usurious, and cross complained for damages. Trial to a jury resulted in a verdict and judgment for House for $1,200.00 damages. From such judgment Mowery brings this appeal, listing seven points. We find it unnecessary to separately discuss each of the points: rather, we group them into convenient topic headings.
I. The Issue Of Usury. Mowery filed action on a conditional sales contract signed by House, which showed a total obligation of $2,982.48, itemized as follows :
1. Price of Motor Truck Purchased 3,600.00
2. Less down payment by trade-in of old truck 1,200.00
3. Balance Due 2,400.00
4. Car Insurance 180.00
5. Credit Life Insurance Personal Accident Insurance and Interest Charges 402.48
Total Balance 2,982.48
Mowery alleged that the total amount was to be paid at the rate of $124.27 per month for twenty-four months beginning February 10, 1960; that House made the first payment and defaulted on others; and that the default matured the deferred payments. House, both by pleading and testimony, claimed that he traded in his old motor truck for the new one, and that the total amount he was to pay, including all interest and carrying charges, was $2,400.00 to be payable in twenty-four monthly payments. He testified that he traded with Mowery late in the afternoon; that no one was available to type the papers; that he signed them in blank and trusted Mowery to complete them; that when he received the completed contract lie made one payment; and then set up the claim of usury.
The fact that House made a payment after receiving the contract would constitute ratification; but would not preclude House from claiming usury, if the original contract was as he testified. The Trial Court was correct in so ruling. Even though the contract was in writing, nevertheless, parol evidence was admissible to show usury. Heidelberg Southern Sales Co. v. Tudor, 229 Ark. 500, 316 S. W. 2d 716; and cases there cited. If the contract was as House claimed (i.e., $2,400.00 and no interest) then the signed papers were usurious. While House’s testimony was rather indefinite at times, nevertheless he was corroborated by his brother to some extent; and we cannot say that there was no sufficient evidence to take the issue of usury to the jury.
II. The Damage Verdict. As heretofore stated, when Mowery filed this action he had the motor truck attached and held by the Sheriff under § 34-2301 Ark. Stats. House claimed that since the contract was usurious, the motor truck should not have been taken from his possession, and he sought damages for being-deprived of the use of the truck. The jury awarded House $1,200.00 damages; and this is the most serious issue in the case. The correct measure of damages for loss of use of property, in a case such as this, is the rental value or reasonable value of the use of the property. Arnold Barber Co. v. Provance, 221 Ark. 385, 253 S. W. 2d 367; Boatwright v. Stewart, 37 Ark. 614; 15 Am. Jur. p. 537, “Damages” § 129; Blashfield on Automobile Law, Permanent edition, § 3419. - House offered no testimony as to such measure of damages; rather, he estimated (and most scantily at that) the net profits he would have made if he had not been deprived of the motor truck. There were timely and proper ob jections to House’s testimony, and also to submitting to the jury the issue of damages based on such insufficient evidence; and because of the damage issue the judgment must be reversed.
III. Directions on Remand. Because of inquiries made by the jurors to the Trial Court, and answers given thereto, we conclude that the issue of damages was so interwoven with the issue of usury that on remand the case should be retried on all issues. Since this is a law case and the judgment is reversed, the cause is remanded for a new trial on all issues. See Wilson v. Davis, 230 Ark. 1013, 328 S. W. 2d 249.
Reversed and remanded.
There was a “side note” of $200.00 and a claimed account oi $30.30, but it is not necessary for us to detail these items to present the salient issues.
Here are typical excerpts from Mr. House’s testimony as to damages:
“Q. What had you been doing with the truck?
A. Hauling logs and lumber and so forth.
Q. Did you keep a fairly good account of what you were making per month.
A. I didn’t keep exact record on it, no.
Q. Have you since then tried to figure what you were making?
A. Well, in the clear around above expenses I judge I made around $100 a month. . . .
Q. You stated you thought it would make about $100 a month?
A. Right.
Q. Have you ever been in the trucking business before?
A. No, sir.
Q. Have you been in it since?
A. No, I haven’t.
Q. You really don’t know it would make $100 a month do you?
A. Well, it should make that much.
Q. How much would the expense be on it in a month if you were working in the timber?
A. Some months be greater than others, I wouldn’t know exact on that.
Q. I would like to know where you get the figure $100 a month.
A. Well, the $100 a month, I would think would be income from the truck.” | [
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Battle, J.
This was an action to set aside a conveyance of real estate, because it was executed with the intent to hinder and delay creditors. Upon this branch of the case the chancery court, finding that the evidence adduced at the hearing was insufficient to show that there was any fraud in the execution of the conveyance, refused to set it aside. We concur with the court in. that finding, and, in that respect, affirm its decree.
But it was instituted for another purpose. The plaintiffs, B. Uowenstein & Bros., stated as follows in their complaint: “That the defendant, Simon Cohn, being for a long time prior thereto insolvent, on the 30th day of December, 1890, in view of such insolvency, addressed himself to the defendants, Caruth & Erb, attorneys at law, Tittle Rock, Arkansas, for the purpose of giving him advice and assistance with reference to the disposition of his assets ; that, as they are informed, believe and aver, said defendant, under the advice of said counsel, on the 30th day of December, 1890, went into the Pulaski circuit court in suits, or pretended suits, instituted in the names of Caruth & Erb, Eva Cohn, A. Spiro & Co., The Exchange National Bank, Gus Blass & Co.,-Kumpe, as administrator of the estate of - Kumpe, deceased, against him, the said Simon Cohn, in which suits he entered his appearance, under the advice of the said attorneys, and consented to judgment ; that, before the judgments were written up upon the records of the said circuit court, by the consent of the said Cohn, executions were issued upon all of said judgments so obtained for the amounts stated therein, which judgments were for the amounts set opposite the respective names, as follows :
Caruth & Erb..............................$ 150 00
Eva Cohn................................... 298 00
A Spiro & Co............................... 757 10
Exchange National Bank.....................$ 300 00
■ Gus Blass & Co............................. 400 00
• C. H. Kumpe, as administrator............... 168 25
That said executions were issued on the 30th day of December, 1890, and placed in the hands of Anderson Mills, as sheriff of Pulaski county, Arkansas, and were by him levied upon the stock of merchandise theretofore . owned by the said Simon Cohn at his storehouse on the northeast corner of Markham and Rock streets, in the , city of Little Rock; that, on the said 30th day of De- , cember, 1890, about two hours after the judgments were taken in the names of the parties above named, upon the . advice of his said attorneys, the said defendant, Cohn, . confessed judgment in a suit instituted by the complain..ants in the said circuit court for the amount of their . claim, to-wit: $2740, and consented to a judgment being-rendered thereon, upon which, by consent, execution was issued, and likewise placed in the hands of the said Anderson Mills, as sheriff of Pulaski county, and was levied upon the said stock; that the said stock of goods is advertised to be sold under said executions upon the 10th day of January, 1891, in bulk, on the terms prescribed by law; that, in addition thereto, the said Cohn has notified complainants that he would claim his ex-emptions out of the said stock on the 10th day of January, 1891; that the inventory valuation of said stock is between $2700 and $2800 ; that the aggregate amount of the claims covered by the judgments rendered as afore- ■ said, prior to that obtained by complainants, will more ■ than consume the value of the stock, if they are paid, leaving nothing out of the said stock to pay off the claim . of complainants. And they state that they are informed , and believe, and aver the fact to be, that the said Caruth & Erb had no authority in law to take judgments in ■favor of the parties in whose names said judgments were obtained ; that said judgments were taken by the said Caruth & E)rb without the request or authorization of any of said parties, ******** except in the case of themselves.
And they further state that if, upon the hearing of this cause, said facts turn out to be untrue, yet they are entitled to share firo rata in the funds so obtained from the sale of said stock of goods with all the parties in whose names judgments were taken as aforesaid, because the executions so issued were issued upon judgments which were all written up upon the 31st day of December, 1890, upon the records of the said Pulaski circuit court, and said record was not signed until the 31st day of December, 1890; that the entry of said judgments and the signing of the record was the date from which said judgments and executions are to be considered as having been rendered and obtained, and that, as they were all written up and signed upon the same day at the same time as aforesaid, they all stand upon an equal footing. *****
That the said defendant, Anderson Mills, as sheriff, refuses to make distribution in said mode, and desires to await the determination of this court before he will do so; that, acting upon the advice of the parties in whose names judgments were so obtained, he will decline to make distribution in that form. * * *
The premises considered, complainants pray that the said Anderson Mills be converted into a receiver of this court in the disposition of said stock of goods, and that he dispose thereof in such manner as to the court may seem meet and proper; that he be restrained from making disposition thereof under the executions referred to of defendants ; that the proceeds of said stock of goods be held subject to the orders of the court, and be distributed in such mode as to the court may seem meet and proper; * * * and for other proper relief.”
To this part of the complaint the defendants filed a demurrer, which the court sustained; and plaintiffs, appealed.
An insolvent debtor may prefer one creditor to others, and may secure him by confession of judgment. But he cannot do so without first obtaining the assent of the creditor. Parties are as indispensable to judgments as they are to actions. Neither is of any validity without them. A judgment by confession in favor of a person without his knowledge or consent cannot operate “as a final determination of the right of the parties in the proceedings.” . It estops neither party from denying-anything set forth in it. But the person in whose favor it is confessed may ratify it, and make it valid and binding as to the parties, by relation, from the date of its. entry. Whatever the effects of -similar acts in other cases may be, such ratification can neither override nor in any manner affect rights acquired prior thereto, and while the judgment was one only in name. Wilcoxson v. Burton, 27 Cal. 228; Hardware Co. v. Deere, Mansur & Co. 53 Ark. 140; Farmers & Mechanics Bank v. Mather, 30 Iowa, 283; Chapin v. McLaren, 105 Ind. 563.
* The enforcement of a judgment does not depend upon its entry. The record of it is only evidence of its existence, and an execution may be issued upon it before it is placed on record. Los Angeles County Bank v. Raynor, 61 Cal. 145.
An execution, when ordered by the court, may be issued upon a judgment immediately after its rendition. Sandels & Hill’s Digest, section 3035.
Appellants, B. Lowenstein & Bros., therefore, gained nothing by the delay in entering on record the judgments in question, and the fact that these judgments and the one in their own favor were rendered, recorded, and signed by the judge, on the same day. On the contrary, appellees were entitled to the priority gained by the issuance, liens and levy of executions, provided that the judgments upon which they were issued were confessed by Simon Cohn with the assent of the defendants in this action, or were ratified before appellants acquired any lien on the property seized under the executions. But, if the judgments were confessed without the assent of appellees, the levy or liens of the executions in favor of appellants, acquired before the ratification, would give the latter the right to satisfaction, in preference to the former, out of the property seized.
The demurrer should have been overruled.
So much of the decree of the court as sustains the demurrer is reversed, and the cause is remanded for further proceedings. | [
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Hart, J.,
(after stating the facts). The defendant ' was entitled to a trial by jury unless he waived it. Starks v. Couch, 109 Ark. 534, 160 S. W. 853. Section 6212 of Kirby’s Digest reads as follows: £ £The trial by jury may be waived toy the parties in actions arising on contract, and, with the assent of the court, in other actions in the following manner:
“First. By failing to appear at the trial.
“Second. By written consent in person, or by attorney, filed with the clerk.
“Third. By oral consent in open court, entered on the record.”
It will be noted that the present case originated in the justice court and was appealed to the circuit court by plaintiffs. The case was there docketed and set for trial along with three other cases on the 5th day of June, 1913'. On that day the parties in all these oases announced ready for trial. The calendar was then called by the court to ascertain what cases were to be tried by the court and what cases by jury. During this proceeding the attorney for defendant absented himself from the court room; but he did so at his peril. It is true the calling of the docket to ascertain in what cases a jury would toe waived is a preliminary step, tout it is none the less a necessary one. • In this way the court is better able to control the attendance of juries during the term, to lessen the expenses of the court, and to facilitate the transaction of business. Therefore, it was a part of the trial within the meaning of the statute, and the defendant having announced ready for trial, was required to be present at all steps thereafter to be taken in this case until it was disposed of. He absented himself at his peril, and can not complain that a step in the trial was taken in his absence. The issue, as presented upon appeal, stands as if the defendant’s counsel was present when the court called the calendar to ascertain what cases should be put upon the jury waived list, and that he did not speak when called upon to do so. Under these circumstances, he will be deemed to have waived a trial by jury. ^
^ Again, it is contended by counsel for defendant that when he returned to the court room there were some of the jury present in the court room, although' they had been excused from further service during the day. The record does not show definitely how many jurors were present, but, according to the contention of defendant’s counsel himself, there were not more than four or five present. If all the members of the jury had been present it might be said that the court abused its discretion in not then allowing the defendant to demand a trial by jury; but the plaintiffs were entitled to a trial by a jury of twelve, and inasmuch as this right could not be given them because the attendance of the absent jurymen could not be secured without delay and expense, the court did not abuse its discretion in refusing to have them summoned again.
We are of the opinion that under the facts as shown by the bill of exceptions the defendant waived Ms right tq a trial by jury; and the judgment will be affirmed. | [
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Ed. F. McFaddin, Associate Justice.
This is an original proceeding in which Petitioners, Sturgis Miller, et al., seek a Writ of Prohibition to prevent the Honorable Murray O. Reed, Chancellor, from proceeding further in a case pending in the Chancery Court. The Petitioners herein list themselves as “Sturgis Miller, President, Ed S. Doss, Vice President, and R. Gr. McBryde, Secretary-Treasurer, of Arkansas Chiropractic Association; H. Gr. Perkins, Foy Weeks, H. L. Hudsonpillar, A. M. Reynolds, P. D. Bosma, and Gordon Lynch, members of the Board of Directors of Arkansas Chiropractic Association; and Sturgis Miller, Ed S. Doss, R. G. Mc-Bryde, H. G. Perkins, Foy Weeks, H. L. Hudsonpillar, A. M. Reynolds, P. D. Bosma, and Gordon Lynch, in their individual capacity.” They will be referred to as “Sturgis Miller et al.”
Certain background facts will present the situation. Drs. William E. Kuhl and Robert J. Kuhl are chiropractors, having been licensed by the State Board of Chiropractic Examiners to engage in that branch of the healing art (§§ 72-401 et seq. Ark. Stats.). The Arkansas State Medical Board, proceeding under §§ 72-602 et seq. Ark. Stats., filed its complaint against Drs. Kuhl and Kuhl in the Pulaski Chancery Court, of which Honorable Murray O. Reed is Chancellor. The complaint alleged that Drs. Kuhl and Kuhl were in fact practicing medicine in addition to being chiropractors. The complaint stated, inter alia: ‘ ‘ The plaintiffs allege that the defendants are practicing medicine in the State of Arkansas contrary to the provisions of the Arkansas Statutes . . . the defendants are prescribing medicines for the treatment of illness and disease . . .” The Arkansas State Medical Board relies on § 72-620 and § 72-621 Ark. Stats, as giving the Chancery Court jurisdiction to issue injunctions against the practice of medicine without a license. In the said Chancery case there was an intervention filed by Sturgis Miller et al., who are the same parties as the Petitioners for Prohibition in the present case. The Intervenors claimed: . . . that should the relief prayed for in the complaint be granted, it would, in effect, preclude each and every chiropractic practitioner in the State of Arkansas from pursuing his or her profession . . .” The intervention was permitted in the Chancery Court on December 2, 1960, and is still pending.
In June 1961 the State Board of Chiropractic Examiners, proceeding under §§ 72-407 et seq. Ark. Stats., heard charges filed by its Ethics Committee against Drs. Kuhl and Kuhl, including charges that Drs. Kuhl and Kuhl had been guilty of “numerous instances of unauthorized practice of medicine.” On July 10, 1961, the Arkansas State Board of Chiropractic Examiners revoked the licenses of Drs. Kuhl and Kuhl as practicing chiropractors; that revocation is said to be still pending on certiorari in the Pulaski Circuit Court; and it is stated in the brief of the Respondent, and undenied by the Petitioners, that Drs. Kuhl and Kuhl have never ceased the practice of whatever they were doing {i.e., whether medicine or chiropractic).
In January 1962 the Pulaski Chancery Court set for trial the case therein pending, wherein the Arkansas State Medical Board was Plaintiff, Drs. Kuhl and Kuhl were Defendants, and Sturgis Miller et al. were Intervenors. Thereupon, Sturgis Miller, et al. filed the present Petition for Prohibition in this Court to prevent the Pulaski Chancery Court from trying the case therein pending in which Sturgis Miller et al. had intervened. The Petition filed in this Court states as ground for prohibition :
“Petitioners, further, state and contend that the sole jurisdiction of the disposition of this matter now rests with the Circuit Court of Pulaski County, and that the complaint in the case of Arkansas State Medical Board v. William E. Kuhl and Robert J. Kuhl, was prematurely filed, because the administrative remedies had not been exhausted against the said William E. Kuhl and Robert J. Kuhl. Petitioners, also, state that, if the Pulaski Circuit Court sustains the finding of Arkansas State Board of Chiropractic Examiners, Case no. 116543 will become moot, and that a temporary Writ of Prohibition should be issued by this Court, prohibiting the Hon. Murray O. Reed, Chancellor of the First Division of the Chancery Court of Pulaski County, Arkansas, from trying or further proceeding in said case, and that a reasonable time be granted counsel for petitioners and Arkansas State Medical Board to brief this question, and that a final order be entered making said temporary order permanent.”
So much for the background facts. What we are asked to do is to prohibit the Chancery Court from trying a case pending in that Court. The Petitioners want the case delayed until a subsequently filed case in the Pulaski Circuit Court has been decided, which Circuit Court case involves only the revocation of the chiropractic licenses of Drs. Kuhl and Kuhl. Even if the chiropractic licenses should be revoked, such would not prevent Drs. Kuhl and Kuhl from “prescribing medicines for treatment of illness and disease”; and that (inter alia) is what the Arkansas State Medical Board charges Drs. Kuhl and Kuhl have been doing.
The Practitioners herein, Sturgis Miller et al., have entirely misconstrued the grounds for a writ of prohibition issued out of this Court. The writ of prohibition does not issue to prohibit the lower court from erroneously exercising its jurisdiction, but only when the lower court is wholly without jurisdiction. Terry v. Harris, 188 Ark. 60, 64, S. W. 2d 80; Bessett v. Bourland, 175 Ark. 271, 299 S. W. 13; Ritholz v. Dodge, 210 Ark. 404, 196 S. W. 2d 479. The Pulaski Chancery Court had jurisdiction to issue an injunction against Drs. Kuhl and Kuhl from practicing medicine without a license. Section 72-620 Ark. Stats, declares that the practice of medicine without a license is a nuisance; and § 72-621 Ark. Stats, vests the Chancery Court with jurisdiction and power to enjoin the unlawful practice of medicine.
This power given the courts (in § 72-621 Ark. Stats.) to enjoin the unlawful practice of medicine is practically the same power given the Chancery Court to enjoin the practices of optometry under § 72-818 Ark. Stats., and the practice of dentistry under § 72-542 Ark. Stats. In Ritholz v. Arkansas State Board of Optometry, 206 Ark. 671, 177 S. W. 2d 410, we held that the Chancery Court could enjoin persons from the practice of optometry without a license; and in Missionary Supporters v. Arkansas State Board of Dental Examiners, 213 Ark. 38, 328 S. W. 2d 139, we held that the Chancery Court could enjoin persons from the practice of dentistry without a license. Certainly, therefore, the Chancery Court has the jurisdiction to enjoin Drs. Kuhl and Kuhl from the unlawful practice of medicine. Since the Pulaski Chancery Court had jurisdiction of the suit brought by the Arkansas State Medical Board against Drs. Kuhl and Kuhl, a Writ of Prohibition will not issue.
Petitioners argue that the Arkansas State Medical Board should have filed its complaint before the Arkansas State Board of Chiropractic Examiners to have Drs. Kuhl and Kuhl barred from practicing chiropractic, and that until the Arkansas State Medical Board so proceeded it had failed to exhaust its administrative remedies. The Arkansas State Medical Board is not concerned whether Drs. Kuhl and Kuhl practice chiropractic. In fact, the Medical Board concedes in its brief here: “We do not mean to say by this that the Medical Practices Act forecloses the rights of chiropractors to practice chiropractic as defined by the Arkansas Statutes.” What the Arkansas State Medical Board is trying to do is to prevent Drs. Kuhl and Kuhl from practicing medicine; and § 72-604 Ark. Stats, says: “The term, ‘practice of medicine’ shall mean ... to diagnose, treat, prescribe for . . . any human disease . . . by the use of drugs . . .” Such, among others, is the charge against Drs. Kuhl and Kuhl. There is no effort in the Chancery Court case to prevent them from practicing chiropractic, as defined by the laws of Arkansas; but there is the effort to prevent them from practicing medicine as defined by the laws of Arkansas and the Chancery Court has jurisdiction to hear and determine that question independently of any proceeding to revoke the chiropractic licenses of Drs. Kuhl and Kuhl.
Therefore, the Writ of Prohibition is denied.
This Case No. 116543 is the said case of Arkansas State Medical Board v. Drs. Kuhl and Kuhl in the Chancery Court. | [
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Carleton Harris, Chief Justice.
Ronald McDonald, appellee, a minor, was injured in a collision, between a pickup truck, driven by appellee, and a butane gas delivery truck, owned by appellant, Industrial Farm Home Gas Company, and driven by its employee, James Gathings. The collision took place on a rural road in Greene County in March, 1960, during a time when snow and ice covered the area. The impact occurred at the top of a hill where there is a right angle turn creating a blind curve. The gas truck was proceeding uphill in a westerly direction, and McDonald, 15 years of age, was approaching the curve from the north. The road, covered with snow and ice, and according to the testimony, extremely slick and dangerous, ran through a deep cut, so that the vision of each party was obscured. According to McDonald, he approached the curve at a speed of about 15 miles per hour, and according to Gathings, he (Gathings) approached at a speed of approximately five miles per hour. Admittedly, both operators were driving slowly, and, according to the testimony of each, were about 25 feet apart before they observed each other. It appears from the evidence that this distance was the approximate limit of visibility, and neither could have observed the other earlier. When the drivers came into view,. McDonald applied his brakes, and his truck began to skid, striking the gas truck a few inches behind the left headlight, and the left fender of appellee’s truck striking the left fender of appellant’s truck. According to the boy, he had gotten over to the right as far as he could go, and the gas truck was in the middle of the road at the time of the collision. McDonald was unable to say whether any part of his vehicle was across the center of the road. Gathings testified that he had gotten to his right as far as possible, and denied that he was in the center of the roadway. One thing is evident; the road (which was just a dirt, country road, with a little gravel on it) was quite narrow. No one testified as to its width, but photographs in the record establish its narrowness probably no wider than to permit two vehicles to barely pass.
Suit for personal injuries was instituted against appellant by Gladys McDonald, mother and next friend of the minor, Ronald. Appellant answered, denied negligence, pleaded contributory negligence, and asserted that the negligence of Ronald McDonald exceeded that of appellant; a counterclaim was filed seeking damages to the gas truck in the amount of $175. A third party complaint was filed against A. C. McDonald, Ronald’s father, alleging that the former was the owner of the truck, and that he was negligent in trusting the vehicle to his son, who was only 15 years of age. Judgment was sought against the father in the amount of $175. The third party defendant subsequently moved to strike so much of the third party complaint as sought relief under the provisions of the Arkansas Contribution Among Tortfeasors Act, and the motion was granted. The cause proceeded to trial, and after the taking of evidence, was submitted to the jury on interrogatories. The jury found both McDonald and appellant’s driver, Gathings, to be negligent, establishing Gathings’ negligence at 60%, and McDonald’s at 40%. Damages to McDonald were fixed at $7,000. Judgment against appellant was accordingly entered by the Court in the amount of $4,200 and costs, and the cause dismissed as to A. C. McDonald. From the judgment so entered, appellant brings this appeal. For reversal, several points are urged, and we proceed to a discussion of same.
I.
‘ ‘ The Court erred by informing the jury of the effect of answers to interrogatories on liability of appellant.”
The Court submitted the case to the jury upon interrogatories in the customary form, No. 1, inquiring if they found Gathings guilty of negligence; No. 2, if they found Ronald McDonald guilty of negligence; and No. 3 (if the answer to both questions was “yes”), the percentage of fault attributable to each. As previously stated, the jury prorated the negligence as 60% to Gathings and 40% to McDonald. After the jury had retired, they subsequently returned to the courtroom and asked the Court a question. The Court answered that question, and the record then reflects the following:
“Foreman of Jury: Another question, in making this on a percentage basis, if, on account of the boy’s injuries, do we include, stipulate the damage done W the boy?
The Court: You determine that, what you feel the weight of the evidence establishes is his damages, what you feel the total compensation should be.
The Court: Do you have another question?
Foreman of Jury: We want to know, too, if we make this settlement on a percentage basis, the hospital bills we have a record of here, is that going to be on a percentage basis or do we make it in full?
The Court: Let me give you an example, perhaps I might clarify this in an example. I am not using the facts in this ease at all. Going to use, say ‘A’ and ‘B’, who become involved in charges and countercharges of negligence as against each other, each claims to have been damaged. In my example, let us assume the jury says ‘A’ is 25 percent at fault and ‘B’ is 75 percent at fault. The jury found, in response to interrogatories, after it made that determination of 25 and 75 percent, as indicated by the interrogatories, since ‘B’ is 75 percent at fault, which is more than 50 percent, he is not entitled to recover anything, having contributed most of the fault causing the damages. ‘A’, if the jury finds his damages as established, say for example, to be $100.00, then the total amount of his recovery against ‘B’ would be $100.00 less 25 percent, which is a deduction made becaue he contributed 25 percent of the fault that brought about the particular injuries to himself.
(Note: Short conference at Bar of Court.)
The Court: At the request of counsel, in the event— go back to my example of ‘A’ and ‘B’. In the event the jury found ‘A’ 50 percent at fault and ‘B’ 50 percent at fault, in that event, since they are equally at fault, neither can recover against the other any damages and it would not be necessary to make any calculation as to damages.
The Court: Any other question.
(Note: The jury again retired to consider case.)
Mr. Walker: The defendant objects to the Court’s explanation insofar as the Court undertook to explain to the jury the effect of a finding of negligence in diminution of the damages by showing the result which would follow from a certain percentage of negligence, on the ground that this example tends to inflame the jury and prejudice them to establish a result which would not follow from a fair, unbiased answer to the interrogatories.
Mr. Howard: Let the record show, the objection was made after the jury retired, counsel stood mute at the time that the Court was instructing the jury.
Mr. Burris: The- third party defendant concurs in the objection and adopts the objection of the defendant.”
Appellant vigorously argues that the Court committed reversible error by informing the jury of the effect of answers to interrogatories. The case of Wright v. Covey, 233 Ark. 798, 349 S. W. 2d 344, is relied upon in support of this contention. In that case, we held that no error was committed because the information given the jury was already known by them, but appellant says that in the matter before us, it is obvious the jury did not-already know, nor understand, the effect of the interrogatories. Quoting from its brief:
“It is obvious that the jury did not already know what the Court told them in detail and with illustrations as to how their answers to interrogatories would determine the ultimate outcome of the case. The jury clearly did not understand the effect of the interrogatories or even how they were used and it was quite obvious that they desired to decide the merits of the matter by a general verdict according to their own notions of right and wrong. The effect of the Court’s explanation was to afford them the means of determining how to make certain that the plaintiff prevailed, even though they apparently were not convinced that such a result would follow by simple and direct answers to the plain interrogatories which were addressed to them.”
Appellant further states:
‘ ‘ Thus, the Court followed exactly the practice which was condemned in Wright v. Covey, 233 Ark. 798, at 801, 349 S. W. 2d 344, where the Court made the following statement:
‘The appellants rely upon the rule, often announced in other jurisdictions, which prohibits a trial court, in submitting a case upon special interrogatories, from informing the jury of the effect that their answers may have upon the ultimate liability of the parties. Mitchell v. Perkins, 334 Mich. 192, 54 N. W. 2d 293; Grasso v. Cannonball Motor Freight Lines, 125 Tex. 154, 81 S. W. 2d 482; Anderson v. Seelow, 224 Wis. 230, 271 N. W. 844. The reason for the rule is that the special interrogatories are intended to elicit the jury’s unbiased judgment upon the issues of fact, and this purpose might be frustrated if the jurors are in a position to frame their answers with a conscious desire to aid one side or the other.” We are unable to consider this contention for no proper objection was made. Appellant’s objection does not go to the fact that the Court’s statement informed the jury of the effect their answers would have on the ultimate liability of the parties; rather, the objection is that the Court’s explanation “tends to inflame the jury and prejudice them.” We find nothing in the Court’s statement that could be considered inflammatory, nor anything that could possibly have aroused prejudice; in fact, appellant’s own argument in the brief, heretofore quoted, is indicative of the fact that it recognizes that if any prejudice existed, it was present before the questions were asked. Since no proper objection was made, it becomes unnecessary to consider either whether the objection was made too late, or if appellant should have gone farther and moved for a mistrial.
II.
“The Court erred in overruling appellant’s objection to testimony of appellee’s witness, Yarvil, as to conversation with appellant’s insurance adjuster.”
Johnny Yarvil, a friend of McDonalds, was following McDonald in another vehicle at the time of the collision. Yarvil testified that McDonald had pulled out of the ruts on the right side of the road prior to the collision; that he did not see the McDonald car skid prior to the collision, and did not see the gas truck prior to the collision. On cross-examination, the witness was interrogated about a written statement which he admitted signing; this statement related that Yarvil had said that both trucks were in the middle of the road, and that the McDonald truck was skidding and hit the gas truck. The witness denied saying that both trucks were in the middle of the road. On re-direct examination, counsel for appellee stated, “Will you tell the jury, please, who, according to your best recollection, it was who took the statement?” The answer from the witness was, “I believe, it was the insurance man.” Appellant moved for a mistrial, which was overruled. The witness stated that the insurance man was representing the IFH Butane Company. Several references are thereafter made to the insurance adjuster. Appellant strongly urges that the injection of insurance into the testimony was highly prejudicial and justified a mistrial being declared. We do not agree. Our rule is that the injection of insurance coverage (to be proper) must be relevant and pertinent to some issue in the case. Let it be borne in mind that this written, signed, statement was introduced by appellant as an effort to impeach Varvil’s testimony. In Murray v. Jackson, 180 Ark. 1144, 24 S. W. 2d 960, this Court said:
“The next assignment of error relates to the admission of testimony for the plaintiff Mrs. Jackson. It had been shown in behalf of Mrs. Jackson that her injuries were permanent, and that it was necessary to keep her in the hospital for some time with special nurses and a physician attending her daily. The hospital, nurses ’ and physician ’s bills amounted to something over $1,700. The defendant then introduced a physician as a witness who testified that he examined Mrs. Jackson at the hospital, that she could walk about while there, that it was not necessary to keep her there for so long, and that her injuries were not permanent. On cross-examination counsel for the plaintiff asked for whom he made the examination, and he replied that he did not remember, but believed that it was for an insurance company, and stated further that the Southern Insurance Company asked him to make a report on the case.
A reversal of the judgment was asked on account of the admission of this testimony. The claim is made that the cross-examination of the witness as to who employed him was made for the purpose of showing that an insurance company was in reality defending the case, and that the cross-examination of the witness brought the case within the rule announced in Pekin Stave & Manufacturing Co. v. Ramey, 104 Ark. 1, 147 S. W. 83. We do not agree with counsel in this contention. The testimony of the physician introduced by the defendant tended to contradict the testimony of the physician introduced by Mrs. Jackson as to the character and extent of her injuries and as to the necessity of expending the money that was expended for her for hospital bills and attendance by nurses and a physician. The cross-examination was proper for the purpose of impeaching or contradicting the witness. The jury might have found that the employment of the physician made him biased in favor of the defendant, or at least tended to show the interest of the witness in the case.”
This is in accord with the general rule, which is expressed in 4 A. L. E. 2d, § 9, p. 782, under the title, “Showing of Liability Insurance ’ ’, as follows:
“Asa general rule, where a previously written statement is produced in court and used for the purpose of impeaching plaintiff or one of his witnesses, it is proper for plaintiff’s counsel to show that the person procuring such statement was a representative of defendant’s insurance company.”
It thus appears that when a witness is asked about a statement, previously given, and he denies making some of the remarks appearing in the writing, opposing counsel may then show who wrote the account as a matter of permitting the jury to determine whether the person who took the statement had any possible bias or interest in the matter. Therefore, if a defendant desires to impeach the testimony of a witness by interrogating him relative to a statement taken by an insurance company representative, he must be prepared for the jury to know that insurance is involved.
III.
“The Court erred in refusing appellant’s instruction on inevitable accident.”
Appellant requested the following instruction, which was refused over its objection and exceptions:
“If you find from the evidence in this case that the collision was caused solely by conditions of weather or of the road, or any other conditions beyond the control of either driver, without negligence on the part of either driver, then the collision would be an unavoidable accident which neither party would be liable, and, if you should so find, you should answer the interrogatories in this case that neither party was negligent.”
After thorough study, we have reached the conclusion that this point contains merit. There are quite a number of cases involving this question, in some of which we held the instruction proper, and contrariwise in the others. Really, whether such an instruction is justified depends upon the facts in evidence in each particular case. In St. Louis-San Francisco Ry. Co. v. Bryan, 195 Ark. 350, 112 S. W. 2d 641, we said:
“It has been frequently stated by this and other courts that in order to warrant a finding that negligence is the proximate cause of an injury it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. Appellee cites the cases of Bennett v. Staten, 229 Ark. 47, 313 S. W. 2d 232, and Sullivan v. Fanestiel, 229 Ark. 662, 317 S. W. 2d 713, as authority for the fact that the instruction was properly refused. However, a reading of the opinions, as well as the transcripts, of those cases, reflects notable differences from the case at bar. In the Bennett case, this Court said that the facts did not warrant such an instruction, and we quoted from an earlier case with the comment that the statement equally applied in Bennett, as follows: “Moreover, there is no evidence in the record tending to show an unavoidable accident. ’ ’ In the Sullivan case, we upheld the trial court in refusing to instruct the jury relative to unavoidable accident, and commented that the collision was certainly caused by somebody’s negligence. There, also, both parties contended and testified that the collision was the fault of the other. This is not the situation before us. Neither the Bennett nor Sullivan cases related to situations involving unusual weather conditions, and more than that, the testimony was completely different. For instance, during the examination of McDonald, the question was asked, “How wide was the curve in the narrow part of it there?” Appellee answered, “Wasn’t very wide.” “Wasn’t?” “I don’t think room for the gas truck and my truck to pass.” Subsequently, McDonald stated that he put on his brakes and slid, and did not slide to the other side. “Q. You say you were on the right-hand side, he was on the left-hand side coming around the curve, you got over and hit him? A. I couldn’ta missed him. Q. You couldn’t miss him? A. No, sir.” Gathings, appellant’s truck driver, stated, “As near as humanly possible, it was an unavoidable accident.” Accordingly, we have both parties making statements that certainly bring into issue the question of whether the collision was an unavoidable accident. In fact, the quoted testimony of the two principals, together with the testimony about the weather conditions, and the admitted slow speed of each vehicle, was sufficient to warrant the giving of the instruction. Appellee states that the jury’s finding of negligence has the effect of rendering this question moot; however, we do not agree; we do not know what view the jury might have taken had it been instructed on inevitable accident, for the evidence was sufficient to have sustained such a finding. Really, it is difficult to visualize a case where the instruction would be more proper than in the case at bar; in fact, the strongest evidence of negligence on the part of appellant’s driver was his failure to sound his horn as he entered the curve. We are of the opinion that appellant was entitled to have this instruction given, and the court committed reversible error in failing to comply with the request.
It is also urged that the court committed error in refusing to permit appellant to prove by the witness Yarvil that McDonald had previously made a statement to Varvil that contradicted testimony given on the witness stand by appellee. Without entering into a detailed discussion of this point, suffice it to say that we find no error, since appellant had not laid the proper foundation (for asking Yarvil the question) while McDonald himself was on the stand.
For the error herein indicated, the judgment is reversed, and the cause remanded.
McFaddin & Johnson, JJ., dissent.
After making the curve, this truck would have been proceeding north.
The objection was not made until the jury left the courtroom.
Subsequently, on re-direct examination, Varvil admitted that the statement was offered to him to read before he signed, but the witness testified that he could not read the writing, but was ashamed to admit it. “Seemed kinda funny to him, I couldn’t read his handwriting.” | [
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Bünn, C. J.
(after stating the facts.) The appellant assigns four several errors, for which' she contends-that the judgment of the court below should be reversed. They are as follows, to-wit:
“1. The judgment of the lower court is void for want of jurisdiction of the subject matter.
“2. It is erroneous, and should be reversed, because this is an action sounding in damages ex contractu as-against Friend, and if the plaintiff’s negligence or want of diligence in prosecuting by all lawful methods its claims-against the Vineyards was the cause of or contributed to-the damages claimed, then Friend should not be held liable, except for such damages as the proof shows-sprung directly, not remotely, from his failure to indorse his guaranty on the Vineyard notes.
“3. The judgment should be reversed, because the proof showed, beyond all doubt or cavil, that the plaintiff, as a foreign corporation, was doing business in Arkansas without authority, and directly in violation, if not-in defiance, of the constitution and statute.
“4. It should be reversed, because some of the charges of the court to the jury were so confusing and misleading that, when taken in connection with the evidence, no jury, no matter to what degree of astuteness- and learning it may have attained, could bring orderly construction out of chaotic confusion. We say this without intending any disrespect to his honor, the circuit judge.”
As to the first assignment of error: This court .... has, time and again, held that jurisdiction cannot given the circuit court by a combination of distinct claims, each within the exclusive jurisdiction of a justice of the peace, and that rule is too well settled to be now disturbed. But this is not a suit upon the notes mentioned. They are only brought in to show their nonpayment, and their identity with notes referred to in the written guaranty of Friend. The suit is for a breach of that guaranty, and the measure of damages is the amount of said notes remaining due and unpaid, and this unpaid amount appears to be within the jurisdiction of the circuit court. Hence there was no want of jurisdiction in the circuit court to hear and determine this cause.
The second assignment of error is to the effect that, the suit being for a breach of the contract of guaranty, Friend, the guarantor, is only liable for such damages as grow out of his failure to endorse the notes; and that, in so far as plaintiff, by its negligence, laches and want of proper effort to collect the notes, has contributed to the damage, he, Friend, ought not to be held liable.
The error in this statement is twofold—one of law, and the other of fact, as we view the facts. Friend’s failure and refusal to endorse the notes do not constitute the gravamen of the charge against him in this action. He is sued for a breach of guaranty, in this: that he has failed to have the notes punctually paid, according to the tenor of his contract, when they fell due. There is no question here as to the character of his guaranty. It is absolute and unconditional, and, as we view it, carries with it all the liability of an original undertaking. Cobb v. Little, 2 Greenleaf, 261; Allen v. Rightmere, 20 Johnson, 365; Mathews v. Chrisman, 12 S. S. & M. 595. At all events, no error is assigned that there was a failure to observe any of the prerequisites to the institution of suit usually attendant upon conditional guaranties. If the guaranty is claimed to be otherwise than absolute and unconditional, the observance of such prerequisites has been waived, perhaps, in view of the connection the agent and deceased defendant, Friend, had with the notes from the beginning, and also of the insolvency of the makers. Skofield v. Haley, 22 Me. 164; Janes v. Scott, 59 Pa. St. 178; Beebe v. Dudley, 26 N. H. 249. And in fact it appears that all conditions were substantially complied with, even although it may not have been necessary. The obligation to endorse the notes was only to do something evidentiary in its character.
Again, one of the contentions of defendant is that plaintiff refused to take certain security for the payment of the notes tendered by the survivor of the makers after the notes had all become due, notwithstanding the advice of its agent, Friend, so to do. We know of no law requiring a creditor to accept such a tender. Fellows v. Prentiss, 3 Denio, 512; Hunt v. Smith, 17 Wendell, 179.
As matter of fact, there does not appear to have been-any particular negligence or laches on the part of the plaintiff; and, if there were such, the fault is as justly laid at the door of its agent, the original defendant in this case, who had possession of the notes for the purpose of collecting them. Nor do we find that any extension of time was given the makers of the notes. There was delay, it is true, and an evident disposition 1 not to push these makers ; but this seems not to have been communicated to them, and, besides, it appears, inferentially at least, to have been the result of consultation between plaintiff and its agent, Friend—at least a non-action concurred in by both for reasons existing at the time. Be that as it may, mere delay to bring suit does not release a guarantor. Read v. Cutts, 7 Green leaf, 186; Newcomb v. Hale, 90 N. Y. 326. It does not appear to us that there is anything to lessen the defendant Friend’s liability in the conduct of the plaintiff.
As to the third assignment, it does not appear & . . where the contract of agency and guaranty in case was executed, and, as to that, we can but apply the rule announced by this court in Railway Co. v. Fire Association, 55 Ark. 163, the presumption being that there was no violation of law. *
There are some verbal inaccuracies, and perhaps inconsistencies, in the instructions of the circuit court, but, as the verdict and judgment upon the whole case seem to be right, we do not deem these defects material.
Judgment affirmed. | [
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Riddick, J.
On March 1, 1892, the appellant, by its attorneys, King & Wood, filed a complaint in the Lafayette circuit court against Joseph Taylor for an amount due it on a promissory note executed by said Taylor. Appellant caused a writ of attachment to be issued, and the same was placed in the hands of the deputy sheriff at 11:15 a. m. on the same day. Appellee also on the same day commenced suit against said Joseph Taylor, and had a writ of attachment issued, which came to the hands of the sheriff at 11:30 a. m., fifteen minutes after the attachment in favor of appellant was-received. Both writs of attachment were served and returned by the deputy sheriff, who endorsed the same return on each, except the difference in the time at which they came to his hands. Judgments were obtained and attachments sustained in both suits. Appellee filed a motion and intervening petition to have the lien of its attachment given priority over that of appellant, alleging, in effect, that the appellant, at the time of the delivery of the writ of attachment to the sheriff, had directed the sheriff not to serve said writ, and that, before this order was countermanded, the writ in favor of appellant had been placed in the hands of the sheriff, and was first levied. Appellant denied the allegations contained in the motion and petition of appellee, and the matter was submitted to the court, who, after hearing the evidence, found in favor of appellee, that the lien of its attachment was entitled to priority over the writ of appellant. A motion for new trial was made, and, the same being overruled, the appellant appealed.
The deputy sheriff, who was sworn as a witness, testified as follows: M. S. Wood, attorney for appellant, “gave me an attachment in the clerk’s office, and told me to note the time it came to my hands, but I understood him to say that I was not to serve it unless the Geo. Taylor Commission Co. had an attachment issued, or made a break. I was under the impression, from what he said, that Mr. Wood did not want his service until some one else had served; that he was afraid of a damage suit, and did not want to close up the house.” He also testified that “he gave the defendant the attachment of the Geo. Taylor Commission Co. first, and then gave him the other two.”
There was other testimony tending to contradict this statement of the officer, and to show that the attorney only requested the officer to wait a few moments until he, the attorney, could get another writ from a justice of the peace, on a claim that was below the jurisdiction of the circuit court, so that both writs could be served at the same time.
Such a request as this, with no intention of causing any material delay in the service of the writ, we do not think would have the effect of giving priority to a subsequent attaching creditor. But the circuit judge having found against appellant, and, being of opinion that, with the witnesses before him, his means of arriving at the truth of the matter were vastly superior to ours, we must, without undertaking to determine the weight ■of the evidence, uphold his finding, if the proof is sufficient to support it. After considering all the evidence, a majority of the court are of the opinion that it is sufficient to support a finding by the court that the writ ■of attachment in favor of appellant was delivered to the officer with directions not to serve it unless some other creditor of Joseph Taylor had an attachment issued; that, before this order was countermanded, the writ of appellee was issued and placed in the hands of the officer with a direction to levy at once.
The question for the court to determine is, what is the effect of a direction to the officer holding the writ not to levy unless some other creditor gets out an attachment? Sec. 325 of Mansfield’s Digest is as follows: “An order of attachment binds the defendant’s property in the county, which might be seized under execution against him, from the time of the delivery of the order to the sheriff or other officer; and the lien to the plaintiff is completed upon any property or demand of the defendant by executing the order upon it in the manner directed in this chapter.” The object of this section was to aid the diligent creditor in the enforcement of the writ and the collection of his debt. It was not intended that a creditor, by placing a writ of attachment in the hands of an officer, should secure a lien and bind the property of the defendant, and then, by directing the officer not to levy unless some other creditor got out an attachment, convert the lien of the writ into a security in the nature of a mortgage.
Under statutes which make an execution a lien on the property of the debtor from the time of its delivery to the proper officer, it has been frequently held that a delivery of an execution with a direction to the officer not to levy, or not to levy unless forced to do so by a junior execution, avoids the lien, and is of no more effect than if the execution creditor had kept the writ in his own possession. Until such an order to the officer is countermanded with an order to execute the writ, the officer is considered to be holding the writ, not in his official capacity, but only as the agent of plaintiff. Freeman on Fx. (2 ed.) sec. 206; Gilmore v. Davis, 84 Ill. 489; Landis v. Evans, 113 Pa. St. 334; Howes v. Cameron, 23 Fed. Rep. 324; Blakely v. Smith, 26 S. W. Rep. 584. We see no good reason why the same rule should not apply in attachments when a creditor or his attorney directs the officer having the writ in his possession not to levy the same unless some other creditor gets out an attachment. Blakely v. Smith, 26 S. W. Rep. 584.
A direction to the sheriff not to sell, by the execution creditor, after the execution was levied, has been held to avoid the lien as to subsequent purchasers and creditors securing valid liens; but this rule would not apply in cases of attachments after the levy is made, or, at most, only to a limited extent, for the reason that attachments are levied, not like executions, for the purpose of making a sale, but only to hold the property of the debtor subject to the order of the court. But the attaching creditor, no more than the execution creditor, can use the writ for an improper purpose; and an attempt to do this by directing the officer not to levy will suspend the lien as to subsequent purchasers, mortgagees, and attaching creditors, who secure valid liens before such order is countermanded. Most of the cases cited by counsel for appellant are cases where the delay in executing the writ occurred after the levy was made. After the levy of an execution or an attachment is made, the possession of the officer, or the acts of the officer in making the levy, give notice to the defendant, and to others dealing with him, of the existence of the lien, and the effect of delay is not likely to be so mischievous. But until the levy is made, the lien given by the statute is a secret lien, and liable to jeopardise the rights of subsequent purchasers and creditors. He who wishes to avail himself of it should place no obstruction in the way of having it perfected by the levy of the writ. We conclude that the evidence is sufficient to support the finding of the circuit court, and the judgment is affirmed.
Justices Wood and Hughes concur as to the rules of law announced, but are of opinion that the evidence is not sufficient to support the finding of the circuit court. | [
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Neill Bohlinger, Associate Justice.
The appellants, husband and wife, were moving from the State of California and in passing through Carroll County they were attracted by the appearance of the countryside and decided to buy a small farm and settle there. To this end they contacted the appellee whose advertisement as real estate agent had attracted their attention and the appellee showed to the appellants a small farm of approximately 48 acres belonging to Leslie A. Hough and Ellen M. Hough.
The appellants and appellee went over the farm and at that time the appellants advised the appellee that they wished to do some farming and stock raising and wanted a place to rest. Appellee advised the appellants that the Hough property was suitable in all respects.
One of the appellants, Laura E. Allen, testified that she had been in the real estate business as a broker in California and inquired of the appellee as to the water supply and was told there was a well and three springs on the place that never went dry, that there was plenty of water. The appellants appear to have looked at the well and springs and found water in them. The appellants decided at that time to buy the place and with the appellee they drove to Green Forést at once and there executed an escrow contract with Leslie and Ellen Hough for the purchase of the farm for the price of $5,600.00, paying $2,000.00 in cash and agreed to pay the balance at the rate of $250.00 each month. This transaction took place on the 16th of July, 1958, and the appellants paid four monthly installments. On January 5, 1959 appellants paid the balance due on the purchase price.
Some four or five weeks after closing the transaction and moving on the farm, appellants discovered that there was a lack of water and upon investigation found that the well and springs were wet-weather springs and well, — that is, they were dependent on the rainfall and surface water for their supply. Appellants testified that by reason of that state of facts they have spent certain sums of money to obtain water on the place.
Appellants have brought this suit alleging that appellee, a real estate broker, made fraudulent representations as to the available water supply on the land which he showed to appellants and which they bought relying on those representations. The fact that the well and springs were wet weather springs and well was something that appellants conld not determine in this viewing of the property. Whether or not appellee was acting on behalf of the seller or on behalf of seller and buyer is disputed but since this is a suit for fraud and is a suit against the broker, the relationship is immaterial.
The escrow contract covering the purchase of this land contains this provision:
“Purchasers herein agree and state that they have personally viewed and inspected the above described property and hereby release and relieve Elmer and Pay Overturf of and from any responsibility regarding said sale and property, except as herein noted.”
There were no exceptions noted. At the close of appellants’ testimony and on motion of appellee the court directed a verdict for the appellee on the grounds that the escrow agreement contained a release in favor of appellee and that the appellants had waived any rights by paying off the balance of the purchase price and waiting a long period of time before bringing this action. In both of these particulars we find the court in error.
The courts have many times held that such purported releases as the one contained in the escrow agreement in this case do not relieve the broker from liability for fraud and have based their holdings either on the ground that a contract obtained by fraud cannot be used to relieve the party obtaining the contract of liability for that fraud, or on the ground that the broker is not a party to the contract and cannot take advantage of it to relieve him of his fraud. In Goldsten v. Burke, 43 A. 2d 712 (Mun. Ct. of App., D of C) a broker had assured the buyer that the property was served by a public sewage system whereas in fact a septic tank was used and the contract of sale contained the language:
“* * * that this contract contains the final and entire agreement between the parties hereto, and that they shall not be bound by any terms, conditions, state ments, warranties or representations, oral or written, not herein -contained. ’ ’
The court in that case, in answer to the contention that the contract relieved the broker of liability for the misrepresentation, stated:
“The answer to this is that, ‘where a p’arty is fraudulently induced to enter into a contract, the fraud cannot be atoned by reducing the contract to writing. Smith v. O’Connor, 66 App. D. C. 367, 369, 88 F. 2d 749, 751.”
In Stevenson v. Barwineck, 8 Wis. 2d 557, 99 N. W. 2d 690, the court held that an exculpatory clause in a contract between buyer and seller could have no effect on the broker’s liability in tort for a misrepresentation because the broker was not a party to the contract.
And in Crawford v. Nastos, 182 Cal. App. 2d 659, 6 Cal. Rptr. 425, the court reasoned thusly:
“Finally, the present contention is devoid of merit since an exculpatory provision, such as the one in question, is given sanction under proper circumstances to relieve an honest vendor from liability for damages arising from the fraudulent representations of his negotiating Agent (Herzog v. Capital Co., 27 Cal. 2d 349, 353, 164 P. 2d 8) and not the vendor’s agent who, as the trial court here found, has misrepresented material facts during the course of his dealings with the vendee.”
In Anno. 174 ALR 1010, § 10, it is stated:
“And the reason why a clause ‘that no verbal agreement affecting the validity of his contract will be recognized’ cannot prevent a purchaser from rescinding a contract because of his vendor’s fraudulent misrepresentation was stated in Scarsdale Pub. Co. v. Carter (1909) 63 Misc. 271, 116 NYS 731, as follows: ‘Fraud cannot be an agreement, It is an imposture practiced by one upon another. It may be used as an inducement to enter into an agreement.
Defendant does not claim that he entered into an agreement that affects the validity of the contract, but that he wa<s induced by false representations to enter into the contract. If that be true the validity of the contract is not assailed, but its very existence is destroyed. To constitute fraud by false representation there must be a representation of alleged existing fact; that representation must be false in fact; it must be .made with intent to deceive, and the person to whom it is made must believe it.’
Similarly, it was held in Carty v. McMenamin, (1923) 108 Or. 489, 216 P. 228, that a vendor would not be permitted to invoke, in an action brought against him for misrepresenting the quality of grazing land, a clause in the contract of purchase to the effect that the vendor made no representations as to the value or grazing quality of a range, the court saying: ‘If a party is guilty of fraud in making a contract, he cannot exculpate himself from the consequences of his own wrong by a provision in writing that his fraudulent oral representations shall not be used as evidence against him in a case in which fraud and deceit is the gist of the cause.’ ”
The testimony of Laura E. Allen, one of the appellants, is sufficient to raise a jury question as to whether or not there was fraud on the part of the appellee which caused the appellants to enter into the contract. The testimony as to the damages is also sufficient to raise a jury question on that point.
The trial court’s second reason for directing the verdict does not obtain in this case. In a case where a buyer is suing a seller-principal for the fraud of his broker-agent there may be some duty of the buyer to notify the principal of such fraud and of the fact that the buyer chooses to affirm the contract and sue for damages for the fraud, and the buyer may thereby be guilty of laches or estoppel for not so doing. This is not such a case. The statute of limitations has not run on the cause of action and the appellants have filed a timely suit. The fraud, if there be such, was known to the broker at the time he perpetrated it, and there is no reason for Mm to be apprised that a smt is going to be brought against him until such suit is actually brought.
This is an action for damages based on alleged fraudulent representations and the only limitation as to-the time of bringing the suit is the statute of limitations. The suit is brought well within that time. In Fort Smith Lumber Co. v. Baker, 123 Ark. 275, 185 S. W. 277, this court considered the question of fraud, the remedies available, and the time for bringing the suit. The facts in that case are those stated in the opinion.
“After the plaintiff arrived in Arkansas he went on the land and attempted to cultivate it for two years. In other words he waited two years after he had seen the land before he brought this suit. He had the right to bring his action at any time within the period of time allowed by law but his measure of damages was fixed when he first discovered the fraud which he says had been perpetrated upon him. According to his own testimony, as soon as he went upon the land he ascertained that there was no public road going to it and no stream of water on it. He also saw that about one-half of the land was too steep to ever be cultivated and that the remaining one-half had no soil on it.”
We further stated in that opinion:
“A party who has been induced to enter into a contract for the purchase of property by the false representations of the vendor concerning the quantity or quality of the property sold, may have either of these remedies which he conceives is most to his interest to adopt. ‘He may annul the contract, and by returning or offering to return the property purchased within a reasonable time entitle himself to recover whatever he had paid upon the contract, or, he may elect to retain the property and sue for the damages he has sustained by reason of the false and fraudulent representations, * *
In this case the appellants elected to retain the property and sue the broker. It does .not appear from the record that the appellants had any contract or assurances from Leslie A. and Ellen M. Hough who were the vendors. If there were false representations that induced the appellants to accept the contract, they would appear to have been made by the appellee and the suit is properly directed against him.
For the reasons herein stated this cause is reversed and remanded for further proceedings not inconsistent with this opinion. | [
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Paul Ward, Associate Justice.
This is an appeal from an order of the trial court which took a 4 1/2-year-old hoy from his mother and gave custody to his father.
Dorothy (appellant) and Robert L. Bearden (appellee) became the parents of a boy, Robert Allen, on April 15, 1956, and they were divorced by decree dated June 18, 1958.
By that decree custody of the boy was given to his mother nine months of each twelve months (September to May inclusive) and the father was given custody for the rest of the time. The decree further provided: Robert L. to pay Dorothy $50 per month (for the nine months she had custody) for the support of the boy until he became 21 years old; he was to pay her individually $150 per month until June 8,1963; he was to repay $7,000 which he had borrowed from her; and he was to pay the "expenses of safe transportation of the child to and from his mother ’ ’. All the above provisions were agreed to by Mr. and Mrs. Bearden in writing and incorporated in the decree.
Sometime during the spring of 1960 relatives of Mr. Bearden, while returning from a trip to Georgia, visited the home of Mrs. Bearden in New Orleans, and, with her consent, took the boy with them to Mr. Bearden’s home in Texarkana, Arkansas. On August 20, 1960 Mr. Bearden (who had previously remarried) filed suit asking "that he be awarded the care and custody of his son, Robert Allen Bearden, subject to the right of the respondent, Dorothy Bearden, to have and visit with the child at reasonable times. . . .” After a full hearing the trial court, on December 8, 1960, granted the relief as prayed.
Appellant now prosecutes this appeal, contending the evidence fails to show such a change in conditions or other facts as to justify the change of the original decree. After a careful study of the record we have concluded appellant’s contention must be sustained. Set out-below is wbat we think is a fair summation of what the pertinent testimony reveals.
Mr. Bearden runs a night club in Texarkana just as he did when he was married to Dorothy, and his present wife works in it some just as did Dorothy. Mr. Bearden and his present wife, who now have a three-month-old baby, are respectable people and could give Robert Allen a good home. They do not claim to be regular church attendants. The paternal grandparents, who have intervened, have kept Robert Allen quite a bit and would like to have him now. None of appellee’s witnesses question the moral fitness of Dorothy to retain custody, and none could point out any change in conditions to justify taking custody of Robert Allen from his mother.
Dorothy resides in New Orleans where she lived when the divorce decree was rendered: She works at a respectable place similar to the place now operated by Mr. Bearden; she lives with her sister (who also has a young son) in a comfortable and respectable apartment; she says she looks after the educational, physical and spiritual welfare of her son; she is not going to work any longer as she plans to marry a man (giving man’s name) who is a printer making $130 per week; she loves her child and wants to retain his custody, and; she is willing for Robert Allen to visit his father and grandparents frequently.
Under the above state of the record we are unable to find any change in circumstance (since the original decree) which indicates it would be for the best interest of Robert Allen for the court to take him from his mother and give custody to his father.
Before a decree awarding custody of a child is modified there must be proof showing a justification for a change. See: Nelson v. Nelson, 146 Ark. 362, 225 S. W. 619. This rule has been adhered to in many later decisions of this Court. The burden to show such change in circumstances is on the one seeking the change. See: Parks v. Crowley, 221 Ark. 340, 253 S. W. 2d 561, and Duncan v. Crowder, 232 Ark. 628, 339 S. W. 2d 310. We do not think this burden has been met in this case.
In addition to all that has been said heretofore, we also point out that this Court has often shown a preference to the mother where the custody of a child of tender age is involved. See: Gibson v. Gibson, 156 Ark. 30, 245 S. W. 32; Taylor v. Taylor, 163 Ark. 229, 259 S.W. 395; Greer v. Greer, 193 Ark. 301, 99 S. W. 2d 248; Parks v. Crowley, 221 Ark. 340, 253 S. W. 2d 561; and Duncan v. Crowder, 232 Ark. 628, 339 S. W. 2d 310. It seems to us this preference would apply with even more force where, as here, it is sought to take custody from the mother after it has once been awarded.
It is our conclusion therefore that the order of the trial court should be, and it is hereby, reversed.
McFaddin, J., dissents. | [
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Paul Ward, Associate Justice.
This litigation was initiated when appellant, Gladys K. Shaw, petitioned the probate court to probate the will of George K. Shaw, deceased, and to be appointed personal representative of his estate. In doing so, appellant represented to the court that she was the widow of George J. Shaw. In appellant’s petition she first asked the court to discharge Dexter Brewer (one of the appellees) who had already been appointed public administrator.
Appellant’s petition was opposed, in appropriate pleadings, by one of the appellees, Minnie Margaret Shaw, who contended that she was the widow of said George J. Shaw, deceased.
On the issue of which one of the women was in fact and in law the widow of said George J. Shaw the trial court heard testimony presented by both sides, and then found, in effect that (a) appellant failed to prove she was the widow; (b) that Minnie Margaret Shaw had not asked to be appointed administrator; and, Brewer should be retained as public administrator.
Because of the conclusion we have reached, as hereafter explained, we deem it necessary to set out only a brief summary of the testimony. Appellant showed, by original documents, that she was married to the deceased on August 13, 1945. She testified that she had lived with Shaw as his wife until he died April 25, 1961; that she understood Shaw had secured a divorce before marrying her; and, that Minnie Margaret Shaw (and also her children by the deceased) visited in her home in Stone County prior to Mr. Shaw’s death but said nothing about his failure to get a divorce. On the other hand Minnie Margaret stated (undenied) that she married George J. Shaw many years prior to 1945 and that they lived together and raised six children. She further testified that the records, in the places where they had lived, failed to show any divorce.
We have concluded that the cause should be reversed because, during the hearing, the trial court erroneously placed the burden on appellant to prove, by direct proof, that George J. Shaw had secured a divorce from his first wife when she (appellant) married him in 1945. At one place the court, in addressing appellant’s attorney, said: “. . . it will be absolutely essential that you prove the dissolution of a former marriage . . .” At another time the court, in referring to the testimony appellant had introduced and was trying to introduce, said: “If that sums up your case, why, you are out the window right now.” Again the court said: “. . . when they make proof of a former marriage then you can make proof of the dissolution of that marriage by direct proof, but not by such things as this”.
In many cases' of this nature this Court has held that the burden was on the first wife or spouse to show the absence of a divorce; that there is a strong presumption in favor of the validity of the second marriage; that a marriage ceremony performed pursuant to statute carries' with it a presumption of legality, and that the burden is on the party attacking such marriage to prove its illegality. For these and other similar statements see: Latham v. Latham, 175 Ark. 1037, 1042, 1 S. W. 2d 67; Missouri Pacific Railroad Company et al v Harris, 196 Ark. 974, 975, 120 S. W. 2d 720. In the early case of Estes v. Merrill, 121 Ark. 361, 181 S. W. 136, the Court, at page 368 of the Arkansas Reports, used this language:
“So strong is this presumption and the law is so positive in requiring the party who asserts the illegality of a marriage to take the burden of proving it, that such requirement obtains even though it involves the proving of a negative, and although it is shown that one of the parties had contracted a previous marriage, and the existence of the wife or husband of the former marriage at the time of the second marriage is established by proof, it is not sufficient to overcome the presumption of the validity of the second marriage, the law presuming rather that the first marriage has been dissolved by divorce, in order to sustain the second marriage. ’ ’
We are aware, as held in Watson v. Palmer, 219 Ark. 178, 240 S. W. 2d 875, that this strong presumption in favor of the validity of the second marriage is a rebut-table one. This means, of course, that the trial court should hear all the relative testimony and then weigh the same after applying the rules of law heretofore mentioned.
It is obvious the trial court did not, in this case, attempt to follow the rules above indicated, and that it has not made a decision on the merits under all the testimony. For that reason we have concluded that justice would best be served by remanding the cause for another hearing. In reaching this conclusion we are aware of the fact that we consider a case of this kind de novo and usually dispose of it on the merits, but here there are some additional reasons, set out below, which have also influenced our decision to remand.
(a) Mr. Shaw left a will and the question was raised, but not decided, where it should be probated, (b) Certain proof was offered but refused that on rehearing might be relevant, (c) The record discloses that Mr. Shaw and appellant bought some real estate in Stone County, and it is possible additional testimony would be required to settle all claims arising relative to it.
Accordingly, the judgment of the trial court is reversed and the cause is remanded for further proceedings. | [
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Sam Robinson, Associate Justice.
This action arose out of injuries sustained by Sharon Diane Helton, a minor, while being examined at appellee’s hospital in Hot Springs. The suit was filed by the little girl’s father as next friend, and by the father individually, against the Sisters of Mercy of St. Joseph’s Hospital in Hot Springs. On November 22, 1960, appellant filed a tort action in the Garland Circuit Court, alleging that on the 12th day of November, 1959, Sharon was delivered to St. Joseph’s Hospital so that a physical examination could be made; that she was given a general anaesthetic and placed upon a “cystotable in the usual manner required by these examinations”; that employees of the hospital carelessly and negligently injected sodium hydroxide into the bladder of the little girl, instead of sodium iodide; that as a result of such negligence Sharon suffered severe permanent injuries, among which was the destruction of her bladder; that it is now necessary for her to wear an artificial bladder on the outside of her body, and she will have to wear it for the rest of her life. The complaint prays for judgment in the sum of $386,250. In response to the complaint, the defendant hospital filed a motion to dismiss, alleging that it is a charitable institution and that as such it is not liable in tort.
On January 25, 1961, appellant filed a second suit against appellee, alleging the same injuries and the same circumstances involved when the injuries were sustained, but instead of alleging that the injuries were caused by the negligence and carelessness of the employees of the defendant hospital, the complaint states “that on or about November 12, 1959, the plaintiff, Sanders Helton, entered into a contract with the defendant under the terms of which for a good and valuable consideration the defendant undertook to furnish to defendant’s daughter, Sharon Diane Helton, an operating room, proper personnel and proper facilities for a cystogram and cystoscopy on plaintiff’s daughter. The defendant undertook that the operating room would be safe and suitable, and that its agents, servants and employees would perform their duties in a reasonable and proper manner and that the said Sharon Diane Helton would be fully protected against all harm that might be reasonably anticipated and forestalled by normal hospital operating procedures. That plaintiff Sharon Diane Helton was a third party beneficiary of said contract.”
By agreement of the parties the cases were consolidated. Defendant filed a motion to dismiss the second suit on the ground that although plaintiff had attempted to allege a breach of contract, the complaint nevertheless sounds in tort and that defendant is therefore not liable.
Defendant produced evidence by way of dispositions going to prove that the hospital is a public charity. Although given ample opportunity, plaintiff produced no evidence in contradiction of defendant’s testimony on that point. After considering the evidence on the proposition of whether the hospital is a charitable institution, and the argument of counsel, the trial court granted the motions to dismiss both cases. Mr. Helton on behalf of his minor daughter and himself has appealed.
There are three questions involved:
(1) Is appellee, “Sisters of Mercy of St. Joseph’s Hospital”, a public charity as a matter of law, according to 'the undisputed evidence!
(2) Of course if it is not a public charity, it is liable in tort. On the other hand, is it liable in tort even if it is a public charity?
(3) If the hospital is a public charity and not liable in tort, is it liable on the alleged contract?
We will deal with the questions in the order named. First, is the hospital, according to the evidence, a public charity as a matter of law? The answer is yes. There are several things that inevitably lead to this conclusion. The articles of incorporation provide: “The purpose and essence of this corporation is and shall be purely benevolent, charitable, religious and philanthropic, and it is expressly declared and provided that this Corporation is not for gain or individual profit, and that none of its property, real, personal or mixed, shall ever be used or expended except in carrying into effect the legitimate ends and purposes of its being, and that no person or member shall gain or derive individual profit therefrom.” All taxing authorities consider it a charitable institution; it pays no taxes; it is exempt from sales tax and state and federal income taxes. It is sponsored by the Sisters of Mercy, a Catholic order, but its doors are always open to anyone, regardless of creed, needing hospitalization. No one has ever been turned away be cause lié could not afford to pay. No one has ever made oiie: dime profit out of the institution. The Sisters who work at the hospital receive no pay. Over a five-year period the actual physical labor performed for the hospital by the Sisters, figured on a labor basis alone, was worth $170,000 to the institution. During the same period, $328,373 in cash was donated to the hospital by charitably inclined people. True, the hospital has accumulated the sum of about $600,000, which it hopes to use in expanding and improving its facilities, but if it had been compelled to pay taxes and had not had the services of the Sisters donated as charity, and the gifts of money, there would be no surplus; in fact, the hospital in all probability would be bankrupt.
In addition, a matter of considerable weight to be considered in reaching a conclusion as to whether the hospital is a charitable institution is the fact that the same hospital has heretofore been declared by this Court to be a public charity. Hot Springs School Dist. v. Sisters of Mercy, 84 Ark. 497, 106 S. W. 954. That case was decided in 1907, and there Judge Hart, speaking for the Court, said: “One of the witnesses here said that she had been a member of the Sisters of Mercy for forty years, that the whole object of the order was charity, and that their whole life was devoted to it. In response to the question, ‘This order, the Sisters of Mercy, what is the general work of the order, and to what do your vows pertain?’ she answered, ‘To the poor and sick and educational.’ In this case the buildings were constructed and fitted for use solely as a public hospital. The members of the order receive no compensation for themselves. Their earnings and their lives are devoted to charity. ’ ’
The evidence in the present case is to the same effect. There is no material difference in the operation of the hospital today and the operation when the above mentioned Sisters of Mercy case was decided many years ago. The hospital was established in 1888 and incorporated under Ark. Stat. § 64-1301 in 1951. In the case at bar Mother Mary Bertram Daley testified that “We [Sisters of Mercy] are founded to care for the poor, the sick, and the ignorant. That is a very broad field. We take the vows, one of them being poverty and anything that comes to us by our work or given to us as a gift becomes the property of the community and is used for the works of the community.” In Crossett Health Center v. Crosswell, 221 Ark. 874, 256 S. W. 2d 548, there was evidence to the effect that the hospital was not a charitable institution, but here there is no such evidence.
Next, to say that a public charity is liable in tort, we would have to overrule cases holding just the opposite. Woman’s Christian Nat’l. Lib. Ass’n. v. Fordyce, 79 Ark. 532, 86 S. W. 417, and Fordyce v. Woman’s Christian Nat’l. Lib. Ass’n., 79 Ark. 550, 96 S. W. 155, 7 L. R. A., N. S., 485. Arkansas Baptist College v. Wilson, 138 S. W. 2d 376, was a suit on a teacher’s contract. This Court said: “If this were an action to recover for the tort of the trustees, then appellants would be protected under the doctrine of the Fordyce case, . . .”
In Cabbiness v. City of North Little Rock, 228 Ark. 356, 307 S. W. 2d 529, decided in 1957, one of the issues was whether the North Little Rock Boys’ Club, a charitable corporation, was liable in tort. We pointed out that to hold that such liability existed, we would have to overrule the Fordyce and other cases, and we said: “This we refuse to do.” And it was further said in the Cabbiness case: “The Fordyce cases were decided in 1906 and the rule of immunity of a charitable corporation from tort liability, as there recognized, has become a rule of property in this State. It is for the Legislature, rather than the courts, to effectuate a change, if such is desired.” [Emphasis added.]
In a most able manner counsel for appellant urge us to overrule cases holding a charitable institution is not liable in tort, and much authority from other states has been cited indicating that the trend is along that line. But in view of our prior holdings, and especially the strong language in the Cabbiness case, we do not feel like taking the liberty of doing so. It will be noticed that in the Cabbmess case it is stated that the rule of immunity of a charitable corporation from tort liability has become a rule of property. In Pitcock v. State, 91 Ark. 527, 121 S. W. 742, Chief Justice McCulloch, speaking for the Court, said: “Decisions which become rules of property should never be overruled, whether they are right or wrong.” And in Burel v. Grand Lodge I.O.O.P., 163 Ark. 131, 259 S. W. 369, it is said: “The decision has become a rule of property, and should not be disturbed, even if the court was otherwise disposed to do so.”
We next come to the proposition of whether the hospital can be liable for the injuries sustained by the little girl on the theory that f was a breach of contract. There was no express contract setting out the duties and the obligations of the parties. Mr. Helton delivered his little girl to the hospital for an examination. At that time he signed an authorization for the examination to be made. In this written document neither party agrees to do anything, and it cannot be called a contract in any sense of the word. In order to invoke the doctrine that it was the duty of the hospital to use due care, and liability on its part for the failure to use such care, resort must be had to operation of law. In ordinary circumstances, no charitable institution being involved, the law would imply that it was the duty of the hospital to use due care, and there could be liability for the failure to use such care. But the law does not imply something that is against public policy. How can it be said that the law implies an obligation to use due care, and liability for the failure to use such care, where the public policy of the state imposes no duty and liability in that respect? The Cabbiness case clearly points out that immunity of a charitable corporation from liability for negligence is so thoroughly established in this State that the doctrine has become a rule of property. In these circumstances we cannot say that the law implies that it - tiie duty of the hospital to use due care, and liability to. not doing so. It would appear that if there is any implication supplied by law it would he that there is no liability for the failure to use due care. “The law never implies an agreement against its own restrictions and prohibitions.” Los Angeles Warehouse Co. v. Los Angeles County, 139 Cal. App. 368, 33 P. 2d 1058.
In Lovich v. Salvation Army, 81 Ohio App. 317, 75 N. E. 2d 459, plaintiff was injured by eating contaminated food furnished by the Salvation Army. The complaint was treated as relying on an implied warranty of fitness of the food. The court said: “We think by the greater weight of authority the action in this case is ex delicto and not ex contractu in the sense that it is based upon the violation of an obligation imposed by law ... It would seem that whether the liability is based upon a breach of implied warranty or negligence, that the result is the same. The action for damages for personal injury and illness is tortious in nature and the rule of limited liability in favor of eleemosynary or charitable institutions must he applied.”
In Rudy v. Lakeside Hospital, 115 Ohio St. 539, 155 N. E. 126, the hospital lost jewelry belonging to a patient. The patient filed suit and claimed a breach of contract. The court said: “Under the theory of nonliability of charitable instutions adopted by this court, as heretofore indicated, we are unable to make any distinction between cases involving damages to the person of a patient and damages to his property, where such are caused by the wrongful act of an employee.” The court held there could be no recovery on the alleged breach of contract.
In Greatrex v. Evangelical Deaconess Hospital, 261 Mich. 327, 246 N. W. 137, 86 A. L. R. 487, a baby born in the hospital was by mistake given to the wrong person and was never returned. The father filed suit against the hospital. The court said: “Plaintiff, in his suit against the hospital, first declared on a tort count, then on an assumpsit count, and then added the common counts. Recognizing the rule laid down hy this court that a hospital, formed for non-profit purposes and supported by the benevolence of its contributors, cannot be held liable for the torts of its agents or employees, he discontinued all the counts of his declaration except the second one in assumpsit . . . Naming or labeling a count assumpsit does not make it such, when it is apparent on its face that it is one in tort. Nor is there any magic in the use of one term instead of another, when the gravamen of the act' complained of is the negligence or mistake of a servant of an eleemosynary institution, exempted from liability by law under these circumstances. ’ ’
In Davin v. Kansas Medical, Missionary & Benevolent Ass’n., 103 Kan. 48, 172 Pac. 1002, a patient was injured by the failure of the nurse to stay in the room with the patient. The husband of the patient had specifically contracted with the hospital that a nurse would be kept with the patient. The court held there could be no recovery on the alleged contract and gave as one of the reasons “that public policy encourages the support and maintenance of charitable institutions and protects their funds from the law of litigation.”
Of course, no one even contends that a charitable institution is not liable on its contracts such as the one involved in the above mentioned case of Arkansas Baptist College v. Wilson, 138 S. W. 2d 376, where a teacher’s contract was the issue. But our conclusion is that there can be no recovery on the contract alleged here and, since the appellee is a public charity as a matter of law and is therefore not liable in tort, and is not liable on the alleged contract, the trial court did not err in dismissing both complaints. This does not mean, however, that the little girl and her parents are without any remedy. Of course, the indivual or individuals alleged to have caused the injuries by their negligence are not immune to a suit for damages, and Ark. Stat. § 66-517 gives the injured parties in a ease of this kind a direct cause of action against any insurance company that has issued a liability policy applying to the situation.
Affirmed.
McFaddin, J., concurs in part and dissents in part.
Johnson, J., dissents.
Harris, C. J., not participating. | [
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Paul Ward, Associate Justice.
Appellant, Susie Bennett, claims title to the southeast quarter of the southeast quarter of Section 30, Township 1 north, Range 1 west, based on a family settlement and an agreement with her father, R. C. McCurley, in 1940. Appellee, Theodore Coleman, claims the same land by virtue of a deed executed to him April 28, 1958, by his grandfather, the said R. C. McCurley. Appellee instituted this litigation in chancery court against appellant to oust appellant from possession and to have title to said land confirmed in himself. From an adverse decree appellant now prosecutes this appeal seeking a reversal.
Essentially it is the contention of appellant that in the year 1940 her father, pursuant to his plan to divide his land among his children, put her in possession of said land with the mutual understanding that if she paid him $120 a year (later, by agreement, $150 a year), as long as he lived, the land would be hers; and that she has remained in possession of said land up until the present time and has made every annual payment up until her father’s death on November 27, 1959. All of the above facts are either admitted by appellee or they are supported by the weight of the evidence.
Essentially appellee’s contentions are that the facts above set forth are insufficient at law to constitute a conveyance of the land to appellant, and that she is also estopped from now asserting her claim.
Family Settlement. R. C. McCurley and his wife lived for many years and raised a family in the neighborhood of the land in dispute. They had four children, viz.: a daughter, Susie Bennett, the appellant; a daughter, Maggie Malone; a son, Gordon McCurley; and, a daughter, Bobbie Coleman, who died prior to 1940 leaving four children, one of whom is appellee. Mrs. R. C. McCurley died in 1947. By the year 1939, when Mr. McCurley was 68 or 69 years old, he and his wife had acquired and owned four separate parcels of land consisting of 80 acres each, all in close proximity. Apparently they desired their children to own, occupy and live on these lands because, Mr. McCurley executed a will about that time in which he left each child (with the four children of Bobbie representing one child) one of the 80 acre parcels, the land in dispute going to appellant. Shortly thereafter Mr. McCurley destroyed the will, but he made an actual settlement or distribution of his lands among his three living children and the children of the deceased daughter, the same as was provided in the purported will. It is not denied that such settlement was made by Mr. McCurley, but, of course, there is a disagreement as to the effect of the settlement.
At any rate one son, Cordon, got the 80 acres assigned to him and he now lives on this parcel; one daughter, Maggie Malone, chose to live in California and the 80 acres assigned to her were sold (agreeable to her and her father) and she received a major portion of the proceeds; likewise, and for apparent reasons, the 80 acres assigned to the children óf Bobbie Coleman were sold and the proceeds divided among them; and, appellant took possession of the land assigned to her in 1940 (the land in dispute) and is still in possession thereof. On April 28, 1958, apparently after Mr. McCurley for real or fancied reasons became aggrieved at appellant, he sold the 40 acres in dispute to appellee.
Terms of the Family, Settlement. There is little if any dispute about the manner in which the settlement was made. Mr. McCurley had an agreement or understanding with each child that such child could have the allotted land if he would go into possession and pay $120 per year (later, by agreement, raised to $150 per year) and he (Mr. McCurley) would pay the taxes.
It is undisputed that, pursuant to the above arrangement, appellant took possession and control of the disputed land, has retained same until the present time, and has made the required annual payments up until the death of her father. From 1940 to 1947 appellant leased the disputed land to a third party and collected the rents thereon. In 1947 she moved to and resided on the land adjoining the disputed land and thereafter she exercised possession and control of the disputed land on which she made improvements.
After carefully considering the above factual situation as more fully set out in the record and after reviewing the applicable law, we reach the conclusion that appellant has title to the land in dispute. On many occasions the courts and text-writers have expressed approval of the disposition of property by family settlements. This expression is well stated in 16 Am. Jur. Descent and Distribution § 146 at 928 in these words:
“In the construction of family agreements for the distribution of the property of intestates, the courts, while seeking the real intent of the parties as revealed in the agreement, will, in the absence of fraud or mistake, adhere strictly to the terms thereof.”
In Martin v. Martin, 98 Ark. 93, 135 S. W. 348, there appears this statement:
“Courts of equity have uniformly upheld and sustained family arrangements in reference to property where no fraud or imposition was practiced.”
It is not contended here that any fraud or imposition was practiced by appellant. It is true that some consideration is required to sustain such a settlement. In the present case the annual payments satisfy this requirement. Appellee points out such payments did not equal the rental value of the land. While this may be true in the case of some of the children it is not shown to be true in the case of appellant. However, even if it were true as to appellant, we think it makes no material difference. While there must be a consideration we find no requirement that it be full or complete. In the Martin case just cited, the court went on to say:
‘ ‘ The consideration of the transaction and the strict legal rights of the parties are not closely scrutinized in such settlements, but equity is anxious to encourage and enforce them.”
Likewise this Court in Giers v. Hudson, 102 Ark. 232, 143 S. W. 916, in a well reasoned opinion, approved the following statement:
“ ‘Transactions between parent and child may proceed upon arrangements between them for the settlement of property, or of their rights in property in which they are interested. In such cases this court regards the transactions with favor. It does not minutely weigh the consideration on one side or the other.’ ”
In the cited case the Court also used language which is highly significant here. At page 240 of the Arkansas Report we find:
“Noav, it is equally well settled that this rule which requires a close scrutiny of such transactions is not enforced for the purpose of defeating the contract between parties merely because confidential relationship exists, but it is enforced solely for the purpose of discovering what the real intention of the parties was and to prevent one occupying such a relation of. trust from securing an unfair advantage by reason thereof.”
In the case under consideration there is no intimation that appellant (or any of the children) in any way took an unfair advantage of her father. The record clearly reveals the whole idea of a divisio'n and settlement of property was solely that of Mr. McCurley. Also, as mentioned in the above quotation, it is important to ascertain the “real intention” of Mr. McCurley. We believe it is clear from the record that he “intended” for the children (and appellant in particular) to have and own the property provided only they paid the stipulated annual amount, as did appellant. Such “intent” is clearly deducible from the fact that Mr. McCurley gave one of his daughters the proceeds from the sale of land assigned to her after she had chosen not to live on it. This Avas done even though she did not fulfill the terms of the assignment as did appellant.
In addition to the full force and effect which must be given to the family settlement doctrine, consideration must also be given to the fact that appellant carried out her part of the agreement made between her and her father. The fulfillment of this agreement required three things to make it binding and effectual, and to bypass the statute of frauds.
One, there must be the “intent” that appellant should own the property. As before explained we think such was the intent of both appellant and her father. Two, there must be a complete delivery of possession to appellant. This point is not seriously challenged and in any event we think it is supported by the great weight of evidence. Three, there must be a consideration passing from appellant to her father. We have already mentioned the annual payments, but we believe there is present another element of consideration that can be taken into account. We refer to the fact that appellant was willing to remain on the land and thereby forego any opportunity to acquire a home elsewhere. At least this was a consideration that one daughter did not want to pay. In plain simple language there was an agreement between appellant and her father which appellant has completely fulfilled, and equity should see to it that her father’s part of the agreement is also fulfilled.
The above situation brings this case in line with the reasoning often applied by this Court in similar cases. We refer to the line of cases where the owner agrees orally to give his property to one who agrees to support the owner during his lifetime. In these cases we have uniformly held the oral agreement is enforceable and will not be defeated by the statutes of frauds. See: Hinkle v. Hinkle, 55 Ark. 583, 18 S. W. 1049; Fred v. Asbury, 105 Ark. 494, 152 S. W. 155; Speck v. Dodson, 178 Ark. 549, 11 S. W. 2d 456; and, Schwegman v. Richards, 184 Ark. 968, 43 S. W. 2d 1088. Many decisions in support of the above cases have been rendered by this Court in recent years, but it would serve no useful purpose to set them out. The essence of what the many decisions hold is clearly summed up by this Court in the Speck case, supra, in these few words: “Appellee, having performed his contract, was entitled, after decedent’s death, to enforce the agreement, notwithstanding the same was orally made.”
We are cognizant of the facts that Mr. McCnrley had never made a deed to appellant and that he did deed the land to appellee. However, we think these facts are of no avail to appellee because,' by his own testimony, he knew all about the family settlement and appellant’s possession and claim when he accepted the deed. In fact appellee stated he was astonished that he (McCnrley) was backing up “on that decision”. For any recoupment in purchase price appellee must look to the estate and not to appellant.
We have also carefully considered appellee’s plea of estoppel based on an alleged statement appellant made to a witness to the effect her father could do what he pleased with the land in question, i.e., he could sell it if he desired. In the first place appellant emphatically denied making any such statement. In any event, such a statement by appellant would seem out of accord with her long asserted claim and her actual possession. Moreover, if she made such a statement, the actual meaning could be subject to doubt. She realized, of course, that she had no deed, and she could have meant there was nothing she could do to stop her father if he was bent on deeding the land to another person. We are, therefore, unwilling to say this one questionable incident is so indicative of appellant’s intent to own the land as to supplant the intent demonstrated by many years of possession and control.
Accordingly, the decree of the trial court is reversed and the cause is remanded for further proceedings consistent with this opinion.
Reversed.
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Carleton Harris, Chief Justice.
This is a will contest. Carrye Rosenbaum Burgauer, age 79, died on September 18, 1959, exactly four months and one day after the death of her husband, David Burgauer, leaving a will naming her sister, Mrs. Ruth Cahn, and her nephew, A. L. Cahn (son of Ruth Cahn), as principal beneficiaries. The Burgauers were childless. A petition contesting the will was filed by Willard L. Rosenbaum, S. A. Rosenbaum, and Mrs. Pauline R. Korman. Willard Rosenbaum was a brother of Mrs. Burgauer, and S. A. Rosenbaum and Mrs. Korman are the children of a brother who predeceased the testatrix. These appellants were left no property under the provisions of the will. On hearing, the court dismissed with prejudice the petition and complaint contesting the probate of the will, and confirmed its order earlier entered, wherein the will of Mrs. Burgauer, dated July 18, 1959, was admitted to probate. From this judgment, appellants bring this appeal. For reversal, appellants rely upon two points, vis., “The trial court erred in ruling that the proffered will was not the product of undue influence”, and “The purported will was not attested by two or more credible, competent, and disinterested witnesses as required by law.”
This is quite an unusual case in one respect, in that it is contended that Mrs. Burgauer was subjected to undue influence from two different persons, though these people, as far as the proof relied upon by appellants is concerned, acted entirely independently of each other. They were not related, were not good friends, and had no apparent common interest. Appellants admit they are unable to establish any connection. The alleged users of undue influence are Marie Schnebelen, co-executor of the will, and a beneficiary to the extent of $1,000, and Mrs. Ruth Cahn, sister, and a principal beneficiary. Miss Schnebelen is trust officer of the Arkansas Trust Company, and had served as Mr. Burgauer’s personal secretary for thirty years. She, of course, was well and favorably known to Mrs. Burgauer. Mr. Burgauer died on May 17, 1959, but his will was not read until June 6th. The will was read at his home, and as Mr. Cooper Land, attorney for the estate, and Miss Schnebelen left the home, the latter asked Mrs. Burgauer if she did not think she should execute a will. Approximately two weeks later, Mrs. Burgauer asked Miss Schnebelen to bring Mr. Land to the home the following day for discussion of terms of the will. At the time of that visit, Miss Schnebelen took notes on the information furnished, in the presence of Mr. Land, and she subsequently gave to the attorney a typewritten summary. A few days later, according to the testimony of Miss Schnebelen, Mrs. Burgauer phoned and stated she had additional data to be furnished the lawyer, and the witness noticed Mrs. Burgauer had not appointed an executor or an attorney, and asked if the latter desired to do so. The response was that Wootten, Land & Matthews, handling the estate of her deceased husband, should be named. The witness went to the Burgauer residence, and at that time, Mrs. Cahn, who had stayed with her sister since Mr. Burgauer’s death, was still in the home. Miss Schnebelen testified that she started reading the summary of bequests which Mrs. Burgauer had previously given her, and appellee got up to leave the room; when she read a bequest to Mrs. Cahn in the amount of $15,000, the testatrix directed that she make it $25,000, and she heard Mrs. Cahn give a sigh as she went out the door. This is the only instance in regard to the will where Mrs. Cahn and Miss Schnebelen came into contact.
Appellants contend that Miss Schnebelen occupied a position of trust and confidence as the business ad-visor of Mrs. Burgauer; in other words, she stood in a fiduciary capacity, and under our holding in Orr v. Love, 225 Ark. 505, 283 S. W. 2nd 667, the burden of proof was upon the proponents to establish the validity of the proffered will; i.e., the instrument was executed voluntarily and free of undue influence. The language relied upon from that case is as follows:
“Where the beneficiary plans the will and causes it to be executed, the same rule applies as where he drew the will.”
Further:
“When a will is written or proved to be written by a person benefiting by it, or by one standing in the relation of attorney or counsel and is also benefited by it — these are circumstances to excite stricter scrutiny and require stricter proof of volution and agency.”
We do not agree that that case or language has any application herein. An examination of the case reflects many differences from the one at bar. For one thing, in the Orr case, Mrs. Love was one of the principal beneficiaries ; for another, the will was actually executed under the instructions of that beneficiary; for another, Mrs. Love was present when the will was executed; for another, the testatrix had previously made a will prepared by her own lawyer, but the will in question was prepared by the beneficiary’s lawyer. Numerous other examples could be given, but these will suffice to show the difference in the circumstances surrounding the making of the wills.
Appellants’ contention is based on the argument that Mrs. Burgauer had handled but few business matters, had reached an advanced age, was dependent for business advice, and was suffering at the time from extreme grief due to the passing of her husband. It is pointed out that the suggestion for a will was made by Miss Schenebelen, but, under the circumstances, we do not find this strange or unusual. Miss Schnebelen had, as previously stated, been closely associated with Mr. Burgauer during his lifetime for thirty years, and it would seem natural for one, whose daily business activities were connected with estates, to make such a suggestion to one who, according to appellants, was in need of business advice. Certainly, the suggestion of making a will is normally good advice. Appellants point out that the will named Miss Schnebelen as a specific legatee, but they emphasize the fact that she was named co-executor. From the brief:
“Examining the proof, it appears that Miss Schnebelen, with justification, anticipated a substantial exe cutor’s fee. At the time the initial inventory of the estate was prepared and filed, it reflected as assets, in addition to the personal estate of Mrs. Bnrganer, which exceeded a quarter of a million dollars, the entire estate of David Burgauer on the theory that his property became a part of her estate by reason of the exercise of the power of appointment in her will. The inventory as thus filed, reflected an estate subject to the statutory executor’s fee well in excess of a million dollars. Simple arithmetic shows that the executors reasonably could expect a fee of approximately $35,000. ”
It seems logical that if Miss Schnebelen was contemplating chicanery, and was in a position to overreach Mrs. Burgauer, she would not have settled for a thousand dollar legacy and a co-executorship, leaving a vast estate to people that she hardly knew. After all, there is not any showing that Miss Schnebelen even asked to be named co-executor. Nor do we find anything unusual in the fact that Mrs. Burgauer did name Miss Schnebelen to act in that capacity, and named the latter as beneficiary of a bequest of $1,000. What was more natural than for Mrs. Burgauer to name her husband’s bank and his secretary as her co-executors, particularly when the latter had, as she knew, during Mr. Burgauer’s lifetime, assisted in matters relating to Mrs. Burgauer’s properties? Mr. Burgauer himself had demonstrated his affection for his long time secretary by leaving Miss Schnebelen $2,500 in his will, a fact well known to his widow. Appellants make mention of the fact that Miss Schnebelen, soon after the death of Mrs. Burgauer, when questioned by some of the contestants, denied that she had suggested that the will be made, but had stated instead that the suggestion had come from the attorney. Miss Schnebelen testified that her reason for doing this was simply a matter of trying to avoid a contest of the will, and she thought if she told that the attorney advised it, the contestants would be discouraged from instituting the litigation. This is the only “off-color” act of Miss Schnebelen in the entire matter, and certainly, it is insufficient to establish undue influence. It is very evident from the proof that Miss Schnebelen did not plan the will; rather, the evidence shows that all items were furnished by the testatrix ; nor was the will written by Miss Schnebelen; neither was she a principal beneficiary — and she was not present when the will was executed. As previously stated, this case does not fall within the category of the holding in Orr v. Love, supra.
The principal target of appellants’ contest is Mrs. Cahn. The proof upon the part of appellants is as follows. Mrs. Floy Faulkner, a resident of Hot Springs, was called into the Burgauer home as a nurse during Mr. Burgauer’s last illness. Following his death, she stayed on as a companion to Mrs. Burgauer, until the latter’s death. Mrs. Faulkner testified that Mrs. Burgauer was terribly grief stricken, and despondent, following the death of her husband; that she cried each day, or talked about his passing; she would go to the cemetery every day except Saturday, stating that she felt closer to him there than at any other place; according to the witness, at the cemetery she would stand, cry, talk, and wonder how she was going to go on without him; a chair was taken to the cemetery and Mrs. Burgauer would sit for long periods of time.
The following testimony by this witness is relied upon by appellants as indicating undue influence exerted upon the testatrix: (a) She heard Mrs. Cahn tell her sister that “Dave made his will like he wanted it, and it’s time that you do something about yours.” (b) When the witness and Mrs. Burgauer visited relatives in Meridian, Mississippi (home of Mrs. Cahn), in August, Mrs. 'Burgauer took a copy of her will to Meridian to show her sister, (c) The testatrix had told her that Mrs. Cahn had said that Mr. S. A. Rosenbaum and Pauline Korman, the nephew and niece “had plenty, and they didn’t need anything. ” (d) While in Mississippi, Mrs. Burgauer stated to her (Mrs. Faulkner) that she wanted all of her relatives to share alike, (e) In Meridian, Mrs. Burgauer purchased a sweater for the witness’ granddaughter from a store operated by people Mrs. Cahn did not like, and the testatrix told the witness not to say anything to her sister about it — that Mrs. Cahn would not approve, (f) While in Meridian, Mrs. Burgauer had shown the witness her jewelry, and stated that Mrs. Cahn had plenty of jewelry, “quite a bit that she didn’t wear” and “She felt like that Mrs. Cahn had sufficient without hers, * * * and she said, ‘there’s you and Marie, you and Miss Marie don’t have any jewelry,’ and she said, ‘I could give you some of it.’ I didn’t reply in any way because I felt like it was just conversation, she just wanted to talk.” (g) The day before her death, Mrs. Burgauer told the witness that she was going to change her will; that Miss Schnebelen would be there on Sunday night for dinner, and she would talk to her at that time. On cross-examination, Mrs. Faulkner did state that Mrs. Cahn and Mrs. Burgauer seemed to be devoted to each other.
With the exception of Dr. Francis J. Scully, who apparently was called during the trial for the purpose of endeavoring to establish mental incompetency on the part of Mrs. Burgauer, the remaining proof on behalf of appellants was offered by two of the contestants, S. A. Rosenbaum and Willard Rosenbaum. The former, 45 years of age, is a nephew, and resides in Meridian, Mississippi. He testified that he had, throughout the years, visited in Mrs. Burgauer’s home numerous times, probably once or twice per year. He is the father of two little girls, who were left $500 each in the decedent’s will. He testified that he had, for a number of years, looked after Mrs. Burgauer’s business interests in Mississippi, though he always corresponded and discussed these business matters with Mr. Burgauer. The deceased, in her lifetime, was interested in partnerships and other business ventures in that state, including the Rosenbaum Realty Company, which was owned by the estate of Mrs. Burgauer, Mrs. Cahn, and Willard L. Rosenbaum. S. A. Rosenbaum’s mother has a life interest in the property, and the same is managed by the witness. Mr. Rosenbaum contended that Mrs. Burgauer was subject to the influence of her sister, to whom she had been very fond. Instances that he stated occurred and indicated undue influence were as follows:
(a) In negotiating a lease with Woolworths for space in the Rosenbaum building, it became necessary to make improvements in the amount of approximately $250,000. All parties signed the lease, but Mrs. Burgauer did not want to sign the note to the bank. Mrs. Cahn told Mrs. Burgauer that she should sign with the other members of the family, and her sister did so.
(b) An employee, who had worked for both Mrs. Cahn and her mother for many years, was retired, and given a pension of $20 per month. Mrs. Cahn insisted that this amount should be paid by the realty company. The father of the witness and Willard Rosenbaum did not feel it to be their obligation, but agreed, to avoid argument with Mrs. Cahn. The latter persuaded Mrs. Burgauer that it should be handled in that manner.
(c) According to the witness, about a year or two before the death of his father, Mrs. Cahn showed the father a check, purported to be signed by her mother, in the amount of $5,000, dated some years before, which Mrs. Cahn had never cashed. Mrs. Cahn wanted the Rosenbaum Realty Company to pay the check. The two Rosenbaum brothers refused to honor the check, though Mrs. Burgauer was of the opinion that Mrs. Cahn ought to be paid the money, and '‘ she wrote my Father urging him to pay his part of the money to Mrs. Cahn on this check. My Father and Willard did not pay it.” According to this appellant, while he and his Uncle Willard were in the Bnrganer home awaiting the funeral, A. L. Cahn came into the bedroom, and informed him that the witness’ father had promised to leave Cahn’s mother $25,000, and that Charles Rosenbaum, an uncle of S. A., had promised to leave her $10,000, but neither had made the bequests. A. L. Cahn then remarked, “Now Aunt Carrye is going to rectify all that and I just want you to understand it.”
(d) Mrs. Burgauer told him during his father’s lifetime that upon her death, everything would go to Mr. Burgauer for life, and the remaining estate would go equally to his father, Mr. Willard Rosenbaum, and Mrs. Cahn.
Rosenbaum testified that Mrs. Burgauer made trips to Meridian from time to time, and always stayed in the home of Mrs. Cahn, but visited his home for dinners and family gatherings. He stated his net worth to be approximately $347,000.
The deposition of Willard Rosenbaum, brother of decedent, 78 years of age, was taken. Mr. Rosenbaum reiterated the matters set out in his nephew’s testimony, and said that his sister was a high tempered woman, quite dictatorial, and was always trying to “beg somebody out of something or hog something. That’s been her nature.” He stated that from his observation of Mrs. Burgauer (melancholy, nervous, and upset), she was not in any mental condition to make a last will and testament. Finally, he testified relative to a purported telephone conversation with Mrs. Cahn that took place in October, 19591
“It was the latter part of October after we come back from over there in October, and she says, ‘I understand you have been to Hot Springs and you’re dissatisfied with Carrye’s will.’ That’s Mrs. Burgauer. I says, ‘Yes, I have been to Hot Springs, and I am dissatisfied with it.’ She says, ‘Well, it took me a long time to put it over but I finally made it. None of you gave me credit for having as much sense as I have got.’ I says, ‘Have you got anything else to say?’ and she says, ‘No.’ And I hung up, and that’s exactly what she said.”
The witness estimated his net worth at $300,000.
We turn now to the proof on behalf of appellee. Cooper B. Land, prominent attorney of Hot Springs* and who had served as Mr. Burganer’s attorney, testified that he prepared Mrs. Burganer’s will in the early part of July, 1959, and that she executed the will at herbóme on July 18th. He went to her home, together with Oscar Lnebben, a certified public accountant, who had done tax work for Mr. and Mrs. Burganer, primarily relating to her interests in partnerships and joint ventures in Mississippi. The attorney stated that they were-admitted to the Burganer home by Mrs. Gabe Meyer of Pine Bluff; he did not recall that any other person was in the home, and Mrs. Meyer was not in the room when the will was signed. According to his testimony, the terms of the will were discussed, and Mrs. Burgauer then signed the will in their presence and they witnessed same at her request. Mr. Land testified that from his dealings, with Mrs. Burgauer, he would state that she had the-capacity to retain in memory, without prompting, the-extent and condition of her property, to comprehend to-whom she was giving it, and to comprehend who was being excluded. Mr. Land had previously, on June 20th* discussed with Mrs. Burgauer the provisions to be placed in the will. He stated that on that occasion she appeared normal, although she was suffering grief from her husband’s death.
Mr. Lnebben verified Mr. Land’s testimony relative to the execution of the will.
Mrs. Doris Cohen, a resident of Little Rock for approximately thirty-two years, and a niece of Mr. Burgauer, stated that she had visited in the Burgauer home, probably as often as every other week, for her entire life. Following Mr. Burgauer’s death, she and her husband would go to Hot Springs to the home every other weekend, and would alternate with the Gabe Meyers of Pine Bluff. The witness testified that although- Mrs. Burgauer was very sad, she did not observe any drastic change in the latter’s outlook toward life. She was of the opinion that Mrs. Burgauer was entirely capable of knowing the extent of her properties and to know to whom she was giving it, and she did not feel that Mrs. Burgauer was dominated by Mrs. Cahn. She testified that her aunt was not easily influenced. Her husband, Louis Cohen, concurred in his wife’s testimony.
Mr. Gabe Meyer, nephew of Mr. Burgauer, testified that over the years, he had visited in the Burgauer home about once a month until his uncle’s illness, and he then visited every week or so. He stated that he had looked upon Mrs. Burgauer as a mother from the time that his own mother passed away in 1944. The witness noticed no change in his aunt after Mr. Burgauer’s death, other than grief. He considered her very alert, and capable of making her own decisions. Mr. Meyer’s wife testified that she saw Mrs. Burgauer frequently following the death of Mr. Burgauer, and alternated with Mrs. Cohen in staying with her. Mrs. Burgauer spent one week in Pine Bluff with the Meyers, and requested the latter couple to invite some friends of Mrs. Burgauer (who lived in Pine Bluff) to the Meyers’ home so she could visit with them. Witness stated she was present in the Burgauer home when Mr. Land and Mr. Luebben came to the house; that Mrs. Burgauer had told her she was expecting the two on a business matter. Mrs. Meyer left the room, and subsequently her aunt called her, and asked her to come in, as the men were leaving. She said that Mrs. Burgauer seemed to be in very good spirits, and after Mr. Land and Mr. Luebben had left, made the remark that she was glad the matter was taken care of. Mrs. Cahn was not present at that time, having already returned to Meridian. Mrs. Meyer stated that she never noticed any evidence of domination by Mrs. Cahn over Mrs. Burgauer, and actually always felt Mrs. Cahn was very retiring in nature.
Norton Meek, banker with the Arkansas Trust Company, related several business matters with Mrs. Burgauer before Mr. Burgauer’s death, and stated that he saw no change after her husband’s death except for normal grief at his passing.
Cecil Cupp, president of Arkansas Trust Company, knew both Mr. and Mrs. Burgauer socially, and in a business way. He testified that he saw her at least a dozen times after Mr. Burgauer’s death, and noticed no change in her personality or ability.
Mrs. Fannie McLaughlin, administrator of the Levi Hospital Nurses Home in Hot Springs, stated she had known both Mr. and Mrs. Burgauer as long as she could remember. Mr. Burgauer had served as treasurer of the hospital, beginning with its inception in 1914. She related the kindnesses of Mrs. Burgauer when her (Mrs. McLaughlin’s) husband was ill. She testified that she talked with Mrs. Burgauer over the telephone almost daily after Mr. Burgauer’s death, except for the periods when Mrs. Burgauer was visiting in Meridian. She noticed no change in her friend except that she was very grief stricken. Based on her close association, she was of the opinion that Mrs. Burgauer made her own decisions, and mentioned instances during Mr. Burgauer’s lifetime when his wife made decisions contrary to her husband’s ideas. The witness visited in the home while Mrs. Cahn was staying there, and stated that she had never observed any domination of Mrs. Burgauer by her sister. In fact, it was her opinion that Mrs. Burgauer possessed the more dominant personality of the two.
Both A. L. Cahn and his mother testified, but we see no point in detailing the testimony. Mr. Cahn testified that he knew nothing about the contents of the will until he heard it read. He testified that he had always been very close to his aunt, and she had been quite fond of his daughter, Melanie Renee Cahn, to whom she left the sum of $1,000. His net worth was estimated at approxi mately $300,000. Mrs. Calm, 74 years of age, had been a widow since 1924, her husband dying at the time her son was one and one-half years old. After Mr. Burgauer’s death, she stayed in the home of her sister until June 18th, at which time she returned to Meridian, and remained there until Mrs. Burgauer’s death. She denied discussing with her sister the disposition of the latter’s property, other than a discussion in 1951 with Mrs. Burgauer about a fur cape. She testified that she did not know the financial condition of the appellants until she heard it mentioned in the testimony of the case, and estimated her own net worth at 104,000.
We are of the opinion that the weight of the evidence definitely prexjonderates in favor of appellees, though for the appellants to prevail, the preponderance would have to be contrariwise. Most of the incidents relied upon by appellants are rather meaningless. Certainly, it is not out of the ordinary for sisters to advise with each other, and all witnesses agreed that these two sisters had been very close throughout the years. We think it noticeable that on Mrs. Burgauer’s visits to Meridian, she always stayed with her sister, rather than with the other relatives. This, in itself, indicated a preference for Mrs. Cahn, and a stronger affection for the sister, than for the appellants who were residing there.
All persons are influenced to some degree by the opinions of those to whom they are devoted, but as was stated as far back as 1887, in McCulloch v. Campbell, 49 Ark. 367; 5 S. W. 590:
“As we understand the rule, the fraud or undue influence, which is required to avoid a will, must be directly connected with its execution. The influence which the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion or any other cause that deprives the testator of his free agency in the disposition of his property. And the influence must be specially directed toward the object of procuring a will in favor of particular parties. It is not sufficient that the testator was influenced, by the beneficiaries in the ordinary affairs of life, or that he was surrounded by them and in confidential relations with them at the time of its execution.”
This statement of the law has been reiterated in numerous cases since that time. In some respects, this litigation is similar to that of Dunklin v. Black, 224 Ark. 528, 275 S. W 2d 447. There, the elder daughter was left the vast bulk of her mother’s estate, practically to the exclusion of a younger daughter, and it was contended that Mrs. Black was not accustomed to handling business, and since she was suffering extreme grief because of the death of her husband, was easily subjected to the undue influence of the elder daughter. We held that undue influence was not established. In the case before us, appellants point out that during the thirty days Mrs. Cahn stayed at the Burgauer home (following Mr. Burgauer’s death) she had every opportunity to overpersuade her sister in the disposition of her property, but in theBlack case, the mother and the favored daughter lived together, which, of course, gave daily opportunity. We are not, after all, concerned with the opportunities to exert undue influence; for that matter, if one connives, the opportunity can generally be afforded.
It might be here mentioned that there was evidence that Mrs. Burgauer, prior to executing the will in litigation, had executed a previous will in 1949, leaving her entire estate to her husband. On July 11,1957, Mrs. Burgauer signed a typed letter addressed to her husband asking, in event that she should die first, that he immediately make a new will leaving all that portion of her estate “which you may still have at the time of your death” in the manner set forth in the letter. The disposition mentioned therein was very similar to the disposition in the present will of Mrs. Burgauer, including the naming of Mrs. Cahn and her son as residuary legatees, and the failure to leave any property to appellants herein. This letter was excluded by the court, but, if inadmissible as affirmative evidence to show Mrs. Burgauer’s testamentary intent at a time when there could be no claim of undue influence, it was clearly admissible to rebut tbe testimony of S. A. Rosenbaum, wbo testified that Mrs. Burgauer had told him her remaining estate would go equally to his father, Willard Rosenbaum, and Mrs. Cahn.
In the case before us, Mrs. Cahn was not in the Burgauer home, and had not been there for a month, when the will was executed; rather, she was in Meridian, Mississippi. Undue influence would have been indeed difficult to exert at that distance. We think the evidence was particularly strong that Mrs. Burgauer was clearly capable of knowing the parties to whom she left bequests — and the parties whom she excluded from her estate. This was established by persons who had no pecuniary interest in the result of this litigation.
In Dunklin v. Black, supra, we stated:
“This is no case of a stranger inheriting to the exclusion of natural and loved relatives; here, a daughter, loved, and respected for her ability, is the beneficiary. This is no case of the one being given everything, and the other left destitute and penniless. The evidence shows that in addition to a marriage in a family whose finances are ‘substantial’ (Elizabeth’s expression) and exclusive of her rights in the L. A. Black estate, that Elizabeth has an annual income of over $50,000.00.”
The same reasoning applies here. No one has been left penniless or destitute by Mrs. Burgauer’s action. All parties are independently wealthy. Members of the family were not “cut-off” in favor of strangers; here, a widowed sister, loved and respected throughout the years, and her only son, are the principal beneficiaries. We are not concerned with Mrs. Burgauer’s reasons for the manner of the testamentary disposition. She had every right to dispose of her property as she saw fit, and a study of the testimony convinces us that the instrument was, as stated in Dunklin v. Black, supra:
“* * * her will, arrived at by her own mental processes, and for reasons known, absolutely, only to her.”
We turn now to appellants’ contention that the will was not attested by two or more credible, competent, and disinterested witnesses as required by law. This contention is directed to the fact that Mr. Cooper Land, named as one of the attorneys for the estate, witnessed the execution of the will, along with Oscar Luebben. Appellants contend that Mr. Land was incompetent and incapable as a matter of law in acting as an attesting witness because he had a material personal interest under the provisions of the will. This is a reference to the fact that the law firm with which he is associated was named to represent the estate. Likewise, they contend that Mr. Luebben was not a competent and disinterested witness, pointing out that he was already employed to handle tax matters in the David Burgauer estate, and, “At the time of execution of the will, Mr. Luebben had immediate expectation of being employed also in Mrs. Burgauer’s estate to render accounting and tax services. ’ ’ Of course, Mr. Luebben was not mentioned in the will in any manner. Section 60-402, Ark. Stats., deals with the qualifications of an attesting witness to a will. Subsection (c) provides: “No attesting witness is interested unless the will gives to him some beneficial interest by way of devise.” In being appointed attorney for the estate, Mr. Land was not a legatee or devisee, i.e., he was not given anything. As appellees point out, attorneys are generally pleased to accept such employment in order to earn a fee — but they will earn the fee Section 62-2003 defines “devise”'as “disposition of real or personal property, or both, by will.” Actually, this Court had previously expressed itself in the case of Fontaine v. Fontaine, 169 Ark. 1077, 277 S. W. 867. The question in that case was whether an executor of an estate is a competent attesting witness to the will.
We said:
“The general rule established by the authorities is that an executor of a will is competent as a subscribing witness to its execution (citing cases from other states). Our statute does not change the general rule, for the word ‘appointment’ used therein necessarily refers to some appointment coupled with, a beneficial interest. All the benefits which accrue to an executor on his appointment are derived from the statute prescribing the fees, and not by way of a gift or bequest under the will. In other words, the interest which an executor has in the appointment is indirect, and he has no interest within the meaning of the statute prescribing the qualifications of witnesses.”
Of course, the Probate Code was enacted subsequent to that decision, but we think the Legislature clearly expressed itself by declaring that an attesting witness is not interested unless he receives a beneficial interest by way of devise.
Affirmed.
Item seventeen provided: “I am giving no material legacy, but love and affection, to my brother, Willard Rosenbaum, my nephew, Sy Rosenbaum, both of Meridian, Mississippi, and my niece, Pauline Korman, of Teaneck, New Jersey, nor the members of the family of my deceased brother, Marx Rosenbaum, as I realize they are well endowed with material possessions. This token of affection is an expression of my love for them.”
David Burgauer, in his lifetime, was president of the Arkansas Trust Company.
This remark certainly would not indicate any fraudulent conspiracy, for the statement would not be calculated to help Mrs. Cahn.
Mr. Burgauer, in his will, left the greater portion of his estate to his wife for life, with the power of appointment by will, naming, in the event she failed to exercise that power, certain beneficiaries who were to receive the remainder. Mrs. Burgauer did exercise the appointment, naming the same beneficiaries as set forth in Mr. Burgauer’s will, apparently not knowing that his beneficiaries would receive the properties if she did not exercise the power. Subsequently, it was determined by the attorneys for the estate that the David Burgauer properties did not merge in the Carrye Burgauer estate.
The will contains twenty-one items, including specific bequests (to be paid from Mrs. Baugauer’s estate) to fourteen different people, and one hospital association.
Under the will, Mrs. Cahn received the Burgauer jeweler.
Mrs. Burgauer died on Friday.
Dr. Scully stated that Mrs. Burgauer was much grief stricken, probably more so than the average person, but he did not believe her husband’s passing affected her mental capacity.
Mr. Land properly withdrew from representation of the estate in this litigation. | [
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Carleton Harris, Chief Justice.
This is the second appeal in this case. In Central Arkansas Milk Producers Association v. Willard Smith, 232 Ark. 206, 335 S. W. 2d 289, we affirmed a judgment for appellee in the amount of $600. In a petition for rehearing, appellant raised the question of the ownership of the milk bed on the truck (referred to in the opinion), and asserted:
“Appellant respectfully petitions the court that since it has been determined by the jury and by the Supreme Court that the truck bed now has no value, and no market price exists for said truck bed, that if the court finds the contract still exists after this petition for rehearing that appellant be permitted to take possession of said milk bed. ’ ’
On June 6, 1960, a rehearing was denied, but this Court amended its Opinion as follows:
‘ ‘ Rehearing denied, and the trial court is re-invested with jurisdiction to determine the ownership of the truck bed.”
Thereafter, on September 10, 1960, apparently pursuant to a petition filed by appellant, asking that the trial court determine the ownership of the truck bed, that court entered its judgment denying the petition, and reaffirming its judgment of October 2,1959. This remained the status of the matter until the court entered an order on June 14,1961, finding that the judgment of September 10th, heretofore referred to, had been entered without the attorneys for appellant receiving a notice of the hearing; finding further that appellant had not received a copy of the judgment until after the time for appeal had expired, and had not received any notice that such an order had been entered. On these findings, the court set aside the judgment of September 10, 1960. This order was entered after the lapse of the term. On July 20th, the court entered a second order setting aside the judgment of September 10, 1960, and on the same date, entered its judgment vesting ownership to the truck bed in Willard Smith, finding that “the ownership of said truck bed has been in Willard Smith at all times and is now and remains in the said Willard Smith and that there is no question remaining for this court to determine. ’ ’ Prom the judgment so entered, appellant brings this appeal.
A¥e are unable to consider appellant’s appeal on its merits for the reason that it did not comply with the statute which governs the setting aside of decrees or judgments after the lapse of the term. Section 29-508, Ark. Stats. Anno., provides that such proceedings shall be by complaint, verified by affidavit, and we have held that this requirement is jurisdictional. In Bradley v. Keith, 227 Ark. 1107, 305 S. W. 2d 134, this Court said:
“The next day Keith filed an unverified motion to set aside the judgment, asserting that only a pre-trial conference had been scheduled for June 5 and that his attorney had been prevented by illness from being present. This motion was not presented to the court until after the lapse of the term. The court considered the motion at its next term and, acting only upon a statement of counsel, made a finding of unavoidable casualty and vacated the judgment.
The appellant is correct in his insistence that the record does not support the court’s action. After the lapse of the term the court no longer had discretionary control over its judgment, which could then be vacated only in accordance with the statute that applies after the expiration of the term. Dobbs v. Dobbs, 225 Ark. 397, 282 S. W. 2d 812. That statute requires that the complaint to set aside the judgment be verified by affidavit, Ark. Stats. 1947, § 29-508, and we have repeatedly held that this requirement is jurisdictional. Pattillo v. Toler, 210 Ark. 231, 196 S. W. 2d 224; Raymond v. Young, 211 Ark. 577, 201 S. W. 2d 583; Kirby v. Milum, 218 Ark. 106, 234 S. W. 2d 518. Although the requirement may be satisfied by the introduction of sworn testimony at the hearing on the motion, Pinkert v. Reagan, 219 Ark. 822, 244 S. W. 2d 961, the trouble here is that no proof under oath was offered to sustain the motion to vacate the judgment.”
See also Wright v. Ford, 216 Ark. 55, 224 S. W. 2d 50.
Tn the case before us, it does not appear that a written complaint or petition was filed praying the court to set aside its judgment; at least, no such pleading is reflected in the transcript. Nor does the docket sheet, which appears in the transcript, show that any written motion was filed seeking this relief. As pointed out, it is necessary that a written petition or complaint be filed, and verified, before one feeling aggrieved is entitled to relief, unless sworn testimony is taken at the hearing on the petition. The record does not reflect that any sworn testimony was taken. It follows that the court was without jurisdiction to set aside the judgment of September 10, 1960, and that judgment should stand. The appeal is accordingly dismissed.
The judgment recites that the cause is presented to the court upon the petition of “the above named defendants”, which would mean the appellant in this case. The term “apparently” is used because, though the judgment is dated September 10th, the petition is dated September Í2th.
The reason for the entry of the second order is not shown.
In effect, this was the same judgment the court had entered on September 10, 1960. | [
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Jim Johnson, Associate Justice.
This case involves an action which, inter alia, seeks to establish the existence of a partnership.
William Brandenburg, Sr. and bis wife Luella Jane Brandenburg were tbe adoptive parents of Mrs. Brandenburg’s half-brother, appellee William Brandenburg, Jr. These three, for a time, operated a cleaning and pressing business in the City of Hot Springs. Upon the death of Mrs. Brandenburg, appellee brought suit against William Brandenburg, Sr., and Ruby Brandenburg, Executrix of the estate of Luella Jane Brandenburg, asking that the business be declared a partnership and that he be declared a one-third partner; for an accounting; for dissolution and distribution of assets according to the respective ownership interest; and declaration of certain real estate as partnership property. After an extended length of time, the trial court finally resolved the issues in favor of appellee and decreed that a general partnership existed between the parties. In addition, the trial court made extensive findings as to various amounts due appellee from the partnership operation, capital and assets, the total of which resulted in a judgment being rendered in favor of appellee in the amount of $15,673.71. From such decree William Brandenburg, Sr. and Ruth Brandenburg, Executrix, brought this appeal. During the pendency hereof, appellant William Brandenburg, Sr., died and the appeal is continued in his stead by the co-administrator of his estate.
For reversal, appellants urge seven points with numerous sub-points, all of which may be epitomized in two principal points, i. e., (1) That the trial court erred in finding that a partnership existed and (2) that the court erred in failing to appoint a Master to make an accounting.
I.
THE EXISTENCE OF A PARTNERSHIP
In the early case of Culley v. Edwards, 44 Ark. 423, this Court stated the rule that: “. . . the test of a partnership between the parties themselves has always been their actual intent,” and the rule is equally well settled in this jurisdiction that the existence of a partner ship need be proved only by a preponderance of the evidence. See Wilson v. Todhunter, 137 Ark. 80, 207 S. W. 221; Williams v. Walker, 148 Ark. 49, 229 S. W. 28; May v. Sharp, 193 Ark. 340, 99 S. W. 2d 252.
With these rules in mind, we examine the record on trial de novo to determine whether the evidence meets the tests set forth above. There we find that appellee testified on two occasions that it was agreed between William Brandenburg, Sr., and Luella Brandenburg and himself that they would enter into a general partnership with respect to running the Brandenburg Cleaners and on the basis of this agreement appellee advanced certain moneys to be used for partnership purposes and that he worked at various times throughout the partnership in the business and managed the same and did other work in connection therewith and received no salary whatsoever, but a slight drawing account and he lived with his parents, the other two partners, at various times without paying room and board. The question of the partnership agreement was corroborated by two disinterested witnesses. Edward Bibb testified that Brandenburg, Sr. and his wife advised the appellee that if he would put his money that he then had into the business that they would buy some new equipment and call it the Brandenburg Cleaners and all three would be partners.
Clare Elizabeth Shannon testified that Brandenburg, Sr. and his wife told her that they, along with the appellee, were the three partners and she had heard them state this quite a number of times and that they told her that they were partners “three ways.” It is evident from the record that both of the foregoing named witnesses were in a position to know what the agreement was because of the fact that Edward Bibb stated that he was Mrs. Brandenburg’s nephew; had worked in the cleaners taking care of the business for a short period of time and had helped install some of the new equipment and machinery and that he visited in the Brandenburg home quite often and went on fishing trips with them and was more or less in constant contact with all three parties.
' Clare Shannon resided at 131 Central Avenue and the"' business establishment was located at 125 Central Avenue and she stated that she had lived with Brandenburg, Sr. and his wife for approximately nine months and she also had helped manage the business at one time and was in more or less constant contact with all three parties, and, therefore, was in a position to know the business relationship.
In addition to the evidence of appellee and these two disinterested witnesses, the record further reveals that William Brandenburg, Sr., himself, admitted that there was an agreement made between the parties as to a partnership business under which appellee was to receive one-third of the net profits. See Ark. Stats. § 65-107(4). Since the Chancellor had an opportunity to hear and observe the witnesses on the stand, great weight should be accorded his finding of fact. England v. Scott, 205 Ark. 47, 166 S. W. 2d 1014; May v. Alsobrook, 221 Ark. 293, 253 S. W. 2d 29. It follows, therefore, from what has been said and from other evidence brought forth in the voluminous record before us that we cannot say the Chancellor erred in finding that appellee had established by a preponderance of the evidence that it was the actual intent of the parties to establish a partnership.
II.
MASTER AND ACCOUNTING
It is conceded by all parties that this case was to be tried first on the sole question of whether a partnership existed. There are various places in the record where attorneys for appellants were attempting to bring out testimony regarding money matters, and counsel for the appellee objected, stating that what the question referred to was in the matter of accounting.
“Mr. Thomas: If the Court Please, that would be a matter of accounting.
“The Court: Yes that would be the matter of accounting.
“Mr. Thomas: If the Court please, that’s still going into accounting.
“The Court: I think you’re burdening the record here now.”
* # *
“Mr. Thomas: Now, if the Court please, that’s in the accounting, I don’t see where that’s a basis here at all. I don’t object to the boy answering.
“The Court: I think that’s a matter of accounting, what the profits were.”
«= # *
“Mr. Hobbs: Now, if the Court please, I think we’ve agreed to it three times that the question before the Court at this time is whether this is a general or limited partnership. The question of all this money should be referred to a Master.
“The Court: Granted.”
* * #
“Mr. Thomas: If the Court please, I’m going to object to all this line of questioning, it’s just taking up the Court’s time, everybody’s time, encumbering the record, on something that’s not even before the Court; it having been stipulated before the trial that the only question that would be presented to the Court was the general or limited partnership.
“The Court: Let’s try to narrow it down.”
From these quotations of objections made by counsel it is apparent that counsel and the Court during the trial agreed that if the court found that there was a partnership, then there would have to be either an accounting by the Court or by a Master. It is also evident from the record of trial that no accounting either by the Chancellor or by a Master was taken to strike an account or balance between the parties as a result of the Court’s finding of a one-third partnership.
In the course of the trial to determine the existence or nonexistence of a partnership, it became necessary for an abundance of testimony to be introduced relative to the handling of money and the financial affairs of the business. It was from these figures that the Chancellor made his findings and disposed of the entire case. Clearly, this was error. In fact appellee concedes on appeal that there was at least one error in the Court’s calculations in his favor which was in excess of $1,000. This partnership existed from July 1946 through October 31, 1954, not just a period of months but of years. An accounting will be complicated. It is evident from the record that there are many account books, tax records and other material available which will enable a Master to strike an equitable balance between the parties. As was said many years ago by this Court in Bryan v. Morgan, 35 Ark. 115,
“The Chancellor may himself state an account and announce the result, and decree accordingly. But this practice should be confined to simple and obvious cases in order to save the expense to litigants. In complicated transactions justice cannot be well done without a reference. ’ ’
and in Excelsior White Lime Co. v. Rieff, 107 Ark. 554, 155 S. W. 921, this Court stated the rule we apply here:
“Where numerous items are in dispute, and it is necessary to determine item by item to strike a balance between the parties, the Court should refer the matter to a Master to state the account.”
Reversed in part and remanded with directions to appoint a Master to state an account between the parties and for further proceedings consistent with this opinion. | [
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Jim Johnson, Associate Justice.
This is an appeal from an order of the Boone County Chancery Court granting appellee, Arkansas State Highway Commission, an injunction against the city officials of Alpena which ordered a controversial traffic light removed.
The undisputed facts are as follows: At the intersection of Center and Main Streets, Main Street also being IT. S. Highway 62, in the City of Alpena, the municipal authorities erected a traffic control device, to-wit, a flashing red traffic light. This device was erected pursuant to an Ordinance of the City Council. The City has not been granted permission by the Arkansas State Highway Commission to place or maintain this light. Traffic engineers employed by the Arkansas State Highway Commission have made traffic counts at this intersection to determine if the control device is warranted by the traffic conditions and have found that it is not.
The traffic engineer who testified in this case stated that the stop light on U. S. Highway 62 does not conform to the standards recommended by the Institute of Traffic Engineers, and adopted by the Arkansas State Highway Commission, stated what the standards were and explained in what manner the light is lacking. He explained that a non-standard light is dangerous.
Ark. Stats. §§ 75-502, 75-511 and 75-512 read as follows:
“75-502. The State Highway Commission shall place and maintain such traffic control devices conforming to its manual and specifications, upon all State highways as it shall deem necessary to indicate and to carry out the provisions of this act or to regulate, warn or guide traffic.
“(b) No local authority shall place or maintain any traffic control device upon any highway under the jurisdiction of the State Highway Commission except by the latter’s permission.”
“75-511. Conformity to standards. Any new electrical traffic-control signal device installed on any street, road or highway in this State after January 1, 1960, shall be in conformance with the standards recommended by the Institute of Traffic Engineers, approved as an American Standard by the American Standards Associ ation. All traffic signals shall conform to the State manual and specifications adopted by the State Highway Commission in accord with the requirements of Sections 28 and 30 of Act No. 300 of 1937 and Sections 75-501 and 75-503 of the Arkansas Statutes of 1947 Annotated (1957 Replacement).”
“75-512. Officials to arrange signals to conform. Any persons, officers, or officials charged with the duty of placing, operating or maintaining of electrical traffic-control signal devices on the public street or highways of this State shall arrange such signal devices to conform with the provisions of this Act [Secs. 75-509-75-513]..”
These legislative enactments are so plain and unambiguous the learned Chancellor had no choice but to apply the plain language of the statutes to the undisputed facts, i.e.,
(1) The stop light is located upon U. S. Highway 62, a part of the State Highway System.
(2) The Commission has not given permission to the City of Alpena to place or maintain the light.
(3) The signal device did not conform to standards adopted by the State Highway Commission.
This application having been made by the trial court, and by this Court from the record on trial de novo, properly resulted in the granting by the trial court the injunction prayed. See Adkins v. Harrington, 164 Ark. 280, 261 S. W. 2d 626; Arkansas State Highway Commission v. City of Little Rock, 227 Ark. 660, 300 S. W. 2d 929; Garrison v. City of Alpena, 234 Ark. 170, 350 S. W. 2d 690.
Affirmed.
Bohlinger, J., not participating. | [
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Neill Bohlinger, Associate Justice.
The appellee herein filed his complaint in the Chicot Chancery Court in which he sought a divorce from the appellant, Sarah Gibson, on the grounds of general indignities and asked that the two adopted children of the parties be awarded to him and that the appellant take no part of his property. Subsequently appellee amended his complaint and alleged that the appellant had attempted to destroy and invade his personal dignity; was suspicious and jealous of his friends; persistently quarreled; fussed, abused and nagged him; exhibited manifest hatred; was devoid of concern for his business and prohibited the appellee from administering his business; required unreasonable explanations of his business and social activities; and had neglected personal supervision of his two children.
To this complaint appellant filed an answer denying the specific allegation of indignities; denying she was not a fit and proper person to have the custody of the children; denying that she had failed to maintain the home; asking that the complaint be dismissed; and asking for support for herself and children, costs and attorney’s fees and for permission to file a cross complaint if on examination it was found necessary; and asked for all equitable relief.
Thereafter the appellant filed her amended answer and cross complaint alleging that the appellee herein had treated her with contempt and neglect, had shown a propensity for preferring the company of other women that caused her mental and physical strain through no fault of her own and asked for separation of bed and board. She further alleged that any conduct complained of by appellee was brought on by appellee’s own action and that she was without means of support. In addition to asking for separation from bed and board, in the alternate she asked an absolute decree of divorce and for her property rights.
. Responding to a motion by the appellee, the appellant filed an amended and substituted counterclaim with interrogatories aqd in that pleading reaffirmed and re adopted her former pleadings and made further allegations that the appellee’s course of conduct displayed an attitude of contempt and neglect; that he had privately and publicly abused and cursed her name and reputation; that he had continually associated with other women, indicating improper or immoral conduct; that the appellee had on numerous occasions appeared in public intoxicated; that he had committed one or more acts of adultery prior to the filing of his complaint and she alleged appellee was guilty of acts of adultery.
Further, that appellee had refused a reconciliation which she was willing to accept and that the counterclaim was made for the purpose of protecting her rights in appellee’s property and that if the court determined an absolute divorce shodld be granted, that such divorce be granted to her and asked for her statutory rights in appellee’s property and for such other relief as she might be entitled to and that her pleadings be deemed amended to conform to the proof.
After numerous delays and a lengthy trial, the court awarded to the appellee an absolute divorce and awarded temporary custody of the children to the appellant with right of visitation in the appellee and required the appellee to pay $500.00 per month temporary support. The chancellor, in his finding, took the view that the position of the appellant would have been better taken had her plea been for an absolute divorce and if the chancellor, in his discretion, finds absolute divorce not be granted then a limited divorce be granted; that the court could not grant an absolute decree when a limited divorce was prayed. The chancellor further found that appellee’s charge of fussing and nagging, use of profanity toward appellee and the use of profanity in the company of others, a closet incident, use of detectives to shadow him and charging appellee with adultery had been corroborated.
The chancellor found that the appellant’s allegation of the appellee removing himself from the marital bed, desire for party life to the exclusion of family life, requiring her to associate with obnoxious friends, contemptuous behavior toward her, fussing and nagging, cursing her, had not been sufficiently corroborated and had been explained away; that the appellant had failed to prove the charge of adultery and that the allegation and subsequent failure to prove this charge was the basis for a finding that the appellant’s charge constituted cruel treatment. He further found both parties had the same grounds for personal indignities, but that the appellant had failed to prove the charge of adultery. The court found her action in hiring detectives to shadow the appellee was a cause of the separation and that the decree therefore should be awarded to the appellee.
The chancellor, in his finding, took the position that the appellant could not be granted an absolute decree of divorce as her application was for a limited divorce. We do not so read the record. In her answer and cross complaint the appellant asked for separation of bed and board and in the alternative asked for an absolute decree and for her property rights. We think the case of Grytbak v. Grytbak, 216 Ark. 674, 227 S. W. 2d 633, is applicable here. In that case we said:
“We have held that the statement of facts in a complaint or cross complaint and not the prayer for relief constitutes the cause of action and that the court may grant whatever relief the facts pleaded and proved may warrant in the absence of surprise to the complaining party. ’ ’
In this case there was no surprise nor does the appellee plead surprise.
Not only did the prayer of the answer and cross complaint ask, among other things, an absolute decree but the facts as pleaded and proved would entitle the appellant to that relief. See also Crabtree v. Crabtree, 154 Ark. 401, 242 S. W. 804. While the Crabtree case deals with the matter of judicial discretion when deciding whether the pleadings are adequate to award an absolute or limited divorce, we stated in that case:
“* * * This, however, does not mean a discretion to be exercised at the will of the chancellor; but it is a judicial discretion to be exercised according to equitable principles and the peculiar circumstances of each case. * * *“
“On the other hand, if his discretion is to be exercised according to the principles expressed in Conant v. Conant, supra, [70 Am. Dec. 717] and in accordance with the acts of the chancellor in Crews v. Crews, supra, [68 Ark. 158] it is manifestly an abuse of discretion for the chancellor to grant a divorce from bed and board where the complaining party is without fault and has established his or her grounds for divorce.” [Citations added]
We hold that the pleadings of the appellant are not so limited as to preclude the granting to her of an absolute decree.
In the matter of the personal indignities alleged by both parties, the chancellor made this finding:
“Summarizing, the plaintiff charged the defendant with personal indignities, and the defendant charged the plaintiff with personal indignities and adultery. The plaintiff sustained the grounds of personal indignities, the defendant sustained the grounds of personal indignities, but failed to prove the charge of adultery. The court following the rule of comparative rectitude finds that becase the defendant failed to prove the charge of adultery and her action in employing detectives to ‘ shadow’ the plaintiff- was the ultimate cause of the separation, that the divorce should be granted the plaintiff.”
There was no appeal by the appellee from the chancellor’s finding that the appellant had sustained the grounds of personal indignities alleged by her. After a careful perusal of the many hundreds of pages of the record in this case, we reach the conclusion that the appellee failed to prove his general charge of indignities in such a manner as would have entitled him to a divorce. Indignities may mean a number of things in various circumstances but in order to constitute the grounds for divorce they must be constantly and persistently pursued with the object and effect of rendering the situation of the opposing party intolerable.
Perfection is the ultimate goal in all fields but we doubt if perfection in the field of human relations has ever been or will ever be attained. It is hardly conceivable that over a period of years two separate and distinct persons can live their lives as intimately enmeshed as in the marital relation without friction and rare would be the history of a marriage where no clash of opinions, ideas and wishes have ensued. Colorless indeed would be the life of any strong willed pair if either party cast aside a personal preference in minor details and followed without remonstrance the dictates of the stronger of the two. We might, in such a circumstance, have a semblance of peace but we would not attain the degree of felicity which the marital state contemplates.
We do not find that the appellant has in all respects been gentle and yielding nor willing to subject her inclinations and preferences to the more boisterous activities of the appellee and in some respects her fears and apprehensions for him may have been a source of annoyance to him but we fail to find a studied neglect or the indignities that must be habitually and systematically pursued for the purpose of rendering her mate’s station in life intolerable. In this case we have two people with different backgrounds and a clash of personalities that may never be resolved and the record before us convinces us that neither party to this action has displayed that tolerance and understanding that rests upon each party in a marriage contract if a marriage is to be preserved. In this respect they are both guilty. We therefore conclude that the appellee’s allegations of indignities on which he predicates his prayer for divorce have failed.
In the matter of the charge of adultery. We know of no useful purpose that will be served in a page by page recital of the sordid details in this chapter of domestic infelicities. It is true, as the chancellor found, that the appellant placed the appellee under surveillance by the employment of detectives, and the rumors that gave rise to her suspicions seem to have been well grounded. There was brought to light by their activities at least one episode in Hot Springs on which we must sustain the charge of adultery. We do not agree with the chancellor that the degree of proof necessary to establish adultery was lacking. Were this a criminal case we might share his view but this is a charge of adultery in a civil proceeding and that charge may be sufficiently proved by evidence of circumstances leading to an inference of guilt. The following cases are pertinent. Leonard v. Leonard, 101 Ark. 522, 142 S. W. 1133; Buck v. Buck, 207 Ark. 1067, 184 S. W. 2d 68; Hargis v. Hargis, 188 Ark. 1167, 67 S. W. 2d 597, and Ayers v. Ayers, 226 Ark. 394, 290 S. W. 2d 24.
The opportunity and the adulterous disposition must meet. The opportunity was present and while there is no person except the participants who know whether or not one or both of the parties involved harbored an adulterous disposition, the almost daily telephone calls between the appellee and the woman, his clandestine meetings with her, their demonstrations and their presence in a darkened motel room during the nighttime are such circumstances that would lead the guarded discretion of a reasonable and just man to the conclusion of guilt.
From the record in this case we conclude that the appellant has sustained her charge of adultery and is entitled to a decree of absolute divorce from the defendant.
The trial court was correct in awarding the temporary custody of the two children to the mother with visitation rights in the appellee. That order should stand until the court finds that the welfare of the children necessitates a change. The appellee will be required to furnish support money for the children.
In the matter of attorney’s fees. We do not have before us the schedule of fees adopted by that local Bar but the allowance of $2,500.00 by the trial court does not appear adequate and for that reason an allowance of an additional $1,500.00, which will cover the costs of this appeal, is made to the attorneys for the appellant and it will be paid by the appellee. At the conclusion of this cause on the remand the court will further examine the matter of additional allowances to cover the services of counsel for appellant in the final disposition of this cause.
The court will further ascertain the rights of the appellant in the property of the appellee and make the appropriate orders therein. This cause is reversed and remanded for further proceedings consistent with this opinion.
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Neill Bohlinger, Associate Justice.
This is an appeal from the Saline Chancery Court from a judgment against the appellants and their bondsman in favor of the appellees for $38,600.00 damages.
'On March. 28, 1955 the appellant, J. M. Evans, sold to the appellees an automobile-truck-farm equipment business which the appellant was operating in Saline County and which the appellees purchased by making a down payment and executing a note in the sum of' $43,965.60 for the balance of the purchase price which note was secured by a mortgage on ‘all parts and accessories, all furniture and fixtures, all accounts receivable and all notes receivable, all used trucks or rolling stock, all used automobiles, all new and used farm machinery which were a part of the business which was known as Saline County Motors.’
The note given by appellees was payable at the rate of $366.38 per month and appellees met all monthly payments and in addition, rented the building from appellant wherein the Saline County Motors was housed for a sum of $300.00 per month which was duly paid.
The business of the appellees on June 1, 1960 appears to have been in financial difficulties and the appellant and appellees discussed the matter of liquidating the business and paying the creditors, including the appellant who claimed a balance of $21,250.04 on the note and mortgage given by appellees in the purchase of the business.
The matter of liquidating appears to have been discussed by the partner appellees and on June 2, 1960 they advised their suppliers, Chrysler Corporation and The International Harvester Company, of their intention to cancel their dealership contracts and proceeded further with the liquidation of the business by disposing of assets, including accounts receivable which the appellant claims were covered by his mortgage.
Finding that the proceeds from the disposal of the assets were not finding their way into the bank, the appellant, on June 13, I960,- asked for and obtained a temporary restraining order to conserve the assets of the partnership. On June 15, 1960, the appellees moved to dissolve the temporary injunction and after a hearing on June 18, 1960, the chancellor granted the prayer of the appellees and dissolved the injunction.
The appellees moved in the chancery court for the impaneling of a jury to assess the damages to which they felt they were entitled by reason of the. temporary injunction. On December 8, 1960, the chancellor impaneled a jury for that purpose and after hearing testimony, the jury found for the appellees, E. K. Weise and James Westbrook, in the sum of $38,600.00 damages against the appellant. The chancellor adopted the finding of the jury and entered a decree pursuant to such jury finding, awarding damages to the appellees against appellant in the sum of $38,600.00.
To reverse that decree, the appellant presents among others, the following point:
“Point 1 — The Chancery Decree Awarding Judgment of $38,600.00 was Error
1-A — A Question of Fact, to be Tried De Novo, is Presented on Appeal
1-B — The Damages Awarded are not Supported by any Substantial Evidence
1-C — The Damages Awarded are Crossly Excessive”.
With appellants’ Point 1, we agree and the case is here and now considered de novo, § 32-307 Ark. Stats. (1947) Anno., is as follows:
“Assessment of damages upon dissolution of injunction or restraining order. — Upon the dissolution in whole or in part of any injunction or restraining order of any and every kind and nature whatsoever, the chancery court wherein the same was pending may assess and render against principal and sureties on the injunction bond a valid judgment for any and all damages occasioned by the issuance of such injunction or restraining order; and the court may either appoint a master to report as to such damages, or may render summary judgment therefor, or at its discretion may cause a jury to be empaneled to find such damages. [Civil Code, § 320 (1st sentence); Acts 1915, No. 102, § 1, p. 389; C. & M. Dig., § 5822; Pope’s Dig., § 7538.] ”
In Sullivan v. Wilson Mercantile Co., 172 Ark. 914, 290 S. W. 938, this court said:
"It may be first said that the verdict of a jury in a chancery case is advisory to, but not binding on, the court. Hinkle v. Hinkle, 55 Ark. 583, 18 S. W. 1049. But, inasmuch as the decree was rendered in accordance with the verdict of the jury, it must be assumed that the court coincided with and concurred in the finding of the jury, and that the verdict indicates what his own finding would have been, had he passed upon the question originally without the intervention of a jury.”
See also Hinkle v. Hinkle, 55 Ark. 583, 18 S. W. 1049 and Magnolia v. Davies, 188 Ark. 19, 64 S. W. 2d 85.
Since the chancellor has made the finding of the jury his own finding, he will of necessity be credited with the soundness and be charged with the fallacies of the logic and conclusions that entered into the jury finding. It appears from this record that the jury took the view that since the temporary injunction, which was dissolved as being without equity, was responsible for the closing of the business, the measure of appellees’ damages was the combined sums of the debts of the business. With this we do not agree.
The record inflects that the business was, as one of the appellees stated, "a losing proposition,”; that in almost five years of operation the business had operated at a loss with the exception of one year; that appellees were constantly in financial difficulty; that in 1959 they had issued a check for more than $6,000.00 without the money to secure payment of the check and they had importuned the appellant to help them in their difficulty. This the appellant did by getting the bank to hold the check and endorsing the note of the appellees in the sum of $6,000.00, and a major portion of such note still remains unpaid. The appellees were confronted with the same situation just prior to June 1, 1960 and again besought the appellant to help them in their difficulty, but this the appellant declined to do and suggested to the appellees that they might more advantageously liquidate their business then than later on and, that according to the figures of appellees, they could liquidate and pay all their debts and have something over.
The appellees, as partners, appeared to have discussed this suggestion and knowing more of the status of their business than any other person, they decided the course was a wise one and the decision to liquidate the business was made by them. To that end they severed their connection with their suppliers and proceeded to hypothecate and to dispose of assets. Prom that point on, the Saline County Motors was not a going concern and any conclusion to the contrary is not based on the clear reading and the implications to be found from the record. The giving of checks against an inadequate balance at the bank, borrowing money to cover checks, disposing of assets, transferring of accounts receivable which might have been construed as being covered by the mortgage held by appellant, are not the earmarks of a prosperous, going business but speak most eloquently of a business that is ready for liquidation.
There is nothing in the record before us that would indicate that the injunction either accelerated or retarded the dissolution which the appellees had themselves initiated. We are not confronted here with the problem of a successful business whose orderly progress is disrupted by an injunction and the standing of which, as a going concern, might have been adversely affected. There is no showing that the final liquidation of the business would have been any more profitable to the appellees had the injunction not been granted in the first place.
The appellees had the same assets at the end of the five days during which the temporary injunction was in force that they had at the issuance of such injunction and the idea that the appellees would have fared better had the injunction not been issued is based on pure conjecture, — there is no proof on that point. Neither do we find that the injunction revealed to. the public any facts which the creditors and trading public were not entitled to know and we thus find that no damages after the dissolution of the injunction have been shown.
The temporary injunction was in effect for a period of about five days which included four working days. We have carefully read the case of Citizens’ Pipe Line Company v. Twin City Pipe Line Co., 183 Ark. 1006, 39 S. W. 2d 1017, and the cases cited, but that case is not controlling here. In the Citizens’ Pipe Line case a temporary injunction was made permanent. Such is not the fact in the case before us. As to whether or not the damages arose during the five-day period the temporary injunction was in effect, whether they arose after that time, or whether damages stemmed from the issuance of the injunction and were suffered at a later date, we need not be concerned here. For taking the testimony from the hour the temporary injunction was issued to the date of the entry of the judgment, we find nothing that will sustain an award of $38,600.00 in damages.
There is some fragmentary evidence that during the life of the temporary injunction a prospective customer had made inquiry as to the price of a piece of equipment and that some job work was lost but these losses, for which appellant is liable, do not exceed $600.00.
For the reasons herein stated, the decree of the chancellor is reversed and this cause is remanded with directions to enter a decree against the appellant and in favor of the appellees in the sum of $600.00 and the appellees will recover their costs, both in the trial court and here. | [
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Carleton Harris, Chief Justice.
This is a libel suit. Appellant was the operator and principal stockholder of Trinity Nursing Home in Little Bock. On July 16, 1959, Governor Orval Paubus released to news reporters at a special press conference a statement headed “Press Statement of Governor Paubus.” This statement dealt with irregularities in nursing homes, and improper acts by nursing home proprietors. As far as the charges against appellant are concerned, the report dealt with conditions which an investigation had allegedly shown to exist at Trinity Nursing Home. The Chief Executive’s official interest stemmed from the fact that some welfare recipients were patients in the home. The Governor revealed to the press the results of the investigation that he had caused to be conducted, and he characterized conditions as a “sordid and shocking story of mismanagement and misdeeds.” He advised that he had ordered welfare patients removed from the home, and also stated that Mrs. Brandon, an assistant part-time attorney for the Welfare Department, had been dismissed. A Little Bock evening paper carried the story of the press conference and the report there made, and a Gazette reporter, together with a photographer, went to Trinity to interview Mrs. Brandon. This meeting was apparently arranged by the then attorney for Mrs. Brandon. Appellant talked freely, and took the Gazette representatives through the nursing home. The next day, Friday, July 17th, the Gazette carried a front page story relative to the Governor’s charges, and a denial by Trinity. On June 7, 1960, Mrs. Brandon instituted suit against the Gazette, seeking compensatory damages in the sum of $200,000, and punitive damages in the sum of $300,000. She alleged, inter alia, that the article published was false and libelous; that as a result of the publication she had suffered great embarrassment and humiliation, and had sustained a severe loss of business in connection with the operation of the nursing home; further, that her earning capacity in connection with the home had been diminished. It was further alleged that appellee knew at the time that the publication was false and libelous, or by the exercise of ordinary care, could have so known, but that no precaution was taken to ascertain from appellant, or other reliable source, the truth or falsity of the libelous publication. The Gazette answered, admitting it published the article, but denying other allegations of the complaint. Appellee stated that those parts of the published article which were statements of fact were true, and that the statements unfavorable to appellant were taken from an official report made by the Governor of the state following an official investigation. The answer further asserted that the Gazette, as a publisher of news, was under a duty to publish contents of the report, and did so without malice or any desire to harm the plaintiff.. “The said publication was privileged and gives the plaintiff no basis for an action of libel. The said publication was also privileged as fair comment on a matter of public interest.” After the filing of several motions, amendments, and taking of depositions, the cause proceeded to trial on May 9, 1961, and the jury returned a verdict for appellee. Prom the judgment so entered, appellant brings this appeal. Several grounds for reversal are asserted, but under the view that we take, it is not necessary that each be discussed.
A substantial portion of the contents of both briefs deals with the question of whether the Governor’s statement was absolutely privileged. The issues in this litigation do not require a determination of that point, for the Governor is not a party, and a discussion of that question would, in our opinion, amount to nothing more than dictum. We therefore do not pass upon that matter. Here, we are only concerned with the privilege, if any, afforded the Arkansas Gazette in publishing the Governor ’s report. The trial court did not instruct the jury on absolute privilege; rather, the pertinent instruction was as follows:
“You are instructed that if you find from the evidence in this case that the Governor of the State of Arkansas in his official capacity and in carrying out the duties imposed upon him by law caused to be made an investigation into the operation of certain nursing homes in the State of Arkansas and on or about July 16, 1959, issued a press report based upon said investigation and further find that the defendant’s publication of said press release in its issue of July 17, 1959, was an accurate and impartial account of said press release and was published in good faith and was not published with the intent to harm the plaintiff, then you are told said publication was privileged * * *.”
This was a correct declaration of the law. In Restatement of the Law of Torts, Yol. 3, § 611, p. 293, we find:
“The publication of a report of judicial proceedings, or proceedings of a legislative or administrative body or an executive officer of the United States, a State or Territory thereof, or a municipal corporation or of a body empowered by law to perform a public duty is privileged, although it contains matter which is false and defamatory, if it is
(a) accurate and complete or a fair abridgment of such proceedings, and
(b) not made solely for the purpose of causing harm to the person defamed.”
The fact that the Governor’s report was given to the press, rather than filed with an agency of the state government (where reporters could have copied the contents), is of no moment. It was still an executive report, embracing the findings of a thorough investigation. The purpose of affording a conditional privilege to the publication of the report of an executive officer, is based upon the fact that the general public has an interest in, and a right to be informed of, the official acts of such officers.
There seems to be no question but that the Governor was acting officially. The Governor himself testified that he caused the investigation to be made, after receiving reports of irregularities in the nursing homes. The State Police assisted in the investigation, and a comprehensive report was filed with the Chief Executive. According to the Governor, the report consisted of approximately a dozen volumes, containing photostats and statements; numerous witnesses were interviewed. The press conference was the result of the investigation made. Actually, the fact that the Governor was acting officially was recognized by appellant herself. On July 21, 1959, Mrs. Brandon, as Manager-Director of Trinity, verified a complaint against Governor Faubus seeking to enjoin him from causing welfare patients to be removed from Trinity. Mrs. Brandon stated that she read the complaint, and admitted verifying it. That complaint, inter alia, alleged:
“Plaintiff states that the defendant, Orval E. Fan-bus, acting in his official capacity as Governor of the State of Arkansas, has made public statements of maltreatment of patients, including starvation, serving of spoiled and improper food, unsanitary conditions, negligence of the ill and bedfast and improper use of drugs that may have resulted in the death of patients being cared for in the nursing home operated by the plaintiff which is under the direct supervision of the Department of Welfare, State of Arkansas.”
At any rate, the jury, under the instruction heretofore quoted, apparently found that the Governor was acting officially.
In Tilles v. Pulitzer Publishing Co., 241 Mo. 609, 145 S. W. 1143, the Governor of Missouri ordered the Attorney General to investigate the operation of a race track. The latter, through his assistants, investigated, and made several reports to the Governor that the law was being violated. After the investigation, the Attorney General gave defendant’s correspondent an interview in which he stated, speaking as Attorney General, and in order to inform the public concerning what he considered a matter of public interest, that the owners of the race track were guilty of a felony. Both the Governor and the Attorney General threatened action against such owners. A libel suit was instituted against Pulitzer, as publisher of the St. Louis Post-Dispatch. In holding Por the publisher, the Supreme Court of Missouri said:
“The reason for such threatened action the public was entitled to know, to the end that those who did not desire to be present when wholesale arrests were made, or the militia was called into service, might keep away from the place. The Attorney General in the close of his testimony said that he was speaking officially, and intended that his opinion should be made public, on account of the public interest which was to be subserved. He was, in fact, expressing his opinion as to the condition and legal status of the Delmar Jockey Club and the acts of such club and of its owners.
Under these circumstances, we think that there was a privilege or at least a qualified privilege in the publication of the article containing this opinion of the chief law officer of the state.”
The report of the Gazette appears to have been accurately and fairly made. Governor Paubus testified that he recalled making all statements attributed to him in the Gazette article except one. “I do not recall the statement about Mrs. Brandon being astounded when confronted with the report which we had compiled. This is not to say that it isn’t true or that it did not happen, but I don’t happen to recall that particular one, but I recall the others.” The text of the Governor’s statement was published in the July 17th issue of the Gazette. The front page article is headed, “Paubus Says Probe Uncovers Scandal at Nursing Home.” The subhead to the reader’s right reads, “Shocking Conditions Are Alleged. ’ ’ This column was written by the Gazette reporter who covered the press conference, and it is mentioned that the charges were denied by appellant. To the reader’s left appears a subhead of equal size, “Trinity Denies Charges, Asks Probe by Jury.’'’ This story was written by Mr. Patrick Owens, heretofore referred to in paragraph one, and was based on his visit to the home and interview with Mrs. Brandon. This column sets out in full the denials of Mrs. Brandon and her attorney to each charge made, and in addition, quotes a statement from the Chief Sanitarian of the Little Rock Health Department, “To the best of my knowledge, we’ve had no unusual trouble up there. ’ ’ The article also mentions that Ivan H. Smith, attorney for the "Welfare Department, had praised the services rendered by Mrs. Brandon in handling court actions relating to enforcement of support in bastardy proceedings, and enforcement of orders of support from the Chancery Court. The story by Mr. Owens seems to be completely fair, and to adequately cover Mrs. Brandon’s denials. There is no con tention, nor proof, that the publication was made solely for the purpose of causing harm to Mrs. Brandon.
Appellant cannot prevail in this litigation for yet another reason, i. e., there was consent to the publication of the article sued upon. Mrs. Brandon testified that Mr. Owens was invited to interview her at the home. According to appellant, she “wanted them to come out and look at the home and see it was not true.” The visit was arranged after the evening paper carried the Governor’s press release. It would appear from her testimony, that Mrs. Brandon wanted the Gazette to print her side of the controversy without printing the charges that had been made, but we find it difficult to understand how one’s denials to charges made can be published without also publishing the charges. There was testimony by the publisher of the Gazette that on July 17th, the day of the publication, Mrs. Brandon called to express gratitude and pleasure at the manner in which the Gazette had handled the story. Mr. Owens likewise testified that Mrs. Brandon later discussed with him the manner in which the Gazette had handled the story, and she was pleased. The court instructed the jury:
“If you find that on July 16, 1959, the Arkansas Democrat, a local paper, published a copy of the report released by the Governor of the State of Arkansas on July 16, 1959; that the representatives of the defendant called on the plaintiff and she consented, impliedly, either in person or acting through a duly authorized representative, that the defendant could publish said report made by the Governor of the State of Arkansas upon condition that at the same time it publish her denial of the contents and set forth her side of the issues raised by said report; that the defendant in good faith published her denial of the contents of said report and her version of the issues raised by said report, then the Court instructs you to return a verdict for the defendant. ’ ’
This was a correct statement of the law, and the jury would certainly have been justified in finding that for Mrs. Brandon’s denial to make sense, it was necessary to print the charges, and she therefore impliedly consented to the entire publication.
Judgment affirmed.
Emphasis supplied.
Of course, there is nothing libelous in reporting that one was “astounded” when accused of improper conduct.
Mr. Owens testified there was no request that the Governor’s press release not be printed. | [
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Neill Bohlinger, Associate Justice.
The appellant, George W. liostic, was charged with the crime of false pretense by felony information filed in the Union Circuit Court on September 8, 1960.
The gist of the information charges the appellant with unlawfully, wilfully and feloniously obtaining from Ivon Skinner a sum of money by falsely representing that he, the appellant, was an agent of the Southern Trust Life Insurance Company and had authority to accept applications and collect premiums for said company.
The case was tried on March 21, 1961 and the jury returned a verdict of guilty and the appellant was sentenced to one year in the penitentiary.
It appears from the record before us that the appellant had been the duly licensed agent of the Southern Trust Life Insurance Company and that he had, from time to time, taken applications, collected premiums, and had various transactions with the insurance company as its agent. Under the contract between the appellant and the insurance company, the appellant was entitled to a certain part of the premiums which he collected.
There appears no doubt in the record that the appellant solicited Ivon Skinner for an application for insurance and that upon representations and showings by the appellant, Ivon Skinner signed the application and gave to the appellant $164.52 as the premium on the insurance policy which was to be issued. The appellant issued to Ivon Skinner his receipt and cashed the check which Skinner had given him.
Skinner testified that notwithstanding his application and payment of his premium, he did not receive his policy of insurance. It is the contention of the State that while the appellant had been an agent of the insurance company, his contract of agency had been cancelled and that on July 19, 1960, the company had mailed to appellant a notice of that cancellation. It is apparent from the record that the affairs between the appellant and the insurance company were not in a condition that was satisfactory to either party; appellant, Bostic, maintaining that the company owed him money on insurance applications he had written and the company maintaining that Bostic had failed to remit the amounts with which he was charged. On July 29, 1960 the appellant, through his attorney, paid the insurance company $200.00 and was given a receipt which is as follows:
“It is agreed that upon receipt of this two hundred dollars that the license of George W. Bostic with Southern Trust Life Insurance Company will be immediately reinstated.
The application from Skinner was obtained on August 19, 1960 and the money paid to appellant at that time.
The question is not as to the company owing Bostic money, or Bostic owing the company money, but did Bostic believe that he was a duly authorized agent, authorized to take applications and collect money. Whether or not the proof of the appellant was sufficient to show that Bostic believed he was still the agent of the company, we do not say but there is the written receipt of the company dated July 29, 1960, advising Bostic that his status as agent would be renewed immediately and there is testimony that the company furnished him additional supplies and upon another occasion we find testimony that Bostic turned in applications between the date of the supposed cancellation of the contract and the date of the Skinner application which applications the company received and issued policies.
If the testimony in this case furnished any basis for a belief that the action of the company lulled Bostic into a false sense of security that he was still the agent and had the authority to do what he did, it is a matter which the appellant was entitled to have considered by the jury, and the instruction requested by the appellant should have been given in order that the jury might consider whether or not the company has issued contracts of insurance to other persons on applications sent in by the appellant under like circumstances.
This was an item of defense which the appellant was entitled to have considered by the jury under his requested instructions and failure of the court to so instruct the jury was error. Specifically the court should have given Instruction No. 13 as requested by appellant; and because of the nature of this prosecution, the court should not have stricken the words “beyond a reasonable doubt” from Instruction No. 7 and No. 9.
The cause is accordingly reversed and remanded.
Robinson and Johnson, JJ., would reverse and dismiss. | [
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Jim Johnson, Associate Justice.
This is an appeal from a Chancery Court’s award of a sum of money interpleaded by an intervenor in a chattel mortgage foreclosure action.
In March of 1955, appellee J. M. Evans sold to E. K. Weise and James Westbrook his business known as Saline County Motors. To enable Weise and Westbrook to make this purchase, appellees J. M. Evans and Ivy G. Evans, his wife, permitted Weise and Westbrook to execute a chattel mortgage on the property sold. The mortgage covered “all parts and accessories, all office furniture and fixtures, all accounts receivable and all notes receivable, all other appurtenances now on hand, all used automobiles, all used trucks or rolling stock, all used farm machinery, and new farm machinery.” Attached to and mentioned in the mortgage was a list of some of the property that it-was intended the mortgage should cover. The mortgage also provided “that the mortgagors shall have the right to collect said notes and accounts and sell of the above described property and any hereafter acquired property in the usual retail trade and that any such property hereafter acquired shall also be covered by this mortgage and also notes and accounts receivable or renewals thereof shall also be covered by this mortgage with the right to sell and collect the same as above stated,” (i.e. usual retail trade).
On June 1, 1960, Weise and Westbrook had become heavily indebted to appellant, Universal C. I. T. Credit Corporation. In order to recover this deficit, Weise and Westbrook executed to Universal C. I. T. Credit Corporation an assignment of factory credits due or to become due them from International Harvester Company. This assignment was made without any discussion as to the amount of credits due Weise and Westbrook from International Harvester. At the time the assignment was made, International did not owe Weise and Westbrook the fund in question in this appeal. The assignment included “all credits which are now or may hereafter become due to the undersigned (Weise and Westbrook) from International Harvester Company any of its subsidiaries or affiliates in connection with undersigned’s acquisition of new cars, parts and accessories . . .”
On August 10, 1960, Weise and Westbrook sent appellee J. M. Evans the key to the business building along with a letter telling him that all his mortgaged parts, accessories, office equipment and fixtures were in the building.
On August 12, 1960, appellees, J. M. Evans and Ivy G. Evans filed a complaint for foreclosure in the Chancery Court of Saline County, Arkansas, seeking to foreclose on the mortgage executed to them by Weise and Westbrook in 1955 and have a receiver appointed to inventory and preserve the assets covered by the mortgage.
On or about August 17, 1960, International Harvester Company, after negotiating with Weise and West- brook (mortgagors), bought from them certain automobile and truck parts for which it agreed to pay the sunn of $4,789.20. The money from this sale is the money involved in this appeal.
On August 18, 1960, a hearing was held in the Saline-County Chancery Court at which time a receiver was appointed to inventory and take charge of and preserve the assets covered by appellees’ mortgage.
On August 22, 1960, the receiver made demand upon International Harvester Company for payment of the .$4,789.20 owing for the parts it had bought.
On September 23, 1960, International Harvester Company filed its intervention and Bill of Interpleader in the Saline Chancery Court paying into the registry .of the court the $4,789.20 due on the parts. Both appellant and appellees filed an Answer to the Intervention claiming the money in question — appellees ’ by reason of their mortgage, and appellant’s by reason of its assignment.
On November 21, 1960, a hearing was held in the Saline Chancery Court on the Intervention and Bill of Interpleader at which time the court found that the money owed by International Harvester and deposited into the registry of the court should be paid to appellees (or the receiver) as the same was covered by their mortgage and not covered by appellant’s assignment.
From this final order, Universal C. I. T. has appealed.
For reversal, three points are urged. Appellant’s first point contends that the mortgage from Weise and Westbrook to appellees violated the Bulk Sales Act (Ark. Stats. § 68-1501, 1957 Repl.).
Appellant did not offer to prove that the Bulk Sales Act was not complied with. Since this is a case of first impression in this State relative to the burden of proof under the Bulk Sales Act, we agree with and adopt as our own the general rule as set out in 37 C. J. S. Fraudulent Conveyances § 498, as follows:
‘ ‘ The burden of proof is on one who seeks to" set aside a sale of merchandise as in violation of the bulk sales statute to bring himself and the transaction strictly within its provisions. Thus, he must show that at the time of the transfer he was an existing creditor and entitled to a compliance with the provisions of the statute. ’ ’ (Also see Singletary v. Morris Candy Co., 129 Ky. 556, 112 S. W. 637, and Whittington v. Yazoo Delta Mortgage Co., 148 Miss. 861, 114 So. 752.)
Appellant’s second and third points urged for reversal are so interwoven they will be discussed together. They contend that: The Chattel Mortgage in favor of appellees does not extend to factory credits; and, that the mortgage is a fluctuating mortgage on a stock of goods and as such it is void as to appellant.
“Fluctuating” or “open-end” mortgages have long been held to be valid as between the parties. Lund v. Fletcher, 39 Ark. 325 (1882); Soule v. First National Bank of Ft. Smith, 202 Ark. 326, 150 S. W. 2d 204. Of course the thing that makes them void as to third parties is the authority given to the mortgagor to sell the property, Coffman v. Citizens’ Loan and Investment Co., 172 Ark. 889, 290 S. W. 961. This appears to be a logical rule. It permits one wishing to buy mortgaged property in the tbsual course of trade to look at the mortgage and see that the mortgagor has the right to sell it under the mortgage. Such a third party as this is certainly entitled to such a protection. But this is not the situation of the case at bar. Here we have a mortgage given on the property with the mortgagor having the right to sell this property in the usual retail trade. If International had bought in the usual retail trade and if appellant had received its assignment in the usual retail trade, then appellant would be entitled to the protection intended by the rule against fluctuating mortgages. However, Universal C. I. T. Credit Corporation is not in this position.
As we view the matter, Universal C. I. T. took this assignment, which came into being through a wholesale transaction, to secure a pre-existing account in the course of its business of lending money and not in the course of retail trade of Saline County Motors. This being true, we have no choice but to agree with the learned Chancellor that the funds here in question were covered by appellees ’ mortgage and were properly awarded to him.
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Sam Robinson, Associate Justice.
In May, 1923, the will of Edward L. Harper, Jr., a resident of Louisiana, was admitted to probate in Caddo Parish of that State. On the 6th day of October, 1959, a petition to probate the will was filed in the probate court of Ouachita County, Arkansas. The appellants herein, heirs at law of the testator, filed a response and asked that the petition to probate the will be denied. The probate court granted the petition and ordered the will admitted to probate-The testator’s heirs at law have appealed.
The issue here is whether our statute limiting the time in which a will may be admitted to probate applies to a will of a non-resident that has been admitted to probate in a foreign jurisdiction. Ark. Stat. § 62-2121 provides: “Probate of will of non-resident. — "When a will of a non-resident of this state, relative to property within this state, has been admitted to probate in another appropriate jurisdiction, an authenticated copy thereof, accompanied by an authenticated copy of the order admitting the will to probate, may be filed for probate in this state.” This is Section 60 of Act 140 of the Acts of the General Assembly of Arkansas for the year 1949.
Ark. Stat. § 62-2125, which is Section 64 of the Probate Code, Act 140 of 1949, provides: “Time limit for probate and administration. — No will shall be admitted to probate and no administration shall be granted unless application is made to the court for the same within five years from the death of the decedent; this section shall not affect the availability of appropriate equitable relief against a person who has fraudulently concealed or participated in the concealment of a will.” Thus it will be observed that the same Act providing for the probate of foreign wills provides a limitation of five years following the death of the testator, in which a will may be admitted to probate. A foreign will is not excepted in the Act from the limitation, and if this Court is to say that the Act limiting the time in which a will may be admitted to probate does not apply to a foreign will that has been probated elsewhere, we would have to read into the Act something that is not there.
It appears that undoubtedly one of the purposes of the five year limitation is to make secure the title to property. In the comment under Section 83 of the Probate Code (Simes, p. 106) it is said: “The five-year limitation laid down in this section is designed to take care of situations where there has been no probate or grant of administration during the period of five years . . . By the operation of these sections the heirs may deal with the property as owners after the five-year period.”
Mr. Simes, who was in charge of the research and one of the drafters of the Model Probate Code, in an address before the Louisiana Bar Association in 1953, said: “The last feature of the Model Probate Code which I wish to discuss is a limitation on the time within which probate of a will or administration is possible. . . . In common law jurisdictions, it is felt that we need provisions like this in order to make secure the title of the heir or other successor to the estate of the decedent . . .” (La. B. J., Yol. I, No. 3, p. 60)
At a legal institute held at the University of Arkansas Law School in 1957 (12 Ark. L. Rev. 38) Mr. Adrian Williamson, who had served on the committee which drafted the Arkansas Probate Code, said that he thought the words of the Act limiting the time in which a will could be admitted to probate are mandatory because it involves settling title to real property. And in reply to a question of whether the section on limitations applies to a foreign will, Mr. Williamson said (p. 50): “There is no exception mentioned, and I think it obviously does. A foreign will is not a will in Arkansas until it is probated.”
We have held that the statute of limitation applies to a will of a resident of the State. Horn v. Horn, 226 Ark. 27, 287 S. W. 2d 586. But the question of whether it applies to the will of a non-resident has not been before this Court. Other courts, however, have dealt with the problem. In Carpenter v. Denoon, 29 Ohio St. 379 (1876), the Ohio court held that a statute of limitation did not apply to foreign wills. On this point the court, without elaboration, merely said: ' ‘ The will was offered for and admitted to probate in the court having jurisdiction in the matter within three years from the death of the testator.”
In Oklahoma City University v. Baughman, 148 Kan. 510, 83 P. 2d 681, 119 A. L. R. 1255, the Kansas court followed the decision of the Ohio court in the Carpenter case, pointing out that the Kansas code of probate procedure was taken from Ohio.
In the Hawaii case of In re Estate of Newell, 10 Hawaii 80, the court followed the decision in the Ohio case.
On the other hand, the Kentucky court, in Foster v. Jordan, 113 S. W. 490, held that a similar statute of limitation did apply to foreign wills. The court distinguished Morrison v. Fletcher, 119 Ky. 488, 84 S. W. 548, and pointed out that the Morrison case should not be construed as holding that the Kentucky statute of limitation for probating wills did not apply to foreign wills, and later, in the case of Hoagland v. Fish, 238 S. W. 2d 133 (1951), the Kentucky court again held that “The right to probate a will, whether it be of a resident or nonresident of the state, is barred by the ten year statute of limitations when it is interposed. ’’ To the same effect are the Texas case of Nelson v. Bridge, 86 S. W. 7, and the Missouri case of Wyers v. Arnold, 147 S. W. 2d 644. We think the better rule is the one adopted by the states of Kentucky, Texas and Missouri, and we feel that it was the intention of the General Assembly that Ark. Stat. § 62-2125 should apply to the wills of nonresidents as well as to the wills of residents. The judgment is therefore reversed with instructions to deny the petition and to admit the will to probate. | [
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Hart, J.
W. A. Hodges instituted two separate actions against J. Collison to recover on two promissory notes executed by E. M. Price and J. Collison. The two suits were consolidated before the justice of the peace and judgment was rendered for the plaintiff for the amount due on the notes. The defendant appealed to the circuit court and the ease was there tried anew. There the fifty dollar note was introduced in evidence and is as follows:
“$50.00. January 17, 1908.
“.Sixty days after date I promise to pay to the order of W. A. Hodges, fifty dollars at Bald Knob, Arkansas, with 10% interest per annum. Value received.
“R. M. Price,
“J. Collison.”
The following- endorsements appear on the back of the note: “Credit by cash 1/21 /09, $5.00; credit by cash 1/31/1910, $5.00; credit by cash, 1/1/1911, $5.00.”
The one hundred dollar note was also introduced in evidence as. is as follows :
“$100.00. August 24, 1908.
January 1,1909, after date we promise to pay to the order of W. A. Hodges, one hundred dollars at Bald Knob, Ark., with 10% interest per annum. Value received.
‘ ‘ Rufus M. Price. ’ ’
This note is endorsed on the back, “ J. Collison,” .and the following credits appear: “Credit by cash, 1/30/09, $3.50; credit by cash, 1/31/10, $5.00; credit by cash, 1/1/11, $15.00.” ' . '
The plaintiff Hodges testified that R. M. Price made the payments endorsed on the back of each note and stated that the name of J. 'Collison was signed to the fifty dollar note and was endorsed on the back of the one hundred dollar note at the time Price delivered the notes to him. At the conclusion of the evidence the court instructed the jury to return a verdict for the defendant and judgment was rendered on that verdict. The plaintiff has appealed.
Section 1 of “An Act to regulate the practice incident to appeals to the 'Supreme Court in certain cases,” reads as follows: “In all cases, except indictments charging a felony, where the parties to an action agree in writing upon the correctness of a bill of exceptions by endorsement thereon, signed by one or more counsel of record of the respective parties, it shall be the duty of the clerk of the court in which the case is pending, to at once file such agreed bill of exceptions and the same shall become a part of the record as fully, completely and effectively as though approved, signed and ordered filed by order of the court or judge trying the cause. See General Acts 1911, page 192.
Pursuant to this act counsel for the plaintiff and defendant executed the following agreement: “le agree that this is a correct and true bill of exceptions of the case of W. A. Hodges, plaintiff, v. J. Collison, defendant, tried in the White Circuit Court. This May 2,1914. John D. DeBois, Attorney for Plaintiff. Rachels & Miller, Attorneys for Defendant.”
This agreement was endorsed upon the bill of exceptions and the bill of exceptions filed within the time fixed by the court for filing the same. It is now contended by counsel for the defendant that the agreement was not in compliance with the section of the statute above quoted.
A comparison of the agreement endorsed upon the ¡bill of exceptions with the language of section 1 of the act above quoted will show that in all essential respects it was in compliance with the act. The act provides, in effect, that where counsel of record of the respective parties agree in writing upon the correctness of a bill of exceptions 'by endorsement thereon the same shall become a part of the record to the same extent as if signed and approved by the circuit judge. The agreement in question was endorsed upon the bill of exceptions and it is expressly agreed that it is a true and correct bill of exceptions.
The testimony shows that Price and J. Collison signed the fifty dollar note as makers; and also that J. Collison endorsed the one hundred dollar note on the back thereof before it had been delivered to the plaintiff Hodges. He was, therefore,'a maker of the note. See Nathan v. Sloan, 34 Ark. 524; Lake v. Little Rock Trust Co., 77 Ark. 53; Kissire v. Plunkett-Jarrell Grocer Co., 103 Ark. 473, and cases cited.
It follows that the judgment will be reversed; and inasmuch as the facts have been fully developed, judgment will be entered here for the amount of principal and interest on the two notes. That is to say, on the $50 note there is now due, including principal and interest, the sum of $70.00 ; and on the $100 note the sum of $140.47. Judgment will, therefore, he entered here for the aggregate amount due on the two notes, amounting to $210.47. | [
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McCulloch, C. J.
This suit involves the title to a tract of land in Hot ‘Spring County, Arkansas, and appellant claims the land by inheritance from his father, George W. Landreth, who died, in the year 1896, while a resident of Hot Spring County. The land in controversy was the homestead of George W. Landreth, and he left no other children. It was sold in the year 1901, under an order of the probate court of Hot Spring County, upon petition of appellant’s guardian, appointed in the State of Missouri, and was purchased by appellee at the sale. The validity of the sale is the point-at issue in the case.
Appellant’s father and mother separated while he was an infant, or perhaps a few months before his birth, and they were divorced by a decree of the chancery court of Hot Spring County a few years later. Appellant’s mother removed to another county in the State, and he resided with her until her death, when he was taken by one of his maternal grand-parents to the State of Missouri, and-has continued to reside there throughout the period of his minority. Appellant’s father continued to reside in Hot Spring County and occupied the land in controversy as his homestead until Ms death in 1896, and an administrator was appointed -there to wind up his estate. There has been no guardianship of appellant in tMs -State, but the public administrator in Pike County, Missouri, where appellant resided with his grand-parent, was ordered to take charge of the estate as guardian. The statutes of Missouri provide that “The public administrator shall be ex-officio public guardian and shall have charge of all estates of minors that may, by the order of the probate court be placed in his charge, and in such oases he shall be known and designated as public guardian.” 'Section 464, Revised Statutes of Missouri, 1909. In the year 1901, the Missouri guardian made application to the probate court of Hot Spring County, pursuant to the statutes of tMs State authorizing sale of infant’s land by a nonresident guardian, for an order of sale of the tract of land in controversy, and the probate court made such .an order .and the land was sold to appellee; the sale being subsequently reported to and confirmed by the probate court. TMs inquiry, therefore, constitutes a collateral attack upon the validity of the sale.
Our statute on the subject reads as follows: “When a nonresident minor owns. real estate in this State, and had a guardian in the State or Territory in which he resides, the court of probate in the proper county may authorize such guardian, either in person or by his agent acting under power of attorney, to sell such real estate and receive the proceeds of such sale. Provided, before any order .shall be made for the payment of money to a nonresident guardian, or .for the sale of the property of his ward by him, he shall produce satisfactory evidence to the court that he has given bond and security as- guardian, in the State in which he and his ward reside, in at least double the amount of the sum to be paid to him, or in double the amount of the appraised value of the property to be sold; and the proof shall consist of a copy of the record, setting forth his appointment .as guardian, and also a copy of his bond executed as such, duly authenticated.” Section 3813, Kirby’s Digest.
The first question presented is whether or not the probate court of Missouri had jurisdiction to appoint a guardian for appellant. The aJct of April 8,189.1 (Kirby’s Digest, 3793), provides that “all probate sales of real estate, made pursuant to proceedings not in substantial compliance with statutory provisions- .shall be voidable.” It follows, as the necessary effect of that statute, that if the guardian in the State of Missouri was not legally appointed, or at least if the court there had no jurisdiction to appoint a guardian, the proceedings here for the sale of the land would -not be in isubstantial compliance with .statutory provision and would be void. Further discussion -of the effect of that statute will be made a little later in this opinion, in deciding another phase of the case with respect to the validity of the sale.
This court has announced and adhered to the rule which prevailed at common law that the last domicile of the deceased father of .an infant constituted his legal domicile and so remained, and that the domicile of the infant can not be changed or removed by his own act until he reaches his majority.
The earliest case on that subject is Grimmett v. Witherington, 16 Ark. 377. That case involved the eon flict between, a guardian .appointed here and one appointed iñ the State of Texas concerning the custody of property of the minor in this State, and the court in its decision upheld the authority of the domestic guardian, bolding that the domicile of the father being-in this State, the legal domicile of the infant followed it. That case was followed, and the rule re-announced in Young v. Hiner, 72 Ark. 299. In the opinion in that case, there is a suggestion of exceptions to the rule, and we find upon examination of the authorities, that there are many exceptions recognized by the courts. The Supreme Court of California, in the case of In re Vance, 92 Cal. 195, decided that where the father abandoned his child under the age of fourteen years he could no longer claim the custody, and that the domicile of the child might be changed by the act o.f another person standing in loco parentis. The Supreme Court of the United States, in Lamar, Executor v. Micou, Administratrix, 114 U. S. 218, laid down the- rule that an infant having a domicile in one State, who after the death of both parents takes up his residence at the home of a grand-parent and next of kin in another State, acquires a legal domicile there. This subject is fully discussed by Mr. Rodgers, in his work on Domestic Relations, § 656, et seq., where the exceptions to the general rule are mentioned. There are, too, authorities to the effect that although the legal domicile be elsewhere, a residence in fact is sufficient to confer jurisdiction upon probate courts of such de facto residence of a minor to appoint a guardian. Tiffany on Domestic Relations, § 159. •
There is not involved in this case any question of conflict of authority ¡between a domestic guardian .and one appointed in ia foreign jurisdiction, and the question is solely whether the Missouri court had jurisdiction to appoint a guardian so that the courts of this (State .might in consequence thereof 'authorize a .sale of land here to be made bjr such guardian. The judgment of the Missouri court in appointing the guardian there is at- least presumptively decisive .of the question of .jurisdiction, and we think, under the authorities cited, the court had,' upon the facts shown in this case with respect to the legal domicile and residence, jurisdiction to make the appointment. There was no guardian in this State and the probate court here possessed the power to authorize the Missouri guardian to make the sale of the land in this State.
The only other point of attack made upon the sale, which we deem necessary to discuss, is that the order of sale was made without requiring the production of a copy of the bond of the guardian as required by the statute: It is undisputed that the guardian had given bond in the State where the appointment was made, and the record in the probate court shows that proof was made of that fact by certificate of the judge of the Missouri court. The statute of this State, however, provides ¡that before any order of sale shall be made upon petition of a nonresident guardian, “he shall produce satisfactory evidence to the court that he has given bond and security as guardian, etc.,” and that the proof shall consist of “a copy of his bond executed as such, duly authenticated. ’ ’ A certificate of the judge of the foreign court is certainly not a literal compliance with the statute, but whether or not it is a substantial compliance calls for discussion. The evidence adduced by appelant shows that so far as the records of the probate court reveal the proof that was made, when the order of sale wás applied for, there was no copy of the bond presented. None is found on the files now, and the evidence justifies the conclusion, we think, that no copy was filed.
It is insisted that notwithstanding the act of 1891, providing that probate .sales shall be voidable unless made in substantial compliance with the statute, there is a conclusive presumption of the regularity of sales so far as relates to matters which preceded the judgment of the court ordering the, sale, and that such judgment is conclusive of those matters. ' Many decisions of -this court are 'cited which sustain that contention, but they all antedate the act of April 8,1891, which wrought an important change in the.law on that subject. The Legislature intended to change that rule pursuant to the admonition of this court in the opinion of Judge Sandels in the case of Apel v. Kelsey, 52 Ark. 341. If we were to hold that there is a conclusive presumption attending the judgment of the probate court, little effect would be given to the act of 1891. In order to give it any effect at all, we are forced to the conclusion that the Legislature meant to destroy the incontrovertible verity of the judgment of the court for the purpose of showing that the proceedings were not in fact in substantial compliance with the statutory provisions with respect to probate sales. That much is decided in the recent case of Mobbs v. Millard, 106 Ark. 563, where we held that notwithstanding the judgment of confirmation of a probate sale, it should be declared void on collateral attack where it is shown that the land was sold for less than the appraised value. Now, if we were going to give a conclusive presumption to the judgment of the probate court, we ought to have held in that case that the judgment of confirmation was conclusive of the fact that the land was sold for three-fourths of its appraised value. But we held to the contrary, and it necessarily follows from that decision that we construe the statute to allow the presumption arising from the judgment of the probate court, concerning compliance with statutory provisions, to be overcome by proof that those provisions were not in fact substantially complied with, and that upon such proof being made it defeats the validity of the sale. We are of the opinion, therefore, giving -the proper effect to the act of 1891, the sale should be set aside if it is found that the statutory provisions were not .substantially complied with.
The further question then arises as to whether or not failure to produce evidence in the form provided by the statute, with respect to the bond given in the foreign jurisdiction, is a substantial departure from the statutory provisions so as to defeat the sale. The statute provides that, an order of sale .shall not be made unless satisfactory evidence be produced that the guar dian has given bond in the court where he was appointed, and we are clearly of the opinion that unless such bond has in fact been given the order of the .sale will be void. But the form of the proof of the execution of that bond is quite another thing, and it does not follow that a departure from the method of proof amounts to a substantial departure from the statutory provisions. It is error for the probate court to make an order of sale without proof of the execution of th>e bond in the form prescribed by the statute. But, after all, this provision concerning the kind of proof to be introduced relates to form, and not to substance, and it ought nót, we think,Ho be regarded as substantially within the meaning of the act of 1891. In Harper v. Smith, 89 Ark. 284, we held the method of giving notice of sale was a mere irregularity and not a substantial departure' from the requirements of the statute. A guardian’s sale for less than three-fourths of the appraised value of the land, is undoubtedly a substantial departure from the provisions of the statute, .and we so held in Mobbs v. Millard, supra. Our conclusion is that the variance in the form of proof adduced before the probate court to obtain the order of sale was not a substantial departure from the statutory provision and does not void the sale ordered by the court and subsequently confirmed.
This action originated in the circuit court of Hot Spring County and was, on motion of appellee, transferred to equity. It is insisted that the transfer was improper because the questions involved were those to be decided by 'a law court, and the court erred in ordering the transfer. The material facts are, however, undisputed, and since the decision of the chancellor is correct, and could not have been otherwise in a court of law, there was no prejudice in transferring the cause.
Decree affirmed. | [
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Wood, J.,
(after stating the facts). The court correctly found that the original petition upon which ordinances 301 and 304 were based “was insufficient because it did not contain any description of the boundaries of the proposed district and because it could not be ascertained therefrom what territory was .included in the proposed district.”
In Kraft v. Smothers, 103 Ark. 269, 272, we said: “The foundation of the improvement was the petition of the owners of real property situated in the proposed district. Under the statute, the extent and character of the improvement as expressed in the .ordinance must substantially comply with the terms of the petition upon which it is based.”
And in the later case of Smith v. Improvement Dist. No. 14, 108 Ark. 141, 144, we said: “Our statutes require, as a prerequisite to the exercise of the authority conferred upon the city council, that a petition be first filed designating the boundaries of the district so that it may be easily distinguished. This is for the benefit of the property owners. * * '* A special limited jurisdiction is conferred upon the city council tó lay off the district as designated by the property owners in the first petition, and the council must conform strictly to the authority conferred upon it.”
In Board of Imp. Dist. No. 60 v. Cotter, 71 Ark. 556-61, we held that “the filing of the required petition signed by ten resident property owners was mandatory and jurisdictional.” See also Whipple v. Tucksworth, 81 Ark. 403; Boles v. Kelly, 90 Ark. 34.
The court therefore erred in holding that Ordinance No. 301 “is in due form and was legally passed.” There was no petition signed by ten property owners in the proposed improvement district, containing such a definite description of the property as to enable the city council to designate the boundaries of the local improvement district proposed so that it could be easily distinguished, as required by section 5665 of Kirby’s Digest. The petition asked that the “public square and that part of Center Street, Mountain Street, Block and East streets known as the Public Square and adjacent thereto” be included in an improvement district This was too uncertain and indefinite in the way of description to be “foundation” for an improvement district.
There was no initial petition, such as the statute contemplates, and which is jurisdictional for the creation of an improvement district, and ordinances 301 and 304 and the proceedings thereunder were, therefore, void, unless the same were cured by the act of March 6, 1913.
The trial court was correct in declaring that the legal effect of the act “was to cure all omissions prior to the passage of the act which might have been dispensed with by legislative act,” for this is a well established rule. Cupp v. Welch, 50 Ark. 294; Sidway v. Lawson, 58 Ark. 117; Lanzer v. Butt, 84 Ark. 335. Although the filing of the petition of the ten property owners was a prerequisite to the formation of the improvement district, as held in Board of Improvement v. Cotter, supra, yet this mandatory and jurisdictional requirement was prescribed, not by the Constitution, but by the act of the Legislature. The Legislature could have dispensed with this initial petition of ten resident owners in the first instance. There is nothing in the Constitution to inhibit the Legislature from-providing for the creation of local improvements in cities and towns without such petition. Therefore, it was within the power of the Legislature to make valid any ordinances that would otherwise be void because of a failure to file the initiatory petition of ten in compliance with the statute. Kirby’s Digest, § § 5665-6. And if Ordinance 304 was void when passed only because it was not based upon the petition of ten resident property owners, then the act of March 6, 1913, by curing that ordinance, validated the improvement district. But the record shows that the petition of a purported majority in valué of the owners of real property in the district asking that the improvement be made contains the same vague and defective description as to the initiatory petition of ten. The petition of the purported majority prays that the improvement provided for by Ordinance 301 be made. But Ordinance 301 was void because it was based upon tbe insufficient petition of ten, and also because tbe description contained in tbe ordinance itself was fatally defective. Ordinance No. 304, of February 6, 1913, expressly declared that Ordinance No. 301 “erroneously described parts, lots and blocks of real estate,” and that said Ordinance 301 and tbe board of improvement were null and void. Ordinance No. 304 then established the alleged improvement district and correctly described it by designating tbe boundaries thereof. But neither before nor since tbe passage of this ordinance (304) has there been presented to tbe city council of tbe city, of Fayetteville a petition signed by a majority of tbe owners, in value, of tbe real property in tbe proposed district designated in Ordinance No. 304, praying for tbe improvement to be made in tbe proposed district as described in that ordinance. This was a constitutional,' and therefore indispensable, requirement for tbe validity of tbe improvement provided for by Ordinance 304.
Local improvements in cities and towns must be based upon the consent of a majority in value of tbe owners of real property in tbe improvement district proposed. Art. 19, § 27, 'Constitution of Arkansas. This fundamental prerequisite can not be dispensed with in tbe first instance, or cured thereafter. Crane v. Siloam Springs, 67 Ark. 30; Craig v. Russellville Water Works Imp. Dist., 84 Ark. 390. Tbe failure to obtain tbe consent of a majority in value of owners of real property in tbe improvement district designated in Ordinance 304 to tbe proposed improvement rendered that ordinance and all the proceedings thereunder void, and tbe appellants under tbe evidence in this record were not estopped from setting up tbe invalidity of tbe improvement district for tbe above reason. Imp. Dist. v. St. Louis S. W. Ry Co., 99 Ark. 515, and authorities cited; Craig v. Russellville Water Works Imp. Dist., 84 Ark. 390. See also, Watkins v. Griffith, 59 Ark. 360. See, also, Lewis v. Rieff, 114 Ark. 366, and Harnwell v. White, 115 Ark. 88, as to powers of improvement districts.
The decree of the chancery court is therefore erroneous, and it is reversed and the cause is remanded with directions to grant appellants the relief they ask. | [
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McCulloch, C. J.
The defendant (appellant) is a foreign corporation and the plaintiff instituted this action against it before a justice of the peace in Crawford County, Arkansas, to recover the amount of an alleged debt for commissions on the sale of pumps which were manufactured and placed on sale by the defendant. An order of general attachment was issued at the commencement of the action and levied on certain personal property of the defendant found in Crawford County, .and a warning order was published. Judgment by default was rendered and the property was ordered to be sold to satisfy the judgment. The defendant appeared later by attorney .and took an appeal to the circuit court. A trial in the circuit court resulted in a verdict in favor of the plaintiff and an appeal 'has been prosecuted to this court.
Defendant filed a motion for a continuance, and the action of the court in overruling the motion is urged here ias one of the grounds for reversal; but as the motion does not appear in the bill .of exceptions, that ruling of the court is not subject to review.
The principal ground urged for reversal is that the record fails to show that there was an affidavit for warning order, but the appearance of the defendant waived that defect in the proceeding and it is too late now to complain that the warning order was issued without an affidavit having been filed. Taking an appeal to the circuit 'court,- and the prosecution of the appeal in that court, operated as a general appearance, and such an appearance waived the want of process or any defect therein.
The case was heard by the court sitting as a jury, and the only testimony adduced was that of the plaintiff himself. He testified that he commenced selling pumps for the defendant pursuant to an agreement with one Trusty, of Fort Smith, who .daimed to be the general agent or State agent of the defendant. His testimony further shows that he sold a certain number of pumps, which would entitle him to the amount of commission he recovered under the-court’s judgment.
In course of the 'examination of the plaintiff, a letter was introduced in evidence, directed to him and purporting to be signed by the defendant. This letter is sufficient to establish a contract of the defendant with the plaintiff whereby the latter was to sell pumps in this State for a stipulated 'commission. There was a general objection to the introduction of the letter on the ground that it was “irrelevant, incompetent and immaterial and injurious to the rights of the defendant herein. ’ ’ The objection made here is that the letter was introduced without sufficient proof of its execution, but we are of the opinion that that objection comes too late. A general objection to the admission of evidence reaches only to its relevancy and competency, and not to the sufficiency of •the foundation laid for its introduction. Vaughan v. State, 58 Ark. 353; Railway Company v. Murphy, 60 Ark. 333; Railway Company v. Sweet, 60 Ark. 550. The specific objection made here should have been made to 'the court below in order for it to avail anything. If the objection had been made there, the plaintiff would have had an opportunity to lay the proper foundation by first proving the execution of the letter. There is no hint in the record that any question was made ais to the authenticity of the letter. Therefore it would operate unjustly to the prejudice of plaintiff to permit that objection to be made now for the first time.
Judgment affirmed. | [
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Hart, J.,
(after stating the facts). It is'earnestly insisted by counsel for the defendant railway company that a carrier is not liable for exemplary or punitive damages for a wanton and malicious assault upon a passenger by a servant acting within the scope of his authority which it has in no way antecedently- authorized or subsequently ratified. There is a division of authorities on this question and counsel have cited a number of authorities to sustain their position, but we do not deem it necessary to discuss or review them for the reason that we have already decided adversely to their contention. This court has adopted what is usually called the rule of general liability, which has been defined as follows: “A corporation may be held liable to exemplary or punitive damages for such acts done by its agents or servants acting within the scope of their employment as would if done by an individual acting for himself, render him liable for such damages. See case note to 48 L. R. A. (N. S.) page 38.
In the case of Little Rock Railway & Electric Co. v. Dobbins, 78 Ark. 553, the court held: “A corporation, as distinguished from an individual, is liable in punitive damages for the malicious acts of its agents, done within the scope of their employment, although such acts were not ratified by it.”
In that case the allegations and proof on the part of the plaintiff were that a street car conductor maliciously and without provocation subjected one of defendant’s passengers to humiliating insults and wrongfully caused him to be arrested and removed from the car in which he was riding.
In the case of St. Louis, I. M. & S. Ry. Co. v. Dowgiallo, 82 Ark. 289, this court held: “A railroad company is liable for an assault upon a passenger committed by a brakeman having duties to perform with reference to the comfort and safety, of passengers, even though in making such assault, the brakeman departed from his line of duty. ’ ’
In that case, according to the testimony of the plaintiff, the brakeman on the train came into the car and cursed him and beat him over the head with a lantern. No provocation was given for the assault.
In the case of St. Louis, I. M. & S. Ry. Co. v Robertson, 103 Ark. 361, one Clint Euff boarded a freight train which did not carry passengers and the conductor, in attempting to eject him from the train, shoved him from the train into a lake where he was drowned. The testimony on the part of appellee in that case tended to show that the conductor had a gun and that he acted in a malicious and wanton manner in ejecting Ruff from the train. A recovery for punitive damages in the sum of $2,000 was sustained.
It may, therefore, be taken as settled law in this State that punitive damages may be awarded against a railway corporation for the wanton and malicious torts of its servants, although the corporation, aside from the conduct of its servants, may be entirely blameless. The reason for adopting the rule was given in the cases above cited and the authorities on both sides of the question were there thoroughly discussed. Therefore no useful-purpose could be served by again discussing the reasons for the rule.
Counsel for the defendant assigns as error the action of the court in giving the following’ instruction: £ 1 Compensatory damages are such sums as may be awarded as compensation for such physical pain and mental anguish as plaintiff may have sustained by reason -of the injury, and for loss of time or diminished earning capacity; and, where the injury appears to be of a permanent, continuing character, for such pain and suffering as may be endured by reason thereof in the future.”
The error complained of in this instruction is that the court submitted to the jury the question of the permanent injury of the plaintiff when there was no testimony that her injuries were permanent.
In the same connection, however, the court gave the following instruction: “If you further find from a preponderance of the -evidence that she suffered physical pain and anguish (by reason of is-uch injury, and that she was deprived o'f the ability to work and earn money for a period of time, you should award her such sums as the evidence shows would be a fair and reasonable compensation for such physical and mental pain and diminished earning capacity.”
According to the record the appellee was shot by the brakeman on the 22d day of December, 1913. Her arm was broken by the shot and she was confined to her bed helpless for three weeks and was confined to her room for about two and one-half months -after the shooting. The case was tried on the 27th -day of April, 1914, and at that time the plaintiff was not able to use her arm to any extent .and still suffered pain from it. According to her testimony she .could not raise her arm naturally and any motion of the arm hurt her. Under these circumstances the court wtas warranted in. submitting to the jury the question as to how much she would be entitled to recover by reason of pain and suffering endured and to be endured in the future. It will be noted that in the part of the instruction complained of the court used the language, “of a permanent, continuing character.” We do not think, when the instruction is construed as a whole, that it meant to tell the jury that it might find for the plaintiff for a permanent injury but only for such time as in the judgment of the jury, from the evidence, the plaintiff would suffer pain in the future. This is shown by the other instruction on the same subject which we have set out above.
If counsel for the defendant thought the instruction susceptible of the construction now placed upon it they should have made a specific objection to the instruction and doubtless the court would have changed the language so as to conform to that view. Not having made a specific objection, counsel for defendant are not now in an attitude to complain of the action of the court in giving the instruction.
Counsel for the defendant also insists that the court erred in refusing to permit them to show when the brakeman was discharged by the railway company after >the shooting. There was no error in this. The retention iof a servant in one’s employment after knowledge that his tortious conduct on the occasion in controversy was ¡wilful .and malicious would tend to prove ratification. ¡But, as we have already seen, in this State, it is not necessary to prove that the railway company authorized the .malicious act of the servant or ratified it, and on that ■account the testimony is immaterial.
It is also insisted by counsel for the defendant that $3,000 for compensatory damages was excessive. We do not agree with them in that contention. The plaintiff was suddenly and unexpectedly shot by the brakeman of the defendant on the 22d day of December, 1913, her arm was broken and she has suffered great pain therefrom. 'She was entirely helpless so that she could not move for three weeks, and was confined to her home two months and a half. At the time of the trial on the 27th of April, 1914, she was still suffering and said she had suffered from the time she was shot. She was unable to do any work, and could not raise her arm naturally at the time of the trial, and said that she could not oven sweep with her injured arm. Prior to the time, she was shot she had been earning -ten to fifteen dollars a week sewing and dressing hair, but has been unable to follow her avocation since the shooting. Under these circumstances we can not say that the verdict for compensatory damages was excessive.
The jury also returnfed a verdict for $2,000 punitive damages, and under all the circumstances detailed, we do not think the amount was excessive. The same amount was allowed in the case of St. Louis, I. M. & S. Ry. Co. v. Robertson, supra. In that case the plaintiff was endeavoring to ride upon a freight train which did not carry passengers, and it was the duty of the conductor to eject him, but he did so in a wanton and malicious manner which resulted in the death of the person ejected. It is now contended by counsel for the defendant that in that case the conductor was acting directly in the line of his authority, and for that reason the amount recovered was held not excessive. We do not see any difference in principle in the two cases. Here it was the duty of the brakeman to look after the comfort and safety of the passengers and instead of doing this he wantonly and maliciously drew his pistol and shot the plaintiff. It is true that illicit relations had existed between the plaintiff and the brakeman, but this did not constitute any defense for shooting her. She had the right to the same protection at the hands of the railway company as any other passenger in the coach and the company, under the rule we have announced, is liable for the malicious act of its servant in shooting her.
It follows that the judgment will be affirmed. | [
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Wood, J.,
(after stating the facts). The will, ■so far as appellants are concerned, is void for uncertainty.
“To the validity of every disposition,” says Mr. Jarman, “as well of personal as real estate, it is requisite that there be a definite subject and object; and uncertainty in either of these particulars is fatal.” 1 Jar-man on Wills, p. 454, chap. 14.
Now an inspection of the sections of this will will discover that no devise or bequest of all or any portion of the estate of Wm. H. Cook was made to the appellants. After giving $5 each, the language of section two does not give or bequeath to the appellants the remainder of ¡the estate and have them to share alike in that. It is manifest from the whole instrument that the deceased did not intend to will to appellants his entire estate, for it provides for the payment >of debts and funeral expenses, and a legacy of $5 each to his niece and his two Worthington nephews. So, it could not be construed that-W. H. Cook intended that the appellants should share and «'hare alike in his whole estate. No language is used in the instrument by which it can be ascertained what portion of his estate W. H. Cook intended to go to the. appellants. The will couid reasonably be construed as indicating an intention upon the part of the deceased to will to appellants an interest in his estate. This is shown by the use of the words “to share,” which means ‘ ‘ to partake of, ’ ’ ‘ ‘enjoy with others, ” “to have a portion ■of.” Webster’s Dictionary, “Share.” And it could he also construed that he meant that the appellants should1 all •have an equal share, or like .share, but as to what portion or as to what character of the estate, whether real or personal, is not mentioned in the instrument, and it is impossible to ascertain from the language employed as to what the intention of the maker of the so-called will was in these particulars. The subject of the alleged bequest, in other words, is too vague and indefinite to constitute .a valid will. “Where the intended subject-matter of disposition consists of an indefinite part or quantity, the gift necessarily fails for uncertainty.” 1 Jarman on Wills, p. 457.
Now, it would be entirely within the province of the court, in arriving at the intention of the deceased' Cook, to.transpose the words “out of my estate” from the first section to the second section, and have the second section read, “to my cousin, T. D. Coók, and my friends, Willie Short and Cleveland Short, share and share .alike out of my estate, ’ ’ if such transposition would 'discover the intention of the testator. But even with the words ‘ ‘ out of my estate,” so transposed, the subject of the alleged disposition would be in as hopeless confusion as ever1 because of vagueness and uncertainty both as to What portion as well as the character of the estate was intended to be disposed of. If the words “out of my estate” were •so transposed we might say that it was the intention of W. H. Cook that appellants should share and share alike “out of his estate.” We know from dispositions made of other portions of the estate that he did not intend for appellants to share the whole of the estate. Then, what portion did he intend that they should “share and share alike?”
(3) Over and over again we have said that the rule in the construction of wills is to give effect to what appears to be the intention of the testator in view of all the provisions of the will. See Campbell v. Campbell, 13 Ark. 513; Cockrill v. Armstrong, 31 Ark. 580; Bloom v. Strauss, 73 Ark. 56; Parker v. Wilson, 98 Ark. 561; Booe v. Vinson, 104 Ark. 439; Galloway v. Darby, 105 Ark. 558; Webb v. Webb, 111 Ark. 54; Gist v. Pettus, 42 Ark. Law Rep. 406.
But this court has held steadily to the rule, which is 'Sustained by the authorities generally, that the intention of the testator must be gathered from the language, when unambiguous, used in the instrument itself, and not from oral testimony. See Robinson v. Bishop and Wife, 23 Ark. 378. Where there is an obvious clerical misprision in the use of a word, or where the words, by reference to 'the context, can better effectuate the intention of the maker by transposition to other parts of the instrument without destroying the sense, or where there is an obvious omission of a word or words, shown by reference to the other words used, then the rules of construction will permit the court to transpose or to supply these in order to effectuate the manifest purpose of the maker of the instrument, when ascertained from the instrument taken as a whole. But further than this the court will not go.
The rule and the reason for it is stated by Mr. Jar-man as follows: “The most unbounded indulgence has been shown to the ignorance, uniskilfuluess and negligence of testators; no degree of technical informality, or of grammatical or orthographical error, nor the most perplexing confusion in the collocation of words or sentences, will deter the judicial expositor from diligently entering upon the task of eliciting from the contents of the instrument the intention of its author, the faintest traces of which will be sought out from every part of the will, and the whole carefully weighed together; but if, after every endeavor, he finds himself unable, in regard to any material fact, to penetrate through the obscurity in which the testator has involved his intention, the failure of the intended disposition is the inevitable consequence. Conjecture is not permitted to supply what the testator has failed to indicate; for as the law has provided a definite successor in the absence of deposition, it would be unjust to allow the right of this ascertained object to be suspended by the claim of any one not pointed put by tbe testator with equal distinctness. The principle of construction here referred to 1ms found expression in tbe familiar phrase, that the heir is not to be disinherited unless by express words or necessary implication.” 1 Jarman on Wills, p. 453. 'See also, 2 Jarman on Wills, pp. 2205-6.
And, as expressed by Mr. Jarman in another place, in arriving at the testator’s intention as the governing principle, “the judges submit to be bound by precedents •and authorities in point; and endeavor, as we have seen, to collect the intention upon grounds of a judicial nature, as distinguished from arbitrary occasional conjecture.” 2 Jarman on Wills., pp. 2205-6, quoted in Webb v. Webb, supra. Other authorities to the same effect are cited in the brief of counsel for the appellees.
Our conclusion is that the instrument under review was void as to the lannelffints. and that is all we are called upon to decide. The judgment is therefore affirmed.
Kikby, J., dissents. | [
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Kirby, J.,
(after stating the facts). Appellant contends that appellees’ interest in the property under the deed of 'conveyance was a vested remainder, aud that the probate court had jurisdiction to authorize the execution of the lease disposing thereof, which it claims was executed in conformity to law and is a valid instrument.
There is much discussion in the briefs as£to whether the estate of the minors under the conveyance to their mother and themselves consisted of a vested or contingent remainder, but under our view, of the law, we do not find it necessary to determine this question. The mother of appellees remained the wife of their father until her death and had a life-estate in the property conveyed. The remainder belonged to the children living, born and to be born of the marriage, upon the termination of the life-estate and the probate court attempted to dispose thereof by authorizing their guardian to join the life-tenant in the lease to appellant.
The probate court has power to authorize the leasing and the sale of lands belonging to minors as conferred by the statute. Section 3789, Kirby’s Digest, authorizes the annual renting of the minors’ improved lands, designating the procedure to be followed by the guardian and giving the probate court power to order that such renting may be done publicly or privately, subject to the court’s or judge’s approval.
Section 3791 authorizes the guardian to let out the ward’s wild or unimproved lands, under the direction of the court, on improvement leases, not to extend more than two years beyond the majority of the ward.
Section 3794 authorizes the leasing or sale of the minor’s lands when necessary for their proper education, and section 3801 authorizes the real estate of the minor, “to be sold or leased and the proceeds put on interest or invested in productive stocks or other real estate” when it appears that it would be for the benefit of the ward, upon an order from the probate court, directing it. Sections 3802 and 3803 of Kirby’s Digest are section 34 of the Act,,of April 22, 1873, and provide the procedure for making such sale or lease of the land for investment for the ward’s benefit.
Neither the petition for, nor the order of the court authorizing the guardian to make the lease for the minors, shows that it was to be made for the education of the minors, according to their means or the investment of the proceeds for their benefit in securities or other real estate. Under said section 3803, the court is authorized, upon the petition praying therefor, after a full examination of creditable and disinterested witnesses, when it appears that it would be for the benefit of the ward, that his real estate should be sold or leased to “make an appropriate order for such sale or lease under such regulations and conditions, subject to the provisions of this chapter in relation to the sale of real estate of minors, as the court -shall consider suited 'to the ©ase,” etc.
The law regulating the sale of real estate of minors requires that such sales be -reported to-and approved by the court in order to their validity. (Section 3798, Kirby’s Digest) and this -court has invariably held such sales, if not confirmed by the court, void. Guynn v. McCauley, 32 Ark. 97; Apel v. Kelsey, 52 Ark. 341; Lumpkins v. Johnson, 61 Ark. 80; Morrow v. James, 69 Ark. 539; Harper v. Smith, 89 Ark. 284; Collins v. Paepcke-Leicht Lbr. Co., 74 Ark. 81.
-Conceding that the lease was attempted to be made for the benefit of the minors, for an investment, the court was authorized to make the order under such regulations and conditions as it should consider suited to the case, subject to the provisions of the law in relation to the sale of the real estate of the minors, which require ' such sales to be confirmed.
There is no claim that there was any report to the probate court of the lease having been made, nor approval thereof by it, but only that the court made the order directing such lease -and prescribing the terms and that the lease was in fact executed in accordance with the -order authorizing it, which it is contended was in effect :a -confirmation, if confirmation be required of a lease of minor’s real estate.
We do not agree with this contention. When th-e sale of the minor’s real estate is ordered upon the terms prescribed by the order directing it, it could as well be argued that if the sale was effected and the conveyance made in accordance with the prescribed terms, that it was a sufficient compliance with the law requiring confirmation. The lease executed amounted to -a sale of the interest of the minors in this valuable real estate, since by its terms it disposed of the property for a longer time than the average span of life, and for a consideration smaller than the annual rental value thereof. There was not a substantial compliance with the law in the making of the lease, or the sale of the.minor’s interest, and same was void, .and the court did not err in cancelling it. Mobbs v. Millard, 106 Ark. 563.
The answer did not deny that the rental value of the right to the use in common of the stairway and lavatories in the building belonging to the minors was not of the value of $30 per month as alleged in the complaint, and the proof introduced was sufficient to sustain the finding upon that point in any event.
There being no prejudicial error in the record, the judgment is affirmed. | [
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Wood, J.,
(after stating the facts). Conceding that exceptions were properly saved to the ruling of the court in rejecting the offered testimony of witness Maars and that this testimony was competent, there was no prejudicial error in the ruling of the court, for the reason that if the testimony .and the part of the contract offered had been read the result could not have been different. For, as we view the undisputed evidence, considering the excluded testimony and the paragraphs of the contract as a part of the evidence, the court correctly instructed the jury that if the appellee was employed by the appellant and was directed by its foreman or manager to work on the slddder under the direction of one Saltwiek, and that the skidder was overturned by reason of the negligence of Saltwiek in operating the same, resulting in appellee’s injury, that the appellant would be liable in damages therefor. In other words, the excluded testimony, including the provisions of the contract, when the latter are properly construed, did not tend to show that Salt-wick at the time of the injury, was not, as to the service he was performing, the servant of the appellant. - On the -contrary, we think the claus-es of the contract under review and the undisputed evidence -show that at the time of appellee’s injury Saltwiek, who was there for the purpose of operating the machine and for the purpose of demonstrating -the same, in order to see whether it worked properly, and for the purpose of instructing appellant’s employees how -to manipulate it, was, while in the performance of that service, the servant of the appellant.
The provisions of the contract under review show that the appellant was to have the ‘£ services of a man to superintend and assist in the erection of the machine,” and ££to properly instruct our (appellant’s) men in its manipulation.” This provision -of the contract clearly shows that this man, furnished by the Clyde Iron Works, was to perform services for .or to be in tbie service of tbe appellant,- superintending and assisting in the erection of the machine and instructing appellant’s men as to how to operate the same. While performing this service for appellant and as appellant’s servant in so doing, under the contract with the Clyde Iron Works, the cost of the service, or wages, to be paid the servant, except the item of board, was to be borne by the iron works. But Salt-wick’s relation to the appellant, ias we view the undisputed evidence, while engaged in the work of demonstrating and operating the skidder, was that as already stated of servant of the appellant. The case is ruled by the following excerpt from Coughlan v. Cambridge, 166 Mass. 268, 44 N. E. 218: “It is well settled that one who is the general servant of another may be lent or hired by his master to another for some special service, so as to be-' come, as to that service, the servant of such third party. The test is whether, in the particular service which he is engaged to perform, he 'continues liable to the direction and control of 'his master, or becomes subject to that of the party to whom he is lent or hired. ”
We quoted this language in the recent eases of Arkansas Natural Gas Company v. Miller, 105 Ark. 477, and St. Louis, I. M. & S. Ry. Co. v. Yates, 111 Ark. 486. In the latter case we also quoted the following from Sherman & Redfield on Negligence, (4 ed.), 269: “Servants who are employed and paid by one person may, nevertheless, be ad hoc the servants of another in a. particular transaction, and that, too,, where their general employer is interested in the -work. They may, without consulting their master, but in good faith, assist a person independently employed to do something which shall benefit their master, but with which neither he nor they have any right to interfere, and in which they act entirely under the control of such other person. In none of these cases is the nominal master responsible to strangers for their acts or omissions.”
Since appellant does not deny that appellee was injured through the negligence of Saltwick, it follows that if Saltwiek, while operating and demonstrating, the skidder, ad hoc was the servant of appellant, then the latter would be liable. Treating the evidence of Maars and the contract as a part of this record, the undisputed facts present a typical1 case for the application of the ■above doctrine. 'Saltwiek was in the general employ of the 'Clyde Iron Works, and piaid by it, but under the contract of sale between it and the appellant the 'Clyde Iron Works was not to erect the skidder nor to superintend its erection. It had no duties to perform with reference thereto as an independent contractor. It was not in the control of the operation of the machine. It did not have the control of the erection of the machine; nor while it was being operated by its agent Saltwiek, for the purpose of demonstrating and assisting the employees of appellant in understanding the same, was it under the control of the Clyde Iron Works. While under the contract between appellant and the Clyde Iron Works, it was 'Contemplated that the appellant should have the “services of a man to superintend and assist in the erection of machine,” the contract shows plainly that the services of this man were to be performed for appellant and that as to these services the man was appellant’s servant. The contract did not even require that the man should be a general servant of the Clyde Iron Works. For aught that appears in the contract to the contrary, appellant .might have employed any man to superintend ■and assist in the erection of the machine, regardless of whether he was in the general employ of the Clyde Iron Works or not. The contract only provided that pay for this service was included in the contract price which appellant had agreed to pay the 'Clyde Iron Works for the machine. The contract specified that the purchase price included the services of a man to “superintend and assist” in the erection of the machine, but it did not specify, and it was not necessarily implied, that such man should be selected or furnished by the Clyde Iron Works. The proof does not show that the appellant relinquished control over the work of erection and operation of the ma chine, nor the work of demonstration under the superintendence of Saltwick, in order to show appellant’s employees how they should operate the machine. The supreme control of the operation, of this machine at the time ■appellee received 'his injury was under appellant, and not the Clyde Iron Works. The latter company, as an independent contractor, owed appellee no duty; and if it had been sued along with the appellant, no judgment could have been recovered against it.
While the case of Tuttle v. Farmers’ Handy Wagon Co. et al., 144 N. W. 938, relied upon by the appellant, is quite similar in some of its. features, yet in essential particulars it is differentiated from the facts of the case at bar. In that case a man by the name of Clow had purchased from the Farmers’ Handy Wagon Co. a silo. By the terms of the contract “Clow was to relieve himself from the responsibility of superintending the work of erection, and had imposed that responsibility upon the company. Under the contract, the man to superintend the work was to be selected and paid by the company. Clow had no voice in his selection and was not given any control over him. * * * He was not directed to report to Clow for orders, nor to perform such duties as might be assigned him by Clow, but was sent to take charge of and direct the work for the purpose of fulfilling the obligation assumed by the company. So far as appears he acted wholly under and pursuant to the instructions of the company. jHe did not place 'himself under the orders of Clow, and Clow made no attempt to exercise control over him. # * * Assuming to act as the representative of the company, he took entire control of the work and of the workmen furnished by Clow at his request. ’ ’
Now, under the contract here, the facts are different. Here appellant’s general manager was on the ground. Its superintendent was present, directing its employees, and its skidder foreman was in 'charge of the skidder. Saltwick was merely superintending and “assisting” these men in the work of operating and demonstrating the machine after the -same had been erected. He was, as to that service, simply for the time being, loaned or furnished to the appellant, and appellant had full charge and control over 'him and all of its employees, including appellee, that were working at the time under the directions of Saltwiick. The facte are so closely 'analogous to the facts in the ciase of St. Louis, I. M. & S. Ry. Co. v. Gates, supra, as to make the doctrine of that ¡case applicable and controlling' here. Saltwicik ¡occupied the same relation to appellant here, that Claus did to the railway •company in the above case.
The court did not err in refusing to give an instruction on the law of contributory negligence. There was no evidence to warrant such an instruction. Appellant’s prayer for instruction on assumed risk was not in correct form and was not the law applicable to the facts proved.
The record is free from error, and- the judgment is therefore affirmed. | [
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Wood, J.,
(after stating the facts). I. The appellant asked the court to tell the jury in his prayer No. 4, that the city ordinance gave United States mail wagons when in use collecting mail the right-of-way, and that the appellant, as the driver of such wagon, had the right to assume that appellee’s motorman, if he discovered, or by the exercise of ordinary care would have discovered, the approach of the mail wagon, to accord it and the driver the right-of-way. The court refused this prayer, but instructed the jury as follows:
“The motorman and the driver of the mail wagon are presumed to have been familiar with the ordinance giving the United States mail wagons the right-of-way and their conduct must be judged in the light of this provision. ’ ’
And, further, at appellant’s request, prayer No. 10: “The jury, in determining whether defendant was guilty of negligence and whether plaintiff was guilty of contributory negligence may take into consideration the ordinance introduced in evidence so far as same affects the rights of plaintiff and defendant. ’ ’
The.court further instructed the jury on its own motion No. A as follows: “The ordinance of the city of Fort Smith introduced in evidence does not create any liability against the defendant, and is only to be considered by the jury in passing upon the question as to whether there was negligence upon the part of either the plaintiff or defendant.”
Did the court err? It is not within any of the general or special powers conferred upon municipal corporations in this State to create a right of action between third persons, nor to enlarge the common law or statutory liability of citizens among themselves. This could only be done by contract between the municipality and the company sought to be charged with the violation of an ordinance alleged to be for. the benefit of a citizen. Kirby’s Digest, chap. 115; Holwerson v. St. Louis & Sub. Ry. Co., 157 Mo. 216. Such power is not implied from any of the powers expressly conferred. A municipal corporation lias no powers except those expressly conferred and those fairly implied for the attainment of declared purposes. Morrilton Waterworks Imp. Dist. v. Earl, 71 Ark. 4. See also City of Winchester v. Redmond, 93 Va. 711.
The city had the express power to authorize the construction of street railways (Kirby’s Digest, § 5443), and in the ordinance granting the charter to the appellee the city could undoubtedly have reserved to itself the right as a condition or consideration for the granting of the franchise the power to- pass ordinances for the protection of persons and property of individuals and creating a liability in their favor against the company for a violation of such ordinances, and the company, if it accepted the franchise with these provisions, would be bound thereby and liable in damages to individuals for a violation of such ordinances. It is not shown that the city of Fort Smith reserved to itself such power as a consideration for the grant of its franchise to the appellee, or that the company accepted the franchise with such power reserved as a consideration therefor. The violation of the ordinance, therefore, could not become the basis of a liability for personal injuries. See Byington v. St. Louis Rd. Co., 147 Mo. 673, 49 S. W. Rep. 876.
We have no statute creating a liability against street railway companies in favor of parties injured for breaches of ordinances passed for the protection of persons or property, and there is no statute conferring upon municipal corporations the power to pass such ordinances, as was the ease in Hayes v. Mich. Cent. Rd. Co., 111 U. S. 228. Therefore, no power existed in the city to create a liability in favor of appellant against appellee for a violation of the ordinance under review, and if the ordinance had created such liability it would have been void for lack of power to enact it.
A city, under its general police power over the streets, could pass any reasonable and proper regulations prescribing the manner in which the franchise of street railways should (be enjoyed, not inconsistent or in conflict with their charter rights. 36 Cyc. 1447, and note.
As we construe the ordinance, it does not undertake to create a liability in favor of United States mail collectors against the appellee for a violation of its terms. It is only a police regulation to be enforced solely by fine, and was designed primarily for the benefit of the general public to insure the United States mail free course. True, it operates incidentally to protect the mail carts and the person of mail collectors while engaged in their duties, but it was not enacted for their special personal benefit in the sense of creating a right of action in their favor against the street railway compiany for a violation of the ordinance.
What effect, then, should be given the ordinance in this case?
In common law actions for negligent injuries, where at the time of the injury a city ordinance is being violated, in some jurisdictions it is held that violations of the city ordinance is not evidence of negligence, and that the ordinance is not admissible in evidence. See Rockford City Railway Co. v. Blake, 173 Ill. 354, 50 N. E. Rep. 1070, 64 Am. St. Rep. 122. See, also, Ford’s Admr. v. Paducah City Ry. Co., 99 S. W. Rep. 355.
In other jurisdictions it is held that the operation of ears in violation of a city ordinance is negligence per se. Ashley v. Kanawha Valley Traction Co., 60 W. Va. 306; Moore v. St. Louis Transit Co., 194 Mo. 1, 92 S. W. 390; Memphis St. Ry. Co. v. Haynes, 112 Tenn. 712, 81 S. W. 374; Dallas Consolidated Elec. St. Ry. v. Ison, 83 S. W. 408.
But in other jurisdictions it is held that in a common law action against street railway companies for injury alleged to have been caused by the company’s negligence if at the time of the injury the street car producing it is being operated in a manner that violated an ordi nance of the city, such fact may be shown as tending to establish the allegations of negligence.
The rule as last stated is supported by the weight of authority and the better reason. Without stating the rule or citing any authority to support it, we recognized and approved it in the recent case of Little Rook Railway & Electric Co. v. Sledge, 108 Ark. 95-110. Other authorities .are as follows: Davies v. Durham Trac. Co., 141 N. C. 134, 53 S. E. 617; Henderson v. Durham Traction Co., 132 N. C. 779, 44 S. E. Rep. 598; Meek v. Pennsylvania Co., 38 Ohio St. Rep. 632. See, also, Cumming v. Brookland City Rd. Co., 104 N. Y. 669, 674, 10 N. E. Rep. 855; Connor v. Electric Trac. Co., 173 Pa. St. 602, 34 Atl. 238; Baltimore City Pass. R. Co. v. McDonnell, 43 Md. 534; Harrison v. Sutter St. R. Co., 116 Cal. 165, 47 Pac. Rep. 1019; Mahan v. Union Depot, etc., Co., 34 Minn. 29, 24 N. W. Rep. 293; Hanlon v. South Boston Horse R. Co., 129 Mass. 310. See, also, Caswell v. Boston Elevated Ry., 190 Mass. 527, 77 N. E. Rep. 380; Glassey v. Worcester Consol. St. R. Co., 185 Mass. 315, 70 N. E. 199; Stevens v. Boston El. R. Co., 184 Mass. 476, 69 N. E. Rep. 338; Norfolk R., etc., Co. v. Corletto, 100 Va. 355, 41 S. E. Rep. 740, and note to Ashley v. Kanawha Valley Trac Co., 9 Am. & Eng. Ann. Cas. 840-2, where the above eases are collated.
In a case where, at the time of the injury, a railroad train was being run at a greater rate of speed than that prescribed by a city ordinance, Mr. Justice Lamar, speaking for the Supreme Court of the United States, in Grand Trunk Ry. Co. v. Ives, 144 U. S. 408-418, said: “But perhaps the better and more generally accepted rule is that such an act on the part of the railway company is always to be considered by the jury as at least a circumstance from which negligence may be inferred in determining whether the company was or was not guilty of negligence,” citing cases.
Now, the court, in permitting the ordinance to be introduced and in its instructions based thereon, con formed its rulings to the law as above announced and approved.
The prayer for instruction No. 4 was argumentative and calculated to mislead the jury.
In modifying, and giving as modified, appellant’s prayer No. 5, and in giving appellant’s prayer No. 10 as requested, and in giving instruction No. “A” on its own motion, the court declared the law strictly in accord with the rule as above approved, and its rulings gave to the appellant the utmost to which he was entitled.
II.' Instruction No. 5, given-at the instance of appellee, was as follows:
“The court instructs you that if you believe from the evidence that defendant’s motorman in charge of its car used ordinary care in the management of said car at and near the place where plaintiff was injured, and that as soon as he saw plaintiff in a position of danger, said motorman used such care and caution in stopping said car as to avoid injury to plaintiff as a person of ordinary care and prudence would have exercised under such circumstances, then your verdict must be for the defendant. ’ ’
Appellant contends that this instruction was erroneous because it only required the motorman to use ordinary care after he saw plaintiff in a place of danger. The instruction, taken as a whole, is not open to this objection. The instruction required the jury to find that 'the motorman used ordinary care in the management of his ■ car at and near the place of the injury. Ordinary care in the management of a street railway car requires a constant lookout to be kept for persons upon the track. This is a well recognized duty of motormen under the law pertaining to the management of street railways and the instruction as offered, and the language used in the instruction, when fairly construed, must have conveyed the idea to the jury that such was the duty of the motorman. But if there were any doubt about it, the jury could not have been misled, for in prayer No. 13, given at appellant’s request, the court told.the jury that it was the duty of the motorman to keep a reasonable lookout and to exercise reasonable care to discover the approach of vehicles toward the car track at such places as said vehicles had the right to cross, and to take reasonable and timely precaution to prevent striking or colliding with same. These instructions, when considered together, as they should be, could not possibly have misled the jury.
Instructions should not be considered as in conflict where they can be harmonized, and instruction No. 13, given at the instance of the appellant, should be taken as not in conflict, but as supplementary to and explanatory of what is meant in instruction No. 5, by the use of the words “ordinary care in the management of his car,” etc. But if the words “ordinary care in the management of his car” did not include the duty upon the part of the motorman to keep a lookout for persons and property on the track, then it was a defect in the verbiage, which should have been reached by a specific objection. See St. Louis, I. M. & S. Ry. Co. v. Barnett, 65 Ark. 255; Pettus v. Kerr, 87 Ark. 396; St. Louis, I. M. & S. Ry. Co. v. Carter, 93 Ark. 589; Missouri & N. A. Rd. Co. v. Duncan, 104 Ark. 409.
Instruction No. 6, given at the instance of appellee, of which appellant complains, is as follows:
“The court instructs you that it was the duty of plaintiff before going on or attempting to cross the tracks of defendant company to look and listen for approaching cars, and if you believe from the evidence that plaintiff failed to do so, or if you believe that plaintiff saw or could have seen the approaching car, and drove or permitted his horse to go upon the track in front of said- car, then you should find for the defendant, unless you further find from the evidence that defendant’s motorman, after he saw plaintiff in a perilous position, failed to use such care and caution in stopping said car as a person of ordinary care and prudence would have exercised under like circumstances. ’ ’
The appellant contends that the instruction was erroneous in telling the jury that it was the duty of plaintiff, before going on or attempting to cross the track of defendant to look and listen for approaching cars, and further erroneous in telling the jury that if plaintiff saw or could have seen the approaching car and drove or permitted his horse to go upon the track in front of said car, etc.
The undisputed facts show that the appellant’s view of appellee’s approaching car was unobstructed. There were no circumstances developed by the proof to prevent him from looking for the car or to excuse him for not doing so. The instruction, when viewed in the light of the uncontroverted facts, therefore, was in conformity with the law as announced by this court in Little Rock Ry. & Elec. Co. v. Sledge, supra. Moreover, the instruction could not have been prejudicial in the particulars urged by the appellant, because the appellant himself testified that he was looking at the car; that he could see the motorman, and that the motorman could see him ; that he was looking at the motorman for some distance before the wagon was struck and continued to look at the car before it struck his wagon. That part of the instruction which told the jury that if plaintiff saw the approaching car and drove in front of it, then the motorman was only required to use such care to prevent the injury as a person of ordinary prudence would have exercised under like circumstances, in effect told the jury that if appellant was guilty of contributory negligence, then the motorman was only required to use ordinary care and prudence, after discovering his peril, to avoid injuring him. This is a correct statement of the law applicable to the facts.
Instruction No. 8 was as follows: “It was the duty of plaintiff to keep adookout for ears before going upon defendant’s track immediately in front of its moving car, ■and if you believe from the evidence that plaintiff failed to keep such lookout for defendant’s car and went upon defendant’s track in front of an approaching car, then the court instructs you that the defendant would not be liable in this action, although you might believe that its motorman carelessly failed to discover plaintiff’s peril in time to have avoided a collision. If plaintiff was guilty of negligence in going upon defendant’s track, then defendant’s servant was only required to exercise ordinary eare for plaintiff’s safety after actually discovering him in a place of danger.”
The above instruction, like instruction No. 6, preceding it, correctly declared the law relating to the liability of street railway companies, in cases where the evidence proves or tends to prove that the plaintiff is guilty of contributory negligence. In all such cases street railway companies are liable only where their servants in charge of the car fail to exercise ordinary care to prevent injury after the plaintiff’s perilous position has been discovered. Johnson v. Stewart, 62 Ark. 164; Hot Springs St. Ry. Co. v. Johnson, 64 Ark. 421. See, also, Hot Springs St. Rd. Co. v. Hildreth, 72 Ark. 572. The court did not, in instruction 8, tell the jury that appellant was guilty of contributory negligence as matter of law; it submitted the issue to the jury.
The lookout statute of May 26, 1911, Act 284, p. 275, amending section 6607 of Kirby’s Digest, as construed by this court in Central Ry. Co. v. Lindley, 105 Ark. 294, and St. Louis, I. M. & S. Ry. Co. v. Gibson, 107 Ark. 431, and other cases, has no application to street railways.
The same may be said of instruction No. 14. The objection that this instruction assumes as a fact that “plaintiff got into his cart and made no effort to avoid a collision, ’ ’ is not well taken. The instruction is hypothetical, and states, “if you find from the evidence,.” etc., that “the plaintiff got into the cart.”
The criticism of instruction No. 11, in regard to the burden of proof, and which told the jury that if the testimony is equally balanced on a certain point, leaving their minds in doubt, their verdict should be for the defendant, etc., is not obnoxious to the criticism that appellant makes of it, but, taken as a whole, it, in effect, tells the jury that the plaintiff must establish the ma terial allegations of his complaint by a preponderance of the evidence.
Appellant complains that the court erred in refusing to grant certain prayers for instructions in regard to expert testimony, but the court had already given, at appellant’s request, an instruction which contained all the law that appellant was entitled to on that subject. We are convinced that the instructions, as a whole, fairly and correctly submitted the issues to the jury.
III. The appellant'contends that the court erred in refusing to permit him to prove by certain witnesses the distance in which a oar going at the speed fixed by appellee’s witnesses could be stopped, and that such stop could be made in a distance of from four to six feet. Appellant offered this testimony in rebuttal. Under the issues raised by the pleadings, the testimony was competent and proper to be introduced by the appellant in chief. The appellant had alleged that the car was running at a dangerous and high rate of speed, was not supplied with proper brakes by which it could be properly and quickly stopped, and that if the motorman had properly applied the brakes as he should have done the appellant would not have been run down and injured. The answer denied these allegations. To sustain these allegations of negligence it was competent for the appellant to prove and the burden was upon him to show that the motorman did not make a good stop. The offered testimony would have tended to show that appellee’s motorman did not make a good stop. Appellant went partly into the proof on this subject, and, in fairness to the appellee, he should have discovered all that.he then had to produce. “When the burden of proving any matter is.thrown upon a party by the pleadings, he must generally introduce, in the first instance, all the evidence upon which he relies; and he can not, after going into part of his case, reserve the residue of his evidence for a subsequent opportunity.” Jones on Evidence, § 809.
“Rebuttal testimony should rebut the testimony advanced by the other side, and should consist .of nothing which might properly have been advanced as proof in chief.” 2 Elliott on Evidence, § § 941, 948.
While the court, in its discretion, might have permitted the evidence to be introduced at the time it was offered, yet, since . it was not rebuttal evidence, and no showing is made as to why i't was not brought forward in chief, nothing to indicate that appellant was not in possession of the evidence at the time he was developing his case in chief, nothing to show that it had been dis- ■ covered only after appellee had brought forward its testimony, the court did not abuse its discretion in rejecting it. It was within the discretion of the court to do so, and there was no error in its ruling. 2 Elliott on Evidence, § 948, and case cited in note 20; Underhill on Evidence, p. 551.
■ The record, upon the whole, is free from prejudicial error, and the judgment is therefore affirmed. | [
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McCulloch, C. J.
An election was held in Hemp-stead County on August 15, 1914, to decide the question of removal of the county seat from Washington to Hope; and the majority being, on the face of the returns as certified by the election commissioners, in favor of removal, a contest was instituted by those opposed to such re moval. The county court decided against the contestants, and an appeal was taken to the circuit court, where the case is now pending, and stands for hearing at the next term of that court, to be held in April, 1915.
While the case was pending in the county court, an order was made by the court on the judges of election of the different townships requiring them to file with the clerk of the court the duplicate poll books kept by them pursuant to the election laws of the State, and that order was complied with except by the judges of election in nine of the voting precincts, who reported that the duplicates kept by them had been lost or destroyed and that the same could not 'be produced. After the appeal was taken the contestants made application to the circuit judge in vacation for a subpoena duces tecum, requiring the election commissioners of the county “to appear before the clerk of the circuit court on a day to be fixed * * * and to bring with them 'and to produce and file with the clerk of the Hempstead circuit court the poll hooks containing the names of the persons who voted at the election” in the townships specified where the judges had not complied with the order-with respect to delivery of the duplicate poll books, and “also to testify on behalf of the contestants” in the proceedings pending in the •circuit court. Notice was -given of this application, and on hearing thereof the judge made an order in compliance with the petition, directing the clerk of the court to issue the subpoena duces tecum- requiring the election commissioners ito appear before the clerk on the 15-th day of December, 1914, “and to bring with them and file with the clerk of the Hempstead circuit court in said cause on said day the poll books containing the names of the persons who voted at the election held in Hempstead County, Arkansas, on the 15th day of August, 1914, upon the question of the removal of the county seat from Washington, Arkansas, to Hope, Arkansas, and said pol books so filed by said election commissioners shall be safely kept by said clerk for the inspection of 'all parties to this suit and shall remain in his office until further -orders.” It wil be seen fr.om a comparison of the prayer of the petition 'and the order of the court, that the latter goes beyond the former in requiring the commissioners not only to produce the poll books, but that the same be filed and remain in the custody of the clerk until further .orders of the court.
The commissioners, through their attorneys, have presented a petition to this court for >a writ of certiorari to bring up the order of the circuit judge for review, and they challenge the jurisdiction of the judge to make .such an order, particularly that part of it which changes the custody of the poll boobs from the election commissioners to the clerk of the court. The order of the circuit judge is to that extent a final one, which is subject to review, and as. there is. no provision for 'an appeal from an order of the circuit judge in vacation, the writ of certiorari is the appropriate method of bringing up the record for review. State ex rel. v. Neel, 48 Ark. 283; Jachson, Ex parte, 45 Ark. 158; Ex parte Helmert, 103 Ark. 571.
Returns of county seat elections are to be made to the county election commissioners, the .same as required by the statute in general elections, and a contest of such an election must originate in the county court. Pitts v. Stuchert, 111 Ark. 388.
The .-statutes governing elections provide that judges of election shall, after counting the ballots, prepare and sign in duplicate a certificate showing the number of votes given for each' person, etc., and that “after making such certificate, the judges, before they disperse, •shall put under cover one of said tally-sheets, certificates and poll-books and seal the same, and direct it to the board of county election commissioners.” Kirby’s Digest, § 2832. The election judges are further required to send up the ballots in a -package separate from the certificates and poll-books. Section 2833. The duties of the election commissioners, with respect to the returns made to them, are prescribed in section 2838 as follows: “The county ■election commissioners .shall retain the custody of and safely keep all ballots and certificates returned to them from the several precincts for a period of six months, after which time the same shall he -destroyed, unless the commissioners shall be sooner notified in writing that ¡the' election -of some pers-on voted for at isu-ch election and declared to have been elected, has been contested, or that criminal prosecution has been begun against any -officer of election, or person voting thereat, for any frand in said -election, before a tribunal of competent jurisdiction, in which -event, so many -of is-aid ballots -and -certificates -as may relate to matters involved in said contest, or any prosecution, shall be preserved for use as evidence in such contest or prosecution. During the time such ballots may be retained, the package -containing same shall not he opened by any one, unles-s directed to -do so by some competent tribunal before which an election contest -or prosecution is pending, in which such ballots, are to be used as -evidence. ’ ’
It will be observed from reading the terms -of the statute, that the ballots are to be kept in -separate packages and not ¡opened until ordered by -a -court of competent jurisdiction in a -contest or a criminal prosecution, but that .the package -containing the -certificates and poll-books are- to -be opened by the election commissioners for the purpose of -casting -up- and -certifying the total result -of th-e -election in the -county. Thus the election -commissioners are- by -statute made the custodians o-f th-e certificates, poll-ibooks and 'ballots, -and the ballots are to be kept secret, but the poll-books and certificates are public records ab-ont which 'there is no ¡secrecy, and which are -subject to inspection like -any -other p-ubli-c records. The legal -custody of al these records continues with the election commissioners, unless th-os-e custodians are required to appear and produce the records as evidence in -court. In that event, the -court, in the exercise of its inherent powers, may retain the custody -of the records and place them in the hands- of the -custodian -off its own selection. It is in that way only th-at the custody -can be changed, and, as we said in the -case of Lovewell v. Bowen, 75 Ark. 452, “the control of the election oomimis'sioners over the ballots ceases when they produce them in court. Then they become evidence in the cause, -and pass under the dominion and control of the court. ’ ’ The court was there speaking about the ballots, ibut the statement applies with equal force to the other records, .such as poll-books and certificates. The -statutes provide that the ballots shall ■not be 'opened except on the order of “some competent tribunal before which an election contest or prosecution is pending,” which means, of course, the .court and not the judge ip. vacation. ' This proceeding does not relate at all to ¡the custody of the ballots .and there is- no effort to have them opened under .orders of the circuit judge or to change their custody. The proceedings relate only to the poll-books 'and it is' sought to change them from the custody of the commissioners to the clerk. The poll-books. being, as we have already seen, public records, .subject to inspection by interested parties, it can not be doubted that the circuit judge in vacation has the power to require the officers to discharge their duty by allowing a reasonable opportunity to those who .are contestants, and thus interested in the result of the election, to inspect them.
The fact that the election judges are required by statute to keep the duplicate poll-books for inspection does not affect the status of the originals, as public records, when delivered into the hands of the election commissioners. They are all public records — not permanent records, it is true — but nevertheless public records in the sense that they must be kept open for the inspection of those who are interested in them .and have .a right to see them.
Mandamus- is an appropriate remedy for requiring a public officer to .discharge his duty. Boylan v. Warren, Clerk, 39 Kan. 301; State ex rel. v. King, Auditor, 154 Ind. 621; Aitcheson v. Huebner, 90 Mich. 643; State ex rel. v. Williams, 110 Tenn. 549. That remedy was accorded to a voter to enforce his right to -inspect registration records in the hands of election officers by the New Jersey court in the case of Higgins v. Lockwood, 74 N. J. L. 158. .
In .addition to that, the statute expressly provides that the court or the judge thereof may require a witness “to 'bring with him any book, writing or other thing under ¡his control which he is hound by law to produce in evidence. ’ ’ Kirby’s Digest, 3111. It is said here in argument that the effort of the .contestants to obtain an inspection of the poll-books is a mere “fishing expedition,” which neither the court nor the judge could give any aid to. That is not a correct characterization of the proceedings, for the contest is a bona fide one, so far as .anything to the contrary appears, and there is an allegation of fraud in the election. An inspection of the records is indispensable in a contest, for they are presumptively correct until' overturned by evidence showing that they are not correct. Powell v. Holman, 50 Ark. 85; Condren v. Gibbs, 94 Ark. 478. Contestants are entitled to see the poll-boobs, and to have the election commissioners produce them as evidence so that the presumption of their correctness ¡may be overcome by other testimony. It is -within the power, therefore, of the circuit judge to order the production of the poll-books to be used as evidence in the. case, and the commissioners have no legal right to deny the contestants the privilege of inspecting those records. It is quite .another thing, however, to- order .the books taken out of the custody of the officers who are by the statutes of the -State constituted the custodians. We -are of the orani-on that -the judge has no power to make such an order, and that if the custody is changed .at all it must be by an order of the court when the records are produced in court as -evidence. The judge of the court can in vacation exercise only su-oh judicial powers .as are conferred by statutes, and there is no power .conferred either expressly or by implication on the judge of a court in vacation to order the relinquishment of the custody of -public records. T-hat authority obtains only in the court itself and is a necessary part of •the power to control the proceedings and to preserve the evidence before it.
It follows that that part of - the order of the circuit judge directing the election commissioners do surrender possession of the poll-boobs, to the clerk of the court is void and will be quashed. It is so ordered. | [
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CROSS, Judge.
The record in this case shows that the plaintiff in error [Frederick Fletcher] brought an action of trespass on the case against the. defendant [William Ellis], in the Conway circuit court, and in his declaration alleged “that the said plaintiff and one Alexander Rogers, were indebted to Daniel Gilmore in a large sum of money, namely,' in the amount of fifty-five dollars, upon which said Gilmore had brought suit and obtained judgment, and sued out execution against the plaintiff and the said Rogers, and the plaintiff avers that he and Rogers had, in the county of Conway, sufficient goods and chattels to have satisfied the execution, and the plaintiff avers that the defendant being an evil disposed person, fond of encouraging litigation and fomenting strife, and wishing to harass, impoverish, and distress the plaintiff, did, on the first day of October, 1834, at the county of Conway, and within the jurisdiction of this court, maliciously persuade and procure the said Daniel Gilmore, by offering him to pay all costs and charges, and to see his debt made secure, to have the plaintiff's body taken in execution; and by reason of the defendant’s procurements by his several offers and promises as aforesaid made, the plaintiff’s body was taken in execution.” It also appears that the defendant filed a demurrer to the declaration, which was sustained by the court. The writ of error is prosecuted to reverse the judgment sustaining the demurrer.
A mere glance at the declaration will show that it has been drawn by an extremely careless pleader. The object of the action doubtless was, to charge the defendant for a maintenance, which is defined to be an officious intermeddling in a suit depending in a court, with which the person so intermeddling has nothing to do, by assisting the plaintiff or defendant in the prosecution of such suit. Co. Litt. 358; 2 Inst. 213. The court is not designated in which the suit was pending, nor is the time or place alleged when arid where the execution issued or into whose hands it came. The allegation is in relation to the maintenance, that the defendant offered Gilmore to pay costs and charges, and to see that his debt was secured. Between a mere offer to assist and assistance, there is certainly a material difference, for without the latter, the maintenance is not committed at all. So far as anything can be collected on the subject from the declaration, it seems that at the time the offer was made to pay costs and see the debt secured, an execution was rightfully in the hands of an officer of some kind, and the plaintiff and Rogers had a sufficiency of property in the county to satisfy it If so, the defendant’s offers were made in relation to a matter over which neither he nor Gilmore had any control, as the officer was legally bound in the first place, to levy on and dispose of the property in satisfaction of the writ, notwithstanding the plaintiff in execution might have instructed him to arrest the body of the defendant
That an action lies in this country for maintenance, we entertain but little doubt Tet it certainly would be necessary, in order to sustain such an action, to allege not only the pendency of a suit but designate the particular court in which it was depending, together with time and circumstances, none of which requisites exist in the case before ns. Indeed, there is scarcely a single requisite stated necessary to constitute a maintenance, and we have seldom had occasion to examine a declaration in which there was so frail a cause of action set forth. Judgment affirmed. | [
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Bunn, C. J.
The appellant, R. T. Powell — being indebted to the appellee, J. P. Durden, circuit clerk and recorder of Sebastian county, on the following items of account, to-wit: (1) To recording-release deed, $1.35; (2) to balance on D. J. Young’s deed, $2.50 ; (3) to filing, docketing and issuing complaint in equity, $2.95 ; (4) to filing, docketing and issuing complaint in equity, $2.05 ; total, $7.95 — tendered in payment thereof, on March 6, 1895, the amount in the county scrip of the Greenwood district of Sebastian county, and, on the same being refused, filed his petition for a writ of mandamus compelling appellee to receive said scrip in full payment of said account.' (It appears, however, that appellee had offered to accept said scrip in payment of so much of said account as consisted of the county tax in said items — that is, so much as is payable to the county under laws heretofore existing). Appellee demurred to the petition, and his demurrer was sustained by the Sebastian circuit court, and the writ was refused, and appellant excepted, and appealed to this court.
At its session in 1893,. the general assembly enacted a law, especially applying to Sebastian county, whereby the county officers of said county, among them the circuit clerk, are to receive stated annual salaries for their services, instead of fees as heretofore, and as is provided in general laws for other counties in the state. So much of said special act as is necessary in the discussion of this case is as follows, to-wit: Section 1 provides that the circuit clerk shall receive a salary of $3,500, out of which he shall pay his deputies. Section 2 recites “that it shall be the duty of the Sheriff, .collector of taxes, clerks of the circuit and county courts, and assessor of said county, to charge and collect the same fees and commissions as are now allowed them by law, and they shall each, on the first day of each regular term of the county court of the Fort Smith district and the Greenwood district of said county, file report in said court showing amount of fees and commissions collected by them respectively, in each of said districts, and make a settlement with said court, by paying all amounts in excess of the amount of salary due each one of them to that date, into the county treasury, and file the treasurer’s receipt therefor as a voucher in said settlement '< and in such settlement the said officers aforesaid shall be chargeable and liable for all fees and commissions that it was the duty of said officers to charge and collect, whether the same were collected or not, and that each of said districts shall pay its proportionate share of the salaries of such officers, such proportion to be ■based upon the receipts of said districts respectively.” Section 3 : “That, at each and every settlement made by any officer as aforesaid, he shall pay over to the treasurer in kind the funds received by him in excess of his salary, and shall file his affidavit with said court that said settlement is true, just and correct, and that he has faithfully performed his duties as prescribed in this act.” Section 6: “That all money paid into the treasury arising from fees and commissions in the Port Smith district shall be for county purposes of said district, and all money paid into the treasury arising from fees and commissions in the Greenwood district shall be for county purposes of said district.”
It is evident from the language of the act, that the officer is to charge for his services the same fees as provided by the pre-existing and general law, and he is to collect these charges or fees in the same funds as heretofore ; that he is to keep a strict account of his charges and collections, and make report of the same to each term of the county court, and in each report he is allowed to take out of the funds thus coming into his hands as much as will settle his salary for the quarter, and give himself credit for the amount of his salary then due, and then is required to pay the residue over, if any, into the county treasury, and this residue is to be for county purposes.
This expression, “county purposes,” seems to have given rise to this litigation. Somehow it seems to be associated with the language of the 10th section, article 16, of the constitution, and with the language of the statute, section 1002, Sandels & Hill’s Digest, enacted in accordance with the constitutional provision.
It is sufficient to say here that the constitutional provision, as well as the statute, simply defines in what funds it may be lawful to pay taxes levied for county purposes, and those provisions have no relation whatever to the funds turned into the county treasury by the county officer as a residue of his collections after reserving out his salary.
Moreover, the funds collected by the county officers as fees, under the act in question, are primarily for the payment of his salary, and only secondarily to go into the county treasury. He, then, primarily is interested in those fees being collected in funds as required by existing laws, and by the act itself, and the county is only secondarily interested. The county’s interest does not, then, determine the character of the funds to be collected by the clerk, but rather the law providing for the fees of the officer as heretofore.
Therefore,' the court did not err in refusing the writ; and this discussion would properly end here, but in argument in support of his demurrer appellee contends that the special .act for Sebastian county and the two districts therein is unconstitutional, for the reason that a general law providing for the pay of such officers has almost from time immemorial proved itself applicable to the subject, and that therefore the special act is in violation of the 25th section, article 5, of the constitution. To sustain this argument, appellee contends that the legislature, according to the doctrine of this court, has only a sound discretion to determine when a special law may be better adopted to the purpose in hand, than a general law. This court has said something more than that. It has said that the legislature is the judge of the necessity or propriety of a special law, as applicable to any subject, rather than a general law. Davis v. Gaines, 48 Ark. 370. In that case it is announced that, the constitutional provision is really not prohibitory, but rather cautionary, to the legislature.
Again, it is held in Humphry v. Sadler, 40 Ark. 100, that “ when the office itself is created by the constitution, but the compensation is left to the discretion of the legislature, it may be increased or diminished so as to affect the incumbent. And it makes' no difference whether the compensation be by fees or salary.” The mere discretion of the legislature is not in determining when a general or special law is applicable, but, in a case like the act under consideration, in determining the amount of the pay of these officers and the manner of paying them ; and this discretion may be abused so that the courts would interfere to prevent such abuses. For instance, the legislature cannot abolish or render useless a constitutional office, or even cripple it by a reduction of the salary of the incumbent, so that it cannot be sustained or properly maintained, or by attempting to do indirectly what it cannot do directly in reference thereto. Reid v. Smoulter, 18 Atl. (Penn.) 445; King v. Hunter, 65 N. C. 603; State v. Brunst, 26 Wis. 412; Cooley on Con. Ivim. page 79, sec. 332, and notes; People v. Dubois, 23 Ill. 547.
Homestead oe Deceased — Rights oe Surviving' Children. — One who marries a widow and occupies the homestead of her deceased husband, to the exclusion of the rights' of the minor children, will be liable to such children for half its rental value, under Const 1874, art. 9, sec. 6, providing that the children shall be entitled to • half the rents and profits, and Sandels & Hill’s Digest, sec. 5917, providing that when a joint tenant has taken rents and profits in greater proportion than his interest he shall account to his co-tenant.
Further than this the courts generally decline to interfere in such cases, except where special laws are in effect prohibited by constitutional provisions.
The judgment of- the court below is therefore affirmed, not however because the special act is unconstitutional, but because the special act properly construed does not make it the duty of the circuit .clerk,, the appellee, to receive county scrip for the services and fees, for which it was' tendered and refused by him. | [
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Hughes, J.
The plaintiff (appellant), a mutual fire insurance company incorporated under the laws of 'the state of Illinois, sued the defendant (appellee) for an assessment of $225 for dues, losses and liabilities incurred as a member of plaintiff company on two policies. The defendant denied the liability; set up that the policies were canceled, that plaintiff owed it $125 for unearned premiums, and that plaintiff’s contract on policies was void for non-compliance with the foreign corporation law; and prayed, judgment for $125 on counterclaim.
The court found the facts to be: (1) That the insurance for which the.policy was issued was solicited in the state by an agent of the plaintiff during the course •of regular business herein, and that the application was made and the policy was accepted, in thiso state. (2) That plaintiff is a foreign corporation, and has wholly failed to comply with any of the laws of this state regulating insurance, and was not entitled to transact insurance business in this state. (3) That the insurance was on the 26th of May, 1891, terminated, and defendant, •on its cross-complaint, is entitled to recover from plaintiff $125, unearned premiums.
The court declared the law to be: (1) No foreign corporation shall do any business in this state, except while it maintains therein one or more known places of business, and an authorized agent in the same upon whom process may be served, and they shall exercise no greater powers, nor have any greater privileges, than are exercised or had by like corporations of this state. (2) Before mutual fire insurance companies are permitted, to do business in this state, it is required that they shall give bond to the state of Arkansas for the use of the beneficiaries of the policy holders of such companies, with security to be approved by the secretary of state, in the sum of $20,000, conditioned for the prompt payment of all assessments to the parties or beneficiaries entitled thereto, which bond shall be filed in the office of the secretary of state, and the law requires insurance corporations doing business on the assessment plan to make return to the auditor of state annually, on or before the 1st of March, a statement of the affairs of the corporation for the year ending on the 31st of December next preceding. (3) Plaintiff was not entitled to do insurance business in this state until it had complied with act 84 of the Acts of Arkansas for 1887, and received from the auditor of state a certificate to that effect; and if any person transacted any insurance business for plaintiff, until it had complied with the requirements of said act, he was guilty of a misdemeanor, and subject to a fine in the sum of $500. (4) Plaintiff cannot recover in this action unless it has complied with sec. 3832 of Mansfield’s Digest, and paid the taxes, therein prescribed. (5) If plaintiff has wholly failed to comply with its duties, as prescribed in secs. 3833, 3834, Mansfield’s Digest, and the act of Arkansas above mentioned, and the insurance was obtained from defendant company, and the same was solicited by an agent of plaintiff while in the course of regular business in this, state, then plaintiff cannot recover in this action. (6) If defendant company or its agents requested the termination of the insurance, it is entitled to recover from the plaintiff the amount of unearned premium proved by the'evidence; (7) Where an act is prohibited by- statute, a contract to do the act is illegal and unenforceable ; and where a statute pronounces a penalty for an act, a contract founded on such act is void.
The appellee made application to the agent of the appellant at Brinkley, Arkansas, for two policies of insurance in the appellant company. The applications were forwarded to the company at Chicago, 111., and there passed upon, accepted, dated and signed-by the proper officers of said company, which was a mutual fire insurance company, chartered under the laws of Illinois, with its domicil at the city of Chicago in said state. The policies were then sent by the company directly to the appellee at Brinkley, Ark., and the premiums were thereupon forwarded to the appellant company at Chicago.
It appears that the agent to solicit insurance for the appellant had no authority to pass upon applications to bind his company or to issue policies ; nor were the policies, when issued, sent to him for delivery, or the premiums paid to him to be forwarded to his company.
These contracts, for the-reasons stated, were not Arkansas contracts, but Illinois contracts.
When the applications of the appellee had been received, passed upon, and accepted, .and the policies oí insurance had been dated and signed at Chicago, and then mailed to the appellee, the contracts were then and there complete, and were Illinois contracts, and- governed by the laws of that State. 2 Parsons on Contracts, 712; 2 Kent,Com. (12th E)d.) page' 477, and note; Tayloe v. Merchants' Fire Ins. Co., 9 How. (U. S.) 390; McIntyre v. Parks, 3 Met. 207. .
Though the appellant company failed to comply with the statute in not doing those things required of foreign corporations before doing business in this state, the contracts in this case were not void on that account, as they are Illinois contracts.
It is also contended that these policies are void.because the appellant company failed to comply with the statute r J c J ia regard to “foreign insurance companies and agents therefor,” found in Sandels & Hill’s Digest, from section 4137 to section 4139 inclusive ; and particularly because section 4138 says that “ any person or persons, or corporation, receiving premiums or forwarding applications, or in any other way transacting business for any insurance company or corporation not of this state, without having received authority agreeably to the provisions of this act, shall forfeit and pay to the school fund of the state the sum of five hundred dollars for each month or fraction thereof during which such illegal business was transacted; and any company not of this state, doing business without authority, shall forfeit a like sum for every month or fraction thereof, and be prohibited from doing business in this state, until such fines are fully paid ; and every such person, or persons, or corporation, shall be deemed guilty of a misdemeanor, and, upon conviction, shall be fined in any sum not less than five hundred dollars.”
It will be observed that, though penalties are imposed in this act upon the persons or corporations doing the things therein prohibited without first complying with its requirements, it does not make void the contracts made by the insurance companies without such compliance, either as the corporations named therein, or the policy holders in such companies.
In Toledo Tie & Lumber Company v. Thomas, 11 S. E. 37, it is stated — correctly, as we think — by the supreme court of appeals of West Virginia that “a contract made by a foreign corporation before it has complied with the statutory prerequisites to the right to do business in another state will not on that account be held absolutely void, unless the statute expressly so declares; and if the statute imposes a penalty upon the corporation for failing to comply with such prerequisites, such penalty will be deemed exclusive of any others.” (See cases cited in that opinion).
The insurance contracts in this case were not void on account of the failure of the insurance company to comply with the statutory prerequisites to the right of a foreign insurance company to do business in this state. The penalty imposed by the statute was exclusive of any other forfeiture. Washburn Mill Co. v. Bartlett, 54 N. W. 544; 2 Morawetz, Corp. sec. 665.
There was a provision in these policies of insurance (sec. 8) that ‘‘this insurance may be terminated at any time at the request of the assured, in which cases the association shall retain only the customary short rates for the time the policy has been in force.”
The defendant contends that, before the expiration of the first year for which it had paid premiums, to-wit, in May, 1891, and before the commencement of this suit, it requested the cancellation of its policies of insurance, and the return of the unearned premiums, amounting to $125, which amount the defendant claimed was due it, and for which it demanded judgment. It contended that its request for cancellation terminated its liability for any assessment thereafter made, añd left the company indebted to it for unearned premiums, and says the company refused to cancel the policies or pay the unearned premiums till the maturity or anniversary of the policies. There was proof tending to support this contention.
The company maintains that, before it could ascertain the amount due the appellee for unearned premiums, it would have had to await the expiration of the year, or the anniversary of the policy, that it might be able to determine for what proportion of the expenses and liabilities, in proportion to appellees’ insurance, up to the date of the request for cancellation, the appellee would be liable, and it does not appear that there was any offer by appellee to meet these in any way; but it seems that the appellee claimed that it was entitled at once to the unearned premiums at the date of its request for cancellation of its policies, without provision for, or recognition of, any obligation to bear its legitimate proportion of the liabilities of the association of which the appellant was a full member, according to the charter of the said association.
The 9th section of the charter of the appellant company provides that “any member of this company may withdraw therefrom by notice in writing to the secretary and paying all dues and liabilities.” If there were dues or liabilities which the appellee was liable to pay to the company, he was entitled to recover the unearned premiums, less the amount of his dues and liabilities to the association, but not until these could be ascertained, and the balance of the unearned premiums became due and payable according to the charter and by-laws of the association, to which the appellee subscribed when it became a member of the association.
It is apparent from what has been stated herein that the circuit court in its first finding of facts erred, and that in its third finding it stated only what was conceived to be the legal effect of the evidence, and not the evidence itself. The declarations of law made by the court are inapplicable to this case, and erroneous. The court, it seems, tried the case upon a wrong theory.
For the errors indicated, the judgment is reversed, and the cause is remanded for a new trial.
Cf. Railway Company v. Fire Association, 60 Ark. 325. (Rep.) | [
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Hughes, J.,
(after stating the facts.) Though it is the favorite policy of a court of equity to distribute assets equally among creditors -pari -passu, yet, whenever a judicial preference has been established, by the superior legal diligence of any creditor, that preference is always preserved in the distribution of assets by the court. McDermutt v. Strong, 4 Johns. Ch. 687. Here the appellees, to whom the reward of diligence was granted, filed their bill to set aside the assignment for fraud, and succeeded. The appellants contented themselves with standing by and seeing the appellees carry on the contest at their own labor and expense. This seems to come within the maxim, “ Vigilaniibus, non domientibus, jura subveniunt." “The creditor who first files his bill obtains thereby a priority, and is entitled to be first paid out of the proceeds of the assets, if there are no valid prior liens. Clark v. Figgins, 31 West Va. 157, and cases there cited.
Section 577, Beach, Mod. Bq. Pr., lays down the rule as follows : “A creditor, who delays asking to be •admitted as a complainant until after the case has been finally heard, should be admitted, unless his admission is by consent, only on condition that those who have ■expended their labor and incurred the risk of trying the ■case be first paid.” In the case of Smith v. Craft, 11 Biss. 340, Judge Gresham maintained that, “after the announcement of the finding of the court in favor of the complainants attacking the fraudulent preference, if other creditors come in and ask to be made parties to the suit as co-complainants, this may be done, but their ■claims will be postponed in favor of the original complainants.” “It is clear that creditors filing a bill to ■set aside a fraudulent conveyance acquire a specific lien, and are entitled to priority over other creditors at large.” Wallace v. Treakle, 27 Gratt. 487.
The intervening creditors here obtained judgments on their claims at the April term of the circuit court for 1893, and caused executions to be issued thereon and placed in the hands of the sheriff of the county, and they were held by the sheriff at the time of the final decree in this cause. They thus obtained liens on all the assigned property, subject to be seized on execution, and they thereby obtained priority over Senter & Co., who did not obtain judgment till the October term of court next thereafter.
A fraudulent conveyance, though good between the parties, passes nothing as against creditors. 2 Bump on Fraudulent Conveyances, 465 ; Freeman on Judgments, 350, 394; Stix v. Chaytor, 55 Ark. 116; McNeill v. Carter, 57 Ark. 579.
When the law gives priority, equity will follow it. Codwise v. Gelston, 10 Johns. 522; Wiswall v. Sampson, 14 How. 67; Wormser v. Merchants National Bank, 49 Ark. 117; Wallace v. Treakle, 27 Gratt. 487.
“When a bill is filed by judgment creditors, in behalf of all judgment creditors, to reach property which could not be effectively reached at law, as in suits against an administrator to reach assets fraudulently conveyed by the deceased in his lifetime, and where the statute provides that the assets in the hands' of the administrator shall be held subject to the payment of debts in the order prescribed by statute, * * * * * it is well settled that no preference can be obtained by filing a creditor’s bill first. Upon the death of a person, his estate is at once charged with the payment of all debts, to be paid under the statute, according to class, pro rata." Clark v. Shelton, 16 Ark. 474; Jackson v. McNabb, 39 Ark. 117; 2 Story, Eq. Jur. sec. 890; Thompson v. Brown, 4 Johns, Ch. 620. Several cases of the kind last mentioned are cited by counsel for the appellant, but they are not applicable to the case at bar.
The complaint to set aside the assignment for fraud in this case was brought by the interveuors named therein as plaintiffs, and in behalf of all other creditors of the assignors who might wish to join therein. The appellants did not propose to become parties, or to intervene, until after final decree setting aside the assignment as fraudulent, and ordering the assets distributed to the original complainants in the bill to set aside the assignment. They were therefore properly refused the privilege of sharing pro rata in the distribution of the assets uncovered by the suit of the original intervenors without their assistance. There is no error in the court’s decree on this ground.
We are of opinion that, upon the offer of Senter & Co. to intervene and contest the distribution of the rents of lands, which had been sold by Baird & Caruth before the .assignment, and for which they had made bonds for title, and the purchase money notes for which they had- assigned to Senter & Co., the purchasers of these lands, and Senter & Co. should have been made parties, that their respective equities m.ight be determined by the court. It is apparent that neither Baird & Caruth, nor Ware, the assignee, had interest in these lands, as they were sold by Baird & Caruth before the assignment, and the notes for the purchase money had been assigned by Baird & Caruth, before the assignment, to Senter & Co. After they were sold by Baird & Caruth, they held merely the legal title in trust, to be conveyed to the purchasers when the purchase money should be paid. When the notes for the purchase money were assigned to Senter '& Co., they became thereby entitled to the vendor’s lien for the payment of the notes. It is clear, therefore, that the equities as to those lands were between the purchasers and Senter & Co. It was not equity to distribute these rents to Baird & Caruth’s general creditors. This part of the decree is reversed, with directions that the purchasers of these lands be made parties. OtherWise the decree is affirmed. | [
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BaTTEE, J.
This is the second time this action has beeq, in this court on appeal. It appears the first time as Porter, Taylor & Co. v. Hanson, 36 Ark. 591.
J. M. Narrow brought an action in the St. Nrancis circuit court against John Parham to foreclose a vendor’s lien on certain lands, and obtained a decree against him for $6,037, which was declared a lien on the lands, and they were sold by a commissioner of the court, and purchased by Narrow at the price of $4,800. The court confirmed- the sale, but postponed the execution of the deed, holding that Parham was entitled to one year in which to redeem.
Narrow, being indebted to Porter, Taylor & Co. in the sum of $3,188, and to Newton, Nord & Co. in the sum of $3,050.20, and thinking that Parham might redeem the lands, executed to them am.instrument of writing, empowering them to collect and receive the redemption money from Parham, and apply it to the payment of their debts pro rata, and providing that, if Par-ham failed to redeem, one John B. Cummins should, as trustee, sell the lands, and appropriate the proceeds to the payment of the debts.
Before the expiration of one year after the sale under the decree of the court, Narrow died, and the lands, not having been redeemed, were conveyed by a commissioner, under an order of the court, to his heirs.
In August, 1877, Hanson, Weatherford & Bstes, a firm of lawyers, instituted an action in the St. Francis circuit court against the heirs of Farrow, and D. T. Porter, W. F. Taylor and G. W. McCrae, as .partners composing the firm of Porter, Taylor & Co. and the first two as surviving partners of the late firm of Newton, Ford & Co., to enforce a lien upon the lands for professional services rendered by them in the suit instituted by Farrow against Parham. The lands were again sold, the last time under a decree rendered in the last mentioned, suit, and were purchased by the creditors, who were parties thereto. But they refused to comply with their bid, and tendered an answer and cross-bill instead, in which they asserted rights in the lands, or the proceeds of the last sale, under the instrument of writing executed to them by Farrow, superior to all others, and appealed from an adverse decree.
This court held that they were bound by their purchase, and that Hanson, Weatherford & Bstes had the superior lien, but expressed the opinion that the instrument of writing created a lien in their favor, and remanded the cause with the direction that the heirs of Farrow be brought in by new service “for all matters connected with the cross bill, and have day in court.”
The attorney’s 'lien was subsequently discharged, and the creditors, Porter, Taylor & Co. (now .Porter & McCrae), and the Narrow heirs, the appellants, were left to litigate.
At the October term, 1881, the St. Francis circuit court directed a warning order to be published, requiring the Farrow heirs to answer Porter, Taylor & Co.’s cross-bill. On the 18th of February, 1882, they filed an answer, and alleged that, within the year allowed for the redemption of the lands from the first sale, J. M. Farrow died, and the St. Francis circuit court, at its October term, 1876, vested the title to the lands in them, and that more than five years had elapsed before the cross action was commenced against them.
They denied that the creditors were entitled to any relief under the instrument of writing executed by J. M. Farrow, and averred that the debts secured thereby were illegal and usurious ; that, on the 1st of April, 1871, J. J. Farrow executed to said creditors a note for $3,951.94, which was due on the 1st of December, 1871, and on the 19th of December, 1871, together with J. M. Farrow, their father, executed a note in renewal of the first, which was due on the 1st of January, 1873, for $4,428.72, including $474.52 interest for thirteen months, —more than 12 per cent, per annum, — and this was part of the note secured by the instrument of writing sued on.
By the way of counter claim, they alleged that their father, J. M. Farrow, had, on the 20th of June, 1871, in his possession, as their trustee, $9,500, belonging to them, which he, on that day, delivered tó said creditors, he being individually indebted to them as Newton, Ford & Co. in the sum of $1,838.69, which they retained out of the $9,500, and appropriated the remainder, according ■to his directions, to the payment of his individual account with them.
And they filed with their answer interrogatories which they propounded to the cross-complainants, and asked that they be required to answer them, which was done.
Upon a final hearing upon the merits the court found that the cross-action was not barred by the statutes of limitation ; that J. M. Farrow, the father of the defendants in the cross-complaint, collected in 1871 $10,-000 of the St. Uouis Mutual Life Insurance Company, which was a trust fund in his hands for them ; that on the 20th of June, 1871, he deposited of this fund $9,500 with Porter, Taylor & Co., which they received, and credited him therewith as his fund, and on the same day appropriated $1,838.69 thereof to the payment of an indebtedness of J. M. Farrow to them, but that it does not appear that they had notice of the trust at the time of the deposit and appropriation ; that the indebtedness of J. M. Farrow to the cross-complainants, as evidenced by his notes to them, was contracted in Tennessee, and was usurious, but that in Tennessee a usurious contract may be purged of usury, and the principal and six per cent, per annum interest thereon can be collected ; that the note executed by J. M. Farrow in payment of the indebtedness of J. J. Farrow was based on a .valuable consideration received by the former from the latter, and was, therefore, valid as to principal and interest ; and that, purging the indebtedness of J. M. Farrow, except the last mentioned note, of usury, he was indebted to cross-complainants in a sum larger than the amount of the proceeds of the second sale under the decree of the St. Francis circuit court and interest thereon ; and decreed that they retain in their hands such proceeds, they having purchased the lands at the second sale, and still owing for the purchase money at the rendition of the decree.
The finding of the court as to the statute of limitation is correct. The cross-action of Porter & McCrae was not an action to recover’ lands within the meaning of the five years’ statute pleaded by the defendants ; and the plaintiffs and defendants therein claimed under the same judicial sale. Duke v. State, 56 Ark. 485; and Phelps v. Jackson, 31 Ark. 272.
The-allegations of the Narrow heirs as to the $9,500 were denied by the plaintiffs in the cross-action. evidence as to their truth or falsity appears in the record, except an answer filed by them in an action instituted by the Narrow heirs, or a part of them, against the. plaintiffs in this action in a Tennessee court. In that answer they admitted that J. M. Narrow deposited with Nord, Porter & Co.. $9,500, but denied that there was paid out of that sum an indebtedness of J. M. Narrow to the late firm of Newton, Nord & Co. of which they had been members, and in which they were then interested ; and alleged that, three days before the receipt of the $9,500, J. M. Narrow was charged with cash paid Newton, Nord & Co., $1,464.99,” but this occurred before the credit of the $9,500, and had no connection whatever with that money; that, after the deposit was made, the account of Narrow- was continued as usual, and “ small amounts of merchandise were from time to time sold him, and charged on the account;” that ‘‘these items for merchandise for the month of June, 1871, amounted to $93.60, for July about $66, for August $69, for September $95.24, for October $29.46, and the full amount of such debts, after the date of such deposit and to the closing of the account, aggregated less than $400;” that ‘‘the balance of the debit items of the account were cash paid to the said Narrow in person or on his order;” that the deposit of this money was in the usual course of business, and without any notice that it was not his own, until an action for the settlement of the estate of Narrow had been commenced, long after the money had been withdrawn from their hands and control, and when, it appears, repeated settlements had been made by them and Narrow — Narrow had died — and they had, many years prior to the notice, probated their claims against his estate. Under these circumstances, they were not liable to the heirs for the deposits.
As to the note given by J. M. Narrow in the payment of the indebtedness of J.. J. Narrow to Newton, Nord & Co. it appears that J. J. Narrow executed a note to Newton, Nord & Co., for $3,951.94 on the 1st of April, 1871; that on the 19th of December, 1871,' J. J. and J. M. Narrow paid this note by executing another for $4,428.71, payable on the 1st of January, 1875, adding for interest $474.52, and for stamps $2.25 ; and that on the 21st of Nebruary, 1876, they executed to Newton, Nord & Co. another note for $3,050.20 in renewal of the note for *$4,428.71, and this is one of the notes secured by the instrument of writing in question. These facts appear in an answer of plaintiffs to an interrogatory propounded to them by the defendants. It further appears in the same answer that J. M. Narrow did not become a principal in said notes “until long afterwards, when, for a consideration moving from J. J. Narrow to J. M. Narrow, the latter assumed the balance of said indebtedness then due.”
But appellants, the defendants, say that the portion , of the answer as to the consideration was not responsive to the interrogatory, and for that reason, and because it related to transactions with a deceased person, and was made in an action wherein the guardian of minors was a defendant, it was not competent testimony. The question propounded is as follows: “Please examine the paper marked ‘X No. 1’ attached to our answer hereto, which is referred to in paragraph 6, and state if it is not genuine, and if it was not furnished by the house of Newton, Pord & Co., and if the indebtedness therein referred to is not the same that is evidenced by the note of James M. Parrow to Newton, Pord & Co., dated February 21, 1876, for $3,050.20, and included in the writing which is referred to in your cross-complaint.” It will be seen from this question that its object was to ascertain the consideration of the note for $3,050.20. To it the appellees (plaintiffs) answered as follows: “ The paper marked ‘X No. 1,’ filed with the answer, is genuine, and was furnished by the house of Newton, Pord & Co. The indebtedness of [to] Newton, Pord & Co. of $3,050.20, referred to, is part of the original indebtedness of J. J. Parrow mentioned in the exhibit. J. M. Parrow was the surety, on the note credited in said exhibit, and the interest charged therein was in fact a charge against J. J. Parrow; and J. M. Parrow did not become the principal debtor on said indebtedness until long afterwards, when, for a consideration moving from J. J. Parrow to J. M. Parrow, the latter assumed the balance of said indebtedness then due.” The answer was fairly responsive to the question. An answer in the affirmative would have made it appear that the note for $3,050.20 was executed by J. J. Parrow as principal and J. M. Parrow as surety, and was usurious. That would' have been false. Hence, to give a true answer, it was necessary for appellees to respond as they did. As they were called to testify by the opposite payty, their answer was competent evidence. Schedule of Constitution, sec. 2.
The note of J. M. Parrow for $3,050.20 being based on a valuable consideration received by him from J. J. Farrow, it is a valid obligation. Neither he nor his heirs can defeat the collection of it by pleading usury. Pickett v. Merchants National Bank, 32 Ark. 346, 374; Tyler on Usury, 403.
The last mentioned note being a valid note, and the other, purged of usury according to the laws of Tennessee, where the contracts in controversy were made, J. M. Narrow was indebted to appellees in an amount exceeding the purchase money of the second sale of the lands and interest thereon.
But it is contended by appellants that, inasmuch as the constitution of this state declares that all contracts for a greater rate of interest than 10 per cent, per annum shall be void, and the notes executed by Narrow to appellees bear a greater rate than 10 per cent, per annum, and the lands on which the lien is charged by the instrument of writing in question lie in this state, the writing creating it is void. But this contention is not correct. The law of the place which determines the validity of a contract secured by a mortgage determines whether the mortgage be valid or usurious, irrespective of the place where the land which is the subject of the mortgage is situated. Contracts for a greater rate of interest than is allowed by the laws of this state, when valid according to the laws of the place which determine their validity, have been frequently upheld and enforced by our courts. There is no good reason why a mortgage or lien on lands in this state securing such interests should not also be enforced. 1 Jones on Mortgages (5 ed.), secs. 657-661, and cases cited ,• and Pingrey on Mortgages, secs. 795-798, and cases cited.
The validity of the contracts secured by the lien in this case is determined by the laws of Tennessee. One being valid as to the principal and interest, and the other except as to all interest in excess of six per cent, per annum, the lien securing them is valid to the same extent.
It is further contended by appellants that the power conferred on John B. Cummins by the instrument of writing executed by Narrow to secure creditors, not be ing coupled with an interest in the lands thereby encumbered, did not survive Narrow. But this is. immaterial. No one is seeking to exercise the power. The instrument of writing is an equitable mortgage, and appellees have brought their action to foreclose it, which they had the right to do.
The decree of the circuit court is affirmed. | [
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Bunn, C. J.
(after stating the facts.) Both in overruling defendant’s demurrer to the indictment, and in the trial of the cause, the court below proceeded on the theory that the statute referred to requires of railroad companies that they erect passenger depot buildings at all points on their roads where passengers are allowed to get off and on their trains ; or else that the storehouse referred to in evidence was a “passenger depot,” as contemplated within the meaning of the act.
The proof showed Wilmar to be nothing more than a flag station, without any building whatever belonging to or under the control of defendant, or used by it as a depot building, and this mere flag station is denominated in the indictment a “ passenger depot.”
The statute under consideration cannot be construed so as that it requires of railroad companies to erect passenger', depot buildings where they have none, but the requirement is that they provide separate waiting rooms in their depot buildings already existing or to be erected ; and the expression “passenger depot,” as employed in the act, means a depot building used for the reception of passengers.
If the words “passenger depot,” as descriptive of the depot at Wilmar in the indictment, were intended to mean a mere place where passengers were allowed to get on and off the trains, without any reference to the buildings connected therewith, then the demurrer should have been sustained; but if the words in the indictment had reference to the storehouse mentioned in the evidence, then the verdict was not sustained by the evidence, for the storehouse was not a depot building, and was not owned, used or occupied by defendant as such.
The judgment is therefore reversed, and the cause remanded for further proceedings in accordance herewith. | [
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Riddick, J.,
(after stating the facts). The first . contention of the appellants is that the county court had no right to hear and decide a contest concerning the result of an election upon the question of granting or refusing liquor license. The object in holding such an election is to determine whether or not the county court may grant such license in the county where the election is held. The statute directs that all returns from such elections “shall be sealed up and forwarded to the clerk of the proper county, and by him laid before the county court. ***** If at such election the majority of the votes cast in any county upon the question be not ‘for license,’ then it shall be unlawful for the county court of such county to grant license. * * * But if a majority of the votes cast in any county upon the question be ‘for license,’ then it shall be lawful for the county court of such county to grant license, etc.” Secs. 4868 & 4869, Sand. & H. Dig.
Under this statute, it is the duty of the county court? before granting license for the sale of liquor, to determine whether a majority of the votes of the county have been cast for or against license. This, we think, gives that court the power, in a proper proceeding, to inquire whether the vote has been fairly taken, and, if fraud be shown, the right to purge the polls.
It is now well settled that the county courts of this state have the right to determine contests concerning the result of elections for the location or removal of county seats, on the ground that it is a matter of local concern, over which the county court have jurisdiction. The issuance of license to sell liquors is a matter of local concern, as much so as the removal of a county seat; and the circuit court correctly held that the jurisdiction to determine a contest of the vote upon the question of liquor license is in the county court. Russell v. Jacoway, 33 Ark. 191; Williford v. State, 43 Ark. 62; Const. 1874, art. 7, sec. 21 ; Glidewell v. Martin, 51 Ark. 558.
It is also contended that the recount of the votes of Bragg township by the election commissioners is conclusive upon appellees, and precludes a contest of the election in the courts, but we hold that this is not so. The commissioners, in making this recount, had only the power the judges of the election had in the first instance. Their findings, while conclusive in collateral proceedings, and prima facie evidence when directly assailed, may yet be inquired into, and corrected by proper proceedings in the courts. Cooley’s Const. Lim. (6 ed.) 788 ; Sand. & H. Dig. sec 2670.
Neither do we think that the appellants can rightly object to want of notice. They came forward of their own motion, were made parties defendant, and allowed to respond to and resist the petition of appellees. As every citizen of the county was interested in the question at issue, and, as it was impracticable to bring all of them before the court, the appellants were properly allowed to appear and defend for all. Sand. & H. Dig. sec. 5632. But, having thus voluntarily appeared, they could not afterwards be allowed to say they had no notice. St. Louis, etc., R. Co. v. Barnes, 35 Ark. 95; Murphy v. Williams, 1 Ark. 384, and note to annotated edition.
Before hearing the cause on appeal, the circuit court granted leave to the contestants to make certain amendments to their petition. It is asserted that this was beyond its power; but we do not think so. The circuit court, on appeals from the county courts or other courts, may permit amendments to be made to the petition or statement of the plaintiffs’ cause of action, so as to make it more definite and certain, provided that such amendment does not change the cause of action. Such amendments are within the discretion of the circuit court, and no abuse of that discretion has been shown in this case. Railway Co. v. Lindsay, 55 Ark. 282.
After hearing the evidence, the circuit court found t # that, by reason of fraud practiced by the judges of said election in Bragg township of Ouachita county, the returns of election prepared and certified by them were unreliable and worthless, and that the court was unable to determine from the evidence the true vote of said township upon the question'of license.
Before considering the' evidence bearing on this point, we will notice the statute under which the election was held. The act of March 4th, 1891, entitled “An act to regulate elections in the state of Arkansas,” was an effort on the part of the legislature to protect the voter against undue influences of all kinds at the polls, and to secure, through the ballot-box, a genuine expression of the will of the electors of the county and state. To effect this end, there'are stringent regulations for the protection of the voter against interference or influence while at the polls. The act provides that no person whomsovet shall do any electioneering in any polling room, or within one hundred feet of any polling room, on election day ; and it especially prohibits officers of the election from electioneering on election day. A violation of this prohibition is made a felony, punishable by imprisonment in the penitentiary not less than one nor more than three years. Sand. & H. Dig. sec. 2656.
To insure the elector against interference or influence while preparing and depositing his ballot, the statute directs that booths shall be prepared and furnished with table, shelf, or desk for the convenience of the electors in preparing their ballots. It provides that the walls of the booths shall be “so constructed as to enable each elector to enter therein, and prepare his ballot free from the interference of any person whomsoever.” It directs that, except as the electors are admitted and pass in one at a time to vote, no person shall, under any pretext whatever, be permitted in the polling room, from the opening of the polls until the completion of the count of the ballots. With above exceptions, no person is permitted to come nearer than fifty fee.t of any door or window of a polling room. Sand. & H. Dig. sec. 2629.
From these and other provisions of the statute is plainly evident the intention of the legislature to free the voter from all extraneous influence, and to make his ballot an expression of his own will. The act designates certain officers whose duty it is to see that elections are conducted as required by the statute. But the legislature, by language which can admit of neither controversy or doubt, has forbidden these officials from doing anything whatever that should in any way influence the elector in casting his ballot.
To guard against this as carefully as possible, and to omit no reasonable safe-guard, it provides, in the case of those electors who cannot read or write, or who, from physical disability, are unable to prepare their ballots, that they may ca 11 upon the j udges to assist in the preparation of their ballots ; but the act expressly provides that this shall be done by two of the judges, who, “in the presence of the elector and in the presence of each other, shall prepare his ballot as he wishes to vote.” The language of the statute on this point is noteworthy, for it requires that not one but two judges shall assist in the preparation of the ballot, and that, in the presence of the elector and in the presence of each other, they “shall prepare his ballot as he wishes to vote.” Sand. & H. Dig. sec. 2652. We do not understand by this that two judges shall perform the manual labor of writing the ballot, but that the legislature intended by this language to make clear the injunction that, whenever a voter requires assistance in the preparation of his ballot, two judges must not only be present with the elector while preparing the ballot, but that both must be actively engaged in seeing that the ballot is prepared as the elector directs it to be prepared, without solicitation or influence of any kind whatever.
In the light of this statute we will now look at the evidence upon which the circuit judge based his findings and judgment. There was evidence at the trial that one of the judges of the election distributed tracts on election day for the purpose of influencing the voters to vote against license; that the judges of the election electioneered with the voters in the election booths, and used their influence to control votes against license. Many of the voters, were unable to read, but the judges did not wait to be requested by the voter to prepare the ballot, but at times solicited the voters to allow them to prepare their ballots. By this means they were permitted to prepare the ballots for many voters who were entirely able to prepare their own ballots. Over half of the ballots cast in the township were prepared by the judges. The judge preparing the ballot did not do so in the presence of another judge, as required by the statute. The ballots, after being prepared by the judge, were folded by him, and returned to the voter, who then delivered it to another judge to be placed in the ballot-box. , Over forty voters, only a few of whom could read, testified that they directed the judges to prepare their ballots “for license,” and supposed at the time they cast their ballots that they were voting for license. The testimony of these witnesses is corroborated by the testimony of one of the clerks of the election, who testified that he overheard several of these witnesses direct the judges to prepare their ballots for license. But the ballots of these voters were written “against license.” If this testimony was true, these electors, through the fraud of the judges preparing their ballots, were led ignorantly to vote contrary to their own wishes. But not one of the judges of the election was placed upon the stand to testify and rebut this array of testimony ■tending to show irregularities and official misconduct on their part.
“There is,” says Judge McCrary in his work on elections, “a difference between fraud committed by offi cers, or with their knowledge and connivance, and a fraud committed by other persons, in this : the former is ordinarily fatal to the return, while the latter is not fatal, unless it appear that it rendered doubtful or changed the result. “If an officer is detected in a willful and deliberate fraud upon the ballot-box, the better opinion is that this will destroy the integrity of his official acts, even though the fraud discovered is not of itself sufficient to affect the result. The reason of the rule is that an officer who betrays his trust in one instance is shown to be capable of defrauding the electors, and his certificate is good for nothing.” McCrary on Elections, sec. 539; Judkins v. Hill, 50 N. H. 140; Patton v. Coates, 41 Ark. 123; Jones v. Glidewell, 53 Ark. 174.
When we consider the evidence that the officers of election in Bragg township, in violation of the express statutory provision, electioneered with voters, and urged the voters to allow them to prepare their ballots ; that these ballots were not prepared by two judges in the presence of each other, as required by the statute, and that a large number of voters testified that the judge wffio prepared their ballots prepared them on the question of license directly contrary to their expressed wishes, — when these facts are considered along with the fact that no judge of the election was placed on the stand to rebut this testimony, nor any excuse shown why they were not made to testify, we can come to no other conclusion than that the evidence was sufficient to support the finding of the circuit court. It is not for us to speculate whether this testimony was true or not. The circuit judge who heard it, and who saw and observed the witnesses upon the stand, has based his findings upon it, and we must assume that it is true. The rule is that if the facts given in evidence, admitting them to be true, and the reasonable inferences therefrom, support the finding of the circuit court, the appellate court should not reverse for want of evidence.
It is strenuously contended that a voter should not be heard to contradict his own ballot. When the ballot has been prepared by the voter himself, and afterwards securely kept by the lawful custodians thereof, this would, doubtless, be the true rule. In such a case the ballot would be the best evidence. Hudson v. Solomon, 19 Kas. 177; McCrary on Elections, sec. 44c.
There might even be force in the argument when the ballot is prepared by two judges in accordance with the statute, and there are not strong circumstances, apart from the testimony of the voter, tending to show fraud on the part of the judges. When the ballot has been thus lawfully prepared and safely kept, there is certainly a strong presumption in favor of its correctness, whether it be conclusive or not.
But we need not pass on that question, for it is not before us in this case. The judges in Bragg township did not comply with the statute in the preparation of the ballots. The ballots should have been prepared by two judges in the presence of the elector, and in the presence of each other, for such is the requirement of the statute, — to prevent just such a controversy as we have here. The failure of the judges to obey this mandate of the statute cast discredit upon the ballots thus prepared; and when a large number of the electors testified that these ballots were not prepared in accordance with their directions, the circuit court was justified in considering the testimony in connection with other evidence, and in giving it such weight as he deemed proper.
As there was evidence to support the finding of the circuit court that the judges of the election in Bragg township were guilty of fraud in the conduct of the election, that finding must stand. Jones v. Glidewell, 53 Ark. 174. In the absence of other evidence showing the true vote of that township, such finding justified the circuit court in rejecting the vote of that township.
There were other questions discussed by counsel, but, as our conclusion on this point compels us to uphold the judgment rendered by the circuit court, we need not discuss them. The judgment of the circuit court is affirmed. | [
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Bunn, C. J.
This is an appeal from the Little River circuit court, from a judgment therein rendered affirming the judgment of the county court on appeal therefrom, ordering an election on the subject of a removal of the county seat of that county.
There were, at the time of the presentations for removal under the statute, as shown by the return of the assessor made next before that time, to-wit: on the 15th August, 1894, 2030 voters in Little River county; and the. four petitions presented to the county for removal, in behalf of Millkin, Rocky Comfort, Ashdown and the Younse Place, contained 450, 125, 175 and 19 names of unchallenged voters, respectively, making in the aggregate the number of 769 undisputed names of voters, asking for removal, but for the different places as aforesaid. One-third of the legal voters was 677. Thus the aggregate number of petitioners for removal to the four several places from the existing county seat, was 92 voters in excess of the requisite one-third named in the statue.
The only question before us is, was the county court authorized to order the election, under section 945, Sandels & Hill’s Digest, on the petition of more than one-third of the voters of the county, expressed in four several petitions for removal, but each to its own place, where no one of said petitions contained the names of the requisite one-third of the voters of the county?
Section 945, Sand. & EL Dig., is in the following language, to-wit: “Whenever the qualified voters of any county in this state to the number of one-third thereof shall join in the petition to the county court of such county for the change or removal of the county seat, embodying in the petition the designation and abstract of title and the terms and conditions of the sale or donation, as provided for and required by section 943, the county court shall order an election to be held at the several voting places in the county, directing that the proposition of the petitioners for the change or removal shall be submitted to the qualified voters.”
It will be observed that the word “petition” is used in the singular number in this section, and from that circumstance it might reasonably be inferred, and is in fact contended, that the one petition, — that is to say, some one of the petitions, if there be more than one,— should of itself contain the names of the requisite one-third of the qualified electors of the county, ascertained as aforesaid; but the language of the section referring to the property conditions and stipulations to be attached to and accompanying it make reference to section 943, which reads as follows, to-wit: “Unless for the purpose of the temporary location of county seats in the formation of new counties, it shall be unlawful to establish or change any county seat in the state without the consent of a majority of the qualified voters of the county to be affected by such change, nor until the place or places at which it is proposed to establish or change any county seat shall be fully designated, such designar tion embracing a complete and intelligible description of the proposed locations, together with an abstract of the title thereto and the terms and conditions - upon which the same can be purchased or donated by or to the county”; thus clearly providing that more than one place, and any number of places, may be entered as candidates for the contemplated location, if the change or removal is voted for.
In section 948 it is provided that the ballots shall be so formed that each voter will be privileged to vote on two separate and distinct propositions, namely, the removal, and the place to which he desires the removal to be. And in the next section it is provided that if the first proposition — that is, the removal — is sustained by a majority of the voters in the county, then that proposition is eliminated from the contest, and the same is narrowed down to a settlement of the second proposition, namely, the place to which the removal shall be made. This contest is determined by the same election at which the removal is settled, if a majority of the voters of the county, at that election vote for any one of the designated places, no votes being counted on this proposition except those for places put in nomination, so to speak, by the county court; but, if no one place shall receive the requisite majority at this first election, then the court must order another election, to determine which one of the two places receiving the highest number of votes at the first election shall be the location of the county seat.
It is contended, with sound reasoning, that, if the petition referred to in section 945 must contain the names of one-third of the voters of the county, the same requirements should be made of all the petitions, and that, since any number of petitions may be presented, it follows that, when there should be as many as three petitions, some one of them must necessarily fail to contain the one-third, and therefore the object of the law would be defeated. Again, it is suggested that, in view of former conditions attached to removal of county seats, acting with abundance of caution, the legislature really intended that at least one of the petitions should contain the names of the required one-third of the voters of the county, and that, without this precaution, elections on the subject could be too easily procured. This would appear to be true, at first sight; but, looking at it more closely, such a precaution would really amount to nothing, because the petitioners for the various places could and would combine, and so distribute their names on the several petitions as to give one the requisite one-third, and thus attain the end reached in case the requisite one-third may be counted from the aggregation of the names on all the petitions. So, in either case named, no good could come to the public, and both of the two contentions are without any good reason to support them, and therefore we are not to attribute such an intention to the legislature.
We are clearly of the opinion that if all the petitions asking for removal, taken together, amount to one-third of the voters of the county, the county court is authorized and required to order the election, and that it makes no difference how many different papers or petitions contain these namés, the only requisite being that they all ask for removal, or enough of them to constitute the one-third, and this without regard as to how any of them may stand on the other proposition, namely, the place of location of the county seat. We are therefore of the opinion that the judgment should be affirmed, and the cause is remanded, with directions to proceed according to law. This makes it unnecessary for us to rule on the other questions raised. | [
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Wood, J.,
(after stating the facts). The questions are : First. Was the deed from John P. Dickson to McKneely void for fraud and undue influence ? Second. Did Samuel W. McKneely, in 1869, execute deeds to David H. Dickson and John D. Trigg to an undivided one-third in the lands in controversy? And did he enter into a written obligation with David H. Dickson, at the same time, by which he (McKneely) was to retain possession of the entire place for three years, and at the end of which time he was to surrender to the heirs; and was this agreement fulfilled ? Third. If plaintiffs, Mollie C. Terry and John D. Trigg, have the legal title to an undivided interest in the whole or a portion of the lands in controversy, are they barred from recovery by laches or limitations ? Fourth. Are plaintiffs, Mollie C. Terry and John D. Trigg, entitled to an undivided one-sixth, each', in the lands sued for, as the only heirs of Mrs. Davinia McKneely. Fifth. Is Mrs. Mattie McKneely entitled to dower as an innocent purchaser for value? Sixth. Can plaintiffs, if they are decreed the owners of an undivided interest, recover rents for their share collected by McKneely in his lifetime; and can they have a lien for rents declared upon the undivided interest remaining in the heirs of McKneely ?
1. Was the deed void ?
The circuit court, in an elaborate decree, in which we think the facts are accurately discussed and the law correctly applied, found that there was no evidence to justify setting aside the deed. We are of the same opinion. A discussion of the facts leading to this conclusion could only be of interest to the parties litigant, and would serve no useful purpose as a precedent. The law is too well settled for discussion. The plaintiffs, therefore, cannot recover as to the heirs of John P. Dickson.
% The chancellor found that in 1869 McKneely executed conveyances to David H. Dickson and John D. Trigg, securing to them, respectively, the interest they claimed in the lands, and also executed an agreement by which he was to hold the land for three years, after which he was to surrender the same; that McKneely did hold the lands for three years, and then gave possession to David H. Dickson, father of Mollie C. Terry, who held until he died in 1873 ; that, after David H. Dickson’s death, McKneely again took possession, and collected and appropriated to his own use the rents and profits until his death in 1889. These also are purely questions of fact, and the evidence fully supports the court’s conclusion. This answers the second proposition, and determines the right of Mollie C. Terry, as the only heir of David H. Dickson, and of John D. Trigg, to recover under their deeds, unless they are barred by laches or limitation.
3. Are they barred ? As to John D. Trigg, the court found that he was present when the settlement was had between McKneely and David EL Dickson, guardian of John D. Trigg, whereby the interest of John D. Trigg in the land was conveyed to him ; that he was eighteen years old, and understood the agreement for McKneely to hold the land for three years, and for David EL Dickson to take possession at the end of that time ; that he knew that McKneely repossessed himself of the land in 1873, after David H. Dickson’s death; that at this time John D. Trigg was of age, and knew that McKneely had been accused of fraudulently taking and secreting the deeds to this land in the same year, 1873. And the court found that, for sixteen years, McKneely held the land, collected and appropriated the rents of the entire place to his own use ; that the rents amounted to a large sum, the place being valuable; that, at various times before McKneely’s marriage with the defendant Mattie, in--, John D. Trigg applied to him to be let in to enjoy his interest, and was always refused ; that plaintiff John D. Trigg had labored under no disability since 1873 ; that, about four years before the bringing of this suit, he had been informed by McKneely that he (McKneely) had leased the lands for five years, and therefore could not let him (John D.) in to enjoy his interest. The court found that McKneely in 1878 had sold a valuable portion of the land, and had appropriated the purchase money to his own use, and that John D. Trigg knew this. These findings are supported by the evidence. There was testimony by John D. Trigg and others to show that McKneely had repeatedly recognised John D. Trigg’s interest in the land, — in fact, had never denied it, — and had often promised to let him in to enjoy his interest. John D. Trigg claimed and testified that his neglect to sue earlier was by reason of these promises, and because of McKneely’s continued recognition ■ of his interest. But the court found that John D. Trigg must have known that McKneely’s possession, was adverse, and concluded that his delay in bringing suit was “unreasonable and unjustifiable.” This conclusion was certainly correct, if McKneely’s actions, as disclosed by the record, were of more weight and significance than his promises and professions. The learned chancellor thought they were, and the preponderance, we think, sustains his findings. There was no error in dismissing the bill as to plaintiff, John D. Trigg.
As to the plaintiff, Mrs. Terry, it appears that her ancestor, David H. Dickson, died in possession of the land in controversy in 1873. At that time, she was sixteen years of age. Two years after, she intermarried with W. L. Terry, when she was something over eighteen. The deeds to David H. .Dickson and John D. Trigg conveyed to each an undivided one-third interest in the lands sued for, McKneely retaining an undivided one-third. It is not contended that McKneely ever executed any deed to his wife for an undivided one-third, but only that he agreed to do so. Be that as it may, if McKneely was under any obligation to convey the land to his wife in 1873, when he repossessed himself, the presumption would be that his possession was in subordination to her title, legal or equitable. 1 Am. & Eng. Enc. Daw, 250 and cases cited ; Corwin v. Corwin, 2 Seld. 342, cases ; 1 Wood, Dim. 578; Banks v. Green, 35 Ark. 89.
If the title to the undivided one-third remaining was not in his wife, it was in him, and, in either case, his possession was • that of a tenant in common with Mollie C. Terry and John D. Trigg, and continued so to be until some act so open, notorious and unequivocal as to operate as notice to his co-tenants that his holding was adverse. 2 Wood, Dim. 258. See, also, Bryan v. City of East St. Louis, 12 Ill. App. 397. “It is,” says Mr. Angelí, “from the nature of the estate that a tenant in common of land, in the enjoyment of his rights, must necessarily, prima facie, be in possession of the whole.” Angelí, Dim. 429. “The. possession, therefore, of one tenant in common is the possession of all.” 2 Wood, Dim. 266. Prior to an interview which Mrs. Hayden had with McKneely in 1876, in which he stated that the place was his, and he intended to keep it, there is nothing to show that his possession was adverse to his co-tenants. There is no proof that he entered upon the land in 1873 as sole owner. There was- evidence tending to show that McKneely in 1875 had abstracted the deed, which was the only evidence of title in the heirs of David H. Dickson, and, while this might have indicated a purpose to claim the land as his own, yet, if so, it was a secret purpose, for the abstraction was secret, and would not operate as notice of an adverse holding. And, although Mrs. Dickson may have discovered the same a short time thereafter, there is no evidence that she communicated the fact to Mrs. Terry at a time when she was under no disability. There was also proof that McKneely had collected and appropriated the rents for the year 1874, and had rented the place for the year 1875, though it is doubtful if he had collected the rents for 1875 before the marriage of plaintiff Mollie C. Terry in Oct. 1875. But the pernancy of the rents, although for the whole statutory period, would not, of itself, be conclusive evidence of an ouster of his co-tenants by McKneely, because that is susceptible of explanation consistent with his rights as co-tenant. In order to set the statute in motion, he must have absolutely denied the title of his co-tenants, or by other notorious acts have indicated his intention to claim and hold the estate exclusively. 2 Wood, Lim. 266, and cases cited; Ricard v. Williams, 7 Wheat. 121; Prescott v. Nevers, 4 Mason (U. S. Cir.), 326; Jackson v. Tibbits, 9 Cow. 241; Parker v. Proprietors of Locks, etc. 3 Met. (Mass.) 91; Angell, Dim. 429; M’Clung v. Ross, 5 Wheat. 116; Todd v. Todd, 117 Ill. 92. See also Sydnor v. Palmer, 29 Wis. 226.
The first unequivocal act, indicating an intention on the part of McKneely to hold adversely to his co-tenants, was his declaration to that effect made to Mrs. Dickson in 1876. The second was the sale in his own name of a valuable portion of the place in 1878 to Elias Pickett, and the appropriation of the money received therefor to his own use. Clapp v. Bromagham, 9 Cow. (N. Y.) 530. Mollie C. Terry, however, was a feme covert when both these occurred, and expressly protected by the statute of limitation. Sec. 4815, Sand. & H. Dig. True, this court in Gibson v. Herriott, 55 Ark. 85, said: “The disabilities of coverture in respect to her separate property having been removed, she is to the same extent relieved of its consequences.” But this language is only applicable to the assertion of her rights, as-to her separate property, in all cases where the statute has not made an exception protecting her. It is applicable, of course, to the statute pertaining to judicial sales, for she is not excepted from its operation. Sec. 4818, Sand. & H. Dig; Batte v. McCaa, 44 Ark. 398; McGaughey v. Brown, 46 Ib. 25.
Plaintiff Mollie C. Terry was not barred by the statute of limitation. Is she barred by laches f As was held in Gibson v. Herriott, supra, a married woman, with reference to her separate property, may be guilty of laches, as though she were discovert. It is alleged, in the amendment to the original bill, that the deed to David H. Dickson was secretly abstracted and made way with by McKneely, and that they (plaintiffs) had no knowledge or information of the existence of such deed until after the commencement of this suit, and that the commencement of the suit was prevented by the wrongful conduct of McKneely in taking and carrying away said deed, and fraudulently concealing from said plaintiffs any and all knowledge of its existence. This was a sufficient replication to the plea of laches.
The heirs of McKneely, in the amendment to their answer, say “that the deed was not acknowledged and perfected as an instrument of conveyance and no possession was ever held under it by David H. Dickson.” It is clear from the proof that the deed was made and delivered to David H. Dickson as alleged. It therefore passéd the title, between the parties to it and their heirs, whether acknowledged or not. Floyd v. Ricks, 14 Ark. 294.
In the language of the learned chancellor below, “the deed was the best evidence of Mrs. Terry’s rights, and the most effective instrument to enforce them.” The court found that the deed under which Mrs. Terry claimed was “fraudulently taken away and kept concealed by McKneely.” The proof justifies this finding. How does it affect the question of laches ? It is contended by appellants that, as the statute (sec. 4815 Sand. & H. Dig.), makes no exception as to a cause of action fraudulently concealed, the courts can make none, and that this holds good as to both courts of law and equity, as the statute in • express terms is made applicable to both.
Section 4846, Sand. & H. Dig., .provides “that if any person, by leaving the county, absconding or concealing himself, or any other improper act of his own, prevent the commencement of any action in this act specified, such action may be commenced within the terms respectively limited after the commencement of such action shall have ceased to be prevented.” The words “any other improper act of his own” would seem to be broad enough to cover cases of fraud. But, aside from this statute, the result would be the same. “It is the established rule of equity, as administered in the courts of the United States, that where relief is asked on the ground of- actual fraud, especially if such fraud has been concealed, time will not run in favor of the defendant until the discovery of the fraud, or until, with reasonable diligence, it might have been discovered.” Kirby v. Lake Shore, etc. Railroad, 120 U. S. 130; Meador v. Norton, 11 Wall, 442; Prevost v. Gratz, 6 Wheat. 481; Rosenthal v. Walker, 111 U. S. 185; 2 Story Eq. Jur. sec. 1521 a ; Veazie v. Williams, 8 How. 134. See also Jones v. Van Doren, 130 U. S. 684. And while it is true that the U. S. courts, possessing the same equity jurisdiction as the high court of chancery in England, have a uniform system of equity rules and practice which they administer in each state untrammelled by local laws (Kirby v. Railroad, supra), yet the above announces the correct doctrine in equity, as applied by the state courts generally, although their statutes, like ours, may contain no exception in favor of one whose cause of action has been concealed by fraud. Angell, Lim. sec. 183; Buswell, Lim. sec. 385; 2 Wood, Lim. sec. 275; First Mass. T. Co. v. Field, 3 Mass. 201; Bland v. Fleeman, 58 Ark. 84. See also McGaughey v. Brown, 46 Ark. 35. The reason of the rule is that one shall not be permitted to take advantage of his own wilful wrong. In a court of conscience, as Lord Redesdale expresses it, “the statute ought not to run; the'conscience of the party being so affected that he ought not to be allowed to avail himself of the length of time.” Hovenden v. Lord Annesley, 2 Sch. Lef. 634; Bus. Lim. sec. 22; Evans v. Bacon, 99 Mass. 213; Traer v. Clews, 115 U. S. 528; Troup v. Smith, 20 Johns. (N. Y.) 33; Callis v. Waddy, 2 Munf. (Va.) 511.
Our statute is, in express terms, made applicable to suits in equity, as well as law. Sec. 4815, Sand. & H. Dig. It follows, from the language employed, that no exception could be made in equity that would not also be applicable at law. But, even at law, while there is decided conflict, the weight of authority and the better reason is in favor of the view that a cause of action, kept fraudulently concealed, will stop the bar of the statute in favor of the one against whom the fraud is perpetrated, until the fraud is or should have been discovered. As is said by Mr. Justice Miller in Bailey v. Glover, 21 Wall. 342: “To hold that by concealing a fraud, or by committing a fraud in a manner that it concealed itself until such time as the party committing the fraud could plead the statute of limitations to protect it, is to make the law, which was designed to prevent fraud, the means by which it is made successful and secure.” Angell, Lim. sec. 186 ; First Mass. Turnpike Co. v. Field, 3 Mass. 201; Homer v. Fish, 1 Pick. 435; Welles v. Fish, 3 Ib. 74; Farnam v. Brooks, 9 Ib. 212; Sherwood v. Sutton, 5 Mason (Cir. Ct.) 143; Mitchell v. Thompson, 1 McLean, (Cir. Ct.) 96; Buswell, Lim. sec. 390 ; Duffitt v. Tuhan, 28 Kas. 292; Yniestra v. Tarleton, 67 Ala. 126; Cole v. McGlathry, 9 Me. 131; Bishop v. Litte, 5 Ib. 362; Douglas v. Elkins, 28 N. H. 26; Harrisburg Bank v. Forster, 8 Watts, 12; Andrews v. Smithwick, 34 Tex. 544; Miles v. Berry, 1 Hill, (S. C.) Law, 296.
No mere ignorance on the part of plaintiff of his rights, nor the mere silence of one who is under no obligation to'speak, will prevent the statute bar. There must be some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiff’s cause of action concealed, or perpetrated in a way that it conceals itself. And if the plaintiff, by reasonable diligence, might have detected the fraud, he is presumed to have had reasonable knowledge of it. Buswell, Lim. sec. 385; Story, Eq. Jur. "sec. 152; Piper v. Hoard, 65 How. Prac. 228; Underhill v. Mobile Fire Ins. Co. 67 Ala. 45; Ramsey v. Quillen, 5 Lea, 184; Adams v. Ipswich, 116 Mass. 570; Wood v. Carpenter, 101 U. S. 129; Tyler v. Angevine, 15 Blatchf. 536-41. See, also, McAlpine v. Hedges, 21 Fed. Rep. 690; Eiffert v. Craps, 58 Fed. 470.
Had Samuel W. McKneely surrendered the deed, which he had taken away, to Mrs. W. E. Terry, or some one for her, instead of giving it to one of his own relatives, with instructions “to take good care of it,” as the proof shows he did, doubtless we would not now have been discussing the question of laches. That deed would have made her title clear. Without it, her rights were involved in such a tangled web as to preclude the idea of laches for not attempting to assert them. She did not know of the existence of the deed, and by no reasonable inquiry could she have ascertained any facts that could lead to its discovery. The same purpose which caused its removal in the first place doubtless controlled in its concealment, and it was only a mere chance that brought it to plaintiffs’ possession. There is evidence that, bn t one occasion, plaintiff, Mollie C. Terry, had heard her mother say that “her uncle, Sam. W. McKneely, had come to her house after her husband’s death, and made way with some paper or written obligation relating to the John Dickson land.” But there is also evidence to the effect that she did not believe what she heard. If the deed was fraudulently taken away and kept concealed by the machinations of McKneely, as the court below found, and the evidence tends to show, is Mrs. Terry to be charged, by those who stand in his shoes, with laches, for refusing to suspect him of dishonesty and fraud? We think not. Kilbourn v. Sunderland, 130 U. S. 505. And, even if her suspicions had been aroused, by what she had heard, 'suspicion is not discovery. Marbourg v. McCormick, 23 Kas. 43. But, if she should have suspected, and if her suspicions should have led to inquiry, then, even, the proof shows she has met every requirement that could have been reasonably expected in that particular, through her husband, W. B. Terry. The testimony is voluminous, but our conclusion from a careful consideration of it, is that the court was correct in holding that Mrs. Terry was not barred by laches, and in decreeing to her an undivided one-third interest in the lands sued for, as the heir of David H. Dickson.
4. As to whether plaintiffs, Mollie C. Terry and John D. Trigg, were each entitled to an undivided one-sixth interest in the lands sued for, as the heirs of Mrs. Bavinia McKneely, the court made no special finding, but found generally that there was nothing in their contention in this particular. This was correct. It is exceedingly doubtful whether McKneely ever entered into a contract to convey to his wife an undivided one-third interest in the lands sued for. There is nothing to show that she was asking or insisting upon anything of the kind herself, or that David H. Dickson, who is said to have procured such a contract, was ever authorized or empowered to act for her. She lived almost seven years after said contract is alleged to have been made, and it appears she died perfectly satisfied, and there is nothing to show that she ever claimed any interest in the land. It had been twenty years since the alleged agreement was said to. have been made, and thirteen years since Mrs. Dayinia’s death. After such a great length of time, her heirs should not be granted a decree in the nature of specific performance of ' an alleged executory contract, except upon proof most clear and convincing. In this case it is too vague and uncertain to warrant such a decree. The plaintiffs, therefore, as the heirs of Davinia McKneely, take nothing by their cross-appeal.
5. Mrs. Mattie McKneely could not assert a claim for dower as an innocent purchaser for value, against the plaintiffs, McKneely, her husband, was not seized at his death of an estate of inheritance in the lands of which Mrs. Terry has been adjudged the owner. Sand. & H. Dig. sec. 2520. The legal estate was in McKneely, but the equitable estate was in her, and no right of dower can be set up against such a title. 1 Wash. Real Prop. p. 228.
6. Was Mrs. Terry entitled to rents and to a lien for same upon the share of co-tenants? Section 1 5917 of Sand. & H. Dig. makes a tenant in common liable to his co-tenants for rents, where he has “taken, used, or had the benefit thereof in greater proportion than his interest.” There can be no doubt that a court of equity, according to the principles above discussed, will extend the time for recovery, where the cause of action has been fraudulently concealed, to the statutory period after the fraud has been, or by ordinary diligence should have been, discovered. Sand. & H. Dig. sec. 4846. Samuel McKneely died February 17, 1889. This suit was begun the 6th of March following. There was an administration upon the estate of Samuel W. McKneely, as was alleged in the amend ment to Mrs. McKneely’s separate answer, and which was nowhere denied. The claim of Mrs. Terry for rents collected by McKneely, 'during his life, was a demand against his estate, and not against his heirs. No judgment could be legally rendered against them for such a demand. But her claim was a subsisting demand against the estate of McKneely at the time of his death, and, under the plain letter of our statute, and decisions, the demand should have been duly authenticated and exhibited to the administratrix. Sand. & H. Dig. sec. 110, subd. 5; secs. 113, 114, 115 ; Walker v. Byers, 14 Ark. 253.
But, if it be said that the cause of action as to rents did not accrue until after the discovery of the deed by plaintiff, Mrs. Terry, still that would not relieve her, for the deed was discovered in less than a year after McKneely’s death, according to the allegations of her bill. The claim, nevertheless, should have been properly exhibited. Walker v. Byers, supra; Bennett v. Dawson, 18 Ark. 334. See, also, Patterson v. McCann, 39 Ark. 577; Morgan v. Hamlet, 113 U. S. 449.
Mrs. Terry has not established her claim for rents in the manner prescribed by our statutes. Until she has done so, plainly, she could not go into a court of equity and ask that a lien be declared upon the share of a co-tenant for such claim or demand. If there be a lien (which, in the view we have taken, it becomes unnecessary to decide) she has no standing in a court of equity to enforce it; for the lien in such a case would be the pure creation of a court of equity, growing out of no legal or contractual estate, — not a right of property, but a mere remedy, bottomed solely upon the debt or demand, and having no independent form and foundation for its enforcement. So it was held by this court in the case of a vendor’s lien, and, by analogy, and with even greater reason, is the principle applicable here. Linthi cum v. Tapscott, 28 Ark. 267. See, also, Stephens v. Shannon, 43 id. 464; Waddell v. Carlock, 41 id. 523.
The decree in favor of Mrs. Terry for an undivided one-third interest in the land was correct. The decree as to rents accruing prior to McKneely’s death was erroneous. The cause is therefore reversed, and remanded with directions to enter a decree in accordance with this opinion, and for further proceedings.
Battle, J., being disqualified, did not sit in this case. | [
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