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Smith, J.
The Tax Assessor of Garland county assessed an intangible property tax against the appellees, Oklahoma Tire & Supply Company and the Kroger Grocery & Baking Company, based upon the assumed apportionment of intangible assets attributable to their operations in Garland county, Arkansas, under the supposed authority of Act 47 of the Acts of the General Assembly of 1927, appearing as § 13744 of Pope’s Digest. When the Collector attempted to collect these taxes appellees filed a complaint in the Chancery Court denying ownership of any intangible property subject to taxation, and alleged that they had paid all taxes properly assessed against them, and they prayed that the Collector be restrained on the ground that the collection of these taxes would be a taking of their property without due process of law.
A demurrer was filed by the Collector on the ground that the complaint did not state facts sufficient to constitute a cause of action* and on March 12, 1946, the court overruled the demurrer. The Collector stood on the demurrer and refused to plead further, and a decree was entered enjoining the collection of the taxes from which decree is this appeal.
The case presented is controlled by the opinions in the cases of State, ex rel Atty. Gen. v. Lion Oil Refining Co., 171 Ark. 2091, 284 S. W. 33, and State, ex rel Atty. Gen. v. Williams-Echols Dry Goods Co., 176 Ark. 324, 3 S. W. 2d 340, and upon the authority of these cases, the decree from which is this appeal must be affirmed.
The cases just cited involved the question of the constitutionality of the statutes under which the. instant case arose.
The first of the cases above cited arose over the attempt of the Attorney General to collect certain back taxes alleged to be due by the Lion Oil Refining Company, a foreign corporation. The suit was predicated upon § 9965 of Crawford & Moses’ Digest, which was a part of the Act of March 17,1917, p. 1355, numbered 262. The Act was held unconstitutional as applied to foreign corporations. The case of State, ex rel Atty. General v. Williams-Echols Dry Goods Company, supra, was a similar suit by the Attorney General to collect back taxes from a domestic corporation under the authority of the same section of the statutes, and the Act was held to be unconstitutional as applied to domestic corporations for the reason that the provisions of the Act were not severable.
The Act of March, 1917, was amended by Act 47 of the Act of 1927, and the amendatory act appears as § 13744, Pope’s Digest. Bnt the change effected is unimportant so far as the question here under consideration is concerned. This fact does not appear to be questioned by appellant who insists however, that the instant case is distinguishable from the former cases in that the former cases were suits by the Attorney General to collect back taxes which had not been assessed, whereas, the .instant suit is one to collect current taxes which have been assessed.
This distinction is unimportant for the reason that the Attorney General could not maintain his suit for back taxes unless such taxes were due and unpaid and the former opinion was based upon the holding that the Act under which the suit had been brought was void, and the payment of the taxes could not be enforced for that reason.
It is urged that the court went too far in the Lion Oil Refining Company case in holding the Act unconstitutional, as the Attorney General was trying to enforce it contrary to its provisions. But as we have said, the opinion was not based upon that ground, but upon the broader ground that the Act was invalid, and we test the constitutionality of legislation, not by what is attempted under it, but upon a consideration of what is permitted by it. Pulaski County v. Commercial Nat. Bank, 210 Ark. 124, 194 S. W. 2d 883.
Appellant in effect asks us to overrule the Lion Oil Refining Co. case, and argues that the case of Alpha Portland Cement Co. v. Commonwealth of Mass., 268 U. S. 203, 45 S. Ct. 477, 69 L. Ed. 916, 44 A. L. R. 1219, and Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113, 41 S. Ct. 45, 65 L. Ed. 165, would support that action. The first answer to that contention is that these cases last cited involved the collection of excise taxes, and not a.d valorem taxes as in the instant case. It was said in the case of the Lion Oil Refining Company of the taxes there involved that “It is in no sense an excise tax, such as was under consideration in Alpha Portland Cement Co. v. Massachusetts, 268 U. S. 203, 45 S. Ct. 477, 69 L. Ed. 916, 44 A. L. R. 1219, and cases cited.
In the recent case of Little Rock Special School Dist. v. Public Service Comm., 210 Ark. 165, 194 S. W. 2d 874, we said: “This court, in State, ex rel v. Lion Oil Refining Co., 171 Ark. 209, 284 S. W. 33, held that section (Act 262, Acts of 1917) unconstitutional as to foreign corporations, because the situs of the shares of stock of such corporations is in another state and could not be taxed to the corporations in this State. In State, ex rel v. Williams-Echols Dry Goods Co., 176 Ark. 324, 3 S. W. 2d 340, we held said statute unconstitutional as to domestic corporations because the provisions of the Act were not severable.”
Believing that our decisions are correct, we decline to overrule them, and the decree from which is this appeal must be affirmed, and it is so ordered. | [
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Griffin Smith, Chief Justice.
Vacant lots in Fort Smith forfeited for 1938 taxes and in due course were certified to the State Land Office. Suit to confirm was filed March 13, 1942, under authority of Act 119 of 1935. The decree was rendered seven months later.
Appellee acquired title to the property in 1937 by quitclaim deed from Peoples Building & Loan Association of Little Rock. Tax assessments continued in the Association’s name. Manie Schuman purchased from the State in 1946.
J. G. Riley (appellee) enlisted with, the armed forces July 13,1942, and was discharged February 17, 1946. In May, 1946 he brought suit against Schuman, praying that the Court make an order permitting redemption upon payment of taxes, etc. In addition it was asked that Schuman be required to execute an appropriate conveyance. Other pleadings were filed, with final decree November 26th.
Proof is conclusive that the tax sale was not void for want of power, but that irregularities rendered it voidable. Result is that had Riley intervened within the year permitted by Act 119 sale as to the lots in question could have been set aside. The Chancellor construed the Soldiers ’ and Sailors ’ Civil Relief Act, Title 50 U. S. -C. A. App. 501, et seq., to confer upon Riley as a service man the right to intervene in the State’s suit of March 13, 1942. It was also found that time within which Riley could act in self-protection under the Soldiers ’ and Sailors ’ Relief Act had not expired when suit against Schuman was filed.
A majority of the Judges agree with the Chancellor that the Federal statute- supplemented the period allowed by Act 119 within which an intervention could be filed. Affirmed. | [
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Ed. F. MoPaddin, Justice.
Lucy Taylor was convicted of second degree murder on an information charging her with having killed Earl Sullivan by striking him over the head with a certain blunt instrument. Prom that conviction she has appealed. The only question that has given us serious concern is whether the evidence was sufficient to take the case to the jury. The defendant offered no evidence, hut relied on the insufficiency of the State’s case. Viewed in its most favorable light, the evidence offered by the State proved, or tended to prove, these facts:
The deceased was infatuated with the defendant. About noon of March. 26, 1946, the deceased and the defendant were together 'in Augusta. The deceased was in an intoxicated condition, and opened his billfold and showed his money (said to be several hundred dollars), and the defendant made the remark, “We are getting away from here.” On the same' day the deceased and defendant, accompanied by Sam Taylor, Mrs. Sam Taylor and Cal Kaysinger, left Augusta about 2:00 p. m. to go to deceased’s'cabin on the shores of Taylor Bay, a journey of about 45 minutes. Shortly after 4:00 p. m. the defendant and the three others previously named returned to Augusta, and reported at the sheriff’s office that the deceased had just drowned in Taylor Bay. The defendant returned to Taylor. Bay with the party, and pointed out to the officers the location where she said the deceased had gone down, and she helped recover the body, which was found in the water ten or fifteen feet from the place she had designated. The deputy sheriff testified that the defendant, and Sam Taylor and wife, and Cal Kaysinger showed the effects of recent drinking. An autopsy performed by Dr. McGuire, the coroner, established that the deceased did not die by drowning (no water in his lungs and no evidence of swimmer’s cramp), and also that the deceased did not die from heart failure (the heart was normal). The autopsy revealed that the deceased had suffered a blow on his head over the right eye, which blow did not fracture the skull, but produced a hemorrhage of the brain, and Dr. McGuire testified that this hemorrhage was the cause of death. An oar was found near the deceased’s cabin, several hundred feet or more from the shores of Taylor Bay, and witnesses said that the oar showed a “fresh break.” When deceased’s body was recovered, he was wearing only long underwear and a leather jacket. His other clothes — all wet — were found on the bank of Taylor Bay. The purse contained only sixty-five cents. The billfold was never found. Deceased’s watch, with water under the crystal, was found in the road about 50 feet south of his clothes. It was testified that on March 26, 1946, the weather was a little cool for swimming. The depth of Taylor Bay was about 18 feet; there was no current.
On the facts as above recited, the State claimed that the defendant had killed the deceased by striking him with the oar — or aided and abetted others in such killing —and that deceased’s body had been thrown into the bay to indicate drowning. Bobbery was advanced as the motive for the murder.
The defendant offered no evidence, but the State introduced statements that the defendant made to the officers at the time of the recovery of the deceased’s body, and also at the coroner’s inquest. The substance of these statements was, that when the defendant and deceased and the others reached defendant’s cabin on the bank of the bay, some of them went out in the boat, and that deceased fell out of the boat and struck his head on the side of the boat; that they pulled deceased out of the water and iliat they all started to go to the deceased’s cabin where they were to have a fish fry; that while the others were preparing to cook the fish, the deceased bantered the defendant for the two of them to swim across the bay and back, a total distance of about 140 feet; that they swam across the bay, and were about halfway back when deceased made an outcry and sank in the water; that the defendant was almost exhausted, but was able to swim to the bank and give the alarm; and that defendant and the others, after unsuccessfully trying to recover the body, then went to Augusta and reported deceased to have drowned.
In addition, the sheriff testified that, while the case was pending, the defendant told him that she would not have had to knock the deceased in the head, because he would have given her money; that the others might have taken the deceased’s money, but that she had not done so.
AVe have detailed the evidence at considerable length to show that, in the final analysis, circumstantial evidence must be relied on to determine whether the deceased met his death at the hands of the defendant, or died through deceased’s own act. The issue presented from the State’s testimony was (1) whether the deceased was killed by a blow on the head inflicted by the defendant; or (2) whether the deceased struck his head on the side of the boat, and such blow caused his subsequent death while he was swimming. The State called the coroner, Dr. McGuire, to establish that the deceased died as a result of a blow on his head. The defendant’s attorney asked the doctor, concerning the deceased: “Q. If he did fall and hit his head on the side»of the boat, would that cause him to have the abrasion on the side of his head like that? A. If he was living when he fell, yes, sir. Q. How long does it take for the blood to get into the capillaries? A. It takes some time. Q. Say a man was hit in the back of the head with a beer bottle, won’t the blood capillaries get into the brain? A. Yes, sir, you get that in the brain. Q. That is the way this condition was found, where the blood went in the brain? A. Yes, sir. . . . Q. If he had fallen on the boat and struck his head on the side of the boat and made that abrasion, would that have caused it? A. If he was living at the time? Q. Yes? A. Yes, sir. Q. Could that have caused the death in this case? A. Yes, sir, it could have caused the death.”
On redirect examination the prosecuting attorney asked the following question, and was answered as follows : “ Q. Mr. Grant has asked you with reference to the deceased falling and striking his head against the gunwale of the boat, I will ask you if in your opinion, if the deceased fell out of the boat, whether he struck his head or not, and then he came out on the bank and walked down the bank three or four hundred yards and went in swimming, could he do that? A. Yes, sir, things like that happen. A few months ago a man went to the University Hospital and then he went back home and died the next day.” Somewhat similar questions and answers appear repeatedly; but we give the above as typical.
The State did not attempt to explain away Dr. McGuire’s testimony on this point, so that the record here before us presents a case where the State relied on circumstantial evidence, and yet did not negative circumstances tending to show that the deceased died by his own act. Such negation was vital to the State’s case. We therefore have a chain of circumstances offered by the State with one vital link in the chain left unclosed, i. e., the State did not show that the deceased could not have come to his death by his own involuntary act of striking his head on the side of the boat. Until the State offered testimony legally sufficient to establish the defendant’s guilt beyond a reasonable doubt, the evidence was too slight to justify a conviction. The recent case of Johnson v. State, 210 Ark. 881, 197 S. W. 2d 936, is apropos; we quote: “The evidence against the accused was entirely circumstantial. In such cases it is required that the evidence relied on must show the guilt of the accused to a moral certainty and must exclude every other reasonable hypothesis than that of the defendant’s guilt. Judge Butler, speaking for the court, said in the case of Bowie v. State, 185 Ark. 834, 49 S. W. 2d 1049, 1052, 83 A. L. R. 426: ‘ This demands that, in a case depending upon circumstantial evidence, the circumstances relied upon must be so connected and cogent as to show guilt to a moral certainty and must exclude every other reasonable hypothesis than that of the guilt of the accused. Circumstances, however strong they may be, ought never to coerce the mind of the jury to a conclusion of guilt if they can be reconciled with the theory that one other than the defendant has committed the crime or that no crime has been committed at all.’ ”
We cannot do better than to paraphrase and apply . to this case the language used by Mr. Justice Fratjbnthal in the case of Reed v. State, 97 Ark. 156, 133 S. W. 604: It may be that the defendant is guilty of the crime, but a careful examination of the evidence shows that it was too slight to justify a conviction. It may be that on a future trial additional evidence may be introduced showing guilt.
The judgment of the lower court is therefore reversed, and the cause remanded for a new trial.
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Grieein Smith, Chief Justice.
Farm Bureau Lumber Corporation, chartered by Indiana, is authorized to do business in Arkansas and operates with principal domestic offices at Benton. It uses trucks and tractors on highways and elsewhere. Charles 0. Smithers is County Judge and Chairman of the County Highway Commission. He is charged with official responsibility for maintaining County roads. One such road was used by appellant in its logging operations, in consequence of which damage amounting $3,000 was alleged. Appeal is from a judgment of $1,500 for the Comity.
The motion for a new trial contains forty-two assignments, most of which are not argued. Fifteen instructions were given and refused. Most have not been abstracted. Result is a presumption that errors complained of were cured by other instructions unless the vice is inherent, lienee incapable of correction.
Judge Smithers testified that Kirk Road, in respect of which the damage occurred, was built and gravel-surfaced by the County with WPA aid, and that its completion represented “enormous sums of money.” The úse by appellant of cleat-treaded tractors and other heavy machinery, such as trucks, etc., caused unusual deterioration, necessitating expenditures equal to the sum claimed as damage, and created inconvenience to the traveling public, including delays because of road blockage, unusual care in driving on account of ruts and holes, partial destruction of hard surfaces, and other hindrances incidental to 200 cars per day operating over the fourteen-mile stretch, seven miles of which were used by Farm Bureu -in its logging movements.
At one point the highway was used as a base for pulling heavy logging trucks over nearby slippery ground. The units were driven off the roadway and utilized in such a way that a caterpillar tractor and other mobile machinery weighing, with load, 35,000 pounds, had to be used to supply required power. The caterpillar was frequently turned on the surfaced road by the usual process of locking the tread on one side and driving the opposite ‘ ‘ track. ’ ’ The tracks were built in sections forming partially flexible endless metal belts treaded with steel extensions designed to grip the ground in order to supply greater traction, and prevent skidding.
Appellant concedes that machinery was used without obtaining from the 'County Judge authority mentioned in § 7151 of Pope’s Digest; and, while witnesses for Farm Bureau contend that little if any damage was directly caused by the operations, it is admitted that the motor units were used during wet weather. Another admission is that Farm Bureau management knew Judge Smithers was endeavoring to get in touch with its agent for the purpose of discussing the use then being made of Kirk Road, but the witness (H. C. Church) failed to call the County Judge by telephone after having been informed regarding matters the official sought to adjust. Clear inferences to be drawn from acquiescent comments by Church on cross-examination are that the Corporation needed daily supplies of logs for its mills; that a shutdown for want of raw material would be expensive, and Mr. Church did not want to talk with Judge Smithers because the latter had been insistent upon preservation of the road.
It is in evidence that logs, large limbs, or heavy saplings, were cut and dumped into roadway drains to facilitate truck and tractor movements in leaving the paved surface and in removing timber from adjacent lands; that in other respects ditches were filled while trailways were being opened, thus diverting surface water; also that holes were left in the road, gravel was cut through to an extent necessitating rebuilding, and overflow due to interference with drainage resulted in seepage through highway structure.
We think a question was made for the jury regarding damage, and that the verdict is supported by substantial evidence.
It is urged, however, that a condition precedent to civil liability is that the person proceeded against must first have been convicted of a violation of § 1 of Act 222, approved October 20, 1919; Pope’s Digest, § 7151. Reliance is placed upon § 5 of Act 222 (Pope’s Digest, § 7155) where it is provided that “In addition to the penalty hereinabove prescribed, . . . the person convicted shall be liable in a civil action for all damage occasioned or caused by such violation. ’ ’
What is such violation'? Section 1 prohibits “. . . the using, driving or operating upon any improved hard-surfaced public highway of the State of any tractor, truck, automobile, or other vehicle having corrugated, spiked, jointed or other rough-surfaced metal tires” without license. The license permits “use or operation” of such vehicles, not the right to damage public property. It is. true that by § 5 civil liability is made cumulative as to the person convicted of violating the prohibitory portions of the Act; but the criminal liability created by § 4 arises when one without authority makes use of a hard-surfaced public highway, irrespective of damage to the road.
A cause of action for injury to a highway or structures incidental to it is conferred by Act 300, approved March 23, 1937. Pope’s Digest, § 6809. Section 150 of the Act, subdivision (á), provides that “Any person driving any vehicle, object, or contrivance upon any highway structure shall be liable for all damage which said highway or structure may sustain as a result of any careless, negligent, or illegal operation, driving, or moving of such vehicle, object, or contrivance, or as a result of operation, driving, or moving any vehicle, object, or contrivance of excessive width or weight in excess of the maximum weight in this Act, even though authorized by a special permit. ...”
The question of excessive weight was submitted to the jury in a circumstantial manner, but the testimony was nevertheless sufficient to inform practical men of what the plaintiff alleged was being done. Act 300 provides for certain weights in relation to tire sizes, both as to single and double mountings when either low- or high-pressure pneumatic tires are used. The computation and distribution of load with respect to axle is somewhat complicated; but if it be admitted that the plaintiff failed to minutely detail in pounds an excess load and improper distribution,' the fact remains that effect of operations, including obstruction of ditches and adjacent highway drains, was enough to satisfy any reasonable man’s mind that using the roadway as a base for logging operations as the testimony disclosed caused the damage, and accelerated deterioration; and it amounted to an appropriation of the public’s property.
It is insisted that prejudicial testimony was admitted; but, as has been shown, appellant relies upon what it thought to be inherently incorrect instructions, and did not abstract others. Since, because of Act 300 of 1937, the position cannot be sustained, judgment must be affirmed.
Act 379, approved March 17, 1939. | [
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] |
Gbiffik Smith, Chief Justice.
This Court decided in Orr v. Orr that as to certain land Frank Orr was trustee, and that his divorced wife Myrtle could look to it in satisfaction of a balance of $1,324.41 Chancery Court had found to be due her through failure of the former husband to deliver specific personal property or account for its value. When our mandate issued March 13,1944, it was found that Frank Orr, joined by Alice, (to whom he was married after divorcing Myrtle) had attempted to convey the property to a brother, W. M. Orr. The deed is dated March 11,1943, and contains a recited consideration of $1,600. W. M. Orr sold to Lester Blair. This transaction occurred September 17, 1943. The recited consideration was $2,000.
The suit resulting in the decision of April 21, 1944, began with Mrs. Orr’s petition to require her former husband’s specific performance of a property settlement. Notice that suit was pending and that it involved the particular land wás filed February 3, 1942, the divorce decree having been rendered November 22,1940. The lis pendens states that purpose of Mrs. Orr’s petition was to create a lien on the land.
Lester Blair married Myrtle Orr’s daughter. W. M. Orr had moved to Oklahoma, but after purchasing the land from Frank he placed Lester on the property as a tenánt. There is testimony that Frank Orr resided at Seligman, Mo.
In January 1945 Myrtle Orr brought an action to cancel Frank’s deed to Walter (W. M. Orr) and Walter’s deed to Blair. She also asked that the land be sold to satisfy the judgment of $1,324.41. This appeal is from a decree of September 12, 1946, directing that the deeds be cancelled unless within sixty days the indebtedness in Myrtle Orr’s favor be paid with interest and cost. The Court’s Clerk was appointed Commissioner to sell the land in the manner provided for judicial sales.
The decree is correct. Lis pendens notice had the effect of giving constructive notice to Walter Orr and Lester Blair that Myrtle Orr claimed an interest in the land, and this was enough. We also think there was sufficient proof to show that each had actual knowledge that litigation was pending wherein it was sought to declare a lien; and they must have known the nature of the petitioner ’s claim. A holding in Bailey v. Ford, 132 Ark. 203, 200 S. W. 797, is that after the dismissal or abandonment of an action, without express reservation, the lis pendens does not continue as constructive notice so as to affect the rights of parties intervening “between dismissal or abandonment and reinstatement or commencement of the action anew. ’ ’
Appellants ’ theory seems to be that because the lien decreed in 1943 was not sustained, its full purpose had been served and rights acquired by Orr and Blair would relate retroactively to the dates of their deeds. The technicality is such in fact and the alleged rights resting upon it must give way to the superior claims of Mrs. Orr. When the appeal was disposed of in February 1944 the cause was remanded with directions that the trial Court proceed in a manner not inconsistent with the opinion. There was no period between issuance of the mandate and the decree from which this appeal comes when the trust did not exist. It was substituted for a lien and merely defined the position occupied by Frank Orr. It gave full protection to the prevailing party. For that purpose Mrs. Orr’s interests were as completely preserved as they would have been if the lien had been sustained.
Affirmed.
Orr v. Orr, 206 Ark. 844, 177 S. W. 2d 915; opinion delivered February 21, 1944.
The testimony does not clearly show whether Myrtle Orr had been married prior to her union with Frank. It is stated that Lester married “her” daughter, and that Frank is his father-in-law. | [
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PER CURIAM
_JjIn 2008, petitioner James- Edward Williams, who represented himself at trial with standby counsel, was found guilty by a jury of two counts of aggravated robbery, two counts of terroristic threatening in the first degree, theft of property, and battery in the third degree. Williams was sentenced as a habitual offender to an aggregate term of 360 months’ imprisonment. On appeal from the judgment, Williams, who was represented by appellate counsel, contended that the trial court erred when it permitted him to represent himself. The Arkansas Court of Appeals found no error and affirmed. Williams v. State, 2009 Ark. App. 684, 372 S.W.3d 358. Williams’s petition for review. was dismissed by this court. Williams v. State, 2009 Ark. 589, 2009 WL 3878249 (per curiam).
Now before us is Williams’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. In making a determination to grant such leave, we look to the reasonableness of the allegations in the petition and to the existence of the probability of the truth thereof. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. 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.
- 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 fundamental error of fact extrinsic to the record. Roberts v. State, 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, 2012 Ark. 177, 403 S.W.3d 38.
In his petition, Williams argues that the writ is warranted because he was not sane at the time he committed the offenses or at the time of trial. He alleges that the mental-health examiner in his case failed to perform the “actual mental health evaluation that he-claims in |Rthe report,” and, as a result, the question of his sanity was not settled in court. He further argues that his pretrial counsel failed to inform him of the results of the evaluation so that he would have known of the reason that counsel withdrew his plea of not guilty by reason of mental disease or defect.
To the degree that Williams is contending that his pretrial or standby counsel was ineffective, he has not stated a ground for the writ. This court has repeatedly held that ineffective-assistanee-of-counsel claims are not cognizable in error-coram-nobis proceedings and that such proceedings are not a substitute for raising ineffective-assistance-of-counsel claims under our postconviction rule, Arkansas Rule of Criminal Procedure 37.1. White v. State, 2015 Ark. 151, at 4-5, 460 S.W.3d 285, 288.
Williams has also not established any other basis on which the writ could be issued. When claiming insanity as a ground for the writ, the burden is on the petitioner who claims mental illness to overcome the strong presumption that the judgment was valid. Noble v. State, 2015 Ark. 215, at 3, 462 S.W.3d 341, 344 (per curiam). Williams did not present facts sufficient to demonstrate that there was information'not known at the time of trial, or which could not have been known at the time of trial, to establish that he was insane and incompetent to proceed. The application for coram-nobis relief must make, a full disclosure of specific facts relied on as the basis for the writ. Millsap v. State, 2014 Ark. 493, 449 S.W.3d 701. There was no specific fact alleged. in Williams’s petition that he could not have brought out at the time of trial to demonstrate that he was riot sane. The record on direct appeal contained a copy of the pretrial psychological evaluation conducted on Williams. It was the examiner’s opinion that Williams was capable of understanding the proceedings 14against him and that he did not have d substantial mental disease or defect at the time the offenses were'committed. Williams has not shown that the issue of his sanity could not have been fully considered at trial. Westerman, 2015 Ark. 69, 456 S.W.3d 374 (citing Ridgeway v. State, 239 Ark. 377, 389 S.W.2d 617 (1965), cert. denied, 382 U.S. 902, 86 S.Ct. 236, 15 L.Ed.2d 156 (1965) (stating that the mental examination of the petitioner by state hospital.' officials, which was reported to the trial court, showed that any possible claim of the petitioner’s insanity was before the trial court and could not later be considered in a petition for writ of error coram nobis)).
Petition denied. | [
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PER CURIAM
■ | tin 2013, appellant Daniel Pedraza entered a plea of guilty to first-degree murder in the death of his two-year-old stepdaughter. He elected to be sentenced by a jury. The jury was instructed that the range of sentencing for the offense was ten to forty years or life, and a sentence of life imprisonment was imposed. Pedraza appealed from the sentence, and this court affirmed. Pedraza v. State, 2014 Ark. 298, 438 S.W.3d 226.
In- 2014, Pedraza timely filed in the trial court a pro se verified petition for postcon-viction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2013) seeking to vacate the judgment on the grounds that he was denied effective assistance of counsel. The petition was dismissed, and Pe-draza brings this appeal.
Our standard of review in Rule 37.1 proceedings is that, on appeal from a trial court’s ruling on a petitioner’s request for Rule 37 relief, this court will not reverse the trial court’s decision granting or denying postconviction relief unless it is clearly erroneous. Wood v. State, 2015 Ark. 477, 478 S.W.3d 194. A finding is clearly erroneous when, although there evidence to support it, the appellate court, after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id.'"
When considering an appeal from a trial court’s denial of a Rule 37.1 petition on the grounds of ineffective assistance of counsel, the question'presented iswhether, under the standard set forth by the United States Supreme Pourt in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel’s performance was not ineffective. Wood, 2015 Ark. 477, 478 S.W.3d 194; Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783.
The rule for evaluating ineffective-assistance-of-counsel claims in cases involving guilty pleas appears in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). In Hill, the Supreme Court held that the “cause and prejudice” test of Strickland applied to challenges to guilty pleas based on ineffective assistance of counsel. The Court further held that in order to show prejudice in the context of a guilty -plea, the petitioner must show that there is á reasonablé probability that, but for counsel’s errors, he would hot have pleaded guilty and would have insisted on going to trial. Hill, 474 U.S. at 59, 106 S.Ct. 366. An appellant whó hás entered a guilty plea normally will have considerable difficulty in proving any prejudice, as the plea rests upon an. admission in open court that the appellant did the act charged. Wood, 2015 Ark. 477, 478 S.W.3d 194. Furtherj a petitioner under Rule 37.1 must allege some direct correlation between counsel’s deficient behavior and the decision to enter the plea. Scott v. State, 2012 Ark. 199, 406 S.W.3d 1.
|sWe first note that in his brief on appeal, Pedraza has reworded the claims raised below to construct virtually new claims and has bolstered some of the allegations raised in the Rule 37.1 petition by adding information. On appeal, we review only those specific claims before the trial court. McLaughlin v. State, 2015 Ark. 335, 469 S.W.3d 360 (per curiam). Furthermore, we do not consider factual substantiation added to bolster allegations made below. Id.
Pedraza first argues in this appeal that the trial court erred in its denial of his claim that counsel failed to conduct an adequate investigation of the case and obtain medical evidence to refute the medical evidence presented by the State as to the cause of the victim’s death. In- a related allegation, Pedraza contends that counsel failed to spend enough time with him to discuss trial strategy and the overall theory of the defense. He asserts that, had counsel spent greater time with him, valuable defenses, such as his mental dysfunction, would have been discovered. Pedra-za did not contend in his Rule 37.1 petition that, but for counsel’s failure to spend moi’e time with him or to investigate further, he would not have entered a plea of guilty, and he did not contend that there was any specific information that could have been uncovered by more time spent with him or with a more extensive investigation by counsel.
To prevail on a claim of ineffective assistance of counsel for failure to investigate, the petitioner must allege some direct correlation between counsel’s deficient performance and the decision to enter the plea, or the petitioner is- procedurally barred from postconviction relief. Mancia v. State, 2015 Ark. 115, 459 S.W.3d 259. Conclusory statements to that effect, without an alleged factual basis, do not suffice. Id. As Pedraza did not offer any ^specific information that could been discovered that would have changed his decision to enter his plea, he did not show that counsel made any error. See Sandoval-Vega v. State, 2011 Ark. 393, 384 S.W.3d 508.
Pedraza also argued that counsel failed to present mitigation evidence such as the testimony of his mother, his sister Lillian, and a close friend who could have testified about “early childhood standards, relationship with higher powers, a nonviolent person, military background, academic achievements.” Counsel’s failure to present available mitigation witnesses in the sentencing proceeding in a criminal case can constitute ineffective assistance of counsel. Wertz v. State, 2014 Ark. 240, 434 S.W.3d 895. The petitioner, however, must do more than state that there were additional witnesses who could have offered testimony in mitigation; he must establish that counsel’s conduct was deficient. See id.
Here, counsel for Pedraza called several witnesses in mitigation, including two men who had served with Pedraza in the military and testified about his military service and their friendship. One of the men was a staff sergeant, who testified that he had served with Pedraza in Iraq and that Pe-draza was a good, reliable soldier who had earned commendations for his service. Evidence of the commendations was admitted into evidence by the defense. The other man testified that he and Pedraza had come under enemy fire and gone on more than two hundred missions that were stressful and frightening.
The defense also called a part-time police officer who had been Pedraza’s neighbor. The witness testified that Pedraza was a good pei'son who had worked well with the neighborhood children and had earned his respect.
|SA priest testified about his service as Pedraza’s pastor and Pedraza’s involvement with the church in activities such as delivering food to people in the community. The priest gave his opinion that Pe-draza was “very much esteemed” in his Christian faith.
Two of Pedraza’s sisters testified at length as to the deplorable living conditions of the family when Pedraza was a child; illnesses the family suffered from drinking unsanitary water; the lack of money, food, clothing, and medical care; his developmental delays as a child; and his gentle nature and love of children. One sister described Pedraza’s crying as he recounted his experiences in the military and displayed to the jury drawings done by Pedraza depicting religious and patriotic themes. She also described how Pedraza had threatened to commit suicide.
Pedraza did not establish in his Rule 37.1 petition that either his mother, his sister Lillian, or the family friend could have added any significant information to the testimony of the witnesses called by the defense in mitigation that would have affected the jury’s decision that a sentence of life imprisonment was appropriate. Because Pedraza failed to present specific evidence to demonstrate that prejudice arose and to demonstrate a reasonable probability that the information uncovered with further investigation would have changed the outcome of the proceeding, the trial court did not err in denying the relief sought.
Pedraza next argues that the trial court erred when it ruled that counsel was not ineffective when counsel waived prejudicial errors for appeal and when it ruled that his guilty plea was not coerced by counsel. Within this allegation, Pedraza also contends that counsel Lerred in not objecting to the jury being sworn for the sentencing proceeding without further voir dire. We find no error.
As we noted on appeal from the sentencing proceeding, the jury was selected in Pedraza’s case, but it had not been sworn at the time the State and Pedraza reached the plea agreement. In the agreement, the State agreed to waive the death penalty and reduce the charge to first-degree murder, and Pedraza agreed to plead guilty to that charge and be sentenced by the jury. Pedraza also agreed to waive any errors that may have occurred prior to his plea. When the jury next appeared for the sentencing proceeding, counsel for Pe-draza sought to ask, or have the trial court ask, additional questions concerning their reaction to Pedraza’s change in plea. The trial court denied the request, and counsel proffered the questions it would have asked of the jury. The jury was sworn and ultimately determined that Pedraza should be sentenced to life imprisonment. Pedraza argued on appeal that the trial court had committed certain constitutional errors and abused its discretion in denying his request to conduct additional voir dire of the jury. We held that the trial court did not abuse its discretion in refusing to allow additional voir dire and that there was no violation of Pedraza’s right to due process and an impartial jury. Pedraza, 2014 Ark. 298, at 7, 438 S.W.3d at 230. Because counsel did raise the issue concerning additional voir dire of the jury, Pedraza did not show that counsel was ineffective.
As to Pedraza’s allegation that counsel was ineffective for waiving all issues raised prior to the plea of guilty, the claim in the petition was entirely eoncluso-ry. That is, he did not. contend that a specific meritorious issue had been waived, and he did not explain how 17counsel’s conduct in agreeing to waive the issues coerced him to plead guilty. A petitioner in a Rule 37.1 proceeding must do more than make a conclusory allegation unsupported by facts. Mancia, 2015 Ark. 115, 459 S.W.3d 259. An allegation that prejudice was suffered without any factual explanation about what form the prejudice took or how serious it was is not enough to prove ineffective assistance of counsel. Id,
Pedraza also argued in his petition that counsel coerced him to enter the plea by assuring Pedraza that he would likely obtain a new trial or a lesser sentence on retrial. The argument was unclear in that it was the jury’s task to determine the appropriate sentence within the range of sentencing for the offense to which Pedra-za had pleaded guilty. There was no provision by which the jury would grant a sentence less than the minimum sentence within the range or order a new trial. Pedraza did not offer facts to demonstrate that his plea was coerced.
Pedraza further alleged in his Rule 37.1 petition that he was prejudiced' when the State inquired of a witness who testified in mitigation how many children Pedraza would have to kill before the witness changed his opinion of him. If Pe-draza intended the allegation to be a claim of ineffective assistance of counsel, counsel objected at the time the question was asked. Pedraza did not contend that there was any further action that counsel should have taken, and thus he did not establish that counsel was ineffective.
Finally, Pedraza contends that the trial court’s order should be reversed because he has established that the errors made by counsel, when considered cumulatively, establish that he was denied effective assistance of counsel. It is well settled that this court does not 18recognize the concept of cumulative error in Rule ¿7.1 proceedings when assessing whether a petitioner was afforded effective assistance of counsel. State v. Hardin, 347 Ark. 62, 60 S.W.3d 397 (2001) (holding that it was reversible error for the trial court to consider cumulative error in assessing claims of ineffective assistance of counsel).
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Gtrippin Smith, Chief Justice.
The appeal is from a decree wherein Sec. 8222 of Pope’s Digest was relied upon. The statute is discussed at length in Davis v. Cullums, 205 Ark. 390, 168 S. W. 2d 1103.
In 1932 John Oliver Brown married Martha, a widow with two sons and a daughter. July 15, 1941, John left Martha and his step-children in Stuttgart and went to Chicago. October 21 following John wrote the letter shown below.
September 15, 1943, Martha sued for divorce. Appropriate jurisdictional steps were taken, including ap pointment of an attorney 'ad litem. John received notice that the snit was pending, bnt in the proceedings from which this appeal comes he claimed that the attorney’s letter was not received in time for defense to be made. In other parts of his testimony John says that he remarried in October, 1943, “shortly” after receiving the attorney ad litem’s letter giving information that Martha had filed suit. As á matter of fact, the divorce decree was not rendered until November 22, 1943. For the purpose of this opinion it will be assumed that John’s Chicago marriage occurred after November 22d.
Martha died May 27, 1944, in consequence of a homicidal act.
When John left Stuttgart he was owner of a residence and certain rental property. They were mortgaged for $550. The record is unsatisfactory regarding value of the equities in 1941. Appellant contends the three lots with buildings were worth $3,000. Evidence adduced at the hearing on motion for retrial was that the property was worth between $700 and $800.
August 7th, 1944, appellant moved for a new trial. This was followed by an answer to the original divorce action. Appellant admitted that after marrying Martha the realty in question was acquired. It was mortgaged, but appellant denied there was an agreement with Martha that if she would discharge the indebtedness the estate should become hers. There was denial that Martha paid appreciably on the debt, but to the contrary, John says he sold other holdings and reduced the obligation to less than $100. The prayer was “ . . . that the complaint of the plaintiff be dismissed for want of equity, and for all other relief”.
In appellant’s motion for a new trial it was alleged that because of constructive service, he had no knowledge prior to final decree that the action was pending.
John returned temporarily to Stuttgart. His deposition was taken in Arkansas County November 21, 1944. The record shows that a letter to him (which he admitted receiving) was written October 23, 1943- — a month before the decree was rendered.
Chief contention is that there must be a new trial, irrespective of the divorce, and that ancillary to this proceeding property rights should be determined. We agree with appellant, as expressed by counsel, that he was entitled to file an answer, “ . . . setting up his defense, and may offer any evidence competent to establish such defense. The plaintiff may offer such evidence as may be preserved in the record and such additional competent evidence as may be desired. The Court can then award such relief as is justified by the pleadings and the proof. It may vacate, modify, or set aside the former judgment”.
Appellant contends that the complaint filed by Martha was limited specifically to the matters enumerated: (a) Decree of absolute divorce; (b) reasonable sums payable monthly for support; (c) vesting, quieting, and confirming in Martha a fee simple title to the real property, and (d) “all costs herein expended, including suit money and attorney’s fee, and all other proper relief”.
Counsel has carefully traced from Chapter 51 of the Revised Statutes the section now appearing in Pope’s Digest as 4393, showing amendments, etc. The benefits or relief mentioned in § 4393 define a limit, says counsel, beyond which the Court may not go; and, since alimony is not assessable in a gross sum, Martha’s support and maintenance should not have been computed from July 15, 1941, when the act of desertion is alleged to have occurred.
In Walker v. Walker, 147 Ark. 376, 227 S. W. 762, it was held that an action for divorce against a nonresident where the service was constructive could not result in a personal judgment, and that a decree for alimony and attorney’s fee is personal. But see Smith v. Haltom, 177 Ark. 790, 8 S. W. 2d 437, where it was held that the request of the plaintiff in a divorce proceeding that domestic funds of her nonresident husband (constructively served) be held amounted to an equitable garnishment from which alimony might be paid.
The holding in Strickland v. Strickland, 80 Ark. 451, 97 S. W. 659, is that while death terminates a divorce suit, yet where property rights depend upon correctness of the decree and an appeal has been taken, it is the duty of this Court to entertain jurisdiction in order to settle such rights, notwithstanding death of the husband pendente lite. Chief Justice Hill, who wrote the opinion, said: “This is not a divorce suit now in the proper sense of the term, but a mere review of a divorce decree to ascertain its correctness in order to fix property rights. The reasons usually appealing to a court in favor of [allowances] do not appear here, and the usual means of enforcing such order no longer exists”.
Corney v. Corney, 97 Ark. 117, 133 S. W. 813, illustrates the equitable principle that if a plea of laches has been made it will be sustained in the interest of justice where because of changed conditions the complaining party can lose nothing but costs and if sustained may profit substantially.
Appellant, in his brief, mentions the matters that should have been retried, but says “ . . . they were not, since the Court found that John, by his remarriage, had estopped himself”.
While the property was not, in its entirety, subject to the claim of Martha as dower, (and that part of the original decree is erroneous but now harmless) the Chancellor did not underestimate the weight of evidence in finding — in consequence of the second trial — that appellant willingly attempted to part with his equity before leaving Stuttgart in 1941; that ho told Martha the property would be hers if she paid it out; that she, with the assistance of the children, did make payments, and that during the twenty-eight months between abandonment of Martha and her divorce John treated the mortgage of $550 as non-existent, and neglected to pay taxes. Nor do we agree with appellant that the hearing on John’s motion for a new trial was not in fact a trial. Witnesses were heard, statements of ac counts were submitted, and John’s deposition covers twenty-two pages of the transcript.
Martha’s two sons were in the military service and from their allotments payments on the property were made. After Martha was killed the children employed private counsel to assist the Prosecuting Attorney in procuring a conviction. For this purpose a mortgage on the lots was executed and $350 procured.
The decree appealed from expressly finds that there was a trial. The opening sentence is, “Now on this day regularly comes on to be heard this case, same having been duly submitted in term time, and ... all parties duly and properly agreeing and consenting to a trial hereof in vacation, and at this time, and all parties announcing ready for trial, the Court doth proceed to a hearing hereof on the original pleadings, complaint, . . . the original decree rendered by the Court on November 22, 1943, . . . depositions of John Oliver. Brown, Elizabeth. Ice, Rosie Lee Phillips, Theodore "W. Montgomery, O. J. Miller, D. T. Oaksmith, and John W. Moncrief, together with exhibits thereto; and the Court, after hearing the evidence and argument of counsel, . . . doth find . . . that the decree of November 22, 1943, should not be vacated”. Form of the decree was approved by the indorsement of appellant’s counsel.
It can be argued, of course, that refusal to vacate the old decree with its award of the property to Martha as dower is demonstrative error calling for a reversal; and so it would be if this were the only ground upon which the transaction could rest. But it must be remembered that a little more than three months after John left Stuttgart he wrote concerning his spiritual regeneration. So enraptured was he that no mention was made of worldly commodities recognized in law as real property; there was no overture of cooperation looking to preservation of the houses for mutual benefits. When John Oliver Brown left Martha, he quit with a finality not easily misunderstood, and with the inscribed admonition, “It is nothing doing for you”.
Although John, hy his own repeated assertions, married Chicago’s Geneva Williams in October 1943 while Martha was still his wife, he must, in the case at bar, abide the date stipulated by deposition, effect of which is to postpone until after divorce the new relationship. Without the decree of November 22 there could have been no lawful union with Geneva. When all transactions under consideration are appropriately appraised, the conclusion is inescapable that John did not intend to reassert any claim to the property. His temptation to recover appears to have been transmuted into action when death removed Martha and erased the facts with which she was familiar; but in the meantime — and because of the divorce, as John says — he was enabled to acquire a new wife and by absenteeism be relieved of the “heavy^load he was carrying” at Stuttgart.
Although appellees are the heirs of Martha Brown, evidence preponderates that each of the three children had worked — the boys in particular — and that their earnings were turned over to the mother and presumptively became a part of the fund with which the mortgage debt was paid. In addition, the boys, relying upon their stepfather’s conduct as evidence that the property had been turned over to their mother, made payments from money earned in the armed service; and finally $350' was borrowed in reliance upon the decree. In these circumstances appellant, while entitled to the trial because of statutory provisions, will not be permitted to avoid the divorce Martha obtained from him on virtual invitation; nor may he prevail over the equities of others.
Affirmed.
“Mrs. Martha Brown. Dear one: Holly greeting to you in Jesus name. I am savte from sin. an in prayzing Jesus I am well, and hope you are the same. I am writing to let you no that I am not going to be your no more. So if you will get you some one, and forget all about me and I will forget you and do not come looking for me. for it is nothing doing for you. Yours truly, John O. Brown, 7535 W. 64th St., Argo, 111.” [Argo is a suburb of Chicago, about twelve miles from the city proper].
Admission by counsel for appellant. [Tr. 53]. | [
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Smith, J.
Appellees who operate a restaurant in the business section of the city of Pine Bluff, brought this suit against the officers of Hotel and Restaurant Workers Union No. 858, and certain members of the Union who were, or had been, employees, to enjoin the alleged illegal picketing of their place of business. A temporary restraining order was granted, and a motion was filed praying that this order be dissolved, it being denied in the motion that defendants were picketing in an unlawful manner. The court granted the relief prayed by the appellees and refused to modify the restraining order, and from that decree is this appeal.
Appellees, plaintiffs below, offered the testimony of twenty-one witnesses, these being the two owners of the restaurant, eight employees and eleven members of the general public, the latter apparently had no personal interest in the litigation. The testimony on behalf of appellants was to the effect that they had employed no force or violence or coercion.
A number, less than a majority, of the plaintiffs’ employees, were on strike, and to promote their demands for the enforcement of which they were striking, they began picketing plaintiffs’ place of business which was a building fronting twenty-five feet on the principal ■street of the city, which had only one entrance from the street, a door five feet wide. Only two members of the Union were on picket duty at any one time, and these carried banners announcing that the place they were picketing was unfair to union labor. These pickets walked back and forth in front of the restaurant. They frequently walked within a few feet of the door, and in some in stances patrons desiring to enter had to push the pickets aside to do so. A crowd usually stood milling around the front of the building varying from ten to thirty in number.
One Wilson testified that on three occasions he was stopped by the pickets and their sympathizers from going into the building and was told not to do so, but he pushed by them and went in. On one occasion as he left the dining room a large man who was identified as one of the persons who hung around the door, asked him why he had gone into the building. He told the man it was none of his business, whereupon he was knocked down with a pair of brass knucks and severely injured. A number of witnesses testified that they and others were stopped by persons who congregated in front of the door, and were urged not to enter and there is abundant testimony that the pickets and their sympathizers did congregate near the door and did urge people who were about to enter, not to do so, and they thus deterred many people from entering. Plaintiffs testified that during the progress of the strike their business declined about ninety per cent.
Another witness testified that as a lady and her escort, who was carrying a baby, attempted to enter, the entrance was blocked and that witness did not attempt to enter as he did not want to have any trouble. Another witness testified that as he left the building a hand was placed on his shoulder, and he was asked why he had gone into the building, and when he answered that was his business, he was told not to get too smart or he might get hurt. This witness testified that he saw many others stopped as they attempted to enter. A lady testified that as she attempted to enter with her brother, one Landreth, to whom reference will be made shortly, remarked, “There go some sons of bitches now,” and another man remarked, “Nobody but whores would go into that cafe.” The court might well have found that such remarks were calculated to cause breaches of the peace, although they did not cause them in this instance. Only a bold man, or possibly a foolish one, would have been willing to antag onize the crowd then present, and when the witness was asked if the statement was resented, replied, “Certainly, bnt you would not want trouble with that bunch. ’ ’
Another witness testified that she heard a picket call a man a son of a bitch. It was shown that one Jack Johnson, who while not a member of the Union on strike, was a sympathizer and was rather regular in his attendance on the picketing, and that he opened the door and shook his fist at employees who were working' and had not gone on a strike and said, “I’ll get you for it.” Witness did not say what Johnson meant by the remark, but it would be difficult to misinterpret it. Another witness testified that persons who braved the remonstrances and entered were told they would be sorry for having done so.
The proprietor testified that the crowds, always large, grew larger on Saturday night, and that he was scared and closed his place of business and went home at 7 p. m. It was testified that a picket, a young woman, was intoxicated and that she brushed people with the banner she carried as she paraded in front of plaintiffs ’ place of business.
A waitress who did not join the strike, testified that she could see from within what happened without, and that the crowd in front of the cafe interfered with people who wanted to come in, and that the crowd stopped a number of people who otherwise would have come in; that the pickets walked up and down in front of the door, from one side of the door to the other, and that they walked in front of the door most of the time, and that it was hardly possible for people to enter the door without bumping into the pickets, and that she heard the pickets tell people “You don’t want to go in there”; that some of the people actually had their hands on the door when someone would yell, “Hey, you don’t want to go in there,” and that most of these people left without entering.
One C. E. Landreth to whom reference has already been made, appears to have been in charge of the strike. He testified that he was an organizer for the Union, and admitted that he sat in his automobile near the restaurant during much of the day, and that after 6 p. m. he parked his car in front of the restaurant. It was he who referred to the ladies about to enter the restaurant as whores.
A number of the persons who congregated in front of plaintiffs ’ restaurant were not members of the Union, probably most of them were not, but they were present aiding and abetting the strikers, and if their participation resulted in unlawful acts each through their concerted action was responsible for the acts of all the others done in the accomplishment of a common purpose. In the case of Guerin v. State, 209 Ark. 1082, 193 S. W. 2d 997, we quoted the following statement from the case of Butt v. State, 81 Ark. 173, 98 S. W,. 723, 118 Am. St. Rep. 42, that “when a conspiracy has been shown, then the acts and declarations of one conspirator in the furtherance of the common design may be shown as evidence against his associates.”
To attempt a review of the innumerable cases, both state and federal, which have discussed the right to employ picketing in aid of a strike in progress, and the limitations on that right, would be an interminable task, and to do so would-be a work of supererogation so far as this case is concerned as our own cases on the subject have announced the principles which control the decision of the questions here presented. In one of these, that of Local Union No. 313 v. Statkakis, 135 Ark. 86, 205 S. W. 450, 6 A. L. R. 894, we said: “It is recognized, and this court has expressly decided, that the laborers have the right to organize into unions for the purpose of bargaining collectively for the betterment of their condition and, as an incident thereto, to strike collectively. Meier v. Speer, 96 Ark. 618, 132 S. W. 988, 32 L. R. A., N. S. 792. They have the right to say for whom and upon what terms they will work, and may act through their unions in the decision of these questions, provided, of course, no contracts of employment are broken. And when they fail, acting thus collectively, to agree with any employer and have gone upon a strike, they have the right to apprise the public of that fact and to solicit the support, not only of members of the union, but of the public generally in any legitimate attempt to prevail in their controversy. Against the law as thus stated there appears to be no dissent. On the other hand, it is equally as well settled and as uniformly held by the courts that the labor unions have no right to resort to force, intimidation or coercion. Publicity as well as other means of persuasion may be used; but force, coercion and intimidation may not be used.”
This case was referred to in the brief of counsel for certain employees on strike in the later case of Riggs v. Tucker Duck & Rubber Co., 196 Ark. 571, 119 S. W. 2d 507, as ancient law now obsolete, but we adhered to our former holding and the opinion of the majority has not changed.
The effect of these cases and an innumerable number of others is that the employee may strike when and if he pleases, and he has the right to solicit support in and aid of his strike by urging other employees to strike, by giving publicity to the fact that he is on strike, by urging that support and patronage be withheld by the public generally from the employer against whom he is striking. In doing so, he may inflict great injury upon himself, his former employer and the public as well, but he is never-, theless acting within his rights when he does so. We do not hold or intend to decide anything which abridges these rights, but he must exercise them in a lawful manner. He may not employ force, violence, threats or intimidation, because in so doing he is interfering with the rights of others as sacred, and as much entitled to the protection of the law, as are his own rights.
We reaffirm and reiterate our holding that the right to strike is one of which the employee may not be deprived, and he may solicit support by any lawful means lie chooses to employ, but in the recent case of Smith and Brown v. State, 207 Ark. 104, 179 S. W. 2d 185, we said: “. . . but even picketing when accompanied by force, violence, intimidation or coercion cannot find any protec tion under the constitutional guaranties of freedom of speech and freedom of the press.”
Here there was actual violence. One man was knocked down, and there was the constant threat of the repetition of violence, at least the court might have so found. The size of the crowd interfering with persons who sought to enter did not diminish and we think the court was warranted in finding that these Conditions not only had not improved, but were not likely to do so, and under these circumstances it was not error to make the temporary injunction permanent. ' >
In the Chapter on Labor, 31 Am. Jur., § 249, p. 955, it is said: “Permissible activities on the part of pickets do not include obstruction of access of customers. Pickets may not aggressively interfere with the right of peaceful ingress and egress to and from the employer’s shop, or obstruct the public thoroughfares. Picketing is not peaceful where the sidewalk or entrance to a place of business is obstructed by pickets parading around in a circle or lying on the sidewalk. ’ ’
At § 242 of the same chapter it was said: “Picketing a place having direct dealings with the public, such as a restaurant, has been condemned in some cases because of its tendency to deter prospective patrons of the business by intimidation from entering the place of business. Thus, it has been decided that employees of a restaurant keeper who are on a strike, have no right to congregate about the entrance of his place of business and there, either by persuasion, coercion, or force, prevent his patrons and the public at large from entering his place of business or dealing with him.”
At §, 240 of the same chapter it is said: “Force threatened is the equivalent of force exercised. In many cases, it has been observed, it is difficult to draw the line of demarcation between intimidation and inoffensive persuasion. But even when the acts of the strikers, although unaccompanied by violence or threats, are such an annoy anee to others as to amount to coercion or intimidation, they are unlawful. ” ‘
A large number of cases, many of them annotated, are cited in the notes to the text quoted, which fully sustain the text, and reference is made to them for the use of anyone who would pursue the subject further.
Reference is made in the brief of counsel for appellants to a motion in which the court was asked to dissolve the restraining order to permit peaceable picketing, but this motion was predicated upon the following allegation. “Defendants (appellants) further state that the picketing and patrolling performed by them against the plaintiffs and the business of the plaintiffs was peaceable picketing within the laws of the State of Arkansas, and that no illegal act had been performed by them. ’ ’ The implication is inescapable from the allegations of this motion, that it was the intention to continue such picketing as had been practiced, and if so it was not error to have made the injunction permanent under the justifiable belief that future picketing would likely result in the continuance of intimidation and coercion previously employed.
In the case of Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U. S. 287, 61 S. Ct. 552, 85 L. Ed. 836, 132 A. L. R. 1200, an opinion of the Supreme Court of Illinois upholding a permanent injunction was affirmed. It was there said: “We cannot say that such a finding (that the picketing should be wholly enjoined) so contradicted experience as to warrant our rejection. Nor can we say that it was written into the Fourteenth Amendment that a state through its courts cannot base protection against future coercion on an inference of the continuing threat of past misconduct. Cf. Ethyl Gasoline Corp. v. United States, 309 U. S. 436, 60 S. Ct. 618, 84 L. Ed. 852.”
That case gives an interpretation of the effect of a permanent injunction in cases of this kind which we adopt as follows: “The injunction which we sustain is ‘permanent’ only for the temporary period for which it may last. It is justified only by the violence that induced it and only so long as it counteracts a continuing intimidation. Familiar equity procedure assures opportunity for modifying or vacating an injunction when its continuance is no longer warranted. Here again, the state courts have not the.last say. They must act in subordination to the d.uty of this Court to enforce constitutional liberties even when denied through spurious findings of fact in a state court. Compare Chambers v. Florida, 309 U. S. 227, 60 S. Ct. 472, 84 L. Ed. 716. Since the union did not urge that the coercive effect had disappeared either before us or, apparently before the state court, that question is not now here.”
The acts of violence and coercion in the instant case are not as great as those recited in the Drivérs-Meadowmoor case, but they are of the same character, done and performed for the same coercive purposes and differ only in degree, and with such systematic persistence as to warrant the finding that they would have continued unless restrained.
The decree of the court making the injunction permanent as defined in the Meadowmoor case is affirmed.
Mr. Justice Robins and Mr. Justice Millwee dissent; Grieein 'Smith, Chief Justice, dissents from that part of the opinion which holds that the decree should not have been modified. | [
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Ed. F. MoFaddin, Justice.
Appellee, Woodson, sued appellant, Sumlin, for unlawful detainer (§ 6035, et seq., Pope’s Digest), and recovered damages which are challenged by this appeal.
Woodson owned a stock of groceries and fixtures and a building located at 716 West Third Street, Little Eock. He did not own the land on which the building was situated, but had a ground lease (paying therefor $20 per month), and had the right to remove the building. Woodson had operated a grocery store in the building from November, 1943, to March, 1944, when, for a cash consideration of $1,750, Woodson sold to Sumlin the stock of groceries and the fixtures, and also rented Sumlin the building for $27 per month. In October, 1944, Woodson demanded rent of $40' per month. After some negotiations Sumlin agreed to pay rent at $30 per month, and also to give Woodson and Ms family a discount of 20 per cent, on all groceries that they purchased from Sumlin. This rental agreement continued until November, 1945, when Woodson duly notified Sumlin to vacate the building on January 1, 1946.
Sumlin refused to vacate, and in January, 1946, Woodson, after giving statutory notice, brought this action of unlawful detainer. Sumlin gave cross bond, and retained possession of the building until the trial below (April 17,1946), which resulted in a judgment for Wood-son for (1) possession of the building; (2) rent at $60 per month from January 7, 1946; and (3) $300 as damages for unlawful detention. Sumlin has appealed to this court. Originally, there were two áppeals, one based on the trial of April 17, 1946, and the other based on the refusal of the court to grant a new trial on the ground of newly-discovered evidence; but, with becoming candor, Sumlin’s counsel have limited the issues on these appeals to two assignments. Appellant’s counsel thus states Ms contentions:
“The issues on appeal having been confined solely to the award of damages, appellant will discuss only his assignments of error dealing with that phase of the case. Two general topics present themselves: (1) the award of. rentals at $60 per month.; and (2) the verdict of $300 as damages for loss of profits.”
We proceed* therefore, to ascertain whether the evidence is sufficient to support the jury’s verdict for (a) rental value and (b) damages.
I. Rental Value. The jury fixed the rent at $60 per month from January 7, 1946, and appellant says there is no competent evidence to sustain such a figure.
Appellee testified that, beginning January 1, 1946, the amount he paid for ground rent was increased from $20 per month to $42 per month. So, the rental fixed by the jury ($60 per month) only netted appellee $18; whereas, before January 1,1946, appellee (paying ground rent of $20 per month, and receiving from appellant $30 per month) had netted $10 per month, plus 20 per cent, discount on groceries. We mention this as tending to show that appellee was not receiving any appreciable net increase at the $60-per-month figure fixed by the jury for rent after January 1, 1946.
But the cogent evidence is found in the fact that the appellee testified that he had been offered $60 per month as rent for the building occupied by the appellant, and that $60 per month was a reasonable rent. Appellee did not have to qualify as an expert in matters of realty rentals in order to state what he had been offered as rent for the building. In Reeves v. Romines, 132 Ark. 599, 201 S. W. 822, Mr. Justice Hart, in discussing rental value and how it could be ascertained in an unlawful detention action, said:
“By rental value is meant, not the probable profits that might accrue to the tenant, but the value, as ascertained by proof of what the premises would rent for,.or by evidence of other facts from which the fair rental value may be determined.” (Italics our own.)
It is thus clear that “what the premises would rent for ’ ’ is not the only way, but is at least one way, of ascertaining the rental value in an unlawful detainer action. The appellee stated what he had been offered as rent for the premises, and he was not disproved on the point. His testimony, with the other facts as previously mentioned, is sufficient to support the jury’s verdict fixing the rent at $60' per month from January 7, 1946.
II. Damages for Loss of Profits. In addition to the rents, Woodson sought $500 as damages for the unlawful detention of the premises. The only.element of damages that Woodson attempted to prove was the profit that he claimed he would have made from operating a grocery store in the building from the date of the filing of the action to the time of the trial; and the jury awarded him $300 for such damages. The appellee says that § 6050, Pope’s Digest, lists “profits” as an item of damages; and this statute is urged by appellee to sustain the verdict for damages. To ascertain and determine the purpose and effect of § 6050, Pope’s Digest, we need to consider it historically.
This section is § 5 of Act 8 of 1891. Prior to this Act of 1891 this court held that damages for the detention of the premises could not be recovered by the landlord in the unlawful detainer action. Some of the cases so holding are Keller v. Henry (1867), 24 Ark. 575; Walker v. McGill (1882), 40 Ark. 38; and Poe v. Bradley (1884), 44 Ark. 500. To overcome the effect of these cases, and to allow the landlord to receive his rents and damages in the unlawful detainer action, the Legislature enacted § 5 of Act 8 of 1891; and this section stated that the landlord could recover as damages in the unlawful detainer action:
(1) “rent . . . up to the time of rendering judgment, . . .’’or
(2) “value of the use and occupation” of the premises; or
(3) “the rents and profits thereof during the time the defendant has unlawfully detained possession, as the case may be, and damages for withholding the same, . . .”; or
(4) “damages to which said plaintiff may be entitled on account of the forcible entry and detainer of sucli premises, . . .” This § 5 of Act 8 of 1891 was discussed by Mr. Justice Hughes in Richardson v. Harrell, 62 Ark. 469, 36 S. W. 573. It must be remembered that the action for unlawful detainer lies for a farm, or a residence, or a store building, or other kind of property; and that the damages to the landlord are to be ascertained and determined, depending on the type of property, etc. It is therefore evident that the purpose of the 1891 act was to point out the methods of determining damages, and then to allow the court to direct the jury as to the measure of damages applicable to the particular case on'trial: the main idea being that the landlord was entitled to the damages which he proved with reasonable certainty, as flowing directly and proximately from the unlawful detention.
Whether “profits” as used in § 6050, Pope’s Digest, means (a) profits from the rents, or (b) profits from the building, or (c) profits from the business carried on in the building, is a question we do not now decide; because, in the case at bar, the plaintiff’s loss of profits is entirely speculative. In each, of the various cases decided by this court in which losses of profits have been allowed as damages, it has been expressly or impliedly stated that such profits must be capable of proof with reasonable certainty, and that no recovery can be had for loss of profits where it is uncertain or speculative whether there would ever have been any profits. See Black v. Hogsett, 145 Ark. 178, 224 S. W. 439. This is but another way of saying that damages cannot be based upon conjecture and speculation.
In Harmon v. Frye, 103 Ark. 584, 148 S. W. 269, in speaking of loss of profits as an element of recoverable damages, Mr. Justice Kirby, speaking for this court, said:
• “Such damages 'must be certain both in their nature and in respect to the cause from which they proceed. It is against the policy of the law to allow profits as damages, where such profits are remotely connected with the breach of contract alleged, or where they are speculative, resting only upon conjectural evidence or the individual opinions of the parties or witnesses.’ 13 Cyc. 53. Spencer Medicine Co. v. Hall, 78 Ark. 336, 93 S. W. 985; Beekman Lbr. Co. v. Kittrell, 80 Ark. 228, 96 S. W. 988; Hurley v. Oliver, 91 Ark. 433, 121 S. W. 920.” To the same effect, see, also, St. L.-S. F. Ry. Co. v. Spradley, 199 Ark. 174, 133 S. W. 2d 5; and S. W. Tel. & Tel. Co. v. Memphis Tel. Co., 111 Ark. 474, 163 S. W. 1153, and earlier cases there cited. See, also, West’s Arkansas Digest, “Damages,” § 40, 124, 176, listing other cases from this court. See, also, 17 C. J. 758, 788 and 910 for general discussion. (25 C. J. S., Damages, §§ 28,43, 90.) In 15 Am. Juris. 560, after giving the general statements from leading cases, this rule is deduced :
“It has been said that the most definite rule that can be drawn from the cases would seem to be that if by any chance or, under any condition of affairs then existing the profits might not have accrued though the wrongful act had not intervened, there can be no allowance of profits lost as damages; but if, except for the wrongful act, there must have been profits, notwithstanding any other circumstances existing at the time of the perpetration of the wrong, the question of their speculativeness and contingency is absolutely negatived.”’
Tested by our own cases, as well as the general rule above stated, we are convinced that the profits, claimed by Woodson in this case, were never removed from the realm of conjecture and speculation, because it is uncertain from the evidence whether any profit would ever have accrued to him. Woodson claimed that he would have operated a grocery store in the building if Sumlin had surrendered possession, and that Woodson would have made a gross profit of 25 per cent, on all sales. In his attempt to show what these sales might have been, Woodson showed: (a) his own gross sales in this building in January and February, 1944, to have been $1,074 and $1,042.97, respectively; and (b) Sumlin’s gross sales in this building for January and February, 1946, to have been $3,807.54 and $3,242.69, respectively.
If we take Woodson’s gross sales of January and February, 1944, as the basis of calculation for showing net profits, we get a gross profit of approximately $250 each-month; and from this last-mentioned figure must be deducted utility bills, taxes, extra help and a reasonable amount for the value of Woodson’s own time and services. No figures are in the-record showing any of these deductible items: so it was not shown that Wood-son would have had any net profits based on his own previous operations, even if such operations were not too remote in time to he used as a standard.
If we take Sumlin’s gross sales for January and February, 1946, as the basis of calculation, to support Woodson’s claim of net profits, we are beginning the calculation with the rankest sort of conjecture and speculation, because no one testified that'Woodson was as good a merchandiser or salesman as Sumlin. Sumlin’s record of gross sales affords not the slightest indication as to what Woodson might have sold. Sumlin had a volume of sales treble that of Woodson; but Sumlin had a meat market in the store, he paid a butcher $55 a week; and the record is silent as to what part of Sumlin’s gross sales came from the grocery business, as distinct from the meat market. Woodson never testified that he intended to operate a meat market.
We have pointed out sufficient of these matters to indicate the conjecture and speculation on which the verdict was necessarily based. The testimony, regarding loss of profits, in the case at bar is no more definite than was the testimony on the same question in the case of Beasley v. Boren, 210 Ark. 608, 197 S. W. 2d 287, and in that case we said:
“The testimony introduced by appellees as to loss of profits which appellees thought they suffered . . . was not sufficiently definite to sustain the verdict of damages to appellees on these grounds, even if it should he held that such damages are recoverable in an action such as this.
“There was introduced in evidence no such records or data as would sustain appellee’s theory as to their loss of profits, and Mr. Boren’s testimony as to what profits appellees would have earned from their business at the new location was at best a mere conjecture on his part.”
The context of the, above quotation applies with equal force to the case at bar. When a party embarks on the enterprise of recovering anticipated profits, he must present a reasonably complete set of figures, and not leave the jury to speculate as to whether there would have been any profits. Woodson failed to fulfill his burden in this regard; and the verdict of $300 for loss of profits is based on conjecture and speculation, and cannot be allowed to stand.
We, therefore, modify the circuit court judgment by vacating the judgment of $300 for damages, and in all other respects we affirm the judgment of the circuit court, with the appellant to recover his costs in his court.
Paragraph 6050, Pope’s Digest, deals with damages the landlord may claim against a tenant who has unlawfully withheld possession. Coley v. Westbrook, 206 Ark. 1111, 178 S. W. 2d 991, is a case dealing with the landlord’s damages. Also, there is an annotation in 39 A. L. R. 386 on “Measure of damages for tenant’s failure to surrender possession of rented premises,” which shows the holdings of courts of other states, but based on statutes somewhat different from our own. Section 6052, Pope’s Digest, deals with the damages the tenant may recover from a landlord who has unlawfully evicted him. The difference in the wording of these two sections is worthy of note. The following cases deal with the tenant’s damages under § 6052: Brockway v. Thomas, 36 Ark. 518; McElvaney v. Smith, 76 Ark. 468, 88 S. W. 981, 6 Ann. Cas. 458; Byers v. Moore, 110 Ark. 504, 163 S. W. 147; Wakin v. Morgan, 165 Ark. 234, 263 S. W. 783. | [
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Grieein Smith, Chief Justice.
The action was begun in Circuit Court as a suit in ejectment, with the plaintiffs alleging that they were entitled to possession of forty-six and two-thirds feet “off of the- south side of Lots Seven and Eight in Block Thirty-six in Flood’s Addition to the City of Stuttgart.” The action was transferred to Chancery.
The lots forfeited for 1930 taxes and were duly certified to the State. In 1936 the State’s title was confirmed under Act 119 of 1935, and in September, 1942, the Land Commissioner conveyed to appellees. Appellants contend (a) that the original sale and subsequent confirmation were void; (b) there was an illegal assessment of road taxes for 1930 and there were other void assessments, with confusion as to valuation; (c) a recital in the decree shows that certain redemptions had been effectuated, and the decree does not point with certainty to the property so redeemed; and (d) appellees’ acts in collecting-rents amounted to a redemption.
It is conceded by appellants that the lots are 50 x 140 feet, and if considered as a unit they occupy an area 100 x 140 feet. The description in all of the proceedings prior to the decree was “Forty-six and two-thirds feet S. Side L. 7-8/’ etc. Insistence is that “side” must be construed to mean half. There is this contention:
“Exclusive of ten feet for alley right of way on the north end and twenty-five feet for street right of way on the south end, each of these lots is 140 feet in length; and exclusive of thirty feet for street right-of-way on the east side, each of these lots is fifty feet wide. The south end of the two lots (combined as' a body) has 70 x 100 feet, exclusive óf public right-of-way. Therefore, forty-six and two-thirds feet could not be a description of the entire south ‘end’ or south ‘side/ and this necessarily results in having a smaller or lesser' body to be taken somewhere out of a larger body.”
We think the references to streets and alleys is more confusing than revealing. A drawing will show that if forty-six and two-thirds feet should be taken from the south end, the amount remaining in the south half of each lot would be twenty-three and a third feet. This would leave two lots of the same size north of the severed area, and it seems that the purpose was to divide the lots north and south so that each would have equal areas. The question is, Does south side mean south half, or should it be construed with such meticulous. exactness that an ordinary person would be uncertain in respect of the intent? •
While as a general proposition the word “side” has reference to the longer dimension of a rectangle, we think the Chancellor was justified in taking a practical view of the obvious and holding that the result intended would direct a purchaser to either the southwest corner of Lot Seven, or the southeast corner of Lot Eight. From these points the measurement would be north 46 2/3 feet; or, if the words “south side” alone be considered, then 46 2/3 feet would extend entirely across, otherwise the two lots would not be reached, for the description clearly covers “L. 7-8.”
Records of the Quorum Court show that for 1930 a tax of three mills was levied “for district road purposes.” Appellant’s contention is that because the Constitution only authorizes a three-mill “county road tax” there was failure to make a valid levy, hence inclusion of ninety cents in the amount for which the property sold will avoid the sale. In Berry v. Davidson, 199 Ark. 276, 133 S. W. 2d 442, Mr. Justice Baker said that where taxes have been levied against land, “however defectively that may have been done,” the power to sell for non-payment exists, and confirmation under Act 119 of 1935 cures all defects. To the same effect is Faulkner v. Binns, Trustee, 202 Ark. 457, 151 S. W. 2d 101.
Contending that there is no power to levy a district road tax, appellants say: “Road districts are created in various ways and with various and different functions and with officers or overseers having different powers —some, we believe, being created by local acts prior to the anti-local amendment. ’ ’
Assuming there could have been locally created districts, there is no suggestion that such was true: nothing more than a possibility. Again, the result represents merely an irregularity. Undoubtedly the tax was for county road purposes, and this being true, there was no illegal exaction.
Taxes were extended pursuant to Act 172 of 1929 as follows: “Value of lot, 300; value of improvements, 200; total valne, 300.” Because 300 and 200 do not make 300, it is insisted the assessment is void on its face; and for want of a decimal point appellants do not know whether the figures represent dollars, cents, or mills. Schultz v. Carroll, 157 Ark. 208, 248 S. W. 261; Carter v. Wesson, 189 Ark. 942, 75 S. W. 2d 819; and Mixon v. Bell, 190 Ark. 903, 82 S. W. 2d 33, are cited. The Schultz-Carroll case involves the levy of school taxes. After listing District No. 103, the extension was, “Amount tax voted, 7; for what purpose, 5 gen. 2 bldg.” Mr. Justice Humphreys, in writing the Court’s opinion, said that these figures, standing alone, were meaningless. In a dissenting opinion Chief Justice McCulloch said: “The Constitution authorizes the school tax in mills, and we should indulge the presumption that the figure in the record was intended to refer to the amount of tax thus authorized. It could not have had reference to dollars .or cents, therefore it must have meant mills. The omission was a mere clerical error. ’ ’
In the Wesson case the sale was for $7.32 “more than the entire quarter should have sold for.”
The Bell case involved failure to make extensions; but, instead, blank lines were left..
While we think the dissenting opinion by Judge McCulloch announced a better rule than the majority holding, there is a distinction between the Sehultz-Carroll decision and facts in the case at bar. It is so highly improbable that a lot would be assessed at $3 and improvements at $2, with an extension of $3 to cover the two, that judicial construction in favor of the objecting party should not be invoked. Applying common experience to the transaction, we know that dollars were meant; and failure to utilize a decimal point was nothing more than an irregularity. See Sawyer v. Wilson, 81 Ark. 319, 99 S. W. 389; Beasley v. Bratcher, 114 Ark. 512, 170 S. W. 249; Evans v. Dumas Stores, Inc., 192 Ark. 571, 93 S. W. 2d 307.
The decree recites that some of the tracts covered by the confirmation had been donated, sold, or redeemed, and “It is adjudged that none of the findings or judgments herein shall be adverse to such donee, purchasers, or persons redeeming, but that on the contrary same shall inure to the benefit of said persons, their heirs or assigns.”
We think appellees correctly state the case when they say that had appellants redeemed, “such redemption could have been interposed as a defense to this proceeding, and the fact that no such plea was interposed is conclusive that there had been no redemption.”
The record shows that the Quorum Court had before it a certificate from the County Board of Education designating the millage voted. For District No. 22 (Stuttgart) the amount was written “18.” It is argued that this is indefinite. We do not think the taxpayer was in any respect deceived; nor was there an overcharge. Clearly the figures did not refer to eighteen dollars, or eighteen cents.
In their insistence that the valuation of “300'for the lot and 200 for improvements” shows error on the face of the assessment, appellant says that the total valuation was $500 if failure to use dollar marks did not render the entry vague; hence when the total rate of 42.4 mills is multiplied by $300 the tax is $12.72. If extended on $500 the item would be $21.20; therefore the sale was for less than the correct sum by $8.48. They seek to invoke the rule adopted in Hires v. Douglas, 198 Ark. 559, 129 S. W. 2d 959. It was there held that sale of land in an improvement district by a commissioner on order of the Chancery Court where the record affirmatively showed that interest was not included “. . . has the effect of avoiding such sale,” the Court being without jurisdiction to act where the foreclosure was on part of the obligation only.
The writer of this opinion wrote the opinion in Hires v. Douglas. We think that part of the decision holding that the Court was without power to order a sale for less than the total obligation, including interest, was wrong. It was error not to require all of the debt elements to be adjudicated, but this did not deprive the Court of jurisdiction as to the foreclosure. The first ground for reversal — that the Commissioner’s report showed sale of several tracts in solido — was substantial, and the decision should have rested on that point. That was a judicial sale, while in the instant case a tax forfeiture is involved. Different rules are applicable, but it is not improper to say here that the jurisdictional holding in Hires v. Douglas is overruled.
Facts incident to appellees’ conduct in collecting rents (upon which appellants predicate their contention that redemption was effectuated) were presented by ex parte affidavits and filed directly with the Clerk of this Court, and cannot be considered. But even if such supplemental record were allowed, appellants would be met with the showing that time for redemption had expired.
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Holt, J.
A jury found Houston Ingle and Eddie Michael guilty of the crime of burglary and fixed the punishment of each at three years in the state penitentiary. Prom the judgment comes this appeal.
Eleven alleged errors are assigned by appellants, as follows: (1, 2, 3 and 4) that the evidence was not sufficient to support the verdict; (5 and 6) that the court erred in permitting the prosecuting attorney to amend the information during the course of the trial; (7) error in giving instruction No. 4; (8 and 9) error in refusing appellants’ offered instructions 1 and 2; and (10 and 11) that the court erred in instructing the jury “that the offense of burglary was committed by a mere breaking without any entry into the building. ’ ’ '
(5 and 6)
We consider first, assignments 5 and 6. The information based on § 3061 of Pope’s Digest “accuses the defendants, Houston Ingle and Eddie Michael, of the crime of burglary committed as follows, to-wit: The said defendants, in the county, district and state aforesaid, on the 12th day of June, 1946, did unlawfully and' feloniously and burglariously break and enter a certain building located at 112 Towson Avenue, Port Smith, Arkansas, and occupied by the Hayes Furniture Company, a corporation, with the unlawful and felonious intent then and there to commit a known felony, to-wit: Grand larceny, against the peace and dignity of the State of Arkansas.”
During the course of the trial, the prosecuting attorney was permitted to amend the information by inserting the words “in the night time” after the words “break and enter” and to strike out “a corporation” after the words “Hayes Furniture Company.” Appellants say error was committed in striking the word “corporation.” We cannot agree.
Section 3853 of Pope’s Digest provides: “The prosecuting attorney or other attorney representing the State, with leave of the court, may amend an indictment, as to matters of form, or may file a bill of particulars. But no indictment shall be amended, nor bill of particulars filed, so as to change the nature of the crime charged or the degree of the crime charged. All amendments and bills of particulars shall be noted of record. ’ ’
As to the effect to be given this section, in the recent case of Tate v. State, 204 Ark. 470, 163 S. W. 2d 150, where the court had permitted the information to be amended, in circumstances similar to these here presented, we said: “Still another reason why no error was committed is that § 24 of Initiated Act 3, adopted at the General Election November 3, 1936 (now § 3853 of Pope’s Digest) permits the amendment of indictments or informations. The only limitation on such amendment is that it relate to ‘matters of form,’ and not ‘change the nature or the degree of the crime charged. ’ ... In Brewer v. State, 195 Ark. 477, 112 S. W. 2d 976, this court in construing the effect of § 3853 of Pope’s Digest, said: ‘ . . . So, it will be seen that an indictment may be amended under this section with leave of the court provided it does not change the nature of the crime or the degree thereof. The amendment did not have the effect of changing the nature of the crime or the degree thereof. So the court properly permitted the amendment.’ See, also, Johnson v. State, 197 Ark. 1016, 126 S. W. 2d 289,” and in the more recent case of Mitchell and Thurman v. State, 205 Ark. 596, 169 S. W. 2d 867, we said: “But conceding that greater strictness was required under the older statutes, Initiated Act No. 3 of 1936 (page 1384 of the Acts of 1937) permits trial courts to authorize corrections as to form. While it is true that § 22 of the initiated Act directs that language of an indictment (or information — see Amendment No. 21) be certain ‘as to the title of the prosecution, the name' of. the court in which the indictment is presented, and the names of the parties,’ title, as used in the section, relates to the authority under'Which the proceeding is brought (as, for example, ‘State of Arkansas v. John Doe’) — and not to ownership of property alleged to have been stolen.”
So here, the amendment allowed by the cpurt did not have the effect of changing the nature of the crime or the degree thereof.
(1, 2, 3, 4 and 7)
Nor can we agree with appellants that the evidence was not sufficient to support the jury’s verdict or that there was error in giving instruction No. 4. The material facts were: On the night of the burglary, Mr.' H. A. McLean, who lived near the Hayes Furniture Store, testified that he heard breaking glass in the alley back of the store and heard two persons in the alley near the store and he called the police.
Fred B. Hayes, a part owner in the store, testified that there were three doors about thirty inches wide, each equipped with glass about twenty-four inches wide and thirty inches high, with iron bars about eight inches apart and bolts to keep intruders from breaking in. There was a catch at the bottom of the doors, and the morning following the burglary, he examined these doors, the glass had been broken and there was sufficient room for a man to get his hand through behind the iron bars and pry off the locks, that the glass being broken out, -a person’s arm could be reached between the bars, take hold of the cross bars and take them off.
Fletcher Bell, a police officer, testified that in answer to a summons, he approached the Hayes Furniture Company through an alley in his car and as his lights flashed down the alley, he observed the appellants who ran, but were apprehended. He further testified that the latch at the bottom of the door was torn loose, the plate and nails at the top had been pulled out, the hardware cloth over the north door, which was secured by a strip about three inches wide, had been torn off, along with the nails on this strip, the glass was broken out and was seven or eight feet inside of the building where it had been shattered, that he found a .pinch bar and a pitch fork lying on the ground near the back door which were long enough to reach the top of the door, that there were iron bars inside the door about three-fourths of an inch wide and about eight inches apart, merchandise in the building, that the doors had a padlock and bars all the way across the two doors which dropped in a slot with the padlock in the center, the lock at the top of the door was pried loose, and when he arrived at the store, appellants were at the back door and there were pieces of furniture and a blowtorch in the building. He further testified that a hand could be reached through the doors . and take hold of the bars with the doors locked and that the opening at the top of the doors was about ten inches wide.
Mr. Ealph Swift, another police officer, corroborated Mr. Bell’s testimony, and, in addition, testified that the blowtorch was sitting eight or ten inches inside the door.
Appellants offered no testimony.
Among the instructions given by the court was the following No. 4 complained of by appellants: “You are instructed that it is not necessary to prove both a breaking and an entering of the building in order to make out the crime of burglary. If one either break or enter a building of another with the unlawful, felonious and burglarious intent to commit grand larceny he is guilty of burglary. In this connection you are instructed that breaking means the making of an opening or mode of entrance into a building by force and it is not necessary that there should have been an absolute entrance by the whole body, but it is necessary that some act of physical force, however slight, by which an obstruction to entering the building was forcibly removed.”
This instruction, based upon § 3061, supra, was a correct declaration of the law on the facts presented by this record. Section 3061 provides: “If any person shall, in the night time, willfully and maliciously, and with force, break or enter any house, tenement, boat, or other vessel or building, although not specially named herein, with the intent to commit any felony whatever, he shall be deemed guilty of burglary.” (Eev. Stat., chap. 44, div. 4, art. 2, § 2.)
Beginning with Minter v. State, 71 Ark. 178, 11 S. W. 944, 23 A. L. R. 289, this court has consistently held that in order to prove burglary under this section, it is not necessary to prove both a breaking and entering of the building in question to work a felony therein, it being only necessary to prove either. In the Minter case, it was said: “Under onr statute, it is no longer necessary, as 'at common law, to show both a breaking and entering of the house to make out the crime of burglary, but in this state, if one either break or enter the house of another in the night time with intent to commit a felony, he is guilty of burglary. Sand. & H. Dig. §§ 1492-1494, (now §§ 3058, 3060 and 3061 of Pope’s Digest). But it is necessary to show either a breaking or an entrance.”
In Anderson v. State, 84 Ark. 54, 104 S. W. 1096, this court said: “ ‘The manner of the breaking ór entering is not material, further than it may show the intent of the offender.’ Section 1604, Kirby’s Digest (now § 3060 of Pope’s Digest). The statute does not change the character of the ‘breaking’ that was essential at common law to complete the offense. Such breaking at the common law was ‘any disrupting or separating of material substances in any enclosing part of a dwelling house, whereby the entry of a person, arm; or any physical thing capable of working a felony therein may be accomplished.’ ”
Here the testimony shows, and the jury evidently found, that after the hardware cloth was removed and the large panes of glass in the door smashed, the iron cross-bars about eight inches apart alone prevented the physical entry of appellants to the building, certainly they were able to insert their arms through the openings torn through'the doors.
When we consider all of the testimony presented in the light most favorable to the jury’s verdict and the State, as we must do, (Higgins v. State, 204 Ark. 233, 161 S. W. 2d 400) we think the jury was warranted in finding that there wás a breaking within the meaning of the statute and that the evidence was sufficient to meet the test announced in Anderson v. State, supra.
(8 and 9)
Appellants complain about the court’s refusal to give their requested instructions 1 and 2. Instruction No. 1 was a request for an instructed verdict of not guilty, and the effect of instruction No. 2 was to tell the jury that appellants could not be found guilty unless the jury found that ‘ ‘ either of them actually entered into the building as alleged in the information.” As we have pointed'out above, no error was committed in refusing these instructions.
(10 and 11)
Since, as we have pointed out, the court properly gave instruction No. 4, supra, appellants’ assignments of error, 10 and 11, are without merit.
On the whole case, finding no' error, the judgment is affirmed. | [
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Ed. F. McFaddin, Justice.
-Appellant was charged with the crime of rape. He was convicted of assault with intent to rape; and brings this appeal. The motion for new trial contains nine assignments, which we group and discuss in convenient topic headings.
I. Sufficiency of the Evidence. This embraces assignments 1, 2 and 3. The defendant was an employee of a carnival company that was showing at Green Forest in Carroll county. He operated a concession known as a “spinning wheel,” where prizes could be sought by the turning of a wheel and the stopping of an indicator at a selected number. On Saturday afternoon, July 27, 1946, the prosecuting witness — a girl 21 years of age, but with the mentality of a nine-ye.ar-old child — wandered from one concession to another. Several times she stopped at the defendant’s concession, and he engaged her in conversation. About 5:30 p.m. defendant was seen sitting on a bench talking with the girl, and when she went towards the ladies ’' rest room, he was seen to follow her. This rest room was partially surrounded by trees and shrubbery, and was approximately fifty yards from the carnival concessions.
Some 30 minutes after the defendant was seen to follow the girl in the general direction of the rest room, the girl returned to the carnival, crying, and said * ‘ some old man” had choked her. This was about 6:00 p.m. The girl’s mother was summoned, and .then the girl told her of the act of rape. Suspicion was directed against the defendant; and a search for him revealed that a fellow-employee had informed the defendant that if he were guilty, he had better leave; and, coincidentally, that the defendant had packed his bag and boarded a bus for Fayetteville, where his family lived. He was arrested in that city when he alighted from the bus, and the next day ■was returned to Carroll county, and identified by the girl as the man who had choked and raped her. Several witnesses testified as to bruises on the girl’s throat, indicating that she had been choked. A physician testified as to rupture of the hymen, etc. From the witness stand, the girl told about the defendant taking her over the fence, and choking her, and ravishing her forcibly and against her will. There was other evidence which we need not detail.
The defendant stoutly denied his guilt, and put his good character and war record in evidence. His military record is that of a hero; and it is a pity for such a splendid record to be sullied by this affair. The jury found the defendant guilty of assault with intent to rape. We conclude that the evidence was legally sufficient to sustain that verdict, or even’ the greater offense of rape. This conclusion disposes also of assignment 4 in the motion for new trial, in which appellant says that the verdict was the result of passion and prejudice. After examining the entire record, we think the jury’s verdict reflected leniency, rather than passion and prejudice.
II. Rape, as Including also the Grime of Assault with Intent to Rape. Defendant argues that he was charged with and tried for rape; and that the circuit court erred in instructing the jury as to the crime of assault with intent to rape. This argument (based on assignment 5 in the motion for new trial) cannot be sustained. In Pratt v. State, 51 Ark. 167, 10 S. W. 233, Chief Justice Cockrill, speaking for this court, said:
“An assault with intent to commit rape is included in the charge of rape, and a conviction may be had of the former offense under an indictment for the latter. Mans. Dig., 2288: Davis v. Sate, 45 Ark. 464; 1 Bish. Cr. Law, § 809.
.“It is conceded that the testimony would sustain a verdict for rape. That being true, there can be no question of its sufficiency to sustain the verdict for assault with intent to commit the offense. If it be conceded that the testimony would logically demand a verdict of guilty of rape or nothing, it does not follow that a conviction of an attempt to rape should be avoided here. The jury had the power to return the verdict and the offense is less than the crime charged. ’ ’
The rule announced in Pratt v. State, supra, has been followed in subsequent cases, some of which are: Paxton v. State, 108 Ark. 316, 159 S. W. 396; and Sherman v. State, 170 Ark. 148, 279 S. W. 353; see, also, 52 C. J. 1124. Since, under the indictment for rape, it was permissible for the jury to convict the defendant of the crime of assault with intent to rape, it follows that the court was correct in instructing as to the lesser offense; and no complaint is made as to the wording of these instructions on this lesser offense.
III. Corroboration. The defendant insists that the testimony of the prosecuting witness was not corroborated, and that the court should have instructed the jury that corroboration was necessary. This is assignment 6 in the motion for new trial. The answer to this argument is two-fold. In the first place, in a rape case, the testimony of the prosecutrix does not have to be corroborated. This was definitely decided in Hodges v. State, 210 Ark. 672, 197 S. W. 2d 52 (decided by this court on November 11, 1946). See, also, 44 Am. Juris. 969, 52 C. J. 1099, and the annotation in 60 A. L. R. 1124. One of the essential elements of the crime of rape is that the act was committed forcibly and against the will of the prosecutrix. The existence of that essential prevents the prosecutrix from being an accomplice. See Hummel v. State, 210 Ark. 471, 196 S. W. 2d 594.
The second and final answer to defendant’s argument concerning corroboration is the fact that the testi mony of the girl was corroborated. The bruises on her throat, her instant crying and complaint — these, and other facts — afforded corroboration, even though such corroboration was not legally necessary.
IY. Refusal to ’Give a Cautionary Instruction. In assignment 9 in the motion for new trial, defendant complains of the court’s refusal to give defendant’s requested instruction 1, which reads:
“I charge you that-prejudice is liable to be aroused against the accused by reason of the heinousness of the crime of which he is accused, and, because of the difficulty of a defense against this crime and the ease with which it can be fastened on an innocent and reputable person,' you should exercise the utmost discretion to avoid attaching undue weight to the uncorroborated accusations of the prosecuting witness.”
In a prosecution for rape it is proper for the court to give a suitable cautionary instruction. See 52 C. J. 1123; 44 Am. Juris. 979; and the annotation in 130 A. L. R. 1489. The giving of such an instruction usually rests in the sound discretion of the trial court. The words of Mr. Justice Wood in Rayburn v. State, 69 Ark. 177, 63 S. W. 356, on cautionary instructions are worthy of repetition:
“Circumstances and occasions do frequently arise, however, when cautionary instructions, drawn in proper form, given at the proper time, and in the proper manner, are important and necessary. The discretion of the trial judge will not be limited in these matters, unless it has been grossly abused to the prejudice .of the accused.”
Such an instruction in a case like this one should tell the jury, in effect: that the crime charged is a serious one, and such a charge is easily made and hard to contradict or disprove; that it is a character of crime that tends to create a prejudice against the person charged; and, for these reasons, it is the duty of the jury to weigh the testimony carefully, and then determine the truth with deliberative judgment, uninfluenced by the nature of the charge.
But in the case at bar there are two reasons why the appellant is not entitled to a reversal based on the absence of a cautionary instruction. In the first place, the giving of a non-prejudicial cautionary instruction was discretionary with the court, and no abuse of discretion was shown in this case. In the second place, the instruction requested by the appellant was erroneous, in one particular at least, in that it told the jury “to avoid attaching undue weight to the uncorroborated accusations of the prosecuting witness.” This language could have led the jury to believe that corroboration was required and not present, so that court was correct in refusing it. .
Y. Refusal to Charge on Circumstantial Evidence. In assignments 6 and 7 in the motion for new trial, appellant complained of the refusal of the trial court to give his requested instruction, which read as follows:
“I charge you that circumstantial evidence is proof of a fact shown by circumstances. The chain of circumstances must point unerringly to the guilt of the accused, and if the chain of circumstances could have happened and the accused be innocent of the crime charged, they cannot be considered against him.”
The court gave the jury 26 instructions covering every phase of the case, except circumstantial evidence. Some of the instructions given covered burden of proof, presumption of innocence and reasonable doubt. Since instructions were given covering these points, and since the state was relying on direct evidence — the testimony of the prosecuting witness — rather than circumstantial evidence, it follows that the trial court did not abuse its discretion in refusing the requested instruction on circumstantial evidence. See Meadors v. State, 171 Ark. 705, 285 S. W. 380; Adams v. State, 176 Ark. 916, 5 S. W. 2d 946; Frick v. State, 177 Ark. 404, 6 S. W. 2d 514; Burrow v. State, 177 Ark. 1121, 7 S. W. 2d 28; and West’s Arkansas Digest, “Criminal Law,” ^ 814.
YI. Refusal of the Court to Require Certain Evidence to be Restated to the Jury. This is assignment 8 in the motion for new trial. In the course of the prosecut ing attorney’s closing argument to the jury, he commented on the evidence of a certain witness. The defendant’s attorney then asked the court to have the stenographer read to the jury the testimony of such witness; and the record reflects the following:
“By the Court: Bequest denied, and exceptions noted. The jury may remember'that point. However, if they do not, they may request that it, or any other testimony in this case, be read, and the court will have it read.
“(No member of the jury requested that the testimony requested by Mr. Baxter be read.)”
In 16 C. J. 857, and also 23 C. J. S. 421 the rule is stated:
“Repeating or reading testimony on disagreement. The common practice is, where a court stenographer is employed in taking the testimony, to have it read from his notes, where there is a disagreement as to what the witness said, and upon the request of the jury the court should direct the re-reading of depositions offered in behalf of accused. But where no predicate is laid for the impeachment of a witness who has testified before the jury, or where none of the jury express a desire to hear the testimony re-read, and it may be assumed that they heard it all, it is not erroneous to refuse to permit the testimony to be read to the jury.” See, also, Lister v. State, 3 Tex. App. Rep. 17, and People v. Harris, 169 Calif. 53, 145 Pac. 520. In the last-cited case the Supreme Court of California, in affirming the action of the trial court in denying a motion to restate the testimony just as was made in the case at bar, said:
“This motion was made in the presence of the jury and they were told that if they desired the testimony of these ^witnesses read, the court would have it done; that if they were satisfied that they had heard it no purpose could be subserved by reading it again. None of the jury expressed any desire to hear it re-read, and it must be assumed that they heard it all and did not need to have any part of it re-read to them. ’ ’
We have examined all of the assignments contained in the motion for new trial and find none to possess merit, so the judgment is affirmed. | [
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Holt, J.
Mary F. Raymond died testate in Fort Smith, Arkansas, and her will was probated there September 25, 1945. She left an estate of the approximate value of $160.,000'. She made certain bequests in the amount of approximately $15,000, and in addition, under section 2, she devised “to Cousin Mary Brogan Hart, of Rock Island, Illinois, $75 per month during her natural life to be paid by executors and to be a first charge upon the estate. In the event of the death of Mary Brogan Hart, I devise to my cousin, Catherine Brogan, the aforesaid sum of $75 per month to be paid to her during her natural life,” and in a codicil, was this provision: “I'ratify and confirm my last will in every other respect except that the trust in said will shall continue only for 10 years after the death of my two cousins named in this will, or my death, if they both die before I do; then trust estate to vest in the bishop for said purposes.” These cousins are approximately 65 years of age.
Louis Beland, Mfill T. Reynolds and Tom Brogan were named “as executors and trustees” of her estate.
The will further provided: “Eighth: Devise the rest and residue of my property to the executors, as trustees, and expressly in trust for the following purposes: Ninth: To be held in trust by the trustees with authority in the trustees to hold said residue in the form I die leaving it, or to sell under sanction of the court any part of said residue for cash, except the property located at Garrison Avenue and Towson Avenue in Fort Smith, as in the judgment of said trustees with the approval of the court a sale seems best for the interest of the trust estate. The net income of the trust estate to be held by the- trustees until such time as the bishop shall decide it is proper to establish said school and then pay to such persons as the bishop shall designate and annually thereafter the income of said trust estate shall be paid to him. Said income shall be used for the establishment or aid in establishing and maintaining at Fort Smith, Arkansas, a white Catholic high school operated with approval and under the direction of the Roman Catholic bishop of Little Rock, to be available to Catholics of all parishes in Fort Smith and vicinity on equal basis as to tuition.”
The inventory of the estate showed real property of the approximate value of $130,490, and $30,267.88 of personal property.
July 20, 1946, the executors and trustees filed a petition in which they alleged that Mary F. Raymond, at the time of her death, owned “Lots Four (4), Five (5), Seven (7), Eight (8) and the South Half of Lot Nine (9) in Block Five Hundred Sixty-three (563), Reserve Addition to the City of Fort Smith, Arkansas;” “that this property had been appraised by three real estate men, R. T. Little, M. C. Mansker and R. E. Patterson, to be of the value of $34,000; that under the terms of the will, specifically section 9 thereof, supra, that they were of the opinion that it would be for the best interest of the estate to sell said property at private sale” and prayed: “The Court for an order authorizing empowering and directing them to sell said property for cash at private sale for. the best price obtainable, provided that in no event shall said property be sold for less than $34,000. ” ‘
Appellant, John B. Morris, Roman Catholic bishop of Little Rock, filed his response in which he denied that it would be to the best interest of the estate to sell the property and prayed that the, petition of the trustees be denied.
Upon a hearing, two of the trustees, Mr. Beland and Mr. Reynolds, gave oral testimony before the court to the effect that they had had the property appraised by three reputable and prominent real estate men in the City of Fort Smith, who appraised the property at $34,000; that real estate values in Fort Smith were abnormally high and that it was their judgment, a sale of the property for $35,000 cash would in the circumstances be for the best interest of the estate.
They further testified that the property is located approximately two and one-half blocks from Garrison Avenue; that Mrs. Raymond had never realized more than $500 net, annually, from the property and that it could be rented for $65 a month to a filling station. If permitted to sell, they would convert the $35,000 received from the sale into Government Bonds drawing 2%% interest per annum, which would amount, to approximately $875 a year.
Bishop Fletcher, on behalf of respondents, testified also orally that it was the policy of the Catholic Church to hold real estate for a long term and improve the property, and in his judgment, it would be to the best interest of the estate to retain the property in the form of real estate rather than convert it into cash.
At the conclusion of all the testimony, the court found, among other things: 11 The opinion of the trustees has weight with the court. They are three men who live •in this community and are acquainted with the property values and trends within the city. She said in her will, ‘I am trusting this to you, and when, in your judgment, you think the property should be sold, you should sell it, providing it meets the approval of the court. ’ If you attempt to sell it without regard to whether it is bringing the best price possible, then the court will stop you. You are getting a very high price for the property. I don’t think we will get back to the level we had before the war and property will get back as cheap as in the twenties, but there will be a leveling out and the property of less value over a period of 20' years than it is now — of considerably less value. It is true that much property in Fort Smith is selling at twice or three times its normal value. This is on account of the war and on account of inflation, and that isn’t normal. You probably have a chance of getting nearly twice what its value would be in normal times. . ’. .
“Undoubtedly the testator desired that the trustees do the best possible with her estate to derive as much money as possible for the purposes she had in mind. None of us can say which is best — to sell it now or hold it. It might be worth twice that 40 years from now. I know two of the trustees are Catholics. They are pretty hard-headed businessmen too and I think men of excellent judgment. They think it is a propitious time to sell this property and I am inclined to agree with them. The order will be made for this property to be sold.”
This appeal followed.
Appellant says: “The only question in this appeal is whether or not it would be more in keeping with the will and better carry out its terms to retain the property at Towson Avenue and Eleventh Street in the form of real estate than to convert it into cash and invest it in government bonds at 2% %>. ”
That part of the will, supra, with which we are primarily concerned, is the following sentence: “To be held in trust by the Trustees with authority in the Trustees to hold said residue in the form I die leaving it, or to sell under sanction of the court any part of said residue for cash, except the property located at Garrison Avenue and Towson Avenue in Fort Smith, as in the judgment of said Trustees with the approval of the court a sale seems best for the interest of the trust estate.”
It appears to us that the meaning of this language is - so clear and unambiguous that it needs no judicial construction.
It was the intention of the testatrix to confer upon her executors and trustees the power to sell the property in question for cash when m their judgment, with the approval of the court, a sale might seem “best for the interest of the trust estate.”
It is only in a case wheré there is some ambiguity or doubt as to the meaning of the language of the will that any recourse to judicial interpretation or construction is justified. The law, long approved and followed in many decisions of this court, is to the following effect: “Where such intention is expressed in the will in clear and unequivocal language, there is no occasion for judicial construction and interpretation and it should not he resorted to or allowed.” Thompson on Wills, (2d Ed.) § 210. ...
In 65 Corpus Juris, p. 736, we find this language: “In accordance with the rules relating to powers of sale generally, the scope and extent of the power of a trustee to sell and convey trust property is to be determined from the instrument by which the power is created,” and in this same volume at page 741, we find: “A condition that the grantor or the cestuis que trustent request or consent to a sale by the trustees is frequently attached to power of sale. In the absence thereof the trustee may exercise the power without consent of the beneficiary.”
In the present case, as indicated, the trustees were given the unqualified power to sell the property in question when, in their judgment and with the court’s approval, it seemed to the best interest of the estate to make the sale.
We think the findings and decree of the lower court are not against the preponderance of the testimony; in fact, we think the great preponderance of the testimony supports his findings. (Ellis v. Blankenship, 207 Ark. 739, 182 S. W. 2d 756.)
Accordingly, the decree is affirmed. | [
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Minor W. Millwee, Justice.
On different dates in April and June, 1946, appellants, O. E. Everett, Archie Eeves, Harrison Ballard and Dial Bowers, were tried and convicted of certain misdemeanors before appellee, Hon. Dene H. Coleman, judge of the municipal court of Batesville, Arkansas.
Immediately following his trial and conviction, each appellant prayed, and gave notice of, an appeal to circuit court and filed an appeal bond in an amount fixed by the court. On July 29, 1946, which was more than 30 days after entry of the respective judgments of conviction against appellants, commitments were issued by appellee directed against each of the appellants and placed in the hands of the chief of police of the city of Batesville for execution.
On July 30, 1946, appellants filed their several petitions for mandamus in the circuit court to require appellee to prepare and lodge transcripts of the respective municipal court proceedings in the office of the circuit clerk of Independence county. Upon filing of the petitions, the trial court directed that action upon the commitments be held in abeyance until final determination of the causes.
Appellee filed his response to the several petitions alleging that the time for appeal had expired when the respective commitments were issued; and that none of the appellants had requested that a transcript be pre pared or filed within 30 days of their respective convictions.
By agreement of the. parties, the causes were consolidated for trial which was held on August 6, 1946, upon the pleadings and a stipulation of facts.' In this stipulation it was agreed that appellee had not filed a transcript with the clerk of the circuit court in any of the cases; and that none of the appellants, nor their respective counsel, had taken any steps to perfect an appeal other than filing the notice and bond for appeal heretofore mentioned. The trial court found that appellants had failed to perfect their appeals by lodging transcripts in the office of the circuit clerk within 30 days of their respective convictions, as required by law, and denied the petitions for mandamus. This appeal follows.
For reversal of the judgment, appellants contend that, by praying an appeal and posting an appeal bond in municipal court, they did all that was required of them under the law to perfect their appeals; and that it then became the duty of the municipal judge to prepare and file transcripts of the municipal court proceedings in the office of the circuit clerk. In support of this contention, appellants rely on § 4226 of Pope’s Digest which required the presiding officer of an inferior court to file a transcript of the record in the office of the circuit clerk when an appeal was prayed from a conviction in misdemeanor cases.
The municipal court of the City of Batesville was established under Act 60 of the Acts of 1927, which appears, as amended, in §§ 9897-9912, Pope’s Digest. Section 7 of said act, which is § 9903 of Pope’s Digest, is identical with § 6 of Act 203 of 1921, and was construed by this court in Johnson v. State, 200 Ark. 969, 141 S. W. 2d 849. It was there held that § 9903 of Pope’s Digest, supra, was applicable to all appeals from municipal courts and did not require the municipal judge to file the transcript. The court also held that § 9903, supra, repealed § 4226 of Pope’s Digest, upon which appellants now rely.
The Legislature of 1939 passed Act 323 which'provides that a party who. appeals from a judgment of h justice of the peace, common pleas court, or municipal court, must file the transcript thereof in the office of the circuit clerk within 30 days after rendition of the judgment. This act is controlling here, and imposes the duty upon a party appealing from a judgment in municipal court to file the transcript within 30 days after rendition of the judgment. Although this act was in effect at the timé of the decision in Johnson v. State, supra, its provisions were not invoked in that case and the opinion makes no' reference to the act. In later cases the act was construed as giving finality to judgments of inferior courts where the transcript of the judgment is not filed in the office of the circuit clerk within 30 days after rendition of the judgment, and the duty of filing the transcript was held to be imposed upon the party appealing from the judgment. Bridgman v. Johnson, 200 Ark. 990, 142 S. W. 2d 217; Tucker v. Batesville Motor Company, 203 Ark. 553, 157 S. W. 2d 492; Lytle v. Hill, 205 Ark. 789, 170 S. W. 2d 684; Chavis v. Pridgeon, 207 Ark. 281, 180 S. W. 2d 320.
In the recent case of French et al. v. Oliver, Mayor, ante, p. 484, 200 S. W. 2d 778, Act 323, supra, was held applicable in an appeal from a criminal conviction in a mayor’s court, and we there said: ‘ ‘ The law plainly imposes on appellants the duty of filing the appeals within thirty days after their conviction; and, if they were unable to obtain the transcript from the mayor within that time, they should have, before the lapse of the thirty day period, applied to the circuit court for a rule on the mayor to require him to deliver the transcript to appellants for filing.” Appellants might have also brought mandamus proceedings to compel the filing' of the transcript within 30 days after rendition of judgment. Lytle v. Hill, supra.
Appellants also invoke the provisions of Act 280 of 1941, which amended § 9903 of Pope’s Digest, supra, and contend that the effect of the amendment was to repeal that portion of § 9903, supra, affecting appeals in crim inal cases. Act 280 relates to procedure on appeals from municipal court in civil cases only. But Act 323 of 1939 is unaffected by the provisions of Act 280 of 1941 insofar as the applicability of the former act .to appeals in criminal cases is concerned. Since we hold the 1939 act applicable here, it is unnecessary to determine what effect the passage of Act 280 of 1941 had upon § 9903 of Pope’s Digest.
Appellants did not file their respective petitions for mandamus until more than 30 days after the date of their convictions in municipal court. Under the agreed statement of facts they did not request'the municipal judge to prepare and file the transcripts within 30 days after the judgments; nor did they apply for a rule on said judge to .require him to deliver the transcripts to appellants for filing within 30 days after rendition of the judgments. Under these circumstances, appellants were not entitled to the relief prayed and the trial court correctly denied their respective petitions for mandamus.
The judgment is affirmed. | [
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Minor W. Millwee, Justice.
Appellees, 19 residents of the City of Prescott, Arkansas, instituted this suit in chancery court to abate a nuisance which they alleged appellants were maintaining in the use of a 13-acre tract of land situated directly across the street from, and in front of, the homes of appellees. Appellants acquired the 13-acre tract in 1941 and constructed a large barn on the lot which they inclosed with a wire fence. The barn was used by appellants for storage of feed crops gathered from their several farms. Appellants live several miles from the tract which was left in charge of a tenant, and was used as a feeding lot and pasture for cattle kept within the inclosure.
' The complaint of appellees alleged the manner of operation and use of the barn and lot by appellants in detail, and charged that same constituted an intolerable nuisance. The prayer of the complaint was that appellants be permanently restrained from keeping cattle upon said lands. In their answer appellants admitted that they kept cattle in the inclosure, but denied the other allegations of the complaint.
The cause was heard on April 15, 1946, and taken under advisement until April 18, 1946, when the chancellor rendered a written opinion which was incorporated in the decree, and contains,the following findings:
“The plaintiffs are people who reside across the street from this pasture and the testimony discloses that there is an average of about sixty head of cattle kept on the premises and among the cattle are two bulls. It is shown that for a long period of time water was permitted to run constantly from a hydrant across the street from some of the plaintiffs and as a result, it became a loblolly and was infested by mosquitoes and a large number of flies. It was the, general congregating place of the cattle and the droppings, together with the mud, created an odor that was very offensive to all of the plaintiffs. The testimony also discloses that breeding was carried on in the pasture and that a number of calves were born in the open in front of the residences of the plaintiffs; also that joint efforts had been made by the people asking to abate the nuisance, but all to no avail, and as a result, this action was brought'.
“The court further finds that the plaintiffs have fully sustained the allegations of their complaint and that the use of the premises for such purposes not only makes the conditions surrounding the place almost unbearable, but endangers the lives and health of the plaintiffs and that the defendant should be enjoined from further use of said property for the purposes aforesaid.
“It is therefore by the court considered, ordered and adjudged that the defendants, and each of them, be and they are hereby perpetually enjoined and restrained from:
“(a) Keeping or maintaining more than 10 cattle at any one time upon said lands, the evidence disclosing that this is all the stock the pasture will support.
“(b) Keeping or maintaining a bull or bulls in said pasture at any time when cows are therein.
“(c) Permitting cattle to breed upon said lands or calves to be born thereon.
“(d) Permitting water to overflow upon said lands and cattle to congregate therein and to create a loblolly or muddy area.
“(e) Permitting the waste and droppings from such cattle as are maintained on said lands to accumulate in such manner as to become a breeding place for flies or mosquitoes or to create an offensive odor ...”
Appellants concede that appellees were entitled to a decree in their favor embodying paragraphs (b) to (e), inclusive, of the above decree and only appeal from that part of the decree embraced in paragraph (a), which limits to 101 the number of cattle they are permitted to keep and maintain within the inclosure.
It' is the contention of .appellants that, since the keeping of cattle in an inclosure is not a nuisance per se, the court was without power to enjoin appellants from keeping more than 10 cattle in their lot and only had the power generally to restrain appellants from maintaining cattle on the lands in such a way as to constitute a nuisance. It is true that the keeping of cattle is not a nuisance per se, but it may, nevertheless, become a nuisance in fact, depending upon the proof.
The distinction between the two types of nuisances is stated in 39 Am. Jur., Nuisances, § 11, p. 291, as follows: “The difference between a nuisance per se and a nuisance in fact lies in the proof, not in the remedy. In the case of a nuisance per se, the thing becomes a nuisance as a matter of law. Its existence need only be proved in any locality, and the right to relief is established by averment and proof of the mere act. But whether a thing not a nuisance per se is a nuisance per accidens or in fact depends upon its location and surroundings, the manner of its conduct, or other circumstances. In such cases, proof of the act and its consequences is necessary. The act or thing complained of must be shown by evidence to be a nuisance under the law, and whether it is or is not a nuisance is generally a question of fact.” In Lonoke v. Chicago, R. I. & P. Ry. Co., 92 Ark. 546, 123 S. W. 395, this court said: “The act done or the structure erected may be a nuisance per se, or the act or use of the property may become a nuisance by reason of the circumstances or location or surroundings. In the one case the thing becomes a nuisance as a matter of law; in the other it must be proved by evidence to be such under the law. ”
This distinction has been recognized in many of our cases, and nuisances in fact have been absolutely abated in some of these cases, while in others, permission has been granted to continue operation of the business or use sought to be enjoined under certain -conditions and limitations prescribed by the court. See, Durfey v. Thalheimer, 85 Ark. 544, 109 S. W. 519; The Gus Blass Dry Goods Company, et al. v. Reinman and Wolfoot, 102 Ark. 287, 143 S. W. 1087; Ft. Smith v. Western Hide & Fur Company, 153 Ark. 99, 239 S. W. 724; Huddleston v. Burnett, 172 Ark. 216, 287 S. W. 1013; Bickley v. Morgan Utilities Company, Inc., 173 Ark. 1038, 294 S. W. 38; Jones v. Kelley Trust Co., 179 Ark. 857, 18 S. W. 2d 356.
In Durfey v. Thalheimer, supra, it was held that a livery stable was not a nuisance per se, but that it might become so by the manner in which it is constructed or conducted. Mr. Justice Battle, speaking for the court in that case, said: “It is the duty-of every one to so use his property as not to injure that of another; and it matters not how well constructed or conducted a livery stable may be, it is nevertheless a nuisance if it is so built or used as to destroy the comfort of persons owning and occupying adjoining premises, creating an annoyance which renders life uncomfortable; and it may be abated as a nuisance.”
In the Bickley case, supra, defendants were enjoined from erecting and operating an ice plant in a residential section of the City of Texarkana, and the court quoted with approval from the case of Yates v. Mo. Pac. Rd. Co., 168 Ark. 170, 269 S. W. 353, 38 A. L. R. 1434, as follows: “The maxim, ‘use your own property so as not to injure another,’ is peculiarly applicable in' nuisance cases. If one does an act, in itself lawful, which yet, being done in that place, necessarily tends to the damage of another’s property, it is a nuisance; for it is incumbent on him to find some other place to do that act, where it will be less offensive. . . . That is a nuisance which annoys and disturbs one in possession of his property, rendering its ordinary use or occupation physically uncomfortable to him. For such annoyance and discomfort t the courts of law will afford redress by giving damages against the wrongdoer, and, when the causes of annoyance and discomfort are continuous, courts of equity will interfere and restrain the nuisance.” In Jones v. Kelley Trust Co., supra, the court said: “The chancery court had authority to issue a permanent injunction, but he also had authority to permit the operation under the conditions named.”
In a discussion of the form and scope of injunctions to be issued in nuisance cases in 39 Am. Jur., Nuisances, § 172, pages 443-4, it is said: “Where the injury complained of results from acts that are not a nuisance per se, but only such by reason of the manner in which they are done or the surrounding circumstances, the court will not grant an injunction in such form as absolutely to prohibit the defendant’s use of his property, if it is possible to frame a decrée which in another form will give the plaintiff the' relief to which he is entitled. ’ ’ And, in § 171 of the same work and volume, the text-writer says: “ .... a decree enjoining a nuisance should specifically point out the things which the defendant is required to do and to refrain from doing in order to abate the nuisance which is found to exist. It should be as definite, clear, and precise in its terms as possible, so that there may be no reason or excuse for misunderstanding or disobeying it, and, when practicable, it should plainly indicate to the defendant all the acts which he is restrained from doing, without calling upon him for inferences or conclusions about which persons may well differ.”
The decree in the instant case wa's rendered in conformity with the rules just announced. It did not restrict the use of the barn by appellants as a storage for their feed crops, nor did it absolutely prohibit them from keeping cattle upon their lands. The chancellor found from the evidence that keeping as many as 10! cattle at one time within the inclosure — which was equivalent to its use as a. pasture only — did not constitute a nuisance, while the maintenance of a larger number of cattle upon the lands did constitute an intolerable nuisance to appellees. This disputed question of fact was determined by the trial court after hearing all the evidence. Appellants have not favored us with an abstract of the testimony of the several witnesses who testified in behalf of appellees on this issue. We are not required to explore the record to ascertain whether this evidence was sufficient to support the decree rendered by the trial court, and will presume its sufficiency for that purpose. Velvin v. Kent, 198 Ark. 267, 128 S. W. 2d 686; Norden v. DeVore, 207 Ark. 1105, 184 S. W. 2d 585; West’s Arkansas Digest, vol. 2, Appeal & Error, § 592, and cases there cited.
The decree is accordingly affirmed. | [
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MoHaney, Justice.
Appellant was charged by information with unlawfully and willfully operating a taxicab for hire as a common carrier in the transportation of passengers by motor vehicle, beyond the corporate limits of the City of North Little Rock, Arkansas, and without, the confines of a zone adjacent to and extending more than five miles beyond the corporate limits of said city, and over State Highways 64 and 22 to Paris, Arkansas, without first having obtained a certificate of convenience and necessity from the Public Service Commission, authorizing such operation, in violation of Act 367 of 1941. He was tried in the justice court in Paris, was convicted and appealed to the circuit court, where he was again convicted, fined $25 and has appealed to this court.
The facts were stipulated in the circuit court and are. as follows: 1. On September 28, 1946, the defendant, Virgil Marshall, a taxicab driver in the employ of the North Little Bock Transportation Company, picked up a passenger for hire in Pulaski county in a cab operated by the company, and transported the passenger to Paris, Arkansas, a distance of approximately 120 miles, without having obtained a permit from the Public Service Commission of the State of Arkansas.
2. The cab so used is regularly operated as a taxicab in the City of North Little Bock and had appended to it a regular State (For Hire) license.
3. The North Little Bock Transportation Company is engaged in the .business of operating a taxicab in North Little Bock.
4. On October 3, 1946, the defendant was found guilty before J. B. Nicholas, justice of the peace of Short-Mountain township, Logan county, of violating Act 367 of 1941, in not having a permit of the Public Service Commission to operate outside the limits of North Little Bock, and said conviction was appealed to this (Logan Circuit) Court.
Section 6 (a) of said Act 367, generally referred to as the “Arkansas Motor Carrier Act, 1941,” prescribes the ‘ ‘ general duties and powers of the Commission. Subsection (5) of § 6 (a) makes it the duty of the Commission “To administer, execute and enforce all other provisions of this act; to make all necessary orders in connection therewith, and to prescribe rules, regulations, and procedure for such administration.” Section 22 (a) is the penalty section for unlawful operations, and provides that: “Any person knowingly and willfully violating any provision of this Act, or any rule, regulation, requirement, or order thereunder — shall, upon conviction thereof, be fined not more than $100 — . ’ ’
The Commission has made no “rule, regulation, requirement or order” attempting to regulate taxicabs in rendering service, such as is here involved, or in any other respect, a fact of which we take judicial notice. In K. C. S. Ry. Co. v. State, 90 Ark. 343, 119 S. W. 288, we held: ‘ ‘ When a statute authorizes executive officers to make general rules for the conduct of public business, and such rules are duly made and published, the courts will take judicial notice of them.” Citing cases. In fact the Commission has held that it had no jurisdiction in such cases, under § 9 (a) of said Act. Whether the Commission was right or wrong in so holding we do not now determine. If wrong, a judicial review could have been had under the last proviso of § 7 (a) of said Act which is: “And provided further that where the Commission, in respect of any matter arising under this Act, shall have issued a negative order solely because of a supposed lack of power, any such party in interest may file a bill of complaint in the Chancery Court of Pulaski county, and such , court, if it determines that the Commission has such power, may enforce by writ of mandatory injunction the Commission’s taking of jurisdiction.”
But whether the Commission was right or wrong in this respect, certainly appellant cannot be convicted of “Knowingly and willfully” violating the Act, “or any rule, regulation or order thereunder,” when the Commission has made no rules, regulations or orders regulating taxicabs and has itself disclaimed jurisdiction to do so.
Criminal and penal statutes must be strictly construed, and no case may be brought by construction within the statute unless it is completely within its terms. Giles v. State, 190 Ark. 218, 78 S. W. 2d 70. Here appel lant has been convicted of driving a taxicab and fare paying passenger from North Little Rock to Paris, Arkansas, without a certificate of convenience and necessity, when it is shown that he conld not have procured such certificate from the Commission had he applied therefor. We do not think he can be penalized under the facts here presented.
The judgment is, therefore, reversed and the cause dismissed. | [
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Bobins, J.
Appellant instituted suit in the lower court against W. H. Moye, on December 19,1942, alleging that Moye had, for valuable consideration, sold to appellant his equity in certain bales of cotton, but had failed to deliver same. An accounting and judgment for value of Moye’s equity in the cotton was prayed. .
On October 9, 1944, the following order in that case was entered: “Now on this the 9 day of October, 1944, the same being a regular day of the October term of the court, this cause coming on to be heard upon the motion of the plaintiff [s<ic] filed at the last term of court to dismiss for the want of prosecution, the court, after being well and sufficiently advised as to all matters of law and fact arising herein, doth find: That the plaintiff has failed, neglected and refused to prosecute his action and the same should be dismissed with prejudice. It is therefore by the court considered, ordered and decreed that this cause be, and it is hereby, dismissed with prejudice, for want of prosecution.”
On October 8,1945, appellant filed a complaint in the instant case, identical with the one filed by him on December 19, 1942, except that in this case “Estate of W. H. Moye, Deceased” was designated as defendant.
To this latter complaint there was filed a motion to dismiss, which was a plea of res judicata, copy of the complaint in the previous case and the order of dismissal therein being attached as exhibits.
The motion was heard on this stipulation: “It is stipulated and agreed by and between the attorneys of record for the rdaintiff and the attornev of record for the defendant, that the following is a correct statement of facts, and this stipulation shall he filed as a part of the record in this cause, and may be used by either party at any hearing thereof: That the plaintiff filed his complaint in the Monroe 'County Chancery Court against W. H. Moye on December 19,1942, being cause Number 9042, which is identical with the complaint filed in this action, Number 9488. Both complaints allege the same facts and pray for the same relief; that the complaint in cause Number 9042 was filed in this court on December 19,1942, and on August 7, 1944, the defendant filed a motion to dismiss for want of prosecution; that on October 9,1944, this court entered an order in cause 9042 dismissing the plaintiff’s complaint with prejudice. The precedent for the order was approved by the plaintiff’s counsel of record at that time, and a copy of the same is attached hereto and made a part hereof. The present suit (No. 9488) was filed (in the legal sense) on October 8, 1945.”
The lower court sustained appellee’s motion to dismiss and rendered decree accordingly. This appeal followed.
For reversal appellant cites decisions of this court to the effect that in case of a non-suit, or of an ordinary dismissal for want of prosecution, the plaintiff may, under the provisions of § 8947 of Pope’s Digest, commence his action anew within one year after the order dismissing same. But in none of the cases cited was there involved an order of dismissal similar to the one involved in the case at bar. Here the order dismissing appellant’s suit reflected something more than a voluntary non-suit or an involuntary non-suit for failure to prosecute. In the order under consideration the court made a finding that the appellant’s cause ought to be dismissed “with prejudice,” and made an order dismissing it “with prejudice.”
The words “with prejudice,” when used in an order of dismissal, have a definite and well known meaning; they indicate that the controversy is thereby concluded. Discussing the meaning of these words, when used in a judgment of dismissal, Judge Butler said in tlie case of Union Indemnity Company v. Benton County Lumber Company, 179 Ark. 752, 18 S. W. 2d 327: “This term has a well recognized legal import; it is the converse of the term ‘without prejudice,’ and is as conclusive of the rights of the parties as if the suit had been prosecuted to a final adjudication adverse to the plaintiff. 4 Words and Phrases (2d Series) p. 1333.” Hence, the order of dismissal entered by the court on October 9,1944, showed a complete adjudication of the controversy and was a bar to the subsequent action by appellant.
It is not contended that the order of dismissal did not reflect what the court really intended — in fact, it is stipulated that appellant’s.counsel approved the form of this order. If the order as entered did reflect the intention of the court, but was made erroneously, appellant’s remedy was by way of appeal. Appellant has taken no appropriate steps — either by'application for order nunc pro tunc or by appeal — to correct this order, but he is in effect asking, in another action, that the order of dismissal in the original suit be changed in an important particular, or that a material part thereof be disregarded. It is obvious that the lower court could not grant this relief. McKnight v. Smith, 5 Ark. (5 Pike) 409; Cassady v. Norris, 118 Ark. 449, 177 S. W. 10; Whorton v. Hawkins, 135 Ark. 507, 205 S. W. 901.
The decree of the lower court is affirmed. | [
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Minor W. Mill wee, Justice.
On February 19, 1944, appellant, Elizabeth McMorella, instituted suit in the Columbia chancery court against appellee, Lizzie Walker Greer, to quiet her title to certain lands and to cancel an oil and gas lease executed by appellee in 1943. Appellant claimed title to the lands by virtue of a sheriff’s sale under execution in 1927.
The case remained on the docket lintil March 13, 1946, when appellee filed a cross complaint alleging her ownership and possession of the 12 acre tract and asking that her title thereto be quieted against appellant. Appellee claimed title to the lands from her father through a division of her father’s estate and alleged that she and her predecessors in title had been in adverse possession of the lands and paying taxes thereon for 70 years. After the cross complaint was filed, but on the same day, appellant dismissed her complaint against appellee.
On March 14, 1946, the cause was continued, by the chancellor and set for trial the first day of the next term of court which was May 27, 1946. The order setting the ease for trial also authorized the talcing of testimony by depositions. Appellant made no objection to the court’s order, and, by agreement of the parties, depositions of witnesses on behalf of appellee were taken on April 5, 1946. The record reflects that counsel for appellant participated in taking these depositions by cross-examining the witnesses and serving as notary public for the occasion. Appellant filed her answer containing a general denial of the allegations of the cross complaint on May 25. 1946.
When the case was called for trial on May 27, 1946, appellant filed an unverified motion for continuance with a letter attached thereto as follows:
“May 27, 1946.
To Whom it may concern:
Due to the physical condition of Miss. Elizabeth Mc-Morella she will be unable to attend court as of this date or any other time during this week.
Thanking you very much I remain
Yours very truly,
Joe F. Rushton, M. D.
By Ruthie Kelley,
Secretary. ’ ’
The chancellor overruled the motion for continuance and the cause was submitted to the court upon the depositions of the witnesses, and other oral and documentary evidence, on behalf of appellee, resulting in a decree quieting her title to the lands in controversy. After the chancellor announced his decision, appellant orally moved for a new trial on the grounds that the court erred in (1) refusing to grant her motion for continuance, and (2) forcing a trial when the issues had not been joined for 90 days. These two assignments óf error are relied upon for reversal of the decree.
Appellant offered no proof on her unverified motion for continuance other than the so-called doctor’s certificate which is a statement purporting to have been signed by a secretary to Dr. Joe F. Rushton that appellant would be unable to attend court May 27, 1946, or any other day during that week. The motion does not allege that appellant’s presence was necessary to a defense of the suit on the cross complaint, or that she would‘be a witness if she were present. There is nothing in the motion or purported statement of the doctor indicating that the nature of appellant’s physical ailment was such that she was unable to testify by deposiiion, which counsel for appel lant admitted he had agreed to take. Appellant’s answer was a general denial and she offered no testimony in defense of the cause of action. It was not contended in the trial court and is not suggested now that she has any defense, to the suit on the cross complaint.
A motion for continuance is ordinarily addressed to the sound discretion of the trial court, and this court will not attempt to control that discretion unless it has been manifestly abused. In the early case of Watts v. Cohn, 40 Ark. 114, Justice W. W. Smith, speaking for the court, said: “Questions as to the trial or continuance of causes resets so much in the sound discretion of the trial court that it must be a very capricious exercise of power or a flagrant case of injustice that the appellate court will interpose to correct.” Spear Mining Company v. Shinn, 93 Ark. 346, 124 S. W. 1045; Dent v. People’s Bank of Imboden, 99 Ark. 581, 139 S. W. 533; West’s Arkansas Digest, vol. 4, Continuances, § 7, and cases there cited. There was no manifest abuse of discretion on the part of the chancellor in refusing to grant a continuance under the circumstances disclosed here.
Appellant’s second contention for reversal is that she was entitled to 90 days after the issues were joined oh the cross complaint by the-filing of her answer on May 25, 1946, to prepare for trial. This contention is based on § 1512 of Pope’s Digest, which reads: ‘ ‘Actions prosecuted by equitable proceedings shall stand for trial on any day that the court meets in regular or adjourned session, where the issues have been joined for ninety days, but where they have not been so joined though by the provisions of §§ 1430 and 1432 they should have been, the party in default, as to time, shall not be entitled to demand a trial; provided, however, that in all actions now pending or hereafter brought, upon application of any party, after issues joined, the court or chancellor in vacation may, on notice to opposing counsel or guardians ad litem, set the action for trial, or if the court finds that the proof has been completed it may try the action, on any earlier date.”
Appellant relies on such cases as Harnwell v. Miller, 164 Ark. 15, 259 S. W. 387, and Phillips v. Baker, 174 Ark. 403, 295 S. W. 384, in support of her second contention. These cases were decided under § 1288 of Crawford & Moses’ Digest and prior to amendment of that statute hy Act 37 of 1929 to include the proviso now contained in § 1512 of Pope’s Digest, supra. In Sisk v. Becker Roofing Company, 183 Ark. 101, 34 S. W. 2d 1078, this court held that, under the provisions of § 1512, supra, it was not necessary to wait 90 days after the issues are joined to have a trial in a chancery case. It was there said: “The act under consideration was passed for the purpose of eliminating delay, and making it possible for either party to get a trial without waiting 90 days after issue joined. This will be readily seen to be one of the purposes of the act by reading the emergency clause, § 3.” This interpretation of the statute was reaffirmed in Burks v. Cantley, 191 Ark. 347, 86 S. W. 2d 34.
The suit filed by appellant had been pending over two years when appellee filed her cross complaint on March 13,1946. Appellant knew of the filing of the cross complaint and made no objection when the cause was set down for trial for May 27, 1946. She cooperated in the taking of depositions which had been authorized by the court in setting the date of trial. Appellant thus treated the issues as having been joined even though the filing of formal answer containing a general denial was delayed by her until May 25, 1946. There is no intimation that she was not fully apprised of the nature of appellee’s claim of title to the lands in controversy. The objection that the case was prematurely tried was not made in her motion for continuance, but was suggested for the first time in the oral motion for new trial made after the chancellor had announced his decision. Under these circumstances, the trial court correctly held that appellant had waived the question whether the issues had been joined for a sufficient length of time under the statute.
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Grieein Smith, Chief Justice.
The right of A. F. Betts and John Faulkner to serve as directors of Rich Mountain Electric Cooperative, Inc., was challenged by a proceeding in the nature of quo warranto. Cooperative intervened. It adopted the answer of Betts and Faulkner.
Correctness of the judgment appealed from must be tested by Act 342 of 1937. Pope’s Digest, §§ 2315-2351.
Tlie trial Court found that in promulgating Act 342 the State waived any right to regulate the corporation. A temporary order restraining the two directors from acting was dissolved and the cause dismissed.
Section 31 of Act 342 exempts the corporations from jurisdiction of the Department of Public Utilities, now Public Service Commission.
“Member” is defined as one of the incorporators of a rural electrification corporation and each person thereafter lawfully admitted to membership. {% 2(3).' Any three or more natural persons 21 years of age, residents of the State, may act as incorporators. (§5). “Rural area” is a territory not included within the boundaries of an incorporated city, town, or village, having a populalion of 2,500, “and includes both the farm and non-farm population thereof.” (§ 2(8). All persons in rural areas intended to be served by such corporation, who are not receiving central station service, shall be eligible to membership, and no person other than the incorporators “shall be, become, or remain a member of the corporation unless such person shall use or agree to use electric energy; or, as the case may be, the facilities, supplies, equipment,' and service furnished by the corporation.” (§ 12). But (§ 18), the business of the corporation shall be managed by a board of directors, not less than three in number, “which shall exercise all .the powers of the corporation except such as are conferred upon the members by this Act, by the articles of incorporation or by the by-laws of the corporation. The by-laws may prescribe qualifications for directors.”
The by-laws in effect at the time Betts and Faulkner were elected provided that no-person should be eligible “to become or remain a director or hold any position of trust . . . who is not a member and bona fide resident of the area served or to be served by the Cooperative.”
Rich Mountain Cooperative embraces the greater part of Polk County, but excludes the City of Mena. Betts and Faulkner own rural lands served by Cooperative, but reside in Ward Three of Mena. They were among the original nine incorporators and served as directors until May 25, 1946.
Assuming, without deciding, that the Attorney General had official authority-to question appellees’ status, and that Circuit Court was wrong in holding otherwise, we then deal with merits of the controversy and hold that the two directors were not usurpers.
While a literal construction of .the by-laws would, as appellant contends, exclude the two appellees, Act 342 is somewhat broader. It does not expressly or by necessary implication restrict eligibility of directors to bona fide residents of a particular part of the area served by Cooperative. It is true that Mena may not be served by the corporation; but the territorial district assigned to Cooperative by Public Service Commission’s certificate of convenience and necessity surrounds Mena, leaving it an insular area to be served by another.
The Act is sufficiently comprehensive to permit directors to be selected from members who use electricity rurally. We think area, as used in the by-laws, should be construed to mean the territory imrifediately affected by Cooperative’s enterprise, if the member is in fact a user of facilities provided by Cooperative. Certainly the Act, as distinguished from the by-laws, primarily contemplates that the member shall be interested in the undertaking, conveniently situated geographically, and a patron of the service. It is significant that by-laws authorize annual meetings to be held in Mena; yet it is argued that directors living in the City, are illegally serving.
It is true that Section 18 authorizes adoption of bylaws prescribing qualifications of directors; but it was not intended to confer upon members a legal right to impose limitations beyond scope of the Act.
It is immaterial that the lower Court failed to reach the conclusions expressed in this opinion. Upon the record before us we must find, as a matter of law, that the two appellees were qualified to serve as directors, and the mandate will so state.
Affirmed.
By-laws adopted Jlay 26, 1945, provided for annual meeting of members on May 26th of each year, “in such place in Mena . . . as shall be designated in the notice of the meeting”. By amendment of May 25th, 1946, these meetings were directed to be held the third Saturday of each May, beginning with 1947. An amendment of November 2, 1946, provided, that directors should be bona fide residents of Polk County, “or within any other County served by the Cooperative”. Judgment in the case at bar was rendered October 26, 1946; hence the amendment of November 2 was not in effect at that time.
Cooperative was incorporated May 2, 1945. | [
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Holt, J.
July 12, 1946, appellant sued appellee for divorce. She alleged indignities and cruel treatment such as to render her condition intolerable, (5th subdivision, § 4381, Pope’s Digest) and in addition to divorce, she. prayed for a property settlement, separate maintenance, attorneys’ fees, costs and all equitable relief.
Appellee answered with a general denial and in a cross complaint sought divorce from appellant on the same grounds on which she sought a divorce from him.
The trial court, after hearing the testimony, which was presented orally, denied the divorce to both parties, dismissed their complaints for want of equity, denied appellant anything for support, allowed her $200 for. attorneys’ fees, and a Ford truck held by appellee, and ordered each party to pay his own costs.
Both parties have appealed.
(1)
The record shows that appellant and appellee were married November 7, 1941, and separated July 12, 1946, on the day the present suit was filed. Appellee was a widower, 52 years old, with an adopted, married daughter. Appellant was 45 years of age, had not been married, and was caring for her two aged parents, her mother being 83 and her father 96. Following the marriage, these two old people, upon appellee’s invitation, moved into Ms home where they lived with appellant and appellee until the present suit was begun. Appellee was good to them.
For several years prior to the death of appellee’s first wife in August, 1940, Mrs. Yerucchi, a near neighbor, and the mother of two little girls, had worked for appellee in his home, as housekeeper, and in caring for his invalid wife, and her husband had worked on appellee’s farm.
Shortly after appellee’s marriage .to appellant, she discovered two endowment insurance policies of $1,000 each on her husband’s life. lie had named the Yerucchi children as his beneficiaries. He also, at the same time, had procured a third policy for $1,000 on his life in which he named his adopted daughter as beneficiary. For some time appellant did not question the first two policies, supra, and made premium payments on them for her husband, but for some reason, which the evidence does not disclose, she rather suddenly became suspicious and accused her husband of being the father of these two little girls. Appellee vehemently denied his wife’s accusations, or any misconduct on his part with Mrs. Yerucchi. He testified that it was necessary to name beneficiaries in the policies, -that he had becomé attached to the little girls, their mother and father had been good to his former -wife and himself over a number of year's, and, especially for these reasons, they were chosen as his beneficiaries.
Appellant became jealous and testified that quarrels were frequent, that appellee abused and mistreated her, and on occasions struck her. Appellee denied that he had abused or mistreated appellant, but admitted that they quarrelled when she falsely charged him with being the father of the two little girls. The testimony of appellant and appellee is in irreconcilable conflict. Both appear to be equally at fault.
We tliink it would serve no useful purpose to detail all the evidence, or set forth its substance. It suffices to say that we have reviewed it and conclude that neither the testimony of appellant nor that of appellee is sufficiently corroborated to warrant a decree of divorce to either.
As was said by this court in Kientz v. Kientz, 104 Ark. 381, 149 S. W. 86: “While the husband and wife are both competent to testify in divorce proceedings between them, yet it has been held that a decree of divorce will not be granted upon the uncorroborated testimony or admissions of either party. Rie v. Rie, 34 Ark. 37; Kurtz v. Kurtz, 38 Ark. 119; Brown v. Brown, 38 Ark. 324; Scarborough v. Scarborough, 54 Ark. 20, 14 S. W. 1098.”
We conclude, therefore, that the trial court did not err in denying a divorce to both parties.
(2)
We think, however, that there was error in denying to the wife, appellant, alimony for her support. According to the evidence, appellee owned real estate and personal property of the approximate value of $20,000. He was in ,good health and a successful farmer and grape grower with a substantial income. His farm consisted of 130 acres, including an 18 acre vineyard, which was very productive. Appellant, on the other hand, owned no property except the Ford truck, supra, two $25 bonds, less than $50 in cash, and no home or income. In these circumstances, we think that she should be allowed $75 per month for her support.
As we said in the recent case of Bonner v. Bonner, 204 Ark. 1006, 166 S. W. 2d 254: “It was and is the duty of appellant to support his wife according to the station in which they live. This duty «would not rest upon him if he were entitled to a divorce, but it does rest upon him as long as they are married unless she had abandoned him without just cause. He is as much to blame as she for the separation, and it is his bounden duty to support her as long as the bonds of matrimony exist between them.” See, also, Boniface v. Boniface, 179 Ark. 738, 17 S. W. 2d 897.
(?)
Appellant’s request for additional attorneys’ fees here will be granted. The record comprises more than 260 pages and appellant’s brief, 115 pages. Obviously appellant’s counsel have performed a great amount of work in this case, and when we take into account the amount of labor, skill and industry required, we think appellant’s attorneys should be allowed an additional fee of $200. All costs in both courts to be paid by appellee.-
So much of the decree as denies a divorce to either party is affirmed. That part of the decree denying alimony to appellant and requiring her to pay costs in the chancery court is reversed, and the cause remanded with directions to enter a decree consistent with this opinion. | [
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Griffin Smith, Chief Justice.
Leo Tipton was convicted of arson and sentenced to serve a year in the penitentiary. In appealing he contends that the judgment should be reversed because (a) the Prosecuting Attorney was erroneously permitted to ask leading questions of State witnesses, (b) testimony of Leamon Dollar should have been rejected because he did not understand the nature of an oath, (c) it was improper for the State to impeach the testimony of Mrs. Clyde Tipton, and (d) the defendant’s requested Instruction No. 2 should have been given.
Herman Stump, 33 years of age, owned a home in Russellville, with outbuildings, including a barn. A $2,000 policy of insurance was issued July 13, 1946, on the residence, but the contract provided that a sum not in excess of temper cent, of the principal would extend as coverage to -secondary structures, provided value equaled that amount. The barn was destroyed by fire December 18th and the following day appellant was arrested.
Leamon Dollar, whose use as a State witness is questioned, was 22 years of age and lived with his father, William Morgan Dollar. Tipton, according to Leamon, called at the Dollar home about seven o ’clock the night of December 18th. The two drove for a short time in a truck and Tipton told Leamon he “had a barn to burn.” Leamon was invited to join the enterprise, but declined. However, he admitted going with Tipton to a point near the Stump home, where the truck was parked. Tipton went into the barn, used a match to ignite some hay, then withdrew. Leamon had remained outside.
We do not think the questions complained of as leading are open to that objection. When asked by the Prosecuting Attorney “Where were you the first time you saw [Tipton] that night” the witness seemingly did not understand, and said, ‘ ‘ That night he came up there ? ’ ’ The defendant’s attorney interposed the remark, “I object to putting the answer into his mouth. ’ ’ Context of the examination does not show there was any prompting here.
Later, when Leamon was asked what time Tipton reached the Dollar home the night of December 18th and replied that it was about seven o’clock, appellant objected to the clarifying inquiry, “ Was it after dark ? ’ ’ The next question was, “What did Leo [Tipton] want?.”, and again it was complained that the witness was being led. ffihere were other questions and objections of a somewhat similar nature. Nope shows an intent to improperly develop the case.
Leamon was asked if he knew the meaning of an oath and replied, “Yes, I know some of it.” This occurred on cross-examination conducted by the defendant’s attorney, who continued-to ask questions, some of which related to matters not touched by the Prosecuting Attorney. It was not until additional testimony had been given on redirect examination that appellant’s attorney moved to have the jury directed to disregard all of Leamon’s testimony because of the so-called infirmity of understanding. The Court properly ruled otherwise. Even if the defendant had not used the witness as his own by bringing in new matter on cross-examination, there was not sufficient showing of statutory disqualification in the answer by Leamon that, as to an oath, he knew the meaning of part of it. He might have understood all of the requisites. We cannot tell what the witness meant by his answer, and therefore must hold that the objection was waived.
Mrs. Clyde Tipton, the defendant’s step-mother, testified'that she was at home the night of December 18th and the accused did not leave the house. After the State had rested its case and the defendant’s witnesses had been examined, Mrs. Tipton was recalled and was asked whether, shortly after the fire, certain officers came to her home to ask about it. When she replied in the affirmative the questions were asked, “Did you tell them that on the night of the fire Leo had borrowed Herman Stump’s pickup truck and had gone to town? ’ ’ And again, “Did you tell either of the officers that the only time Herman Stump left your home was when he went to look for Leo ? ” A negative answer was given to each question. Two witnesses were permitted to impeach Mrs. Tipton by testifying that she had made contradictory statements— that is, statements at variance with her testimony given on recall.
Appellant thinks the jury may have believed that the impeaching testimony was direct evidence, hence inadmissible for. that purpose and prejudicial. The only purpose in recalling Mrs. Tipton-and then having witnesses testify she had made contradictory statements was so obviously a test of verity or veracity that it is difficult to see how the jury could have been misled.
It was within the Court’s discretion to refuse the defendant’s requested Instruction No. 2. By Instruction No. 7 the jury was told that “The defendant starts out at the commencement of the trial with the presumption of innocence in his favor, and this presumption follows him throughout the trial, or until the evidence convinces you of his guilt beyond a reasonable doubt.” This was sufficient.
Evidence was ample to warrant conviction. The defendant, in the presence of officers (including a deputy fire marshal) confessed he had burned the structure and said ten dollars was to have been paid him by Stump. There was testimony Stump was seen handing the defendant five dollars. He was overheard to say it was “to apply on that job.” A nightwatchman saw Tipton and Dollar the night of December 18th. Tipton was running, and when questioned merely said, “I am just running.” The time was 9:15, The watchman saw another boy, later identified as Dollar. He, also, was running and would not explain his hurry. Other witnesses testified to statements or admissions sustaining the State’s case.
Appellant undertook to repudiate his confession, asserting . he had been promised a suspended sentence. He also insisted that veiled threats had been made by the officers. The confession was submitted to the jury under proper instructions and it had a right to believe or disbelieve what the defendant was alleged to have said, and to reject his alibi.
Affirmed.
The instruction would have told the jury that “The information filed [against Tipton] is of itself a mere formal accusation . . . and is not of itself any evidence of the defendant’s guilt, and no juror should permit himself to be, to any extent, influenced against the defendant because ... of the information.” | [
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Minor W. Millwee, Justice.
Appellant, Mattie Jaekson, is the widow of E. M. Jackson who died testate at Hardy, Sharp county, Arkansas, in January, 1929. Appellees are two sons, a daughter and grandson of E. M. Jackson, deceased, and Addie M. Jackson, trustee of his estate.
The will of E. M. Jackson was construed by this court in Hastings v. Jackson, 201 Ark. 1005, 148 S. W. 2d 305. It was there said: “We think it certain that the testator’s first and foremost thought was to provide a home for his elderly wife and to provide her with sufficient means to live in comfort and without financial embarrassment the remainder of her life. To this end he. impounded all of his estate, both real and personal, provided same should not be sold but should be kept intact, and operated by his son, E. A. Jackson, in whom he had implicit trust and confidence. . '. . When the'will is considered as a whole, we think the conclusion is inescapable that it was the testator’s intention to give his wife $100 per month net, and that she should not be charged with the cost of necessary improvements to the homestead or the taxes thereon, as to do so would deprive her of a portion of the $100' per month which the testator was so solicitous that she have, as evidenced by its frequent repetition in the will. The provision'made for her in paragraph four as to the mansion house is not the ordinary life estate where the life tenant is chargeable with taxes and improvements. It was given to her for life, it is true, but it was coupled with a- legacy of $100 per month and other provisions for the executor to pay the taxes and other necessary expenses on the whole estate, all of which, including the homestead, should be held intact for the lifetime of the widow. The heirs or other legatees were not to share in any net income until all expenses and taxes and the $100 per month to her ■were paid.”
Appellant continued to reside in the home place at Hardy until October, 1945, when a fire extensively damaged the' house and destroyed most of appellant’s per sonal and household effects. In August, 1944, appellant procured a policy of fire insurance on the dwelling house in the amount of $1,500 for a term of three years. The property was insured in her name and the premium paid from her own funds.
On March 21, 1946, the insurance carrier filed a bill of interpleader in the Sharp Chancery Court pursuant to the provisions of Act 141 of 1943. It admitted liability for the face value of the policy, but alleged that it was unable to make payment thereof because of the conflicting claims of appellant and appellees over the right to the proceeds of the policy. The company deposited $1,500 in the registry of the court and prayed that it be discharged from further liability, and that the parties in interest be required to settle the right to the proceeds of the policy between themselves. Appellant and appellees then filed their respective petitions in which each party claimed the right to receive the amount deposited to the exclusion of the other, and the insurance company was discharged from further liability.
A trial of the issues on September 12, 1946, resulted in a decree in favor of appellees and the clerk of the court was directed to pay the insurance proceeds to the trustee, for the use and benefit of the estate of B. M. Jackson, deceased. The trustee was directed to refund to appellant the premium of $43.87 which she paid on said policy. The court further directed the trustee to repair the house as speedily as possible.
Appellant testified that she procured the policy of insurance for her own benefit and understood that both the house and furniture were covered by the policy, which insured the dwelling only. The loss of her household , goods alone exceeded $1,500. She has resided in the home of a son since the fire, but was receiving rents from rooms on the second floor of the dwelling which had been repaired at the time of the trial. It was her intention to move back to the home place as soon as repairs to the first floor were completed.
The trustee of the E. M. Jackson estate testified that at no time prior to the fire had she procured insurance on the property and she did not know whether appellant had a policy. She had been serving as trustee for three years at the time of the trial. At the time of her appointment the estate was heavily involved and without funds to purchase insurance on the dwelling. As trustee, she proceeded to repair the damaged dwelling in the early part of 1946 and had expended $1,538 for such repairs at the time of the trial. The complete repair hill would amount to approximately $2,000.
"We think the trial court erred in holding the trustee of the estate of E. M. Jackson, deceased, entitled to the proceeds of the policy procured by appellant. The question does not seem to have been heretofore decided by this court. In those cases' where an ordinary legal life tenancy is involved the rule followed in most jurisdictions is stated in 33 Am. Jur., Life Estates, Eemainders, etc., § 332, p. 838, as follows: “It is clearly the general rule that where a legal life tenant insures the property in his own name and for his own benefit and pays the premiums from his own funds, he is, at least in the absence of a fiduciary relationship between him and the remainder-man existing apart from the nature and incidents of the tenancy itself, or of an agreement between him and the remainderman as to which of them shall procure and maintain insurance, entitled to the proceeds of the insurance upon a loss; and the fact that the insurance was for the whole value of the fee is not generally regarded as affecting the right of the life tenant to the whole amount of the proceeds.”
In an extensive annotation on the subject in 126 A. L. E.. 336, many cases are reviewed in support of the above rule. One of the leading cases on the subject is that of Harrison v. Pepper, 166 Mass. 288, 44 N. E. 222, 33 L. R. A. 239, 55 Am. St. Rep. 404. In that case the plaintiff, a remainderman of real property, sought to compel the life tenant to place the sum received by her for insurance on the property in trust for plaintiff until the life tenant’s death, with income payable to the life tenant during her life. In denying the relief sought by the plaintiff, the Massachusetts court said: “It is plain that the plaintiff is not entitled to recover unless she has some claim upon the funds in the hands of the defendant. In the absence of anything that requires it in the instrument creating the estate, or of any agreement to that effect on the part of the life tenant, we think that the life tenant is not bound to keep the premises insured for the benefit of the remainderman. Each can insure his own interest, but, in the absence of any stipulation or agreement, neither has any claim upon the proceeds of the other’s policy, any more than in the case of mortgagor and mortgagee, or lessor and lessee, or vendor and vendee. . . . The contract of insurance is a personal contract, and inures to the benefit of the party with whom it is made, and by whom the premiums are paid. ’ ’
In the case of Blanchard v. Kingston, 222 Mich. 631, 193 N. W. 241, Chief Justice Wiest, speaking for the court, said: “All authorities hold that a life tenant has an insurable interest. The authorities are not in harmony upon the extent to which such insurance may be taken out by the life tenant, some holding it cannot go beyond the interest of the life tenant, and others that it may go to the full value of the property. If there is no obligation to insure for the benefit of remaindermen, either in the instrument creating the tenancy or under agreement with the remaindermen, then the life tenant may be the full beneficiary. By the great weight of authority insurance received by the life tenant under his own permitted contract is not impressed with any trust for the benefit of remaindermen but wholly belongs to the life tenant.”
In 31 C. J. S., Estates, § 46, p. 59, it is said: “It has been stated, as a general rule, that the life tenant is not bound to keep the premises insured for the benefit of the remainderman or reversioner, unless there is an agreement that he shall do so, or a provision to that effect in the instrument creating the estate; but that either may insure for his own benefit, the tenant for life and the remainderman paying insurance for their respective interests. Ordinarily this is what is done, and it has been held that neither the life tenant nor the remainderman will be benefited by the other’s policy. ’ ’
In Restatement of the Law of Property, vol. I, § 123, sub-sec. 2, the rule is thus stated: “When a policy of insurance against the destruction of, or damage to, land or structures thereon, exists only for the protection of the interest of the owner of the estate for life, the owner of the estate for life has a privilege to retain, as against all claims of owners of future interests in the same land or structures, all moneys received by such owner as the proceeds of such policy of insurance.”
A'few courts have adopted a so-called minority rule to the effect that a life tenant, in procuring fire insurance, acts as a trustee for the remaindermen, and that public policy requires that the proceeds of such policy should bé used in rebuilding, or go to the remaindermen, reserving merely the interest for life for the life tenant. Green v. Green, 50 S. C. 514, 27 S. E. 952, 62 Am. St. Rep. 846; Clark v. Leverett, 159 Ga. 487, 126 S. E. 258, 37 A. L. R. 180.
Under the will of R. M. Jackson, deceased, as construed by this court in Hastings v. Jackson, supra, appellant was given a life estate in the homestead free from the obligation ordinarily imposed upon a life tenant to pay taxes, improvements and other expenses necessary to the proper preservation of the property. The trustee of the estate had the legal right and it was her duty, under the will, to maintain reasonable insurance on all the trust property, including the homestead. There was no obligation resting upon appellant, in procuring insurance, to protect the interest of the remaindermen under the terms of. the will. On the contrary, any fiduciary duty resting on the parties in this respect was owing from the trustee and remaindermen to the life tenant. So, if we were disposed to follow the so-called minority rule adopted by the courts of South Carolina and Geor gia, the basic reason upon which the rule rests, i. e., that the life tenant acts as trustee for the remaindermen in procuring insurance, would appear to be lacking under the peculiar provisions of the will in the instant case.
There was no agreement on the part of appellant to keep the premises insured for the benefit of the estate or the owners of future interests in the property. Appellant procured the insurance in her own name and for her own benefit. The premium was paid from her own funds under a personal contract of indemnity with the insurance company. The trustee failed to insure the property and was not a party to the insurance contract. She testified that the estate was heavily involved at the time of her appointment as trustee and that no funds were available to purchase insurance on the property, but the evidence fails to disclose whether this condition existed either at the time appellant procured the policy or when the loss occurred. The R. M. Jackson estate was estimated by this court to be of the value of $50,000 when the case was here on the former appeal in 1941.'
Since appellant insured her own interest in the premises at her own expense and Avas under no obligation under the will to insure for the benefit of the remainder-men, and having made no agreement to do so, she is entitled to the proceeds of her policy of insurance free from the claims of appellees. It follows that the decree of the trial court must be reversed and the cause remanded with directions to the trustee of the R. M. Jackson estate to pay the proceeds of the policy to appellant. It is so ordered. | [
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Minor W. Millwee, Justice.
This suit involves the title to a part of lot 12, block 21, of the original town of Newport, Arkansas. Appellants became the owners of the property in October, 1929, as tenants in common and heirs at law of W. S. Hubble, deceased. The property is situated in the Newport levee district which instituted foreclosure proceedings for the unpaid levee assessments for the years 1932 and 1933, resulting in a decree of foreclosure entered on November 27,1935. The levee district became the purchaser at a foreclosure sale held on April. 4, 1936, which was confirmed on May 26, 1936. After expiration of the period of redemption, the property was conveyed to the board of directors of the levee district and the deed approved on May 24,1938.
On June 30, 1944, the levee district conveyed the property to R. I).- Wilmans and R. P. McCuistion for $193.43. R. D. Wilmans conveyed his interest in the property to R. P. McCuistion and wife, who conveyed to appellees, Harry Grimes and Daisy Grimes, on April 14, 1945, for $1,000'. Prior to his conveyance to appellees, McCuistion also secured deeds from four municipal improvement districts which had foreclosed liens for delinquent assessments, but appellees are not claiming title under these conveyances. McCuistion also paid the general taxes and assessments of the levee district for 1944.
The property remained on the tax records in the name of appellants who paid the state and county taxes and the annual assessments of the Newport levee district for the years 1936 to 1943, inclusive, said levee assessments being paid to the county collector along with the general taxes each year.
Appellees, Harry Grimes and Daisy Grimes', instituted suit in the Jackson Chancery Court on September 18, 1945, to quiet their title to the property, alleging they were in possession and deraigning title under mesne conveyances from the Newport levee district. It was further alleged that appellants were claiming an interest in the property which, though unfounded, constituted a cloud upon appellees’ title.
The answer of appellants denied the allegations of the complaint and alleged that appellants and their predecessor in title had been in adverse possession of the lands and paying taxes thereon for more than seven years. It was further alleged that the levee district should be estopped to assert title to the lands by accepting the levee assessments for the years 1936 to 1943. Appellants also pleaded the seven-year statute of limitations and by way of alternative relief prayed that they be given a lien on the lands for payment of the general taxes and levee assessments in the event it should be held that appellees had title to the property.
The cause was tried on oral testimony and stipulation of the parties and a decree was entered on April 8, 1946, in which the trial court found that appellees, and their predecessors in title, had been in possession of the property for approximately five years and that appellees had acquired title thereto; and that the title and interest of appellants had been foreclosed in the levee district foreclosure suit. The title of appellees was ordered quieted, but appellants were held to be entitled to recover from appellees the state and county taxes paid by appellants for the years 1936 to 1943 in the sum of $142.80, and appellants were given a lien on the property to secure such payment.
Appellants have appealed from the decree quieting appellees’ title to the property while appellees have cross-appealed from that part of the decree which orders their payment of the general taxes.
The evidence discloses that the property is an uninclosed lot located in the business section of the city of Newport, Arkansas, across an alley from the Hazel Hotel. At the time the Levee District purchased the property at its foreclosure sale, the property was being used as a parking place for a taxicab which was operated by a business tenant of the hotel. After the purchase by the levee district, it collected monthly rentals for two or three years from the hotel proprietor for the use of the lot as a “taxi stand.” The district also collected rental from an outdoor advertising company which maintained a signboard on the property until it was removed at the request of the hotel proprietor. The property was also rented by the district to D. P. Pender for three months as a used car lot. McCuistion and appellees continued collection of monthly rentals from the hotel proprietor for use of the property as a “taxi stand” after their respective purchases.
Appellants do not questipn the regularity of the foreclosure proceedings in which the Newport levee district acquired title to the property and have abandoned the defense of estoppel sét up-in the answer upon the authority of Board of Directors of St Francis Levee District v. Fleming, 93 Ark. 490, 125 S. W. 132. It was held in that case (headnote 5): “Where a levee district foreclosed its lien for levee taxes on lands in the district and purchased the lands at the sale, it was not estopped to assert the title so acquired by the fact that its officers accepted subsequent levee taxes on the same lands from the former owner, the officers having no authority to do so.”
Appellants insist, however, that they have acquired title by adverse possession under § 8920 of Pope’s Digest which provides that unimproved and uninclosed land shall be deemed and held to be in possession of a person who pays the taxes thereon under color of title for seven' years. In Southern Lbr. Co. v. Arkansas Lbr. Co., 176 Ark. 906, 4 S. W. 2d 928, it was held that this statute in itself is not a statute of limitations. It was there said: “It only declares that the land shall be deemed to be- in possession of the person paying taxes thereon under color of title. It only makes the payment of taxes under the conditions named in the act a constructive possession: and it is only by applying thereto the general statute of limitations that such possession, like actual possession, can ripen into title by limitation. Taylor v. Leonard, 94 Ark. 122, 126 S. W. 387.” The purpose of the statute was to create a constructive possession by the payment of taxes which will oust the constructive possession of the owner who did not pay taxes. Wells v. Rock Island Improvement Co., 110 Ark. 534, 162 S. W. 572.
This court has also held that the statute has no application where the lands are actually occupied.by the record owner. Wheeler v. Foote, 80 Ark. 435, 97 S. W. 447; Connerly v. Dickinson, 81 Ark. 258, 99 S. W. 82; King v. Campbell, 89 Ark. 450, 116 S. W. 899. The chancellor found that appellees and their predecessors in title were in actual possession of the property and had been for approximately five years at the time of the trial. We think this finding is supported by a preponderance of the evidence. Appellees and their predecessors in title rented the property as a used car lot and collected rent upon an advertising sign located on the property. They collected monthly rentals from the operator of the taxi-cab and the property was still being openly used as a taxi station at the time of the trial. A sign designating this use was affixed to the property. This evidence was undisputed and sufficient to constitute actual possession which interrupted the constructive possession of appellants by payment of taxes under § 8920 of Pope’s Digest, supra, and prevented it from ripening into title.
Appellants failed to acquire title to the lands by payment of the state and county taxes from 1936 to 1943 for’ the further reason that the property was exempt from general taxation during those years. It has been repeatedly held by this court that when a drainage or improvement district acquires title to lands embraced within the district before the lien for state and county taxes becomes fixed, such lands are exempt from assessment for state and county taxes as long as they remain the property of the district, as during that time they are held by the district as a governmental agency and for governmental purposes. Robinson v. Indiana & Arkansas Lbr. Co., 128 Ark. 550, 194 S. W. 870, 3 A. L. R. 1426; Kelley Trust Co. v. Lundell Land & Lbr. Co., 159 Ark. 218, 251 S. W. 680; Lyle v. Sternberg, 204 Ark. 466, 163 S. W. 2d 147; Pinkert v. Wilson, 208 Ark. 587, 186 S. W. 2d 949; Deniston v. Burroughs, 209 Ark. 436, 190 S. W. 2d 623.
The Newport Levee District purchased the land at the foreclosure sale on April 4, 1936, and this sale was confirmed on May 26, 1936. The state’s lien for the taxes of 1936 did not become fixed until the first Monday in June, 1936, (§ 13770, Pope’s Digest). The general taxes for 1936 did not, therefore, accrue on the property and this is true although no deed had been issued to the district and its title was subject to defeat by redemption. Duncan v. Newport Levee District, 206 Ark. 1130, 178 S. W. 2d 660.
This court has also held that the payment of state and county taxes on property exempt from taxation does, not entitle one to the benefits of § 8920 of Pope’s Digest. In the case of Kelley Trust Co. v. Lundell Land & Lbr. Co., supra, the court said: “Moreover, in Robinson v. Indiana & Ark. Lbr. & Mfg. Co., 128 Ark. 550, 194 S. W. 870, 3 A. L. R. 1426, it was held that land in the hands of a levee district is exempt from taxation for state and county purposes. It thus appears from the record that the title to the land in question was in the Laconia Levee District during a part of the seven years relied upon by the plaintiff to obtain title to the land by the payment of taxes fox-seven years in succession, and the plaintiff acquired no title by the payment of taxes.” Since the levee district did not dispose of the property in the case at bar until June 30, 1944, title was in the district during the period when appellants paid the state and county taxes and they acquired no title by virtue of such payments.
On their cross-appeal, appellees contend that the trial court erred in holding appellants entitled to recover the taxes which they paid for the years 1936 to 1943, inclusive. We think this contention must be sustained, since the property was not subject to general taxation during those years. In the case of Little Red River Levee District No. 2 v. Moore, 197 Ark. 945, 126 S. W. 2d 605, this court said: “It is also true, as appellees insist, that state and county taxes are not payable upon lands owned by the improvement districts which they acquired in consequence of sales for delinquent taxes. This is true because the districts'hold the lands in their governmental capacities, and while so owned they are not subject to state and county taxes; nor are such taxes cumulative and chargeable to subsequent purchasers.” This rule was applied in the recent case of Baiers v. Cammack, 207 Ark. 827, 182 S. W. 2d 938, where a grantee under void state deeds was held not entitled to recover from the grantee of an improvement district the consideration paid the state for the deeds. We there said: “Appellant was not entitled to recover from appellee the amount which he paid to the state for the two void deeds executed to him by the state, since the title to the property at the time the deeds were issued to him was in a governmental agency, the street improvement district, and Act 269 of the Acts of 1939 relied upon by appellant does not control here. ’ ’ It follows that the trial court erred in rendering judgment against appellees for the tax payments made by appellants.
The decree is affirmed on direct appeal. On the cross-appeal the decree is reversed and the cause remanded with directions to enter a decree not inconsistent with this opinion. | [
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Smith, J.
Appellee recovered a judgment for $5,000 to compensate a personal injury which she sustained as the result of a collision between an automobile in which she was riding,, driven by her husband, and an automobile driven by appellant.
For the reversal of this judgment it is insisted, first, that a verdict should have been directed in appellant’s, favor for the reasons, (a) that the undisputed testimony shows that the sole proximate cause of the collision and consequent injury was the negligence of appellee’s husband and, (b) that appellee was guilty of contributory negligence; second, that certain incompetent testimony was admitted and, third, that, the verdict is excessive.
The collision occurred in the afternoon of December 8, 1945, at the intersection of Roosevelt Road and State Street, in the city of Little Rock. The cars involved were a Ford and a Buick. The Ford was owned and being driven by Bryant Laster, the husband of appellee, who was riding on the front seat with him. Burke Williams, an invited guest, was riding on the rear seat. The Buick was owned and being driven by appellant, who had no passenger.
State Street runs north and south, and Roosevelt Road runs east and west, and these streets cross at a right angle. The Buick car was proceeding west on Roosevelt Road, while the Ford was traveling south on State Street.
Under an ordinance of the city of Little Rock, Roosevelt Road is designated a boulevard, or through street, from a point east of the place of the collision to another point west thereof. The ordinance requires all traffic entering Roosevelt Road to stop before driving into that road and to “. . . proceed cautiously yielding to vehicles not so obliged to stop which are within the intersection or approaching so closely as to constitute an immediate hazard, and may then proceed. ’ ’ Pursuant to this ordinance a stop sign was maintained on State Street, at its entrance to Roosevelt Road. Appellee’s husband resided at Bauxite, Arkansas, and testified that he was not familiar with the streets of Little.Rock, and that he did not notice the stop sign as he drove into Roosevelt Road, without stopping, but the testimony shows that he had reduced his speed as he entered Roosevelt Road to six or eight miles per hour, although other testimony placed his speed higher. The testimony is com flicting as to the speed at which appellant was traveling, some of which placed tlie speed of that car as high as sixty miles per hour.
Traffic policemen were called to the scene after the collision by a witness who saw it, and Mr. Laster, appel lee’s husband, was arrested and carried to the police station where he plead guilty to a violation of the stop ordinance, and paid a fine of $15 which was imposed.
It is urged that this negligence of Mr. Laster was the sole proximate cause of the collision, and that for this reason a verdict should have been directed in appellant’s favor. Laster testified that he saw appellant’s car three-fourths of a block up the street, and that he thought. he could enter the road and right his car before the Buick overtook him, but that he misjudged the speed at which the Buick was approaching.
Appellant testified that he saw the Ford car, and it looked like it was not going to stop, although he assumed it would do so, as “lots of people run up to corners at forty miles an hour and stop,” and that when he realized that the Ford car was not going to stop, it was then too late to avoid a collision, as he was then in the intersection of the streets.
This question of fact was submitted to the jury under instructions of which no complaint is made, and under the testimony recited the jury might have found, and evidently did find, that although Laster was negligent, this negligence was not the sole proximate cause of the collision; in other words, that the collision was the result of the concurring negligence of the drivers of the two cars. The recent case of Oviatt v. Garratson, 205 Ark. 792, 171 S. W. 2d 287, cites a number of other cases which state the law to be that where two or more persons were negligent and their negligence concurred to injure a third person, both parties are liable.
The defense of contributory negligence is based first upon the admission of appellee that she was not keeping .a lookout, and did not warn her husband that he was ignoring the stop sign. While both the driver of a car and his guest are alike under the duty of exercising ordinary care, the conduct required to comply with that duty is ordinarily different because of the difference in the circumstances. The subject is extensively annotated in , the case of Leclair v. Boudreau, 101 Vt. 270, 143 Atl. 401, 63 A. L. R. 1427. In the case of Ark. Valley Coop. Rural Elec. Co. v. Elkins, 200 Ark. 883, 141 S. W. 2d 538, we quoted with approval the following statement from 5 Am. Jur., § 475, p. 769: “A person riding in an automobile driven .by another, even though generally not chargeable with the driver’s negligence, is not absolved from all personal care for his own safety, but is under the duty of exercising reasonable care to avoid injury. The care exacted is that which an ordinarily prudent person would exercise under like circumstances. The law fixes no different standard of duty for a passenger in an automobile than for the driver. Each is bound to use reasonable care. What conduct on the passenger’s part is necessary to comply with this duty must depend upon all the circumstances, one of which — -and unquestionably an important one- — is that he is merely a passenger having no control over the management of the vehicle in which he is riding.”
We cannot say, as a matter of law, that appellee was under the duty of keeping the lookout, and this question of fact was submitted to and is concluded by the verdict of the jury.
Contributory negligence is also predicated upon the proposition that appellee voluntarily fode with her husband, knowing that he was in an intoxicated condition. The officers who investigated the collision and arrested Laster for not observing the stop sign, testified that Laster was drinking, and that they could detect the odor of liquor, but one of the officers said that Laster was not “driving drunk,” and Laster was not arrested on that account. Laster denied being drunk and appellee corroborated that statement.
Upon this issue the court gave an instruction as favorable as appellant could ask, reading as follows:
“If you find from the evidence in this case that at the time of the collision complained of, the plaintiff’s husband was under the influence of intoxicating liquor to an extent which appreciably affected his ability to operate the vehicle in the exercise of ordinary care; and if you further find that such condition on his part caused or contributed to cause the collision and the plaintiff was herself aware, prior to the collision, of such condition on the part of her husband, but nevertheless continued voluntarily to ride in the said vehicle, then you are instructed that the plaintiff is not entitled to recover anything in this action, and your verdict will be for the defendant Willbanks.”
Error is assigned in permitting appellee’s family physician to testify as to a protraction of her menstrual period, the objection being that the complaint contained no such allegation. The complaint did allege, however, that appellee sustained a great nervous shock, and her ' doctor testified that the premature and continued bleeding of which appellee complained might have been caused by the collision, and we think the testimony was properly admitted. Nevertheless, we think the verdict in the case is grossly excessive, and cannot be sustained under the undisputed testimony.
The doctor testified that in his examination and treatment of appellee he had not thought of connecting the collision with appellee’s' condition referred to, although‘the doctor stated it might and could have caused that condition, but he did not testify that it had done so. He testified that appellee was highly nervous and had a case history of irregular bleeding, but he did not recall that appellee mentioned the collision in giving her case history, and that as her nervous condition improved her bleeding decreased. He. testified that appellee was approaching her menopause, and that this bleeding was not uncommon during that period. He further testified that he did not find anything to indicate that appellee had sustained a permanent injury, and that the condition referred to would all eventually clear up as she goes through the complete menopause, and that the last showing of menstrual bleeding was two weeks prior to the trial. The doctor also testified that he found a wound on appellee’s leg which had left a scar approximately one and one-half inches in length, and that her knee had been lacerated and bruised to some extent, and a slight scar remained, and tliat one anlde was sprained or swollen. These appear to have been the matters for which the doctor treated appellee, although he stated that “her biggest difficulty” seemed to be her irregular bleeding. She did not require and did not' receive hospitalization.
We think this testimony not sufficient to support a larger recovery than $1,500, and the judgment will be reduced to and affirmed for that amount.
MoFaddin, J., dissents from so much of the opinion as affirmed the judgment. | [
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Ed. P. MoFaddin, Justice.
The question is, whether the Arkansas Workmen’s Compensation Law affords the exclusive remedy allowed a minor employee against the employer for compensation for injuries sustained by the minor in the course of employment, when the minor was employed in violation of the Arkansas Child Labor Law. We answer the question in the affirmative.
On October 15, 1946, the appellant, Gloria L. Cummings (a minor, acting by her father and next friend, Howard Cummings), filed this action in the circuit court against appellee, J. J. Newberry Co. The complaint alleged that appellee operatéd a store in Hot Springs; that Gloria L. Cummings was a minor, and under the age of 16 years; that on August 14, 1946, the minor was employed by appellee in a dangerous and prohibited occupation, and without the consent of the parents of the minor, and without anyone having obtained an employment certificate as required by Arkansas Child Labor Law (see § 9067, et seq., Pope’s Digest); that the employer required the minor to empty boiling hot grease from a container into a doughnut cooking machine; that on August 17, 1946, the. hot grease spilled from the container upon the legs and thighs of the minor, inflicting third degree burns; that the minor suffered serious, painful and permanent injuries, and also mental anguish, all brought about through the negligence and unlawful conduct of the employer (appellee). The prayer of the complaint was for $3,000 damages.
Appellee filed a pleading entitled “Motion to dismiss,” which was in reality a demurrer, and which stated: “That the circuit court has no jurisdiction to hear and determine the cause of action set forth in the plaintiff’s Complaint for the reason that the Constitution of the State of Arkansas and Act 319 of 1939 entitled ‘Workmen’s Compensation Law,’ has vested in the Arkansas Workmen’s Compensation Commission sole jurisdiction to hear and determine the matters and facts set forth in the plaintiff’s complaint and being founded upon an injury alleged to have been sustained in the course of employment while the relationship of employer and employee existed between the plaintiff and the defendant. J >
The circuit court sustained appellee’s pleading, and the appellant stood on the complaint. A judgment was entered, dismissing the complaint, and appellant has appealed, challenging here the correctness of the said judgment ; and citing us to the following statutes, adjudicated cases and texts: section 9067, et seq., Pope’s Digest, being the Arkansas Child .Labor Law; Cox Cash Stores v. Allen, 167 Ark. 364, 268 S. W. 361; Annotation entitled “Applicability and effect of workmen’s compensation act in cases of injury to minor” found in 14 A. L. R. 818, 33 A. L. R. 337, 49 A. L. R. 1435, 60 A. L. R. 847, 83 A. L. R. 416, and 142 A. L. E. 1080; Green v. Anwyll, 86 Pitts burgh Law Journal (Pa.) 543; Cox v. Hooven, 250 Ky. 690, 63 S. W. 2d 914; Lee v. Kansas City Publishing Co., 137 Kan. 759, 22 Pac. 2d 942; Ortega v. Salt Lake Wet Wash Laundry Co., 108 Utah 1, 156 Pac. 2d 885; and Lucas v. Industrial Commission of Utah, 108 Utah 25, 156 Pac. 2d 896.
Appellant says in her brief: ■ “ To hold that a minor is limited to the remedy as now provided by workmen’s compensation law, would place the minor on the same footing as an adult and virtually render ineffective our Child Labor Law. In this case the employer failed to obtain the employment certificate as required by § 9074 of Pope’s Digest, and had the appellant working in a dangerous occupation; : . . On account of the failure of the employer to comply with the law, there was no valid contract with said minor. We submit that the provision of § 2(b) of the Workmen’s Compensation Law — making the act cover minor employees, whether lawfully or unlawfully employed — is for the benefit of the worker and not the employer; in other words, a minor employee, as in this case, should be permitted to pursue either the remedy provided under the Workmen’s Compensation Law or to pursue her remedy at law a& appellant has elected to do.”
The case of Odom v. Arkansas Pipe & Scrap Material Co., 208 Ark. 678, 187 S. W. 2d 320, is a holding directly opposite to the appellant’s argument. In the Odom case, the mother of the deceased minor filed suit at law to recover damages for the death of her son. The complaint alleged that the son was under 18 years of age at thp time of his death, and had been employed by the appellee without the mother’s consent, and that — while working for appellee at an oil well — received fatal injuries through the negligence of the appellee. By demurrer to the complaint, the Arkansas Pipe & Scrap Material Co. challenged the jurisdiction of the court on the ground that the Arkansas Workmen’s Compensation Commission, by paragraph 2(b) and paragraph 4 of Act 319 of 1939, had sole jurisdiction. The circuit court dismissed the complaint of Mrs. Odom. We affirmed the judgment of the circuit court, saying:
“The lower court properly dismissed appellant’s complaint. Under the provisions of the Workmen’s Compensation Law the liability therein created is the only liability against the employer that may arise out of the death or injury of an employee subject to the act. We quote below the pertinent provisions of the Workmen’s Compensation Law: • ■
“Subdivision (b) of § 2: ‘ “Employee” means any person, including a minor whether lawfully or unlawfully employed, in the service of an employer. . . . ’
‘ ‘ Section 4: ‘ The rights and remedies herein granted to an employee subject to.'the provisions of this act, on account of personal injury or death, shall be exclusive of all other rights and remedies of such employee, his legal representative, dependents, or next kin, or anyone otherwise entitled to recover damages from such employer on account of such injury or death, . . . ’ ”
The case of Odom v. Arkansas Pipe & Scrap Material Co., supra, was cited as a precedent, and as ruling in Hagger v. Wortz Biscuit Co., 210 Ark. 318, 196 S. W. 2d 1. In short, this court has already decided, adversely to the appellant, the question now presented.
We comment, briefly, on the cases cited by the appellant, and as previously listed:
(a) Cox Cash Stores v. Allen, supra, was decided in 1929. The Arkansas Workmen’s Compensation Law (Act 319 of 1939) was passed by the General Assembly of 1939, and sustained by referendum vote of the people at the 1940 election. The effect of this new law was to change radically 'the old law — regarding the employee’s right to recover from the employer — -in all cases coming within the purview of the compensation law; so the language in Cox v. Allen, supra, is not applicable to the case at bar, particularly in light of § 2(b) of the present com pensation law, which specifically states that an “employee ’ ’ includes a minor, whether lawfully or unlawfully employed.
(b) The eases from Kansas, Kentucky, Pennsylvania and Utah cited by.appellant, and previously listed, are, each, based on a statute substantially different from our statute, since, as already noted, under our statute “employee” includes a minor, whether lawfully or unlawfully employed.
Those interested in studying the statutes of the various states, as regards workmen’s compensation law coverage of minors unlawfully employed, may well examine Schneider’s Workmen’s Compensation Text, (Permanent Ed.), vol. 4, pp. 290-376, inclusive, where the statute of each state is analyzed as regards the particular question here under consideration. A clear summation of the holdings may be found in 71 C. J. 503, Workmen’s Compensation Acts, § 229: “Acts with express provisions as to illegality of employment:
“Under a statute which expressly so provides, a minor is included within the Workmen’s Compensation Act, even though he is employed contrary to laws regulating the employment of minors. Such a statute does not conflict with the child labor laws, for the compensation act deals with civil rights and remedies while the labor law deals only with the criminal penalty.”
It follows that the minor employee in this case cannot proceed in an action at law for damages, but is relegated to the remedies afforded' by the Arkansas Workmen’s Compensation Law. The judgment of the circuit court is in all things affirmed. | [
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Robins, J.
North Little Rock Special School District and-Pulaski County filed a petition with the Tax Division of the Arkansas Public 'Service Commission ask iiig the Commission to direct the Assessor of Pulaski county to assess for taxation for the year 1946 and each year thereafter against Koppers Company, Incorporated, all poles, piling and crossties, regardless of ownership thereof, at the plant of said company located three miles' east of North Little Rock; or to require the Assessor of said county to assess for taxation, as property not used for utility purposes, all of said property owned by the Missouri Pacific Railroad Company or the Chicago, Rock Island & Pacific Railroad Company; or that the Commission apportion to the said county and district the assessed value of such part of said property as had a situs therein on January 1,1946. ■
The Commission refused to grant any of the relief prayed in said petition and on appeal the Commission’s order was affirmed by judgment of the circuit court. To reverse that judgment this appeal is prosecuted.
The establishment of Koppers Company, Inc., is known as a “wood preserving plant,” and there timbers, such as poles, piling and crossties are dried and treated with preservative chemicals. At all times a large amount of these timbers are on hand at this plant, and the company itself owns part of the stock on hand, which it treats and sells on its own account. It is conceded that all such stock owned by the company has been duly assessed. However, most of these timbers belong to customers of the company; and the principal portion thereof is owned by the Missouri Pacific Railrbad Company and tlié Chicago, Rock Island & Pacific Railroad Company. These railroad companies! purchase from various persons along their lines suitable timbers, ship them into Koppers Company plant, have them treated, and then distribute the treated timbers throughout their respective systems where needed. These timbers belonging to the two railroad companies, on hand at the plant for treatment, furnish the basis for the controversy, appellants insisting that by one of the three methods set out in their petition these timbers should be assessed for the benefit of the local taxing units, while the con tention of appellees is that the railroad companies have already included them in their assessments.
In limine, we must dispose of the contention by appellees that no appeal to the circuit court from an order of the Commission such'as the one questioned here is authorized by law. In support of this contention appellees cite our decision in the recent case of Little Rock Special School District, et al. v. Arkansas Public Service Commission, 210 Ark. 165, 194 S. W. 2d 874. In that case, referring to the provisions of law under which appeals from the Commission’s findings are authorized, we said: “It appears to us that the whole substance of said Act relates to the regulation and operation of public utilities, and that the right of appeal by ‘any party aggrieved’, as used in said sections 20 and 21, has reference only to any party aggrieved on account of an order made by the Commission in a proceeding involving the regulation or operation of a public utility, and no public utility is involved in this proceeding.” In the proceeding at bar the Commission was asked to make an order affecting the assessment of a substantial amount of property belonging to two railroad companies, and as to the allocation of the tax derived therefrom. It appears, therefore, that the order oomplained of by appellants is one made in the exercise of the Commission’s regulatory powers over public utilities, and that an appeal thereform to the circuit court may be properly prosecuted for that reason, if for none other.
I.
It is first argued by appellants that Koppers Company, Inc., was required to assess the timbers belonging to these railroad companies under the provisions of § 13728, Pope’s Digest, which is as follows:
“Every person who shall purchase, receive or hold personal property of any description for the purpose of adding to the value thereof by process of manufacturing, refining, rectifying, or by combination of different materials, with a view of making a gain or profit by so doing, shall be held to be a manufacturer, and he shall make out and deliver to the assessor .a sworn statement of the amount of his other personal property subject to taxation also including in his statement the average value estimated, as provided in § 13726, of all articles purchased, received, or otherwise held for the purpose of being used, in whole or in part, in any process or operation of manufacturing, combining, rectifying or refining, which, from time to time, he shall have on hand during the year next previous to the'time of making such statement, if so long he shall have been engaged in such manufacturing business, and, if not, then during the time he shall have been so engaged. Every person owning a manufacturing establishment of any kind and every manufacturer shall list, as a part of his manufacturer’s stock, the value of all engines and machinery of every description used or designed to be used for the aforesaid purpose.”
This statute is of no avail to appellants because, as to timbers sent in to it by its customers for preservative treatment, appellee, Koppers Company, Inc., was not a manufacturer within the meaning of this statute. Anheuser-Busch Brewing Association v. United States, 207 U. S. 556, 28 S. Ct. 204, 52 L. Ed. 336; Indiana Creosoting Company v. McNutt, 210 Ind. 656, 5 N. E. 2d 310. In the last cited case the Indiana Supreme Court said: “The process of creosoting the ties cannot in any sense be considered manufacturing.'” Furthermore, by the plain language of this section, the property that a manufacturer is required thereunder to assess is limited to that which is owned by the manufacturer himself. Therefore the Commission did not err in refusing to require the listing for assessment in'Pulaski county of the timbers belonging to the railroad companies, on hand for treatment at the creosoting plant. This conclusion obviates any discussion as to the contention, raised by appellees, that appellant’s remedy, if any, was the prosecution of an appeal from the action of the Assessor in failing to assess the property.
II.
Under the laws of this state the property, real and personal, of railroad companies is assessed for taxation as a whole by the Commission and the valuation thereof apportioned on a mileage basis to the various counties, cities and school districts of the state traversed by the lines of such companies. Section 2048, Pope’s Digest. See Arkansas Tax Commission v. Crittenden County, 183 Ark. 738, 38 S. W. 2d 318.
It is urged by appellants that the timbers involved herein ought to be assessed in Pulaski county, under the provisions of § 2051, Pope’s Digest, as property “not used in the utility operation.” We cannot agree with this contention. These railroad companies were not dealers in crossties or timbers. Th.ey bought only such as they required in the maintenance and operation of their rail lines; and the statute referred to was not intended to apply to material acquired solely for the purpose of maintaining the utility operation.
A somewhat similar question was presented in the case of Philadelphia & Reading Railroad Company v. Woodbridge Township, 91 N. J. L. 180, 102 Atl. 392. In that case the township in which a creosoting plant was located insisted that crossties belonging to the railroad company and sent to the plant for treatment should be assessed for taxation in that township. Denying the township the relief sought by it, the New Jersey court said: ‘ ‘ That the ties in question were not actually in use for railroad purposes on the taxing date is.apparent from what has already been stated. The primary question, therefore, is what is the scope to be given to the words ‘used for railroad purposes’, as this phrase appears in section 1 of the Railroad Tax Act? That question, however, is no longer an open one. ... It has been consistently held, whenever the matter has come up for judicial consideration, that property owned by a railroad corporation, which has been acquired and is held for a railroad use to which it is intended to be subjected in the near future, is property used for railroad purposes within the meaning of the Railroad Tax law, although such use has not actually been begun; and, therefore, is taxable under that Act, and not under the general tax law of the state. ’ ’
We conclude that the ties involved in this litigation ■ were not embraced in the category made locally assessable under the provisions of § 2051 of Pope’s Digest.
HI.
It is finally argued by appellants that the Commission, in making apportionment of the valuation of these two railroad companies, as required by law, should assign and apportion to appellants the entire assessed value of the timbers in controversy, for the reason that this property (or a certain part thereof) had a “fixed situs” in the said county and school district and was assessable therein under the provision of § 2048 of Pope’s Digest.
But this property, under the record here, did not have a fixed situs in Pulaski county. It was sent there to be “treated” and to be withdrawn and sent out over the lines of the two railroad companies after the treating process was completed. It was not to be put in use in Pulaski county alone, or to be kept permanently in that county, but was to be used throughout the system. Therefore it was proper for the Commission to apportion its value to the various taxing units of the state traversed by the lines of these railroad companies.
The order of the Commission denying relief to appellants was correct; and the judgment of the circuit court is accordingly affirmed. | [
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McHaney, Justice.
Appellants operate a brokerage agency in the City of Little Bock, and buy, sell and trade in real and personal property as agents and brokers for others. Appellee is a resident of Monticello, in Drew county, Arkansas, and owns and operates two moving picture theaters there, known as the “Drew” and “Amuse-U.”
On July 1,1946, appellee listed his two theaters with appellants for sale at a gross price of $85,000, and entered into a written agreement with them which gave them the exclusive agency to sell said theaters for 30 days for said sum, and appellants were to be paid a commission of 10% of said sum by appellee, or a commission of $8,500, if a sale thereof resulted in said 30 days. No real estate was involved.
Based on the allegation that,' on July 17, 1946, appellants secured a purchaser for said theaters “who was, and is, ready, able and willing to purchase such properties, upon the terms and for the consideration set out in said agency contract,” such purchaser being one John W. Lowery of* Bussellville, Arkansas, who had paid them $10,000 as a down payment on said purchase price and agreed to pay the balance of $75,000 in cash upon the completion of the sale, appellants brought this action to recover the commission of $8,500 which would have been due them had a sale been completed. It was also alleged that appellee, without reason therefor, notified them that his property was not for sale at any price and refused to consummate said sale. They prayed judgment for said sum.
The answer was a general denial and a plea that on July 2, 1946, by telephone communication with an agent of appellants, he rescinded the agreement of July 1, 1946, relied on by appellants.
Trial before the court sitting as a jury resulted in a judgment for appellee. This appeal followed in due course.
We think an extended recital of the evidence produced by the parties is unnecessary in view of the determination we make of the case. Appellee testified that on July .2, 1946, the next day-after entering into the contract, he called Mr. Hampel, agent of appellants and who signed the contract for them, by telephone and canceled the agency agreement with them. He said: “I-told him to disregard the listing, that I didn’t care to sell out and for him not to bother to get a buyer, the sale wouldn’t be completed” etc. Appellants’abstract. That appellee- did call Hampel and have a conversation by ’phone with him July 2 was shown by the telephone company records and admitted by Hampel. The court found as a fact that appellee “effectively terminated the agency” on said date, and being supported by substantial, if not conclusive evidence, this finding is as binding here as the verdict of a jury. Appellee, therefore, repudiated the agency contract and breached it on July 2. Thereafter, on July 17, appellants say they procured a purchaser in one Lowery who went to Monticello, inspected the properties very briefly, had a conversation with appellee and was told by him that he would not sell and that he had already canceled the agency of appellants. He returned to Lijdle Rock, reported to appellants that appellee would not sell, and yet he agreed with them to buy and put up with them his check for $10,000. This and other evidence led the court to make a finding that it was impossible to believe s that Lowery actually intended to go through with the purchase. Whether this finding was justified we do not determine.
The fact is that whatever action appellants took looking to a sale after July 2 was unauthorized as their agency under said contract had been terminated by appellant on said date. The fact that the contract was in writing did not preclude appellee from verbally revoking appellants’ authority to sell at any time, even though the contract provided that they should have the exclusive authority to sell for 30 days. Gibson v. Greene, 174 Ark. 1010, 298 S. W. 209, and Novakovich v. Union Trust Co., 89 Ark. 412, 117 S. W. 246, cited and quoted from in the Gibson case, supra. In this Gibson case, we said: “The law does not compel one to continue an agency which he desires to terminate, but it does provide a remedy for the agent whose agency has been wrongfully terminated.”
Appellants did not sue for damages as for a breach of the contract. They neither alleged nor proved any damages which accrued to them between the date of the , contract and the date of its revocation. They sued for a commission of 10% on a sale that was never consummated and which was made, if made at all, after the revocation of the contract. Let it be assumed that appellants found a person on July 17 who was ready, able and willing to buy, and who deposited $10,000 with them to apply on the purchase price named in the agency contract, still they had no authority to act for appellee at that time, same having been revoked and canceled 15 days prior thereto.
The judgment is correct and is, therefore, affirmed.
Justice McFaddin concurs. | [
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Bobins, 'J.
Appellants, who are the children and heirs at law of Berry Dials, deceased, instituted suit in the court below to enjoin trespass by appellee on a!n 8(b acre tract claimed by them and to quiet their title thereto. They asserted ownership by adverse possession and by inheritance from their father who had acquired an undivided two-sevenths interest from, heirs of W. C. Kemp, original patentee of the land from the United States Government.
Appellee claimed title by conveyance from A. J. DeLong, who bought same from a purchaser at a sale for delinquent taxes. From a decree awarding the land to appellee, appellants prosecute this appeal.
In the trial below it was stipulated that the land forfeited for non-payment of taxes of 1919 and was sold at the delinquent tax sale on June 14, 1920, to E. A. Wolverton, to whom the county clerk issued his two deeds conveying the land in separate parcels of 40 acres each; that Wolverton sold and conveyed same on'February 8, 1926, to A. J. DéLong; that taxes on the land were paid by Wolverton and DeLong from 1920 until 1934, at which time the land was sold to the state for non-payment of taxes; that DeLong conveyed the land to appellee on October 21, 1944, and appellee redeemed same from the state on October 24, 1944; that appellee also secured a deed to the land from Fred Mason, who had bought same from the Conway County Bridge District.
No question is raised by appellants as. to the validity of the tax title acquired by appellee; and appellants’ only defense against this title is their claim of long continued peaceable and adverse possession. ■
The testimony showed that the land involved was, for the most part, in timber, not enclosed by fence. It was shown that a wire fence was for a time maintained around part of the land by Fred Mason, who conveyed his interest to appellee. While some of the witnesses stated that the dwelling house occupied by appellants was located on the land in controversy, this was disputed by appellee’s testimony, and a witness for appellants, who seemed to be more familiar with boundaries than other witnesses, testified that this dwelling house was located on an adjoining 40-acre tract, which was owned by appellants.
Appellants insist that adverse possession by them of the land involved herein was- shown by testimony that they cultivated crops thereon each year. But it seems not to be disputed that the greater part of the land was never in cultivation; and witnesses on behalf of appellee testified that only small patches of the land were culti vated by appellants and this was not done regularly, though there was testimony on behalf of appellants to thé effect that some of this land was worked by them each year. Appellants proved that they had been obtaining their firewood from this land, but it was also shown that appellee’s grantor had, without objection from appellants, cut and removed a quantity of timber from this land.
Where actual possession is relied upon to support a plea of limitation or to establish title to land by limitation it must be shown that such possession was continuous, as well as notorious, adverse and exclusive. Mere fitful or intermittent possession is not sufficient. Greer v. Vaughan, 128 Ark. 331, 194 S. W. 232; Driver v. Martin, 68 Ark. 551, 60 S. W. 651; Scott v. Mills, 49 Ark. 266, 4 S. W. 908; Brown v. Bocguin, 57 Ark. 97, 20 S. W. 813; Sanderson v. Thomas, 192 Ark. 302, 90 S. W. 2d 965; Norwood v. Mayo, 153 Ark. 620, 241 S. W. 7; Boynton v. Ashabranner, 75 Ark. 415, 88 S. W. 2d 566, 1011, 91 S. W. 20.
The question as to whether appellants have been in the notorious, peaceful and adverse possession of this land for more than seven years, so as to defeat appellee’s title, was one of fact. When all the evidence adduced is considered, we cannot say that the appellants’ claim of title by adverse possession was supported by a preponderance of the testimony.
Since in equity cases we do not reverse the finding of the lower court on a fact question unless it appears to be against the -weight of the testimony, it follows that the decree appealed from must be affirmed. | [
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Minor. W. Millwee, Justice.
Appellee, Grlen Aucoin, instituted suit in the Union Chancery Court on November 14, 1945, against appellant, Ivy Aucoin, for divorce and for the custody of two children allegedly born of the marriage of the parties. The children are boys and, when suit was filed, were of the ages of three years and five months, respectively. As a ground for divorce, appellee alleged personal indignities and cruelty on the part of her husband.
Appellant filed an answer containing a general denial of the allegations of the complaint, but admitting appellee’s residence in Union county and jurisdiction of the court. He also filed a cross-complaint in which he sought a divorce from appellee on the grounds of desertion and adultery. Appellant denied paternity of the younger child, hut asked for custody of both children in the event the court should find that the younger child was born of their marriage. Thereafter, appellee amended her complaint to ask for alimony pendente lite, support money for the children and attorney’s fee.
A lengthy hearing in which 26 witnesses testified was concluded on April 3, 1946.- The trial court made extensive findings in which it was determined that appellee had failed to sustain her charge of cruelty and indignities by sufficient evidence and her prayer for divorce was denied. On his cross-complaint, appellant was granted a divorce from appellee for desertion. The custody of both children was awarded to appellee, with the right of visitation in appellant at all reasonable times and places. Appellant was directed to pay $30 per month for the support and maintenance of the children. Appellee ’s prayer for alimony and attorney’s fee was denied and each party was directed to pay their own costs. Both parties have appealed from a decree' based on these ' findings.
The parties were living in Baton Rouge, Louisiana, when they were married on August 27, 1941. They continued to reside in Baton Rouge until after the first child was born on-August 30, 1942. Appellant enlisted in the Coast Guard on October 8, 1942, and was stationed in Florida until he was transferred to the west coast in December, 1943. Appellee and the older child resided with appellant in Florida until he was transferred, when she returned to live with her mother in Baton Rouge.
Appellant was in and out of west coast ports until his discharge from military service on October 25, 1945. He obtained furloughs and visited in Baton Rouge in April, November and December of 1944, and in June, 1945. The parties cohabited as man and wife in April, 1944, although appellee testified that she advised appellant on this visit that she could no longer hear his ill treatment and wanted a divorce. This cohabitation was resumed on the night of November 7,1944, which was the date of his next visit. Appellant left the following day and spent the rest of liis November leave with his parents who resided near Baton Bonge. He testified that he left at her request and upon her representation that the doctor had advised that she had only a short time to live and that she wanted to spend this time with the child. This was denied by appellee who testified that she could no longer endure his drinking and abusive treatment. This testimony is typical of the irreconcilable conflict in the evidence of the parties as well as that of many of their supporting witnesses who displayed much bias and partisanship in giving their testimony. We agree with the trial court that the character of most of the testimony is such that, “Solomon with all his wisdom would not know just what the truth is.”
On her cross-appeal appellee argues that the trial court erroneously denied her prayer for divorce on account of cruel treatment by appellant, it being insisted that her action in refusing to cohabit with him after November 7, 1944, was justified by such treatment. Appellee testified that appellant struck her on several occasions and this testimony was corroborated by her mother and other witnesses. It is true that this testimony, standing alone, might warrant a decree in her favor, but these instances of ill treatment were denied by appellant and his witnesses. We think the preponderance of the evidence supports the chancellor’s finding in favor of appellant on this issue, and that it would serve no useful purpose to detail this testimony.
Appellee also contends that the chancellor erred in refusing her prayer for costs and attorney’s fee. When the appeal was lodged in this court we directed appellant to pay $50 attorney’s fee and costs of printing appellee’s brief, and appellant complied with this order. Under our statute (§ 4388 of Pope’s Digest, as amended by Act 274 of 1945) the matter of the allowance of attorney’s fees and suit money pending a divorce action is in the sound discretion of the court. Kincheloe v. Merriman, 54 Ark. 557, 16 S. W. 576, 26 Am. St. Rep. 60; Hodge v. Hodge, 161 Ark. 299, 255 S. W. 1090. Since the trial court correctly found that appellee was at fault in the separation of the parties and denied her prayer for divorce, we cannot say there was an abuse of discretion in the court’s refusal to allow attorney’s fee and all costs to appellee. Nor can we say that the trial court was in error in the allowance of only $30 per month for support and maintenance of the two children. It is true that appellant has a good job and, while the allowance may not be termed a liberal one, we are unable to say that it is too small when all the circumstances are considered.
In granting appellant a divorce on the ground of desertion, the trial court made the following finding: “As to tire allegation of desertion, she asserts that the reason she wanted a divorce was because she was tired of his cruel treatment, but it is an admitted fact on her part that she made up her mind to divorce him in November, 1944, more than one year before her complaint was filed and more than one year before the cross-complaint was filed. It is undisputed, when all the testimony is considered, that they did not live together as husband and wife after that time, and that was more than a year before the suit for divorce was filed, and under that view, and under the evidence, there is no question but that defendant has established in his cross-complaint the right to a divorce on the grounds of desertion. ’ ’ This finding is fully supported by the evidence.
The real question in the case involves the right to the custody of the- three-year-old child. Appellant earn-' estly insists that the charge of adultery was well established and that this fact alone entitles him to the custody of the older child. Having determined that the charge of desertion made by appellant was well established, the chancellor found it unnecessary to determine whether appellee was also guilty of adultery. The trial court also decided that even though appellee was guilty of some infidelity, such determination would not change the award of custody to the mother in view of the child’s tender age and the other circumstances in evidence. While there was some circumstantial evidence tending to show misconduct on the part of appellee, it was stoutly denied by her. Since we agree with the chancellor that the charge, if proved, would not necessarily change the award of custody in the instant case, we think it would be better for all concerned that the unsavory evidence adduced on this issue be left out of this opinion.
In Oliphant v. Oliphant, 177 Ark. 613, 7 S. W. 2d 783, upon which appellant relies, this court indicated that it would have changed the custody of an eight-year-old daughter from the mother to the father if the latter had proved the charge of adultery against his wife. However, different results have been reached in other cases where misconduct of the wife has been definitely established, but other circumstances in the case have been held to warrant the award of custody of a child of tender years to the mother. Longinotti v. Longinotti, 169 Ark. 1001, 277 S. W. 41; Blain v. Blain, 205 Ark. 346, 168 S. W. 2d 807; Thompson v. Thompson, 209 Ark. 734, 192 S. W. 2d 223. We agree with appellant that each case must be adjudged on its own peculiar facts and, since no two cases are alike, there is no direct precedent for or against custody in cases of this kind. The child’s best interest and welfare is always the primary and controlling consideration. Kirby v. Kirby, 189 Ark. 937, 75 S. W. 2d 817.
At the time of the trial the older child was only three years of age. Appellant, if awarded custody of the child, has indicated his intention of placing it with his father and mother, who are 78 and 56 years of age, respectively. The grandparents reside on a small farm 21 miles from the city of Baton Rouge where appellant is employed. They are good people and would, no doubt, furnish a good home for the child, but they are practically strangers to him. The child has had the care and attention of appellee since its birth. Several witnesses testified to the good character of appellee and it is undisputed that she has given splendid attention and care to her children who, because of their tender years, need the solicitude and affection of a mother. As pointed out by the trial court, the decree as to custody is only final as to conditions existing at the time of its rendition and may be altered in the future under changed conditions. Because of the child’s tender age, we are unwilling to say that the chancellor erred in awarding its custody to appellee under the conditions existing at the time of the trial. .
The decree is accordingly affirmed.
Robins, J., dissents. | [
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McHaney, Justice.
Appellee, as Catholic Bishop of the Diocese of Little Bock, is the owner of block 299, original city of Little Bock. It is bounded on the north by Garland street, on the east by Cross, on the south by Markham and on the west by Pulaski. This block has never been platted into lots. An alley-way runs east and west through the middle of said block, but there are no abutting improvements on said alley. Appellant resides on the west side of Pulaski street, between Markham and Garland, and he has used said alley for many years as a convenient, but not necessary, passage-way to get to and from his property in his automobile. "While Pulaski street is not available to him from Markham, due to a deep cut in Markham as it goes west to the Union depot, it is available to him from Garland.
At appellee’s instance, the Little Bock city council, on August 6, 1946, passed Ordinance No. 7087, closing said alley. The ordinance recites that a manufacturing concern desires a location in the city of a size sufficient to house its various branches and that the owner of block 299 is willing, to construct a building thereon of sufficient size to accommodate the business of said concern, provided said alley is closed so that a large enough building may be constructed to accommodate said concern. Later Ordinance No. 7147 was passed which reclassified said property to that of class “K” heavy industrial district.
Appellant brought this action to enjoin appellee from closing said alley. The complaint alleged the facts set out above and also that appellee’s petition to close said alley was not filed in accordance with Act 17 of 1945, in that the petition did not have attached a certified or photostatic copy of any plat showing said alley to be vacated. It further alleged that no plat of said property has ever been filed in the recorder’s office of Pulasld county. Also that he had a prescriptive right thereto. Appellee demurred to the complaint. The court sustained the demurrer and, appellant electing to stand on his complaint, it was dismissed for want of equity. Hence this appeal.
We think the court correctly sustained the demurrer. Act 17 of 1945 has no application here. By it, cities of the first and second class and incorporated towns, in $ 1, are “given the power and authority to vacate public streets and alleys — under the conditions and in the manner herein provided.” One of the conditions set out in § 2 is that the owner of the property has dedicated a portion thereof to the public use as streets or alleys “by platting such property and causing such plat to be filed for record.” Here, there was no plat of said block into lots and no dedication of the alley ordered closed. So the act does not apply. The repealing clause reads: “All laws and parts of laws, and particularly Act 311 of the Acts of 1941, are hereby repealed.” Section 8. No doubt the legislature meant to repeal all laws in conflict with that act, and, by error of the author or the typist, left out the usual words, “in conflict herewith,” which we will imply by necessary construction. When so construed this act does not repeal § 9944 of Pope’s Digest, subsection Third, which provides: “To alter or change the width or extent of streets, sidewalks, alleys, avenues, parks, wharves and other public grounds, and to vacate or leave out such portions thereof as may not for the time being be required for corporate purposes . . .”
It was held in Helena v. Wooten, 98 Ark. 156, 135 S. W. 828, construing sub-section “Fourth” of said section, that: “This section contemplates that municipalities shall have control over their streets,” although it had previously held in Beebe v. Little Rock, 68 Ark. 39, 56 S. W. 791, that the city had no authority to sell, exchange or give away streets. See, also, State ex rel. Latta v. Marianna, 183 Ark. 927, 39 S. W. 2d 301.
We conclude that the city had the power and authority to -close said alley under the facts here presented.
As a second and final ground of reversal, appellant argues that by prescription he has acquired an easement over the alley which cannot he revoked by the city council. A sufficient answer to that contention is that the complaint did not allege the length of time he has continuously traveled over said alley. The complaint as abstracted alleges that “for many years he has used the alley to reach his home.” “Many” may mean more or fewer than seven years, the minimum time to establish a prescriptive easement. McLain v. Keel, 135 Ark. 496, 205 S. W. 894.
Words and Phrases defines the word “many” as “a word of very indefinite meaning, and, though it is defined to mean ‘numerous’ and ‘multitudinous,’ it is also recognized as synonymous with ‘several,’ ‘sundry,’ ‘various’ and ‘divers’.” -So, he did not allege that he had used the alley for more than seven years, and thereby established a prescriptive right to its use.
The decree is, accordingly, affirmed. | [
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Griffin Smith, Chief Justice.
Hearn has appealed from a judgment that he serve five years in prison. The verdict found the defendant guilty of voluntary manslaughter ; hut, following supplementary instructions given the second day after the jury’s deliberations began, that body (as the law permits) did not designate the prison term. The Court supplied the deficiency.
Observing the jury’s seeming difficulty in reaching its verdict, the Judge said:
“Gentlemen, it is dinner time! How do you stand?” Answer by a juror: “Ten and two”. The Judge: “Ten for guilty of some degree of homicide and two for not guilty?” Answer by a juror: “Yes, Sir”. The Judge: “The Court [thinks] you are making some progress, even though it is slow. We are not asking anybody to bring in a verdict, but I feel it is your duty. ... If you don’t decide this case it will have to be tried again, and that is expensive to the taxpayers of Pike County. It is a trying ordeal for the defendant and his family, and also a trying ordeal for the family of the deceased. If you can do so, I hope you will remember the testimony and reach a verdict”.
It was held in Murchison v. State, 153 Ark. 300, 240 S. W. 402, that where the jury in a criminal case was recalled to the courtroom — and in response to the inquiry “how do you stand?” the reply was “eleven to one” — it was not error for the Judge to comment, “I see no reason why there should be no verdict in this case, one way or the other”. But, said Chief Justice McCulloch, in such circumstances the language must be considered in connection with other remarks or instructions.
Judge McCulloch, who wrote the opinion in Thomas v. State, 107 Ark. 469, 155 S. W. 1165, emphasized the constitutional provision that a trial court has no right, either directly or indirectly, to express to the jury an opinion respecting the weight of evidence. In that case the holding in Sharp v. State, 51 Ark. 147, 10 S. W. 228, was mentioned, including the quotation: “ . . . it was natural for [the jurors] to seize upon and adopt any opinion which they understood the Judge to have expressed or intimated upon the questions they are required to decide”.
By this it was not meant that when a Judge is apprehensive of mistrial because of natural misunderstandings, all discretion is denied in the matter of elucidation ; the restriction is that what is said must not amount to comment on the weight of evidence. See Phares v. State, 158 Ark. 156, 249 S. W. 551. Nor is it error for the Court to ask jurors how they are divided as to numbers, “without indicating how they stand as to parties”. Eady v. State, 168 Ark. 731, 271 S. W. 338. In Evans v. State, 165 Ark. 424, 264 S. W. 933, it was held that reversible error was not committed when the Court asked a question similar to that mentioned in the Eady case. The decision appears to have been predicated upon the proposition that there was nothing to indicate a desire by the Judge to know the nature of the jury’s division; hence the answer was harmless error.
A different result attended our consideration of an instruction intended to be “cautionary”. It was held to be “involved and argumentative, and an entreaty to [the jurors] to change their minds and reach a verdict”. Stockton v. State, 174 Ark. 472, 295 S. W. 397.
In the case at bar the Judge (after having been told — in response to his own question whether ten were for conviction and two for acquittal) said: — “The Court thinks you are making some progress, even though it is slow”.
It is not improbable that the two jurors who until then had been unyielding, concluded that the Judge believed evidence warranted conviction. This would amount to comment in the factual field reserved exclusively for jurors in cases at law. For this reason the judgment must be reversed. Remanded for a new trial. | [
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Robins, J.
This appeal presents a controversy as to boundary between property of two adjoining landowners. Appellee, owner of the northeast quarter of the southwest quarter of. section twenty-four, township nine north, range three east, instituted suit in the lower court against appellant, asking for an injunction against appellant, who holds conveyance for the southeast quarter of the northwest quarter of said section, to restrain appellant from trespassing upon and removing timber from appellee’s land.
Appellant in his answer denied that the fence, which appellee alleged was on the line between the two tracts, was in fact so situated. Appellant asserted that the fence was intentionally built as much as 150 feet, at some points, north of the true boundary line, and that the land in dispute belonged to him.
The cause was submitted to the lower court on the depositions of appellee and nine witnesses in his behalf, and on the depositions of' appellant and six witnesses in his behalf. Appellant seeks to reverse the decree of the lower, court by which it was adjudged that the fence referred to in the pleadings and proof was the true boundary between the two tracts and that the land in dispute, lying south of this fence was the property of appellee.
It is undisputed that the fence claimed by appellee, and held by the court, as being on the dividing line between the two tracts, was built by Mr. Lewis, appellant’s grantor, in 1925, and has since remained in the same location. The land north of the fence, belonging to appellant, has fdr many years been in cultivation. The strip south of the fence, the land in dispute, is and has been “in the woods.” Appellant bought his land in 1927.
Appellee testified that he purchased his land in 1922, and obtained a deed for it in 1923 and during the same year had a surveyor named McElroy run his north line, and that he (appellee) blazed the trees along the line as established by the survey. Appellee further testified that when the fence was built by Lewis in 1925 it was built along the line which appellee blazed out under directions of the surveyor, and that he had been in possession of the land in dispute under claim of ownership ever since the fence was built. His testimony as to this was corroborated by that of other witnesses.
Lewis denied that he built the fence as'a boundary, but stated that he purposely built it north of the true line, so that the fence would be located entirely on his land.
Neither side offered the testimony of a surveyor, nor was there any map, showing measurements and distances, introduced in evidence.
Appellant testified as to a survey he had made in 1928, which showed the true line from 150 to 2 feet south of the fence, and his testimony was corroborated by that of other witnesses. There was also testimony to show that another survey had been made which established the-line as being north of the fence.
Two questions of fact are presented in this case: First, as to the true location of the boundary line between the two tracts; and, second, as to whether appellee had acquired title by adverse possession, assuming that the boundary line was where appellant claimed it to be.
The lower court found that appellee had been holding the land in dispute ‘ ‘ in open, adverse, continuous and hostile possession,” and decreed that the fence erected by Lewis was the true boundary line.
From a careful review of the testimony we cannot say that the finding of the lower court .is against the weight of the evidence; nor can we say that the location of the boundary along the line as contended for by appellant was established by a greater weight of the testimony.
We do not reverse a decree of the chancery court unless it appears to be against the preponderance of the evidence. Benton v. Southern Engine & Boiler Works, 101 Ark. 493, 142 S. W. 1138; Dyer v. Dyer, 116 Ark. 487, 173 S. W. 394; Morrow v. Merrick, 157 Ark. 618, 249 S. W. 369; Venable v. Vance, 167 Ark. 678, 266 S. W. 70; Bush v. Bourland, 206 Ark. 275, 174 S. W. 2d 936; Burnett v. Clark, 208 Ark. 241, 185 S. W. 2d 703.
Accordingly the decree of the lower court is affirmed. | [
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Robins, J.
A petition has been filed in this court by Honorable James H. Pilkinton, prosecuting attorney of the eighth judicial circuit of Arkansas, asking us to grant a writ of mandamus against the respondent, Honorable Dexter Bush, judge of that circuit, commanding him to approve the appointment of Mr. Henry Woods as deputy prosecuting attorney of Miller county.
It is alleged in the petition that the appointment has been duly made by petitioner, that the appointee is duly qualified for the position, and that the respondent has arbitrarily and without good reason refused to approve the appointment. The respondent has answered, asserting that he had the right; without giving any reason, to approve or disapprove the appointment, but denying that he had acted arbitrarily and alleging that the appointee was not qualified for the position to which he had been named. The respondent also challenges the availability of the writ of mandamus in the instant case.
The authority of prosecuting’attorneys to appoint deputies is found in § 10884 of Pope’s Digest as follows: “Except as otherwise provided, the Prosecuting Attorneys of the several Judicial Circuits of this State may appoint one deputy in éach of the several counties composing their circuits; provided, that such appointment shall not take effect until approved, in writing, by the judge of the Circuit Court of-such circuit, which approval shall be filed in the office of the Clerk of the Circuit Court of the county for which such deputy is appointed; ...”
The legislature did not intend that the duty imposed on a circuit judge in connection with the appointment of a deputy prosecuting attorney should be a merely formal or ministerial one. The word “approved,” as used in the statute, connotes the exercise of discretion on the part of the judge.
“The very act of approval, unless limited by the context of the statute providing therefor, imports the act of passing judgment, the use of discretion and a determination as a deduction therefrom. ” Fuller v. Board of University and School Lands, 21 N. D. 212, 129 N. W. 1029. See, also, Baynes v. Bank of Caruthersville (Mo. App.), 118 S. W. 2d 1051; People v. Hall, 140 Calif. Supp. 745, 31 P. 2d 831; Key v. Board of Education of Granville County, 107 N. C. 123, 80 S. E. 1002; Melton v. Cherokee Oil & Gas Company, 67 Okla. 247, 170 Pac. 691; In Re Robinson’s Will (Henneman v. Robinson), 218 Wis. 596, 261 N. W. 725.
The circuit judge is a member of the judiciary and his duties and powers are judicial. We held in the case of Oates v. Rogers, 201 Ark. 335, 144 S. W. 2d 457, that the legislature could not vest in a circuit judge or chancellor a non-judicial duty. In that ease we were considering the validity of an Act of the General Assembly creating the office of tax collector in counties having a population of 125,000 and an assessed valuation of real and personal property of $50,000,000 or more. The Act authorized the appointment of the collector by the judges of the circuit, chancery and county courts, and we held that this Act was unconstitutional because “the nature of the act of appointment is essentially non-judicial, and therefore not to be exercised by circuit and chancery judges . . ” So, if the power of the circuit judge to pass on the appointment of a deputy prosecuting attorney may be upheld, it must be sustained on the theory that the power conferred is judicial in its nature.
Since the function of the judge in this matter is a judicial one, some discretion as to the approval of the appointment is necessarily vested in the judge, and, this being true, his action relative thereto cannot be controlled by mandamus. Gunn’s Adm’r. v. County of Pulaski, 3 Ark. 427; Williamson, Ex Parte, 8 Ark. 424; Hutt, Ex Parte, 14 Ark. 368; Johnson, Ex Parte, 25 Ark. 614; Hays, Et Al., Ex Parte, 26 Ark. 510; McMillen, Et Al., v. Smith, Et Al., 26 Ark. 613; County Court of Union County v. Robinson, Trustee, 27 Ark. 116; Willeford, Et Al., v. State Ex Rel., 43 Ark. 62; Rankin v. Fletcher, 84 Ark. 156, 104 S. W. 933; Maxey v. Coffin, 94 Ark. 214, 126 S. W. 729; Nixon v. Grace, 98 Ark. 505, 136 S. W. 670; Jackson v. Collins, 193 Ark. 737, 102 S. W. 2d 48.
The power of the circuit judge being judicial, it is not absolute; and he does not have the right to refuse, without any valid reason, to approve an appointment of this kind. If he had such absolute power it would mean that the circuit judge might, in all cases, bring about the appointment of one selected by him, or, in event of the refusal of the prosecuting attorney to meet the judge’s wishes, prevent any appointment whatever. We think the legislature meant to vest the power in the prosecuting attorney to make this appointment, subject to the right of the circuit judge to refuse to approve such appointment when there is a good reason — such as moral unfitness or lack of proper training of the proposed appointee — for doing so.
Furthermore, since the authority vested in the circuit judge b3r the above quoted statute is a judicial one, his action is subject to review by this court, even though the proceeding relative to the appointment is before the judge and not the court. Jackson, Ex Parte, 45 Ark. 158; State ex rel. Arkansas Industrial Company v. Neel, 48 Ark. 283, 3 S. W. 631; State ex rel. Attorney General v. Williams, 97 Ark. 243, 133 S. W. 1017; Bowden v. Well, 116 Ark. 310, 173 S. W. 181; § 4, Art. VII, Constitution of Arkansas.
It follows from what has been said that the writ of mandamus, as prayed for herein, must be denied, but without prejudice to the right of the petitioner again to present to respondent, for his action thereon, the appointment herein involved, whereupon the respondent should, if the propriety of the appointment be questioned, hear any testimony as to the fitness of the appointee that may be offered; and final action of the respondent in the premises to be subject to review by this court on certiorari proceedings. It is so ordered.
Mr. .Justice McFaddin not participating. | [
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Robins, J.
This is an appeal from a judgment of the circuit court affirming an order of the Arkansas Public Service Commission which denied to appellant a certificate authorizing him to operate a motor passenger transportation line over State Highway 81 and U. S. Highway 65 from Hamburg (via a detour of about two and one-half miles off State Highway 81 to Ladelle) to Pine Bluff, with a “shuttle” service from Star City to Gould and return.
The application of appellant was opposed by two other motor carriers, who asserted that existing facilities, provided by previously licensed carriers, were sufficient to handle traffic along the proposed route.
The highways of the state are constructed and maintained by the public and the convenience of the public is always the paramount consideration in- determining the right of any carrier to use the highways. No carrier may have any vested right, by reason of its license, to the exclusive use of the highways for any given period. The General Assembly in the Act authorizing the issuance of certificates of authority for use of highways by carriers specifically provided (§ 9, sub-division (d), Act 367, approved March 26, 1941) that “no certificate issued under this Act shall confer any proprietary or property rights in the use of the public highways.” See Santee v. Brady, 209 Ark. 224, 189 S. W. 2d 907. But a carrier who has been granted a license to operate over a given route has the right, under the law, when another carrier asks for a permit to operate over the same route, to oppose the granting thereof, and to show, if possible, that the existing service is adequate and that a duplication thereof by another carrier would not serve public convenience.
In the case at bar twenty witnesses testified on behalf of appellant and twenty-seven testified for appellees. The testimony on behalf of appellant indicated a need for additional service, while the effect of the evidence on behalf of appellees was to show that the existing service was entirely adequate. It may be said, however, that much of the criticism of the existing facilities by witnesses for appellant was directed to a period when abnormal conditions, brought on by the war, prevailed. It was shown that the city council of Monticello, a city on the route of the proposed line, had adopted a resolution asserting that the new- service was not needed. The mayor of Star City, another town located on this route, testified that he considered the existing service adequate.
We try cases of this kind de novo, but it is the duty of the courts to accord due deference to the finding of the Commission, since it is the agency upon which the General Assembly has placed the duty to investigate and determine, in the first instance, the need for any proposed motor carrier service. 9 Am. Jur. 494; 51 C. J. 77; East Tennessee, Virginia & Georgia Railway Company v. Interstate Commerce Commission, 181 U. S. 1, 21 S. Ct. 516, 45 L. Ed. 719; Louisville & Nashville Railroad Company v. Behlmer, 175 U. S. 648, 20 S. Ct. 209, 44 L. Ed. 309; and Illinois Central Railroad Company v. Interstate Commerce Commission, 206 U. S. 441, 27 S. Ct. 700, 51 L. Ed. 1128.
A determination of the propriety of granting an application such as is here involved must always bev governed by the peculiar facts shown; and a decision in such a case does not control consideration of another similar application on a subsequent occasion if a materially different fact situation may be proved. Missouri Pacific Transportation Company v. Gray, 205 Ark. 62, 167 S. W. 2d 636. A careful review of the evidence convinces us that the finding of the Commission, and of the circuit court, that public convenience would be best served by the denial of appellant’s application is supported by a preponderance of the testimony.
Accordingly the judgment appealed from is affirmed. | [
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Holt, J.
On a charge of assault with intent to kill, appellant, I. W. Coffer, was tried, found guilty and punishment of three years in the State Penitentiary assessed by the jury. From the judgment on the verdict comes this appeal.
Eight alleged errors were assigned in the motion for a new trial. The first seven, in effect, challenged the sufficiency of the evidence to support the verdict, and in the eighth assignment appellant alleged: ‘ ‘ The Court erred in his oral instructions to the jury over the objections of the defendant.”
(D
The evidence was to the following effect:
Mrs. Harold Boggie testified that she left'her automobile in a garage in Camden, Arkansas, and directed one of the employees, or mechanics, to make certain repairs. She then left in company with another lady and some hours later returned for the car. Appellant, I. W. (Bill) Coffer had attempted to make the necessary repairs which involved the wiring and lighting system. In the presence of herself and the other lady, another mechanic and employee, “Bookie” Lee, after examining Coffer’s work said: “Bill, you haven’t-checked this all the way through and you told me you had, but you haven’t and said ‘we don’t want to turn out anything like this’ and he (Coffer) said ‘you can fix it yourself,’ ” and Bookie said: “Well, I sure can do it and they backed the car out and put the car in an adjoining stall and another mechanic was there and he told him to help him, that I wanted the car out, and -they were under the car checking the wires under there, and this friend and I walked away from the car when we heard the commotion. . . . I heard someone say ‘Bill (meaning appellant) please don’t do that,’ and I looked around and Mr. Coffer was advancing toward Mr. Lee with a crowbar, I did not see Mr. Lee come up from under the car, but I saw him, run with Mr. Coffer after him with the crowbar, and he ran up against a bench because there was no other way to get out of there, and that is where Coffer stopped him.”
Appellant struck Lee from three to six times before he was stopped. Lee had nothing in his hands and was unarmed and tried to defend himself with his fists.
Bookie Lee, the victim of appellant’s assault, testified that, as was his duty, he checked Mrs. Boggie’s car after appellant had attempted to make the repairs and discovered, in effect, that the repairs were incomplete and “I called him to come back and let’s fix it and he came over there and told me that I could fix the ‘damn lights’ myself. ... I backed the car out of his stall and gave it to Ray Mitchell in the next stall and I got in there and helped him and Bill said ‘come here a minute’ and I got up and went over there and he said ‘you s-of-a-h, you have driven the last car out of my stall that you ever will’ and he hit me with a har on my head. . . . I was knocked blind. I tried to get away from him — I was barehanded, didn’t have a thing — and I don’t know what else happened.” “I was hit across my head, across my shoulder and on my arm. I was knocked blind and addled.” Lee was taken to the hospital where he remained from about Wednesday to Saturday. He later went to a Memphis hospital where he had an operation on his arm.
Dr. R. B. Robbins testified: “Q. This patient (meaning Bookie Lee) didn’t have a concussion, did he? A. Yes, he had that and a contusion of the brain. Contusion of the brain is the same thing as a bruise, — it is a bruise of the brain.”
It is undisputed that appellant struck his victim, Lee, with a steel bar about two feet long and one inch in diameter.
J. B. Jackson testified: “A. When I first noticed them they were standing behind a little truck and I turned around and I saw Mr. Coffer make a lick with something and he hit Bookie over the head and Bookie ran and he struck at him again and Bookie ran around the truck and Mr. Coffer went the other way and they met next to me and he struck at him again and Bookie threw his arm up and he hit him on the arm and they got in front of the truck and I got in between them and Mr. Coffer hit at him again with the bar and struck me. . . . Q. How many times did he hit him? A. Twice. Q. And do you know if he hit him before that? A. Twice before that I saw.”
F. A. Sanders testified that he was present and at the time appellant'hit Lee “Bill made the remark to me that ‘I am going to whip hell out of him and take my tools and go to the house’ and I said ‘Bill, that is not the thing to do, go smoke a cigarette and cool off.’ Q. What was Bill’s manner when he made that remark — whether he was mad or not? A. He was pretty mad — he seemed to be mad, yes, sir. . . . Q. What was Bookie’s condition as to when they separated? A. He acted like he was about out. ’ ’ Sanders and another employee ‘ ‘ carried him to the hospital.”
There was other evidence on behalf of the State tending to corroborate the above testimony.'
Appellant testified on his own behalf that he struck his victim, Lee, with a steel bar in self-defense and further testified: “He (meaning Bookie Lee) seemed to say that I didn’t know what I was doing, and I got out from under the car and walked over to my bench. ... I saw Shorty (meaning Witness Sanders) and he said ‘you are mad, aren’t you’ and I said ‘no.’ I told him I ought to whip the hell out of him and quit for saying what he did to me before these ladies, and he told me to go smoke a cigarette and cool off, and I was cleaning up my tools, and while I was at the back door I made up my mind to quit, and when I called Bookie to tell him I was going to quit, he came at me with a screwdriver in his hand like he was mad because I didn’t fix the car.”
We think the above testimony was amply sufficient to warrant the jury’s verdict and the judgment. On appeal, we are required to view the testimony in the light most favorable to the State, and the jury’s verdict, when supported by substantial evidence, as here, is binding on us. Brown v. State, 208 Ark. 180, 185 S. W. 2d 274.
(2)
At the conclusion of all the testimony in the case, the trial court gave a number of unnumbered oral instructions which we have carefully examined and find to be proper declarations of law as applicable to the facts presented. Appellant made no specific objections to any of the instructions. We copy from the record the only reference to any objection by appellant. “Whereupon, the court gave to the jury, over the general objections of the defendant, the following instructions, to-wit: . . . Whereupon, at the conclusion of the giving of the oral instructions, the court asked if any further instructions were requested by the State or the defendant, and Mr. Stein, attorney for the defendant, asked the court for an instruction to the jury on manslaughter, which was given as follows: . . . The above and foregoing are all of the instructions requested, given or amended, by the court in the trial of this cause.”
Appellánt’s objection to the instructions at most was a general objection en masse to all of the instructions and cannot be sustained if any one of the instructions is good. “It has been repeatedly held that a general exception to several instructions will not be entertained on appeal, if any of them is good. Owen v. State, 86 Ark. 317, 111 S. W. 466; Tiner v. State, 109 Ark. 138, 158 S. W. 1087; Graham v. State, 197 Ark. 50, 121 S. W. 2d 892”; Massey v. State, 207 Ark. 675, 182 S. W. 2d 671.
As indicated, we think none of the instructions given orally by the court was erroneous. Certainly all of them were not. Similar instructions have been many times given by trial courts and approved by this court.
From the record, appellant appears to have had a fair and impartial trial and no error appearing, the judgment is affirmed. | [
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Robins, J.
The circnit court sustained a demurrer to appellants’ complaint and upon their refusal to plead further entered judgment dismissing same. Appellants seek to reverse that judgment.
Appellants (husband and wife) alleged in their complaint that they were the owners of 2,164.15 acres, a large part of which was farmed in rice and other crops, said land being, át the time of the transactions referred to in the complaint, of the value of $90,000; that there was a first mortgage on 1,777 acres of said tract to secure an indebtedness of $16,620, due to an insurance company, and a second mortgage on the same land to secure an indebtedness of $8,700, due to Marion Dickens; that appellee had acquired both these debts and the liens securing same; that appellants had borrowed the additional sum of $7,000 from appellee and had mqrtgaged to appellee the remainder of their land to secure same; that appel- • lants owed White River Production Credit Company slightly more than $16,000, which indebtedness had been purchased by appellee; that there was claimed by appellee to be due on all said indebtedness the sum of $46,250 on February 26, 1946; that in the fall of 1945, appellee induced appellants to apply for a loan of $40,000 on said lands, to be used in discharging the debt to appellee, appellee agreeing to take a chattel mortgage on crop, farming equipment and other personal property of appellants to secure the remaining $6,250 of appellants’ debt to appellee and also $20,000, which appellee was to furnish appellants to enable them to make and harvest the 1946 crop; that in the meantime, suits had been filed against one of appellants for sums aggregating $17,000, and that appellee sought to induce appellants to convey the lands to him by stating to appellants that adverse judgments in said suits might prevent them from obtaining the $40,000 loan; that on February 26, 1946, at the insistence of appellee, appellants executed and delivered their warranty deed, conveying all said lands to him, appellee stating that the deed would be merely security for the $40,000 debt until the said loan could be completed, at which time all claims of appellee against the land would be released; that on the same day there was executed by appellant, R. E. Coleman, and appellee a written agreement, the material provisions of which were: That appellants had conveyed their 2,164.15 acre farm to appellee, and appellant, R. E. Coleman, had “for an agreed balance of $6,250” transferred all his farm implements to appellee; that appellee would finance the making of rice crop on 700 acres by said appellant, provided said appellant would properly cultivate said crop; that the one-fourth of the proceeds of said crop was to be paid to appellee as rent, the expense of planting, cultivating and harvesting the crop to be repaid to the credit association, which was to lend the money for such expenses, the appellee to be paid his loan of $6,250, and any other advances, and thereupon title to all the personal property to re-vest in said appellant and said appellant to have all the Remainder of said crop; the agreement further providing that the deed to the land executed by appellants to appellee should be withheld from record for ten days, “upon the understanding that if, within that time, party of the second part [appellant] is able to refinance said farms to the amount of $40,000 to be paid to the party of the first part, said deed will be destroyed, and not recorded, and shall become null and void; but this condition shall become void at the end of ten days.”
It was further alleged in the complaint that at the time this instrument was executed it was understood that it was executed only as security for debt, and that “the only time limit thereon was stated to be in the fall of 1946”; that at the time of entering into said contract it was not the intention of appellee to carry out his agreement, but it was his intention then to sell said land, crops and farming equipment to third parties; that after he obtained said deed and contract appellee did sell -and convey said land and did transfer said written agreement to Harry Ward and K. L. Kramer and their wives, on April 15, 1946; that when appellants learned that appellee was attempting to sell the property they brought a suit in chancery court against him and his vendees, seeking to enjoin the sale, and asking that the deed executed by them to appellee be declared a mortgage; that upon learning that the sale had already been consummated by appellee they took a nonsuit as to appellee and continued the suit against the vendees; and that upon final hearing appellants ’ said suit was by the chancery court dismissed for want of equity.
The prayer of the complaint in the instant case was that appellants recover from appellee $50,000, the difference between $90,000, the alleged value of the lands formerly owned by appellants, and the $40,000 indebtedness due by appellants to appellee.
For reversal it is first argued by appellants that the deed to appellee and the agreement contemporaneously made ought to bo construed as a mortgage and that, this being done, there was stated in the complaint a good cause of action for damages, on the theory that appellee, as mortgagee, had sold mortgaged property as his own to the damage of the mortgagors.
We have frequently held that equity will look through the form of a transaction to ascertain the reality thereof and that where a deed or other contract, in form an absolute conveyance, is shown to have been intended by the parties thereto as mere security for debt, it will be so treated by a court of equity and title to the property quieted in the grantor, subject to the lien of the grantee for his debt. Clark-McWilliams Coal Company v. Ward, 185 Ark. 237, 47 S. W. 2d 18; Buffalo Stave & Lumber Company v. Rice, 187 Ark. 731, 62 S. W. 2d 2; Sturgis v. Hughes, 206 Ark. 946, 178 S. W. 2d 236.
. But here appellants are not attempting to exercise their equitable right to redeem their property. They did that in the case in chancery court and it resulted in a decree, from which no appeal was taken, adjudging that appellants did not have the right to redeem the land from appellee’s grantees, who had full notice of the contract between the parties to this suit.
Even if their right to assert that the transactions with appellee amounted only to a mortgage is not barred by the chancery decree, appellants are met in a court of law by the fact, appearing from their complaint, that under the written agreement the deed was to be withheld from record so as to enable them to refinance, for only ten days, and that after that time “this condition [the requirement for withholding of deed from record and destruction thereof if the sum of $40,000 was paid to appellee within ten days] shall become void.” When, at the end of the ten-day period, appellants had failed to pay this sum, under the plain terms of the agreement, any right of appellants as to the lands, enforceable in a law court, was lost. Snell v. White, 132 Ark. 349, 200 S. W. 1023; Inman v. Rynearson, 167 Ark. 238, 267 S. W. 576; Matthews v. Stevens, 163 Ark. 157, 259 S. W. 736; Bailey v. Frank, 170 Ark. 610, 280 S. W. 663.
Appellants further contend that the complaint states a cause of action for fraud and deceit. No misrepresentation by appellee as to a past or existing fact is set up in the complaint, but appellants say that fraud is alleged in that part of the complaint by'which it is charged that appellee led appellants to believe they would be permitted to redeem the land when all the time he had the intention (concealed from appellants) not to allow appellants to do so.
Ordinarily an action for fraud and deceit may arise only from false representation as to a past or existing situation, but there is authority for the holding that where one makes a false promise, knowing at the time that it will not be kept, the person injured thereby may have relief in action for fraud. However, in the instant case it appears from the complaint that the parties saw fit to commit their agreement for redemption to writing and any oral promise or representation made by appellee was merged in'this agreement. “All antecedent propo sals and negotiations become merged in a written contract, which cannot be varied by parol testimony.” (Headnote-1) Zearing v. Crawford, McGregor & Camby Company, 102 Ark. 575, 145 S. W. 226; Harrower v. Insurance Company of North America, 144 Ark. 279, 222 S. W. 39; American Southern Trust Company v. McKee, 173 Ark. 147, 293 S. W. 50; Lane v. Smith, 179 Ark. 533, 17 S. W. 2d 319. Hence no liability against appellee may be predicated on any promise not set forth in the written agreement.
Since it is not charged in the complaint that appellee violated any part of the written agreement between the parties, it follows that the complaint did not state a cause of action at law.
The judgment of the lower court is affirmed. | [
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Minor W. Millwee, Justice.
Appellants and appellees are owners of adjoining residential lots in the City of Marianna and this suit involves the title to a narrow triangular strip of land lying along the boundary line dividing the two lots.
Appellants are the heirs at law of Myra D. Brown who owned both lots in 1909. At that time Mrs. Brown resided on the south part of her lot and maintained a garden enclosed by a wire fence on the north part. On November 6, 1909, she conveyed the north part of the lot, referred to as the “garden spot,” to George W. Greenhaw, who constructed two houses on the property. The house constructed next to the division line between the two lots was rented by Greenhaw to George Pilkington whose wife, Myrtie Mae Pilkington, was the daughter of Myra D. Brown. George Pilkin'gton rented the property until 1920 when he purchased from George W. Greenhaw.
In 1934, George Pilkington and wife executed a mortgage of their lot to Home Owners Loan Corporation. This mortgage was foreclosed and title acquired by the corporation in 1939, when the lot was conveyed to D. S. Plummer, another son-in-law of Myra D. Brown. Plummer and wife reconveyed to the corporation in 1941. On January 21, 1943, Home Owners Loan Corporation conveyed the property by warranty deed to appellees, J. G. Shryock and Gladys Shryock.
The Home Owners Loan Corporation had a survey made .of the lot now owned by appellees in 1942 according to the description contained in appellees’ deed, and, which is embraced in the description employed in the warranty deed from Myra D. Brown to George W. Green-haw. Appellee, J. G. Shryock, took possession of the lot in February, 1943, and stretched a line along the south boundary from the stakes set when the 1942 survey was made. In March, 1943, he started removing vegetation and debris from that part of an embankment along his south bundary line which was located within the calls of his deed. This work was stopped at the request of the husband of one of the appellants who resided in the Myra D. Brown home. Appellees then brought this suit to quiet their title to the triangular strip in controversy and to restrain appellants from interfering with their possession.
Appellants filed an answer and cross-complaint in which they claimed title to the" disputed tract by an agreed boundary allegedly marked by a fence along the base of the embankment or terrace which had been accepted as the true boundary by adjoining owners for a period of more than 25 years. Title was also claimed by adverse possession of Myra D. Brown and appellants for more than 30 years. In their cross-complaint appellants sought recovery of damages against appellees for destruction of trees, shrubs, plants and soil erosion preventives on the disputed strip. Home Owners Loan Corporation intervened in the suit in conformity with the covenant of warranty contained in its deed to appellees. The corporation adopted the complaint of appellees and pleaded estoppel of appellants to deny appellees’ title by virtue of the covenant of warranty in the deed of Myra D. Brown to George. W. Greenhaw.
The trial court found the issues in favor of appellees and the intervenor, Home Owners Loan Corporation. A decree was entered quieting appellees’ title to the strip of land in controversy and dismissing the cross-complaint of appellants.
The chain of title to the strip of land in controversy is complete in appellees. Appellants contend, however, that their ancestor, Myra D. Brown, did not intend to convey any portion of the land lying south of the base of the embankment, and that the testimony shows that the boundary between the two lots has been clearly established by mutual consent and acquiescence of the adjoining owners in a dividing line marked by a fence along the base of the embankment for a period of 35 years. Appellants also insist that they have acquired title by the adverse possession of Myra D. Brown for 25 years which was continued by appellants following Mrs. Brown’s death.
In support of these contentions George H. Pilkington, the son-in-law of Myra D. Brown, testified that he rented the property now owned by appellees from George Green-haw from 1910 until 1920 when he purchased the lot and that he resided on the property about 25 years; that prior to the conveyance by Myra D. Brown to George Greenhaw in 1909, a fence marked the dividing line between the lot upon which Mrs. Brown’s residence was located and “the garden spot” on the north, and that this fence was located along the bottom of the terrace or embankment which divided the two lots. He further testified that the fence was maintained by his wife’s mother and, while the line was never discussed, the fence was recognized as the dividing line between their properties while he lived there. He made no claim to any part of the land lying south of this fence and had no intention of buying this strip at the time he purchased the property from Greenhaw. The fence was still there when he left.
D. S. Plummer, the husband of one of appellants, who continued to reside in the home of Myra D. Brown' after her death, testified to the same effect. This witness had known the property for 40 years and stated that Mrs. Brown and her heirs had the “exclusive, uninterrupted, undisputed possession of all that portion of the lot south of the base of the terrace for the past 36 years or more.” He also testified that he had no intention of purchasing any land from the Home Owners Loan Corporation in 1939 that extended south of the base of the terrace between the lots, or to reconvey such land to the corporation in 1941.
George W. Greenhaw testified on behalf of appellees that the “garden spot” was fenced when he purchased the property from Myra D. Brown in 1909. It was necessary to do some excavation to construct the house for Mrs. George Pilkington and he moved dirt from the embankment of the lot on the south side in order to fill in a part of the lot. The embankment was within the boundaries of his fence and he did not completely excavate back to the south line. Myra D. Brown.was there when the lot was either measured or surveyed and witness had no trouble with her about the property line during the period of 11 years that he owned the lot.
Appellee, J. G. Shryock, testified that the house and premises were in a run-down condition when he purchased the lot in 1943. The embankment or slope of the terrace was about six or seven feet from the house on the front, but did not run parallel with the house being only three or four feet from the house at the rear and extending beyond the line of his house and into what would normally be his back yard at the west end of the lot. There were fragments of an old fence embedded in the embankment which was filled with ashes, boards, broken pieces of concrete, tin cans and other rubbish. There were a few shrubs near the line on the front of the embankment, but these were not on his property. The slope of the embankment extended about 1 y2 feet on his lot at the front and about 12 feet at the back, according to the survey and from the description contained in mesne conveyances from Myra D. Brown to appellees. Before beginning improvements on the south side for a driveway, Shryock took several pictures of the property in dispute which were introduced in evidence. These pictures tend to corroborate his testimony concerning the condition and location of the embankment at that time.
Appellants rely on snch cases as Deidrich v. Simmons, 75 Ark. 400, 87 S. W. 649, and Barnett v. Gentry, 117 Ark. 655, 173 S. W. 424, which hold that the proprietors of adjacent lands may by parole agreement establish an arbitrary division line, or an agreement may be inferred from long continued acquiescence and occupation according to snch line, and they will be bound thereby. Appellants contend that Myra D. Brown had no intention of conveying the property in dispute to George W. Gi’eenhaw in 1909 and that a fence between the two lots ran along the base of-the embankment at that time which established an agreed boundary and has since been recognized by adjacent owners as the true line. The testimony of George W. Greenliaw tends to refute this contention, the effect of his testimony being that the fence was located upon the embankment when he purchased the property from Myra D. Brown and that the narrow strip in dispute was located upon the lot he had purchased and within the bounds of the fence as it was located at that time. The testimony of Shryock and the photographs of the property tend to corroborate Greenhaw’s testimony that the fence ran upon and not at the base of the embankment. This was a sharply disputed question of fact and the testimony on behalf of appellees contradicts the testimony of appellants that an agreed boundary was established at the foot of the embankment. We cannot say that the finding of the chancellor on this issue is against the preponderance of the evidence.
Appellants’ claim of title by adverse possession is subject to the general rule stated in 1 Am. Jur., Adverse Possession, § 47, p. 818: “The occupation of land by a grantor, after conveyance made, is presumed to be under, and in subordination to, the legal title held by his grantee, for he is estopped by his deed from claiming that his holding is adverse.” See, also, Graham v. St. Louis I. M. & S. Ry. Co., 69 Ark. 562, 65 S. W. 1048, 66 S. W. 344; Morgan v. McCuin, 96 Ark. 512, 132 S. W. 459. This presumption is, however, rebuttable and the grantor may hold adversely where his intention to do so is manifested by unequivocal acts of hostility. 1 Am. Jur., p. 819; Turman v. Bell, 54 Ark. 273, 15 S. W. 886, 26 Am. St. Rep. 35; Davis v. Burford, 197 Ark. 965, 125 S. W. 2d 789.
The same general rule is applicable where the claim of adverse possession is predicated on the possession of the parent as against the child. In 2 C. J. S., Adverse Possession, § 109, p. 661, it is said: “As between parties sustaining parental and filial relations, the possession of the land of the one by the other is presumptively permissive or amicable, and, to make sudh a possession adverse, there must be some open assertion of hostile title, other than mere possession, and knowledge thereof brought home to the owner of the land.”
Appellants’ claim of- adverse possession is predicated on the possession of Myra D. Brown as against her daughter and son-in-law for 25 or 30 years. While two sons-in-law of Myra D. Brown testified in general terms that Mrs. Brown had open and exclusive possession of the disputed tract, there is little testimony of actual acts of occupation by Mrs. Brown. The only evidence of such acts other than the alleged maintenance of a fence at the base of the embankment, was the planting of flowers and shrubs on the disputed tract and the placing of concrete blocks on the bank to prevent washing. As against her daughter and son-in-law residing next door these acts on the part of Mrs. Brown might be considered as having been committed for the benefit of both parties and are insufficient to convert a possession that is otherwise permissive and amicable into a clear assertion of hostile title. In DeMers v. Graupner, 186 Ark. 214, 53 S. W. 2d 8, this court held (headnote 2): “Evidence showing that an adjoining landowner mowed the grass on a small strip adjoining defendant’s fence held insufficient to establish adverse possession where there was nothing to bring home to defendant the knowledge that plaintiff was intending to divest defendant of title by adverse occupancy”
Due. to the relationship of the adverse claimants and the adjoining owners in the instant case, appellants were required to sustain their proof of adverse possession by stronger evidence than is required ■ in ordinary cases involving the question. 1 Am. Jur. p. 819. The trial court found the proof offered by appellants on this issue insufficient to manifest an intention on the part of Myra D. Brown to hold the property in dispute adversely to tte adjacent owners, and we are unable to say that this finding is against the preponderance of the testimony.
The decree is accordingly affirmed. | [
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Smith, J.
Appellant filed suit for a divorce from his wife and prayed that he be awarded the custody of their minor child. The wife filed an answer denying that appellant was entitled to a divorce, and praying that she be granted a divorce and be awarded the custody of the child, and that provisions for her support and that of the child be made.
Appellant’s complaint was dismissed and appellee was given a divorce, and was awarded the custody of the child, and it was ordered that appellant pay appellee for her support, and that of the child, the sum of $40 per month, to be paid semi-monthly. This decree was rendered March 24,1941.
Appellant made only partial payments, and was cited to show cause why he had not complied with the order of the court. Appellant responded with a petition praying that the order be modified inasmuch as appellee had married subsequent to the rendition of the decree. She had remarried in September, 1941, and became Mrs. Clem Townley. Appellant has also remarried. The decree was so modified as to require appellant to pay only $20 per month,' and this for the support of the child, but a judgment was rendered against him for $323.50 for arrearage in payments.
Appellant was inducted into the army on October 3, 1942, and ordered an allotment of $42 per month to be paid to appellee for the benefit of their child pursuant to army regulations presently to be discussed. These payments' of $42 per month were made as directed, until appellant was honorably discharged from the army at which time the' allotment payments ceased, and no further payments were made by the government, nor has appellant made any subsequent payments..
After his discharge from the army appellant was again cited to show cause why he had not made the payments directed in the amended decree, and .he filed a response in which he alleged that the payments had not only been made, but that there had been an overpayment which sufficed to meet the payments which had accrued after appellant was dis char ge d ‘ f r o m the army.
After a hearing on the citation the court entered a decree from which is this appeal to the following effect : “That the total payments due to be paid from the date of the original decree is in the amount of $1,230 and that plaintiff owes for maintenance for said baby as of May 1, 1946 (the date of the final decree), a balance of $316, together with the cost of this action, and that the $20 per month maintenance for said child shall continue as per the order of November 3, 1941.”
Appellant’s insistence is that inasmuch as the government allotment of $42 per month, if he is allowed credit for the entire amount thereof, would suffice to pay all arrearages and to pay the $20 per month allowance fixed by the court, up to and even beyond the date of the trial, and that therefore he owed nothing at the time of the trial of the cause in the court below, and was not in default.
The government allotment ceased in November, 1945, as appellant was discharged from the army November 30, 1945. Since that date appellant has made no pay-’ ments, but he insists that if given credit for the full amount of the government allotment paid appellee for the benefit of the child, he owed nothing at the time of the trial. Whether this is true or not is the controlling question in the case.
Title 37 of. the U. S. O. A. deals with the pay of enlisted men, and that of the government allotments to their dependents. Section 201 of this title provides that : “The dependent or dependents of any enlisted man in the Army of the United States, the United States Navy, the Marine Corps, or the Coast Guard, including any and all retired and reserve components of such services, shall be entitled to receive a monthly family allowance for any period during which such enlisted man is in the active military or naval service of the United States on or after June 1,1942, (1) during the existence of any war declared by Congress and the six months immediately following the termination of any such war . . . ”
Section 202 of-the title reads as follows: “The monthly family allowance payable under this chapter to the dependent or dependents of any such enlisted mart shall consist of the Government’s contribution to such allowance and the reduction in or charge to the pay of such enlisted man, except as to the initial family allowance provided by § 207 (a) of this title.”
Section 203 of this title divides the dependents into three groups and provides that: “The class A dependents of any such enlisted man shall include any person who is the wife, the child, or the former wife divorced of any such enlisted man.” We presume the divorced wife referred to is one who has a claim for support under the divorce decree, but appellee is not such a person, and she is suing here only fór the benefit of the child for whose support the decree ordered the appellant to pay $20' per month.
Section 205 of the title provides that: “To class A dependent or dependents: A wife but no child, $50; a • wife and one child, $80, with an additional $20 for each additional child; a. child but no wife, $42, . . . ”, which is the case here.
Section 206 of the title states: “For any month for which a monthly allowance is paid under this chapter to the dependent or dependents of any such enlisted man the monthly pay of such enlisted man shall be reduced by, or charged with, the amount of $22, and shall be reduced by, or charged with, an additional amount of $5, if the dependents to whom such allowance is payable include more than one class of dependents.” This $5 provision has no application here as there is only one dependent.
These government allotments were not intended to increase the pay of enlisted men, but to make provision for the support of their dependents while in the armed services. Twenty dollars of this allotment was allowed for the dependent child, but $22 of this allotment was deducted from the- pay which would otherwise have been paid to the soldier himself. While in the service the soldier’s earning capacity ceased, except for the payments made to him by the government, and from this pay the government deducted $22 per month, and this deduction continued during the entire period of appellant’s service, which was three years, one month, and five days, and this deduction of $22 was in addition to the $20 monthly allotment to the child made by the government,
A witness who as a personnel officer in the army was familiar with the applicable statutes, differentiated between the allotments to the enlisted man’s dependents which are designated as allotments “E” and “F,” the latter being the allotment which the soldier makes, as in this case, the first being the allotment where the soldier has made no designation. But it would confuse, and not clarify the question presented to discuss these differences. Payments here by the government were made under allotment “F,” at the direction of appellant when he was inducted into the service, and were made pursuant to the statutes from which we have quoted.
The allotment payments totaling $42 per month were not made under the divorce decree, but they were made ■ nevertheless, and appellant should have credit therefor. They were made during the entire period of appellant’s service in the army, and were in an amount sufficient to discharge his obligation to pay up to the time of his discharge from the army, so that he owed nothing when he was discharged from the army. But the obligation to pay $20 per month for the support of his child did not cease upon his discharge from the army. That obligation continued and now exists, and he should be charged with that amount since the date of his discharge. No allotment payments were made after November, 1945, and appéllant should be charged with his child’s support as provided in the decree, from that date.
The decree from which is this appeal rendered judgment against appellant for payments maturing up to May 1, 1946, and that amount was adjudged to be $316. This amount is excessive, as appellant should have been charged only from the date of his discharge, which was November 30,1945, to the date fixed by the decree which was May 1, 1946, a period of five months, making a balance then due of only $100, and the decree is accordingly modified, ■ •
Inasmuch as subsequent payments have since matured and may not have been paid, the decree will be reversed and the cause remanded for further proceedings not inconsistent with this opinion. | [
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Holt, J.
This litigation grew out of a dispute of a boundary line.
In 1922, Mrs. Fannie Felheimer owned lot 7, block 66, in the City of Hot Springs, and appellee, Pythian Bath House, Inc., owned an adjoining lot, No. 5, in this same block, both lots fronting on Cottage Street. In this same year, 1922, the Pythians, owners of lot 5, built a four-story brick building on their lot and, in so doing, erected their brick wall from approximately a foot to eighteeen inches over on lot 7, and this wall has remained, and claimed to be, the property dividing line between these two lots since its erection more than 24 years ago, and appears never to have been questioned by Mrs. Felheimer, her daughter, Mrs. Mendel, or any one else, until the present suit was filed by appellants May 16, 1946.
Appellants acquired lot 7 about two years before this suit from Mrs. Mendel, Mrs. Felheimer’s daughter, and sold the Pythians 25 feet of this lot (then vacant) adjoining lot 5, for $1,000. The Pythians have erected the walls of a new two-story brick annex on the 25 feet purchased from appellants, and, in so doing, appellants alleged that appellees have encroached, from four to six inches, on the remainder of lot 7, which appellants own. Appellants brought this suit to force appellees to move their brick wall back approximately six inches. Their prayer was that appellees be enjoined from encroaching upon their property and “that an order issue from this Court requiring the defendants to remove from plaintiffs’ lot so much of their construction as presently encroaches thereon” and for all other equitable relief. From a decree denying the relief prayed comes this appeal.
The testimony of appellants’ witnesses, M. D. Alford and L. R. Plenimons, the assistant city engineer, and city engineer, respectively, of Hot Springs, was to the effect that upon a survey by them' of the property in question the wall of the old four-story Pythian building, erected in 1922, is over on lot 7 from a foot to a foot and one-half, and that the new two-story brick annex, when measured from a point approximately a foot and a half inside the old building wall, is approximately four inches over on appellants ’ land on Cottage Street. They further testified in effect that when twenty-five feet is measured from the old wall which has stood for almost twenty-four years, it shows that the new annex building of appellee is entirely on appellee’s lot and lacks a foot or more of reaching the division liné between appellee and appellants.
The evidence further shows, as above indicated, that at the time the old four-story brick wall was built by the Pythians in 1922, Mrs. Felheimer, who then owned lot 7, made no objection to the location of the wall, and thereafter both Mrs. Felheimer and her daughter, Mrs. Mendel, (who acquired the property at her mother’s death) for a period of seven years — in fact, more than twenty-four years — stood by, and made no objections to this wall as being the dividing line between lots 5 and 7.
In these circumstances, the rule appears to be well established that appellants’ predecessors in title, Mrs. Felheimer and her daughter, Mrs. Mendel, by their acquiescence in the property line as established by the old wall for seven years, and occupation according to sucb line, were bound thereby as also were appellants, their grantees. This court in Deidrich v. Simmons, 75 Ark. 400, 87 S. W. 649, said: “The proprietors of adjacent lands may by parol agreement establish an arbitrary division line, or an agreement may be inferred from long continued acquiescence and occupation according to such line, and they will be bound thereby. Cox v. Daugherty, 62 Ark. 629, 36 S. W. 184; Jordan v. Deaton, 23 Ark. 704; 5 Cyc., pp. 930, 935; Pittsburgh Iron Co. v. Lake Superior Iron Co., 118 Mich. 109, 76 N. W. 395; Jones v. Pashby, 67 Mich. 459, 35 N. W. 152, 11 Am. St. Rep. 589; Burris v. Fitch, 76 Cal. 395; Atchison v. Pease, 96 Mo. 566, 10 S. W. 159; Bloomington v. Bloomington Cem. Assn., 126 Ill. 221, 18 N. E. 298; Clayton v. Feig, 179 Ill. 534, 54 N. E. 149; Edwards v. Smith, 71 Tex. 156.” See, also, Furlow v. Dunn, Admx., 201 Ark. 23, 144 S. W. 2d 31.
Finding no error, the decree is affirmed. | [
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Minor W. Millwee, Justice.
Appellant, Southwestern States Telephone Company, filed this action in the justice of the peace court of Demun township, Randolph county, Arkansas, on September 19, 1944, to recover $72.49 from appellee, Tom Bigger. The complaint alleged this amount to be due for exchange service furnished appellee in the use of a telephone in his store at Biggers, Arkansas, from January 1, 1942, to July 31, 1944. Trial in justice court on October 6, 1944, resulted in a judgment for appellee. The cause was appealed to circuit court where judgment was again rendered in favor of appellee on May 18, 1946. This appeal is prosecuted from the circuit court judgment.
The circuit court judgment recites that the cause was submitted to the court, sitting as a jury, upon the pleadings and stipulation of facts submitted by counsel for the respective parties. There is a stipulation of facts in the record which was filed with the clerk on July 25, 1945. It appears from this stipulation that appellee’s defense to the action was based upon his contention that he was entitled to free exchange service which he and Ms father had received in connection with the use of the telephone in question since 1903. TMs alleged right to free service was involved in several conveyances of the telephone system. The stipulation mentions a conveyance of the system from Ozark Telephone Company to Charles M. Conway and recites that a copy of this instrument is marked ‘‘ Exhibit C” and made a part of the stipulation, but no such exhibit is found in the record. There is no bill of exceptions in the record and the stipulation of facts filed by the clerk is not incorporated in the judgment, or otherwise authenticated by the trial court. We are at the outset, therefore, confronted with the question whether this stipulation * of facts can be considered as a part of the record.
The state of the record in the instant case is almost identical with that involved in the case of Coonrod v. Anderson, 55 Ark. 354, 18 S. W. 373, where the court followed the rule announced in the early case of Lawson v. Hayden, 13 Ark. 316, as follows: “An agreed statement of facts, signed by the counsel of the parties, filed in the cause, and the filing noted of record, does not thereby become part of the record, not being made so by bill of exceptions or order of the court; and the court below, sitting as a jury, having determined the case upon such agreed statement, and it not having been made part of the record, this court will not look into it for the purpose of reviewing the decision, but the presumption of law being in favor of the correctness of the judgment of the court below, will affirm it. ”
This rule has been adhered to in many subsequent cases. Chief Justice McCulloch, speaking for the court in First National Bank of Fort Smith v. Thompson, Administrator, 124 Ark. 161, 186 S. W. 826, said: “The case was tried below on an agreed statement of facts, which was merely filed with the clerk and referred to in the judgment of the court, but is not brought in the record by a bill of exceptions. Therefore we cannot consider it on this appeal. Coonrod v. Anderson, 55 Ark. 354, 18 S. W. 373. The mere reference in the judgment entry to the agreed statement of facts does not make it a part of the record when the case is brought here for review, and in order to bring it upon the record it must be in the bill of exceptions or must appear, in full of the record entry of the judgment. ’ ’ Other cases to the same effect are, Ashley v. Stoddard, Jr. & Co., 26 Ark. 653; Boyd v. Carroll, 30 Ark. 527; Kinnanne v. State, 106 Ark. 280, 153 S. W. 583; Satterfield v. Loupe, 160 Ark. 226, 254 S. W. 489; Great Southern Fraternal Union v. Stroud, 169 Ark. 509, 275 S. W. 753. The rule has been changed by statute (Act 196 of 1945) in equity cases, but is still applicable in cases at law, and was reaffirmed in the recent case of Royal v. State, ante, p. 141, 199 S. W. 2d 744.
There is also found in the transcript a “Statement by the Court on Rendering Judgment” which was filed by the clerk. Conceding, without' deciding, that this statement was properly brought into the record, the judgment of the court is not inconsistent with such findings of fact as are made in this statement by the trial court.
Since the’ stipulation of facts' upon which the case was tried has not been properly brought into the record, we cannot consider it on this appeal and must assume the correctness of the judgment of the trial court.
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McHaney, Justice.
This action was brought by appellant in the Circuit Court in ejectment to recover the possession of lots 1 and 2, block 15 of E. J. Waters Addition to Pine Bluff, and in the alternative to recover betterments.' On the motion of appellee and by consent the cause was transferred to the Chancery Court, where an amended complaint was filed alleging that appellant acquired the title to said lots by deed from the State to J. M. Shaw, one of her attorneys, on July 1, 1936, and by deed from Shaw to her and her then husband, Sam Dedmon, on July 6, 1936, and by deed to her from her former husband, Sam Dedmon, on May 1, 1942, from whom she had been divorced. She also alleged that after thus acquiring the title to said lots she made improve.ments thereon to the extent of $1,000; that Sam permitted the appellee who is his daughter by a former wife, which former wife died intestate prior to appellant’s marriage to Sam, to live with them on said lots as a member of the family; that he then began to be cruel to appellant, ran her off, leaving Sam and appellee in possession, and finally Sam left, leaving appellee in possession of the property which she refuses to surrender to her. The prayer was for p'ossession andvrent, but in the alternative for the reasonable value of the improvements.
. Appellee answered with a general denial. She alleged also that she is the owner of said lots, first, because she secured a deed thereto from Sewer and Water District No. 6 of Jefferson County on October 29, 1945; and, second, that she and the four other heirs at law of their mother, Mattie Simmons Dedmon, inherited said property from their mother who died intestate in 1930, and who had inherited same from her father, Abner Simmons, and who was the owner thereof at her death. She further alleged that Sam Dedmon, her father, was living with her mother at the time she died, and that he permitted said property to forfeit and sell to the State for the taxes at a time when he was living thereon with her and his four other minor children, and that the purchase by Shaw from the State and the conveyance by Shaw to Sam and appellant amounted to a redemption from the tax sale only and conveyed no title, and that appellant well knew that the forfeiture and sale to the State and its purchase from the State were designed to defeat appellee and her brothers and sisters in their title to said property.
Trial resulted in a decree dismissing appellant’s complaint for want of equity. The court found that appellee and her four brothers and sisters inherited the property from their mother on her death in 1930; that Sam Dedmon permitted the property to. forfeit for taxes (in 1932 for the 1931 taxes) at a time when he was living on said property with said children; that the deed from the State to Shaw and his deed to appellant and Sam ' Dedmon “was merely a redemption from tax forfeiture and amounted to only payment of the taxes by Sam Dedmon, who had the duty to pay such taxes, being in possession at the time in question and receiving the benefits therefrom; that such redemption gave Sam and Eula Dedmon no color Qf title at all — and that any subsequent deed from Sam Dedmon to Eula Dedmon passed no title to the property;” that on October 29, 1945, áppellee secured a 'deed from Sewer and Water District No. 6, which had acquired it under foreclosure for nonpayment of assessments due it; and that the betterments claimed to have been made to the property by appellant were not made by her, but by Sam Dedmon. This appeal followed.
We think the court correctly held that the deed from the State to Mr. Shaw and his deed to appellant and Sam Dedmon, amounted to a redemption from the 1932 tax sale to the State for the 1931 taxes, and therefore conveyed no title to either or both of them. The parties are all Negroes. At the time of the forfeiture and sale to the State, Sam Dedmon and his five children were living in the house on these lots. On the death of his first -wife Mattie who had inherited the property from her father, the title thereto passed to her children by Sam, subject to his curtesy interest therein, if any. At least he was the natural guardian of his minor children. He was occupying the property, receiving all the benefits therefrom .and it was his duty to pay the taxes. ¡Being under this duty, a court of equity would not permit him to profit by his own wrong by acquiring title to his own children’s property. The fact that he had the deed from Mr. Shaw so drawn as to include appellant as one of the grantees and his deed to her in 1942 do not vest her with any title based on said tax sale, since the whole transaction was merely a redemption.
We think it was Sam Dedmon’s duty to pay the taxes under § 13808 of Pope’s Digest, as construed in Smith v. Davis, 200 Ark. 547, 140 S. W. 2d 126. This case also points out the distinction between it and Wilkins v. Maggard, 190 Ark. 532, 79 S. W. 2d 1003, relied on by appellant here, in that one Turner, son-in-law of Davis, was not a bona fide purchaser of the tax title from the State of Arkansas; but his deed from the State was merely a redemption thereof for his father-in-law, Bob Davis who was the life tenant, whereas, in the Wilkins v. Maggard case, the tax purchaser was a bona fide one. So, here, the tax purchaser, Sam Dedmon, was not a purchaser at all, but simply took a circuitous route to redeem the property.
As to the betterments claimed by appellant, the court .correctly denied same because the improvements she claims to have made were not made under color of title as required by § 4658 of Pope’s Digest. Neither the deed from Shaw to her and Sam nor his deed to her based on said forfeiture and sale to the State, constituted color of title. On this point appellant again relies on Wilkins v. Maggard, supra, but, as we said in Smith v. Davis, supra, “the statute invoked by appellant and construed in the case of Wilkins v. Maggard (§ 10120, C. & M. Digest, now § 13884 of Pope’s) has no application to one who has redeemed tax forfeited land from the State,” and, therefore, appellant is not protected by the terms of that statute.
Moreover, it appears to us, as it did to the trial court, that the deed of Sewer and Water District No. 6 of Jefferson County to appellee, of October 29,1945, title to said lots having been previously acquired by said District by foreclosure sale in the Chancery Court for delinquent assessments for the years 1934 to 1940, inclusive, and for 1942 and 1943- due to said District, conveyed as against appellant a good title to appellee free of all claims of appellant. No question is raised about the regularity or validity of the foreclosure sale, or of the District’s title and right to convey to appellee. The consideration paid by appellee, as expressed in the deed, is $284.40. As between appellee and her co-tenants, brothers and sisters, not parties to this action, no question is presented.
The decree is, accordingly, affirmed. . | [
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Robins, J.
Appellant, charged by information with having committed murder in the first degree by striking and beating E. A. Sides with a bottle, was by a trial jury found guilty of voluntary manslaughter and his punishment fixed at imprisonment in the penitentiary for seven years. From a judgment imposing sentence in accordance with the verdict he has appealed.
For reversal it is first urged by appellant that the evidence was insufficient to establish that Sides died as a result of a blow inflicted by appellant.
The evidence tended to show that a group of negroes were gambling with dice on a sandbar or island in the Mississippi River when Sides and two other white men came up. Sides took part in the game and became angered at the manner in which some of the participants were' handling the dice. Sides threatened violence, and appellant, who was standing by Sides at the time, but not playing, said “white folks, you won’t hit me.” Sides then pushed appellant, who pushed Sides, and Sides then slapped appellant. Appellant, who was left-handed, thereupon drew a “soda-water” bottle from his rear pocket and struck Sides on the right temple with the bottle. The blow staggered Sides, but he did not fall. He remained around the locality of the dice game for some time. He finally got someone to row him across the river and he was found unconscious on the river bank by searchers early the following morning. He died shortly thereafter. .
The undertaker who’handled Sides’ body testified that there was a post-mortem examination which revealed a fracture and indentation of. the skull on the side of Sides’ head.
The difficulty occurred on June 19, 1938, but appellant was not found by the officers until shortly before the trial which occurred on February 18, 1947. He was arrested in Chicago, where he had gone soon after the difficulty. He had assumed the name of “Will Jones,” and denied his identity when first arrested.
In the case of Outler v. State, 154 Ark. 598, 243 S. W. 851, the evidence showed that on the night of December 24,1921, Outler struck Blackburn on the head with a gun and that Blackburn walked-out of the house where the difficulty occurred, went home and died early the following morning. There was no medical testimony to show the cause of Blackburn’s death. This court, holding that the testimony was sufficient to justify the jury’s finding that the blow inflicted by Outler caused Blackburn’s death, sustained a conviction of murder in the first degree. Chief Justice McCulloch, in that case, said:
“There is nothing, however, in the record to show that there was any other cause for the death which resulted so soon after the infliction of the blow, and the jury were authorized, we think, in drawing the inference, even in the absence of direct proof on the subject, that death resulted from the blow.” We cited and followed this holding in the Outler case in the recent case of Jackson v. State, 206 Ark. 611, 176 S. W. 2d 909.
In the case at bar it was shown that Sides, a strong, healthy man, received a blow, inflicted with a bottle, on his right temple. The blow staggered him. In less than twenty-four hours from the time he was struck he was found in an unconscious condition with a fracture and indentation in his skull. He died shortly thereafter. No other cause of his death was suggested, and appellant admitted that he was going under an assumed name because he had been told that lie had killed a white man Under all these circumstances the jury had a right to infer that the blow inflicted by appellant caused the death of Sides.
It is next urged by appellant that error prejudicial to him was committed by the court in not granting a mistrial because of questions by the prosecuting attorney as to appellant’s flight, as to his assumption of an alias in Chicago and as to the employment of his counsel by a civic organization. The objection of appellant to the question as to employment of appellant’s attorney was sustained by the court, and other questions were made harmless by the answers. We do not find any such abuse of discretion by the lower court in denying a mistrial as would call for a reversal by us.
It is finally argued by appellant that the lower court erred in telling the jury that appellant would be eligible to apply for parole after he had served one-third of his sentence. This statement was made by the court in answer to an inquiry from the jury while they were deliberating. The court correctly answered the jury’s query, and committed no error in doing so. Jones v. State, 161 Ark. 242, 255 S. W. 876.
The judgment of the lower court is affirmed. | [
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Minor W. Miklwee, Justice.
Appellant, Robert Granison, filed suit in the St. Francis Chancery Court on October 23,1945, alleging that appellees, W. L. Moretz and Gladys Riley, had falsely and fraudulently represented to him that they were the owners of the SW1^ of NE14 and SE14 of NW14 of section 20, township 6 N, range 2 east, in St. Francis county and had executed and delivered their separate deeds to appellant for the two 40-acre tracts for $341.
The complaint alleged; “That the claim of title by such defendants was fraudulent which fraud was perpetrated by bogus representations, and instruments in writing known by these defendants to be bogus and which could not reasonably have been so known to the plaintiff, to-wit:
“These .defendants, Moretz and Riley, fraudulently represented to the plaintiff that the deceased owner, C. J. Ochse, was a relative of them, died at their home in Cross county and had executed to them a will to said real estate; that said W. L. Moretz, claiming to be a lawyer, represented to this plaintiff that he had examined the will, orders of probate and tax redemptions and found them to be sufficient to convey a good and sufficient title to them; that plaintiff relied upon such statements, representations and evidences of title and paid to these defendants said $341 when in fact and in truth such evidences were fraudulent and of no account except as a foundation to perpetrate such fraud.”
It was further alleged that the will of C. J. Ochse was void and that Mayo Riley, a minor and daughter of appellee, Gladys Riley, took no interest under the will, or if she did, that such interest was never legally conveyed by the proceedings in probate. The written instruments alleged to-be spurious were: (1) the will of C. J. Ochse; (2) the deeds from appellees Moretz and Gladys Riley to appellant; and (3) certain tax redemption certificates issued to O. J. Ochse and Gladys Riley. .
The complaint prayed: (1) that the will of 0. J. Ochse be brought into court and cancelled; or (2) if the will be found valid, that an erroneous description of one 40-acre tract therein be corrected and a trustee ordered to sell, and appellees, W. L. Moretz and Gladys Riley, ordered to pay up to $341 for the property; (3) that appellant’s title to the lands be confirmed; (4) that by way of further alternative relief appellant have judgment against appellees, Moretz and Gladys Riley for $341.
On November 22, 1945, appellees filed their demurrer alleging that the complaint did not state facts sufficient to constitute a cause of action against them. This demurrer was not acted upon until after appellant had taken proof in the form of depositions on December 28, 1945. The cause was heard by the chancellor on February 25, 1946, when appellees filed what is denominated ‘ ‘ a demurrer to the evidence, ’ ’ pursuant to the provision of Act 257 of 1945. It was alleged in this pleading that the proof on behalf of appellant was insufficient to constitute a cause of action against appellees. The trial court sustained both the “demurrer to the evidence” and the demurrer which had previously been filed in the case, and appellant declining to plead further, the complaint was dismissed.
The exhibits attached to the deposition of appellant .tend to show that the will of C. J. Ochse was filed in the office of the county clerk of Cross county on May 20, 1941, and thereafter duly admitted to probate. The will devised certain lands in both Cross and St. Francis counties to several persons including a niece of the testator who resided in California. Two 40-acre tracts in St. Francis county were devised to Mayo Riley, the minor daughter of appellee, Gladys Riley. One of these tracts, SW% of NE14 of séc. 20, T. 6 north, R. 2 east, was sold by order of the Probate Court on July 15, 1942, and appellee, W. L. Moretz, became the purchaser for $300.
In 1943, appellee, Gladys Riley, redeemed the SE*4 of NW% of sec. 20-, T. 6 north, range 2 east, by payment of the delinquent taxes for the years 1940-, 1941 and 1942. This 40-acre tract was not described in the will of C. J. Ochse, but had been redeemed by him in 1937 for the 1934 delinquent taxes along with the SW^ of the NE% purchased by Moretz. On April 7, 1945, Gladys Riley executed her quitclaim deed to appellant to the tract redeemed by her for $41. Appellee, W. L. Moretz, on the same date likewise conveyed to appellant the 40 acres purchased by him at the probate sale for $300.
Prior to the institution of the present suit, appellant intervened in the proceedings had in the estate of C. J. Ochse, deceased, in the St. Francis Probate Court. He •filed a motion to correct the record in those proceedings and his exceptions to the report of sale of the 40-acre tract to appellee, W. L. Moretz. After a hearing on appellant’s intervention, the Probate Court dismissed the proceedings and no appeal was taken from this order.
Appellant testified that he moved on the land at the time he purchased it from appellees on April 7,1945. He could “scarcely” read and write. At the time of the purchase appellees gave him the three tax redemption certificates which had been issued to C. J. Ochse and Gladys Riley. When asked what these certificates were given to him for, appellant answered, “to show for the land that I was moving on.” Appellees also told appellant that one of the 40-acre tracts had been left to the Riley child and he was informed of the proceeding in probate court and the sale to Moretz. Appellee's told him to go ahead and move and they would give him a deed that would be all right. On cross-examination, appellant testified that he had been in possession of the land for four years under claim of ownership and had farmed and paid taxes on the land each year.
Two other witnesses testified on behalf of appellant that they were acquainted with the handwriting of C. J. Ochse and that the will did not appear to be in his handwriting.
Appellant is not interested in the estate of 0. J. Ochse, deceased, either as heir, legatee, devisee or judgment creditor. The will of C. J. Ochse appears to have been duly admitted to probate in common form and its validity was attested to by the two subscribing witnesses. There has been no appeal from the order admitting the will to probate, and it seems to be conceded by appellant that he has no right to contest or reform the will in the instant suit.' However, it is earnestly insisted that he should recover the purchase price of $341 because of fraudulent misrepresentations made by appellees, W. L. Moretz and Gladys Riley, and that the trial court erred in refusing to grant such relief.
Ordinarily a grantee under a deed without covenants of title has no recourse against his grantor upon a failure of title. There is, however, one exception to this general rule, and that arises where fraud has been practiced upon the purchaser. The rule is stated in Fernanzo v. Tedford, 186 Ark. 586, 54 S. W. 2d 700, as follows: “The rule is, as between vendor and vendee, in a conveyance by quitclaim deed, although the vendor makes no covenants which cover a defect in the title, the purchase money can be recovered by the vendee in case the vendor practiced fraud or its legal equivalent upon the vendee. Tune v. Rector, 21 Ark. 283; Diggs v. Kirby, 40 Ark. 420.” See, also, 55 Am. Jur., Vendor and Purchaser, § 330.
We think the chancellor correctly held the evidence offered by appellant insufficient to show fraud practiced upon him by appellees, W. L. Moretz and Gladys Riley, in the execution of the quitclaim deeds. There was no evidence to support the allegation that appellees, Moretz and Gladys Riley, represented to appellant that C. J. Ochse was their relative and that he had devised the lands to them. On the contrary, appellant testified that appellees informed him that one of the 40-acre tracts belonged to the minor, Mayo Riley, and he was told of the proceedings in the probate court relative to this tract. There was no evidence that Moretz posed as an attorney and represented to appellant that he had examined the record title to the lands. The tax redemption certificates issued to O. J. Ochse and Gladys Riley were given to appellant and'he was told what they were. There is no indication that these certificates were spurious or that appellees misrepresented them to appellant. The evidence of appellant was, therefore, insufficient to establish fraud on the part of appellees, Moretz and Gladys Riley. ' i ’
Appellant also contends that the trial court erred in sustaining the demurrer to his complaint after the proof was taken. We agree with appellant that, under these circumstances, the pleadings should be treated as amended to conform to the proof in the case. But, when this is done, the pleadings are still insufficient to constitute a cause of action for cancellation of the deeds and recovery of the purchase price, for the reason that appellant has never surrendered, or offered to surrender, possession of the property to appellees. A purchaser in possession of lands cannot rescind and recover the purchase money on the ground of defects in the vendor’s title without restoring or offering to restore possession. 55 Am. Jur., Vendor and Purchaser, § 607. While appellant asked for return of the purchase price, he did not offer in his complaint to surrender possession of the ■ property. Nor was there any offer to surrender posses sion made in the proof so that the pleadings might be treated as conforming thereto.
In support of his contention that he was not required to surrender possession or offer to return the property, appellant relies on the case of Held v. Mansur, 181 Ark. 876, 28 S. W. 2d 704, where it is said: “A person who has been induced to enter into a contract for the purchase of property by the false répresentations of the vendor concerning its quantity or quality may, at his election, pursue one of three remedies. First, he may cancel 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. In the second place, he may elect to retain the property and sue for the damages he has sustained by reason of the false representations of the vendor as to the' land; and in this event the measure of the damages would be the difference between the real value of the property in its true condition and the price at which he purchased it. In the third place, to avoid a circuity of actions and a multiplicity of suits, he may plead such damages in an action for the purchase money, and is entitled to have the same recouped against 'the sum he had paid for the land. Matlock v. Reppy, 47 Ark. 148, 14 S. W. 546; and Danielson v. Skidmore, 125 Ark. 572, 189 S. W. 57.”
The case of Held v. Mansur, supra, was a suit for damages for fraudulent representation of the quality of the lands and the purchaser elected to pursue the second remedy mentioned above by retaining possession and recovering the difference between the real value of the property in its true condition and the purchase price. Appellant does not seek such relief in the instant case, but is seeking recovery of the purchase price as set out in the first remedy. Appellant did not ask that the quitclaim deeds be cancelled in his complaint, nor has he offered a return of the property upon recovery of the purchase money. He seeks equity, but has not offered to do equity. The complaint did not, therefore, state a cause of action and the chancellor correctly sustained the de murrer and dismissed the suit when appellant declined to plead further.
We do not discuss the demurrer to the evidence or the validity of Act 257 of 1945 for the reasons stated in the 'recent case of Kelley v. Northern Ohio Co., 210 Ark. 355, 196 S. W. 2d 235.
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McHaney, Justice.
Appellant, a citizen and taxpayer of the State, brought this action against appellees who are the members of the Board of Trustees of the University of Arkansas to enjoin them from issuing $400,000 of bonds for the purpose of aiding in the con struction of two dormitories on the- campus of the University of Arkansas, as authorized by Act No. 62 of 1947.
The complaint alleged that appellees had adopted plans and specifications for the construction on the campus of the University of two dormitories, one for men and one for women, at a cost of $600,000 each, or a total of $1,200,000; that to finance the cost of construction, they plan to use $800,000 of State funds appropriated for the University by the General Assembly, and to provide $400,000 additional by a' bond issue of that amount payable solely from and secured by a pledge of revenues to accrue from rentals of the rooms of the dormitories to be paid by the students. A copy of a resolution adopted by the Board and hereinafter referred to, evidencing this purpose, was made part of the complaint. It was also alleged that, under Amendment No. 20 to the Constitution, the Board is prohibited from issuing bonds pledging the faith and credit of the State or any of its revenues, with certain exceptions, not material here, except when approved by a vote of the electors at an election; that the revenues from the dormitories to be pledged will be revenues of the State; and that the proposed bonds have not been approved by a vote of the electors, and that, therefore, the bonds will be issued contrary to said amendment and void.
To this complaint a demurrer was interposed, sustained, and, appellant declining to plead further, the complaint was dismissed. This appeal followed.
Section 1 of Act No. 62 of 1947 authorized the Board of Trustees of the University of Arkansas, and also several other educational institutions of the State, “as a public agency of the State of Arkansas to (a) construct buildings or structures which are of the character known as self-liquidating projects in that -they are financed in whole or in part from revenues of the project collected for that purpose — including, but not limited to, dormitories . . . ” The Board is authorized to enter into contracts to borrow all or any part of the funds that it may-determine will be required to finance such projects and to issue notes or bonds “with a specific pledge, for tbe payment of tbe principal and interest thereof, only of the gross tolls, fees, rents,” etc., “to be derived as income from the project; provided, such bonds or notes shall be obligations only of such Board of Trustees, and in no event shall they be considered a debt for which the faith and credit of the State of Arkansas or any of its revenues are pledged.” The members of the Board are exempted from personal liability, except for action “with a corrupt intent.”
Section 2 of said Act relates to the broad powers of the Board in fixing maturities, the form of the bonds, terms of redemption, the rate of interest not to exceed 4 per cent, per annum, agreements as to maintenance of maximum percentage of occupancy of such dormitories, fixing of minimum rates for occupancy to provide for payment of said bonds and interest and other details with this proviso: “provided, no mortgage or other lien shall be executed on any of the lands or buildings belonging to the State of Arkansas.” Power is conferred on the Board “to fix rents, tolls, fees and other charges to be imposed in connection with any such building or service to be thereby furnished and to make and enforce rules and regulations with reference to the use thereof as it may deem desirable for the welfare of the institution or its student body.” Other sections of said Act are not relevant here.
The Legislature, at the same 1947 session, passed Act 377, making an appropriation of $1,000,000 from the University of Arkansas Fund for each of the two fiscal years ending June 30, 1948 and 1949, “For construction and equipment of new buildings, additions, repairs and other permanent improvements, retirement' of bonded indebtedness, labor and other necessary expenses incidental to the above for the benefit of the University and all of its branches.”
The Board, on April 30, 1947, adopted a resolution in conformity with said Act 62, authorizing the issuance and sale of $400,000 of negotiable dormitory revenue bonds at not less than par and accrued interest, to be dated as ne'ar the date of sale as possible, to bear interest at a rate not to exceed 3 per cent, per annum, payable semi-annually, and to mature serially in the years 1948 to 1973 inclusive. It further provided: “The bonds shall be obligations only of the Board of Trustees, payable from and secured solely by a specific pledge of the revenues to be derived from rentals of the rooms of the two dormitories to be paid by the students who occupy them, which shall be plainly recited on the face of the bonds. In no event shall they be considered a debt for which the faith and credit of the State of Arkansas or any of its revenues are pledged, and no mortgage or lien on the dormitories or any lands or buildings belonging to the State shall be given as security, which also shall be plainly recited on the face of the bonds.”
To reverse the decree appellant contends that the issuance of the bonds, as provided in said Act 62 and the resolution of the Board above set out, will be contrary to Amendment No. 20, which provides, with certain exceptions not relevant here, that “the State of. Arkansas shall issue no bonds or other evidence of indebtedness pledging the faith -and credit of the State or any of its revenues for any purpose whatsoever, except by and with the consent of the majority of the qualified electors of the State voting on the question at a general election or at a special election called for that purpose.” Adopted at the November 6, 1934, general election.
It is argued that the bonds proposed to be issued, no matter how worded, will in fact be obligations of the State and will be secured by a pledge of revenues of the State; “that-the effort to justify their issuance under the ‘special fund doctrine’ as revenue bonds from a self-liquidating project is but an effort to evade the direct limitation placed on the issuance of such bonds by Amendment No. 20.”
We cannot agree with this argument. The State will not issue these bonds and the faith and credit of the State will nót be pledgéd. Only the State is prohibited from issuing “bonds or other evidence of indebtedness pledging the faith and credit of the State or any of its revenues,” except by a majority vote of the electors.
The bonds to be issued will bear none of the indicia of State bonds. They will not be executed by any State official and will not bear the Great Seal of State. They will distinctly state on their face that they will be obligations only of the Board of Trustees, shall be payable from and secured solely by a specific pledge of the revenues to be derived from rentals of the rooms in said dormitories to be paid by the students who occupy them, and “in no event shall they be considered a debt for which the faith and credit of the State of Arkansas or any of its revenues are pledged, and no mortgage or lien on the dormitories or any lands or buildings belonging to the State shall be given as security, which shall also be recited on the face of the bonds.” On the contrary, these bonds will be signed in the name of the Board by the Chairman and Secretary of the Board and the seal of the University will be affixed.
Moreover the Board of Trustees is a body politic and corporate, made so by the Act of March 30, 1887. now § 13142 of Pope’s Digest, which provides: “Said board is made a body politic and corporate, and shall have áll the powers of a corporate body, subject to the Constitution and laws of the State of Arkansas, and possess all the power and authority now possessed by the Board of Trustees of said University under existing laws, and shall make and subscribe an affidavit before entering upon their respective duties, to faithfully, diligently and impartially discharge the duties of their office.” Whether this makes the Board a legal entity we do hot determine. Act 62 refers to the Board as “a public agency of the State of Arkansas, ’ ’ and empowers it to issue these bonds in its own name with all the powers, restrictions, and limitations set out in said Act.
In Davis v. Phipps, 191 Ark. 298, 85 S. W. 2d 1020, 100 A. L. R. 1110, it was held that bonds issued by the State Board of Education under Act No. 333 of 1935, which authorized the issuance of bonds to be secured by school district bonds which had been deposited with said Board as security for loans from the revolving loan fund, and which expressly provided that the faith and credit of the State are not pledged, did not violate Amendment No. 20. Also-that the pledge of such school district bonds and .the interest thereon was not a pledge of “revenues” of the State within said Amendment 20. The late Judge Baker for the Court there said: “A bond is a written promise to pay money, and we have said, in the foregoing discussion, that the State is- not issuing these bonds, and it would not be hound for their payment. Therefore these bonds, which the State Board of Education is about to issue, are not within the prohibited class.” And again, it was said: “Finally, it may be suggested that the pledges contemplated by the State Board of Education are not within the forbidden class for another reason; that is, under Amendment No. 20 it would seem that pledges of revenue are forbidden only when such pledges are to secure State bonds. This seems to be in accordance with the language of Amendment No. 20.”
Therefore, it appears to us to be certain that the bonds to be issued by the Board of Trustees are not State bonds and that the faith and credit of the State are not pledged. Not being the obligations of the State of Arkansas, Amendment No. 20 has no application to them • and is not violated, because the prohibition therein relates only to State bonds.
A number of our cases on this and related subjects are cited and relied on by counsel for both parties. In addition to Davis v. Phipps, supra, such as Carpenter v. McLeod, 202 Ark. 359, 150 S. W. 2d 607; Page v. Rodgers, 199 Ark. 307, 134 S. W. 2d 573: State ex rel. v. State Board of Education, 195 Ark. 222, 112 S. W. 2d 18; Jernigan v. Harris, 187 Ark. 705, 62 S. W. 2d 5, and a number of cases citing it; and City of Harrison v. Braswell, 209 Ark. 1094, 194 S. W. 2d 32, 165 A. L. R. 845. To discuss in detail all these cases herein would be a useless task and we refrain from doing so. None of them are exactly in point here, but many of them approve bond issues for which the revenues of the projects are pledged as the sole se- ■ curity therefor.
Our conclusion is that the Board of Trustees, appellees, is not prohibited by Amendment No. 20 from issuing the bonds contemplated and the decree is, accordingly, affirmed. Ah immediate mandate is hereby ordered.
Griffin Smith, O. J., and MoF addin, J., concur. | [
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Holt, J.
Dr. Enoch Howze died testate January 6, 1944. By the terms of his will, the validity of which is in no way questioned, he left all of his property to his widow, appellee here. Dr. Howze and appellee were married in March, 1943. In addition to appellee, two sisters, one of whom is the wife of appellant, Stanley T. Baugh, a Methodist minister, and two brothers survived Dr. Howze. A very close relationship had, for many years, existed between the Baughs and Dr. Howze, and Dr. Howze’s confidence in, and friendship for them, were of the highest order, and on one occasion after Dr. Howze and Mr. and Mrs. Baugh had returned from a vacation trip, which they had made together, Dr. Howze made Mrs. Baugh a present of $5,000.
In July, 1939, Dr. Howze placed in the hands of his brother-in-law, Mr. Bangh, then pastor of a Pine Bluff church, $5,000- with directions that he deposit it to Baugh’s credit in a bank in that city and take care of it. In August of this same year, Dr. Howze gave Mr. Baugb another $5,000 with directions to deposit it in a Pine Bluff bank in the name of Thomas Baugh, one of Mr. Baugh’s children, and take care of it for him, Dr. Howze. Mr. Baugh complied with both requests. At the time this $10,000 was entrusted to Mr. Baugh and deposited in the Pine Bluff bank, nothing was said by Dr. Howze as to its disposition other than the admonition to take care of it.
In the latter part of December, 1940, after Mr. Baugh had moved to a church in Prescott, Mr. Baugh testified that while he and Mrs. Baugh were visiting Dr. Howze, and were in his office: “A. Of course I kept wondering what Doctor Enoch wanted to do with that (meaning the $10,000). So after we moved from Pine Bluff to Prescott, in his office the last of December — I think it must have been right after Christmas — he took us hack in his office again and closed the door to the outer waiting room and he said, ‘I want that ten thousand dollars you hold on deposit in Pine Bluff for my brothers and sisters. I want you to take it out of the bank and put it in a lock box and hold it and deliver it to them at my death.’ . . . And when he said, ‘I give it to you for my brothers and sisters,’ he said, ‘nobody knows a thing about that, but we three,’ and Mrs. Baugh, he and I were standing there. ‘Nobody knows about it but we three,’ and after that he cautioned about that, ‘Nobody knows a thing about this, and nobody is to ever know it but we three.’ ”
Following these instructions from Dr. Howze, Mr. Baugh removed the $10,000 in currency from the Pine Bluff bank, and on December 22, 1941, placed it in a lock box in the Worthen hank, Little Rock. The box was procured in the names of Mr. and Mrs. Baugh.
Following the marriage of appellee and Dr. Howze in March, 1943, Dr. Howze spent several thousand dollars in remodeling and improving Ms residence, and in April, 1943, Dr. Howze, according to the testimony of both Mr. and Mrs. Baugh, asked Mr. Baugh to loan him $1,000 of the $1Q,000 in the lock box and promised to repay it in the fall. Mr. Baugh promptly delivered this $1,000( to Dr. Howze. No note or other evidence of this transaction appears. December 12,1943, Dr. Howze told Mrs. Baugh to have Mr. Baugh get $5,000 additional from the lock box and place it to Dr. Howze’s account in a Malvern bank. Mr. Baugh, without question, immediately complied with this request, no loan being mentioned in connection with this transaction.
After the delivery of the $6,000 to Dr. Howze, there remained in the lock box $4,000, which remained in the box until Dr. Howze died, January 6, 1944, and shortly thereafter Mr. Baugh distributed this $4,000 by giving to each of Dr. Howze’s sisters and two brothers $1,000.
The present action was brought by Dr. Howze’s widow, appellee, against Mr. Stanley Baugh and the other appellants to recover the $4,000 and any other property that appellants might have that belonged to Dr. Howze.
From a decree in favor of appellee, Dr. Howze’s widow, for $4,000 comes this appeal.
The sole question presented, say appellants, “is whether or not Dr. Enoch Howze made a gift to his brothers and sisters of $10,000 in December, 1940, when he instructed Brother Stanley T. Baugh to hold that money for them.” In other’words, was it a valid gift inter vivos?
Appellants earnestly contend that a valid gift was made. It is our view, however, that no gift was effected and that the decree of the trial court must be upheld.
The material facts, which are practically undisputed, are in effect as above detailed.
To constitute a valid gift inter vivos certain essential elements must be present, these include actual deliv ery of the subject-matter of the gift to the donee or to some one as agent or trustee for the donee, with a clear intent to make an immediate present and final gift beyond recall, and at the same time unconditionally releasing all future dominion and control by the donor over the property so delivered.
As we view the record before us, Mr. Baugh was acting as the trusted agent of Dr. Howze in caring for and handling the $10,000' in question, which had been entrusted to his care, was not the agent of the donees, and Dr. Howze never relinquished dominion and control over this money. In fact, all the alleged donees, with the exception of Mrs. Baugh, were kept in ignorance of this alleged gift until after the death of Dr. Howze. That he did not relinquish control and dominion, a necessary requisite to a completed gift, is, we think, clearly evidenced by Dr. ITowze’s actions in demanding, and receiving, as above noted, 60 per cent, of this $10,000 after Mr. Baugh had placed it in a lock box in the Worthen bank, and without any objections on the part of his agent, Mr. Baugh.
In Ragan v. Hill, 72 Ark. 307, 80 S. W. 150, this court in deciding whether a gift had been completed from W. M. Bees to B. C. Bees through delivery and directions to John C. Hill & Son, said: “In Thornton, on Gifts and Advancements, it is said: ‘In all gifts a delivery of the thing given is essential to their validity; for although every other step be taken that is essential to the validity of a gift, if there is no delivery, the gift must fail. Intention cannot supply it; words cannot supply it; actions cannot supply it; it is an indispensable requisite, without which the gift fails, regardless of the consequences. . . . The reason for the rule . . . is obvious; it is based upon ‘grounds of public policy and convenience, and to prevent mistake and imposition.’ Such gifts open the door for fraud and perjury; and as these gifts are usually claimed upon parol evidence, it is difficult to meet and overthrow such claims when the alleged, donor is dead, unless a delivery to the donee is made an absolute and requisite test in determining whether or not a gift was actually consummated — not intended but consummated.’ Thornton on Gifts and Advancements, pp. 105-108, and cases cited.
“In every case a delivery is necessary to constitute a gift. In this case, W. M. Bees loaned the money to John C. Hill & Son. He never parted with dominion over it in his lifetime. It was not delivered to B. G. Bees, or to anyone for him. In the language of witness John C. Hill, “it was to go” to B. G. Bees at the death of W. M. Bees. The directions of the latter (W. M. Bees) in this respect were testamentary in character, and were not effective, because not made and proved as a will.”
See; also, 38 G J. S., Gifts, § 25.
The applicable rule is properly stated in Chambers v. McCreery, 106 Fed. 364, in this language: “A gift inter vivos goes into immediate effect, is absolute and irrevocable, and to render it complete there must be an actual delivery of the subject-matter of the gift — the manner of the delivery being to a great extent governed by the character of the thing delivered — but without such delivery the title does not pass. The effect of the delivery is that the'donor parts, not only with the possession, but with dominion over, and control of, the property so delivered. ’ ’
In 24 Am. Jur., § 30, pp. 747, 748, the text writer on the question of agency said: “While delivery, may be made by an agent of the donor, delivery to the agent is not enough. The gift is not complete until there is an actual delivery to the donee or to someone for him, and until the gift is completed by delivery, the donor may reassert title to the property. Moreover, since the authority of an agent is revoked by the death of his principal, the death of the donor before the actual delivery of the property to the donee terminates the authority of the agent to make such delivery, and works a revocation of the gift”; and in 28 C. J., \ 31, p. 640, we find this language: “While a delivery may be made to a third party in order that the latter may deliver the subject of the gift to the donee as agent of the donor, the gift is not complete until thére is an actual delivery to the donee, and until the gift is completed by delivery the donor can revoke the agent’s authority and resume possession of the gift. As the authority of an agent is revoked by the death of his principal, the death of the donor before the actual delivery of the property to the donee terminates the authority of the agent to make such delivery, and the gift, therefore, fails for want of delivery. So, also, the delivery of property to an agent to be delivered to an intended donee after the donor’s death is not sufficient to sustain a gift inter vivos, and such a disposition is void as being in contravention of the statute of wills.” See, also, 38 C. J. S., Gifts, § 25.
On the question of agency, this court agáin said in Newton v. Snyder, 44 Ark. 42, 51 Am. Rep. 587: ‘ ‘ Delivery to a third person for a donee is as effective as delivery to the donee, but delivery to an agent in the character of an agent for the giver, to perform the act or make the delivery only after the giver’s death, would amount to nothing. (2 Bedf. Wills, chapter 12, §§ 42, 45.)”
As indicated above, the question here simply stated is, do the facts show a gift of the $10,000 to Dr. Howze’s brothers and sisters'? Conceding that Dr. Howze wanted this money to go to his sisters and brothers after his death, still unless he took proper or legal steps to carry out such intention, this court cannot act for him and give legal effect to the donor’s'wishes when the donor himself has failed to comply with the essential requirements necessary to effectuate the gift.
Finding no error, the decree is affirmed.
Bobins and Millwee, JJ., dissent. | [
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McHaney, Justice.
Appellant, as prosecuting attorney for the 6th judicial circuit, brought this action against appellees, who are the State Board of Chiropractic Examiners, to enjoin them from issuing licenses by reciprocity to applicants to practice chiropractic without requiring such applicants to present to them a certificate of ability in the basic sciences issued by the State Board of Examiners in the basic sciences, as, it is contended, is required by the Basic Sciences Act, No. 147 of 1929, §§ 10795 et seq., of Pope’s Digest.
The complaint alleged that appellees “have for many months past, and are now, persistently, intentionally, wrongfully and illegally licensing applicants to engage in the chiropractic practice in the State of Arkansas by reciprocity, without first requiring said applicants to obtain and present to said Board a certificate of ability in the basic sciences — issued by the Arkansas State Board of Examiners in the basic sciences, or without requiring said applicants to obtain a waiver of examination from said Board’of Basie Science Examiners, all in violation of the provisions of Act 147 of 1929.” It also alleged that, unless enjoined, appellees would continue to violate said act in the manner stated. An injunction, both temporary and permanent, was prayed.
To this complaint a general demurrer was interposed and sustained, and, on appellant’s declining to plead further, his complaint was dismissed and he has appealed.
In Stroud v. Crow, 199 Ark. 814, 136 S. W. 2d 1095, we held that the Basic Sciences Act of 1929 applied to persons desiring to engage in chiropractic practice in this State.
A State Board of Chiropractic Examiners was first created by Act No. 126 of 1915, §§ 10771 et seq. of Pope’s Digest. By Act 485 of 1921, the practice of chiropractic was further regulated, §§ 10776 et seq. of the Digest, § 3 of said latter act, § 10778 of the Digest, provides: “The board shall have authority to grant reciprocity with States having equally as high literary professional requirements as provided in this State.”
The Basic Sciences Act of 1929, § 10802 of the Digest, has this provision as to reciprocity: “The State Board of Examiners in the Basic Sciences may in its discretion waive the examination required by § 10801 when proof, satisfactory to the Board, is submitted, showing that the applicant has passed an examination in the basic sciences before a board of examiners in the basic sciences or a board authorized to issue licenses to practice the healing art, in another State, when requirements of that State are, in the opinion of the Board, not less than those provided by this act. The provisions of this section shall apply only to examinations conducted by the boards or officers of States that grant like exemption from examination in the basic sciences to persons granted certificates by the Board.” A further provision exempts persons then legally entitled to practice the healing art:
Other sections of the Basic Sciences Act, §§ 10804 to 10808 both inclusive, make void any basic science certificate and any license to practice the healing art issued contrary to the provisions of said act and fix heavy penalties for practicing the healing art without a basic science certificate, for fraudulently obtaining or attempting to obtain such a certificate, for any person obtaining or attempting to obtain a license to practice the healing art from any board authorized to issue such license without presenting to such board a valid basic science certificate, and § 10808 provides: “Any person who knowingly issues or participates in the issue of a license to practice the healing art or, any branch thereof in (to) any person who has not presented to the licensing board a valid certificate from the State Board of Examiners in the Basic Sciences, or to any person who has presented to such licensing board any snob certificate obtained by dishonesty or fraud, or any forged or counterfeit certificate, shall be fined not more than five hundred dollars, or imprisoned not more than twelve months, or both, in the discretion of the judge.” The enforcement section, 10810, provides: “The State Board of Examiners in the Basic Sciences and the various boards authorized to issue licenses to practice the healing art or any branch thereof shall investigate any supposed violation of this act and report to the proper county attorney all the cases that in the judgment of such board warrant prosecution. Every police officer, sheriff and peace officer shall investigate all supposed violations of this Act and apprehend and arrest all violators thereof. It shall be the duty of the attorney general and of the several county attorneys to prosecute violations of this Act.”
So it is manifest that the Basic Sciences Act provides a plain and adequate remedy at law for the enforcement of its provisions without any necessity of applying to a court of equity'to restrain a'violation of the Act. Assuming without deciding that the State Board of Chiropractic Examiners is in error in licensing by reciprocity applicants from other States to practice chiropractic in this State without first requiring the presentation to it by such applicants of a certificate from the Basic Sciences Board, we think appellant should have pursued the enforcement remedy provided in the Act. Several letters from former Attorneys General and one from the present Attorney General have been appended to appellees’ brief to the effect that the Basic Sciences Act has not taken away from the several examining-boards for the healing arts the right to grant licenses by reciprocity to applicants from other States. Whether these opinions are correct or not, we express no opinion. If correct, appellees have not violated the Act. If incorrect, then the Act prescribes the method of enforcement by prosecution, and there is no necessity of resorting to the extraordinary remedy by injunction. In Smith v. Hamm, 207 Ark. 507, 181 S. W. 2d 475, it was held that, to justify a court of equity to enjoin a nuisance, either public or private, there must be some interference, actual or threatened, to property rights or to civil rights.
It is well settled that equity will not intervene by injunction to restrain acts that are merely criminal, but, as it is said in 28 Am. Jur. 339,, Injunctions, § 150, quoted in Smith v. Hamm, “this does not preclude injunctive relief against the commission of criminal acts which cause irreparable injury to the complainant’s property or pecuniary rights, even though the acts complained of are committed by public officers.” Here there is no allegation that appellant’s property or pecuniary rights are invaded or threatened. It is a simple action to enjoin an alleged violation of the Basic Sciences Act which is made criminal by the Act itself and which prescribes serious penalties by fine and imprisonment for its violation. We do not think the cases of Melton v. Carter, 204 Ark. 595, 164 S. W. 2d 453, and Ritholz v. Ark. State Board of Optometry, 206 Ark. 671, 177 S. W. 2d 410, are controlling here.
Being a suit to enjoin the appellee Board from the alleged violation of the criminal provisions of the Basic Sciences Act, we think the trial court was without jurisdiction and correctly sustained the demurrer to the complaint.
Affirmed.
McFaddin, Justice, not participating. | [
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Smith, J.
The decree from which is this appeal rendered judgment against the Bank of Dover in favor of twelve sureties, upon the bond of J. T. Murphy, as treasurer, and it is now stipulated that the bank has paid these judgments and its appeal from those judgments is dismissed. There remains, however, the appeal of the Hartford Accident & Indemnity Company, hereinafter referred to as Hartford, from the judgment rendered against it in favor of the bank for $2,199.99.
This judgment was the result of litigation, the history of which is as follows: J. T. Murphy was the county treasurer of Pope county, and gave bond as such with the National Surety Corporation of New York, as surety. Reece Caudle and E. C. Bradley and other citizens of Pope county executed an indemnifying bond to the surety company as a condition precedent to that company executing the qualifying official bond of Murphy, who carried his accounts as treasurer with the Bank of Dover and with the Bank of Russellville and the Exchange Bank of Russellville. These banks had all been approved as county depositories for the public funds of that county.
1 Murphy carried three accounts with the Bank- of Dover. One was his personal account, another was his County General Funds account, and the third, his School Fund account.
The master appointed in the decree from which is this appeal, found and reported that Murphy’s official accounts with the Bank of Dover were to be inactive, and that his active accounts as treasurer should be and were ■with the two banks in Russellville, on which banks checks were drawn in disbursing the public funds of his county. It was reported and found by the master that Murphy operated under an agreement whereby he was to keep a deposit of School Funds with the Bank of Dover in the sum of $3,500. The finding of the master that these official accounts with the Bank of Dover were intended to be inactive is sharply Questioned, but we think the testimony supports that finding. ■ A circumstance tending strongly to support the finding is that Murphy’s School account remained constant. The representative of the State Auditorial Department who examined Murphy’s account testified that the cashier of the Bank of Dover told him those accounts were inactive. He further testified that Murphy’s School account remained constant at $3,500 and that the bank furnished’ him with statements of deposits to Murphy’s credit on December 31,1937, of $5,000 and again certified the balance to the credit of that account as of December 31, 1938, was $5,000. This auditor further testified that Murphy’s active accounts as treasurer were kept at the two banks in Russellville.
An audit of Murphy’s accounts was made by the same auditor on April 29,1939, at which time the balance to the credit of the School Fund remained at $3,500, whereas, there was a balance to the credit of the County General Fund in the sum of $696.50 only, and the auditor concluded that Murphy was short to the extent of $4,303.50. This auditor further testified that J. L. Lemley, who was the cashier of the Bank of Dover, admitted-that personal checks of Murphy had been paid out of this account.
A full audit of Murphy’s accounts made by the chief county accountant of the State Auditorial Department showed that Murphy was short in his accounts in the sum
of $3,995.54, for and during the year 1938, and in the sum of $2,126.03 for his term of office beginning January 1, 1939, to the date of his resignation. Murphy committed suicide and Lemley resigned as cashier of the Bank of Dover.
The personal sureties on Murphy’s official bond recognized and admitted their liability, and they proceeded to liquidate it in part in the following manner: One Fay Price, a resident of Dover, was a depositor and stockholder in the Bank of Dover, and an arrangement was made whereby the Governor would be asked to appoint Price to succeed Murphy as treasurer for a small monthly salary to be paid Price, and that Price would apply the commissions and fees paid him as treasurer to the payment of Murphy’s shortage. It was further arranged that Price, as trustee, should borrow from the Exchange Bank of Russellville the sum of $6,121.57 and should execute his note, as trustee, to the bank for that sum. To indemnify Price the sureties on Murphy’s official bond executed their joint note to Price as trustee, for the sum borrowed from the Exchange Bank, and this note was deposited with the Exchange Bank as collateral security for Price’s note to the Exchange Bank.
Three thousand nine hundred ninety-five dollars and fifty-four cents of the proceeds of this note were paid to Caudle, who in turn paid the money to Price, as treasurer, in settlement of Murphy’s shortage for that amount in his 1937 and 1938 accounts. Pursuant to an order of the county court, Price executed a receipt to Caudle in settlement of Murphy’s 1937 and 1938 shortage, and the court order recited that Caudle, who was acting for himself and the other makers of the note to Price, who were all sureties on Murphy’s official bond, should be discharged from further liability to the county for those years.
From the proceeds of his note to the Exchange Bank of Russellville, Price paid the sum of $2,126.03 to E. C. Bradley, one of the makers of the collateral note and a surety on Murphy’s official bond. Bradley, under the order of the county court, paid this sum to Price as treasurer, in satisfaction of Murphy’s shortage, for his unexpired term.
Upon receipt of these payments the county court ordered Price, as treasurer, to execute his official receipt satisfying the claim of the county against the sureties on Murphy’s bond as treasurer, and further ordered that Caudle and Bradley and the other sureties be subrogated to the rights of the county. In making these payments Caudle and Bradley acted for themselves and the other sureties on Murphy’s bond on the faith of whose credit the money had been raised, for the purpose to which it was applied.
Separate suits were brought by Caudle and Bradley against L. J. Lemley, the cashier of the Bank, of Dover during all the time the transactions leáding to Murphy’s shortage occurred, and also against the Bank of Dover, and against the Hartford Accident & Indemnity Company. It is conceded that Hartford had executed to the Bank of Dover on July 27, 1936, a fidelity bond covering Lemley’s conduct of the bank and that this bond formed a continuous contract, continuing until its termination in a manner set out therein, and was in full force and effect during all the happenings herein set out. It was alleged that Lemley, as cashier of the Bank of Dover, had connived and cooperated with Murphy, as treasurer, in converting various sums of money on deposit with the Bank of Dover from Murphy’s credit as treasurer, to the personal account and benefit of Murphy, and that Hartford was liable under its bond for these conversions.
The official audit of Murphy’s accounts developed that most of Murphy’s shortage originated in what the auditor and the master found were Murphy’s inactive accounts with the Bank of Dover, as treasurer, and that Lemley, as cashier, had permitted Murphy, as treasurer, to draw checks upon the inactive accounts by the use of counter checks, rather than official checks, and to deposit the proceeds to his personal account. It was shown that Lemley, as cashier, had falsely certified the balances in the treasurer’s accounts to the State Auditorial Department, and had permitted Murphy, as treasurer, to indorse vouchers payable to Pope county, and to deposit them to Murphy’s personal account and to check out the proceeds thereof, on his personal check for his personal use.
'When these practices, and the shortage resulting from them, were discovered the president of the Bank of Dover wrote Hartford a letter reading as follows:
“BANK OF DOVER
“Dover, Arkansas, May 10, 1939.
“Hartford Accident & Indemnity Co.,
“Hartford, Connecticut.
‘‘ Gentlemen:
“There has been a shortage discovered in the accounts of J. T. Murphy, County Treasurer of Pope County, Arkansas, in the amount of $6,122.54. This is to inform you that the Bank of Dover is being held liable in this matter on account of the fact that there have been irregular activities in the County Treasurer’s account as handled by Mr. Lemley, Cashier, and Mr. Murphy.
“Mr. G. S. Jernigan, State Bank Commissioner of Arkansas, has arranged a meeting with the Board of Directors of the. Bank of Dover Friday morning, May 12th, to go into this matter. This is to advise you of this meeting that you may have a representative to see after your interests as they may appear in connection with Mr. Lemley’s bond.
“Very truly yours,
“John E. Moore, President.”
Hartford did not receive this letter in time to send a representative to the meeting referred to, but Caudle testified that prior to May 10th he notified Hartford’s general agent for this state of this meeting and that one of the attorneys- now representing Hartford did attend the meeting.
On May 13th, Hartford wired the president of the bank as follows: “Under no circumstances if you desire possibility benefit of bond admit any liability, to county as considerable question concerning bank’s liability. Matter has been referred to onr attorney, John A. Sherrill, Little Eock, Arkansas, with instructions to make investigation immediately such investigation to be without prejudice to any of our rights liabilities and defense if any.”
The bank, following this direction, never at any time admitted liability and upon this issue adopted the allegations of the answer filed by Hartford in this suit.
Under date of July 11, 1939, the attorney for the sureties wrote the attorney for Hartford, in which letter the facts were recited as the bases of the claims of the sureties against Hartford being fully stated, and Hartford was advised that suit would be brought if the claim of the sureties to the right of subrogation was not satisfied. It appears that Hartford sent its representative to the Bank of Dover to investigate the claim of liability. This representative admitted that he was afforded every facility for his investigation and that he pursued it with the assistance of Lemley’s successor as cashier. This representative also admitted that he was permitted by the banks of Eussellville where Murphy’s active accounts were kept, to make such investigation as he wished of Murphy’s accounts with those banks. Hartford was thus fully advised of the naturé of the claim against it before suit was filed and appears to have given this .claim a number in the correspondence relating to it.
The facts stated dispose of Hartford’s contention that no claim against it was filed before the institution of the suit, as the bond on which the suit is based required. It may be said, however, that compliance with this requirement was not made a condition precedent before filing suit. However, we think full and sufficient notice of this claim was given. Moreover, Hartford’s denial of liability would have rendered the giving of notice unnecessary. Equitable Surety Co. v. Bank of Hazen, 121 Ark. 422, 181 S. W. 279; Home Indemnity Co. v. Banfield Bros. Packing Co., 188 Ark. 683, 67 S. W. 2d 203.
It is insisted that Hartford cannot be held liable because Lemley, its principal, was not pursued and no judgment was recovered against him, and further that it had been agreed that the sureties would make no attempt to collect any judgment which might be rendered against the Bank of Dover. The existence of this agreement is denied. As a matter of fact, both Lemley and the bank were sued, and while no judgment was rendered against Lemley, a judgment was rendered against the bank and there was filed, after this appeal had been perfected, a stipulation as previously stated, that the bank had paid to the sureties the judgment rendered against it in their favor.
It is not shown why no judgment was rendered against Lemley, but whatever the reason may have been, this failure would not exonerate Hartford. Its bond did not require that this should be done and the suit on the bond could have been maintained even though Lemley had not been sued at all. Hartford did not ask that it have judgment against Lemley for any amount for which judgment might be rendered against it, and when and if the judgment against it is satisfied it may then assert its right against Lemley. No contention is made that the plaintiff sureties did anything which impaired this right.
In the case of Hawkins v. Mims, 36 Ark. 145, 38 Am. Rep. 30, it was said: “Mere delay, then, or negligence on the part of the creditor to call upon or compel the principal debtor to pay gives the surety no defense. It is only acts which tend to prejudice him or to deprive him of the power of obtaining indemnity, which have that effect. Of course if the obligee releases any of his securities, or enters into a new contract with the principal, varying terms of the original agreement, or stays execution, after its levy on the property of the principal, whereby the lien is lost, or does any other act, the necessary effect of which is to discharge the principal from the debt or to lessen his responsibility, the non-assenting surety will be discharged, for such acts increase the surety’s risk. (Citing cases.) ”
It was there further said: ‘ ‘ The remedy of a surety, who is dissatisfied with the degree of activity displayed by the creditor in the pursuit of his principal, is to pay the debt himself. This subrogates him to all the rights and remedies of the creditor, and he can then manage the affair to suit himself.”
The theory of the plaintiffs’ case is that they incurred a liability as sureties on Murphy’s official bond, which resulted from and arose out of Lemley’s infidelity to his trust as cashier of the Bank of Dover, against which infidelity the bank is insured by Hartford, and that they have the right by subrogation, having discharged this liability as sureties, to recover, not only from the bank, but also upon the fidelity bond which Hartford executed, having of course only one satisfaction.
The master found, and the court approved the finding, that this,shortage as treasurer resulted from the misapplication of public funds in Murphy’s custody, and that this application and misapplication resulted from Lemley’s active participation in this conversion without which participation it would not have occurred. This opinion would be interminable if we were to discuss the manner in which the conversion of public funds occurred, but that it did occur is undisputed, and that it was done with Lemley’s knowledge and participation is established by a preponderance of the evidence. For instance, Murphy received an official voucher from the State of Arkansas, payable to him as treasurer, in the sum of $2,186.52, and this warrant was placed to the credit of Murphy’s personal account, the deposit slip having been signed by Lemley, the proceeds of which were credited to and used by Murphy in a manner which the auditor could not ascertain.
Now the law is that a bank has the right to presume, without making investigation, that the payee in a check, properly signed by the depositor, drawn against an account known to be trust fund, has the right to cash the check and convert the proceeds to his personal use, without liability therefor against the bank, unless the bank knows, or is chargeable with knowledge, that the depositor has violated his trust in drawing the check, thereby participating in the wrongful conversion of the proceeds of the check. Here it is undisputed that Murphy deposited public funds to his personal account, and that he withdrew by check public funds for his private use, and we think the testimony shows that this was done with the knowledge and consent of Lemley.
In the case of Drainage District No. 7 of Poinsett County v. Citizens Bank of Jonesboro, 205 Ark. 435, 170 S. W. 2d 60, we quoted, with approval, the following statement from Chief Justice Hart in the case of Helena v. First National Bank, 173 Ark. 197, 292 S. W. 140: “The general principle governing the bank’s liability is that the officers of the bank, who know that a fund on deposit is a trust fund, cannot appropriate that fund to the private benefit of the bank, or, where charged with notice of the conversion of the trustee, participate with him in appropriating it to his own use, without being-liable to refund the money, if the appropriation is a breach of the trust. Allen v. Puritan Trust Co., 211 Mass. 409, 97 N. E. 916, L. R. A. 1915C, 518, and Blanton v. First National Bank of Forrest City, 136 Ark. 441, 206 S. W. 745.”
It is urged that in the judgment rendered by the court below Hartford was not given credit for the payment made by Price above referred to. If it were not, it should be. The sureties did not make these payments, although they were made for their benefit, and they should not be given credit for payments which they did not make with their own funds. It appears, however, that twelve of the sureties on Murphy’s bond paid each the sum of $183.33, and each was given judgment against the Bank of Dover for that amount, altogether totaling the sum of $2,199.99, with interest thereon from the date of their respective payments. This was the balance on account of the shortage which Price did not pay, so that the sureties have not been given credit for payments they did not personally make.
The stipulation hereinabove referred to is to the effect that the bank has now, by payment, satisfied these judgments against it in favor of the sureties. The bank was given judgment against Hartford for $2,199.99 in the decree, this being the net loss sustained through the peculations permitted and participated in by Lemley, so that this judgment would in fact allow credit for Price’s payment, and Hartford will be required under the judgment to repay only what the sureties have personally paid. The judgment against Hartford requires that interest thereon be paid from March 2, 1943, this being the average date on which the sureties respectively made payments of which no complaint is made.
As thus interpreted we think the decree is correct and it is affirmed. | [
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Ep. F. McFaddin, Justice.
Tbis is a boundary line dispute between neighbors. An exemplification of tbe Golden Rule on both side’s of the boundary would, undoubtedly, have prevented this expensive litigation; but until the Golden Rule is practiced universally, courts do afford a better redress for grievances than did the old method of “self-help.” So, humanity is makin’g some progress. But — Back to the case at bar:
Lot 10, block 0 of Morris’ Addition to Blytheville has a frontage of 75 feet on Fifth Street, and a depth of 140 feet. Originally, Mr. Langdon owned the entire lot; but in 1916 he conveyed the south 35 feet to Weems, through whom appellant, Walters, claims by mesne conveyances. Later, Langdon conveyed the north 40 feet to some other person, through whom appellee, Meador, claims by mesne conveyances. In short, appellant, Walters, has a deed to the south 35 feet, and appellee, Meador, has a deed to the north 40 feet.
Appellee brought action in ejéctment, claiming that he was the owner of the north 40 feet, and that appellant was encroaching on appellee for a driveway and garage site amounting to a strip about four feet wide for the depth of the lot. Appellant defended the ejectment suit, and claimed the disputed strip (a) by adverse possession, and (b) by agreed boundáry. The cause was tried to a jury, and resulted in a verdict and judgment for appellee ; and appellant is appealing. Three questions are presented in the brief of appellant. They are: (1) the correctness of the appellee’s survey; (2) appellant’s claim of adverse possession; and (3) appellant’s claim of agreed boundary.
We hold that all three of these questions were disputed issues of fact, and that the verdict of the jury settled each and all of these questions adversely to appellant, and that there was sufficient evidence to sustain the verdict. This opinion might well stop with the above statement, but we discuss each question more fully to indicate tbe reasons compelling our conclusion.
I. Correctness of Appellee’s Survey. Appellee purchased the north 40 feet of lot 10 from Mrs. Shonyo in 1944. Appellant had purchased the south 35 feet of lot 10 from a Mr. Thomas in 1941, but appellant had been away in the Navy. About the time appellee moved into his house in 1944, the appellant returned from the Navy, and resumed possession of his house. Between the houses there was a driveway which appellant refused to allow appellee to use. Thereupon, appellee secured the services of a surveyor (Mr. Cobb), who undertook to establish the property line between the parties. Cobb indicated the boundary by stobs, which appellant promptly removed. At the trial, Cobb told the jury of his experience as a surveyor; he detailed where he started with his survey, and how he determined the line between the litigants. It was not shown that Cobb was the county surveyor, so appellant contends that Cobb’s survey was inadmissible as evidence because of § 2418, Pope’s Digest, which reads in part:
“No survey made by any person except the county surveyor or his deputy shall be considered as legal evidence in any court of law or equity, . . . ”
We hold against appellant’s contention; and, for authority, quote what was said in Reeves v. Jackson, 207 Ark. 1089, 184 S. W. 2d 256, in regard to the same argument as appellant is here making:
“This court has ruled adversely to the appellants’ contention. In the case of Smith v. Leach, 44 Ark. 287, it was held that a county surveyor’s record of the survey made by him is only prima facie evidence of the correctness of the survey, and parol evidence of other surveys is admissible. To the same effect, see Jeffries v. Hargis, 50 Ark. 65, 6 S. W. 328; Russell v. State, 97 Ark. 92, 133 S. W. 188; Buffalo Zinc & Copper Co. v. McCarty, 125 Ark. 582, 189 S. W. 355; Sherrin v. Coffman, 143 Ark. 8, 219 S. W. 348.”
II. Adverse Possession. Appellant insists that those through whom he claims have been in actual and adverse possession of the driveway and ground on which the garage is located ever since 1916. Many witnesses testified to the actual possession; but there was sharp dispute as to whether the appellant’s predecessors in title had occupied the strip adversely or by permission of the appellee’s predecessors .in title. Mrs. Anna Shonyo owned the appellee’s property from 1933 to 1944; and she testified that, during those years the driveway was used by the occupants of both houses by common consent. She was interrogated, and made answer as follows:
££Q. Tell the jury if there was any question raised at any time, from the time you acquired the north 40 feet and claimed it, by any owner or tenant of the owner of the south 35 feet? A. No, there was never any objection. . . . Q. State what the tenants in the two properties, from your own knowledge and observation, did with that piece of ground? A. I suppose they both used it as a driveway. I know I did. I used that drive up there and turned in the place where the concrete is. ’ ’
The testimony of Mrs. Shonyo, and other testimony in the record, made a jury question as to whether the possession of appellant and his predecessors in title was permissive. Credibility of the witnesses was also for the jury. So we hold that there was substantial evidence to sustain the jury’s verdict against appellant on the issue of adverse possession.
III. Agreed Boundary. Finally, appellant contends that the adjoining owners, many years ago, agreed on a boundary line, and — based -on that agreement — appellant’s predecessors in title constructed and have continued to use the garage; and appellant, therefore, contends that the north side of this garage building establishes the line. To support his contentions on the issue of agreed boundary, appellant cites Sloan v. Ayres, 209 Ark. 119, 189 S. W. 2d 653; Hoyer v. Edwards, 182 Ark. 624, 32 S. W. 2d 812; Miller v. Farmers’ Bank & Trust Co., 104 Ark. 99, 148 S. W. 513; Cox v. Daugherty, 62 Ark. 629, 36 S. W. 184; and Jordan v. Deaton, 23 Ark. 704.
In Sloan v. Ayres, supra, we quoted from Peebles v. McDonald, 208 Ark. 834, 188 S. W. 2d 289, as follows:
“ ‘Where there is a doubt or uncertainty, or a dispute has arisen, as to the true location of a boundary line, the owners of the adjoining lands may, by parol agreement, fix a line that will be binding upon them, although their possession under such agreement may not continue for the full statutory time.’ ”
As an abstract proposition,’ the rule of law is as the appellant states; but the appellee offered sufficient evidence to take this case out of the quoted rule. The testimony of Mrs. Shonyo was to the effect that from 1933 to 1944 there was no agreed boundary line. Mrs. Mattie E. Watts testified that from 1939 to 1942 she occupied, as a tenant, the property now owned by Walters, and that this was during the time that Mrs.- Shonyo still owned ■ what is now the Meadors property. Mrs. Watts testified:
“A. There is not a thing I could say about the driveway. Everybody used the drive while I was there — for both houses. Q. Tenants from both houses? A. Tenants from both houses, and I didn’t know who the driveway belonged to. Q. Did Mr. Thomas own the property while you lived there? A. Mr. Thomas owned the property while I lived there. I rented from him for four years. Q. And Mrs. Shonyo owned the other? A. Yes, sir. Q. Tell the jury if there was any fence between the two properties during the time you lived there? A. No, sir.”
This testimony supports Mrs. Shonyo’s testimony, and shows that there was neither an established and agreed boundary line, nor a claim to any clearly marked or designated line. In Peebles v. McDonald, supra, in discussing one of the essentials of an agreed boundary, we said:
“In 8 Am. Juris. 797, there is this additional statement: ‘It is essential to the validity and binding effect of such an agreement that the boundary line fixed by the agreement be definite, certain, and clearly marked, and that it be made by the adjoining landowners with reference to an uncertain or disputed boundary line between their lands.’ See, also, Furlow v. Dunn, 201 Ark. 23, 144 S. W. 2d 31; and see, also, Annotations in 69 A. L. R. 1430, and in 113 A. L. R. 421.”
It is, thus, clear that the appellee offered evidence sufficient to support the jury’s verdict, which was against the appellant’s claim of an agreed boundary.
The judgment of the circuit court is affirmed.
Webster’s Dictionary says of “self-help” in law: “the right or fact of redressing or preventing wrongs by one’s own action without recourse to legal proceedings.”
Blackstone’s Commentaries,. Vol. Ill, p. 3, discusses the redressing of private wrongs by act of the parties. One such method of redress is “by entry on lands and tenements, when another person without any right has taken possession thereof.” | [
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Borins, J.
The Attorney General of Arkansas, in his petition herein, prays for a writ of prohibition to the Pulaski Circuit Court, Second Division, and to Honorable Lawrence C. Auten, as judge thereof, to restrain any further action by the said court on a petition for writ of hab eas corpus filed therein by Jack McAllister. On April 14,1947, we issued a temporary writ, staying further proceedings in said matter until we could hear and determine the Attorney General’s petition.
The Attorney General, whose demurrer to McAllister ’s petition had been overruled by the lower court, asserts that said court has no jurisdiction in said matter; and, to exemplify his contention, he attaches to his petition copies of the pleadings and orders in the lower court. From these it appears that informations were filed against Jack McAllister in the circuit court of Sebastian county, charging him with the offenses of assault with intent to kill and burglary. On trial before a jury McAllister was convicted of both offenses and judgment was entered imposing upon him in each case a sentence of two years imprisonment in the penitentiary, the sentences running concurrently. His motion for new trial being-overruled, he prayed and was granted an appeal to the Supreme Court, and was given fifty-eight days within which to file bill of exceptions.
McAllister’s appeal was lodged in this court in apt time, but the transcript did not contain the bill of exceptions, because, as McAllister asserts, the attorneys who represented him at the trial and employed also to prosecute the appeal failed to have the bill of exceptions prepared and filed within the proper time. Subsequently, and before the case was reached for hearing in this court, another attorney had a bill of exceptions prepared (but not filed within the proper time) and brought up to this court by writ of certiorari. When the appeal was submitted to us, we sustained the Attorney General’s motion to strike the bill of exceptions; and, finding no error reflected by the remainder of the record, we affirmed the judgment of the lower court. See McAllister v. State, ante, p. 140, 199 S. W. 2d 751.
In his petition for writ of hateas corpus McAllister, after reciting the circumstances of his conviction in the circuit court and the affirmance thereof by this court, and the dereliction of his attorneys in failing to have a bill of exceptions filed in time and incorporated in the appeal record, further set forth that, if his attorneys had filed bill of exceptions in time to become a part of the record, “the Supreme Court would have reviewed said case and considered the evidence and facts proven in the case, and would have reversed the convictions and released the petitioner, or ordered a new trial for errors committed at the trial. The petitioner is not guilty of either of the charges aforesaid, and his convictions have been illegally and unconstitutionally affirmed.”
The petition concludes with the averment that the judgment of the circuit court and of the Supreme Court, as well as the mandate and commitment’ (on which he was being held at the time he instituted habeas corpus . proceedings) issued by this court upon affirmance of the judgment of the lower court, are void because these pro- ■ ceedings against him violate Art. II, § 8 of the Constitution of Arkansas, and the Fifth and Fourteenth Amendments to the federal Constitution. The prayer of the petition was for the issuance of a writ of habeas corpus and for discharge from custody.
McAllister did not allege in the petition filed by him in the lower court that the court in which he was convicted did not have jurisdiction; nor did he in said petition challenge the regularity of the commitment. The sole ground on which he asked the Pulaski circuit court to award him relief by way of habeas corpus proceedings was that he has been denied “due process” in that through fault of his lawyers he was prevented from presenting a co.mplete record to the Supreme Court.
In the case of State v. Martineau, 149 Ark. 237, 232 S. W. 609, application was made to this court by the State for writ of prohibition to prevent the chancellor of the Pulaski chancery court from proceeding with hearing on a writ of habeas corpus issued to review the legality of the death sentences imposed on Hicks and five others. Their convictions had been affirmed, but various grounds (not appearing on the face of the record) were urged as establishing the illegality of the judgment. This court granted the writ of prohibition, the applicable rule in the ease being thus stated (headnote 6): “If a petitioner for habeas corpus is in custody under process regular on its face, nothing will be inquired into save the jurisdiction of the court whence the process came. ’ ’
This rule was' reiterated by us in the case of Abbott v. State, 178 Ark. 77, 10 S. W. 2d 30. See, also, Ex Parte Byles, 93 Ark. 612, 126 S. W. 94, 37 L. R. A., N. S. 774; Ex Parte Williams, 99 Ark. 475, 138 S. W. 985.
Chief Justice McCulloch,.in his opinion in the Martineau case, supra, was careful to point out that the provisions of the'federal statute (Act of February 5, 1867, Rev. St., § 753 et seq., 28 IT. S. C. A., § 453 et seq.) by which federal courts were authorized in habeas corpus proceedings to go behind the face of the documents authorizing commitment of the petitioner do not extend to such cases in state courts.
The pronouncement of this court in the' Martineau case, supra, repeated in the Abbott case, supra, has not been modified or overruled, and it is controlling here. Since no question as to the jurisdiction of the Sebastian circuit court to try petitioner on the charges of which he was therein convicted or as to the regularity of the commitment on which he was being held, the petition stated no ground on which the lower court could assume jurisdiction or award petitioner any relief in habeas corpus proceedings.
The views expressed above make it unnecessary for us to consider whether in any event negligent failure of counsel, selected and employed by the accused, to complete a record for appeal could be properly made the basis of a claim that the accused had been denied “due process,” and whether one who surrenders voluntarily to an officer may by writ of habeas corpus challenge the legality of his detention. •
The temporary writ of prohibition heretofore issued herein will be made permanent. | [
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Smith, J.
This suit was brought by appellant to recover the value of a half interest in the estate owned by J. E. Hickey at the time of his death, which date is left blank in his complaint. His right to recover is predicated upon the following paragraphs of the will of the said Hickey.
“I will and bequeath to my dearly beloved wife Celia Hickey all of my estate both real and personal property (except as mentioned above) to have and to hold forever.
, “I hereby appoint and constitute my beloved wife Celia Hickey as administratrix of my estate and request that she be appointed as such administratrix without bond. ^
.“It is desired that after my wife Celia Hickey’s death that one-half of the remaining estate be divided equally between her brothers and sisters then living.
“It is my desire that after my wife Celia Hickey’s death, that one-half of the remaining estate be divided equally between my brothers and sisters then living. ’ ’
In this connection it may be said that Mrs. Hickey, the testator’s widow, not only did not consume the estate in her support, but appears to have augmented it.
At the testator’s death he was survived by only one sister, and no brother. This sister died subsequent to the testator’s death, and appellant is the sole and only heir of this sister, and the contention of appellant, this. heir? is that the will of his uncle devised to his wife only a life estate in his property, with the remainder over, one-half thereof to his surviving brothers and sisters, and the other half to the surviving brothers and sisters of his wife. N
On the other hand, the administrator of the estate of Celia, the wife of the testator, contends that the estate of her husband was devised to Celia in fee simple, and that she thus acquired the title to the entire estate. Her administrator insists also that the provisions of paragraphs five and six relating to any portion of the estate remaining at her death are precatory only.
A difference of opinion has arisen among the members of the court as to which of these contentions is correct, but we are all agreed that for the reason presently to be stated appellant is estopped from raising this question, and we therefore dispose of the case upon the ground on which we are all agreed!
The will of Hickey was duly probated and his wife administered upon his estate as if she were the sole devisee. She died testate in November, 1942. Her will was dated December 13, 1938.
Mrs. Hickey’s will made no reference to any real estate and her estate consisted largely, if not entirely of personal jewelry, government war bonds, and cash in a safety deposit box at a bank in which she had on deposit a small sum of money.
Upon Mrs. Hickey’s death the safety deposit box was opened and an inventory made of its contents, which inventory was made an exhibit to appellant’s complaint. In this box were a number of envelopes, some containing money, others containing bonds, and some contained both money and bonds. On the envelopes there were such notations as these, “Mrs. Celia Hickey, payable on death to Mrs. Katie Hickey Jones, Eoute 1, Box 32, Dawn, Missouri.” Mrs. Jones was appellant’s mother.
Appellee Hardin qualified as administrator of the estate of Hickey’s widow and being uncertain as to the proper construction of Mrs. Hickey’s will, and the disposition she had made of her estate, he .took the precaution to file a suit, making all persons interested parties, in which he prayed that the will be construed and directions be given as to whether the will had created a trust, which offended the rule against perpetuities. There was a question also as to the ownership of the government bonds, which comprised the major portion of the estate. These questions were put at rest in the case of Myers v. Hardin, Adm., 208 Ark. 505, 186 S. W. 2d 925, the opinion having been delivered April 16, 1945.
The inventory attached to appellant’s complaint as an exhibit thereto, shows that there were a large number of bonds, none being for a larger amount than $1,000, and the opinion in the case of Myers v. Hardin, supra, recites that they were of the total value of $23,000.- In that opinion it was said, referring to these bonds, “Each of these bonds was issued as follows: ‘ To Mrs. Celia Hickey payable on death to’................................................a named beneficiary, some of whom were legatees under the will, but a large number were not mentioned in the will. ’ ’
It was held in the Myers case, supra, . . that each and all of the beneficiaries named in the bonds in question who survived the testatrix became the absolute owners of such bonds immediately upon the testatrix’s death and that any legacy under the will to any of these bondholders is in addition to such bond and unaffected by it.”
Appellant was not named in Mrs. Hickey’s will, but his mother through whom he claims, was mentioned in it, and the sum of $2,000 in cash was devised to her. Appellant was not named as a beneficiary in any of the bonds, but his mother was named in bonds of the value of $2,000.
The complaint filed by appellant alleges the fact to be that practically all of Mrs. Hickey’s estate had been derived from her husband, but no question of her ownership was raised in the suit to construe the will. The decree in that case, as. stated, was rendered April 16, 1945, while the present suit was not filed until January, 1946.' In that interval the administration on Mrs. Hickey’s estate proceeded, and appellant admits that the administrator paid him the $2,000 devised to his mother, and delivered to him the bonds found in the safety box, in which his mother was designated as beneficiary. Evidently Mrs. Hickey’s estate has been substantially distributed in accordance with the provisions of her will.
Now appellant was not a party to the suit referred, to above, brought to construe Mrs. Hickey’s will, but his mother was a party, and such interest as he has was derived from her. If it be true, as appellant now alleges, that the bulk of the estate left by Mrs. Hickey on her death was derived from her husband, and that she had only a life estate therein, this question should have been raised in the suit to construe her will, where all parties in interest were present, and before there had been any distribution- of the estate. No one of the many heirs who were parties to the case of Myers v. Hardin, Adm., supra, raised the question that Mrs. Hickey had taken.only a life estate under the will of her husband, and the decree construing her will is predicated upon the theory that she had the fee title, and under that decree the estate has been distributed, in part at least, and the administrator paid to appellant as the heir of. his mother the $2,000 devised to her, and delivered- to appellant the $2,000 of bonds which named his mother as alternate payee.
Any other heir of Mr. Hickey would have the same right to raise the question here presented, as has appellant, but none have done so, and we think no one of them now has that right.
Appellant insists that the doctrine of estoppel has no application here for the reason that the administrator in distributing the assets of the estate was not influenced by any act of appellant. But even so, the administrator was influenced by the inaction of appellant’s mother. She did not speak when yhe should have spoken, and her heir may not now be heard to speak, inasmuch as the administrator has made at least partial distribution of the assets of Mrs. Hickey’s estate, and, so far as appellant is concerned, has made full distribution. Cases without number have announced and applied the equitable principle here invoked, and the decree of the court below must be affirmed, and it is so ordered. | [
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McHaney, Justice.
Appellee brought this action for divorce against appellant on February 27, 1946, on the grounds of habitual drunkenness and cruel and inhuman treatment, general indignities, and for the custody of their then six year old girl child and for property rights as claimed in her complaint. She alleged that she and appellant were married September 7, 1938, and lived together as husband and wife until February 18,1946, when she left because of his mistreatment of her, during which time she made appellant a good wife and gave him no cause to mistreat her. On motion of appellant, the indignities mentioned in her complaint were made more definite and certain by an amendment which alleged that they consisted in part by his staying away from home all or part of the night, drinking and gambling, nearly every week, leaving her and the little girl alone using profane language, in their presence, and personal violence to her on two occasions.
The answer was a general denial. He alleged that she had left him on three previous occasions, without cause, and that her leaving him on February 16, 1946, was again without cause. He prayed that her complaint be dismissed for want of equity, but in the alternative if a divorce be granted her, he be given the custody of said child. .
Trial was had before the court on June 25 and 26, 1946, and a number of witnesses for each party testified orally, at the conclusion of which the court took the matter under advisement and continued the case to September 10, 1946, but ordered appellant to pay to appellee $150 on or before July 5, August 5, and September 5, for the support and maintenance of appellee and their daughter whose temporary custody had previously been awarded her with certain exceptions. On September 17, after hearing further oral testimony, the court granted appellee á divorce from appellant, also the custody of said child for nine months of each year, with the right of visitation by him, granted appellant her custody for the months of June, July and August of each year, with the right of visitation by her, and ordered him to pay appellee $60 per month for the support, education and maintenance of said child during the nine months appellee had her care and custody. He was further ordered to pay appellee’s attorneys $300 additional for their services in the Chancery court and $150 more, in the event of an appeal to this court; to deliver to appellee a certain Chevrolet automobile1 which he had theretofore given to her as a birthday present and which he had repossessed without her knowledge or consent, and one-third of all household goods and furniture. The decree provided that no further alimony or monthly allowance should be awarded appellee for her support. The cause was continued as to the property rights as between appellant and appellee, and as to the rights of property, claimed by appellant’s father, J. W. Franks, who intervened in the action, claiming certain interests in property said to belong to appellant who. was enjoined from disposing of any of his property.
Appellant has appealed from so much of this decree as gives appellee a divorce from him. Appellee has taken a cross-appeal from the refusal of the court to grant her temporary alimony pending adjudication of the property rights between her and appellant.
For a reversal of this decree on the direct appeal, appellant makes three contentions: 1. Because appellee’s evidence is not sufficiently corroborated; 2. because of her own misconduct; and 3. because she condoned his misconduct. •
1. We cannot agree that appellee’s evidence is not sufficiently corroborated. While the court did not base the decree on the ground of habitual drunkenness, but on the ground of indignities and mistreatment, we think her evidence that such indignities and misconduct to ward lier frequently followred his excessive drinking and all night gambling parties indulged in by him weekly or oftener was sufficiently corroborated. There is no suggestion here of collusion between the parties, and it is not contended that her testimony, if corroborated, is not sufficient. She reviewed their married life since 1938 and testified to many matters of mistreatment, including some personal violence. We do not review this evidence in detail, as to do so would serve no useful purpose. But we think some of the incidents related by her were corroborated sufficiently to justify the court in treating the whole of her testimony as to such mistreatment as being fully corroborated. In Goodlet v. Goodlet, 206 Ark. 1048, 178 SW. 2d 666, we quoted from an annotation in 65 A.L.R. 169, which says: “In cases of cruelty or other mistreatment, there is a tendency to hold that independent proof of conduct of the defendant of the sort complained of, at least where more than one instance of it is established, is sufficient corroboration of the whole of plaintiff’s testimony as to mistreatment.” It was there further said: ‘ ‘ The cases are agreed that the purpose of the rule requiring corroboration is to prevent procuring divorces through collusion, and that where it is plain there is no collusion, the corroboration may be comparatively slight. ” So, we conclude the corroboration was sufficient to justify the decree. This is true without taking into consideration appellant’s conduct subsequent to the beginning of the action relating to the custody of the child, the automobile which he clandestinely took from her and other matters. See Greer v. Greer, 193 Ark. 301, 99 S. W. 2d 248.
2. As to appellee’s misconduct, the argument is largely based on a finding made by the court that: “Both of them have done things that should not have been done and neither of them was free from blame for their troubles, but upon the whole case, the court is of the opinion that the indignities caused by the defendant were such that would entitle the plaintiff to a divorce, especially since it has been very clearly proven to the court that a reconciliation is impossible.” Counsel for appellant have cited a number of our own cases, and others, to the effect that divorce is a remedy provided for an innocent party, except as otherwise provided by Statute, including our recent case of Widders v. Widders, 207 Ark. 596, 182 S. W. 2d 209. But this Widders case, as we think the others so holding, refers to conduct of the complaining party which caused the mistreatment of the plaintiff by the defendant, or of conduct by plaintiff that would be a ground of divorce by the defendant. In using the language above quoted, the court did not make any finding that appellee had been guilty of any indignities to appellant and none are claimed by him, and the court, no doubt, had reference to the fact, freely admitted Tjy her, that she had on social occasions partaken of intoxicants in small quantities with her husband and others, but ■ never to excess, and that she had played cards for small stakes, such as penny ante poker.
We agree with the trial court that this kind of conduct should not have been indulged in bv either of them, especially by appellee. The playing of cards or dice for money is gambling and is made unlawful by statute. No doubt the court thought, as we do, that appellee, being under the dominating influence of appellant, engaged therein because he had desired her to do so. He taught her to play poker and shoot dice, and it appears that her drinking began with the night of their marriage in 1938, under his influence. We think the court was warranted in finding that appellee’s indiscretions and misdeeds in these respects were not sufficient to justify a denial of the decree, and that the rule relied on by appellant, stated in the Widders Case, and a number of others cited, is not here violated.
3. The final reason urged for a reversal of the decree by appellant is condonation by appellee. This contention is based on the fact that, just before Christmas, 1944, she left him on account of his cruel treatment and indignities. She returned to him on January 1, 1945, upon his promise that he would not mistreat her again, and that he would quit drinking, gambling, and staying away from home at night. Upon her return they again resumed their marriage relationship and co-habited as husband and wife, under said promise. For a time, about two months, he kept his promises, but then relapsed into his old habits and she says, for the remainder of 1945, his conduct was worse than it had been before. She went away again about Christmas, 1945, and again returned to him on similar promises of good behavior, which he kept until February 16,1946, when she testified he told her he would not be further bound by his promises, and that if she thought he was going to live as he had for the last few weeks, she was crazy, and that he stayed out the next night and she left him. She testified she did not quit him at Christmas, 1945, but, if we assume she had that intention when she left, she returned under the same promise of reformation. Assuming, without deciding that her acts in returning and resuming the marital relation, based on his promises not to repeat the offense, constituted condonation for past mistreatment, still it was only conditional condonation. If the condition is broken by future misconduct, condoned past conduct may then be relied on in support of an action for divorce on the subsequent misconduct or both. In Longinotti v. Longinotti, 169 Ark. 1001, 277 S. W. 41, we said: “The law is well settled that either spouse may condone conduct of the other which, but for the condonation, would entitle the innocent spouse to a divorce. But it is equally as well settled that condonation does not deprive the aggrieved spouse of the right to a divorce on account of the subsequent misconduct of the offending spouse. On the contrary, subsequent misconduct will generally operate to revive the right to a divorce for the condoned offense.” See, also, Denison v. Denison, 189 Ark. 239, 71 S. W. 2d 1055, where it was said that “the doctrine of condonation has no application to the facts of this case,” which were that the parties continued to cohabit as man and wife after the more violent outbreaks of temper on the part of the wife. "We conclude that the doctrine of condonation has no application here.
As to the cross-appeal of appellee, claiming the court erred in refusing to award temporary alimony to her for her support and' maintenance from September 17, 1946, the date of the decree, until final determination of the property rights between the parties, but little need be said. The court did order appellant to pay $60 per month for the support, maintenance and education of their child during the nine months in each year she is in appellee’s custody. In addition, appellee has been paid, for herself and the child $75 from May 23 to the first Monday in June, 1946, and $450 subsequently ordered. Appellee is employed and draws a salary from such employment. We do not feel justified in granting the relief prayed, in view of the trial court’s refusal to make an allowance, pending final determination of the property rights.
The decree is accordingly affirmed, on both the direct and cross-appeal.
McFaddin, J. not participating. | [
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Minor W. Millwee, Justice.
Appellee, E. M. Blankenship, was plaintiff and appellants, Arkansas Associated Telephone Company and W. L. Bryant, were defendants in the circuit court in an action for slander. Trial before a jury resulted in a verdict and judgment in favor of plaintiff for $500 actual damages against the defendants.
Plaintiff was employed by defendant, Arkansas Associated Telephone Company, as a repair helper at Monette, Arkansas, from July, 1945, until February, 1946, when he was discharged by defendant, W. L. Bryant. Plaintiff alleged in his complaint that said W. L. Bryant, while acting within the scope of his employment as district manager of the telephone company, made slanderous statements to and concerning plaintiff in the presence of M. E. Blankenship, father of plaintiff, as follows: “What did you do with the key you took last night after you robbed this No. 40 pay station? You went in the office and. took it out of her cash box and robbed this pay station and stole the money; now what did you do with the money? I don’t want you in the office any more, you might steal something; I don’t care how it sounds, you stole it. I found out you lied about how much a man charged you for pulling the truck out of a mud hole, he said he charged you two dollars and you turned in a voucher for four dollars, so this is two more dollars you have stole.”
It was further alleged that W. L. Bryant subsequently repeated the substance of said statements in the presence of five other persons whose names were set out in an amendment to the complaint. The prayer of the complaint was for $1,500 actual damages, and $1,400 punitive damages.
In their answer defendants admitted the discharge of plaintiff, but alleged that it was for just cause. They denied making the statements contained in the complaint and alleged that any statements made by W. L. Bryant, on the occasion mentioned, were true. In an amendment to the answer, defendants further alleged that any statements made to or about plaintiff were made in good faith, without malice and under circumstances constituting a qualified privilege.
Plaintiff is 27 years of age, married and has resided in Monette, Arkansas, most of his life. He testified that he and his father started to the telephone office on Sunday, February 24, 1946, to talk with W. L. Bryant about a paint job which the father was trying t® secure with the telephone company. They met Bryant on the street in front of the telephone office and discussed the paint job and the prospects of a promotion for plaintiff with the company. In response to counsel’s questions, plaintiff gave the following account of the conversation that then took place in the presence of his father: “Well, we talked about different things and as I started off, Mr. Bryant said, ‘Wait a minute, Pete,’ and I said, ‘What is it?’ and he said, ‘How are you getting along with the operators now?’ and I said, ‘As far as I know, all right,’ and he said, ‘You are not having any trouble with them?’ and I said, ‘No, sir,’ and he said to me, ‘What did you do with the cash after you robbed the pay station?’ and I said, ‘I don’t have the key to the pay station.’ He said, ‘You went in the office and went in the operator’s cash box and got the key to the pay station and opened the pay station and got the money out and then put the key back in her cash box.’ I said, ‘That’s a little bit thick; do you think if I was going to steal money from the pay station I would put the key back in her cash box?’ He said I was fired. That was about all that was said. Then I asked him to go in the office and see if he could prove these things, and he said, ‘No, you are not going back in the office. You might steal something else,’ and he told me he didn’t want me in the office any more and I came down for my tools the next morning. Q. What did Mr. Bryant say about the Huddleston business? A. He said he also found out that I lied to him about Mr. Huddles- ton’s charges for pulling me out of the mud. . . . Q. What did he say about you lying? A. He said he had found out that I lied about what I had paid Mr. Huddleston and he said, ‘That’s two more dollars you’ve swindled the telephone company out of.’ Q. What did you tell him? A. I told him I didn’t do that.”
Plaintiff also testified that he later sought other employment from three or four Monette businessmen who refused to hire him after consulting W. L. Bryant about the circumstances of plaintiff’s discharge by the telephone company. These prospective employers also testified thafr they either declined to hire plaintiff or dismissed him after consulting Mr. Bryant. However, the trial court instructed the jury to disregard all - statements made by Bryant to these men and the issues were confined to a consideration of the statements made by Bryant in the presence of M. E. Blankenship on the date plaintiff was discharged.
According to his testimony, plaintiff earned $60 every two weeks working for tile company, but, following his discharge, was only able to secure such odd .jobs as mowing yards, at which he earned only $15 to $25 in a two-week period. He also testified that the accusations made by W. L. Bryant were false, and that he had suffered humiliation and embarrassment as a result thereof.
The testimony of M. E. Blankenship concerning the statements made by Bryant was substantially the same as that of his son. The statements were made in the father’s presence and Bryant did not indicate that he desired a private conversation with plaintiff.
The defendant, W. L. Bryant, admitted having a conversation with plaintiff and his father on the street near the telephone office on the Sunday in question, but denied making the statements set out in the complaint. He testified that, acting upon information furnished by the telephone operators and others, he sought án explanation from plaintiff relative to his alleged'possession of the key to the pay station coin box and an alleged overcharge of $2 to the company of the amount plaintiff paid for having the company truck pulled out of a mud hole; that plaintiff denied having the key and making' the overcharge; that he then informed plaintiff that the latter had not explained these transactions to his satisfaction and suggested that plaintiff “lay off” until the matter could be adjusted. Plaintiff was told to stay out of the office when he threatened to make trouble for the operators.
One of the operators testified that she saw plaintiff place a key to the pay station in a cash box on Saturday afternoon before the conversation on Sunday and so informed another operator who testified that she checked the coin box which contained only 15 cents although $4 had been deposited in the box a short time before the check was made. Plaintiff stoutly denied having the key to the coin box. There was also a sharp conflict in the testimony of plaintiff and €. B. Huddleston as to the amount paid the latter on February 9, 1946, for his services in pulling the truck out of the mud. Huddleston testified that plaintiff paid him only $2 at the time of the incident and an additional $2 some time in April when a receipt was issued to plaintiff at his request. A receipt was introduced in evidence which was signed by Huddleston and dated February 9, 1946, showing payment of $4. While Huddleston testified that the entire writing appeared to be in his hand, he did not recall placing the date of February 9, 1946, on the receipt.
For reversal of the judgment, defendants contend that the court erred in refusing to instruct a verdict in their favor at the conclusion of the testimony. It is earnestly insisted that the evidence was insufficient to take the case to the jury. It is argued that the defendant Bryant was acting within the scope of his employment as general manager of the telephone company, when the alleged slanderous statements were made to plaintiff, who was also an employee of the company and working under the defendant, Bryant. Under these circumstances, defendants insist that any statements made were qualifiedly privileged in the absence of express malice, which they contend has not been proven.
Defendants rely on the ease of Bohlinger v. Germania Life Ins. Co., 100 Ark. 477, 140 S. W. 257, 36 L. R. A., N. S. 449, Ann. Cas. 1913C, 613. That case involved an action for libel where the alleged libelous matter was contained in a communication between a life insurance company and its local agents concerning the availability of plaintiff as a risk for life insurance and his qualifications to be an insurance agent. It was held that the question whether a communication complained of as being libelous is one of qualified privilege becomes a question for the court where the facts adduced in evidence are undisputed. Mr. Justice Frauenthal, speaking for the court in that case, said: “If the statements are published by one in good faith to another in order to protect his own interest or to protect the corresponding interest of the other in the matter in which both parties are concerned, then such statements are privileged when the subject-matter of the publication makes it reasonably necessary under the circumstances to accomplish the purpose desired. . . . But the communications containing defamatory statements thus made should not, in any event, go beyond what the occasion required. If it is shown by the Writing itself, or by evidence outside of the communication, that the occasion therefor was abused, or that the statements were not relevant to or went beyond the subject-matter or purpose of the agency or business, or that the statements were made from malice proved, then no protection will arise against the prosecution of an action for libel, although there may exist a common interest or duty of the parties between whom the communication passes. Such intrinsic or extrinsic evidence would show a want of- good faith, and would repel the inference that there was no malice.” Since the undisputed testimony in that case showed that the confidential report was sent by the defendant in perfect good faith and without malice, it was held that the trial court correctly directed a verdict for the defendant.
In the case of Sinclair Refining Co. v. Fuller, 190 Ark. 426, 79 S. W. 2d 736, this court approved the following statements from Newell, Slander and Libel, (Fourth Ed.) p. 450: “A defamatory communication when necessary to protect one’s own interest is privileged, when made to persons who also have a duty or interest in respect to the matter. In such case, however, it must appear that he was compelled to employ the words complained of. If he could have done all that his duty or interest demanded without libeling or slandering the plaintiff, the words are not privileged. ’ ’ In the same case this court also approved the rule stated in 36 C. J., p. 1248, as follows: ‘ ‘ The protection of the privilege May be lost by the manner of its exercise, although the belief in the truth of the charge exists. The privilege does not protect any unnecessary defamation. In order for a communication to he privileged, the party making it must be careful to go no farther than his interest or his duties require. Where the party exceeds his privilege and the communication complained of goes beyond what the occasion demands that he should publish, and is unnecessarily defamatory of plaintiff, he will not be protected, and the fact that a duty, a common interest, or a confidential relation existed to a limited degree is not a defense, even though he acted in good faith.”
In Restatement of the Law, Torts, Yol. 3, § 604, it is said: “One who, upon an occasion conditionally privileged for the publication of false and defamatory matter to a particular person or persons, knowingly publishes such matter to a person to whom its publication is not otherwise privileged thereby abuses the privilege unless he reasonably believes that such publication is a proper means of communicating the defamatory matter to'the person to whom its publication is privileged.” A publication may also be excessive if the defendant purposely selects an occasion when a person outside the privilege is present, to make the slanderous statements. 33 Am. Jur., Libel and Slander, p. 179.
According to the testimony on behalf of plaintiff, the words used by defendant, W. L. Bryant, amounted to a charge that plaintiff had been guilty of larceny and such words are actionable per se. Section 3021, Pope’s Digest; Gaines v. Belding, 56 Ark. 100, 19 S. W. 236; Safeway Stores, Inc., v. Rogers, 186 Ark. 826, 56 S. W. 2d 429.
In actions for libel or slander a prima facie presumption is ordinarily indulged that defamations which are actionable per se are malicious. 33 Am. Jur. Libel & Slander, § 266, p. 247. “The fact that a publication is qualifiedly privileged simply relieves the publication from the presumption of malice otherwise attendant and does not change the actionable quality of the words published.” 36 C. J., Libel & Slander, p. 1241-2. A publication loses its character as privileged and is actionable if it is motivated by express or actual malice. 33 Am. Jur., Libel & Slander, § 113, p. 115.
In the instant case we think the trial court did not err in refusing to find as a matter of law that the statements attributed to Bryant were made upon a conditionally privileged occasion and that the occasion was not abused; nor do we agree that the undisputed evidence demonstrates that the statements were made in good faith and without malice. If the testimony on behalf of plaintiff is 'credited, the court was warranted in finding that the occasion was abused and the publication excessive. The statements were made on the streets of Monette when plaintiff was not on duty. They were made in the presence of the father who was not asked to withdraw. The character of the language and the manner of its use as related by testimony on behalf of plaintiff was sufficient to warrant the conclusion that the defendant, W. L. Bryant, went farther than his interest or duties required. Under these circumstances the jury may also have inferred that defendant Bryant was motivated by actual malice.
The recent case of Joslyn Manufacturing & Supply Company v. White, ante, p. 362, 200 S. W. 2d 789, involved statements made by Roth, local manager of the manufacturing company, to "White, a supervisor of a sawmill engaged in producing lumber for the company. The statements were made in the presence of White’s employees. In discussing the contention that a verdict should have been directed for defendants, this court said: “In short, whether Roth has been quoted correctly or incorrectly, there was substantial testimony upon which liability could be predicated, and in that respect appellants ’ argument that there should have been a directed verdict' for the deefndants cannot prevail; nor, in the light of testimony given by witnesses for the plaintiff, can it be said as a matter of law that the communication — when coupled with an accusation of theft — -was privileged, or qualifiedly so. It was not a part of Roth’s duty to.inform White’s employees of.the accuser’s beliefs, expressed in the manner testified to.”
It follows that the trial court did not err in refusing to instruct the jury that the alleged slanderous statements were conditionally privileged as a matter of law, • as requested in defendants’ instruction No. 3. In instruction No. 2 given at the request of defendants, the jury was told that the burden was upon plaintiff to prove by a preponderance of the evidence that the alleged slanderous statements were made by the defendant Bryant; that such statements were untrue, and made with malice on the part of Bryant. •
Defendants also insist that error was committed in the refusal of the trial court to -give their requested instruction No. 5 as follows: “You are told that even though you find from a preponderance of the evidence that the alleged slanderous statements were made in the presence of the plaintiff’s father, Mert Blankenship, and' you further find that the presence of the father at the time and place such statements were made was with the permission, or at the instance of, or with the connivance of the plaintiff, there was not such publication as would entitle plaintiff to recover.” We think the evidence did not warrant the giving of this instruction. All the testimony is to the effect that plaintiff and his father went to W. L. Bryant on a mission for the father and to discuss the prospect of the father obtaining a paint job with the company. W. L. Bryant testified that such discussion took place and that the Blankenships were about to depart when he, Bryant, brought up the matter which led to the making of the alleged slanderous statements. The father was not asked to withdraw from the conversation and the evidence did not warrant a conclusion by the jury that the presence of the father was at the instance, or with the connivance, of the plaintiff when the alleged slanderous statements were made.
We find no prejudicial error, and the judgment is affirmed. | [
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McHaney, Justice.
Appellant filed a claim with the Workmen’s Compensation Commission against appellees for an award of compensation for injuries sustained by him while allegedly in the employ of Gross & Janes as a timber cutter. After an extended hearing both before the referee and the whole Commission his claim was denied on the ground that he was not an employee of Gross & Janes, but that he was an employee of D. F. Tutt and that he suffered an injury arising out of and in the course of his employment with 1). F. Tutt. An award was made in his favor agáinst D. F. Tutt. An appeal was taken by appellant from the award of the Commission denying compensation as against Gross & Janes to the Pike Circuit Court, which resulted in the affirmance of the award of the Commission. This appeal followed in due course. D. F. Tutt did not appeal and the award against him is not before us.
The facts, briefly stated, are, as found by the Commission, that Gross & Janes either sold two sawmills to D. F. Tutt, or bought two sawmills for him, and took a mortgage on. them to secure the purchase price which was to be paid out of so much per tie cut by him. D. F. Tutt operated one of these mills and his brother, Emmett Tutt, operated the other for one-half the net profits, D. F. Tutt to receive the other half. Appellant was injured shortly after going to work with one McKinnon, both jointly cutting and sawing timber in the woods for ties and lumber to be manufactured at the Emmett Tutt mill, who paid all his employees by his own check. Gross & Janes did not pay any of the Tutt employees or exercise any control over them in the method or manner of doing their work. Appellant was paid his share of the earnings of himself and McKinnon for the short time he worked by the latter who collected it from Emmett Tutt. The ties made at the Tutt mills were sold to Gross & Janes by the Tutts for the published or market price. The lumber made in the operation of the mills was sold to others and not -to Gross & Janes. No insurance was carried on Emmett Tutt’s employees, but was on D. F. Tutt’s employees, because the former was paid on a piece work basis, so much per stick, whereas the latter worked by the hour. It was thought the former were independent contractors.
To reverse the judgment appellant argues several points, the most serious one being that Gross & Janes were the real employers of all those ostensibly employed by the Tutts, and that the sale of the two mills to D. F. Tutt was but a sham or pretended sale to avoid responsibility for any injuries they might sustain. In some respects this case is similar to that of Hobbs-Western Co. v. Craig, 209 Ark. 630, 192 S. W. 2d 116, where Hobbs-Western undertook the financing of several individuals to operate tie mills to manufacture crossties and to deliver such ties to its tie yard for acceptance by the railroad company for its account. Craig was fatally injured while working for Lea, who carried no compensation insurance and who was financed by Hobbs-Western, and claim was allowed by the Commission under § 6 of the Workmen’s Compensation Act, 319 of 1939, for his death. We affirmed the Commission’s award. Here, the Commission did not find that Tutt was a subcontractor of Gross & Janes, even though its field superintendent, Woodrow Epperson, filed what is called Employer’s First Report of Industrial Injury with it, in which he stated that D. F. Tutt, contractor, was the employer, and Consolidated Underwriters was named as the insurance carrier for D. F. Tutt. In this he was in error as to the insurance carrier. Gross & Janes did not file the report of injury, hut Epperson did file it for D. F. Tutt, or at least D. F. Tutt was reported as the employer, and he had no insurance carrier on Emmett’s employees. Later, the adjuster for the insurance carrier, J. C. Elmore, filed a notice of intention to controvert appellant’s claim in which he referred to the employer as “D. F. Tutt, subcontractor” and to the carrier as “Consolidated Underwriters, Insuror for Gross & Janes Company.” This report was signed for the employer as “D. F. Tutt, subcontractor for Gross & Janes Company, by J. C. Elmore, Adjuster.” Other hearsay testimony was to the effect that compensation had been paid two other employees of the Tutts by the insurance carrier. The witness did not know this to be a fact, But had heard that it was done. The Commission found and «stated in its opinion that a search of their records had been made and they had been unable to find any record where Gross & Janes paid compensation to the two men the witnesses named, Thomas and Faire, as having received compensation.
These facts tended to show that D. F. Tutt was a subcontractor for Gross & Janes. But the testimony of appellant, McKinnon and both Tutts tended to contradict such relationship and to establish the contention of appellant and the Tutts that D. F. Tutt was not a subcontractor of Gross & Janes, but was the employer of appellant and all others who worked for either D. F. or Emmett Tutt.
The Commission, therefore, had substantial evidence before it to sustain its findings that appellant was not an employee of Gross & Janes, but that he was an employee of D. F. Tutt. The findings of the Commission on factual questions are as binding on the courts as are the verdicts of juries. Ozan Lumber Co. v. Garner. 208 Ark. 645,187 S. W. 2d 181, and cases there cited. And we have held that the “Circuit Court on appeal from the Commission, and this court, on appeal from the Circuit Court, must weigh the testimony in the strongest light in favor of the Commission’s finding.” Hughes v. Tapley, Admr’x., 206 Ark. 739, 177 S. W. 2d 429.
In the Hobbs-Western case, above cited, the Commission found that Hobbs-Western was the principal contractor and that Lea was a subcontractor for it, and we affirmed. Here, with very substantial evidence to support a contrary finding, we must again and do affirm the judgment of the Circuit Court which affirmed the award of the Commission.
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G-ripein Smith, Chief Justice.
Dorothy U. Hunter has asked that we review the Court’s action in refusing to award her the custody of an only child, Robert E. Hunter Jr., now six years of age.
The child’s father, prior to his marriage to petitioner, and later, was enlisted as a soldier in the regular U. S. Army. Petitioner lived with her parents at Chattanooga, Tenn., until her mother’s death in 1933. She continued to reside with her father, Z. R. Umbarger, until 1937. In 1925 Mrs. Hunter became seriously ill. It is contended by respondents that she did not fully recover, and that because of physical and mental handicaps she is not a proper person to care for the child. The Chancellor took this view. We determine whether he was supported by a preponderance of the evidence.
Mrs. Hunter’s mother inherited property through a sister. By will the mother devised and bequeathed to the daughter an estate of considerable value, the income from which was approximately $300 per month when the case at bar was tried. However, the property did not vest until the beneficiary became twenty-one years of age in 1934. About four years later she married, but in the meantime had spent an appreciable part of the estate. This was before she learned how to handle money.
According to Robert E. Hunter Sr., he and petitioner corresponded before théy met. Hunter was stationed at Marfa, Texas. Petitioner wrote to a “marriage bureau,’’ where she procured Hunter’s address. As a consequence she went from Mississippi to Marfa. The wedding occurred in May, 1938. Robert Junior was born September 2, 1940. It appears, however, that discord began before 1940. Mrs. Hunter testified that she became pregnant shortly after her marriage, and in October her condition was such that she thought, it best to make arrangements for her confinement. Her husband was drinking, and had not been at home for two weeks; so Mrs. Hnnter went to the home of an aunt in Georgia, remaining about six weeks. She wrote her husband, asking what his intentions were, and saying they should be together on account of the child. In reply a telegram was received in which Hunter admitted having done wrong. There are references by Mrs. Hunter to a visit to Concord, Tenn., for six weeks, and a return to Texas.
Mrs. Hunter remained at Marfa 'a short time, but left in 1941. Her husband was transferred to Fort Sill, Ukla. This occurred a short time after Mrs. Hunter left in January. On the way to Tennessee Mrs. Hunter stopped in Arkansas for a visit with her husband’s mother, Mrs. Fannie Carpenter (one of the respondents) and spent six weeks. She was with Mrs. Carpenter again in 1942. In November 1944 she again went to Georgia. At that time she disclosed a highly nervous condition. .A year later her father, Z. R. Umbarger, was informed by neighbors that Mrs. Hunter appeared to be mentally affected. Following an examination she was placed in Madison Sanatorium near Nashville, Tenn. The child was left with Mrs. Hunter’s father. Robert E. Hunter Sr. was in Germany with the army. He was notified by the Red Cross that petitioner was incapacitated. The suggestion was made that he should arrange for Robert Junior’s care. However, the father did not return to the United States until September 1945. After being discharged from the army he reenlisted. This, occurred November 17, 1945. At that time he filed with the County Clerk of Union County, Arkansas, an affidavit reciting his marriage to petitioner, birth of the child, a declaration that he and his wife had been divorced; that custody of Robert Junior had originally been left with Mrs. Hunter, but asserting that the mother had voluntarily surrendered custody to him, and that during absence in the army he (the father) desired that the child should remain with its paternal grandmother, Mrs. Carpenter. An allotment of $30 per month was made in favor of the child, and $37 per month for Mrs. Carpenter. t
July 27, 1946, Mrs. Hunter petitioned Union Chancery Court for a writ of hab eas corpus, alleging that Robert Junior was illegally held by Mrs. Carpenter. The father intervened. The case is here on certiorari.
In summing up, Chancellor Speer found that according to the “great weight of authority” Robert Junior had not enjoyed the benefits of a permanent home until October, 1945, when he was placed with Mrs. Carpenter. Mrs. Hunter, said the Judge, ‘ ‘was suffering from psychosis ’ ’; and, said he, “the pitiful thing is that the child has gotten on the nerves of its mother. This is the decided weight of testimony, not only by the doctors, hut by laymen.” It was then found as a matter of fact that it was for the best interest of the mother, as well as of Robert Junior, that Mrs. Hunter be relieved of the care and custody, for “It is apparent that if the child is placed with its mother the same thing may happen again.”
Was this finding correct?
Respondent Hunter procured the decree of divorce in Union County, Arkansas, alleging three years separation without cohabitation. He subsequently married another. Army base pay is $100 per month, with $15 extra. The government allotment in favor of Mrs. Carpenter and $22 of the allotment for Robert Junior is not deducted from appellee’s pay. He proposes to increase the child’s allowance to $50 per month. The present Mrs. sHunter is allotted $22 per month, paid by the government, while $34.40 is deducted from the item of $115 to pay premiums on insurance. Policies are payable to Hunter’s mother and son.
Although petitioner complains of her husband’s treatment before and after she left Texas, a letter written by Hunter February 9, 1941, contains expressions of en dearment and solicitude. It is printed in the margin. 'Another letter was written February 22, and is also copied below.
Hunter testified that when his wife left, it was with the explanation that she was going to Tennessee to look after business matters, saying she was tired of paying ten percent for people to attend to it for her.
Because while on guard duty he failed to report, or, as it was expressed, “for omitting to call in every hour,” Hunter was court-martialed while at Marfa. He did not know when the first allotment was made in favor of wife or child; but, after being transferred to California, he directed payment of $10 per month. Later he was advanced in rank and increased the amount to $40.
Mrs. Hunter, in testifying, said that she was thirty-three years of age and lived at Lakeview, Georgia. She owns a house in Chattanooga and another in Knoxville, purchased with money that came through her mother. The inheritance included oil interests.
Mrs. Carpenter and the child’s father “came over to my house to ‘take out’ habeas corpus proceedings. I was not1 physically able to go through with the suit; had low blood pressure and had just had a blood transfusion. Was trying to rest and regain my strength; so I agreed that Junior’s father and grandmother could take him home with them for a while. I did not agree to let them have the child permanently. When I recovered my health I came out here to get my child, but Mrs. Carpenter refused to let me have him, -so I thereupon filed this suit. ’ ’
While in the Sanatorium Mrs. Hunter left Junior with her father. Hpon .leaving she took the boy home with her. After a while petitioner placed the boy with a Mrs. Berkhart, and then with a Mrs. West.
Mrs. Carpenter testified that after Mrs. Hunter left the Sanatorium she (Mrs. Carpenter) spent a short time with the child’s mother. Together they went to the Berk-hart home, where Mrs. Hunter was paying $7.50 per week for the child’s keep. This trip was made in June 1945. The witness says she told Mrs. Hunter the Berkhart place was unsuited to the boy’s needs because of a lack of cleanliness. There was this testimony by Mrs. Carpenter : “When we left .[Dorothy’s] home I thought we were going to town, but we wound around and finally got to Mrs. Berkhart’s. It was ‘kinder’ a back alley way and [Dorothy] seemed to be lost. ... It was a four-room house with a screened porch — a nasty place. It looked like a Negro settlement. [Junior’s] bed was dirty. When we got back home I said, ‘Dorothy, don’t keep that child in that nasty place. . . . If you can’t keep him I can take him back home with me. ’ Dorothy said the place had been recommended to her.”
With reference to the West home Mrs. Carpenter^ testified that she went there to get the child, but was not allowed to see him. Mrs. West would not let her in. The [yard] was “all grown up in weeds. It was not a place for a child. The little ones there were ‘tough.’ Junior’s father was with me, and he said, ‘It is a pretty come-off not to let the child’s father and grandmother see it. ’ Mrs. West replied, ‘I can use a gun. ’ She said she had been in one kidnapping.”' When asked specifically what she knew about Mrs. West, Mrs. Carpenter replied, “Nothing, except that she was a mighty rough customer. ’ ’
Apparently Mrs. Carpenter then went to Mrs. Hunter, who called her father, Z. E. Umbarger, and told him to get the child:- — -“I asked if it would be all right for us to get-[Junior] and [Dorothy] said ‘Yes, it will be all right for [the father] to have the child part of the time.’ [Junior’s father] then said she (Dorothy) could come to see the boy at any time. I then brought Junior home with me. We live in a long building divided into three rooms and a bath. ’ ’ When asked if it was a comfortable home Mrs. Carpenter replied, “Yes. There are nicer homes, but we live there. My son Prank lives with us.”
Testimony regarding petitioner’s mental condition is in sharp conflict. Dr. Jesse Hill, psychiatrist at Eastern State Hospital [for the insane] at Knoxville, examined Mrs. Hunter at his office February 17, 1945. She gave her address as Eossville, G-a.: — “I found that she had a psychosis. The type was undetermined, but it was of a depressing nature. She had many delusions, such as ... an impulse to put poison in the food of others; said she had nothing to live for; also had ‘spells’ when she did not know 'What she was doing. I sent her home and advised that she be put in a mental institution. ’ ’ The witness would not say whether at the present time (September, 1946) Mrs. Hunter was competent to have custody of the child: this because his examination was in February, 1945, and he had not seen her since.
Dr. Hill’s testimony was concurred in by Dr. F. 0. Pearson, who examined Mrs. Hunter in February 1945. Dr. Hill thought she was suffering “from a definite psychosis and was mentally unfit to properly rear her child. ’ ’
Another witness (Mrs. Euby Drummonds) testified that when the boy was very small Mrs. Hunter would not take care of him: — “She would play with bim until he began crying, then she would leave him. Later she came back and was worse than before. Instead of using a switch she would get a stick of stovewood. She told peo pie she had to do this or she would have to put him in an orphans ’ home. ’ ’ On cross-examination the witness (who was a daughter of Mrs. Carpenter and appellant’s sister-in-law) was asked if she had ever seen Mrs. Hunter whip the hoy with a stick of stovewood. She replied, “Yes, but my mother got the baby and went into the house with him.”
Against the medical testimony offered by the petitioner and intervener were statements by El Dorado doctors, and by non-professional witnesses, who thought that Mrs. Hunter was fully competent to care for the child. Some of the lay-witnesses were non-residents who had known Mrs. Hunter for a long time and who had not observed any abnormal conditions. The El Dorado physicians expressed opinions that if Mrs. Hunter had at one time suffered from any cause there had been complete recovery.
Perhaps the most striking testimony came from Mrs. Hunter’s father. Umbarger, a citizen of Whitehall, Tenn., who had formerly lived at Chattanooga, detailed at some length the circumstances attending Mrs. Hunter’s conduct and her mental and physical status. Her attitude toward her father and brother, he said, had always been peculiar, and “we never knew where we stood with her.” Her unusual conduct began shortly after 1925 when an attack of scarlet fever left certain adverse results. In 1945 Mrs. Hunter seemed to have undergone a complete physical breakdown. Neighbors called and suggested that she might be deranged. “I made investigations,” Umbarger said,' “and Dorothy seemed to realize there was something wrong with her mentally and insisted that she be taken to an institution — this at her own request. She was to have stayed there three months, but at the end of half that time she caused such trouble to get out, and the doctor wrote me about her condition in every way, stating that her case, as he called it, was not a complete mental case, but an extreme case of nerves.
‘ ‘ She claimed her boy when she got out, and I knew it would cause the same old trouble. She went home after she got the child and went to Mrs. West ’s place. It seems she and the boy got on each other’s nerves. She had no control over him. The child, being in her custody and care, made her condition worse; and it was not right for the child. She explained that her memory was bad; that she would get on a street car and not know where she was going. [She also explained] that once she used washing powder instead of flour in making bread. We were afraid that if there should be any poison around she might endanger her life and that of the child. Her nervous condition has not been so bad since she was relieved of the child. I have seen her very little, but her friends have remarked on her improvement. She seems to pride [herself] on doing just what she pleases, without any interference. You can never tell how she will react to any proposition.....I am acquainted with Mrs. Carpenter. I think she is a proper person to have the care and custody of this child and I think the child is very fortunate to have a grandmother to give him a home. I know very little about the child’s father, but I believe he is devoted to the little boy, and as far as I know he is the proper person to have the care and custody. I do not think my daughter should have the custody, [and] I hate so bad to say it! I go to church and Sunday School. T am affiliated with the Presbyterian Church of Chattanooga, and have been since 1916. I am not addicted to strong drink.”
In testifying further, Umbarger said he knew very little about the marital relationship of his daughter and her husband, but “When she came to my home she did' not say anything about her husband having left her. Dorothy has an independent income — enough to maintain a good living standard. I know [this] from the fact that her mother left her money, and her brother has increased his holdings. I know that she prides herself on the fact that no one knows how much money [she has], ‘and noth ing about ber. ’ Sbe bas no feeling for us, and as far as I am concerned sbe can handle ber own affairs.” Question: “You don’t care much about wbat your daughter does, do you, Mr. Umbarger?” Answer: “No, I don’t. Sbe does not want anyone to know anything about ber business, and the best I can do is to respect ber wishes. ’ ’
Later Mr. Umbarger testified that be saw Mrs. Hunter “five or six months ago about a business proposition. Sbe seemed able to transact business at that time, and I settled the business with ber. The administration of Dorothy’s property bas never been taken away from ber. ’ ’
March 13, 1945, Mrs. Hunter wrote to her son from Madison Sanitorium, addressing him as “Dearest Bobbie,”, and closing with the expression, “Write Mother, and be good. With love, Mother. ” This letter is printed in full in the margin.
It is suggested that the Chancellor, in weighing the evidence, did not give appropriate consideration to the probability of improvement during the lapse of time between examination and observation of Mrs. Hunter by physicians called by Mrs. Carpenter and the child’s father; that Mrs. Hunter’s testimony, given orally in open court, discloses a rational mind and logical conclusions ; that Umbarger’s attitude was not that of a natural father; that he had been disappointed because the daughter insisted upon handling her estate, to his' exclusion, and that selfishness colored the testimony to such an extent as to render it of little probative value.
All of this may be true. It must be conceded that credible witnesses — both physicians and laymen — gave direct testimony tending to support Mrs. Hunter’s contention that whatever disability may have impaired her capacity to care for the child in 1945 had been removed, and that her condition at the time the hearing was had was that of a sound and normal person. But to accept this analysis of the evidence we must believe (as the Chancellor seemingly did not) that Mrs. Hunter fully recovered after 1945, and that her father was mistaken and highly prejudiced. If Mrs. Hunter’s father’s conduct was singular, hers also was unusual. In her letter to the son who was. at that time but four and a half years old, the entire tone is one of self-pity, and throughout the communication there is accusation. “I think,” said she, “how hard you made yourself on me all the time I kept you, when you could have been good to Mother and played out in the yard and entertained yourself instead of staying inside right at my feet all the time, dictating to me the whole time, and fussing and finding fault with me.”
It seems preposterous that a normal mother would believe that a child less than five years of age would be “dictating” to her. And again: — “Since you seem to make more out of yourself without me, . . . it wasn’t intended for me to live to raise you; but if you had made things easier on me I believe I could have held out, and never would have landed here. I’m going to have to look out for myself from now on and make other arrangements for your care when I come home. ’ ’
The doctors at Vanderbilt had told Mrs. Hunter, according to her letter to the boy, that many things were wrong with her, and “I had known this for a long time, but knowing there was no insanity in our family I hated to ever give in to it, but had gone so long that I got in condition I had to; but your crying caused me some kind of spells I never had before. ’ ’
The evidence indicates that under Mrs. Hunter’s mother’s will Umbarger had the discretion to turn the estate over to Mrs. Hunter when she attained the age of twenty-one years, or he could continue to .administer it. The clear inference is that Umbarger chose to relieve himself of the responsibility involved in handling the estate; hence he did not, as might be inferred in respect of one interested in self-profit, attempt to retain the money. Yet, another construction might be that the father was indifferent to his daughter’s welfare and availed himself of the first opportunity to wash his hands of the transaction.
We think the Chancellor, who had many of the wit-, nesses before him, (as was the case in Tilley v. Tilley, 210 Ark. 850, 198 S. W. 2d 168), was in better position to judge the motives pertaining to the controversy than are we. The decision now reached is by a divided Court. Three of the Judges entertain views sharply opposed to those of the majority; and, if the trial Court had found that the child’s best interests would be served by taking custody from Mrs. Carpenter and again investing Mrs. Hunter.with a mother’s responsibilities, perhaps all of us would agree. But to reach that conclusion we would be required to say that after patiently listening to all that was said; after observing the witnesses, and considering testimony given in Mrs. Hunter’s behalf by physicians living in El Dorado, and after a judicial admeasurement of depositions and a balancing of sentimental ties and the boy’s welfare — to reach a conclusion favorable to Mrs. Hunter we would be forced to say that the Chancellor was wrong in his appraisement, and that we, with only the printed record before us, are better prepared to evaluate the facts and to turn the scale to another balance. This the majority cannot do.
The order will be affirmed without prejudice to Mrs. Hunter’s right later, by appropriate procedure, to establish her right to share in custody of the child if changed conditions are to her advantage. Affirmed.
The child referred to by Mrs. Hunter died.
“Dear Dorothy: Hope you and Junior are O.K. I sent your trunk to El Dorado, general delivery. I don’t know lots and street address. Honey, they sent your mail to a fellow named Hunter in D. Battery and he said it was opened by mistake. You had a check and letter, and I am enclosing them. Dear, I sure have been missing you and Junior. I’ll sure be glad when we get to Ft. Sill. Sweetheart, I’ll have to quit and mail this. Kiss Junior for me and write real soon. Tell Lois and all the folks hello for me and for them to write me. All my love to you and Junior. Robert.”
“Dear Dorothy and Junior: Hope you are feeling fine. I received your letter a few days ago. I kept putting off writing because we’ve been expecting the order ■ to go to Ft. Sill any day. The order came in yesterday and we are going to leave next Thursday. . . . Don’t know if we will get paid before we leave, or not. I will try to find an apartment soon as we get there and come after you and Junior some time next month. I’ll come just as soon as I can get a pass. We’ll be pretty busy for a while after we get there because we will have to organize, a new outfit. Yes, Honey, I met Wheeler’s wife the other night. She seems to be a nice woman. I haven’t been able to sell the baby bed yet, but am going to town Monday morning and try to sell it to some one. Nobody wants one, and it is awfully hard to sell it. Will write you on my arrival at Fort Sill. Kiss Junior for me. Love, Robert.”
In appellant’s abstract this sentence reads, “. . . and her brother has increased her holdings.” The inference would be that Mrs. Hunter’s brother handled her estate. However, the transcript shows that “his” was used, indicating that each inherited from the mother.
“I want to thank you for the good old box of cookies you sent me. One of the nurses comes in my room and eats some of them with me. She likes your cookies too.
“Sonny boy, I went to Vanderbilt yesterday for a fluoroscope, I believe it is called, and the Dr. told me this morning that it showed up many things wrong with me, that I had a form of epilepsy. I had known it a long time, but knowing there was no insanity in our family I hated to ever give in to it, but had gone so long that I got in condition I had to, but your crying caused me some kind of spells I never had before, but I had everything so hard on top of being up so much every night with you, but am satisfied that with other troubles I had had when single and still have that there were other causes too, sonny.
“How you did cry when you were a little baby, and on up till after three years old. My condition since you were born has given me much concern. I realized that you needed mother to live to raise you, but couldn’t see my way clear to holding out, so I could live to raise you, I wonder just how much longer I can live. You need me very much, but as I think of how hard you made yourself on me all the time I kept you when you could have been good to mother and played out in the yard, and entertained yourself instead of staying inside right at my feet all the time, dictating to me the whole time and fussing and finding fault with me, and I see how much better you do for other people than you ever did for me, I feel like it will be better for me not to even be worrying about living to raise you, since you seem to make more out of yourself without me, that it wasn’t intended for me to live to raise you, but if you had made things easier on me I believe I could have held out, and never would have landed here. I’m going to haye to look out for myself from now on and make other arrangements for your care when I come home. I had in mind a home like Aunt Susie worked in where you would have children to play with all the time and I can come by and get you and bring home on week ends. Maybe there is a place in Chattanooga for you.
“I regret very much my inability to raise you honey, but I did the best I could, under the circumstances. I’m making you a quilt for your little bed.
“I miss you so much. I wish you we're close, where I could see you often. Bless your little heart, sonny, I’ve only made you a piece of a mother, but would have done better if I could have.”
As reflected by the transcript, p. 109, Mrs. Hunter was asked by one of her attorneys: “I believe your mother stated in her will that the property was to be turned over to you at twenty-one, unless your father saw fit to do otherwise?” Answer: “He did turn it over to me, and I spent a good deal of it before I found out how to make the proper investments.” Question: “He had turned the money over to you, and he had to make a settlement, and you have handled it since?” Answer: “Yes.” | [
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McHaney, Justice.
Since the appeal in this case was lodged here, the death of appellee is suggested and conceded, and, by agreement the cause has been revived in the name of Jean Casey as administratrix of his estate.
Intestate brought this action against appellants to recover damages for the death of two of his dairy cows and the illness of other dairy cows caused, as alleged, by their eating of deleterious sweet potatoes dumped bn his farm by appellants’ employees without his permission, consent or knowledge, in a place where said cows could and did get access to them. The potatoes were alleged to be decaying and rotten, that the cows did eat thereof, became sick, from which two of them died. The answer was a general denial. Trial resulted in a verdict and judgment against appellants in the sum of $250. This, appeal followed.
For a reversal of the judgment, appellants first contend that the court erred in refusing to direct a verdict for them at their request which was made when intestate rested and again at the conclusion of all the testimony. When we view the evidence in the light most favorable to intestate as we do, we cannot say, as a matter of law, there was no substantial evidence to support a verdict in his favor. It is undisputed that about two tons of cull sweet potatoes were dumped on his land, in his enclosure, by the employees of appellants, and the proof is substantial that many of them were decaying and rotten. It is also undisputed that this dumping was done, without intestate’s knowledge or consent, at the request of another employee of appellants, Doyle Seels, who was renting from and living in a house belonging to, or .under intestate’s control, and about 50 yards from said house, on enclosed land not under the control of Seels.- The cows were in an adjoining pasture and gained access to the potatoes and ate some of them some ten or twelve days after they were dumped in the field. The cows broke out of the pasture during a rain and thunder storm. Our statute, § 3206 of Pope’s Digest, makes it “unlawful for any person to dump or unload any trash, junk or waste of any. kind upon the premises or property of another person or persons without written consent from owner of such premises or property . . . ” Violation is declared to be a misdemeanor and subject to a fine of from $10 to $500. Section 3207.
This statute was violated. It is not contended that intestate consented to the dumping either orally or in writing. It is argued that he learned that the potatoes were there a day or two after they were dumped in his field and should have removed them or because he failed to do so lie was .guilty of contributory negligence. We cannot agree that such a result should follow from the wrongful and unlawful act of appellants in dumping the potatoes on intestate’s land. Pie might have required them to remove the potatoes, or he might have removed them himself at their expense. He. did remove some of them and intended to remove them all, but the damage was done before he could do so.
We think a case of liability was made for the jury, and that the cases cited by appellants are not in point. They are personal injury cases.
Another argument against the right to recover is that there is no substantial evidence that the loss of his cattle was due to eating the potatoes. We cannot agree. Intestate testified that one of the cows became sick the next day after he saw them eating the potatoes (after the storm) and one the next evening. We think the jury had the right to draw the inference that eating the rotten potatoes caused the damage, especially in the absence of any suggestion of-other causes. The cows got to the potatoes only one time and were sick shortly afterwards. Also it is argued that the dumping of the potatoes where they were dumped was not the proximate cause of the injury. This question was submitted to the jury in instruction No. 1, as modified by the court, and we think properly. In Hook, Admr., v. Reynolds, 203 Ark. 259, 156 S. W. 2d 242, we held that to constitute proximate cause of an injury, “it must appear that the injury was the natural and probable sequence of the negligent or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.”. The fact that the cattle broke out of the pasture during a thunder storm some days after the potatoes were dumped and ate of them is not such an intervening cause as to justify the court in holding, as a matter of íaw, that the wrongful act was too remote.
Error of the court is also argued in the failure to define “proximate cause.”. A sufficient answer is that apppllants did not request the court to define the term.
There is also the contention that instruction No. 2, as modified, is erroneous, on the measure of damages, in directing the jury “to take into consideration the value of the dairy products, if any, lost by plaintiff by reason of the sickness, if any, of his other dairy cows.” We consider this in connection with appellants’ contention that the verdict and judgment are excessive. There was a verdict and judgment for $250. Intestate’s testimony would justify a verdict for $200 for the death of the two cows and $7 for doctor and medical bills. We think the evidence as to the value of the dairy products lost is too indefinite and uncertain to establish a loss of $43. His testimony as to the loss of dairy products was that before they ate the potatoes he was getting about $50 per month from all his cows and that the two that died were his best cows. After their death he got from $lS to $18 per month. The proof does not establish that the decline in production was caused by the sickness of the other cows. It was no doubt caused by the loss of the two best cows that died. This part of the judgment cannot be sustained.
The judgment will, therefore, be reduced by $43 and affirmed for $207 with interest from June 29,1946, at 6%. | [
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Minor W. Millwee,. Justice.
This is a suit by appellees, Burley C. Johnston and Duval Johnston, to quiet title to certain lands situated in th§ Fort Smith District of Sebastian county, Arkansas, and to cancel a deed from the state to appellants, J. F. Wilkerson and Ruth B. Wilkerson, dated October 25, 1945, and a- similar deed from the state to appellant, Yirgil Bracken, dated December 7, 1945.
The suit was filed on February 20, 1946, and on March 12, 1946, appellees filed their amended com plaint alleging that they were the owners and in possession of the lands in controversy; that the state deeds under which appellants claimed title were based upon a purported sale to the state for the nonpayment of the general taxes for the year 1931 which was void for numerous reasons set out in 18 separate paragraphs of the amended complaint; and that a tender to appellants of the amounts paid by them for their respective deeds, with interest, had been refused.
On March 19, 1946, Mr. Chester Holland appeared as attorney for all three appellants and filed a separate demurrer and motion to make the complaint more definite and certain. When the case was called for trial on June 19,1946, counsel for appellees announced their elec- • tion to rely upon only three of the 18 alleged grounds of invalidity of the tax sale set out in the complaint. After this was done, the answer of appellants was filed without a ruling being made or requested on their demurrer and motion to make the complaint more definite and certain. ' The answer denied the allegations of the complaint and pleaded the validity of the two deeds from the state xto appellants.
The cause proceeded to trial, resulting in a decree cancelling the two deeds from the state to appellants and quieting title to the lands in appellee, Burley C. Johnston. Appellants were found entitled to recover from Johnston the amount paid the state for their respective deeds, with interest. The decree recites: “And the plaintiff, Burley C. Johnston, having here in open court paid to the defendant, Virgil Bracken, the said sum of $125.09, and having here in open court paid to Chester Holland, attorney for the defendants, J. F. Wilkerson and Ruth B. Wilkerson, the aforesaid sum of $124, these judgments are hereby satisfied in full.”
On July 8, 1946, appellants, through their present attorney, filed a pleading denominated “Motion to Vacate Judgment and for a New Trial.” The motion sets out certain facts developed in the trial of the case and argument designed to demonstrate that appellants should have prevailed upon these facts. It also alleges that other facts should have been developed, and concludes with a prayer that the decree be set aside and a new trial ordered “so that defendants may be permitted to offer what, they believe is a valid and complete defense in this suit, but, which was not brought out in the original hearing.” Appellants also tendered the amounts paid them under the decree of June 19, 1946.
Appellees filed a demurrer to the motion alleging that it did not state facts sufficient to authorize the relief prayed. The demurrer was sustained and the motion dismissed when appellants declined to plead further. This appeal follows.
For reversal of the decree it is first earnestly insisted that the trial court erred in refusing to set aside the decree as to appellants, J. F. Wilkerson and Ruth B. Wilkerson. Ruth B. Wilkerson is the wife of J. F. Wilkerson and the sister of appellant, Virgil Bracken, who was duly served with summons and testified in the trial of the case. The motion to vacate the decree was filed during the term at which the decree was' rendered. It is well settled that courts have control over their orders and decrees during the term at which they are made, and for sufficient cause may, either upon application or upon their own motion, modify or set them aside. American Building & Loan Ass’n v. Memphis Furniture Manufacturing Co., 185 Ark. 762, 49 S. W. 2d 377.
It is not alleged in the motion to vacate that Mr. Holland was unauthorized to appear for the Wilkersons, but their affidavit is attached to the motion which states that they have been residents of Colorado for the past four years; that they were not served with summons; and did not employ Mr. Holland or any other attorney to represent them in the case. It is not charged that Mr. Holland appeared for the Wilkersons through mistake or that such appearance was fraudulent and without their consent. It would not be unusual in a case of this kind for the resident defendant to employ counsel to represent his nonresident sister and brother-in-law with their knowledge and consent. It is reasonable to assume that if the Wilkersons had not known of the suit in time to defend it, and had not consented to the appearance of Mr. Holland in their behalf, snch facts would have been made known to the cohrt and set out in the motion to vacate the decree. The record discloses that Mr. Holland had possession of the deed from the state to the Wilkersons, and this deed was introduced in evidence. Under all these circumstances, we are unable to say that the chancellor abused his discretion in refusing to vacate the decree as to appellants, J. F. Wilkerson and wife.
Appellees having waived the question in their brief, we will- treat the proceeding herein as an appeal from the original decree. The remaining question is whether the trial court erred in holding the two state deeds to appellants void and ordering their cancellation. The complaint, as amended, alleged: ‘ ‘ The lands were incorrectly described in the published list of delinquent lands, and in the clerk’s certificate to the State, and in the State’s deeds to the defendants.” The deeds from the state to appellants described the two tracts as “Lots 1 to 12, Block 15, Prairie View Addition,” and “Lots 1 to 12, Block 16, Prairie View Addition.” The lands were thus described in the delinquent list, the clerk’s certificate to the State, and a confirmation decree rendered in favor of the 'State in 1937.
The testimony discloses that the original plat of Prairie View Addition to the city of Fort Smith, Arkansas, was filed November 30,1897. The addition consisted of 16 lots comprising approximately 5 acres each and numbered 1 to 16, inclusive. Lots 1 to 8, inclusive, constituted the north half of the addition and lots 9 to 16, inclusive, the south half, with a 50-foot street dividing the two halves. In 1905 the owners of the north half of the addition (lots 1 to 8, inclusive) subdivided it into 16 blocks with each block divided into 12 lots. A plat of the subdivision was filed of record on January 13, 1906, and is officially described as “Revised Plat of Lots 1, 2, 3, 4, 5, 6, 7, & 8 of the Plat of Prairie View.” Blocks 15 and 16 of the revised plat are a part of lots 1 and 2 of the original addition. It will be observed that there is neither a block 15 nor a block 16 in Prairie View Addi tion. The lots in controversy are 12 lots in block 15 and 12 lots in block 16, not of “Prairie Yiew Addition” but of “Revised Plat of Lots 1, 2, 3, 4, 5, 6, 7, & 8 of the Plat of Prairie Yiew.”
Leigh Kelley, who owned property in the subdivision and was engaged in the real estate business, testified that there was general confusion in the identity of the' lots and blocks of the revised plat of "lots 1 to 8, inclusive, of Prairie Yiew Addition, as against the lots of the unrevised portion of the original Prairie Yiew Addition. This confusion was demonstrated by example. "When asked how the lands in the subdivision had been conveyed between individuals since the revised plat was filed, the witness answered: “For those who are careful in descriptions they have been conveyed- as lot' and block number of the Revised Plat of lots 1 to 8, Prairie Yiew Addition. A great many people' have conveyed them, however, as lot and block number in the revised plat of the north half of Prairie View Addition, but an accurate description should be ‘ of the Revised Plat of Lots 1 to 8, Prairie View Addition.’ ”
In Buckner v. Sugg, 79 Ark. 442, 96 S. W. 184, this court, in commenting1 upon the sufficiency of the description of lands in a tax proceeding,- said: “ It is well settled, not only by the decisions of this court, but by the adjudged cases in the courts of other states, as far as we can discover, that, in order to make a valid assessment and sale of land for taxes, the land must be described with certainty upon the assessment rolls and in all subsequent proceedings for the enforcement of payment of the tax. The chief reason for this requirement is that the owner may have information of the charge upon his property. It has sometimes been said that a description that would be sufficient in a' conveyance between individuals would generally be sufficient in assessment for taxation. We do not, however, consider that a safe test. The description in tax proceedings must be such as will fully apprise the owner, without recourse to the superior knowledge peculiar to him as owner, that the particular tract of his land is sought to be charged with a tax lien. It must be such as will notify the public wliat lands are to be offered for sale in case the tax be not paid.” In Cooper v. Lee, 59 Ark. 460, 27 S. W. 970, this court said: “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 not sufficient. ’ ’ These statements have been cited with approval in many subsequent cases. See, Beck v. Anderson-Tully Co., 113 Ark. 316, 169 S. W. 246; Guy v. Stanfield, 122 Ark. 376, 183 S. W. 966; Brinkley v. Halliburton, 129 Ark. 334, 196 S. W. 118, 1 A. L. R. 1225; Buchanan v. Pemberton, 143 Ark. 92, 220 S. W. 660; Shelton v. Byrom, 206 Ark. 665, 177 S. W. 2d 421.
In Massey v. Bickford, 208 Ark. 685, 187 S. W. 2d 541, the validity of a tax sale was involved where the property was described as “Lot 5, Block 6, Fishback No. 2 Addition to the City of Fort Smith. ’ ’ The evidence disclosed that there was a “Fishback Addition” but no “Fishback No. 2 Addition” in Fort Smith. This court held the description insufficient to convey title and the tax proceedings based thereon void and not subject to confirmation. It was urged there, as it is here, that the lot might be definitely located by proof aliunde, but we said: ‘ ‘ This cannot be true. Since the description places the lot in Fishback No. 2 Addition, no amount of proof aliunde could locate it in an addition that does not exist.” See, also, Boswell v. Jordan, 112 Ark. 159, 165 S. W. 295. Under the authorities cited, we think the descriptions employed in the tax proceedings in the instant case were defective and misleading to any person only ordinarily versed in such matters. It is undisputed that there is neither a block 15 nor block 16 in Prairie View Addition and no amount of testimony would cure this defect in the description. The trial court was warranted in finding that the descriptions were insufficient and the tax proceedings based thereon, including the decree of confirmation, void and of no effect.
Appellants also contend that appellees are barred from attacking the confirmation decree by Act 423 of 1941 which provides that.all attacks upon such decrees after one year shall be taken as collateral and ineffectual, except in those cases where the taxes have actually been paid. The confirmation decree herein was rendered in 1937 and we have held that Act 423 of 1941 does not apply to confirmation decrees rendered prior to passage of the Act. Schuman v. Walthour, 204 Ark. 634, 163 S. W. 2d 517; Lumsden v. Erstine, 205 Ark. 1004, 173 S. W. 2d 409, 147 A. L. R. 1132.
Since we hold the deeds to appellants void because of the insufficiency of the descriptions, we find it unnecessary to determine whether the tax proceedings were also void because the sales record fails to show a sale of the property to the State, and whether such defect may be cured by confirmation.'
Affirmed.
Holt, J., not participating. | [
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Robins, J.
On September 22, 1941, Willis H. Whitaker borrowed from Miss Lottie Earl $500, and executed to her his promissory note therefor, due one year after date, bearing interest at the rate of ten per cent, per annum. In order to secure this indebtedness Whitaker on the same day signed and acknowledged a real estate mortgage conveying to Miss Earl certain real estate in Rector, Arkansas. This mortgage was filed for record on September 26, 1941, and was duly recorded. On the day the note was executed Miss Earl endorsed and transferred it to appellee, Miss Emeline Vincent. Miss Earl died on August 9,1942.
On February 23, 1942, Whitaker sold and by warranty deed conveyed to appellants, J. L. Purcell and Maud 0. Purcell, his wife, the real estate which he had previously mortgaged to Miss Earl.
Nothing having been paid on the said note, appellee instituted suit on September 5, 1945, in the lower court against Whitaker and appellants, asking for judgment for the amount of said note and interest and for foreclosure of the mortgage given to secure same.
Appellants answered, alleging that they were the owners, by virtue of their deed from Whitaker, of the land described in the mortgage; that they had tendered the amount of said note to Lottie Earl in her lifetime and to her executors after her death, which tenders were refused; that there had been no valid assignment of the mortgage; that appellee was not a bona fide holder of the note nor authorized to release the mortgage; that they had tendered appellee payment; and they tendered into court the sum of $550 in settlement of the entire indebtedness. They prayed for cancellation of the lien of the mortgage.
The lower court found that the note and the mortgage sued on had been duly transferred by endorsement and delivery to appellee, who was the owner and holder thereof; that the conveyance from Whitaker to appellants was subject to the mortgage given by Whitaker to Miss Earl; that no payment had been made on said note and that $802.81 was due thereon. The decree was that the sum paid into court by appellants be applied on the indebtedness, leaving $252.81 due thereon, for which sum foreclosure of the mortgaged premises was ordered.
For reversal of this decree it is argued by appellants: (1) That “cancellation of the mortgage was a condition precedent to ordering and directing payment of the money.” (2) That appellee, by assignment of the note, did not become assignee of the mortgage. (3) That appellee is estopped from foreclosing the mortgage because of “misrepresentations, statements and declarations, and because she has accepted . . . the.money.”
I.
It was not necessary for the court to require a cancellation of the mortgage before payment of the debt secured thereby was ordered; indeed, it would not have been proper for the court to have so decreed. The mortgage and lien thereof were merged into the foreclosure decree and satisfaction of this decree would automatically work a release and satisfaction of the mortgage. Appellee was the holder and assignee for value of the note, and payment to her at any time after maturity would have extinguished the debt. Section 10209, Pope’s Digest.
But, if, prior to the filing of the instant suit, appellants were in doubt as to the person to whom payment of the debt should have been made they had an adequate remedy. At any time after maturity of the note they might have brought bill of interpleader, tendering into court the amount due on the note, making defendants therein appellee and Miss Earl, or, after her death, her executors, and asking that the court award the money tendered to the party entitled to receive it and that the mortgage be canceled in appropriate manner. They did not see fit to exercise this remedy, and, when the instant suit was filed, they did not tender the full amount due.
II.
There is no foundation for the contention that by transfer of the note to her appellee did not obtain assignment of the mortgage. We have often held that an assignment of a promissory note carries with it a transfer to the assignee of all security to the note held by the assignor. Fullerton v. Storthz, 182 Ark. 751, 33 S. W. 2d 714; Rock ford Trust Company v. Purtell, 183 Ark. 918, 39 S. W. 2d 733; Lehman v. First National Bank in St. Louis, 189 Ark. 604, 74 S. W. 2d 773.
III.
No representations, statements or declarations by appellee tending to mislead appellants were showii by the testimony. It appears from the record that after the rendition of the decree the attorney for appellee collected from the clerk the snm of $¿50 which had been paid into the registry of the conrt. This was done in accordance with the provisions of the decree, and receipt of this snm by appellee did not in any way bar collection of the remainder due to appellee under the decree.'
No error appearing, the decree of the lower conrt is affirmed. | [
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MoHaney, Justice.
Appellants, other than Jewell Jones, are the heirs at law and beneficiaries under the will of their mother, Caroline Milner who died testate some 16 years ago and left to them the 160-acre tract of land here in controversy.
All of the appellants, except Dilsa Lillie and Caroline Billingsly, were defendants in the same court in a cause involving the same land, wherein appellees in this action were the plaintiffs in that, and which resulted in a decree on February 7,1945, in favor of appellees, holding that they are the owners of 18 acres in a square in the southeast corner of the said 160-acre tract and a writ of assistance was granted to put appellees in possession of said 18-acre tract. No appeal was taken from said decree. This action was numbered 5527 on the chancery docket.
This present action was brought in August, 1945, by Dilsa Lillie and Caroline Billingsly against appellees and the complaint was later amended to include all the appellants as plaintiffs, including Jewell Jones. They sought to cancel the decree in case No. 5527, dated February 7, 1945, because “erroneous and fraudulent” and prayed- that their title to said 160-acre tract be quieted, and for other relief.
Trial resulted in a decree dismissing the complaint for want of equity. As to appellants, Dilsa Lillie and Caroline Billingsly, the court found that they had each conveyed their undivided interest in said 160-acre tract to appellees in 1932 in satisfaction of an indebtedness secured by mortgage to C. H. Bartlett given in 1930. C. H. Bartlett thereafter died and appellees are his heirs. As to the other appellants, including Jewell Jones, the court found that the former decree in case No. 5527 precluded any right of recovery by them on the plea of res judicata by appellees, because either the questions now raised were raised in that action and decided against them, or that they could and should have been raised and adjudicated in that action.
This appeal questions the correctness of this decree. We think the trial court was correct in so holding.
The first suit was filed by appellees on February 23, 1914. They alleged that, as grantees of Dilsa and Caroline, they were the owners of an undivided interest in the Milner 160-acre tract as tenants in common with the rest of the Milner heirs. The only question in dispute in that case was the location of the 18-acre tract claimed by appellees who asserted it was to be in the southeast corner of the quarter section, whereas the defendants in that action claimed it should be in the northeast corner. Dilsa and Caroline were not parties to that action because they had conveyed all their interest to appellees in 1932, and had no further interest in said 160-acre tract. In the present action they deny executing a deed to the appellees. They both admit execution of a mortgage to O. H. Bartlett in Ms lifetime and the original mortgage executed by Dilsa with her admitted signature thereon, and the deed executed by both are before us, and we have CQmpared the signatures and find them to be the same. Moreover, the evidence given by the notary who took the acknowledgments of both and that of Mr. Nunnally who was present preponderate in favor of the court’s finding that they both signed the deed.
As to Jewell Jones who claims one acre of the land awarded to appellees, when this suit was filed by appellants, appellees caused the writ of assistance theretofore authorized by the court in the original decree in No. 5527, to be issued by the clerk and to be served on Jones by the sheriff. Jones thereupon applied to the court for a temporary injunction, and Jones appealed to this court and we affirmed. Jones v. Bartlett, 209 Ark. 681, 191 S. W. 2d 967. In his petition for injunctive relief, Jones alleged he did not appeal from the decree in 5527, “because all the heirs and interested parties in said lands were not made parties to this suit; that a new suit has been filed and is now pending in this court, involving the same land and the .same issues, together with some new issues.” But, as we have shown, “all of the heirs and interested parties” were made parties in the former suit, and it is conceded that the “same land and the same issues” were involved, “together with some new issues.” But there are not any new issues involved in the case at bar, or, if there are, they could and should have been litigated in the former suit. So, the doctrine of res judicata applies and prevents appellants from maintaining this action. In Ogden v. Pulaski County, 189 Ark. 341, 71 S. W. 2d 1052, we said: “It is the general rule, which has been frequently announced by this- court, that the parties to an action are bound to make the most of their case or defense and that a judgment of a court of competent jurisdiction operates as a bar to all questions in support of the cause or the defense, either legal or equitable, which were, or could have been interposed in the case.”
The decree is correct and is accordingly affirmed. | [
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Ed F. McFaddin, Justice.
This appeal stems from a motor vehicle collision. Appellee was. plaintiff in the trial court, and was awarded a verdict and judgment for $4,000. From an unavailing motion for new trial, the appellant (defendant below) brings this appeal, urging here for reversal the six assignments herein listed and discussed. For convenience, we refer to the parties as they were styled in the trial court.
First Assignment: “The verdict and judgment are contrary to clearly established and uncontroverted physical facts in the case.”
Shortly after dark on Saturday night, October 28, 1944, the plaintiff, George Mills, accompanied by his wife and two other persons, was driving his Ford sedan northerly towards Monticello, and the defendant’s servant (Monroe Franklin) was driving defendant’s 1%-ton Ford truck southerly from Monticello. The two vehicles collided on State Highway No. 81, and plaintiff received injuries and damages, the nature and extent of which will be mentioned in the discussion of Assignment No., 6. At the place where the collision occurred the road is practically straight, and a heavy black line indicates the cen ter of the road. The plaintiff was attempting to drive on the east side, and the defendant on the west side. The hard-surface highway is 18 feet and 4 inches wide.
Plaintiff’s witnesses testified that the plaintiff was on the east side, and .that the defendant’s truck crossed the center line and caused the collision. The defendant’s witnesses testified that the defendant’s truck was on the west side, and that the plaintiff’s car crossed the center line and caused the collision. The cars did not hit head-on ; but the left front of each vehicle received the impact, and each vehicle continued some distance before coming to a stop. Plaintiff’s car had the left front wheel and fender damaged, and the left front door crushed. Prom the collision point, the car angled to the west (left) side of the road before stopping in the ditch about 50 yards from the collision. The defendant’s truck had the left front wheel torn from the axle, and knocked “back up under” the truck, with the front or running part of the wheel turned out. Also, there was damage to the body of the truck on the left side just back of the cab door. The truck traveled about 50 yards southwest from the collision. The back end skidded to the right, and the truck stopped with the rear end in the ditch on the west side of the highway. As the truck went down the highway, the rubber from the front wheels left skid marks on the pavement, which skid marks remained visible for several weeks.
It is conceded by the defendant that there is sufficient evidence to sustain the verdict of the jury if the physical facts be ignored, but it is most earnestly contended that three physical facts establish the defendant’s case and necessitate reversal of the jury’s verdict. Learned counsel for defendant invokes the rule that a verdict will be set aside, if it be against incontrovertible physical facts; and, in support of that rule, cites St. L. S. W. Ry. Co. v. Ellenwood, 123 Ark. 428, 185 S. W. 768; Waters-Pierce Oil Co. v. Knisel, 79 Ark. 608, 96 S. W. 342; Platt v. Owens, 183 Ark. 261, 35 S. W. 2d 358; Magnolia Petroleum Co. v. Saunders, 193 Ark. 1080, 104 S. W. 2d 1062; Mo. Pac. R. Co. v. Hancock, 195 Ark. 414, 113 S. W. 2d 489; and Guardian Life Ins. Co. v. Waters, 205 Ark. 87, 167 S. W. 2d 886. To these cases might well be added the following authorities: 3 Am. Juris. 451; 4 C. J. 861; 5 C. J. S. 631 and note, p. 640; 46 C. J. 183; and the annotation in 21 A. L. R. 141 on ‘ ‘ Evidence contrary to scientific principles or laws of nature.” Mr. Justice Hakt, in St. L. S. W. Ry. Co. v. Ellemoood, supra, stated the rule in this language:
‘‘Appellate courts take notice of the unquestioned laws of nature, of mathematics, of mechanics and of physics. So where there are undisputed facts shown in the evidence, and by applying to them the well known laws of nature, of .mathematics and the like, it is demonstrated beyond controversy that the verdict is based upon what is untrue and what cannot be true, this court will declare as a matter of law that the testimony is not legally sufficient to warrant the verdict. ’ ’
With this rule in mind, we proceed to examine the physical facts which defendant says (a) 'are incontro-' vertible; and (b) prove beyond controversy that the collision must have occurred on the west side of the center line of the highway. These physical facts are: (1) the skid marks on the pavement; (2) the condition of each vehicle after the collision; and (3) the final point of res I of each vehicle. ■
(1) The skid marks. As previously stated, definite skid marks were made on the pavement by the front wheels of the defendant’s truck; and these marks began about ten inches west of the center line, and continued with the movement of the truck. Defendant argues that the collision happened where the skid marks began; and that, since the skid marks began on the ivesf side of the center line, therefore, the defendant’s driver as not on the east or wrong side of the road. But several witnesses testified that there was dirt caused by the collision on the east side of the center line; and that the truck tire skidded in the dirt for some distance before starting to make the rubber skid marks on the pavement. Also, witnesses testified that the rubber tires of the truck did not make the skid marks until the front wheels became locked by being driven west across the center line. As typical of the plaintiff’s evidence on this point, we quote a portion of the testimony of Dempsey Polk, city marshall of Monticello:
“Q. Prom the signs made from this on your investigation, tell the jury whether or not Mr. Mills’ car was across the center line when the collision occurred, or whether or not the truck was on Mr. Mills ’ side when it occurred. A, The track made over here where this track started in the dirt, knocked off this car, was within six inches of the edge here and gradually went on across. . . . Q. Then the truck, according to your testimony, is bound to have hit this car on the east side of the center line of the highway? A. That’s right.”
It is thus made to appear that the plaintiff’s witnesses claimed (a) that the skid marks began only after the wheels left the dirt, which had fallen from each vehicle at the point of collision; and (b) that the beginning'of the rubber skid marks did not indicate the point of collision. If this evidence be true — and that was for the jury — the skid marks did not establish incontrovertible evidence as to the point of collision. The fixing of that point was still left to the evidence of witnesses. The jufy took the plaintiff’s version, and we cannot say that the jury’s verdict was wrong as a matter of law.
(2) The condition of each vehicle after the collision. We have previously detailed the damage to each vehicle. Defendant submits that the marks of impact and the resulting physical conditions of the vehicles prove that the collision occurred west of the center line. But we cannot agree. The saíne marks of impact, and the same resulting physical conditions could have occurred, regardless of which side of the center line was the point of the collision.
(3) The final point of rest of each vehicle. Since the car and the truck both stopped in the ditch on the west side of the road, defendant argues that the car, being the lighter vehicle, must have been headed west before the collision, and merely “sideswiped” the truck. This argument is reinforced hy the fact that the left front headlight of the truck was not burning before the collision, and the plaintiff thought — until a moment before the collision- — that it was the right front headlight of the truck that was not burning.
But we cannot say that the course traveled by the vehicles from the collision to the final point of rest furnishes “incontrovertible physical facts” that the collision occurred on the west side of the center line. The Missouri Court of Appeals, in Lang v. Mo. Pac. R. Co., 115 Mo. App. 489, 91 S. W. 1012, uses this language, which expresses our views here:
“So frequently do unlooked-for results attend the meeting of interacting forces that courts, in such cases, should not indulge in arbitrary deductions from physical ' law and fact, except when they appear to be so clear and irrefutable that no room is left for the entertainment, by reasonable minds, of any other. ’ ’
Regarding the defendant’s first assignment, about incontrovertible physical facts in this case, it is not for us to substitute our conclusions for those of the jury, unless the physical facts demonstrate beyond a doubt that the verdict was erroneous. We cannot so dseclare in this case. We take the view, so well expressed by the Missouri Court of Appeals in Stokes v. Metropolitan St. R. Co., 173 Mo. App. 676, 160 S. W. 46:
“We are asked to reverse the judgment on the ground that plaintiff’s version of her injury is so contrary to, physical law and so incredible that it should .not be accorded any probative value.' We would not bé justified in treating as substantial that which has no substance, in committing the solecism of holding in effect that testimony might be true which common experience and common knowledge of physical laws would reject as palpably false; and should we find the evidence of plaintiff ‘is so contrary to the daily experience of common life, so at war with the'conceded physical facts,’ as to be beyond reasonable belief, we would not hesitate to brush it aside as wholly valueless. ... On the other hand, it is our duty, as an appellate tribunal, to exercise great care and caution in applying the tests of common sense and common knowledge of physical law to a given state of facts. The testimony of unimpeached witnesses should not be lightly waved aside as impossible or incredible. Common experience and observation teach us that strange and astonishing things sometimes happen in the physical world, and it would not do to give to dogmatic and undemonstrated conclusions respecting natural laws precedence over the testimony of apparently credible witnesses.”
We adopt as our own the words of the Missouri Supreme Court in Dempsey v. Horton, 337 Mo. 379, 84 S. W. 2d 621:
“Only in those extraordinary cases, where deductions from physical laws and facts so clearly and irrefutably disprove the testimony of witnesses that reasonable minds may not entertain any other conclusion, are courts justified in ruling sworn testimony inherently unbelievable and impossible.”
Second Assignment: ‘ ‘ The court erred in permitting a hypothetical question which did not incorporate all the undisputed and essential facts.”
The witness, Sweeny Copeland, was, at the time of the collision, a sergeant in the Arkansas State Police, and as such officer, made a personal investigation of the scene of the accident a few days after the collision. He was called as a witness by the defendant, and his evidence showed his keen perception of all marks, conditions, etc. In rebuttal, the plaintiff asked Copeland a hypothetical question, which did not incorporate all the undisputed and essential facts. But Copeland, in his answer, added to the question all these other undisputed and essential facts, when he said, in part:
“. . . that, with the other facts that 1 did find, indicated, . . .” (Italics our own.)
Thus, the witness cured the defect in the question, because he added his own personally acquired knowledge to the hypothetical facts. In St. L. & S. F. R. Co. v. Fithian, 106 Ark. 491, 155 S. W. 88, expert witnesses were asked hypothetical questions which did not include all the facts, but Mr. Justice Kirby, speaking for this court, said:
“It is also insisted that the court erred in permitting the expert witnesses to answer hypothetical questions relative to the. proper construction of the main track upon the curve without taking into consideration the undisputed fact that a switch track led off from the main line at a different curvature near the bridge. . . . These experts, however, were not answering hypothetical questions which failed to include the switch track construction, but gave their opinions upon conditions that they found reflected and to exist at the time of the accident from an examination of the place thereof after the occurrence, and it cannot be said that they did not take into consideration the switch track as constructed since it was upon the ground at the time of their examination. It was proper to permit the expression of their opinions under the circumstances and appellant could have tested their knowledge of the existing conditions' and discovered whether this fact was taken into consideration by them in forming their opinions if it had desired to do so, upon proper cross-examination. Ringlehaupt v. Young, 55 Ark. 133, 17 S. W. 10.”
To the same effect, see 20 Am. Juris. 665, et seq., and the annotation in 82 A. L. R. 1338. We find no merit in defendant’s second assignment.
Third Assignment: “The court erred in requiring Monroe Franklin to answer a question propounded to him relative to a conviction for carrying a pistol and disturbing the peace while drunk. ’ ’
Monroe Franklin was the defendant’s servant who was driving the truck that was in the collision with the, plaintiff’s car. Franklin was called as a witness by the defendant, and on cross-examination was asked about the officers taking him to Monticello Sunday morning after the collision on Saturday night. The record reflects:
“Q. Do you remember what was said to you? A. Yes, sir. He asked me wasn’t I drunk and I told him, ‘No, sir. ’ . . . Q. Do you remember whether you replied to Mr. Polk, and said, ‘No, sir, I wasn’t drunk but I was drinking some?’ Did you say that? A. No, sir. . . . Q. Isn’t it true that you were convicted here in this court for carrying a pistol and disturbing the peace while drunk down here at Lacey a couple of years ago ?
“The defendant objects to each question and answer of Monroe Franklin concerning his former conviction in circuit court for carrying a pistol, and so forth, and saves his exceptions.
“A. No, sir, I wasn’t drunk. Q. Were you drinking a right smart? A. No, sir.
“By the Court: Ladies and gentlemen of the jury, you will not consider these questions and answers in any manner in determining the facts in this case except as going to the credibility of this witness’ testimony.”
After the court made the last-quoted ruling, there was no further objection by the defendant, and no subsequent exception saved to this or any subsequent ruling of the court in the interrogation of this witness. In other words, the court’s ruling, in telling the jury to limit the evidence to credibility, was made in response to the defendant’s objection. If the defendant was not satisfied with the sufficiency of the ruling, he should have asked for another and different ruling, and then excepted if he did not obtain the desired ruling. He failed to do either of these things. He acquiesced in, and accepted as sufficient and satisfactory, the ruling made by the court. So he is in no position to raise his third assignment. In So. W. Tel. and Tel. Co. v. Abeles, 94 Ark. 254, 126 S. W. 724, 140 Am. St. Rep. 115, 21 Ann. Cas. 1006, Mr. Justice Hart, in passing on a somewhat similar situation, said:
“ . . . counsel for appellant insists that the court erred in not excluding certain portions of Dr. Green’s testimony, and in certain remarks made by the court when appellant’s counsel made objections to the testimony. It is sufficient answer to this to say that no exceptions were saved either to the ruling of the court on the evidence or to the remarks made in doing so. Under' the well established rules of this court, if any errors were committed, they have been waived.”
In Meisenheimer v. State, 73 Ark. 407, 84 S. W. 494, Chief Justice Hill said:
“No exception was taken to the ruling. An.objection precedes an exception. The objection calls for a ruling by the trial court, and the exception directs attention to and fastens the objection for a review on appeal. If a party does not follow the ruling on his objection by clinching it with an exception, he waives the objection.”
See, also, Valentine v. State, 108 Ark. 594, 159 S. W. 26; Holmes v. State, 153 Ark. 339, 240 S. W. 425. So, even if the questions asked the witness were beyond the proper range of cross-examination — which we do not decide — nevertheless, there was no exception to the court’s ruling.
Fourth assignment: “The court erred in refusing to give instruction ‘C’ requested by appellant.”
The gist of the requested instruction was, that if plaintiff was negligent in assuming that the one headlight burning on the defendant’s car was the left light,when in fact it was the right light, then the' plaintiff could not recover. We see no error in refusing this instruction. Defendant’s instruction No. 1 told the jury that the plaintiff could not recover if he was guilty of negligence. And defendant’s instruction No. 9 defined negligence. We think these instructions Nos. 1 and 9 sufficiently covered the negligence issue so as to make the requested instruction “C” unnecessary, even if it were otherwise correct.
Sixth assignment: “The verdict and judgment are excessive. ”
Before considering the .fifth assignment,, we will consider now this sixth one. The plaintiff sued for $21,365.69, but received a verdict for only $4,000. He showed itemized financial damages, as follows:
Hospital and medical expenses $ 667.08
Paid to repair damage to car 165.69
Loss of earnings between date of injury and trial 1,162.50
Total $1,995.27
The above items covered monetary losses only. The plaintiff’s arm was broken and otherwise injured. It was first set, and placed in a cast for 30 days; and then reset and placed in another cast for an additional 60 days. The plaintiff testified:
‘ ‘ Q. Tell the jury whether or not you suffered any pain and mental anguish from this injury?
“A. I suffered death for about two months.”
Plaintiff also testified that he was still suffering at the time of the trial. In addition, the record reflects the following occurred in the plaintiff’s testimony:
“ Q. With reference to your working or doing the class of work that you did before you were injured, Mr. Mills, can you do that now, drive a tractor and do farm work and labor like you did before?
“A. No, sir.
“Q. Why can’t you do that?
“A. I just haven’t got but one hand to do it with.
“Q. I wish you would pull off your coat there and show the jury your hand and arm so they can see just what you do have.
“A. (Witness exhibits to jury his arm and hand).
“Q. Show the jury how much you can work your hand, and so forth.
‘ ‘ A. That is all I can work my hand (demonstrates).
“Q. In working on your arm was it necessary for the doctor to operate on it, cut into it or anything?
“A. Yes, sir.
‘ ‘ Q. When was that done ?
‘ ‘ A. When I was first hurt, when I had the accident.
“Q. That is the sunken places on the back there?
“A. Yes, sir.”
The jury thus observed not only the extent of the injury, but the condition of the plaintiff at the time of testifying, and also the degree of impairment of the arm. There are no photographs in the record, so we cannot say that the impairment was insufficient to justify some substantial award. 'Considering this impairment of the arm along with the pain and suffering and the monetary loss previously mentioned, we cannot say that the verdict of $1,000 was excessive.
Fifth assignment: “The court erred in giving instruction No. 3 requested by appellee.” This instruction reads:
“If the jury find for the plaintiff, they will assess his damages at such a sum that will compensate him for the bodily injury sustained, if any; the physical pain and mental anguish suffered and endured by him in the past, if any, and that which will be endured in the future, if any, by reason of the said injury; his loss of time, if any; and his pecuniary loss from his diminished capacity for earning money through life, according to what you find his probable expectancy, if he had not received the injury complained of, if any; and the amount of money, expended for medicines and medical attention, if any; and from these, as proven from evidence, assess such damages as will compensate him for the injuries received. ”
The defendant objected both generally and specifically to this instruction; and the specific objection was:
“ . . . because there is no evidence sufficiently certain to submit to the jury upon which to base recovery for diminished earning capacity.”
The plaintiff was 50 years old at the time of the injury, and it was stipulated that a person of that age had expectancy of 20.91 years. The plaintiff testified that for five years before he received his injury, he had been employed by the Crossett Lumber Co. as a truck driver, and earned about $35 or $40 per week; that the only work he had done since he received his injury was as an overseer or foreman of a crew engaged in cutting a right of way for the Arkansas, Power & Light Co. He was so employed at the time of the trial, and was then earning about $35 or $40 per week. Prom this evidence, the defendant argues that the plaintiff is making as much money now as before receiving his injury, and therefore has shown no diminished earning capacity. But it must be remembered: (1) that the jury saw the impairment of the plaintiff’s arm, and knew whether he had thereby suffered a “diminshed capacity for earning money through life”; (2) that the evidence showed that the work as foreman of a right of way crew was merely a temporary, rather than a permanent, job; and (3) the plaintiff testified that his injury prevented him from doing the type of work he had formerly done. When these points are considered, it is obvious that there was some evidence to support the instruction as given. See Ferguson & Wheeler Land, Lumber & Handle Co. v. Good, 112 Ark. 260, 165 S. W. 628; S. L. I. M. & S. Ry. Co. v. Oliver, 92 Ark. 432, 123 S. W. 662; Briley v. White, 209 Ark. 941,, 193 S. W. 2d, 326.
In disposing of the sixth assignment (on excessiveness of the verdict), we purposely omitted from the calculation the element of diminished earning capacity, because the verdict as rendered was not excessive, even if no part of the award was for diminshed earning-capacity. If the verdict were for a large amount, then a different situation might he presented, but since the verdict was not excessive on the other elements of damages, then any error — and we do not say there was any — in instructing the jury to consider diminshed earning capacity, was rendered harmless by the jury’s verdict. See Lamden v. S. L. S. W. Ry. Co., 115 Ark. 238, 170 S. W. 1001; Ferguson & Wheeler Land, Lumber & Handle Co. v. Good, supra; S. L. I. M. & S. Ry. Co. v. Oliver, supra; and cases collected in West’s Arkansas Digest, “Appeal and Error,” § 1068.
On the whole case ive find no error, and the judgment is affirmed. | [
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Robins, J.
On October 23, 1944, the Commissioner of State Lands sold and conveyed to appellant lots 5, 7, and 9, of the southwest quarter of section 6, township 4 north, range 5 west, 136.72 acres, which, according to the commissioner’s record, had been sold to the State for nonpayment of taxes of 1925.
Thereafter appellant filed suit in the lower court against appellees, alleging that he was the owner of the said land, by virtue of his deed from the State Land Commissioner, that he had ‘ ‘ the right of possession,’ ’ ’ that appellee, Wilmuth, was claiming lots 5 and 9 under a deed to him executed on February 5,1940, by Emmett Vaughan but that Vaughan did not own the land; that appellee, Milligan, was claiming without right some title to lot 7. The prayer of appellant’s complaint was for confirmation of his title and for injunction against interference by appellees with appellant’s possession of the land.
In their answer appellees denied ownership of the land by appellant, and asserted title in themselves by virtue of the conveyance from Vaughan to appellee, Wilmuth, and a conveyance from Wilmuth, for part of the land, to Milligan; and that since the execution of the deed, from Vaughan to Wilmuth they had been in the adverse possession of the land. They further alleged that the land was redeemed in June, 1928, from the forfeiture for taxes of 1925, and was erroneously certified to the State Land Commissioner. Appellees prayed for cancellation of the deed executed by the State Land Commissioner to appellant.
The lower court found the issues in favor of appellees and rendered decree canceling appellant’s deed and quieting title of appellees. To reverse that decree appellant prosecutes this appeal.
It was stipulated that Emmett Vaughan was the owner of this land in June, 1928.
The record of lands sold for delinquent taxes for the year 1925, kept by the clerk, was introduced in evidence. This record showed that the land in question, assessed in the name of E. Vaughan, was sold to the State, and on the line showing this tract, in the last column of the book under the heading “When Redeemed”' this appeared: “6/ /1928 E. Vaughan,” and in the same line, under the heading “Clerk’s Signature,” appeared the signature “Chas. C. Tunstall, Clerk.”
There was also introduced in evidence the county treasurer’s register of redemption certificates, and this record did not show that any certificate for redemption from the forfeiture of the land involved had been issued.
It was also shown that the title of the State to this land was confirmed by decree of the chancery court rendered in 1930.
The tax records showed that the land in question was not assessed for taxation for the years 1926, 1927, 1928, 1929, 1930 and 1931, but that it was put back on the tax books and the taxes for 1932 and subsequent years were regularly extended each year and these taxes were paid by Emmett Vaughan, until he sold it to Wilmuth, and thereafter by Wilmuth and Milligan, until the year 1944, the taxes for which were paid by appellant.
Section 13862 of Pope’s Digest is as follows: “Record of Redemption. Where any tract or portion of land, town or city lot, or any part thereof, shall be sold foi' taxes and afterward redeemed, it shall be the duty of the clerk of the county court to insert a minute of such redemption on the record of lands sold for taxes, the date thereof, and by whom made, and sign the same officially. ’ ’
While in other portions of the law provision is made for registration of redemption receipts by the co’unty treasurer, we think it obvious that the record directed to be kept by the county clerk under § 13862, supra, is the record which the legislature meant to evidence the fact of redemption or a failure to redeem. Cook. Jones, 80 Ark. 43, 96 S. W. 620. Appellant asserts that this redemption record is incorrect, as to the land involved herein, because there was no record of such a redemption on the treasurer’s register and because the land, after the date of the redemption shown, was certified by the clerk to the State Land Commissioner as not having been redeemed. But, since there is a conflict between these records, the recitals of the record authorized by the legislature for the purpose of affording notice to all interested persons, in absence of proof destroying the presumption of genuineness and verity that attaches to public records, must be accepted as true. This apparent contradiction in the county records would be a fact to be considered if we were dealing here with a direct attack upon the clerk’s record. “Under direct attack a [public] record does not import verity. . . . However, a record so far denotes absolute verity that it is not subject to collateral attack unless it is nullity. This general rule applies only to such records as are required by law to be made and kept.” 45 Am. Jur. 423. “A public record imports absolute verity. Every public record is presumed to be correct and cannot be collaterally attacked. An investigator may rely on the truth of specific recitals contained in a public record; and one relying upon public records is protected not only by the natural equities of his position, but also by the special equities arising 'from the protection afforded everyone who relies upon the records.” 53 C. J. 622.
We do not regard as material the failure of the clerk to show the day of the month on which redemption occurred. It must be presumed that the clerk would not have made the entry showing redemption unless such redemption was effected within the time allowed by law therefor. “It is not the policy of the law to nullify records where substance is found, and clerical errors and technical omissions should be disregarded.” 53 C. J. 621.
Since the land had been redeemed in 1928, the State was "not the owner thereof when it conveyed same to appellant in 1944.
It is not contended that the confirmation proceeding added anything to the strength of the State’s title, because, that proceeding being had under Act 296 of 1929, the confirmation cured only “informality or illegality in the proceedings” to sell the land for delinquent taxes. Here, the State’s title is attacked, notion the ground that the sale was void, but because the owner redeemed within the period provided by law.
The lower court properly held that appellant had no title to the land; but, conformably to the provisions of Act 269, approved March 10, 1939, a decree should have been rendered in favor of appellant for all taxes on said land paid by appellant, with interest thereon, and with lien on the land therefor, as provided by said Act. Barton v. Meeks, 209 Art. 903, 193 S. W. 2d 138.
Accordingly, so much of the decree of the lower court as dismisses appellant’s complaint, in so far as title to the land is concerned, for want of equity, and as quiets the title thereto in appellees is affirmed; and that part of the decree denying recovery to appellant for taxes paid by him is reversed, with directions to enter judgment, in accordance with this opinion, in favor of appellant, for the amount of taxes paid on the land by him, together with interest as provided by law, and declaring a lien therefor in favor of appellant, in accordance with said Act; the costs of the lower court to be assessed against appellant and each party to pay one-half of the costs of this court. | [
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Ed F. McFaddin, Justice.
In this court, three cases (Nos. 7956, 8059 and 8205), have been consolidated, and will he decided in this opinion. We will refer to the cases by the number in this court, and will refer to the parties by convenient designations, and leave for footnote the detailing of the parties. First, we will give a brief history of each case and the questions therein which’ we find necessary to decide; and then we will decide the questions.
Case No. 7956
The City of Little Bock was the original plaintiff, but a number of cities and counties later joined as plaintiffs in the Pulaski Chancery Court against Vance Clayton as State Treasurer and J. Oscar Humphrey as State Auditor, to require the state officers to pay over certain moneys to the plaintiffs. The suit was filed August 28, 1945. "We will at all times refer to these plaintiffs as the “cities and counties”; and we will at all times refer to the said state officers, as “state officials.” In the complaint and interventions, the cities and counties alleged that the state officials had been keeping the books of, and disbursing, the highway funds on a “bond-year” basis of April 1 to March 31, rather than on a “fiscal-year” basis of July 1 to June 30; that the recasting of the highway accounts for the two fiscal years, July 1, 1943, to June 30, 1945, would result in the cities and counties receiving certain funds under Act 4 of 1941 and Act 385 of 1941, which funds would be withheld from the cities and counties under the calculation of the “bond-year” basis. The complaint detailed the funds and beneficiaries so affected, and prayed for relief in keeping with the allegations of the complaint and interventions. The state officials (being the only defendants) answered by general denial; and a trial resulted in a decree in favor of the cities and counties. From that decree, the state officials appealed to this court. Here, certain municipal improvement districts sought to intervene. We will refer to these at all times hereinafter as “municipal improvement districts.” Their attorneys did in fact file a brief amici curiae in this court. The municipal improvement districts sought to urge in this court that Act 288 of 1943 was the reason why the cities and counties should not prevail. This last-mentioned act had evidently been overlooked by all parties in the trial of case 7956 in the chancery court. One question to he decided in this case 7956 will be discussed in topic heading I, infra, i. e., “Bond-Year v. Fiscal Year.” Another question is discussed in topic heading H, infra, i. e., “Time of the Distribution of the Gratuity Money.” Apprehensive lest the urging of Act 288 of 1943, in this court for the first time in case 7956 might be a “changing of the issues on appeal,” the municipal improvement districts secured a delay of the submission of case 7956, in order to commence another action (which they did, and which is case No. 8059).
Case No. 8059
In this case, the municipal improvement districts, as plaintiffs, filed a mandamus action in the Pulaski Circuit Court on August 9, 1946, against the state of ficials, to require payments of certain amounts claimed to be due to the municipal improvement districts under Act 288 of 1943. The state officials filed answer, stating that they had been ordered by the Pulaski Chancery Court (in the case now 7$56 in this court) to pay the said moneys to the cities and counties. To this answer, the plaintiffs filed a demurrer which was overruled, and the plaintiffs stood on their demurrer, and final judgment was rendered sustaining the answer and dismissing the complaint. This appeal ensued. So, the municipal improvement districts are appellants in ease 8059, and the state officials are appellees. In the circuit court, the cities and counties sought to intervene, but such intervention was denied them, and they have appealed as “appellants-interveners.” Case 8059 will be disposed of in the disposition of the issues in the other two cases.
Case No. 8205
In this case, the cities and counties filed suit in the chancery court on August 30, 1946, against the state officials, alleging that the state officials would distribute the state funds under Act 288 of 1943. unless enjoined and restrained; that such distribution would be injurious to the cities and counties; that said Act 288 of 1943 was null and void, and the state officials should be enjoined from proceeding under said act. The municipal improvement districts intervened in the suit, and claimed that the Act 288 of 1943 was valid, and that the state officials should make distribution under said Act 288. The case was tried in the chancery court on a stipulation of facts, and resulted in a decree upholding Act 288 of 1943. Prom thqt decree, the cities and counties have appealed, and the municipal improvement districts are the real appellees. One of the questions to be decided in this case is discussed in topic heading III, infra, “Validity and Effect of Act 288 of 1943.” Another question to be decided in this case is discussed in topic heading IV, infra, entitled “Sufficiency of 1945 Appropriation Act.” All three of these cases — in the final analysis — are controversies between the cities and the counties, on the one side, and the municipal improvement districts, on the other side.
OPINION
I. Bond Year v. Fiscal Year. The decision of this point requires a thorough study of Act 4 of 1941 (commonly known as the 1941 Refunding Act), and also of the cases construing that act, particularly: Fulkerson v. Refunding Board, 201 Ark. 957, 147 S. W. 2d 980 and Page, Treasurer v. Street Improvement Dist. No. 11 of Russellville, 203 Ark. 657, 158 S. W. 2d 905.
Section 12 of Act 4 of 1941 (as subdivided by capital letters A to D, inclusive), reads:
“When all the outstanding obligations eligible for refunding hereunder have been redeemed or exchanged, or funds have been set aside in the state treasury for their redemption or payment, all the bonds issued under this act shall be on a parity as to security, and in all other respects except as may be provided in the face of the bonds, and shall be governed by the following provisions and by the provisions of Act No. 11 not inconsistent therewith:
“A. The first $10,250,000 of highway revenue as it comes into the State Highway Fund in each fiscal year shall be set aside for highway maintenance and debt service, in the proportion of 30% for highway maintenance and 70% exclusively for current debt service and the redemption of bonds;
“B. after provisions of § 3 of Act No. 11, approved April 1,1938, have been fulfilled, then, the next $2,500,000 shall be set aside for the construction of new roads and maintenance of State highways;
“C. and the next $750,000 shall be set aside for the payment of bridge improvement bonds and interest thereon which come under Act No. 330 of 1939; the payment of road district bonds and interest thereon which come under Act No. 325 of 1939; the payment of outstanding bonds and interest thereon issued by the municipal paving-districts organized prior to January 1,1939, which represent the cost of paving, gutters, curbs and aprons on streets and intersections forming a continuation of state highways through such municipalities; the payment of outstanding bonds and interest thereon issued by improvement districts for the construction of bridges across navigable streams in the state; and for aid to cities and towns for the construction, repair and maintenance of streets and county roads in and immediately adjacent to such cities and towns — as the Legislature may from time to time prescribe.
“D. The highway revenues coming into the State Highway Fund in any fiscal year not specifically allocated to the foregoing purposes may be used for the construction of new roads, for maintenance, or for calling in and' redeeming bonds under section 5 of this act, as the Legislature shall determine.”
The paragraphing and adding of the capitalized letters A to D in the above quotation are for convenient reference to subdivisions of this section in the subsequent discussions contained in this opinion.
No party in any of these cases is attempting to claim or touch in any way the $10,250,000 in subdivision A, above, or the $2,500,000 in subdivision B, above. This litigation concerns the distribution of the $750,000 per annum referred to in subdivision C of § 12 above; and we will hereinafter refer to this $750,000 as the “gratuity money,” and this subdivision C as the “gratuity section,” since the beneficiaries of any and all of the $750,-000 receive the same as á gratuity from the state after subdivisions A and B have been achieved and satisfied.
When are subdivisions A and B achieved and satisfied? That is, when, each year, does the state begin calculating the $10,250,000 for subdivision A and the $2,500,000 for subdivision B in order to see how much — if any — will remain in any such year for subdivision C? That is the question. Section 24 of Act 4 of 1941 says:
“It has been found, and is hereby declared by the General Assembly . . .; that an opportunity to take advantage of this favorable market will be afforded on April 1, 1941, upon which date a large amount of the bonds eligible for refunding under the provisions of this act may be called for redemption according to their terms; that the refunding under this act will confer rights upon the state which it does not now possess and will release funds for use in the maintenance and construction of state highways which are badly needed; J J
This quoted language indicates rather clearly that the Legislature intended that on April 1, 194Í, bonds would be issued and sold under Act 4, and that the proceeds of said bonds could be used to the state’s immediate advantage. Section 4 of Act 4 of 1941 says:
“The bonds shall be in such form and denominations ; shall have such dates and maturities; . . . and. shall contain such provisions as to registration of ownership as the board shall determine . ' . .”
Section 3 of Act 4 says:
“The bonds issued under this act shall be the direct •obligations of the State of Arkansas, for the payment of which, both principal and interest, the full faith and credit of the state and all its resources are hereby irrevocably pledged.”
Section 8 of Act 4 provides, in part:
“The highway revenue shall be provided and shall remain pledged as a trust fund as provided in Act 11, and such covenant and pledge, and all provisions, limitations and covenants of that act, except as provided in 12 hereof, shall innure to the bonds issued under this act, . . . ”
Section 13 of Act 4 provides:
“The state expressly covenants that so long as any of the obligations authorized by this act are outstanding, it will not permit the present laws to be repealed or amended so as in any manner to reduce the annual revenue coming into the state highway fund below $10,-250,000.” (Italics our own).
These quoted sections from Act 4 of 1941 demonstrate that the Refunding Board had the right to date the bonds as it desired; and that when the bonds were issued, the highway revenue stood as a trust fund for the bonds— saving only the gratuity payments in subdivision C of % 12 and any other provisions in § 12 of said Act 4; and that the “annual revenue coming into the state highway fund” was to be calculated in accordance with § 12 of that act. It is shown in this case that the Refunding-Board — acting under its broad powers contained in said Act 4 — adopted a resolution in March, 1941, and, acting-on that resolution, issued, under said Act 4, bonds in the amount of $136,330,557.29; that the bonds were dated April 1,1941; and that the Refunding Board fixed April 1 to March 31 as the year on which the annual revenue •was to be calculated and determined under said Act 4. The Refunding Board’s resolution specifically said that “fiscal year” as used by the Refunding Board in the issuance of the bonds meant April 1 of one year to March 31 of the following year.
When we consider all of these facts, we reach the conclusion that, to place a construction on said Act 4 that would change the year from the bond year (April 1-March 31) to the fiscal year (July 1-June 30) would (a) certainly be at variance with the original intent of the Legislature to leave the determination of the year to the Refunding Board, and (b) might, in letter if not in spirit, be considered a breaking of faith with the creditors of the state who hold the refunding bonds. No party to this litigation indicates — much less claims — that such latter eventuality is to be even remotely considered. In determining- how much revenue comes, each year, into the gratuity fund of $750,000 under subdivision C of § 12 of said Act 4, we must use as the time for calculation, the year beginning April 1 and ending the following March 31. That year, which we call the bond year, must be used to fix the period in which the revenue arises to go into the gratuity fund of $750,000; because,_ until subdivisions A and B of § 12 have been reached and accomplished, there is nothing to go into subdivision C. Since the year of April 1 to March 31 following is the ‘‘ annual revenue year ’ ’ for subdivisions A and B in § 12, it necessarily follows that the same period of time must be used in calculating the “annual revenue” for subdivision C of § 12. Thus, the gratuity money arises in the period from April 1 of one year to March 31 following.
But that year (which we call the bond year) does not determine when the gratuity fund shall be distributed, because the distribution requires a separate appropriation act. The», distribution may be made by the Legislature by an appropriation act based on the bond year, or the fiscal year, or any other year that the Legislature may determine, within Constitutional limitations. But from March 31 of any year until distributed, or until the end of the legislative power under the Constitution, the money going into the gratuity fund remains in the treasury awaiting a valid appropriation act. This will be observed later, and this time of distribution will be discussed in topic heading II, infra.
The cities and counties contend that the fiscal year— July 1 to June 30 — should be used in determining the period in which the annual revenue arises under the refunding act; and, since our holding on this point is adverse to the cities and counties, we notice their contentions.
A. The cities and counties urge that a decree of the Pulaski Chancery Court rendered in 1943 makes the question res judicata in favor of the cities and counties. In 1943, the City of Little Bock brought a class suit in the Pulaski Chancery Court against Earl Page, Treasurer of the State of Arkansas. ¥e refer to this as the “1943 suit,” and the decree rendered in that suit as the “1943 decree.” The complaint in that suit alleged that, under § 12 of Act 4 of 1941 the amount of $750,000 was set aside for various state uses, and that by Act 385 of 1941, an allocation was made of this $750,000; and that under the said allocation the $750,000 was to be distributed as follows:
the first $200,000 to the bridge-bond retirement fund;
the next $140,000 to the road bond redemption account ;
and all remaining amounts to go 45.12% to the municipal bond retirement fund, and 54.88% to the municipal turnback fund. The complaint also alleged that, under Act 192 of 1941 the municipal turnback fund should have received certain amounts; and the suit also involved the transfer of certain funds to the highway fund by virtue of Acts 418, 419, 420 and 427 of the 1941 General Assembly. In other words, the various phases of the refunding program under Act 4 of 1941 were consummated by these acts in the transfer of other funds to the highway fund. The complaint alleged that in the period from July 1, 1941, to June 30, 1943, the amounts credited to the municipal turnback fund were incorrectly calculated and determined, and that additional amounts should have been credited by the state treasurer to that fund and disbursed to the municipalities and counties.
A decree was entered in the suit on July 21, 1943, which recited in part:
“Wherefore, it is considered, ordered and decreed that the claim of the plaintiffs for any portion of the highway revenues coming into the State Highway Fund in any fiscal year not specifically allocated as provided in § 12 of Act 4 of 1941 is hereby dismissed for want of equity.
“It is further considered, ordered and decreed that the defendant, Earl Page, as Treasurer of the State of Arkansas, transfer the sum of $40,000 from the Bridge Bond Betirement Fund to the Municipal Turnback Fund for the two fiscal years ending June 30, 1943, and that he immediately disburse that amount, as prescribed by Act No. 385 of 1941, ...”
No appeal was prosecuted by the state treasurer from this decree; and the cities and counties now claim that this 1943 decree definitely determined that the fiscal year — i. e., July 1 to June 30 — governs in all matters of the ingathering of the highway revenue. In other words, the cities and counties claim that the 1943 decree is res judicata on the question of “bond year v. fiscal year.”'
We do not agree. It will be observed that the 1943 decree (1) was concerned only with the matters prior to July, 1943; (2) came about because of-the augmenting of the highway fund by the transfer of certain funds to it by 1941 acts Nos. 418, 419, 420 and 427 to supplement and complement Act 4 of 1941. In the present case we are concerned with highway revenue originating since July 1, 1943. The 1943 suit could not be res judicata on the distribution of revenue originating in subsequent years. In Mo. P. Hosp. Assn. v. Pulaski Co., ante, p. 9,199 S. W. 2d 329, in discussing the plea of res judicata in matters of taxation, we said:
‘ ‘ The great weight of authority is to the effect that an adjudication upon liability for taxes of one year is no bar to an action for taxes for a subsequent year. In Keokuk & W. R. Co. v. State of Missouri, 152 U. S. 301, 14 S. Ct. 592, 597, 38 L. Ed. 450, the U. S. Supreme Court said: ‘A suit for taxes for one year is no bar to a suit for taxes for another year. The two suits are for distinct and separate causes of action.’
“In City of Newport v. Commonwealth, 106 Ky. 434, 50 S. W. 845, 51 S. W. 433, 45 L. R. A. 518, the Kentucky Court of Appeals said: ‘An adjudication upon a liability for taxes for one year is no bar to an action for taxes for a subsequent year.’
“In Bank v. City of Memphis, 101 Tenn. 154, 46 S. W. 557, the Tennessee Supreme Court said: ‘The plea of res judicata is limited in its effect, in tax cases, to the taxes actually in litigation, and is not conclusive in respect of other taxes assessed for other and subsequent year.’
“In Lake Shore & M. S. Ry. Co. v. People, 46 Mich. 193, 9 N. W. 249, the Supreme Court of Michigan said: ‘The result of a suit for the taxes of particular years is not res judicata in subsequent suits between the same parties for taxes of other years, and the decisions upon legal questions arising in the first case are important only as precedents’.”
The rationale of the above quotation, as applied to the present case is that the 1943 decree did not involve the matter of tax distribution for the years after July 1, 1943, so the plea of res judicata is without merit.
B. The cities and counties contend that the Legislature, by § 10444, Pope’s Digest, has fixed as “fiscal year,” and that the Refunding Board is powerless to change the fiscal year. By Act 7 of 1921 (now § 10444, Pope’s Digest) it was provided:
“Section 1. That there is hereby established and fixed a definite fiscal year for all offices, departments, institutions and other agencies of State government. Said fiscal year shall begin on July 1 and end on June 30. July 1, 1921, shall be considered the beginning of the first fiscal year under the provisions of this act. ’ ’
The above was a legislative enactment of 1921, and any subsequent Legislature had the power to fix another term for a fiscal year, either for all state funds or for any particular part thereof. As regards revenue coming into the state highway fund, Act 4 of 1941 did change the year to the period beginning April 1, and ending March 31, following. That this was done has been demonstrated in discussing the provisions of said Act 4. So, the argument of the cities and counties based on § 10444, Pope’s Digest, is without merit.
To conclude this topic of the opinion: we hold (1) that in fixing the period in Avhich revenue arises under Act 4 of 1941, the Legislature fixed the year beginning April 1 and ending March 31 following; (2) that in such year the first $10,250,000 is governed by subdivision A of § 12 of Act 4; (3) that the next $2,500,000 is governed by subdivision B of said § 12; (4) that the next $750,-000 — referred to herein as the gratuity money — is governed by subdivision C of § 12 of Act 4; (5) and that, as to the said gratuity money, the Legislature may act “as the Legislature may from time to time prescribe” (to quote the exact language of said section); and (6) this suit concerns only this gratuity money.
II. Time of the Distribution of the Gratuity Money. It will be observed from what we have said in I, supra, that, until after March 31 of each year there can be no definite and final determination as to how much gratuity money, if any, is to be distributed. We elucidate by illustration: On March 31, 1945, it was determined that there was $201,457.77 to go to the gratuity fund for the bond year ending that day; and, then, that amount became subject to distribution on any basis “as the Legislature may from time to time prescribe” (to quote the exact language found in § 12 of Act 4 of 1941). But none of that amount came into the gratuity fund until April 1, 1945. The Legislature, by Act 231 of 1943, used the term “fiscal year ending June 30, 1945” in making the appropriation from the gratuity fund. Construing the last-quoted language in the light of what has been said in Topic I, supra, we reach the conclusion that disbursement under the said appropriation act (1) could not be made before April 1, 1945, because until that date there was no fund; and (2) must be made before June 30,1945, otherwise, the appropriation would expire. Article V, § 29 of the Constitution says:
“No money shall be drawn from the treasury except in pursuance of specific appropriation made by law, the purpose of which shall be distinctly stated in the bill, and the maximum amount which may be drawn shall be specified in dollars and cents; and no appropriations shall be for a longer period than two years.”
In Moore v. Alexander, 85 Ark. 171, 107 S. W. 395, we held that there could be' no continuing appropriation, and that any appropriation beyond two years was void. See, also, Lund v. Dickinson, 126 Ark. 243, 190 S. W. 428.
We use this specific year, ending June 30, 1945, and the 1943 appropriation act to illustrate the meaning and effect of our holding in reconciling the “bond year” of Act 4 of 1941 with the “fiscal year” used in the various appropriation acts.
III. Validity and Effect of Act 288 of 1943. In order to appreciate the effect of this act on this litigation, it is well to review the situation before us:
(a) Act 4 of 1941, by subdivision C of § 12, set aside $750,000 as gratuity money to be distributed “as the Legislature may from time to time prescribe.”
(b) Act 385 of 1941 was entitled “An act to provide for distribution of amounts received from the $750,000 allocation referred to in § 12 of Act 4 of the Acts of 1941 . . .: to prescribe the manner of payment of such funds so distributed . . .” The effect of this act was to make the said gratuity money payable as follows:
by section 2, to the bridge bond retirement fund, the first $200,000;
by section 3, to the road bond redemption account, the next $140,000;
by section 4 (after the above $340,000 had been disbursed) the balance was to go 45.12% ■ to the municipal bond retirement fund, and 54.88% to the municipal turnback fund.
The municipal improvement districts in this case claim to be the beneficiaries of the municipal bond retirement fund, and the cities and counties in this case claim to be the beneficiaries of the municipal turnback fund.
(c) By Act 385 of 1941 the only municipal improvement districts which would receive any part of the municipal retirement fund were those districts which qualified under said act.
(d) Section 4 of Act 385 of 1941 provides in part:
“The Treasurer of State shall also credit the Municipal Turnback Fund, at the end of each fiscal year, with the amount that the allocation to the Bridge Bond Retirement Fund exceeds the debt service requirements of such fund; with the amount that the allocation to the Road Bond Redemption Account exceeds the debt service requirements of such account; and with the amount that the allocation to the Municipal Bond Retirement Fund exceeds the debt service requirements of such fund. ’ ’
In this case the cities and counties claim that all of the municipal improvement districts entitled to receive aid under Act 385 of 1941 have been paid in full, so that all of the municipal bond retirement money accruing in 1943 and subsequent years should go to the municipal turnback fund under the section last quoted above.
(e) But the municipal improvement districts claim that Act 288 of 1943 increased the amount of gratuity to go to the municipal improvement districts so that they are entitled to continue to receive aid from the municipal bond retirement fund. In answer to that argument, the cities and counties say that Act 288 of 1943 is void.
The above poses the issue. We hold that Act 288 of 1943 is valid. The points urged by the cities and counties against the said >act may be summaried and answered as follows:
1. The cities and counties say that Act 4 of 1941 is a contract between the state and the bondholders, and that Act 288 of 1943 attempts to change the act by increasing the basis of distribution of the gratuity money; and to that extent Act 288 is void. The answer is obvious: Act 4 of 1941, § 12, subdivision C reserves $750,000 for the state to distribute as gratuity money “as the Legislature may from time to time prescribe.” The said Act 4 did not mention counties except in these words, “county roads adjacent to such cities and towns”; yet Act 385 of 1941 created the municipal turnback fund, and ah lowed counties to participate in the gratuity money; and in Page v. State Improvement District No. 11 of Russellville, 203 Ark. 657, 158 S. W. 2d 905, we upheld the validity of Act 385 of 1941. No beneficiary has a vested interest in the gratuity to be received from the state funds. Cone v. Hope-Fulton-Emmet Road Improvement District, 169 Ark. 1032, 277 S. W. 544. So, here, the cities and counties have no vested interest in the gratuity under either Act 4 or Act 385 of 1941, and the Legislature may grant or withhold the gratuity “as the Legislature may from time to time prescribe.” It 'is obvious that we consider this last-quoted clause as modifying all of the provisions of subdivision C, § 12 of Act 4 of 1941.
2. The cities and counties contend that Act 4 of 1941 was referred to the people and approved, and so, by force of paragraph 8 of Constitutional Amendment VII (the initiative and referendum amendment), the Legislature could not amend said Act 4 escept by 2/3rds vote of each house, and that Act 288 of 1943 failed to receive such a vote. But the answer to that contention is likewise obvious: Act 385 of 1941 did not amend Act 4 of 1941, but only designated the beneficiary funds which the Legislature then desired to receive a part of the gratuity money under subdivision C of § 12 of said Act 4. Likewise, Act 288 of 1943 did not amend Act 4 of 1941, but only amended Act 385 of 1941; and this last-mentioned act was not a referred act, and could therefore be amended by an act receiving only a majority vote in each house ; and Act 288 of 1943 did receive such majority vote.
We conclude, therefore, that Act 288 of 1943 is valid as against the attacks here made on it. The effect of this holding is to allow the municipal improvement districts an increased participation under the act; but it yet remains to be seen if the Legislature has made a valid appropriation for such increased participation. This point we now proceed to consider.
IV. Sufficiency of the 1945 Appropriation Act. Act 288 of 1943 declared the rights of the municipal improvement districts to additional aid, but that act was not an appropriation act. The appropriation act was Act 231 of 1943, captioned “An act to make appropriations of amounts received from the $750,000 allocation referred to in § 12 of Act 4 of the Acts of 1941 . . .” Section 5 of said Act 231 reads:
“There is hereby appropriated to be payable from the municipal bond retirement fund for the purpose of paying principal of and interest on municipal paving bonds, as now or- as may hereafter be provided by law, for tbe biennial period ending June 30, 1945, tbe following: . . (Italics onr own).
Tbe italicized words show that the appropriation was clearly sufficient to include tbe increased participation allowed by Act 288 of 1943. So, for tbe biennium ending June 30,1945, there was a sufficient appropriation act.
But when we came to tbe biennium beginning July 1, 1945, and ending June 30,1947, we find tbe appropriation act is not as broad as tbe previous act. Act 104 of 1945 is tbe appropriation act for tbe said biennium, and § 4 of that act reads: “There is hereby appropriated to be payable from tbe municipal bond retirement fund for tbe purpose of paying principal of and interest on municipal bonds, under the provisions of Act 385 of 1941, tbe following . . .” (Italics our own).
It will be observed instantly that this act appropriates money from tbe municipal bond retirement fund only to pay items allowable under Act 385 of 1941, and does not include — directly or by implication — Act 288 of 1943 or any other act except Act 385 of 1941. It follows, therefore, that for the biennium beginning July 1, 1945, and ending June 30, 1947, said Act 104 of 1945 makes no appropriation to carry into effect Act 288 of 1943. See Moore v. Alexander, supra, and Jobe v. Caldwell, 93 Ark. 503, 125 S. W. 423, 99 Ark. 20, 136 S. W. 966. Article XVI, § 12 and Article V, § 29 of tbe Constitution of tbe State of Arkansas concern tbe necessity for sufficient and definite appropriations. Commenting on these provisions in Ark. G. & F. Commission v. Page, 192 Ark. 732, 94 S. W. 2d 107, we said:
“Peculiarly applicable to tbe instant case is tbe announcement in Dickinson, State Auditor v. Clibourn, 125 Ark. 101, 187 S. W. 909.
“ ‘All moneys must be specifically appropriated and specifically applied.’ Lund v. Dickinson, State Auditor, 126 Ark. 243, 190 S. W. 428. These provisions of tbe Constitution are mandatory and must be enforced.”
For all that is shown in the record in the cases before us, the additional aid to the municipal improvement districts under Act 288 of 1943 cannot be paid during the biennium beginning July 1, 1945, and ending June 30, 1947, for want of a valid appropriation act.
CONCLUSION
To summarize and conclude:
In Case No. 7956 the decree of the chancery court is reversed and the cause remanded, with directions to dismiss the complaints and interventions of the cities and counties, and to enter a decree in keeping with this opinion.
In Case No. 8059 the judgment of the circuit court is cancelled, and the cause dismissed as moot, because of the order here directed in Case No. 8205.
In Case No. 8205, the decree of the chancery court is affirmed, insofar as it upholds the validity of Act 288 of 1943, but the cause is remanded to the chancery court so that a decree may be entered in keeping with the other provisions of this opinion.
As regards costs: each party will bear all costs already paid by such party, but any unpaid costs will be paid equally, one-half by the cities and counties and one-half by the municipal improvement districts.
The Chief Justice and Mr. Justice Millwee voluntarily disqualified in these cases, and did not participate in the consideration or determination of the appeals; nor did they attend the conferences at which the cases were discussed.
Mr. Justice Robins dissents as to that portion of the opinion which sustains the validity of Act No. 288 of 1943.
The intervening cities which joined as plaintiffs were: Ashdown, Augusta, Berryville, Biggers, Brinkley, Buckner, Calico Rock, Camden, Cammack Village, Clarendon, Cotton Plant, Crossett, Decatur, DeValls Bluff, Earle, Edmondson, El Dorado, Fayetteville, Fordyce, Forrest City, Fort Smith, Fulton, Gentry, Green Forest, Harrisburg, Helena, Hope, Hughes, Joiner, Leachville, Lepanto, Levy, Lewisville, Lincoln, Lockesburg, Malvern, Marianna, Marvel, Mayflower, Mena, Monticello, Mt. Ida, Nashville, Newport, Norphlet, North Little Rock, Osceola, Palestine, Paragould, Paris, Pea Ridge, Pocahontas, Rogers, Russellville, Searcy, Siloam Springs, Springdale, Stuttgart, Strong, Success, Texarkana, Walnut Ridge, West Memphis, Wynne, Van Burén, Jonesboro, Parkin, Dumas, Eudora, Murfreesboro, Huntington, Hartford, Humphrey, Charleston, Okolona, Dierks, Coal Hill, Waldron, Huntsville, Emerson, Arkansas City, Newark, Mansfield, Piggott, Hampton, Eureka Springs, England, Atkins, Clarendon, Stephens, Bald Knob, Hardy, Western Grove, Corning, Salem, New Rocky Comfort (called “Foreman”), Smackover, Nettleton, Marked Tree, Mountain View, Pangburn, Hoxie, Monette, Manila, Sheridan, Rison, Stuttgart, Mammoth Springs, Gould, Hazen, Dyer, McCrory, Gurdon, Melbourne, Benton and Lake City. The intervening counties which joined as plaintiffs were: Craighead, Grant, Lincoln, Ashley, Sharp, Saline, Scott, Calhoun, Izard, Sevier, Miller, Benton, St. Francis, Nevada, Pope, Sebastian, Stone, Ouachita, Perry, Yell, Independence, Lawrence, Dallas, Arkansas, Drew, Jackson, Marion, Little River, Hot Springs, Greene, Crittenden, Cleburne, Clay, Boone, Hempstead, Pike, Washington, Franklin, Chicot, Crawford, Bradley, Desha, Van Burén, Lee, Cleveland, Fulton, Conway, Jefferson, Johnson, Prairie, White, Pulaski, Searcy, Clark, Newton, Mississippi, Garland, Howard, Poinsett, Faulkner, Cross, Randolph, Madison, Columbia, Woodruff, Monroe, Union, Polk and Phillips.
Paving Improvement District No. 1 of Brinkley, North & South Washington Street Improvement District No. 1 of Forrest City, East Jackson Street Improvement District No. 1 of Forrest City, Paving Improvement District No. 4 of Marianna, Street Improvement District No. 3 of West Helena, Paving Improvement District No. 5 of Camden, Paving Improvement District No. 6 of Camden, Street Improvement District No. 11 of Russellville, Street Improvement District No. 11, Annex No. 1, of Russellville, Street Improvement District No. 11, Annex No. 2 of Russellville, West Jackson Street Improvement District No. 2 of Forrest City.
Act 234 of 1947 obviously has no effect on the decision of these cases, and was not cited in the briefs or suggested in the oral argument. It is mentioned here merely to show a legislative recognition of the fact that Act 4 of 1941 established a bond year. | [
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McHaney, Justice.
This appeal is from a judgment entered on an instructed verdict for'appellee at the conclusion, of appellant’s evidence.
Appellant brought the action to recover damages for the alleged wrongful and negligent death of her 13-year- old daughter, Elizabeth, who was struck by a fast passenger train in Atkins, Arkansas, about 11:30 a. m. on May 18, 1946, and who was instantly killed. The negligence alleged and relied on here related, first, to the speed of the train; second, failure to give the statutory signals; third, failure of the operatives to keep a lookout; and fourth, failure to apply the brakes. The insistence here is that the proof on the part of appellant made a case for the jury, and that the court, therefore, erred in directing a verdict for appellee.
On the day of the accident a street carnival was being held in Atkins, on the south side of the railroad tracks, partly on the right of way and partly in the street. The tracks run east and west through Atkins. The deceased and another girl, both colored, wanted to cross from the , south side of the tracks to the north side. At that time a freight train was slowly running east on the passing or side track. Both of the girls approached the track about opposite the depot which is located on the north side, about the center of a block between two public crossings. They waited for the freight to pass, and, when the caboose thereof went by, they ran from behind it and directly in front of a fast passenger train going west. The other girl narrowly escaped, but Elizabeth was killed. The distance between the main line and the switch tracks was 9 or 10 feet. There is no dispute in the evidence as to how the accident happened. Pardie Parker, son-in-law of and witness for appellant, testified that he saw the accident, saw the girls run from behind the freight train and on to the main track, immediately in front of the engine of the passenger train, and saw the engine strike the deceased; that he halloed to them in an attempt to keep them from running across in front of the passenger train, the front of which was close to the back end of the caboose of the freight; that they leaped across the track and one of them got killed; and that there was no crossing at that place.
As to the speed of the passenger train, it was alleged that it was traveling at about 70 miles per hour and the proof tended to establish this speed, much in excess of the speed limit for trains fixed in an ordinance of the city introduced in evidence. We think it was not established that the speed of the train was the proximate cause of the accident, and that the little girl would have been killed had the train been running much slower. It is undisputed that she darted out from behind the caboose of the freight immediately in front of the engine of the passenger train, not at a crossing, not at a point where even a foot path led across the tracks, but where she was either a trespasser or a bare licensee, to whom the Company owed no duty except not to willfully or wantonly injure her and to exercise ordinary care under the circumstances to avoid injuring her after the discovery of her peril. Cato v. St. L. S. W. Ry. Co., 190 Ark. 231, 79 S. W. 2d 62; C. R. I. & P. Ry. Co. v. Caple, Admr., 207 Ark. 52, 179 S. W. 2d 151.
As to the failure to give the statutory signals, several of the witnesses for appellant testified that the whistle was sounded and others testified negatively that they did not hear it. We think the failure to sound the whistle or ring the bell, if there were such failure, is unimportant under the circumstances here presented. The freight train was running, the noise of which as well as the noise from the passenger train, may have drowned out to the girls the noise of the whistle. In any event the noise of the oncoming passenger train must have been much greater than that of the slowly moving freight and could have been heard had the slightest attention been given to it, or if the girls had glanced to their right they could and would have seen the train which was practically on them when they darted across the track in front of it. Under these circumstances signals cease to be factors since the danger was apparent from the noise of the train and its nearness. St. L. & S. F. Ry. Co. v. Ferrell, 84 Ark. 270, 105 S. W. 263; Mo. Pac. Rd. Co. v. King, 200 Ark. 1066, 143 S. W. 2d 55. Moreover, being trespassers or licensees appellee owed them no duty to give the statutory signals under the cases cited in paragraph 1, above.
As to the alleged, failure to keep a lookout and to apply the brakes, it is undisputed that the deceased could not have been seen by the operatives in time to avoid striking her had a lookout been kept or in time to apply the brakes and check the train sufficient to permit her to escape. Moreover, she was a trespasser or a licensee under the rule stated in the Cato and Caple cases, above cited, and many others, to whom appellee owed no affirmative duty of care, and only the duty not to willfully or wantonly injure her after the discovery of her peril. In St. L. S. F. Ry. Co. v. Williams, 180 Ark. 413, 21 S. W. 2d 611, it was held that it is the duty of one complaining of personal injuries, caused by the running of a train, to show that the injuries were received at such a place or under such circumstances that her presence would have been discovered had a lookout been kept. Here there was no attempt to show such facts. On the contrary, the proof shows that her presence could not have been discovered in time to avoid striking her.
The judgment is, accordingly, affirmed. | [
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Minor W. Milwee, Justice.
The facts out of which this litigation arose are stated in the opinion on a former appeal and will not be repeated, Plant v. Sanders, 209 Ark. 108, 189 S. W. 2d 720. As appears from that opinion, there was involved the validity of the sale of the lands there described for the non-payment of the taxes dne thereon for the year 1930, which sale had been confirmed by the state. The opinion in that case sustained the title of Plant, who had purchased from the state, as to certain of the lands, but held the sale of others void because of defective descriptions.
Upon the remand of the cause Mrs. Louise Plant Eads, Plant’s successor in title, applied for a writ of assistance praying that she be awarded possssion of the lands to which her title had been upheld. L. H. King acquired this title and made himself a party. He adopted the pleadings which Mrs. Eads had filed and without reciting them it may be said that the question presented for decision in the trial court was that of the ownership of the 60 acres of accretions to the northeast quarter (NE14) and the northwest quarter (NW%) of section 20, township 8 N, range 22 west, Johnson county, Arkansas.
The chancellor held that in as much as the intervenor’s grantor had purchased all these lands from the state and had received the deed of the State Land Commissioner therefor, and in as much also as the former opinion upheld the sale of the northeast quarter, section 20, containing 58.87 acres, and the sale of the northwest quarter of that section, containing 98.30 acres, the sale thereof carried the title to the 60 acres of accretions to these two fractional quarter sections. Upon that finding the court awarded the writ of assistance as prayed for and from that decree is this appeal.
For the affirmance of this decree appellee cites anf relies upon the case of Towell v. Etter, 69 Ark. 34, 59 S. W. 1096, 63 S. W. 53, and later cases which have approved and followed that case. In this Towell case it was held, to quote a headnote, that “A purchase at commissioner’s sale for delinquent levee taxes of a tract of land described as the southwest quarter of a certain section, containing 151 acres, will carry title to 35 acres of land which had previously been added to such land by accretion.” The sale in that case was for delinquent levee taxes, but tlie same rule was applied in the case of Crill v. Hudson, 71 Ark. 390, 74 S. W. 299 where the sale had been made for the non-payment of the general taxes.
Apparently and prima facie it would appear that since appellee had acquired title to the northeast quarter and the northwest quarter of section 20, he had also acquired title to the accretions to these two quarter sections. He correctly contends that, “Unless there has been a severance of the riparian rights from the platted land, a conveyance of the platted lands carries all of the riparian rights and a separate conveyance of the riparian rights, among which are accretions, is wholly .unnecessary.” The case of Mobbs v. Burrow, 112 Ark. 134, 165 S. W. 269, sustains this contention.
However, the record before us on the former appeal shows there had been a severance of the riparian rights from the platted land.
It appears that in May, 1917, the county surveyor, at the request of Mrs. Sanders who had acquired a life estate in the lands here in litigation under the will of her husband, made a survey of the accretions to these two quarter sections of section 20 in order to have the land placed on the tax books. A map or plat of this survey was duly filed in the office of the circuit clerk on July 10, 1917, which was long prior to the assessment and sale of the land for the taxes for the non-payment of which they were sold, and from and after that date the 60 acres have been carried on the tax books and assessed separately and apart from the platted quarter section.
This survey by the county surveyor was authorized by § 13695, Pope’s Uigest, the purpose of that section being as was said in the recent case of Bracken v. Henson, ante, p. 572, 201 S. W. 2d 580, to secure a proper description of the land to be assessed so that it might be identified by reference to the plat of the survey which had become a public record. A prudent owner would prefer to pay his taxes under a description which identified his land so that there would be no question but that he had paid his taxes. This is what Mrs. Sanders did when she had the survey made and the plat thereof recorded as provided by § 13697, Pope’s Digest.
Since this survey, the accretions have been carried on the tax books as a separate tract of land. It was separately advertised for sale for the delinquent taxes and was separately sold. It was separately certified to the state and was sold by the land commissioner to Plant under a separate description. This sale by the land commissioner, as stated in the former opinion, was made under the authority of Act 331 of the Acts of 1939 for the sum of $1 per acre, the minimum value required by said Act 331, and the recited consideration in the land commissioner’s deed for the accretions was $60, there being 60 acres.
We conclude, therefore, that there had been a separation of the accretions from the land to which the accretions formed for the purpose of taxation. Now Plant, through whom appellee claims, did buy the accretions from the state and would have acquired title thereto under his purchase if the sale thereof for the taxes had been made under a valid description which could have been employed by a reference to the survey hereinbefore referrd to in Bracken v. Henson, supra. But this 60-acre tract appears to have been described only as “Accretions, section 20,” which was not definite in as much as these accretions had been formed to two separate quarter sections of that section.
The former opinion treats the northeast -quarter, section 20, as one description and the northwest quarter of section 20 as another description, both being separate and distinct from the accretions. This is shown by the reference to northeast quarter as containing 58.87 acres and the northwest quarter as containing 98.30 acres and neither dscription takes into account the 60 acres of accretions. In other words, the holding of the former opinion was that the tax title to both the northeast quarter and the northwest quarter was good, having been confirmed under valid descriptions, but title confirmation of the sale of the accretions was insufficient because a defective description thereof had been employed.
The result of the views here expressed is that it was error to include the accretions in the writ of assistance and that part of the decree will he reversed, and the cause will he remanded for further proceedings not inconsistent with this opinion; these proceedings to be predicated upon the holdings herein made that appellants have the original title to the accretions, whereas appellee has a deed from the state for the accretions based upon a tax sale void for the lack of power to make it.
Ed F. McFaddin, Justice, dissenting. In the opinion on the first appeal in this case (see Plant v. Sanders, 209 Ark. 108, 189 S. W. 2d 720), in discussing the so-called “accretions of 60 acres to section 20,” we said: “We agree that the last tract set out above and described as ‘accretions in section 20, 60 acres,’’is void for indefinite description and was properly canceled by the court in Plant’s deed.”
On remand to the chancery court, no additional evidence was heard, and the problem before the chancery court was to “enter a decree in accordance with” the opinion. The chancery court undoubtedly reasoned that if the description, “accretions in section 20, 60 acres” was void, — as we had said it was — then the accretions had never been legally severed or separated from the land to which the accretions adhered, and would pass with a conveyance of the main-land. Evidently, on this reasoning the chancery court held that the “accretions” to the northeast qu’arter of section 20 passed with the northeast quarter of section 20, and the “accretions” to the northwest quarter of section 20 passed with the northwest quarter of section 20. I think the chancery court was correct in so interpreting our former opinion. The majority in the present opinion says:
“Apparently and prima facie it. would appear that since appellee had acquired title to the northeast quarter and the northwest quarter of section 20, he had also acquired title to the accretions to these two quarter sections. He correctly contends that, ‘Unless there has been a severance of the riparian rights from the platted land, a conveyance of the platted lands carries all of the riparian rights, and a separate conveyance of the riparian rights, among which are accretions, is wholly unnecessary.’ The case of Mobbs v. Burrow, 112 Ark. 134, 165 S. W. 269, sustains this contention.”
But immediately following the above quotation, the majority adds: “However, the record before us on the former appeal shows there had been a severance of the riparian rights from the platted land.”
It is this last-quoted sentence that impels this dissent. Based on the same record and plat as in the former appeal, how can this court be consistent in saying, in the first opinion, that the description of the accretions was void, and then saying, in the present opinion, that there had been a valid severance of the accretions, when the validity of the severance depends on the sufficiency of the map? Until a valid and definite map was shown to have been filed, certainly there was no valid severance of the accretions. I have carefully examined the map in the transcript containing the so-called survey of July 10, 1917, and it is my considered opinion that the survey map is absolutely worthless, because it fails to show the length and width of the accretions, is not drawn to scale, and has no legend to show any distances.
Furthermore, if wo assume that the river part of the map of the so-called survey of July 10, 1917, is drawn to scale, and if we superimpose that part of the said July 10, 1917, survey on the official government survey as found in the transcript (which I have done), it is clearly apparent that the so-called accretions in the map of July 10, 1917, are all a part of the lands in section 20 shown as part of the government survey. In short, the majority is using an abortive and illegal map as the foundation for the so-called “survey” under section 13697, Pope’s Digest; and thereby the majority is taking unsevered accretions from the true riparian owner. In the first opinion we in effect held that the 1917 survey was void. Now in the second opinion the majority is allowing the void survey to be valid.
For this reason I respectfully dissent. I mention also (bnt forego any discussion of it) the fact that by this abortive survey a life tenant has in effect destroyed all the title of the remaindermen. | [
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■Smith, J.
On Aug. 7, 1913, J. L. McFarland conveyed to Martha, his wife, an 80-acre tract of land and three tracts of 40 acres each, one of the latter being the SW% of the SW!i of section 11, township 16 south, range 19 west. Mrs. McFarland died intestate May 30, 1916, leaving her husband, two adult children, and six minor children. McFarland and the minor children continued to live on the said land, the exact part thereof not being shown, until some time in 1923, when he and all the children except a son named Edward, moved to Stephens, Arkansas, a town some three miles away. Edward continued to live on the land until 1927.
On February 23, 1921, Mr. McFarland, as guardian of the minor children, obtained an order from the Probate Court authorizing him to mortgage the 80-acre tract of land, for the sum of $1,000, for the education and maintenance of his wards.
The indebtedness thus secured having matured, and not having been paid McFarland, as guardian, obtained on January 11, 1924, a Probate Order authorizing him to mortgage the 80-acre tract and the SW^i of the SW% of section 11 in addition for the purpose of paying the 1921 mortgage above referred to, in the sum of $1,000, and an additional sum of $500. for the education and maintenance of his said wards. Five of the McFarland heirs who were then of age joined in the execution of the mortgage and signed the $1,500 note which it secured. The loan was made by R. B. Allen and the note which the mortgage secured was payable to Allen’s order.
The mortgage empowered Allen to sell the land there described upon default of payment, at public sale, for cash, upon 20 days notice of the sale and to convey title to the land to the purchaser at such sale, by a deed the recitals of which should be taken as prima facie true.
The note last mentioned was not paid at its maturity and the SW% of the SW^ of section 11 was sold pursuant to the power of sale contained in the mortgage, on April 8, 1927, to J. M. Miller. It does not appear from the record before us whether the 80-acre tract was also sold, or if so to whom. Miller bid $500 for the 40-acre tract, which he paid in cash to Allen, and received from Allen a deed dated April 8, 1927, this being the date of the sale.
The deed from Allen, as mortgagee, to Miller recited the authority under which the sale had been made and that the sale had been made in compliance with and in conformity to the provisions and requirements of the mortgage for more than three-fourths of its appraised value.
According to the undisputed testimony, Miller took possession of the land the day after fhe sale and has since been in the sole and exclusive possession thereof, at all times claiming to be the owner. There was an old fence which he repaired. He caused this land to be assessed in his name, and paid all taxes in his own name up to and including the year 1946. He used a portion of the land for a pasture and began clearing the balance the year he purchased, and he cleared and put into cultivation 20 acres of this land. There was an old house unfit for occupancy, which he tore down and used for his own purposes, such of the lumber as had value. The house was a one-room building with a shed room, the roof of which had fallen in. Miller took possession of the land as owner, and no one questioned his right to do so, and he remained in the exclusive possession for 19 consecutive years without having his ownership questioned by anyone.
On August 20, 1946, Miller filed this suit against the McFarland heirs to quite his title to the land, in which he alleged in substance the facts herein recited. A number of'the heirs had lived within a few miles of this property since Miller took possession of the land, but others had become non-residents of the state. An attorney was appointed for the non-resident defendants, and a warning order was published. The attorney appointed for the non-resident defendants wrote the non-residents advising .them of this suit, and from E. F. McFarland, one of .the heirs, he received a letter containing the following statement: “As the eldest of the heirs of Martha and J. L. McFarland I feel safe in saying that we have no claims on the land, whatever, and consider Mr. J. M. Miller a valued friend of the family, and please give him our regards. I will be glad to assist any way possible. ” This, writer was one of the adult children who had joined in the execution of the mortgage to Allen.
The heirs filed an answer and cross complaint, in which they admitted Miller’s continuous possession since April 9, 1927, but they alleged that Miller during all these years was a mortgagee in possession. The basis of this allegation is the contention that the original mortgage was void as the Probate Court was without jurisdiction to authorize the mortgage and that the fore closure proceedings were void, in that it was not conducted as required by the power of sale.
The case of Flannigan v. Beavers, 172 Ark. 28, 287 S. W. 755, is quite similar in several respects to the instant case, in that questions were raised there which are presented here, but we found it unnecessary to decide these questions in that case, and we find it unnecessary to decide them here. Indeed appellant says, “ There is only one question in this case, and that is whether or not Miller is a mortgagee in possession. If he is not, then an affirmance is in order; if he is, then the decree of the trial court should be reversed.” This contention is upon the theory that the power of sale was defectively employed and that Miller, the purchaser at the foreclosure sale, became a mortgagee in possession and the statute of limitations did not run in his favor while that relationship existed. The court confirmed the title as prayed, holding that the heirs were barred by the statute of limitations, by laches and by estoppel; and from that decree is this appeal.
The authorities on the subject were reviewed by Judge Wood in the case of Norris v. Scroggins, 175 Ark. 50, 297 S. W. 1022; and he there quoted and approved the following statement of the law from 2 Jones on Mortgages, page 881, § 1152 (page 964, § 1474 ibid 8 ed.): “Wher.e a mortgagee enters into possession of the mortgaged premises under a void foreclosure, he is presumed to hold as mortgagee in possession, and limitation does not run in his favor, or in favor of his grantee, against a suit by the mortgagor. . . . The mortgage relation still continues between the purchaser at such void sale and the owner of the equity of redemption, the right of redemption continues, and the statute of limitations does not begin to run against the right until actual notice is given such owner by the party in possession under such void sale, that he claims to hold in some other right than that of mortgagee or assignee of the mortgage, or he clearly makes it known by his acts that he holds adverse to the mortgage. ’ ’
Here the facts are undisputed that Miller took possession as owner, and for 19 years occupied the land in that capacity, the last 12 years of such occupancy being after the youngest McFarland heir became of age, and there appears no doubt that the heirs were apprised of this adverse holding. In other words, the fact is clearly established that Miller was holding adversely to the mortgage and the facts above recited must have apprised the heirs that Miller was holding adversely to the mortgage, and not as mortgagee in possession. During Miller’s long occupancy no one of the heirs had ever asked an accounting to determine whether the rents had sufficed to pay the mortgage debt.
The holding in the Flannigan case, supra, applies here, for the heirs in this case, as in that one, must have known that the purchaser at the foreclosure sale was holding adversely to the mortgage. The court below so found and the testimony not only supports that finding but precludes any other, and the decree upholding the plea of limitations must be sustained. As stated, the court also found that appellants were barred by laches and estoppel, but it is unnecessary to consider those questions. The decree is affirmed. | [
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Robins, J.
Appellant was convicted and fined $25 in the municipal court of Van Burén, Arkansas, for violating § 1197 of Pope’s Digest, which is a part of § 2 of Act No. 17 of the General Assembly of Arkansas, approved February 23, 1891. This Act, which was amended (in certain particulars not important to a consideration of this case) by Act No. 114, approved April 1, 1893, requires railroad companies to give equal and separate accommodations to persons of the white and African races and directs that travelers of each race use the respective accommodations thus provided. He appealed to circuit court where he was again convicted and fined $25. To reverse the circuit court’s judgment he prosecutes this appeal.
The Attorney General has moved to dismiss appellant’s appeal on the ground that appellant has failed to make and file proper abstract of the record, as required by our Rule 9. An examination of the record (which a consideration of the Attorney General’s motion requires) discloses that there is no bill of exceptions contained therein. Apparently the case was tried in the circuit court, by stipulation of counsel, on a transcript of the testimony adduced in the municipal court, which, without proper authentication, appears in the transcript filed in this court.
But such testimony cannot be made a part of the record on appeal, even by stipulation, in the absence of a bill of exceptions duly authorized by the trial court and authenticated as required by law. Kinnanne v. State, 106 Ark. 280, 153 S. W. 583; Satterfield v. Loupe, 160 Ark. 226, 254 S. W. 489. The recent Act of the General Assembly (Act 196 of 1945) providing that stipulations in equity cases may become part of the record without bill of exceptions has, of course, no application to the case at bar.
We have uniformly held that, where the testimony heard in the trial court is not brought into the record by bill of exceptions, we cannot review the evidence to determine whether it is sufficient to support the lower court’s judgment. Lawrence v. State, 71 Ark. 82, 71 S. W. 263; McLaughlin v. State, 117 Ark. 154, 174 S. W. 234; State v. Chapman, 118 Ark. 601, 176 S. W. 315; Alexander v. State, 138 Ark. 613, 211 S. W. 664; Nix v. State, 190 Ark. 1177, 81 S. W. 2d 15; Williams v. State, 192 Ark. 1178, 92 S. W. 2d 658; Boatright v. State, 195 Ark. 611, 113 S. W. 2d 107; McCarty v. State, 202 Ark. 954, 154 S. W. 2d 594; Chandler v. State, 205 Ark. 74, 167 S. W. 2d 142; Westerdale v. State, 205 Ark. 100, 168 S. W. 2d 615; French v. State, 205 Ark. 386, 168 S. W. 2d 829.
Appellant’s-only insistence for reversal is that the evidence against him in the lower court was insufficient to establish his guilt. Since this evidence has not been properly brought .into the record, we may not appraise its adequacy.
Accordingly the judgment of the lower court is affirmed. | [
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Minor W. Millweb, Justice.
John Cox, Sr., died testate in St. Francis county, Arkansas, and his will was regularly admitted to probate on October 16, 1911. The testator made provision for each of his six children, and the tract of land involved in this suit was devised to his son, Joseph Cox, as follows: “I give and devise to my son, Joseph Cox, the following land lying and being in the county of St. Francis and State of Arkansas, to-wit: The southwest quarter of the northeast quarter (SW^ of NE14) of section seven (7) in township four north (4N) and range three east (3E), to have and to hold unto the said Joe Cox for and during his natural life and at his death to the heirs of his body, but should said Joseph Cox die without heirs of his body then and in that event the land herein willed to him for his natural life shall be and become the property of brothers and sisters and the heirs of their bodies. ’ ’
Joseph Cox was never married and held possession of the tract under the above devise until his death, without issue, on September 10,1946. The six children of the testator, John Cox, Sr., survived him. Three of these children survived their brother, Joseph Cox, and are plaintiffs in this suit. The other two children of John Cox, Sr., were Tliomas Cox and John Cox, Jr., who died in the years 1929 and 1940, respectively. Thomas Cox left, surviving him, eight children and John Cox, Jr., left, surviving him, five children. The surviving children of Thomas Cox and John Cox, Jr., are now living and claim an interest in the land in controversy. Plaintiffs, the three living children of John Cox, Sr., also have children who are plaintiffs ’ potential bodily heirs.
On January 23, 1947, plaintiffs filed this suit alleging that defendant, James E. Danehower, contracted to buy said 40 acre tract for $1,600 payable upon delivery of a deed conveying good title; that plaintiffs tendered such deed, but defendant had refused to receive the deed and pay the purchase price. Plaintiffs tendered their deed into court and prayed for specific performance of the contract.
In his answer defendant admitted all allegations of the complaint except the allegation that plaintiffs owned the land and that their deed would convey good title under the contract. The answer alleged that the surviving children and bodily heirs of Thomas Cox and John Cox, Jr., were claiming an interest in the land; and that they had' also agreed to convey the land to defendant jointly with plaintiffs for the agreed price of $1,600, which defendant was ready and willing to pay for clear title to the land. Defendant asked that he be placed in lawful possession of the land upon payment of $1,600 into the registry of the court; that the complaint be dismissed for want of equity, or in the alternative, that all claimants of the land be required to assert their respective rights and interests therein.
The children and bodily heirs of Thomas Cox and John Cox, Jr., adopted the answer of defendant and filed a cross complaint against plaintiffs and defendant alleging they were able and willing to join plaintiffs in a deed to defendant, but that plaintiffs refused to acknowledge their interest in the land, and that defendant refused to accept a deed or pay the purchase Price unless a deed be executed by all parties. The cross complainants prayed that their interest in the land be determined, and that defendant and plaintiffs be required to perform the contract of sale.
Plaintiffs filed a demurrer alleging that the answers and cross complaint did not state a defense to the complaint. The demurrer was overruled. Plaintiffs declined to either plead further or offer proof and their complaint was dismissed.
On consideration of the cross complaint and other pleadings, the Chancellor found that upon the death of J oseph Cox on September 10,1946, the fee simple title to the land in controversy became vested, under the will, as follows: a one-fifth interest to each of the three plaintiffs, the surviving brother and sisters of Joseph Cox, deceased; a one-fifth interest to the eight bodily heirs of Thomas Cox, deceased, collectively and in equal shares; and a one-fifth interest to the five bodily heirs of John Cox, Jr., collectively and in equal shares. The court decreed specific performance of the contract. Plaintiffs and cross complainants were directed to convey the land to defendant who was ordered to make payment of the $1,600 purchase price according to the several interests declared. Plaintiffs and defendant have appealed.
At the outset we are confronted with the fact that an interpretation of only one item of a will is sought by the parties and the whole will is not before us. The entire will is not set forth in the pleadings and does not appear in the record. One of the cardinal rules in the construction of wills is that it is the court’s duty to ascertain the intent of a testator, and in doing so such intent is not to be determined by one clause only, but must be gathered from a full consideration of the entire will. In the case at bar, however, the parties seem willing to assume that a consideration of the other portions of the will would not aid their respective contentions, and are content to rest their case upon the devise above quoted. Acting upon this assumption, we proceed to determine whether the language of this devise alone supports the’ conclusion reached by the Chancellor.
It is the contention of plaintiffs that the Chancellor erred in holding that they must share with the children, and bodily heirs of Thomas Cox and John Cox, Jr., on a per stirpes basis. Plaintiffs insist that they, being the only brothers and sisters of the life tenant, Joseph Cox, at the time of his death, are the sole beneficiaries of the devise over and take the title in fee. It is contended that the words “and the heirs of their bodies,” immediately following the designation of brothers and sisters as a class, do not include the bodily heirs of brothers and sisters previously deceased. This question was decided against the contention of plaintiffs in the case of Bell v. Gentry, 141 Ark. 484, 218 S. W. 194, and we think that decision is controlling here. In that case the testator was survived by his widow, who was also his executrix, and by several children. The devise was to the widow “as long as she shall remain unmarried and my widow with remainder thereof on her decease or marriage to my said children and their bodily heirs.” The widow died without having remarried and it was held that the children took the fee as remaindermen. It was there said: “The will created a remainder and provided when it should vest, and that was on the decease or remarriage of the widow. In defining the heirs who should then take, the testator employed words of procreation so that only those heirs special, rather than the heirs general, took under the will; but the rights of these heirs became fixed when the remainder was cast, which event proved to be the death of the widow, as she died without having remarried. Harrington v. Cooper, 126 Ark. 53, 189 S. W. 667.
“At the death of the widow, when the remainder was cast, the son, Dennis, and the daughter, M. F. Smith, survived her and they, therefore, took the fee as remainder-men. Had they, or either of them, died in the lifetime of their mother, their bodily heirs would have taken the fee; and these bodily heirs would have taken as devisees under the. will (and not by descent from Dennis or M. F.), the}7 being the heirs special, or bodily heirs, in esse when the event happened upon which the remainder was to vest, that is the death of the testator’s widow.”
The effect of the devise under consideration was to create contingent remainders in the alternative following the life estate of Joseph Cox. In 33 Am. Jur., Life Estates, Remainders, etc., § 85, it is said: “More than one estate in remainder may be limited after a single particular estate if the limitation is in the alternative so that one may take effect if the other does not. ’ ’ See, also, Simes, Law of Future Interests, vol. I, 78 and 79. The first alternative, i. e., to the heirs of Joseph Cox’s body, has failed, and the second alternative, to the brothers and sisters of Joseph Cox and the heirs of tlieir bodies, vested upon the death of the life tenant, unmarried and without issue. At the time of the testator’s death, the five brothers and sisters of Joseph Cox were living. Under the authority of Bell v. Gentry, supra, the bodily heirs of the deceased brothers of Joseph Cox take the share of their respective fathers per stirpes, as held by the Chancellor.
The next question for determination is whether plaintiffs and cross complainants take only a life estate followed by a fee in their bodily heirs under § 1799 of Pope’s Digest, or a fee simple estate. In Pletner v. Southern Lumber Co., 173 Ark. 277, 292 S. W. 370, John C. Gillis devised a homestead to his wife, Artemus F. Gillis, for life with remainder to Mary Elmira Godfrey and her bodily heirs. It was held that the devise created a fee simple estate in Mary Elmira Godfrey after the wife’s death and that $ 1799 of Pope’s Digest relating to fees tail was inapplicable. The court said: ‘ ‘ This court has often ruled that, where land is conveyed, or devised, to a person and the heirs of the body, children, or issue of such person, such conveyance or devise creates an estate tail in the grantee or devisee, which under out statute (§ 1499, C. & M. Digest) becomes an estate for life only in the grantee or devisee and a fee simple absolute in the person to whom the estate tail would first pass, according to the course of the common law, by virtue of such devise, grant or conveyance. . . .
“But this familiar doctrine cannot have application here, for the reason that the estate is not devised to Mrs. Mary Elmira Godfrey and her bodily heirs, creating a life estate in her and a fee simple estate in her bodily heirs under the statute, supra. The life estate, as we have seen, was prviously devised to Mrs. Artemus F. Gillis, and the remainder of the estate after such life estate, was devised to Mary Elmira Godfrey and her bodily heirs.” The court held that Mary Elmira Godfrey took the fee, and not ajife estate, saying: “To construe the will so as to vest the life estate in Mrs. Gillis and a life estate also in Mrs. Elmira Godfrey would be to make these clauses of the will repugnant and inconsistent. This could not have been the intention of the testator, and such construction must therefore be avoided in order to effectuate his purpose.”
The statute (§ 1799, Pope’s Digest) was likewise held inapplicable in the case of Bowlin v. Vinsant, 186 Ark. 740, 55 S. W. 2d 927, under a devise by the testator to “my wife during her life, at her death, or should my said wife not survive me, unto my daughter, Gertrude Vinsant, and unto the heirs of her body. ’ ’ The wife survived her husband and the daughter (appellee) survived her mother. The court in construing the will said: “While the testator did not use the word ‘remainder’ in this connection as was the case of Pletner v. Southern Lumber Co., 173 Ark. 277, 292 S. W. 370, it was in fact the remainder conveyed. ... We think the real intention of the testator was that, if appellee were living at the time of his wife’s death, she should take the fee, but, if she were not living then, the heirs of her body would take the fee.”
The holding in the Pletner and Bowlin cases, supra, was reaffirmed and followed in Adams v. Eagle, 194 Ark. 171, 106 S. W. 2d 192. Under the rule of construction followed in these cases, plaintiffs, the surviving brother and sisters of Joseph Cox, and cross complainants, children of the two deceased brothers of Joseph Cox, took a fee simple rather than a fee tail estate upon the death of the life tenant. This being true, they can now convey a clear title to the defendant purchaser, and the trial court correctly so held.
Tlie decree for specific performance is accordingly affirmed. | [
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Smith, J.
The appellant was charged in the State óf Colorado with participating in a “confidence game,” which, under the laws of that state, is a felony. A requisition was issued for appellant’s arrest, which was honored by the Governor of this state, and after appellant’s arrest he filed a petition for a writ of habeas corpus. A hearing was had thereon, and appellant was remanded to the custody of the officer who had him under arrest, and this appeal is from that judgment.
To reverse this judgment, two pleas are interposed. First, the plea of res judicata, and second, that appellant is not the person named in the requisition.
It appears that appellant was arrested in the State of Texas, upon the requisition of the Governor of Colorado, upon the same charge. His release was denied by a District Court of the State of Texas, and that judgment was first affirmed by the Court of Criminal Appeals, but a rehearing was granted, and it was ordered that petitioner be discharged for the reason that his identity
as the person named in the requisition had not been established. Letwick, v. State, 168 S. W. 2d 866.
.But appellant is not to be given immunity from prosecution upon the charges against him because his identity was not established in Texas, if it has since been established in the proceeding from which is- this appeal. At § 203 of the Chapter on Habeas Corpus, 29 C. J. 179, it is said: “But by the great weight of authority, the rule is, in the absence of a statute providing otherwise, that a refusal to grant a writ of habeas corpus, or a dismissal of the writ, or a remand of the relator to custody, or other refusal to discharge him, is not a bar to, or res judicata on, a subsequent application for the writ.”
It was held in the case of State ex rel. Shapiro v. Wall, 187 Minn. 246, 85 A. L. R. 114, 244 N. W. 811, to quote a headnote from that case, that: “The discharge by writ of habeas corpus of a prisoner held upon an extradition warrant for the reason that the courts of one state hold that he is not a fugitive from justice is not res judicata in habeas corpus proceedings in another state where the same issue is raised.” See, also, to the same effect Kurts v. State, 22 Fla. 36, 1 Am. St. Rep. 173. See, also,' annotations to the case of People v. Toman, 102 A. L. R. 379-382.
There is no question of former jeopardy in this case. Indeed the question is whether appellant shall be returned for a trial to the state where the offense is alleged to have been committed. We hold, therefore, that tbe plea of res judicata is not well taken. This view accords with the holding in the case of State ex rel. Lewis v. Allen, 194 Ark. 688, 109 S. W. 2d 952, where it was said: “If the circuit judge had authority to consider the petition, Stewart v. Johnson, 192 Ark. 757, 94 S. W. 2d 715, it could have been only for two purposes; first, to establish the identity of the prisoner; and, second, to determine the question of whether or not he was a fugitive. These questions are primarily for the Governor of the asylum state and, where the requisition shows the necessary facts to entitle the demanding state to the return of the alleged fugitive, the two questions stated are the only ones to be considered. The evidence submitted did not relate to either of these questions, but was to the effect that the petitioner was innocent of the crime charged. ’ ’
It cannot be questioned, indeed it is conceded, that if appellant is in fact the person named in the requisition he is a fugitive from justice. But is he that person? The cases on the subject uniformly hold that the person sought to be extradited may raise and have determined the question of identity on habeas corpus. In other words, a person arrested under a requisition has a right to show in a habeas corpus proceeding that he is not the person named in the requisition. Section 20 of the Uniform Criminal Extradition Act, which was enacted into law by Act 126 of the Acts of 1935, so provides.
There is a conflict in the authorities as to where the burden of proof lies in this proceeding, but it is unimportant here as appellant offered no proof whatever. People v. Toman, supra.
It is conceded that the requisition papers were prepared in exact compliance with the applicable statutes both of Colorado and of this state. The requisition from the Governor of Colorado is for the arrest of Albert Levine, and the warrant of arrest issued by the Governor of this state honoring the requisition, employs the same name. But it appears that the Governor of this state awarded appellant a hearing before honoring the demand of the Governor of Colorado, and at this hearing appellant admitted that he was known by both of the names, Albert Letwick and Albert Levine, although he denied at that hearing that he had ever been in the State of Colorado. At this hearing before the Governor a report by the F. B. I. was offered showing that Albert Levine had been arrested in numerous states on various charges, and it was shown that appellant, at the hearing before the Governor, admitted he had been arrested in all the places named.
The warrant issued by the Governor of this state directed any peace officer of this state to arrest Albert Levine and to deliver Ms custody to E. S. Niles, the agent of the State of Colorado, for transportation to that state. Niles testified that he procured photographs of Levine which had been identified by persons who knew Levine, as the person alleged to have committed the “confidence game.” One of these had been tried and convicted in Colorado as one of Levine’s associates in the “confidence game. ’ ’ The photographs, four in number, were offered in evidence by Niles, who testified that they had been •identified as the photographs of the person accused in Colorado of committing the “confidence game,” but he did not testify that he personally knew Levine. The court therefore had the opportunity to determine whether appellant was the man who had been photographed.
This was hearsay testimony, of course, but appellant was not on trial for the commission of the offense charged. Indeed his guilt or innocence of that charge was not a question which the court could have heard or determined in the habeas corpus proceeding. The rule of evidence requiring that the accused be confronted with the witnesses against him does not apply.
The case of U. S. ex rel. Austin v. Williams, 6 Fed. 2d 13, was one in which petitioner sought by habeas corpus to procure his release upon the ground that he was not the person named in the requisition. Affidavits and photographs were offered in evidence, as in the instant case, which were objected to as offending against the hearsay evidence rule. In holding the evidence competent, the court said: “This is not a criminal case, controlled by the constitutional right of an accused to be confronted by witnesses, but is a civil case, and I conclude from this, and from the decisions (to which the opinion referred), that the relator’s objection on this ground is not supported by law, and that the affidavits can be properly considered as evidence by the court.”
This holding was affirmed by the Circuit Court of Appeals for the Fifth Circuit on the appeal to that court, 12 Fed. 2d 66, where it was said: “The principal complaint as to the discharge of the writ is based upon the consideration by the Governor of Louisiana, and the admission in evidence on the hearing below, of affidavits by residents of Utah that the appellant, whose picture was attached to each of such affidavits, was the person who committed the alleged crime. Such, evidence properly may be considered in determining whether the person sought to be surrendered is or is not the one charged with crime, and whether he was or was not in the demanding state when the crime is alleged to have been committed. Munsey v. Clough, 196 U. S. 364, 25 S. Ct. 282, 49 L. Ed, 515.” U. S. ex rel. Austin v. Williams, 12 Fed. 2d 66.
Niles, the agent of the State of Colorado, testified that, practically speaking, the only method of identifying “confidence men” who are fugitives from justice, is by the use of photographs which had been identified as those of the person whose arrest was demanded.
In the ease of State ex rel. v. Allen, supra, it was said: “The Governor of Arkansas, by his act in honoring the requisition, found that appellee was a fugitive from justice. In this state of the case the rule seems to be that before he would bé entitled to a discharge by court order, the evidence would have to be practically conclusive in his favor. Keeton v. Gaiser, 331 Mo. 499, 55 S. W. 2d 302; Munsey v. Clough, 196 U. S. 364, 25 S. Ct. 282, 49 L. Ed. 515.”
Certainly the evidence in this case is not practically conclusive that appellant, the person who calls himself Albert Letwick, is not the Albert Levine whose return to Colorado for trial has been demanded.
It appears that appellant did not make bail as the court ordered that he might, do pending this appeal, and that he remained, and is now, in the custody of the officers of this state.
The action of the court below in dismissing the hateas corpus proceeding is therefore affirmed, and the officers having appellant in custody will deliver him to the authorized agent of the State of Colorado for transportation to that state. | [
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Grieein Smith, Chief Justice.
The appeal is from a judgment of Circuit Court overruling protests of landowners that benefit assessments in the Drainage District were invalid because the method of assessing was unfair, arbitrary, and discriminatory. It is also insisted that the complaining parties were hampered in efforts to develop their case because of the Court’s refusal to compel pro-
2 chiction of data upon which damages for taking land for right-of-way purposes were based.
Appellants’ description of the District is that the western boundary is the Missouri Pacific-Rock Island railroads in the eastern part of Little Rock. The north and northeastern boundaries are the Arkansas River, and the eastern, southeastern and southern boundaries are Fourche Creek. The District is partly within and partly beyond city limits.
In their preliminary report Dickinson & White, engineers, who were appointed by the County Court in February 1946, mentioned that the area was within scope of local flood protection in the Arkansas River watershed, as disclosed by maps on file in the office of the U. S. engineer at Little Rock. The War Department had made a conditional allotment of $850,000 on a tentative estimate of $1,200,000 for the entire undertaking. Because of the requirement that a right-of-way be provided without cost to the Federal Government, and in view of further conditions that interior drainage and perpetual maintenance were local obligations, the District was formed as the only practicable means for supplying the difference between allotment and cost. Assessed benefits actually computed were $378,620, with interest at 6%. It was estimated that more than $70,000 in betterments would be on property exempt from District taxation, leaving $300,000 in round figures. A bond issue of $190,000 is proposed.
The District was created under authority of Act 279, approved May 27,1909, and Acts supplemental or amendatory. It is inferentially conceded that if the exceptions upon which the appeal is predicated cannot be sustained, and if there is not want of due process of law, creation of the District and resulting assessments are legal.
The Commissioners selected Oscar McCaskill and A. L. Wooten to assist in arriving at appropriate betterment assessments, and it is largely upon the testimony of these two that the allegation of arbitrary results is based. Their work was completed in November;
Faced with the requirement that $300,000 be made available, the appraisers adopted the assessment rolls used for State and County purpose. From these records they found total valuations to be $1,090,712. Mr. McOasldll, in testifying, said he and Mr. Wooten “ . . . arrived at a formula based upon approximately twenty-two per cent, of the State and County assessment as general benefits, plus special benefits, depending on the area and contour.” He went on to explain that land higher in elevation than 260 feet was charged only with the general benefit of twenty-two per cent. Land between 250 and 260 feet was thought to be benefited $60 per acre, or $16 per lot, while the lower gradation between 240 and 250 feet was found to be improved to the extent of $80 per acre, or $24 per lot.
It is urged by appellants that effect of this testimony, when considered in connection with other statements by McCaskill, is that some of the land — depending upon contour — was generally assessed. This, exclusive of lands exempt, would yield $239,956. To produce the required difference, the property most frequently exposed to overflow was divided into classes and assessed according to what was believed to be protection from, the risks of overflows — the lowest in elevation being taxed with a higher benefit than that in the medium contour classification. It is contended, therefore, that special benefits were added to general benefits in a manner contrary to law.
But is this the effect of Mr. McCaskill’s testimony? Certainly that would be true if we disregarded other essential facts and decided the case on abstract statements. A somewhat different construction would apply if the testimony is read as a whole.
The basis, says McCaskill, was arrived at because the assessment rolls in question had been used (most of them) over a period of years. They had been ‘ ‘ revamped time and again, accepted by the Board of Equalization and property owners,” and in other respects more nearly reflected equality and uniformity than any other plan they could apply. Months were spent working on the lists. But, said the witness, “We took into consideration the improved methods of ingress and egress, improved health conditions, improved market facilities, and improved use of the lands. The assessments were made in proportion to benefits accruing to the property as we saw it, but we did not take into consideration future use of the land. This could not be done because it was impossible to tell what that use would be. ’ ’
While it is true Mr. McCaskill said two bases were used for assessment purposes — general and special, — it seems conclusive that what he intended to convey was that there were two classes of special benefits, one general and amounting to twenty-two per cent., the other applicable especially to lands exposed in a more or less degree to overflows, according to elevation. This construction appears tenable when compared with testimony by the witness that all property in the area would be affected because of improved health conditions, facilitated ingress and egress, and those things of a related nature which attend the type of protection proposed.
The. appraisers who testified were representatives of the Commissioners, and there is a legal presumption that the Commissioners, 'in adopting the report, were in possession of information necessary to determine whether the methods were fair and the results uniform within the scope of due process.
Appellants cite Kirst v. Street Improvement District No. 120, 86 Ark. 1, 109 S. W. 526, and the Court’s holding-in an opinion by Hon. Ashley Cookrtll, Special Judge. “Consideration,” he says, “should be given to all facts and circumstances tending to show special benefits received from the improvement not flowing to the community at large. ’ ’ This decision was handed down in March, 1908, before Act 279 of 1909 became law. But assuming that in purpose the objectives were similar, the holding by Judge Cockrill supports validity of methods used by the Commissioners in the case at bar. After stating that any exaction in excess of the special benefits is, to the extent of such excess, a taking- of property without compensation, he added: “Notwithstanding these principles so firmly settled, and in spite of Norwood v. Baker, 172 U. S. 269, 19 S. Ct. 187, 43 L. Ed. 443, it has been repeatedly held by the Supreme Court of the United States and this Court that an Act of the Legislature providing for assessment of the' cost of a local improvement according to the value of the property itself is not arbitrary, and is not in conflict with the Constitution. These decisions are based on the principle that it must be assumed that the Legislature, in adopting such a method, has determined that the amount of benefits will accrue in proportion to the value of the property itself, and thus the assessment is still according- to benefits, within the meaning of the law.”
The Act of 1909 directs Commissioners to assess “the value of the benefits to accrue to each tract” by reason of the improvement.
No point is made by showing that part of the land assessed is above overflow. Oates v. Cypress Creek Drainage District, 135 Ark. 149, 205 S. W. 293. In that case Mr. Justice Humphreys quoted with approval from Louisville & Nashville Ry. Co. v. Barber Asphalt Paving Co., 197 U. S. 430, 25 S. Ct. 466, 49 L. Ed. 819: “The amount of benefit which an improvement will confer upon particular land, indeed whether it is a benefit at all, is a matter of forecast and estimate. ’ ’
In Carson v. St. Francis Levee District, 59 Ark. 513, 27 S. W. 590, Chief Justice Bunn said that a tract of land embraced within the district might be above overflow and the district’s levee would not change that status, “and yet in various ways it may be benefited.” Testimony of complaining parties in the Oats case heretofore mentioned was that property of a number of landowners was above overflow from rain or backwater, that no lateral of the system would come in contact with their land, that drainage was not needed, that no health benefits would accrue, and there would be no enhancement in values because of the improvements.
The Oates case goes a step farther and in a sense upholds a general estimate of betterments, for we find this statement: “. . . The assessors adopted a uniform basis for making assessments on all lands. They uniformly used a benefit basis. For example, they ascertained that the total benefits to accrue to the lands in the Town of Perry would be $10,000, after taking into consideration every element going to make up the total benefit. In order to apportion equitably the total benefit on the town lands to the several tracts therein, a valuation basis was adopted. Likewise, they ascertained that the total benefit to accrue to the lands in the country would be $72,800. ... A total.assessment of the entire benefit to the whole property was entirely feasible and practical and an apportionment of the benefits on any basis was unnecessa ry. ’ ’.
The principle upon which assessments are sustained is not one requiring that all of the elements of betterment be affirmatively or expressly shown. It is enough, under our decisions, if the Commissioners of a district, as reasonable men, and with essential information, conclude that probable result of the undertaking would especially benefit those within the district as a whole. The presumption is that A profits because most of the community will. “If it be essential or material for the prosperity of the community, and if the improvement be one in which all the landowners have to a certain- extent a common interest, and the improvement cannot be accomplished without the concurrence of all or nearly all of such owners by reason of the peculiar natural condition of the tract sought to be reclaimed, then such reclamation may be made and the land rendered useful to all and at their joint expense. In such cases the absolute right of each individual owner of land must yield to a certain extent or be modified by corresponding rights on the part of other owners for what is declared upon the whole to be for the public benefit. ’ ’ Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 17 S. Ct. 56, 41 L. Ed. 369. See Less Land Company v. Fender, 119 Ark. 20, 173 S. W. 407.
'Chief Justice Hart, in Standard Pipe Line Company v. Index-Sulphur Drainage District, 173 Ark. 372, 293 S. W. 1031, in referring to Missouri Pacific Railroad Co. v. Sears, 166 Ark. 104, 265 S. W. 653, said that the Court had expressly held [in that and other cases] that the fact that the special assessment is made upon the whole value of the property as assessed for State and County purposes does not imply that the assessment is not also according to benefits to be derived from the improvements, “Hence it is not an arbitrary method of ascertaining the amount of benefits to assume that they will accrue in proportion to the actual value of the whole property.”
We think appellants’ argument that assessments are void because they vary in different zones according to separate contours, is1 answered by Judge Hart in Selz v. McGehee East & West Highway District, 171 Ark. 423, 284 S. W. 733, where a zoning system was used to govern in assessing benefits against rural lands, and a percentage of the assessed valuation was used for assessing benefits to town property. “No proof appears,” says the opinion, “to show that this made the action of the Commissioners arbitrary, and it cannot be said that this method of assessing the benefits to the property shows on its face that the assessment is arbitrary or discriminatory.” See Wilkinson v. Road Improvement District, 141 Ark. 164, 216 S. W. 304; Bulloch v. Dermott-Collins Road Improvement District, 155 Ark. 176, 244 S. W. 327.
In Memphis Land & Timber Co. v. St. Francis Levee District, 64 Ark. 258, 42 S. W. 1093, the method used in assessing betterments was an issue. The president of the Board of Equalization testified:
“We took the assessed value of the lands as they appeared on the tax books for State and County taxes, without reference to betterments. Then, as a betterment, we added from five to four hundred per cent., in proportion to depth of overflow. We concluded that the land subject to the deepest overflow would derive the greatest benefit by a levee. We did not take into consideration improvements or cleared lands. The betterments would only be upon the lands, and not upon the improvements. [They] amounted to exactly $2 per acre. . . . We agreed that lands that were nearly or quite valueless received the greatest betterment. We- did this from the depth of overflow, and we got the depth by the value for State and County purposes.’’
Whether, if not bound by our own decisions, we would now hold as a matter of first impression that methods used in the instant case were improper, is beside the point. The Commissioners and lawyers advising them had a right to assume that procedures judicially approved over a long period of time would not be overturned; nor should they. ■
If it be said that there should have been no objection upon the part of the District to making available to interested parties the figures compiled by agents of the Real Estate Board, still the fact remains that right-of-way payments are not issues here, and if the Commissioners thought that introduction of this extraneous record would tend to confuse, they had a legal right to insist that the work of sixty men and the memoranda they prepared were not essential to or factors in a determination of issues raised by the landowners.
Affirmed.
The District contract with Little Rock Real Estate Board to supply estimates of damages accruing to each property owner whose land would be taken as a right-of-way. There is testimony that approximately sixty representatives of the Board, working separately, made reports. These, seemingly, were compiled for use of the Board in supplying the information sought. A fee of $1,500 was paid for this service, but the individual workers were not compensated.
Requirements of the Government were (a) that the District provide without cost to the United States all lands, easements and rights of way necessary for construction of the levee; (b) alter and construct all bridges required across water courses; (e) hold the United States from damages due to construction work; (d) maintain and operate all works after completion, in accordance with regulations prescribed by the Secretary of War, to include protection of flood-carrying capacity of the channel of the Arkansas River; (e) pay cost of construction and maintenance of interior drainage wprk necessary to remove surface water.
Commissioners are G. B. Oliver, Jr., Frank B. Gregg, Jr., and Fred J. Venner. They filed statutory oaths of offic'e February 28, 1946.
The work done by McCaskill and Wooten did not extend to right-of-way matters. | [
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Ed. F. McFaddin, Justice.
Leon Pendleton was convicted of burglary, and sentenced to two years in the penitentiary ; and he has appealed. The motion for new trial contains 16 assignments, which we group and discuss in suitable topic headings.
I. Sufficiency of the Evidence. The evidence, viewed in the light most favorable to the State, tends to show the following facts: John Harbottle owned -a liquor store in Altus, Franklin county. The store was in a small brick building which faced south, with one door on each of the south, east and west sides. There was a partition in the building; the liquor store was in the south room, and the north room was a bedroom occupied by E. W. Sublett, who operated the liquor store for Harbottle, and who was sleeping in the north room on the night in question. Some time between 2:00 a. m. and 3:00 a. m. on February 3,1947, two men attempted to enter the liquor store. During the time the burglars were attempting to force entrance, Sublett was awakened by their noises; he loaded his gun with buckshot, and awaited their possible entrance. Sublett had opportunity to see the burglars, because of the moonlight, their flashlight, the street lights, and also the lights from two passing cars. The burglars tried the east door and then the south door before they succeeded in breaking open the south door. One of the burglars came into the store, and the other,remaining on the outside, said to his companion: “If yoii find anybody in there, knock them in the head and kill them. ’ ’ The burglar on the inside discovered Sublett and started toward him, and Sublett shot him — a man named Harris. The other burglar ran away, and is claimed to be the defendant, Leon Pendleton.
When Harris was shot, he fell to the floor, where he remained until a physician had him removed by ambulance, a few hours later, to Fort Smith. Harris died in a hospital in that city. Immediately after shooting Harris with the shotgun, Sublett, by firing a pistol, awakened Harbottle, who lived near by, and who summoned the officers. A small crowd soon gathered. While Harris was on the floor, he was heard to exclaim, ‘ ‘ Come and get me, Leon”; and, again, “Leon,. Leon, come and get me.” These exclamations were held incompetent, and will be discussed in topic II.
Leon Pendleton was arrested the same day in Van Bnren, where he lived. He was charged with burglary of the Harbottle store, and his plea of not guilty included the defense of an alibi. Sublett positively identified Pendleton as the companion of Harris in the burglary. Other witnesses supported Sublett by testimony tending (1) to identify Pendleton; (2) to place him near the liquor store the night in question; and (3) to show that he left the scene in haste. Without detailing all the evidence, we have sketched enough to show that a case was made for the jury.
II. Harris’ Exclamations. In his opening statement the prosecuting attorney told the jury that Harris, while lying on the floor after being shot, called “Leon, Leon, come and get me.” Pendleton’s attorneys objected to the statement, and moved the court to declare a mistrial. The record shows this to have occurred:
“Mr. Batchelor: I move the court to discharge the jury for that statement that ... at the time that the sheriff arrived at the scene of the robbery that Harris continued to call for ‘Leon’ to which statement the defendant now objects.
“The Court: Objection sustained and the jury admonished not to give that any consideration.
“Mr. Batchelor: Save our exceptions. Defendant . contends that this does not remove the error and at this time asks the court to declare a mistrial and discharge the jury. Now I want the same objection to what Sublett said. We object to the statement of the prosecuting attorney that Sublett would testify that after the shooting or about the time of the shooting, the deceased, Harris, called for Leon to come and get him or words to that effect.
“The Court: Overruled. I don’t believe I will admonish the jury at this time. After consideration, motion sustained and the jury is admonished not to give consideration to it. Gentlemen of the jury, there has been some statement inadvertently made not in response to the question as to what Mr. Harris said. You will not give that consideration, gentlemen, as to what he said down at the place or on the way to the hospital.”
It will be observed that the trial court admonished the jury to give no consideration to the exclamations made by Harris. But the appellant contends that the words of the prosecuting attorney could not be erased from the minds of the jurors; and claims that a mistrial should have been ordered under the authority of Smith v. State, 205 Ark. 1075, 172 S. W. 2d 248.
The situation in the case at bar is not identical to that in the Smith case. The distinction is this: In the Smith case the prosecuting attorney, in his opening statement and over the defendant’s objections and exceptions, was permitted by the court to detail" an alleged confession which was later held to be inadmissible. We said the error in allowing the confession to be detailed to the jury was not cured by the admonition of the court given the next day. In the case at bar the prosecuting attorney, in his opening statement, told the jury of the exclamations and remarks that Harris was alleged to have made; but just as soon as the defendant objected to the statement of the prosecuting attorney, the court told the jury to disregard the statement. Thereafter when any witness attempted to tell of Harris’ exclamations or remarks, the court promptly stopped such , witness, and directed the jury to disregard any such testimony. We therefore hold that in the case at bar the trial court did not abuse its discretion in refusing the defendant’s motion for a mistrial.
A majority of the Court thinks the dying man’s calls were a part of the res gestae and therefore testimony relating to them was admissible. What Harris exclaimed at the time of the shooting might have been such a spontaneous exclamation as to have been a part of the res gestae (see Walker v. State, 133 Ark. 517, 212 S. W. 319, and Moss v. State, 208 Ark. 137, 185 S. W. 2d 92); but we are not required to decide that issue, since the trial court excluded all exclamations made by Harris after Sublett shot him.
III. The Jury’s Recommendation of a Suspended Sentence. After the jury had deliberated for some time the jurors returned into the court, and the following transpired:
“Juror: Judge, your honor, I am foreman. We want to ask you a question. If we find the man guilty, can we recommend a suspended sentence?
‘ ‘ The Court: You may make whatever recommendation that you see fit.
“The jury then retired to consider further their ver- ■ diet. Immediately upon their retiring the following transpired:
“Mr. Batchelor: I want to object to the statement that the court made to the jury, then I want to request the court to state to the jury whether or not he will follow their recommendation. I ask the court to tell the jury that the court is not bound by their recommendation.
‘ ‘ The Court: That will be overruled for this reason: I may want to make an investigation as to the life that this man has lived in determining what I should do about it. I don’t know what that investigation will reveal. That is overruled because I don’t know what I will do after I learn what I may do about it.
“Mr. Batchelor: Save our exceptions.”
The defendant most vigorously argues that the trial court erred in all of the foregoing copied proceedings; but we hold that the appellant’s assignment is unavailing. The statement of appellant to the court, as just copied, covered three points in one statement. We proceed to list each of the three points, and discuss them, to-wit:
First, appellant objected to the court telling the jurors that the jury could make a recommendation of a suspended sentence. The court’s action in that regard was not an error, because the statute 4028, Pope’s Digest) says the jury may ask the court about a point of law; and the statute (§ 4053, Pope’s Digest, as amended by Act 262 of 1945) says the court may suspend a sentence. Furthermore, we held in Jones v. State, 161 Ark. 242, 255 S. W. 876, that it was proper for the court to answer questions of the jury concerning the nature and place of confinement.' That holding applies here.
Second, appellant asked the court To tell the jury whether the court would follow the jury’s recommendation of a suspended sentence. The court was correct in refusing that request; it would have been error for the court to tell the jury that its recommendation would be followed. In Bethel v. State, 162 Ark. 76, 257 S. W. 740, 31 A. L. R. 402, the trial court told the jury under what conditions the sentence would be suspended; and that action was held to be reversible error.
Third, appellant asked the court to tell the jury that the court was not bound by any recommendation. That request was proper; and if that request had stood alone and severed from the other two points, then it would'have been error for the court to refuse that request. But the correct request was coupled with (1) an invalid objection and (2) an erroneous request, as previously shown; and with the record in such condition, appellant is in no attitude to complain of the court’s ruling.
In Ward v. Sturdivant, 86 Ark. 103, 119 S. W. 1168, in considering an objection en masse to instructions, we said: ‘‘ The appellant, the record shows, ‘ excepted to all of said instructions, but the court gave same over the objections’ of appellant. This presents no specific objection to any one of the instructions, and we find that some, if not all, of them are correct. Atkins v. Swope, 38 Ark. 528; Neal v. Peevey, 39 Ark. 337; Quertermous v. Hatfield, 54 Ark. 16, 14 S. W. 1096; Fordyce v. Russell, 59 Ark. 312, 27 S. W. 82; . . . ” To the same effect, see, also, Owens v. State, 86 Ark. 317, 111 S. W. 466; Tiner v. State, 109 Ark. 138, 158 S. W. 1087; Graham v. State, 197 Ark. 50, 121 S. W. 2d 892; and Massey v. State, 207 Ark. 675, 182 S. W. 2d 671.
The rationale of the holding in those cases applies with equal force to the-ease at bar. The appellant in one request joined three points, two of which were wrong. In joining the three points in one request, the appellant took the risk of the error in any'of them. His exception to the court’s ruling was an exception en masse, since his request was incorrect on two of the points as we have shown.
Conclusion: The jury returned a verdict of guilty, and fixed the punishment at two years in the penitentiary, and recommended a suspended sentence. It appears from the judgment that the court, after investigation, refused to suspend the sentence. The court had this power under the statute (§ 4053, Pope’s Digest, as amended by Act 262 of 1945). We have examined all the assignments and find no reversible error. The judgment is affirmed. | [
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Ed. F. McFaddin, Justice.
Appellee, Mrs. Ruby Reeves, was plaintiff in the circuit court. She claimed that she drank a Coca-Cola bottled by appellant, and that the bottled drink contained small particles of glass, some of which she swallowed, and which caused her-to suffer pain, discomfort, injuries and loss of time from her work. She recovered judgment for $500; and appellant brings this appeal. Two questions are argued, which we list and discuss.
I. The Sufficiency of the Evidence. The appellant says: “There is a total failure to prove, either by direct or circumstantial evidence, that the plaintiff in this case swallowed any particle of glass, or that her condition was the result of swallowing any glass.” This quoted contention necessitates a review of some of the evidence. Appellee was a lady living near Mulberry. On March 5, 1946, she purchased a bottle of Coca-Cola at the store of Jack Jordan. The cap was removed by the clerk, and the bottle handed to the appellee, and she drank all of the contents except about “two good swallows.” Then, as she continued to drink the remaining contents, she felt a glass particle in her mouth, which particle, she claimed, came out of the bottle. She removed the glass particle from her mouth, and showed it to several people in the store. Some of these witnesses saw other glass particles remaining in the bottle. The exact statement by Mrs. Reeves on cross-examination was“I had drunk all but about that much, and I was going to make two good swallows out of the rest. I took a good swallow, and a little sliver stuck in the roof of my mouth, I pulled that out.” Appellee immediately consulted a physician, who examined the glass in the bottle, and prescribed for Mrs. Reeves. At the trial, the bottle, with the remaining glass particles therein, was exhibited tp the jury.
It is urged by appellant that Mrs. Reeves did not testify that she swallowed any of the Coca-Cola after she felt the glass in her mouth, and therefore — appellant argues — there is no proof that Mrs. Reeves ever swallowed any glass. But we cannot agree with appellant’s contention, because the evidence made a question for the jury. Mrs. Reeves testified that she drank all of the contents of the bottle except “two good swallows.” If the evidence had stopped at that point, then appellant would have had a much stronger case. But the evidence shows that Mrs. Beeves immediately called a doctor, and told him that she had swallowed glass. He examined the glass remaining in the bottle, and prescribed for her a diet for one who might have swallowed glass. Her suffering took the same pattern and exhibited the same symptoms as the doctor said one would experience who had swallowed glass. She testified that she had never been ill previously; that she became ill, and suffered severe pain, passed blood; experienced loss of considerable weight; and was some time recovering from her illness and regaining her weight. The doctor’s testimony, in effect, was that medical experience would support the inference that the pains and attending symptoms were the result of swallowing glass.
All of this testimony, when placed before the jury, presented a factual question as to whether appellee swallowed any of the glass from the bottle before she discovered the particle of glass in her mouth. The jury’s verdict settled this factual issue; and we have sketched only enough of the testimony to demonstrate that there was sufficient evidence to sustain the verdict. In this connection, we call attention to the following cases, each of which involved injuries alleged to have been caused by a party drinking glass particles, alleged to have been contained in a bottled beverage, to-wit: Coca-Cola Bottling Co. v. Raymond, 193 Ark. 419, 100 S. W. 2d 963; Coca-Cola Bottling Co. v. Massey, 193 Ark. 423, 100 S. W. 2d 681; Coca-Cola Bottling Co. v. Langston, 198 Ark. 59, 127 S. W. 2d 263; Coca-Cola Bottling Co. v. Spurlin, 199 Ark. 126, 132 S. W. 2d 828; Coca-Cola Bottling Co. v. Mooney, 204 Ark. 281, 161 S. W. 2d 753.
II. Excessiveness of the Verdict. The plaintiff suffered considerable pain, and passed some blood. She was confined to her bed for three weeks, and temporarily ldst considerable weight. She was treated by a doctor for ten days, and paid $18 for medical attention. It was six weeks before she was able to return'to her work, and her loss of earnings during that period exceeded $100. .From these facts, we cannot say that the $500 verdict was so grossly excessive as to shock the conscience and call for a remittitur. The five cases heretofore cited in this opinion, and the cases cited therein, indicate the course that this court has charted and pursued as regards verdicts in such situations. Affirmed. | [
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McHaney, Justice.
Appellees are the heirs at law of L. T. Bowden who died intestate on March 26. 1931, and who was the owner of the 20 acres of land here involved as a part of his homestead. Ina Louise Bowden, a daughter of L. T. Bowden, one of the appellees, is a minor and is represented in this action by her guardian, appellee O. M..Bowden.
The 20Lacre tract forfeited in 1931 for the 1930 taxes, (as also 72 other acres belonging to L. T. Bowden, all constituting his homestead, not here involved) and was sold to the State under the following description: “Part northeast quarter of the southeast quarter of section 4, township 7 north, range 9 west, containing 20 acres.” The taxes became delinquent after the death of L. T. Bowden. On'February 7,1938, appellant, Joe Ohenowith, purchased said 20-aere tract from the State, receiving a deed therefor describing the land as set out above. He thereafter sold same to appellant Kendrick. Ohenowith and Kendrick have been in the possession of said tract since the purchase from the State.
Appellees brought this action to cancel the deed from the State to Ohenowith and his deed to Kendrick. The answer denied that appellee’s ancestor was the owner of said tract at the time of his death, or that it ■ was a part of his homestead. They admitted that Ohenowith purchased from the State under said description and the deed from Ohenowith to Kendrick. They plead their possession as a bar to the action. Ohenowith entered this additional plea, according to their abstract: “ States that the plaintiffs and each of them are estopped from the record from claiming the said tract of land now owned by the defendant, Joe Lyle Kendrick, is the homestead of the said L. T. Bowden.”
Trial resulted in a decree for-appellees, holding that the land is a part of the homestead of their father and that she (Ina Louise) being a minor was entitled to redeem from the forfeiture and sale to’ the State; that the rents and profits should be offset against the taxes paid; that the land should be charged with a lien for $21, the amount paid the State, with 6 per cent, interest from February 7, 1928, a total of $31.08 at the date of trial; and that she recover the possession of said tract. This appeal followed.
We think the trial court correctly treated the action as one to redeem by the minor and properly permitted a redemption. We are not unmindful of the rule that one cannot consistently petition to redeem from a tax sale and at the same time question the title of the purchaser. Sparks v. Farris, 71 Ark. 117, 71 S. W. 255, 945. Here, complainant made no particular allegation of the invalidity of the tax forfeiture and sale, and the allegation made, that “each and everything done by all the officers connected with the delinquency, the sale, and report of sale were all done unlawfully, and are void and of no effect,” is so general as to “cover everything and touch nothing,” as has been said of the mother hubbard. It was insufficient to raise or charge any particular invalidity in the forfeiture and sale.
Nor can we agree with appellants that, because § 8925 of Pope’s Digest has no saving clause in favor of infants, their possession of said tract since 1938 has ripened into title and that she is barred under the two-year statute provided by said section. This because of §§ 8939 and 13860 of Pope’s Digest. Two of our recent decisions construing §§ 8939 and 13860 are Schuman v. Westbrook, 207 Ark. 495, 181 S. W. 2d 470, and Reynolds v. Haulcroft, 209 Ark. 266, 189 S. W. 2d 930.
IPis also argued that the court erred in holding that the 20-acre tract was the property of appellees. The complaint alleged that appellees are the heirs of and the owners by inheritance from T. L. Bowden, and that the land was a part of the homestead of said Bowden. The answer denied these allegations. We do not think appellees were required to deraign the title prior to T. L. Bow-den. They alleged that he owned the land at his death and that they are all his heirs at law. The evidence is undisputed that such is the fact. Appellant Chenowith testified that this land was the homestead of T. L. Bow-den when he died and that the minor heir, his daughter, was living on the land with her father and mother. The case was not defended on the theory that the land was not T. L. Bowden’s homestead, but on the theory of adverse possession and res judicata. The title of appellees was, therefore, sufficiently established.
A further argument for reversal is that their plea of res judicata should have been sustained. We have copied above the exact language of this alleged plea, as set out in appellants’ abstract. We think this so-called plea is wholly insufficient to raise the question of a for■mer adjudication of the same subject-matter between the same parties. This court follows the general rule, supported by the weight of authority, “that one relying on the doctrine of res judicata must plead the prior adjudication.” 30 Am. Jur., p. 984, § 255. In Bolton v. Mo. Pac. Rd. Co., 148 Ark. 319, 229 S. W. 1025, we said: “The plea of former adjudication is one-which, to be available, should be pleaded by answer as a defense. Adams v. Billingsley, 107 Ark. 38, 153 S. W. 1105. The answer tendering that plea should set out the facts upon which' it is based, and the issue is not properly raised by a motion to dismiss which does not recite the facts upon which the plea is based.” In the Adams v. Billingsley case, supra, this court held, by McCulloch, C. J., that a demurrer to a complaint, “Because the matters and things complained of by the plaintiff herein have been fully adjudicated by the court in another action in this court by and between the same parties, and in the same cause,” that these matters did not constitute a ground for demurrer, “but should have been pleaded by answer as a defense.”
Here, the plea is too indefinite to be a good plea of res judicata. It merely alleges a conclusion of the pleader that the appellees are estopped by the- record from claiming, the land as a homestead. Appellants would be required to allege the facts which they claim constitute the alleged estoppel.
We find no error, and the decree is accordingly affirmed. | [
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Gbieein Smith, Chief Justice.
Elizabeth Dennis executed a will September 30,-1938. She died April 9, 1945, and the will was offered for probate the following day. Because the subscribing witnesses (Sidney McMath and Clyde H. Brown) were in military service and could not be reached immediately, the order of probate was -not made until July 26, 1945. In the meantime (April 1945) letters of administration were issued Dewell Jackson, who executed bond for $10,000 with U.S.F. & G. as surety.
January 24,1946, Mary E. Thomason and Mrs. S. B. Caldwell, filed on behalf of themselves and “all other heirs of Elizabeth Dennis” what they termed a complaint. It was alleged that the so-called testatrix was predeceased by her husband, mother, and father; that she died childless, and that the plaintiffs (her sisters) were entitled, with other relatives, to participate in the estate according to laws of descent and distribution. Specifically it was! asserted that on two occasions subsequent to September 30, 1938, Elizabeth Dennis had executed separate wills, legally revoking the instrument admitted to probate under the Court’s order of July 26, 1945.
Under the will recognized by the Court, Ledgerwood received a farm or plantation consisting of 240 acres in St. Francis County, and was named as residuary legatee. A. T. Davies, one of the attorneys for appellants, was bequeathed sixty shares of “Bethlehem Steel Common.” Katherine Jackson (daughter of Dewell Jackson) .was named devisee in respect of a residence in Hot Springs; and other dispositions were made.
Act 401, approved March 27, 1941, provides that a will probated without notice to the testator’s heirs may be contested within six months, but not thereafter. The statute gives this right to any heir. It requires that a complaint be filed, setting up the grounds upon which legality of the will is to be challenged, “. . . and making defendants to the complaint all heirs and legatees of the deceased testator not joined as plaintiffs, and causing notice to be served upon all defendants for the time and in the manner required by law for service upon defendants in chancery cases.”
Appellees contend that inasmuch as heirs and legatees were not made defendants when Mrs. Thomason and Mrs. Caldwell filed their complaint January 24th, the omission could not be cured by amending more than six months after letters had been issued. Appellants insist that Act 297, approved March 20, 1945, became effective June 7, and that its provisions control. But, they say, even if Act 401 is applicable, they must prevail because of this Court’s decision in Sowell v. Houseman, 207 Ark. 929, 183 S. W. 2d 511. The opinion in that case contained the matter shown in the margin.
It will be observed that there is an express finding by the Supreme Court that in the circumstances of the ease decided no prejudice could have resulted to anyone.
In the case at bar an intervention was filed March 4, 1946, by fifteen persons who declared themselves to be lawful heirs of Elizabeth Dennis, and who approved the action of Mrs. Thomason and Mrs. Caldwell in undertaking to contest the will. On the same day an amendment to the complaint by the original parties alleged that they represented all of the heirs except James Riley Griffith, (brother of the decedent) and that he had declined to join in. the suit. In this amendment seven living brothers and sisters were named, and twelve nieces and nephews — sons and daughters of deceased brothers and sisters ; a total of nineteen.
Including Ledgerwood and Davies, five devisees and legatees were named in the will. Act 401 provides that “heirs and legatees” must be parties to any suit contesting a will.
If Act 297 of 1945 controls, there is a different procedure. But this Act, by its terms, provides (Sec. 26) that “ Sections 1, 2, 3,13, 15, 16,17, and 18 [of Act 297] shall apply only to those estates of decedents on which letters testamentary or of administration are granted subsequent to the effective date of this Act. ’ ’
In the cáse at bar the Clerk issued letters of administration, and he approved a bond that has not been questioned. In Steen v. Springfield, 91 Ark. 73, 120 S. W. 408, it was held that See. 13 of Kirby’s Digest (now Sec. 14 of Pope’s Digest) was designed [solely] “to provide for a temporary administrator to take charge of and preserve [an] estate.until the will can be admitted to probate and. letters testamentary issued to the executor, if qualified.” Continuing, the opinion says: [The statutory provision] “is merely for the protection of the estate, and not to provide for neutrality towards both contestants and beneficiaries under the will.”
Here, of course, the will could not be admitted to probate because the two attesting witnesses were in foreign military service; and in the meantime those in possession of the property could have committed waste and dissipated the personalty; hence the necessity for court control. See Turley v. Evans, 109 Ark. 115, 158 S. W. 1080.
The testimony as to information in possession of the plaintiffs is that Davies, on two occasions, talked with J. R. Griffith, one of Mrs. Dennis’ brothers. Mrs. Caldwell and Mrs. Thomason lived in or near Hot Springs. It is inconceivable that some information regarding kin-ships should not have come into possession of those who instituted the contest; and this is true if it be conceded, as argued, that some of the interested parties were not on good terms. Certainly notice could have been given by publication, “and in the manner required by law for service upon defendants in Chancery Court cases. ’ ’
The character of proof intended to be offered had the contestants prevailed is this: An attorney, since dead, told someone that he had prepared a will or wills subsequent to that executed by Mrs. Dennis in 1930, and that in consequence of these transactions she revoked the former will. While (presumptively) in his last illness the attorney’s deposition was taken.
The Court correctly held that the Act of 1941 was applicable. There was (a) failure to make all heirs, devisees, and legatees parties plaintiff or defendant — a condition precedent to the right of adjudication; (b) that the omission of Griffith as either plaintiff or defendant was with full knowledge of the relationship: brother of Mrs. Chandler and Mrs. Thomason. Substantial compliance with the statute required, at the least, that publication be made as substituted service. .
Affirmed.
“It is conceded that notice of the motion [to amend the complaint in a material manner] was given to appellee, whose interest alone was adverse to appellants. The other heirs could not be prejudiced by failure to join them, and any defect of parties could have been remedied by an order of the Court requiring the heirs not joined in the motion to be made parties and have notice of the proceeding”.
Presumptively by analogy and construction, devisees would' be included in the phrase “legatees”. | [
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Ed. P. MoPaddin, Justice.
The question for decision is, whether there 'was such a dedication of a street as to irrevocably bind the grantor against a subsequent claim of individual ownership.
In the early part of 1946, the appellee, Mrs. Alice G. Emerson, being the owner of certain acreage, platted the same into lots and blocks, and sold some of the lots to various parties, among whom were the appellants. When Mrs. Emerson made the sale to the appellants, she gave them a plat which showed the streets, alleys, lots and blocks, as follows:
The warranty deed from Mrs. Emerson to appellants (J. L. and Hassie E. Butler), dated April 30,1946, recited a cash consideration of $2,000, and described the property as follows:
“A tract of land being 265 feet north and south on Johnson Street, and 140 feet east and west, between West 26th and West 27th streets, described as follows: Beginning at a point on the southwest corner of West 26th Street and Johnson Street, . . . thence south along the west side of Johnson Street, 265 feet to the northwest corner of "West 27th and Johnson streets; thence west along the north side of West 27th Street, 140 feet to a point on the east side of the alley, thence north along the east side of the alley 265 feet to the south side of West 26th Street; thence east 140 feet along the south side of West 26th Street to the point of beginning, in Pulaski county, Arkansas. ’ ’
It will be observed, by reference to the plat, that the property conveyed to appellants consisted of 5 lots bounded on the north by West 26th.Street, on the east by Johnson Street’, on the south by West 27th Street, and on the west by an alley. We will refer to this conveyed property as “the Butler lots.” At the time of the said conveyance, Johnson Street was open and in use. The alley west of the Butler lots was subsequently opened and placed in use; but so much of West 27th Street as lay south of the Butler lots was not then, and has never subsequently been, graded or used by the public.
On May 10, 1946, the City Planning Commission of Little Rock advised Mrs. Emerson that the City of Little Rock did not then desire to have West 27th Street opened from Johnson Street west to Allis Street, and also did not then desire to have opened the alley immediately west of the Butler lots. The Planning Commission also designated a “turn-around” on West 27th Street at the end of Allis Street, and designated as a “playground” all that part of West 27th Street immediately south of the Butler lots. Acting on these decisions from the Little Rock City Planning Commission, Mrs. Emerson claimed the alley and “playground” as her own; and she was negotiating a sale thereof to a third person, when, on June 17, 1946, appellants filed -the complaint herein, in which they sought (1) to enjoin Mrs. Emerson from selling any of the property shown on the plat as West 27th Street, and also (2) to enjoin her from closing and claiming the alley west of the Butler lots. The prayer of the complaint was:
“That the court enter an order declaring the street and alley above described as public property and enjoin ing the defendant from transferring the title thereto or attempting in any wise to claim private ownership to said street and alley or in any wise closing or molesting same;
The defendant, by answer, said:
“ . . . that she previously had had this and other property surveyed into lots, and purposed to dedicate a certain part of said property to the public for streets and alleys. At the time of the sale of the property to the plaintiffs, the defendant stated to the plaintiffs that she intended to dedicate the fifty (50) feet immediately south of the property purchased by the plaintiffs from the defendant, to the public for use as a street, but that such property has never been used as a street, way or otherwise by the public.
“The defendant attempted to make this dedication according to the statutes of the State of Arkansas, but the City Planning Commission of the City of Little Rock refused to accept the dedication as shown upon the plat filed with the City Planning Commission.”
At the trial it was agreed that Mrs. Emerson had given the appellants a plat similar to the one shown here, and had, in fact, intended to file a formal deed of dedication covering West 27th Street and the alley, but had . never opened the said street. Mrs. Emerson claimed that she had the right to revoke her attempted and intended dedication of the street, since West 27th Street hacL not in fact been opened, and the city did not want to accept so much of said street and alley as lay adjacent to plaintiff’s property.' The chancery court enjoined Mrs. Emerson from blocking or closing or claiming the alley, but denied the plaintiffs any relief as to the property described as West 27th Street, saying:
“ It is further adjudged and decreed that there is no street immediately south of the property purchased by the plaintiffs from the defendant and that the title to the land south of such property is vested in the defendant in fee and the plaintiffs have no interest therein. ’ ’
From that decree the plaintiffs (Butlers) have appealed. The defendant, Mrs. Emerson, has not appealed from the decree regarding the alley, so we consider only the appellants’ prayed relief as to West 27th Street. There are two questions: (1) was there a dedication; and, if so, (2) was such dedication irrevocable,? There are many cases of this court that deal with various phases of dedication. Some of these cases are: Moore v. Little Rock, 42 Ark. 66; Holly Grove v. Smith, 63 Ark. 5, 37 S. W. 956; Hope v. Shiver, 77 Ark. 177, 90 S. W. 1003; Davies v. Epstein, 77 Ark. 221, 92 S. W. 19; Dickinson v. Ark. City Imp. Co., 77 Ark. 570, 92 S. W. 21, 113 Am. St. Rep. 170; Brewer v. Pine Bluff, 80 Ark. 489, 97 S. W. 1034; Stuttgart v. John, 85 Ark. 520, 109 S. W. 541; Paragould v. Lawson, 88 Ark. 478, 115 S. W. 379; Frauenthal v. Slaten, 91 Ark. 351, 121 S. W. 395; Matthews v. Bloodworth, 111 Ark. 545, 165 S. W. 263; Balmat v. Argenta, 123 Ark. 175, 184 S. W. 445; Mebane v. City of Wynne, 127 Ark. 364, 192 S. W. 221; Porter v. Stuttgart, 135 Ark. 48, 204 S. W. 607; Holthoff v. Joyce, 174 Ark. 248, 294 S. W. 1006; McGee v. Swearengen, 194 Ark. 735, 109 S. W. 2d 444; Jennings v. Russell, 209 Ark. 71, 189 S. W. 2d 656; Gowers v. Van Buren, 210 Ark. 776, 197 S. W. 2d 741. We list these as “background cases” to the particular questions here under consideration; and now, in proceeding with the questions, we will refer to the parties as they were styled in the trial court — i. e., plaintiffs and defendant.
I. Was There a Dedication¶ The defendant did not record the plat, but she furnished a copy to the plaintiffs when she delivered to them their deed and received their money; and furnishing a copy of the plat, under the facts herein, was just as effective, between the parties, as recordation would have been. The deed made reference to West 27th Street as being south of the property conveyed to the plaintiffs. These acts by the defendant constituted a dedication. In Moore v. Little Rock, supra, Mr. Justice W. W. Smith said: “No doubt, causing the land to be laid off as an addition and subdividing it into lots and blocks, was a dedication of the intervening streets and alleys, so far as McDonald or any title derived from him, is concerned.”
In Hope v. Shiver, supra, Mr. Justice Riduick said: “ . . . for it is well established that when the owner of land makes a plat thereof, or adopts one made by someone else, and sells lots by reference to the maps, this amounts to a dedication of the streets and public ways shown on the map. 9 Am. & Eng. Enc. Law, 57, 59, and cases cited.”
In Mebane v. City of Wynne, supra, Chief Justice McCulloch said: “This court has steadily adhered to the rule that ‘ an owner of laxxd by laying out a town upon it, platting it into lots and blocks intersected by streets and alleys, and selling lots by reference to the plat, is held to have dedicated to the public use the streets and alleys and other public places marked on the plat and such dedication is irrevocable.’ City of Hope v. Shiver, 77 Ark. 177, 90 S. W. 2d 1003; Davies v. Epstein, 77 Ark. 221, 92 S. W. 19; Dickinson v. Arkansas City Improvement Co., 77 Ark. 570, 92 S. W. 21, 113 Am. St. Rep. 170; Brewer v. Pine Bluff, 80 Ark. 489, 97 S. W. 1034; Stuttgart v. John, 85 Ark. 520, 109 S. W. 541; Paragould v. Lawson, 88 Ark. 478, 115 S. W. 379; Balmat v. City of Argenta, 123 Ark. 175, 184 S. W. 445.”
Defendant says that reference to a street as boundary of property does not constitute a dedication of the street, and cites- — to support that contention — these cases: Fordyce v. Hampton, 179 Ark. 705, 17 S. W. 2d 869; McGee v. Swearengen, 194 Ark. 735, 109 S. W. 2d 444; Plumer v. Johnston, 63 Mich. 165, 29 N. W. 687; Talbert v. Mason, 136 Ia. 373, 113 N. W. 918, 14 L. R. A., N. S. 878, 125 Am. St. Rep. 259; Lankin v. Terwilliger, 22 Ore. 97, 29 Pac. 268; King v. Trustees, 102 N. Y. 172, 6 N. E. 395; and 11 C. J. S. 584. But in the case at bar, not only did the deed from the defendant to the plaintiffs refer to West 27th Street, but the defendant also gave to the plaintiffs the plat that showed West 27th Street, and on the strength of the plat the plaintiffs purchased the lots. These facts clearly constituted a dedication by estoppel; and we hold that the defendant, Mrs. Emerson, is estopped to deny that there was a dedication of West 27th Street.
II. Was'the Dedication Irrevocable? In Brewer v. Pine Bluff, supra, Mr. Justice Riddick said: “The making and recording of the plat by Morris showing his land divided into streets and alleys and the subsequent sale of a number of these lots was a dedication of the streets shown on the plat which he could not revoke. The sale and conveyance of a part of the street to Carroll did not revoke the dedication of this land as a public street because, as we have said, the dedication had then become irrevocable by a previous sale and conveyance of lots to other parties. 13 Cyc. 455, 463; 9 Am. & Eng. Ency. of Law (2 Ed.), 57.”
In Stuttgart v. John, supra, Mr. Justice McCulloch said: “It is well settled by the decisions of this court that where owners of land lay out a town or an addition to a . city or town . . . , platting it into blocks and lots, intersected by streets and alleys, and sell lots by reference to the plat, they thereby dedicate the streets and alleys to the public use, and that such dedication is irrevocable. Brewer v. Pine Bluff, 80 Ark. 489, 97 S. W. 1034; Davies v. Epstein, 77 Ark. 221, 92 S. W. 19; Hope v. Shiver, 77 Ark. 177, 90 S. W. 1003; Dickinson v. Arkansas Improvement Assn., 77 Ark. 570, 92 S. W. 21, 113 Am. St. Rep. 170.”
In Frauenthal v. Slaten, supra, Chief Justice McCulloch said: “The law bearing on the question of dedication of property to the public use is well settled by the decisions of this court. An owner of land, by laying out a town upon it, platting it into blocks and lots, intersected by streets and alleys, and selling lots by reference to the plat, dedicates the streets and alleys to the public use, and such dedication is irrevocable. He will also be held to have thereby dedicated to the public use squares, parks and other public places marked as such on the plat. The dedication becomes irrevocable the moment that these acts concur. Hope v. Shiver, 77 Ark. 177, 90 S. W. 1003; Davies v. Epstein, Id. 221, 92 S. W. 19; Dickinson v. Ark. City Imp. Co., Id. 570, 92 S. W. 21, 113 Am. St. Rep. 170; Brewer v. Pine Bluff, 80 Ark. 489, 97 S. W. 1034; Stuttgart v. John, 85 Ark. 520, 109 S. W. 541.”
Applying tlie rule of these cases to the case at bar, it is clear that the dedication of West 27th Street was irrevocable. See, also, note in Ann. Cas. 1917A, 1190 on “Revocability of land to public use.”
Mrs. Emerson called certain witnesses who testified that, after the City Planning Commission declined to open West 27th Street, these witnesses discussed the matter with plaintiff, Mr. Butler, and he remarked that he did not care whether the street was opened. On this testimony Mrs. Emerson sought to predicate her claim to her own private ownership of the street. But, even giving the remarks of Mr. Butler their most cogent force and effect, they only establish that it was immaterial to him whether the property south of his lots be opened as a street, or be held for public use; and the latter is the relief that he is seeking in this case. If the dedication failed, then Mrs. Emerson would not own all of West 27th Street. Matthews v. Bloodworth, supra, is in point in this regard. See, also, annotation in 18 A. L. R. 1008 on “Reversion of title upon abandonment or vacation of public street or highway.” The plaintiffs are not seeking to claim and occupy the half of West 27th Street that is immediately adjacent to their property. They are merely seeking to prevent the public from losing all of West 27th Street. We hold that they are entitled to an injunction preventing the defendant from claiming to own individually West 27th Street as shown on the plat. The defendant testified that she “left the fifty feet there as public property in case it was not opened as a street.” We hold that such is the correct disposition of West 27th Street here in dispute. The city may not want to grade and open it now, but it remains public property to be opened as a street when desired by the city.
Therefore, the decree of the chancery court is reversed, and the cause is remanded with directions to enter a decree consistent with this opinion. | [
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Smith, J.
W. C. Dudney filed a complaint containing the following allegations. Plaintiff is engaged in selling and distributing gasoline and oil products in the Texarkana, Arkansas, territory. The Magnolia Petroleum Company, a defendant, referred to throughout the record and in the briefs as Magnolia, which designation we adopt, is engaged in manufacturing, selling and distributing gasoline and oil products in the Texarkana and other areas. The city of Texarkana was the other defendant. The court at one time dismissed the case as to the city, but by appropriate pleadings and with the consent of the court, the city was again made a party defendant. Before submission one Howard E. Webb became a party on his own intervention, and he became a central figure in the lawsuit.
It was alleged and admitted that on August 25,1936, the city which owned an airport known as the Texarkana Municipal Airport entered into a written lease contract with Howard E. Webb, leasing its buildings, hangar and equipment to Webb for a period of twenty years. This contract gave Webb the exclusive right to sell gasoline and motor oils at the airport. On May 26, 1938, Webb, with the consent of the city, assigned this contract to plaintiff Dudney. This assignment was executed as security for a debt due Dudney by Webb. This assignment contains the recital “that in further consideration of the financial assistance rendered to me by the said W. O. Dudney, he shall have the exclusive right to market and furnish to me gasoline, and 'other oil and gasoline products necessary for the operation of the Texarkana Municipal Airport for and during the period and life of said original lease contract, provided further that, such gasoline and other materials' or products shall be on a competitive basis.”
To obtain a loan, which the city desired, it was necessary to cancel this lease and this was done with the consent of all parties concerned, and a second lease was given to Webb by the city similar to the first, but which required Webb to pay the city a certain per cent, of the proceeds of tlie sale of all gasoline and oil sold at the airport.
This second lease was likewise assigned by Webb to Dudney by way of security for a debt due Dudney by Webb, and like the first assignment gave to Dudney “the exclusive right to market and furnish to me gasoline and other oil and gas products necessary for the operation of the Texarkana Municipal Airport, and necessary for the •carrying out of my lease for and during the period and life of said original lease,” with the same provision as to a competitive price basis.
Dudney owned no oil or gasoline and had no equipment for its distribution. He was the agent of the Gulf Eefining Company, and as such negotiated sale contracts between Webb and the Gulf Company, whereby the Gulf Company undertook to furnish Webb oil and gasoline as required. Webb enlisted in the Army and during his absence his wife operated the airport under a power of attorney; which he gave her. She testified that the Gulf Company did not furnish the gasoline and oil as required and that she entered into a contract with Magnolia to do so, and this suit was brought to enjoin that operation, and from the decree awarding that relief is this appeal.
A great many interesting questions are discussed in the excellent briefs of opposing counsel, but we do not find it necessary to discuss all of them.
The suit while ostensibly one to enjoin the breach of a contract and to prevent interference with what Dudney calls his franchise, it is nevertheless in effect a suit for specific performance of a contract. This is true because if Webb cannot buy from Magnolia, he cannot buy from any other company, and must of necessity buy from Dudney as the agent of the Gulf Company if the airport is operated.
In the first place Dudney had no franchise from the city giving him exclusive right to sell oil and gasoline at the airport. Even if the city had the right to grant such a franchise it was not granted to Dudney. He had no contract whatever with the city, but insists that Webb had a contract which was assigned to him by Webb, with the consent of the city, and that he thus acquired all the rights which Webb possessed.
Now the lease from the city to Webb “does hereby grant to the lessee the exclusive right to sell on said leased premises merchandise, including gasoline and oil, to furnish food, refreshments and lodging. . . . ” It is upon the recital contained in the assignment of the lease that Dudney predicates his right to the relief prayed for and granted to him, .but the record does not show that the consent of the city was given to these recitals. In fact, the contrary is shown. The record of the meeting of the city council shows that the city consented only to the: assignment of the lease as security for a debt due Dudney and there is nothing in the record to indicate that the city was aware of or had consented to the recitals contained in the assignment of the lease giving Dudney the exclusive right to furnish oil and gasoline to Webb.
The case of City of Paragould v. Arkansas Utilities Co., reported in 70 Fed. 2d 530, originated in this state and'was decided by the Circuit Court of Appeals, Eighth Circuit. It was there held that only that which is granted in clear and explicit terms passes by a grant of property, franchises, or privileges in which government or public has an interest, and the record here does not support the finding that the city did anything more than consent to the assignment of the lease given as security for a debt which had been paid before the suit was filed. Petition for certiorari in the Paragould case was denied by the Supreme Court of the United States, 293 U. S. 586, 55 S. Ct. 101, 79 L. Ed. 682.
Mrs. Webb testified that she found it necessary to make a contract with Magnolia to secure the oil and gasoline required and we think the testimony shows that she was justified in doing so. She testified there were frequent delays in delivering the oil and gasoline required, varying from one to six hours, and that these delays in servicing the planes using the airport would be reported, that the airport serviced an average of fifty planes a day for the Ferry Command; that this delay caused a loss of this business except in emergency cases, and that those delays continued during all the time she operated the air port, and she felt constrained to make the contract with Magnolia, the performance of which is enjoined by the decree from which is this appeal. She testified also that she had been charged in excess of the competitive prices for gasoline, hut that this excess was refunded after making the contract with Magnolia.
If the agreement recited in the assignment constituted a contract, the specific performance of which would ordinarily he enforced, which we do not decide, the breach thereof by Dudney would defeat his right to ask its specific performance. Moreover, the contract lacks the mutuality which the law requires to justify a decree for specific performance. The recitals of the assignment obligate Webb to buy from Dudney, hut do not require Dudney to sell. He had no oil or gasoline of his own for sale, and could only have furnished the oil and gasoline through the company for which he was an agent, and which was not a party to this suit. The assignment gave Dudney the right or option to furnish oil and gasoline hut did not require him to do so. We held in the case of Duclos v. Turner, 204 Ark. 1000, 166 S. W. 2d 251, that a contract which leaves it entirely optional with one of the parties as to whether he will perform is not binding upon the other.
It is conceded that the debt due from Webb to Dudney which a chattel mortgage and the assignment of the lease were given to secure was paid in full before the institution of this suit, and there appears to have been no other valid consideration for the recital contained in the assignment. This and other reasons are argued for the reversal of the decree, hut without passing upon them, we think the decree must he reversed for the reasons herein stated, and it is so ordered.
The decree is, therefore, reversed and the cause is dismissed.
Mr. Justice McFaddin concurs. | [
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Holt, J.
Appellants compose tbe Board of Plumbing Examiners in the city of Jonesboro. Appellee, James A. Smith, was an applicant for “Certificate of Competency” to engage in the plumbing business in that city. The Arkansas General Assembly, in 1941, passed Act 321, to regulate the practice of plumbing in cities of the first and second class. Section 1 provided: ‘ ‘ That § 9739 of Pope’s Digest be amended as follows: ‘Any persons now or hereafter engaged in or working at the business of plumbing in a city of the first or second class within the State of Arkansas having a system of sanitary sewerage, either as master plumber or journeyman plumber, or any person installing or placing any plumbing fixtures or materials, shall first receive a certificate of competency in accordance with the provisions of this Act, ’ ’ ’ and § 4 is as follows:
“That § 9743 of Pope’s Digest be amended to read as follows: Persons who have been engaged in. the active practice and business of plumbing as a master plumber or journeyman plumber continuously for a period of ten years next before making application for plumbers’ license to practice or follow the business of plumbing in his respective city shall not be required to stand an examination of his qualifications, provided that he make affidavit of his actual continuous practice as master plumber or journeyman plumber, as the case may be, for the time provided by this Act and that said affidavit shall be attested by two supporting witnesses of the truth of same, the said Plumbers Board shall issue a certificate of competency to said applicant granting him the right and privilege to practice and follow the business of plumbing in said city, provided all persons, either master plumbers or journeyman plumbers not having had-said ten years continuous practice and experience as a plumber, as herein provided by this Act shall be required to stand an examination given by the said Board testing applicant as to Ms practical knowledge of plumbing, and house drainage. Such examination must not be conducted in an arbitrary manner but given in such a manner only as to test the applicant’s practical ability to perform the duties of a plumber, and after being satisfied as to each applicant’s ability, shall thereupon issue a certificate of competency to such applicant authorizing him to work in the business of plumbing, and to place and install plumbing fixtures and materials. It shall be unlawful for any plumber to work in this capacity either as master plumber or journeyman plumber, and install plumbing-fixtures or materials unless he shall first obtain a certificate of competency as provided by this Act. The Board shall keep and preserve a record of all plumbers examined by them and to whom a certificate has been issued.”
In conformity with this act, the city council of Jonesboro enacted Ordinance No. 704, which, in effect, contains the same provisions as Act 321, supra.
, July 11, 1946, appellee filed with the examining-board an affidavit, attested by two witnesses, in which he sought a certificate of competency as provided by the act and ordinance. His affidavit recited that: “James A. Smith, being sworn, states upon oath, that for more than ten years prior to this day he has been engaged in the active business of plumbing- as a Master Plumber continuously ill the State of Arkansas, and, as such, is entitled to a Certificate of Competency as provided by Act 321 of the General Assembly of the State of Arkansas for the year 1941 and pursuant to the ordinances of the City of Jonesboro, Arkansas, he submits this affidavit to the City Clerk pursuant to said Act and the ordinances of the City of Jonesboro, and tenders herewith a fee of $5 provided for by said Act and said ordinance. This Jnly 1st, 1946. (Signed) James A. Smith.”
The board refused to grant a certificate of competency on the affidavit, but offered to give appellee an examination in accordance with the provisions of the Act and ordinance. Appellee refused to take the examination, whereupon he was denied a certificate of competency.
Following this action of the board, appellee brought appropriate mandamus proceedings against the board to compel it to issue to him a “Certificate of Competency,” in accordance with the provisions of the Act and ordinance.
Upon a hearing, the trial court sustained appellee’s prayer and ordered the issuance of a certificate of competency to appellee.
From that order comes this appeal.
Appellant says that there are but two points in issue: “First, upon filing the affidavit, even though it were not true, was appellee entitled to Certificate of Competency as a matter of right? Second, has the Board acted in an arbitrary manner, even though appellee refused to accept examination offered?”
Appellee argues that it was the duty of the Board of Plumbing Examiners to issue to appellee, Smith, the certificate of competency upon his filing the attested affidavit, supra, and that the board was without discretion in the matter. He further contended: “The plumbing board acted in the most arbitrary manner, thoroughly contrary to the provisions of the plumbing act, when it informed Smith, at the time he appeared to take his examination, that the sole test of his ability to pass the examination as a plumber would be based upon his ability to wipe a lead joint in a smooth and efficient manner.”
The constitutionality and legality of the Act and ordinance, supra, are not in question here.
The purpose of such legislation is discussed under the title, “Plumbers, Electriciáns, and other Artisans,” in 41 Am. Jur., p. 661, and in § 7, pages 667 and 668, we find this language: “While there are some authorities to the contrary, it is now generally recognized to be a legitimate exercise of the police power in the interest of the public health, safety, and welfare for the state or a municipal subdivision acting under delegated powers from the state to require registration, examination, and licensing, of those who install plumbing or who do electrical installation for others.
“Although the business and trade of a plumber may not require the same training and experience as some other pursuits in life, yet a certain degree of training is absolutely necessary to qualify one as a competent and skillful workman, and it is within the legislative police power to require examination or licensing, or both, of those engaging in the plumbing business as master plumbers, employers of plumbers, or journeymen plumbers, for the protection of the public from the incapacity or ignorance of such persons. Important plumbing work calls for plans and designs and requires skilled'supervision, and it is some guaranty of the fulfillment of these requirements if the public authorities require that the plumber employed upon the particular work and his assistants in carrying out the work engaged upon be competently certified and therefore held out to be skilled and capable in that business. Prohibiting any but registered plumbers who have received a certificate of competency from a state board to engage in the business of plumbing does not violate any constitutional rights of individuals. . . . When the legislature provides a local examining board to pass upon the qualifications and fitness of persons to engage in the plumbing business, and provides the board with personnel capable of exercising intelligently the duties imposed, and outlines in a general way the scope of the examination, fixing penalties for those who undertake to engage in business without complying with the act, no objection can be taken on the ground that there is an unlawful delegation of legislative power. . . . If the board acts unfairly or oppressively, such conduct may call for a remedy ¿gainst the persons who compose the board, but it does not furnish ground for assailing the validity of the statute. . . .
“The purpose of such legislation is to protect the public from incapacity, ignorance, want of skill, or fraud in those who, to engage in the actual work of plumbing with safety to the health of the people, must have skill and technical knowledge not possessed by the public generally, and if'those who — because they are plumbers at the time the law is enacted, or have been engaging in the business for several years — are incompetent to be safely trusted to do plumbing are exempted from the operations of the law, the purpose of the law will not be attained. There is no vested right in anyone to follow an occupation in a way which is inimical to the health of the people, when the legislative authority exercises its right to regulate the occupation. A license to a plumber does not create a vested right to continue to carry on that vocation if there is reasonable ground for requiring new proof of competency by re-examination.”
On the question of the examination of plumbers as to their fitness and qualifications to ply their trade, the Supreme Court of Montana, in the case of State v. Stark, 42 Pac. 2d 890, 100 Mont. 365, said: “Some states have more explicit rules and regulations to govern the examination than Montana, but the function of carrying out such rules and regulations is invariably delegated to local authority and usually to the examining board. In Arkansas, Connecticut, Indiana, Iowa, Maine, and a number of other states, municipal authorities are vested with practically absolute authority to determine qualifications and fitness.”
With these general principles in mind, we think the board was justified in refusing to issue to appellee a certificate of competency on the affidavit which, he offered.
As we view it, by its very terms, or on its face, it did not comply with the requirements of the Act and ordinance. Each contains the specific provision that before annellee would be entitled to the certificate, with out first taking an examination, lie must present an affidavit, attested by two witnesses, to tbe effect that he has “been engaged in the active practice and business of plumbing as a master plumber or journeyman plumber continuously for a period of ten years next before making application, etc.”
Here, the application which appellee presented recites “that for more than ten years prior to this day he has been engaged in the active practice of plumbing, etc.” He does-not state that he had been so engaged for ten years next before making the application, in fact, it is undisputed that he had not been so engaged. • It is also undisputed that he followed the plumbing trade at various places in Arkansas and other states from 1921 until 1932 or 1933. From 1933 until 1941, quoting from appellee’s .brief, “Smith spent most of his time as a keeper of a hunting lodge in the bottoms of Craighead county,” and “from 1941, after the war boom came on and there began to be a great demand for plumbers, Smith began to work regularly at the plumbing trade at Fort Worth, Kansas City, Camp Chaffee, Waco, California Air Base, Goodyear Plant in Texas, Oak Ridge, Tennessee. He came back to Jonesboro in October, 1945, and went to work as a plumber.”
“Q. Then, until you came home in October of 1945, you have never done any plumbing work in Jonesboro? A. No, not until I went to work for Reese and Micklish. Q. That was in the spring of 1946? A. Yes, sir. Q. Then you have not been engaged in the business of plumbing in the city of Jonesboro from the time you left up until this spring? A. No, sure haven’t. Q. In the last ten years have you worked any at all in the state of Arkansas? A. Not much.”
We think, therefore, that, as indicated, that the board was justified in refusing to grant the certificate of competency on the affidavit.
Did the board abuse the power conferred and act in an unreasonable, unfair and arbitrary manner in the examination of appellee ? The Act and ordinance required that the board should offer appellee an examination “testing applicant as to 'his practical knowledge of plumbing, and house drainage. Such examination must not be conducted in an arbitrary manner but given in such a manner only as to test the applicant’s practical ability to perform the duties of a plumber, etc.”
It appears that appellee offered himself for examination; that the first question asked was whether he knew how “to wipe a lead joint,” and, quoting from appellee’s testimony, “they just wanted me to wipe a lead joint and I told them I hadn’t done that since 1929. I told them I was out of practice and they said, well, that would be all.
“Q. And the board of examiners did offer to give you an examination, did they not? A. They offered to give me a lead-wiping examination. Q. Did they not offer to give you an examination? A. Like I told you, they offered to give me an examination, but they wanted me to wipe a lead joint the first thing and I told them I wasn’t in practice; that I would have to practice up a little. Q. You admit that you are not capable of wiping a lead joint, do you not? A. Lead is about a thing of the past. Q. Just answer my question, sir? A. I told them I wasn’t in practice. Q. And you refused to attempt to complete the test? A. I refused to wipe a lead joint. Q. Then you refused to be examined? A. I refused on the lead joint. Q. You did refuse to do that? A. I refused to do the lead work. Q. Are you aware of. the fact that the ordinance regarding the installation of sewage systems specifically requires that certain joints be wiped? A. No, I didn’t know that.”-
Ordinance 574 of the city of Jonesboro, “An Ordinance to regulate the Business of Plumbing in the Oity of Jonesboro,” requires in four separate sections, 9, 14, 24 and 29, the “wiping of lead joints.”
Appellee testified that wiping lead joints was now obsolete.
We think, however, that the great preponderance of the testimony was just to the contrary. It appears from appellee’s own admissions that with a little practice, he could again wipe lead joints as he had been able to do and had done in the past, but he refused to go on with the examination because he was required to demonstrate to the satisfaction of the board that he could wipe a lead joint.
On the facts presented, we think that under the broad powers given to the board, appellee was offered that character of an examination which would fairly test' his practical knowledge of “plumbing and house drainage.”
We find no unreasonable and arbitrary action on the part of the board in connection with the offered examination in question. Having offered appellee an examination in accordance with the provisions of the Act and ordinance, as we construe them, and appellee having in effect refused to take, the examination, we think the board properly refused to issue to appellee a certificate of competency.
We conclude, therefore, that the trial court erred in ordering the issuance of a writ of mandamus directing appellants “as the Board of Examiners of Plumbers” to issue to appellee a “Certificate of Competency,” and accordingly the judgment is reversed, and the cause remanded with directions to proceed in a manner consistent with this opinion. ' | [
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Smith, J.
Appellees filed a petition, designated as a complaint, on July 30, 1943, in which they prayed confirmation of their title to a certain eighty-acre tract of land in St. Francis county. They alleged that W. J. Lanier had acquired title to the land under a sale to him for delinquent taxes to the St. Francis Levee District, and that Lanier had conveyed this title to them. They alleged also that they had acquired a title once owned by Edward Starks through deed from the heirs at law of Starks, now deceased, and that one Evans Starks, an heir at law of Edward Starks, who did not join in the deed to them, removed to the state of California about thirty years ago, and that his present whereabouts is unknown. It was alleged also that the land was sold for the nonpayment of the 1920 general taxes to one Charles Lewis, but tha-t neither Lewis nor his heirs had ever had possession of the land, and that the heirs of Lewis were unknown. It was alleged also that the land was sold to the St. Francis County Road Improvement District No. 1, for the non-payment of the 1921 taxes due the road district, but that the district had never had possession of the land, and that any claim of the district or its assigns was barred by the title and possession of petitioners, it being alleged that they had been in possession of the land continuously for eleven years.
It was prayed that the interests, if any, of all the persons named and of all other persons, be canceled and removed as clouds upon their title, and that their title be quieted and confirmed.
Notice of the filing of this petition was published for six weeks in the time and manner required by § 3 of Act LXXIX of the Acts of 1899, entitled, “An Act to Provide for the Confirmation of Title to Real Estate, ’ ’ which appears as § 10962, et seq., Pope’s Digest,’in the chapter entitled “Quieting Title.”
In due course petitioners’ title was quieted as prayed and within less than three years from the date of the decree, which had been rendered in compliance with this Act LXXIX, aforesaid, appellant, Ida Starks Abbott, filed a motion to vacate and set it aside, and she prayed that she be permitted to file an answer to the confirmation petition.
A response to this motion was filed objecting to the jurisdiction of the court to hear it for tiro following reasons: (1) The decree was not subject to the attack except upon the grounds and in the manner provided by §§ 8246, 8248, 8249, Pope’s Digest, or by a bill of review, and no facts were alleged to warrant relief in either manner. (2) That the petitioner, Ida Starks Abbott, was constructively served by publication as an unknown heir of her grandfather, Edward Starks, deceased, and her motion had not been filed within the two years limited by law. (3) That the confirmation decree confirmed a tax title and operated as a complete bar under § 10987, Pope’s Digest, and that petitioner does not have the right to vacate the confirmation decree.
The motion to dismiss was sustained, and in the decree so ordering it was recited that the court “has lost control of the parties and the subject-matter . . . ,” and from that decree is this appeal.
No testimony was heard although the pleadings and decree in the confirmation proceeding were-1 exhibited, but appellant’s motion to vacate the confirmation decree after reciting the manner of its rendition alleges: “That she has a good and meritorious defense to the complaint herein in that she is a granddaughter of Edward Starks, deceased, and is the owner of an undivided interest in the lands described in said complaint, which interest she inherited from her father, Amos Starks, deceased, who was the owner and in possession of, said lands at the time of his death; that she is one (1) of the grantors in a certain trust deed or mortgage, executed to the plaintiffs, which trust deed or mortgage is now recorded in Book 116 at page 383 of the records of St. Francis county, Arkansas ; that the interest of said lands owned by her at the time of the execution of said trust deed or mortgage has never been conveyed to the plaintiffs herein, and that said trust deed or mortgage has never been foreclosed. ’ ’
Before considering the issue upon which the case was disposed of in the court below, we consider a preliminary matter not presented below, which is that Mrs. Abbott did not allege a meritorious defense against the confirmation decree.
It must be said that the allegations upon this issue are not as definite and specific as they should have been, but it will be remembered that the motion to dismiss did not raise the issue that a meritorious defense had not been alleged. Had this question been raised, the allegations would no doubt have been more specific. But it was alleged that the decree had been rendered upon constructive service, and that petitioner owned an interest in the land which she had inherited and that she had given original petitioners a mortgage .on this interest, and that-those petitioners as*mortgagees had entered into possession without foreclosing the mortgage. If this allegation is true, title by adverse possession had not been acquired. It was held in the case of Swift v. Ivery, 147 Ark. 141, 227 S. W. 600, that a mortgagee in possession, while occupying that position could acquire no title adverse to the mortgagor, and that holding was reaffirmed in the case of Norris v. Scroggins, 175 Ark. 50, 297 S. W. 1022.
This is not a petition for a bill of review, and relief is not prayed under provisions of §§ 8246, 8248 and 8249 of Pope’s Digest. The controlling question is the applicability of § 10966, Pope’s Digest, which reads as follows: “Any person may appear within three years and set aside the decree if he shall offer to file a meritorious defense, and every person laboring under the disability of infancy, lunacy, idiocy, married woman under the disability of coverture and those claiming under them may set aside the decree at any time within three years after the removal of such disability.”
Appellees say that their petition'for confirmation was a proceeding for the confirmation of a tax title and the quieting of title generally in the petitioners, but upon the authority of Lawyer v. Carpenter, 80 Ark. 411, 97 S. W. 662, we hold that § 10966, Pope’s Digest, is the applicable statute which controls here. We think it apparent that the confirmation decree was rendered under the authority of Act LXXIX of 1899, § 7 of which appears as § 10966, Pope’s Digest, and this Act and not the general statute must be applied.
It was held in the case just cited that a general law does not apply where there is a specific statute covering a particular subject-matter, irrespective of the date of their passage, and the effect of the confirmation decree must be construed with reference to the act under which it was rendered. The following cases are to the same effect: Dunn v. Ouachita Valley Bank, 71 Ark. 135, 71 S. W. 265; Mills v. Sanderson, 68 Ark. 130, 56 S. W. 779; Ex-parte Morrison, 69 Ark. 517, 64 S. W. 270; Chamberlain v. State, 50 Ark. 132, 6 S. W. 524; Saline County v. Kinkead, 84 Ark. 329, 105 S. W. 581.
It was held in the case of Dalton v. Lybarger, 152 Ark. 192, 237 S. W. 694, to quote a headnote, that, “As a decree confirming a tax title does not become impervious against attack until three years have expired, under Crawford & Moses’ Digest, § 8370 (now appearing as § 10966, Pope’s Digest), until that period has expired, such a decree does not have the effect of perfecting a record title.”
In the case of Champion v. Williams, 165 Ark. 328, 264 S. W. 972, a confirmation decree rendered under the authority of § 8362, et seq., C. & M. Digest, now appearing as § 10958, el seq., Pope’s Digest, taken from Act LXXIX of 1899, was attacked upon the ground that the bond had not been given required by § 6261, C. & M. Digest (8217, Pope’s Digest), which prescribes the requirements for rendering judgment against a defendant constructively summoned, one of these being the execution of a bond. In holding that the bond was not required in the confirmation proceeding, Chief Justice McCulloch said: “Again it is contended that the decree (of confirmation) is void because no bond was given pursuant to the statute, which requires bond in case of judgment against nonresident defendants. Crawford & Moses’ Digest, § 6261. The statute just referred to does not apply to confirmation decrees, and no bond was required. The statute prescribing the procedure for confirmation of title (Crawford & Moses’ Digest, § 8370) provides that any person interested in the land which is the subject-matter of a decree of confirmation may appear within three years and set aside the decree upon showing a meritorious defense, and that persons under disability of infancy, lunacy, idiocy or coverture may appear and set aside the decree at any time within three years after the removal of such disability. The lawmakers, in framing the statute, manifestly determined that this section gave all the protection that interested parties were entitled to; at least there is no provision in this statute for the giving of a bond, and we cannot read any such provision into the statute by applying the provisions of the general statute with reference to adversary litigation against nonresidents.”
We conclude, therefore, that it was error to have dismissed appellant’s motion to vacate the confirmation decree, and the decree from which is this appeal will be reversed, and the cause will be remanded for further proceedings as provided by law. | [
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McHaney, Justice.
In George v. Serrett, Adm., 207 Ark. 568, 182 S. W. 2d 198, we held that the appellants, who had received a distributive share, of the estate of B. P. George and had executed a receipt or release in full to the administrator, were barred from maintaining an action, in the chancery court, probate court, or any other court, seeking to compel the administrator to account, in the absence of fraud by the administrator in the procurement of such release. We there said: “Five years, lacking only a few days, intervened between the date appellants executed the receipt and release and the date of the institution of this suit. In the meantime, to-wit, on January 16, 1941, G. Percy George died. During the four years and six months which intervened between the execution of the releases and the death of G. Percy George, appellants took no action to set aside the release or reopen the case.” It was conceded in that case that “the allegations of fraud are directed against G. Percy George and not against Serrett, ’ ’ he being a brother of decedent, B. F. George. It was there further said: “Certain it is that no fact was developed by this belated investigation, and offered here in support of the allegation of fraud, •which could not have been as readily developed by a similar investigation made at any time between the date of the release and the date of the death of G. Percy George.
“Jurisdiction of a court of'equity is here invoked to relieve against fraud alleged to have been committed by a man four and one-half years before his death. During all that time appellants remained silent although every fact which is now offered in evidence was known, or could have been easily ascertained long prior to such death. It appears that G. Percy George was the only person connected with appellees who was familiar with the entire matter. The loss of testimony is a material circumstance in enforcing the equitable doctrine of laches.” Citing cases. The decree was accordingly affirmed.
The present action seeks, in the probate court, an accounting and distribution by the administrator. Appellee pleads this former adjudication- in bar of the action. The trial court sustained the plea, dismissed the action.
The parties to this action are the same as in the former appeal. The same relief is sought here as there, or it could and should have been. In the very recent case of Lillie v. Nunnally, ante, p. 202, 199 S. W. 2d 751, we quoted the following from Ogden v. Pulaski County, 189 Ark. 341, 71 S. W. 2d 1052: “It is the general rule, which has been frequently announced by this court, that the parties to an action are bound to make the most of their ease or defense and that a judgment of a court of competent jurisdiction operates as a bar to all questions in support of the cause or the defense, either legal or equitable, which were, or could have been interposed in the case.”
The judgment so held, and is, accordingly, affirmed. | [
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M. MICHAEL KINARD, Judge.
1 This appeal involves the right of cities, acting under their police power, to raze structures that have become detrimental to the public welfare. It arises from a long-standing controversy between the City of Little Rock (the City) and appellant Janetta Kearney over the restoration of a dilapidated house that she owns. By ordinance, the City found the house to be a nuisance and ordered it razed. Appellant sought an injunction in Pulaski County Circuit Court, arguing that the city acted illegally and unreasonably. Kearney now appeals from the circuit court’s order granting summary judgment in favor of the City. We affirm.
The property at issue is a house located at 2123 Spring Street in Little Rock, Arkansas. It was found to be “unfit for human habitation” and was “conditionally [gcondemned” by the City in 1991. The repairs necessary to bring the structure into compliance with the city code included repairing and refínishing many walls and ceilings, bringing plumbing and electrical up to new construction standards, replacing doors, and replacing broken or missing window panes.
Appellant acquired the property and a rehabilitation permit for it in 1994, although the deed transferring ownership to appellant was not filed until December 1995. The property had not been repaired by the previous owners, as evidenced by a warning notice issued by the City in May 1995. The notice stated that an inspection of the property revealed it to be “unsafe, unfit for human habitation, offensive to the neighborhood, and ... dangerous to persons in the vicinity or lawfully passing by the structure.” The City declared the property to be a nuisance and gave the owners thirty days in which to begin substantial repairs or to demolish the structure. What followed was a series of inspections, “stop work” orders, and two citations against appellant. The parties have been in litigation in multiple courts since 1996.
On October 21, 2003, by Ordinance No. 18,972 (the ordinance), the City condemned appellant’s house as a public nuisance and authorized the City Attorney to take steps to have the property razed. The City found the condition of the house to present a “serious structural, fire and health hazard” and to be “dangerous to the health and safety of the occupants or other persons, and further, the [structure is] in such condition as to be dangerous to the lives, limbs and property of people in its vicinity or |sthose lawfully passing thereby.” The Capitol Zoning District Commission voted for a demolition of the property at their December 4, 2003 meeting based on information submitted by the City in their application for demolition of the property.
Before passage of the ordinance, on September 22, 2003, the City sent appellant notice of its intent to request that the City Board of Directors and the Capital Zoning District Commission approve the razing of her house. On October 17, 2003, appellant filed a lawsuit in circuit court to, among other relief requested, prevent the City from demolishing her house. Appellant later filed an amended petition for injunction against the City. In it, she alleges that the decision to demolish her property is illegal, inequitable, and arbitrary. Appellant also denies that her property constitutes a nuisance and claims that simple repairs would fix any conditions the defendants claim are defective. In her amended petition for injunction, appellant wrote:
d. Petitioner attempted to ameliorate any and all of the conditions complained of by Defendants in the past by expending extraordinary amounts of money, effort and time in the repair of the property, however, Defendants intentionally, arbitrarily and maliciously prohibited Petitioner from completing such repairs, by abruptly and without cause issuing vacate orders, stop work orders Rand denials of utility service to the property which they have maintained to this date [... ]
e. the unfounded actions of Defendants in prohibiting Petitioner from occupying or completing her repairs to the property caused the property to remain insecure and exposed to the elements such that Petitioner suffered substantial losses to the condition and value of the property [... ]
f. virtually all of the conditions that Defendants now complain of and allege as a basis for demolition of the property are conditions that Defendants’ stop work orders prevented from being corrected, or were created by Defendants’ prohibition on work at the property.
Additionally, appellant claims that the City has a bias against her and has treated her unequally as compared to its treatment of other homeowners in the area.
In its motion for summary judgment, the City contended that appellant’s petition was “rife with legal conclusions, but fails to state any facts in support of the elements of any of her claims.” The City submitted photographs of the structure and several affidavits in support of its motion. Greg Massanelli, Senior Code Enforcement Officer, Rental Inspection Team, Housing & Neighborhood Programs for the City of Little Rock, stated in his affidavit that he had conducted an inspection of the structure at 2123 Spring Street on August 3, 2006. Massanelli observed that the building was not in compliance with code requirements for building, mechanical, electrical, or plumbing requirements. He stated, “The hole in the roof, missing windows, the separation of the window casement from the structure, the collapsed ceiling, the crumbling porches, and ^exposed wiring are all considered life-safety violations under the City Code and would require immediate compliance.”
Arnold Coleman, Building Inspector for the City, stated that in May 1997 he issued a stop work order for 2123 Spring Street after he observed construction activities there and determined that there was no building permit posted. In April 1998, he and a plumbing inspector attempted to perform an inspection of the property in response to Circuit Judge Marion Humphrey’s court order in City of Little Rock v. Kearney, No. CR-96-0694. They were not admitted to the site that day; upon subsequent inspection, Coleman found code violations with regard to the handrail, clearance space from the furnace vent to combustibles where the flue exits through the roof, and windows over bath tubs not being constructed with tempered or safety glass, as required by code. An inspection of the exterior in August 2006 revealed “continuing deterioration of the structural roof, fascias, and exterior wall covering elements due to prolonged inactivity in the renovation process.” He further stated that a review of building permits revealed Building Permit 9409479 was issued to appellant on April 10, 1994, and expired on October 6, 1996; and Building Permit 9803665 was issued to appellant on May 14,1998, and expired on May 14,1999. No inspections were requested under either permit, and no additional permits had been issued after 1998.
Barry Burke, Assistant Fire Marshall for the Little Rock Fire Department, stated that he had inspected appellant’s property on August 3, 2006, and found that it posed |rj‘an imminent danger of fire.” In his opinion, the structure was abandoned based upon the fact that there were no utilities; it was unoccupied, rapidly deteriorating, and had not been maintained.
In her response to the City’s motion for summary judgment, appellant asserted that she had submitted evidence which, if believed, would entitle her to relief. Appellant contended that “there are a myriad of knowledgeable persons whose opinion is that the structure does not constitute a nuisance, and that the property is subject to rehabilitation.” However, appellant of-feredu no proof regarding these “knowledgeable persons.” Attached to appellant’s response were appellant’s affidavit and various other exhibits. Her exhibits consisted primarily of her correspondence with the City and the Department of Arkansas Heritage, showing their attempts to help appellant with the rehabilitation of her house, for example, by providing information and assisting with grant applications. Only a July 17, 2002 letter from Mark Hayes to the Capitol Zoning District Commission shows anything that could be construed as an attempt to thwart her rehabilitation of the house. Hayes was a neighbor living on Spring Street (and married to the Commission chair), and he wrote a letter also representing several other neighbors. He wrote in opposition to appellant’s pending application to construct a garage and fence, citing appellant’s continued neglect of the property. However, Hayes also wrote, “Ms. Kearney should immediately proceed with the rehabilitation of the home with a goal of occupancy.”
|7Appellant’s affidavit contains a detailed account of the problems she had with work permits and stop work orders. But it does not contain anything showing the City’s actions were not justified under the circumstances. For example, she states that “all during 1995 the City used stop work orders multiple times with the apparent intent to stall progress on improving the house until the permit was expired or invalidated,” but offers no support for her assertion in the record.
By order entered on March 27, 2007, the circuit court granted the City’s motion for summary judgment and dismissed the case. The standards guiding this court’s review of a circuit court’s order granting a motion for summary judgment are well established and have recently been set out by our supreme court as follows:
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. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. On appellate review, this court determines if summary judgment was appropriate based on whether the evi-dentiary items presented by the moving party in support of the motion leave a material fact unanswered. The court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. The appellate court’s review focuses not only on the pleadings, but also on the affidavits and documents filed by the parties.
Scamardo v. Sparks Reg’l Med. Ctr., 375 Ark. 300, 305, 289 S.W.3d 903, 906 (2008) (internal citations omitted). In the case at hand, the City made a prima facie case that the appellant’s house was a nuisance and that the City was entitled to summary | ¿judgment. Under our summary judgment standards, appellant was required to “meet proof with proof’ and demonstrate the existence of a material issue of fact.
On appeal, Kearney argues that the trial court abused its discretion and erred in granting summary judgment to the City of Little Rock because there existed the following factual questions: (1) whether appellant’s property constituted a nuisance; (2) whether the appropriate remedy as to appellant’s particular property was to demolish it.
From the outset, we note that the parties assume and argue that the City’s action in passing the ordinance was legislative. However, we believe it is prudent to analyze this case under the standards for both legislative actions, which are reviewed for abuse of discretion, and administrative actions, which are reviewed de novo. Although not briefed by the parties in this case, the distinction between legislative actions and administrative actions by a city council is worthy of note because of the decision of our supreme court in Ingram v. City of Pine Bluff, 355 Ark. 129, 133 S.W.3d 382 (2003), which also involved a city action razing a structure, albeit in that ease the city acted by resolution. In Ingram, the city’s action was held to be administrative, and we believe Ingram to be too similar to the case at bar to be left unmentioned. The different standards applicable to the circuit court’s review of the evidence in ruling on the motion for summary judgment are relevant in determining whether the City “was entitled to judgment as a matter of law.” Under either standard, on the record described above the grant of summary judgment was proper. The City determined, in Ordinance No. 18,972, |9that appellant’s house had “become run-down, dilapidated, unsightly, dangerous, obnoxious and detrimental to the public welfare of the citizens of Little Rock” and was a “nuisance.” The City declared “immediate action” to be necessary. As explained below, the City had the authority under Ark.Code Ann. section 14-56-203 to determine that appellant’s house was a nuisance, and our review on appeal is solely to determine whether the circuit court’s grant of summary judgment was appropriate.
First, we review as though the City’s action were legislative. In City of Lowell v. M & N Mobile Home Park, Inc., 323 Ark. 332, 916 S.W.2d 95 (1996), a landowner sued the City of Lowell after the planning commission denied his application to rezone the area for a mobile home park. The trial court found the commission’s decision to be arbitrary and granted the requested relief. The supreme court reversed, holding: (1) the denial of rezoning was supported by a rational basis; (2) the landowner did not meet its burden of showing there was no rational basis for refusal to rezone; and (3) the chancery court exceeded its authority by taking discretion from the legislative branch. City of Lowell provides the following information relevant in examining this case:
323 Ark. at 336-37, 916 S.W.2d at 97 (emphasis supplied, internal citations omitted). City of Lowell gives further guidance by defining “arbitrary” as “decisive but unreasoned action” and “capricious” as “not guided by steady judgment or purpose.” Id. at 339, 916 S.W.2d at 98-99. Furthermore, an enactment is not arbitrary if there was any reasonable basis for its enactment. Id. The trial court must engage in a presumption that the legislation is valid, and the burden is placed on the moving party to prove that the enactment was unreasonable or arbitrary. See id.
The General Assembly can delegate the legislative power to enact ordinances to municipal corporations. We have written that when a municipality acts in a legislative capacity, it exercises a power conferred upon it by the General Assembly, and consequently, an act of a municipality is the co-equal of an act of the General Assembly....
The legislative power includes discretion to determine the interests., of the public as well as the means necessary to protect those interests. Within constitutional limits, the legislative branch is the sole judge of the laws that | ^should be enacted for the protection and welfare of the people and when and how the police power of the State is to be exercised ....
... The legislative branch has discretion to determine the interests of the public, but the judicial branch has the power to set aside legislation that is arbitrary, capricious, or unreasonable. This is a limited power, and the judiciary, in acting under this limited power, cannot take away the discretion that is constitutionally vested in a city’s legislative body.
The City was authorized by Ark.Code Ann. section 14-56-203 (Repl.1998) to order the removal or razing of buildings that in the opinion of the council have become “dilapidated, unsightly, unsafe, unsanitary, obnoxious, or detrimental to the public welfare.” Thus, under this line of analysis, the question before the trial court was whether the City acted in an arbitrary, capricious, or unreasonable manner when it made the determination that appellant’s house was a nuisance. Summary judgment was proper if the trial court determined that there was no factual issue that, if decided in favor of appellant, might entitle her to relief. Because of the high burden placed on those |T1chaIlenging municipal legislative actions taken under the discretionary power granted under the Constitution by the General Assembly, appellant was required to produce evidence of an abuse of that discretion. See City of Lowell, supra. Appellant offered nothing beyond her mere allegations. On appeal, the question before this court is whether the trial court erred in determining that no material issue of fact existed and that appellee was entitled to judgment as a matter of law. We find no error in the granting of summary judgment in favor of appellee.
In addition, if the City’s action is viewed as administrative in nature, we likewise find no error in the circuit court’s ruling. In Scroggins v. Kerr, 217 Ark. 137, 142, 228 S.W.2d 995, 998 (1950), our supreme court explained:
Not all ordinances enacted by city councils come under the heading of ‘municipal legislation.’ City governments in Arkansas know [sic] no such complete separation of powers as would automatically classify all aldermanic activities as legislative in character.
The test for determining whether an ordinance or resolution is legislative or administrative is to determine whether the proposition is one that makes new law or executes a law already in existence. See City of North Little Rock v. Gorman, 264 Ark. 150, 157, 568 S.W.2d 481, 485 (1978). In the instant case, we need not resolve this question, as the circuit court’s grant of summary judgment is determined as proper under either analysis.
| TjiThe Arkansas Supreme Court in the case of Ingram v. City of Pine Bluff, 355 Ark. 129, 133 S.W.3d 382 (2003), cited Ark. Code Ann. § 14-56-425 (Repl.1998) for the proposition that appeals from administrative and quasi-judicial agencies are reviewed by the circuit court de novo according to the same procedure which applies to appeals in civil actions from decisions of inferior courts. In Ingram, the issue was a city council resolution to raze the appellant’s property. After the property was razed, appellant sued for declaratory and injunctive relief. The circuit court granted the City’s motion for judgment on the pleadings based on the appellant’s failure to appeal the resolution within thirty days as required by Inferior Court Rule 9, and our supreme court affirmed. The supreme court held that Rule 9 applies to city council and planning commission resolutions via Ark.Code Ann. § 14-56-425. 355 Ark. at 134, 133 S.W.3d at 385; see also City of Jonesboro v. Vuncannon, 310 Ark. 366, 837 S.W.2d 286 (1992) (holding that Ark. Code Ann. § 14-56-425 applies to appeals of actions of the city council, when the act complained of is the city’s application of its zoning regulations). Under the de novo review standard applicable to administrative actions, we are still left with appellant’s failure to meet “proof with proof’ and demonstrate the existence of a genuine issue of material fact. Appellant did not contest the condition of her house. The summary-judgment record establishes that razing the structure was justified. Therefore, we find no error in the trial court’s grant of summary judgment in favor of the City.
I is As to appellant’s claim of bias, the record does not contain any evidence of bias. To the contrary, the record reflects that appellant received more than adequate assistance from the City. Appellant’s mere allegations of bias made before the trial court were not enough to survive summary judgment. The mere continuation of such allegations on appeal does not support reversal of the trial court’s judgment exercised properly on other grounds recited herein.
Appellant’s claim that demolition was not the appropriate course of action also fails. The City has the authority given by statute to raze buildings that are “detrimental to the public welfare.” Considering the overwhelming evidence of the extremely poor condition of the house and the length of time it had been in that condition, it was not error for the circuit court to grant the City’s motion for summary judgment.
Affirmed.
GLOVER and MARSHALL, JJ., agree.
. Also named as defendants were the Capitol Zoning District Commission, Mark Hayes and "Spousal Chair of CZCD” [sic], Patricia Hayes, Commission Chair. Claims against these defendants were dismissed with prejudice on December 17, 2003. The Capitol Zoning District Commission has broad zoning authority over its district. See Ark.Code Ann. §§ 22-3-301 to -313 (Repl.2004). Kearney does not argue any error about the dismissal of these defendants, and they are not parties on appeal.
. Capitol Zoning District Commission, also named by appellant as a defendant, had previously been dismissed with prejudice. | [
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ELANA CUNNINGHAM WILLS, Justice.
| ]A Sebastian County jury awarded damages to Sherry Castro, individually and as the parent and guardian of C.S., for negligent supervision and retention on the part of Sparks Regional Medical Center (Sparks). Sparks’s primary liability insurer — The Medical Assurance Company, Inc. (Medical Assurance) — brings this appeal, arguing that the trial court erred in denying its motions for a directed verdict and for judgment notwithstanding the verdict. We affirm.
Six-year-old C.S. was admitted to Sparks in May 2005. A Sparks food service employee named Howard William Campbell, III (Campbell) delivered a meal to C.S. and later returned to his hospital room and sexually assaulted him. Campbell was charged with rape and pled guilty to the lesser charge of sexual indecency with a child.
Sherry Castro, as C.S.’s parent and guardian, filed a complaint against Sparks and Campbell for damages on behalf of herself and C.S. resulting from Campbell’s sexual assault. After Sparks asserted charitable immunity in its amended answer, Castro filed an amended |2complaint naming Sparks’s insurers as defendants under the direct action statute, Ark. Code Ann. § 23-79-210. The circuit court later granted Sparks’s motion to dismiss based on its affirmative defense of charitable immunity. Castro nonsuited Campbell and several claims against the defendants after Medical Assurance filed a cross-claim against Campbell for “contribution and/or indemnity” in the event of an adverse judgment.
The case proceeded to trial on the remaining claims, and after Medical Assurance unsuccessfully petitioned the coui't for a directed verdict, the jury received ten interrogatories, including an interrogatory that allowed the jury to apportion any fault between Sparks and Campbell based on them respective negligence. The jury found that a preponderance of the evidence showed that Sparks’s negligence was the proximate cause of C.S.’s injuries, and found no negligence on the part of Campbell. The jury awarded $15,000 in damages to Sherry Castro and $500,000 in damages to C.S. due to Sparks’s negligence. The circuit court entered its final judgment on April 8, 2007, reflecting the jury’s findings of negligence on the part of Sparks and none on the part of Campbell. The circuit court denied Medical Assurance’s motion for judgment notwithstanding the verdict, or alternatively, a new trial. On appeal, Medical Assurance argues: (1) the trial court erred “by failing to overturn a jury verdict finding the employee not negligent, but holding the employer at fault for the negligent retention and supervision of the employee”; (2) there was insufficient evidence to support the jury’s finding of negligent retention and supervision; and (3) there was insufficient evidence to support the award of future damages.
We first address Medical Assurance’s argument that there was insufficient evidence to support the jury’s determination that Sparks negligently supervised and retained |3Campbell, and, therefore, that the circuit court erred by denying its motions for a directed verdict and judgment notwithstanding the verdict (JNOV). This court recently discussed the standard of review for a denial of a motion for a directed verdict and a denial of a motion for JNOV in ConAgra Foods, Inc. v. Draper, 372 Ark. 361, 364, 276 S.W.3d 244, 247-48 (2008) (citations omitted):
Our standard of review of the denial of a motion for directed verdict is whether the jury’s verdict is supported by substantial evidence. Similarly, in reviewing the denial of a motion for JNOV, we will reverse only if there is no substantial evidence to support the jury’s verdict, and the moving party is entitled to judgment as a matter of law. Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. It is not our place to try issues of fact; rather, we simply review the record for substantial evidence to support the jury’s verdict. In determining whether there is substantial evidence, we view the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. A motion for directed verdict should be denied when there is a conflict in the evidence, or when the evidence is such that fair-minded people might reach different conclusions.
The appellee’s theory of recovery in this suit that is at issue on appeal, was that C.S. was injured due to Sparks’s negligent supervision and retention of Campbell. Arkansas recognizes the torts of negligent supervision and negligent retention. Saine v. Comcast Cablevision of Ark., Inc., 354 Ark. 492, 126 S.W.3d 339 (2003); Am. Auto. Auction, Inc. v. Titsworth, 292 Ark. 452, 730 S.W.2d 499 (1987). In Saine, the court explained:
Under each of these theories of recovery, the employer’s liability rests upon proof that the employer knew or, through the exercise of ordinary care, should have known that the employee’s conduct would subject third parties to an unreasonable risk of harm. As with any other negligence claim, a plaintiff must show that the employer’s negligent supervision or negligent retention of the employee was a proximate cause of the injury and that the harm to third parties was foreseeable. It is not necessary that the employer foresee the particular injury that occurred, but only that the employer reasonably foresee an appreciable risk of harm to others.
\Jd. at 497, 126 S.W.3d at 342 (citations omitted). Thus, the appellee was required to show that Sparks’s negligent supervision or retention of Campbell was the proximate cause of C.S.’s injuries, and that harm to a third party by Campbell was foreseeable, though not necessarily the particular harm C.S. suffered. Id.
The jury was presented with evidence of a previous incident at Sparks involving Campbell, in which a female patient alleged that Campbell touched her breast while he fondled himself and asked her if she “liked it.” After a delay of several hours, a Sparks nursing supervisor notified the Fort Smith Police Department of the incident. The police conducted an investigation, but determined that there was insufficient evidence to charge Campbell.
The jury also considered evidence consisting of testimony and exhibits that included Sparks’s own investigation of the previous incident, concluding that the female patient’s allegations were unsubstantiated. Although the prior incident involving the female patient and Campbell was reported to the nursing staff shortly after it occurred, at approximately 5:00 p.m., the evidence showed that the nursing supervi sor on duty at the time did not start the investigation because she “didn’t want to get caught up in it.” The nursing supervisor who relieved her at 8:00 p.m. began an investigation and took written statements from the patient and her grandson, but these statements did not end up in the report. Further, the nursing supervisor did not notify Sparks security and Fort Smith police of the incident until 11:15 p.m., approximately six hours after the incident was reported and approximately three hours after Campbell finished his shift and left the hospital. Sparks’s security manager Troy |sTedder was never able to positively identify the reason for the delay in reporting the incident, and also testified that he never initiated contact with anyone else involved in the incident after the police got involved, even though he was given the names of the nurses who were working the night the incident occurred.
Campbell later admitted to his supervisor that he touched the patient, but only to adjust her gown, which Campbell claimed had fallen, leaving her breast exposed. The supervisor testified that Campbell knew the hospital policy forbade him to touch a patient, and the supervisor’s counseling of Campbell after the incident with the female patient, written in a “Sparks Health System Disciplinary Action Form,” included a warning that Campbell “[n]ever make any physical contact with a patient and never touch a patient.” (Emphasis original). Despite Campbell’s admitted violation of hospital policy by touching a patient, Sparks allowed Campbell to resume his patient food service duties without restriction. Although there was some countervailing evidence concerning the pri- or incident involving the female patient, viewing the evidence and all reasonable inferences in the light most favorable to the appellee as this court must, the jury was presented with sufficient evidence to support its finding that Campbell’s sexual assault on C.S. was foreseeable. There was testimony that Campbell knowingly violated hospital policy when he touched the female patient; Campbell admitted to his supervisor that he touched the female patient; and Sparks gave Campbell disciplinary counseling after the incident with the female patient that warned Campbell that he was to never touch a patient under any circumstances. It was | finot necessary that Sparks foresee the particular injury that occurred to C.S., but only that Sparks reasonably foresee an appreciable risk of harm to others following the incident with the female patient. See Saine, 354 Ark. at 497,126 S.W.3d at 342.
Next, Medical Assurance argues that employers are only liable for negligent supervision and retention when third parties are injured by a tortious act of an employee, and, therefore, “Arkansas law is clear that when an employer’s liability is attributable solely to the allegedly tortious act of its employee, a finding in favor of the employee requires a similar finding as to the employer as a matter of law.” Medical Assurance contends that the jury’s finding of no negligence on the part of Campbell eliminates any possibility that Sparks could be held liable to Castro or C.S. We review this question of law under the de novo standard of review. Bibbs v. Cmty. Bank of Benton, 375 Ark. 150, 289 S.W.3d 393 (2008).
It appears that Medical Assurance confuses claims brought for negligent supervision and retention and those brought for an employer’s vicarious liability under the doctrine of respondeat superior. This court stated in Sainé, supra, that under the negligent supervision and negligent retention theories of recovery, “employers are subject to direct liability for their negligent supervision or negligent retention of employees when third parties are injured as a result of the tortious acts of those employees.” 854 Ark. at 497, 126 S.W.Bd at 342 (emphasis added).
|7Although Medical Assurance cites Chicago, Rock Island & Pacific Railroad Co. v. Davis, 289 Ark. 1059, 397 S.W.2d 360 (1965), to assert that the applicable “rule” in this case required a finding in its favor when the jury did not find Campbell negligent, that case involved a claim that the railroad was vicariously liable for the tortious conduct of individual railroad employees in a wrongful death action. Under the doctrine of respondeat superior, an employer can be held liable for the tortious conduct of an employee or agent if there is evidence that the conduct occurred within the employee’s scope of the employment. Cooper Clinic, P.A. v. Barnes, 366 Ark. 533, 237 S.W.3d 87 (2006).
Here, the appellee’s theory of recovery was not that Sparks was vicariously liable under respondeat superior, requiring a verdict against Campbell. The claim was brought under the theories of negligent supervision and retention on the part of Sparks, and Medical Assurance ignores the complete “rule” as stated in Davis:
The rule is that if the employer’s liability is attributable solely to the employee’s negligence, a verdict in favor of the employee exonerates the employer as well. But if there is independent actionable negligence on the part of the employer then he may be held hable even though the employee is found to have been free from fault.
239 Ark. at 1060, 397 S.W.2d at 361 (emphasis added). Thus, although a jury’s exoneration of an employee also exonerates the employer when a claim involves the employer’s vicarious liability under respondeat superior, under a claim for negligent supervision and retention an employer is directly liable for its own “independent actionable negligence.” Id. Because the negligent supervision and retention claim in the present case involved Sparks’s sole, direct liability as Campbell’s employer, the trial court did not err in denying Medical Assurance’s | ^motion for a directed verdict and motion for JNOV on this basis.
For its final point on appeal, Medical Assurance argues that the circuit court erred in denying its motions for a directed verdict and JNOV because there was insufficient evidence to support an award of future damages for C.S.’s injuries. The jury rendered its verdict in this case upon a general verdict form, which did not specify the award of damages. When a jury’s verdict is rendered on a general verdict form, it is a finding upon the whole case; this court will not speculate on what the jury found where a general jury verdict is used. Union Pac. R.R. Co. v. Barber, 356 Ark. 268, 293, 149 S.W.3d 325, 341 (2004) (“When special interrogatories concerning liability or damages are not requested, and this court is left in the position of not knowing the basis for the jury’s verdict, we will neither question nor theorize about the jury’s findings.”).
Affirmed.
. Medical Assurance conceded that Campbell committed the assault at trial, and the jury heard undisputed testimony that Campbell committed the assault and pled guilty to it.
. Medical Assurance also asserts that “under Arkansas law, Appellants had a right to have the jury determine the respective fault of all alleged tortfeasors for the purpose of apportioning fault among all such alleged tortfea-sors.” Because the jury found Campbell not negligent — of his own negligent supervision and retention — then there was obviously no fault to apportion; Sparks was the sole tort-feasor according to the jury’s finding. | [
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DAVID M. GLOVER, Judge
11 Stacy and Pam Rider appeal the Stone County Circuit Court’s order quieting title to disputed property in appellee Longbow Ranch, LLC (“Longbow”). The Riders argue the circuit court erred in finding Longbow proved adverse possession. We affirm.
Longbow owns adjacent property directly south and east of the Rider property. At issue in this appeal is an approximately 4.15-acre strip of land extending across the south side and continuing up the eastern side of the Rider property (the “disputed property”). The disputed property has been fenced in with the Longbow property since at least 1966. In 2007, the Riders erected a new fence on what they considered to be the proper boundary line between the two properties. Longbow filed suit, alleging title to the disputed property | .¡should be quieted in it by either adverse possession or acquiescence; asserting the Riders had violated Arkansas Code Annotated sections 18-60-102 and 15-82-301; contending the Riders had trespassed on its property to erect the new fence; and requesting that the Riders be ejected from the disputed property and possession be restored to Longbow. In an order filed on November 9, 2015, the circuit court granted partial summary judgment to Longbow on the issue of trespass. After trial, the circuit comí issued an order on March 22, 2016, quieting title to the disputed property in Longbow by adverse possession and ordering the Riders to remove the fence they constructed. On January 11, 2017, an order dismissing all remaining claims with prejudice was entered, and the Riders filed a timely appeal. '
Standard of Review
Equity cases are reviewed by this court de novo on the record; findings of fact by the trial court will not be reversed unless clearly erroneous. Muldrew v. Duckett, 2013 Ark. App. 304, 2013 WL 1919586. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that an error has been committed. Fletcher v. Stewart, 2015 Ark. App. 105, 456 S.W.3d 378. It is within the province of the finder of fact to resolve conflicting evidence and to determine witness credibility; the trial court’s superior position to make these determinations is given .due deference on appeal. Muldrew, supra.
Hearing Testimony
At trial, Ben Pearson, Jr. (Pearson), testified his father, Ben Pearson, Sr., purchased what would become the Longbow property in 1966; this property was transferred to a trust Rat Pearson, Sr.’s, death; the estate transferred the property to Pearson and his sister; his sister and her husband transferred the property to Pearson; and Pearson and his wife transferred the property to Longbow Ranch, LLC. Pearson testified his father immediately created a cattle-and-horse farm after purchasing the property; cleared pastures with bulldozers; built fences; erected barns; built an L-shaped cattle corral against the fence in 1966, which was used to offload cattle into the pasture; and also built a pond in 1967. According to Pearson, his father remained in the cattle business, with the help of a manager, until, his death in March 1971, after which the estate continued the cattle operation with the assistance of the cattle manager. Pearson testified the estate leased the property, including the disputed property, to Bill Davis from 1978 until 1987; the land, including the disputed property, was then subsequently leased to Ted Verser and Dennis Knapp; Hughie Bradley and Mike Knapp; Tim Kocher; and Steve Carlton, who was currently leasing the' property. Pearson stated that all leases required" the lessees to maintain the fence so the cattle would not get out. Pearson used pictures of the fence to point out the several different kinds of wires in the fence and the fact that some of the wire had grown into the trees. Pearson testified his family moved to Longbow permanently in October 1993, and he had been in complete possession of the property up to the fence since that time.
"Pearson acknowledged that in 2007 he was interested in obtaining’an easement from Stacy Rider to allow him to cut timber on his property; it was at that time Rider first raised the question of the proper boundary line. Pearson testified he told Rider the land had been in his family’s possession for forty-five years, and it was his understanding that after seven years, there was not a problem with ownership. Pearson said he proposed a land trade or | /‘something,” but he never heard back from Rider; however, a new fence suddenly appeared, and Longbow filed this lawsuit. Pearson denied he ever agreed that Rider’s proposed boundary line was correct. Pearson testified no one other than Longbow and its predecessors and tenants had been in possession of any property south of the original fence, and no one from the north side of the fence had ever fixed the fence, bush-hogged the property, or fertilized the pasture.
Steve Carlton, the current Longbow lessee, testified he and Tim Kocher were both required under their leases to keep the fences repaired so the cattle would not get out. Carlton said when Kocher quit leasing the northern part of the property (which contained the disputed property); he took over that lease and had been leasing the entire property for the last ten years. Carlton stated that, during that time period, he had taken care of the fence on the northern part of the'property, checking at least every .two years to ensure the fences were all up; he had also spread litter several times for both Kocher and himself, and he was never told by'the Riders to stay off their property. He also said he never saw the Riders repairing the fence.
Dennis Knapp testified he worked for Bill Davis when Davis leased the Longbow property, and he and his father had also leased the property. He said the fence had been in existence since he hunted on the land as a boy—for around fifty years. Knapp said when he worked for Davis and when he and his father leased the land, they were required to keep the fence repaired to keep the, cattle in. Knapp said Stacy Rider never told him he owned any of the land' south of the fence; other than the Pearsons, Knapp knew of no one who claimed to own any of the land south of the fence.
IsStacy Rider’s mother, Susan Phillips, testified the disputed property had 'been in her family since 1926, when her grandfather purchased the land; the land was transferred to her parents, and in 1973, Phillips’s parents deeded five acres to her, which abutted the northern line of the Longbow property, and she sold that land to her son, Stacy Rider, and his wife Pam. Phillips testified her cousin sold Stacy Rid er twenty additional acres that also joined the old fence line. Phillips testified that since 1973 to. the present, no one had asserted they owned any of the five acres she sold to Stacy. Phillips claimed the old fence was put up as a containment fence to keep horses and cattle in; it was never intended to establish, a boundary line. However, Phillips admitted on cross-examination she never told the Pearsons either orally or in writing that the fence was not the boundary and that she owned some of the land on the southern side of the fence. She admitted she had never taken possession of any of the property on the South side of the fence and had done nothing to clear the land on the southern side of the fence. On redirect examination, Phillips testified she occupied the property up to the fence by allowing her horses to run on the property. She claimed she took care of the fence on her side and allowed her horses to run on the property, and the folks on' the other side of the fence took care of their property and let their cattle run on it. However, she denied that anyone other than her repaired the fence.
Lance Rider, Stacy Rider’s brother, testified he and Stacy met with Pearson and pointed out the boundary lines of the properties, and Pearson agreed to where the property points were located. Lance said that a few weeks later Pearson sent a letter proposing a land swap so Pearson could gain access to log his property. Lance said he did not respond to the 1 flproposal and instead began building the fence. Lance stated the old fence contained cattle, horses, and donkeys on his side of the property, and it contained cattle on the land south' of the old fence on the Pearson property; but it was not a boundary fence to his knowledge. Lance admitted that sometimes the south side of the fence was bush-hogged by the Pearsons or their tenants; that the cattle on the Pearson property would have been able to graze up to the old fence line; and while he had bush-hogged the disputed property after the new fence had been erected, he had not done so before. However, he claimed that any work performed on the old fence was done by him or his mother, Lance further admitted he knew Steve Carlton had put chicken litter out in the pasture on the disputed property; he had not paid him for the litter or told him not to do it; and he knew Carlton and Kocher were running cattle on the land.
Stacy, Rider’s testimony concerning the land-swap proposal was the same as Lance’s testimony. Stacy said he never agreed the old fence row should be the boundary. He admitted he had never bush-hogged the land south of the fence or run any cattle on it. He testified that, when he purchased the five acres from his mother, Phillips told him that the fence was not on the property line, that part of his land was “out in the field.” He further admitted that he did nothing about the property line until 2007, when he built the new fence.
| tAdverse Possession
Adverse possession is governed by both common law and statute. The common-law elements of adverse possession require a claimant to show he has been in possession of the property in question continuously for more than seven years, and his possession has been visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. Muldrew, supra. Whether possession was adverse to the true owner is a question of fact; proof that the claimant’s acts of own ership are of such a nature as one would exercise over his own property and would not exercise over the land of another is ordinarily sufficient proof of adverse possession. Muldrew, supra. In 1995, the General Assembly added a statutory requirement for proof of adverse possession that the claimant prove color of title and payment of taxes on the subject property or contiguous property for a period of seven years; however, if the claimant’s rights to the disputed property vested prior to 1995, he need not comply with the statutory change. Fletcher, supra.
The Riders’ argument on appeal focuses on only two requirements of adverse possession: actual and continuous. They contend that Longbow’s possession failed to meet both of these requirements. The Riders argue Longbow’s use of the disputed property was not continuous for seven years because Longbow failed to identify how frequently the cattle were on the disputed property, which comprised less than one percent of the property Longbow claimed was used for cattle. They further contend there was no testimony about how often the disputed land was cleared or how often the fence was repaired. The Riders further contend Longbow’s use failed to rise to the level of actual possession because the ^evidence showed there was only sporadic use of the land, and the fence was considered a convenience fence rather than a boundary line.
We cannot agree with the Riders’ assertions. The disputed property has been fenced in with the Longbow property since at least 1966, when Pearson, Sr., purchased it and immediately established a cattle-and-horse operation, which has been operated continuously since that time under various lessees. The old fence has several different types of wire, and some of the wire has grown through the tree trunks. While the testimony was disputed as to who repaired the fence over the years, it was the circuit court’s responsibility to determine the credibility of that testimony.
Fencing a disputed area is an act of ownership evidencing adverse possession; the fact a fence may be degraded does not necessarily mean the area is no longer “enclosed”; rather, the question is whether the enclosure is sufficient to “fly the flag” over the land and give notice to the true owner the land is being claimed adversely. Steele v. Blankenship, 2010 Ark. App. 86, at 13, 377 S.W.3d 293, 300. “Where a landowner is under a belief that he owns certain lands enclosed with his own lands and he exercises dominion over a portion of the enclosed lands adversely to the record owner for the required statutory period of time (seven years) such constitutes an investiture of title to the entire tract.” Id. at 13-14, 377 S.W.3d at 300 (citing Kieffer v. Williams, 240 Ark. 514, 517, 400 S.W.2d 485, 487 (1966)).
Here, there was evidence the fence had been in place since at least 1966; cattle had been run on the enclosed property since that time; Phillips never told anyone she owned the land on the south side of the fence and never attempted to take possession of the disputed property; and while the Riders knew that the fence was not on the property line, having |3been given this information by Phillips when they pm-chased the property from her in 1995, they said nothing until 2007. This was well after the seven-year period for adverse possession, as that was established at least in the mid-1970s. This evidence was sufficient to “fly the flag” that the enclosed disputed property was being claimed adversely. The circuit court’s decision to quiet title to the disputed property in Longbow under the theory of adverse possession was not clearly erroneous.
The Riders also point to the fact that Pearson offered a land swap as evidence that he knew Longbow did not own the property. However, after title to land is obtained by adverse possession, recognition that another may have a claim to the land does not divest title to the land from the adverse possessor or estop the adverse possessor from asserting title; adverse possession maintained for the statutory seven-year period vests title in the adverse possessor as completely as would a deed from the holder of record title. Fletcher v. Stewart, supra. Therefore, any proposed 2007 land swap cannot act to defeat Longbow’s assertion of title by adverse possession, as the seven-year period had long run by that time.
jFailure to Prove Pedal Possession of Entire Tract
Under this point, the Riders assert that even if Longbow adversely possessed some of the disputed property, it failed to prove it had pedal (actual) possession of the entire tract. This issue was never raised to the circuit court. This court will not consider arguments raised for the first time on appeal. Hodges v. Gravel Hill Cemetery Comm., 2016 Ark. App. 360, 498 S.W.3d 746. The Riders contend that sufficiency of the evidence does not have to be raised to preserve it for appeal. However, the Riders’ argument below was that none of the disputed property belonged to Longbow under a theory of adverse possession, not Imjust a portion of the disputed property. The circuit court was never given an opportunity to rule on this issue because it was never raised by the Riders. Nevertheless, as discussed above, the circuit court’s decision was not clearly erroneous.
Affirmed.
Whiteaker and Hixson, JJ., agree.
, This case was previously appealed but was dismissed on motion of appellants by this court because the order initially appealed from was not a final, appealable order. See Rider v. Longbow Ranch, LLC, CV-16-638. The issue of finality has been resolved, and appellants have filed a timely appeal from the final order in this case.
. The Riders have not appealed this order.
. Lance Rider was dismissed as a party defendant in the March 22, 2016 order quieting title in Longbow, as it was determined at the hearing in November 2015 that he claimed no interest in the disputed property.
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ROBERT J. GLADWIN, Judge.
1 iLori Rose appeals the Polk County Circuit Court’s order denying her Rule 37 petition for postconviction relief. Ark. R. Crim. P. 37,1 (2016). We assumed jurisdiction of this appeal pursuant to footnote 1 in Barnes v. State, 2017 Ark. 76, 511 S.W.3d 845 (per curiam). Rose contends that the trial, court erred in denying her petition because trial counsel was ineffective .for failing to (1) file a motion to suppress; ©.introduce a text message; (3) meet with Rose to prepare for trial; (4) present witnesses on Rose’s behalf; and (5) involve Rose in the jury selection and voir dire. We affirm.
Rose was convicted by a Polk County jury of aggravated residential burglary, domestic battering in the second degree, aggravated assault, and terroristic threatening. At the trial on those charges, the victim, Billy Vaught, testified that he and Rose had been in a romantic relationship for approximately two years until they broke up on November 19, 2013. Two days later, Rose’s teenage daughter phoned and asked him to stay at her home ^because she was home alone and could not reach her mother. After Rose réturned, Vaught stayed overnight on Rose’s coüch and left the' following day. That night, he went to bed early but woke up around midnight when Rose entered his bedroom, turned on the light, and stated that he should “prepare to die.”- She was under the impression that Vaught had molested her daughter. Vaught said that he could tell that the hammer-of the gun had been cocked and that Rose had been drinking, so he kicked the gun with his left leg. The rifle went off and shot Vaught in the right leg just below the knee. They briefly struggled over the gun, but. he shoved it under the bed. He called his sister, who drove him to the hospital, .and Rose left before Vaught’s sister arrived. Vaught’s kneecap, and femur bone were broken, and,he had to have kneerreplacement surgery. Vaught said that during their relationship, he and Rose frequently stayed at each other’s: homes, and that it was not necessary-for them to have an explicit invitation to do so. Vaught said that he had not told Rose that she was no longer welcome in his home prior to the shooting.
Rose gave two statements to police after her' arrest. In her first statement, which was played for the jury, Rose admitted that she had filed a police report agáinst Vaught for alleged sexual abuse of her daughter, but she denied that she had been to his home or that she had shot him that night. The arresting officer testified that. Rose did .not appear to be highly intoxicated at the time he obtained her statement, although he could smell alcohol on her. Rose gave a second statement on the following day that was also played at trial. Rose claimed that she was scared and intoxicated and had not told the truth in her first interview. She admitted that she had gone to Vaught’s home and that she had been drinking. She said that someone had told her that Vaught had also acted inappropriately | ¡¡toward his son in the past, so she went to Vaught’s home with the intention of taking his son home with her. She did not expect Vaught to be at home, but when she realized that he was asleep, she said that she grabbed the rifle sitting by the front door and went to speak to him. She had borrowed the same rifle from Vaught and returned it to his house after they had broken up earlier in the week. She said that the rifle was pointed down, not at Vaught, but when she asked him why he had hurt her daughter, he kicked the gun and it went off and shot him in the leg. She handed Vaught his cell phone, and he asked her to leave.
At the conclusion of the trial, Rose was found guilty of aggravated residential burglary, second-degree domestic battery, aggravated assault, and terroristic threatening. The jury recommended that she be sentenced to a total of seventy-two years, but the trial court sentenced her to a total of thirty-six years’ imprisonment. This court affirmed Rose’s convictions in Rose v. State, 2015 Ark. App. 563, 472 S.W.3d 167, and the mandate was entered on October 24, 2015,
Rose filed a timely petition for relief under Rule 37 on December 21, 2015, with the Polk County Circuit Court. The petition alleged numerous errors by trial counsel, Greg Klebanoff, and contained a proper verification. An amended petition for Rule 37 relief was filed on April 6, 2016, and a hearing was theld on June 23, 2016. Lori Rose testified that she had received a text message from Vaught somewhere between November 19 and 21, .2013, wherein Vaught said that she was welcome in his home at any time. The incident occurred on November 23, 2013. She said that she had showed this text message to Kleba-noff, and he did not produce the message for the jury. She also said that she did |4not have a defense-strategy discussion with him. She said Klebanoff was more concerned with his payment than about trial strategy. She said that the trial court had granted a motion in limine that the word “victim” was not to be used during the .course of the trial, but when it was used, Klebanoff never objected. She said that she had received .several letters from Klebanoff, one of which stated that if she had paid him more she would have had a better defense, but.she could not produce that letter. She said that Klebanoff did not use the witnesses who were willing to testify on her behalf, and she thought that if they had been used during the sentencing phase, she might have made a more favorable impression on the jury.
Greg Klebanoff testified that he had represented Rose, that he was aware that Rose had been given a portable breath test on the night she was arrested, and that she registered .17, which is more than twice the legal limit. He said that he did not bring up the test result during trial and did not move to suppress the first statement that she gave. He said Rose testified that she was intoxicated, hysterical, and upset. He said that he had thought about filing a motion to suppress based on intoxication, but he decided there was not much dispute about what had happened, and if he wanted a positive result for Rose, he would have to get it through jury nullification.
Klebanoff said that jury nullification requires sympathy, and he thought her first statement showed that she was confused, distressed, and intoxicated, and the jury would have sympathy for her. He said that he supposed Rose could have added input on selecting the jury, but he had never had his clients participate in jury selection. He said that he did not object when the word “victim” was used and did not move for a mistrial because a Rmistrial is a drastic remedy, and a bench instruction to disregard is normally sufficient. He said that objecting to something that was prohibited would call more attention to it. He also said that he did not think the text message that Rose was welcome in Vaught’s home at any time was important because it was superfluous. He said that Rose’s character had been called into question, and he did not call the witnesses because he knew that Rose had assaulted her ex-husband with a gun. Klebanoff thought that calling the character witnesses that Rose had referred to would have opened the door for the State to bring out that in 2003 she had chased her husband through the woods with a deer rifle, shooting at him.
After taking the petition under advisement at the conclusion of the hearing, the trial court denied Rose’s petition and filed its findings of fact and conclusions of law on August 30, 2016. The trial court stated in each of its conclusions of law that Rose had shown neither deficient performance of counsel nor actual prejudice to her case as required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A notice of appeal was timely filed on September 26, 2016, and this appeal followed, wherein Rose argues that the trial court erred in denying her petition for Rule 37 relief based on ineffective assistance of her counsel.
We do not reverse the denial of postconviction relief unless the circuit court’s findings are clearly erroneous. Conley v. State, 2014 Ark. 172, 433 S.W.3d 234. A finding is clearly erroneous when, although there is evidence to support it, after reviewing the entire evidence, we are left with the definite and firm conviction that a mistake has been committed. Id. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. Id.
|fiOur standard of review also requires that we assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland, supra. Conley, supra. In asserting ineffective assistance of counsel under Strickland, the petitioner must first demonstrate that counsel’s performance was deficient. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Id. The reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. The defendant claiming ineffec tive assistance of counsel has the burden of overcoming that presumption by identifying the acts and omissions of counsel which, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Id.
Second, the petitioner must show that the deficient performance prejudiced the defense, which requires a demonstration that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Conley, supra. This requires the petitioner to show that there is a reasonable probability that the fact-finder’s decision would have been different absent counsel’s errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.
Unless a petitioner makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. We also recognize that “there is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an 17insufficient showing on one.” Anderson v. State, 2011 Ark. 488, at 3-4, 385 S.W.3d 783, 787 (quoting Strickland, 466 U.S. at 697, 104 S.Ct. 2052). The concept of cumulative error is not recognized in Rule 37.1 proceedings when assessing whether a petitioner was afforded effective assistance of counsel. Bryant v. State, 2013 Ark. 305, 429 S.W.3d 193 (per curiam); State v. Hardin, 347 Ark. 62, 60 S.W.3d 397 (2001) (holding that it was reversible error for the trial court to consider cumulative error in assessing claims of ineffective assistance of counsel).
First, Rose claims that her trial counsel was ineffective for failing to file a motion to suppress the first statement she gave to police because she was intoxicated when she gave it. She cites Moore v. State, 2010 Ark. App. 771, 2010 WL 4637763, for the proposition that a custodial statement is presumptively involuntary, and the burden is on the State to prove that it was given voluntarily and was knowingly and intelligently made. She also cites Sparkman v. State, 373 Ark. 45, 281 S.W.3d 277 (2008), which held that the nature of a confession shows that the introduction of a videotaped statement at trial will likely, if not certainly, impact the outcome. Based on these cases, she argues that counsel’s failure to file a motion to suppress her statement was not proper trial strategy and led to her conviction because the prosecutor was able to attack her credibility. She claims that all strategic decisions must still be supported by reasonable professional judgment, Wicoff v. State, 321 Ark. 97, 900 S.W.2d 187 (1995), and there was no reasonable professional judgment here.
As the trial court noted in its rejection of Rose’s claim, failure to file a suppression motion is not ineffective assistance of counsel absent a showing that the motion was warranted and would have succeeded. Harrison v. State, 371 Ark. 474, 268 S.W.3d 324 (2007). At the Rule 37 hearing, Rose presented no testimony from a police officer ^regarding the circumstances of her statements and did not testify about her statements to police. Therefore, the trial court correctly ruled that Rose had not established that a suppression motion was warranted and would have succeeded.
Second, Rose claims that her trial counsel was ineffective for failing to introduce the text message she had received from Vaught that said she was welcome at his place any time. Her counsel said that he had seen no need to introduce it. Rose argues that the court of appeals relied on the fact that the message was not introduced, calling her statement that she had been given permission “self-serving.” See Rose, supra (referring to the text message, this court held that the jury was not required to believe Rose’s self-serving testimony, nor was it required to set aside its common sense and experience in reaching a verdict; as such, the jury could have reasonably found from the evidence that Rose no longer had a license or privilege to enter Vaught’s home on the night of the shooting, especially late at night when he was asleep). Rose acknowledges that an attorney’s decision not to call a witness is a matter of professional judgment and that the witness could have offered beneficial testimony is not proof of counsel’s ineffectiveness. See Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001). However, in Lee, the defendant told the trial court that he had discussed with his counsel his right to testify and the implications of that. Id. Here, Rose contends that there was no proof that counsel exercised proper professional judgment. See Wicoff, supra (all strategic decisions must still be supported by reasonable professional judgment).
Although the text message was not introduced into evidence, Rose testified to the text message, and Vaught testified that he did not require an explicit invitation for Rose to visit his home. Further, Rose’s counsel argued this point to the jury in closing arguments. |flRose has not shown how presenting cumulative testimony in the form of a text message would have created a reasonable probability of a different outcome at her trial. Feuget v. State, 2015 Ark. 43, 454 S.W.3d 734. Mere allegations that the jury would have been swayed by additional testimony are conclu-sory and will not support an assertion that counsel was ineffective. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992).
Further, in Arkansas, although one may hold a license or privilege to enter a home, he does not continue to have that privilege or license once he inflicts injury upon the owner. See Holt v. State, 2011 Ark. 391, 384 S.W.3d 498; Young v. State, 371 Ark. 393, 266 S.W.3d 744 (2007). Thus, Rose’s claim that she had a “license” is meritless, and counsel is not required to raise frivolous or meritless arguments to be effective. Cook v. State, 361 Ark. 91, 204 S.W.3d 532 (2005).
Third, Rose claims that her trial counsel’s failure to present witnesses on her behalf amounted to ineffective assistance. Our supreme court held as follows:
[T]he decision of trial counsel to call a witness is generally a matter of trial strategy that is outside the purview of Rule 37.1. Nelson v. State, 344 Ark. 407, 39 S.W.3d 791 (2001). Trial counsel must use her best judgment to determine which witnesses will be beneficial to’ her client. Id. When assessing an attorney’s decision not to call a particular witness, it must be taken into account that the decision is largely a matter of professional judgment that experienced advocates could endlessly debate. The fact that there was a witness or witnesses who could have offered testimony beneficial to the defense is not in itself proof of counsel’s ineffectiveness. Id. Nonetheless, such strategic decisions must still be supported by reasonable professional judgment. Id. Even if a decision proves unwise, matters of trial tactics and strategy are not grounds for postconviction relief. Id.
Banks v. State, 2013 Ark. 147, at 4.
Rose argues that by failing to present witnesses it appears the defense just threw away all defenses. She contends that because she included it in her amended petition and the | inprosecutor agreed what the testimony would be at the hearing, it is known what the witnesses’ testimony would have been. Their testimony would have shown her state of mind on the night of the incident, given justification for her conduct, and given evidence of motivation for such conduct, lending weight to her credibility. She claims that they could have testified at either the guilt or penalty stages, and the failure to call them shows counsel’s abandonment and was not reasonable or professionally justified.
The State contends that Róse has expanded her argument that counsel was ineffective for failing to call these alleged character witnesses to include allegations that all of the witnesses could have testified about the alleged sexual assault of Rose’s daughter and how that assault had affected Rose’s state of mind on the day in question. She also newly asserts that the witnesses could have provided justification for her conduct. These expanded arguments are not preserved for appeal. See Williams v. State, 2012 Ark. App. 310, 420 S.W.3d 487.
At the Rule 37 hearing, counsel stated that he did not present character testimony because he successfully had moved in limine to exclude several instances of Rule 404(b) conduct and was fearful that, by presenting character evidence, he would be opening the door for questioning on the excluded evidence. Ark. Rule of Evid. 404(b) (2016). This was a reasonable exercise of professional judgment by trial counsel. See Echols v. State, 354 Ark. 530, 127 S.W.3d 486 (2003) (decision not to cross-examine witness for fear of opening door to the trial court’s changing its ruling excluding evidence was an exercise of reasonable professional judgment).
lnFourth, Rose argues that counsel failed to prepare a defense because they met three times prior to trial, and his desire to be done with the case created a conflict of interest that adversely affected his performance and rendered his assistance ineffective. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (conflict of interest at issue was one lawyer representing multiple clients). However, a claim that counsel did not meet often enough with petitioner is not a sufficient ground for ineffective assistance of counsel. Dansby v. State, 350 Ark. 60, 84 S.W.3d 857 (2002). Further, as the trial court indicated in its order, Rose failed to demonstrate what additional information would have been discovered with more meetings and that the information would have changed the outcome of trial. Conclu-sory statements cannot, be the basis for postconviction relief. Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783.
Fifth, Rose contends that counsel’s failure to include her in voir dire and to conduct proper jury selection rendered his assistance ineffective. She cites Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), and United States v. Gordon, 829 F.2d 119 (1987), for the proposition that a defendant’s presence at voir dire is substantially related to his defense because it allows him an opportunity to give advice or suggestions to his lawyers. Rose argues that her counsel clearly violated these tenets when he failed to involve her in the selection of the jury.
To prevail on an ineffeetive-assis-tance-of-counsel claim with regard to jury selection, a petitioner must first overcome the presumption that jurors are unbiased. Wheeler v. State, 2015 Ark. 233, 463 S.W.3d 678. Counsel admitted that he did not include Rose in the jury-selection process, but Rose did not establish that this practice amounted to deficient | ^performance or that she was prejudiced by this failure. The trial court found that Rose failed to raise any concerns about any of the jurors as they were being se lected. Thus, Rose has failed to establish deficient performance or prejudice.
Affirmed.
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RAYMOND R. ABRAMSON, Judge
1 Appellants Brooke Ann Haney and Wayne Norred appeal a Calhoun County Circuit Court order adjudicating their infant daughter, A.N.2, dependent-neglected. On appeal, appellants challenge the circuit court’s findings and argue that they are clearly erroneous. We agree and reverse the circuit court.
Appellants have had an open dependency-neglect case with the Arkansas Department of Human Services (DHS), Division of Children and Family Services (DCFS) since October 2, 2015. DCFS initially removed siblings R.N. and B.N. from the home after another sibling, three-year-old A.N.1, died after drowning in a washing machine. R.N. and B.N. Lwere then adjudicated dependent-neglected because of A.N.l’s death, and appellants were required to submit to services. The adjudication of R.N. and B.N. as dependent-neglected was not appealed.
On July 5, 2016, the circuit court held a review hearing and issued an order in regard to A.N.2, who was in útero. The court and the parties were aware that Brooke was going to return to Louisiana, where her family resided, to give birth. The court verbally ordered appellants to surrender A.N.2 to DHS upon her birth or as soon as they were discharged from the hospital and could return to Arkansas. The court memorialized its directives in a written order, but that written order had not been entered at the time of A.N.2’s birth on August 25, 2016.
When A.N.2 was born in Louisiana, Brooke informed her doctor about the open case and circumstances surrounding the birth and also asked the hospital to call the child-services agency for the State of Louisiana. The agency (OCS) came to the hospital on Friday, August 26, to talk to Brooke, and Brooke gave them the number for her Arkansas caseworker, Bettye Farmer. Brooke also tried to call Farmer on Sunday, August 28, after being discharged. Because the Louisiana agency could not get in touch with Farmer before Brooke and A.N.2 were discharged, the state believed it needed to take custody of A.N.2 even though Brooke was directed to return to Arkansas and surrender her.
On August 30, 2016, Arkansas DHS filed a petition for an ex parte emergency order for protection of A.N.2 from immediate danger, acknowledging that a report of child maltreatment had been turned in to Livingston Parish, Louisiana, due to “concerns that the newborn had siblings in the custody of the Arkansas DCFS.” DHS further alleged that “per | ¡¡court order on 8-2-16 Calhoun County DCFS is ordered to take custody of this infant after she is born.” The same day, the court granted the petition and entered an ex parte emergency order for protection of A.N.2 from immediate danger. On August 31, 2016, Louisiana OCS turned over custody of A.N.2 to Arkansas DCFS, and on September 6, 2016, the court entered an order of emergency custody finding that custody was to remain with DCFS.
On September 6, 2016, the court held a probable-cause hearing and found probable cause to remove A.N.2 because appellants “failed to notify the Department when A.N.2 was born as this Court ordered.” Appellants argued that they were not directed to inform DHS of A.N.2’s birth, but only to surrender her upon discharge from the hospital. The court set the case for an adjudication hearing on October 4, 2016.
At the hearing, DHS asked the court to find A.N.2 dependent-neglected “as a matter of law” in that her siblings had already been determined to be dependent-neglected. Appellants responded that DHS had to demonstrate that A.N.2 was at substantial risk of serious harm. DHS caseworker Bettye Farmer was the only witness to testify on behalf of DHS at the hearing. Farmer testified that she believed A.N.2 was at substantial risk of serious harm because she was in the “same circumstances” as A.N.1. She also stated that appellants had always been cooperative with services and with DHS while the ease had been open on the two surviving siblings but that she did not believe there had been a “mindset change” because appellants maintained that A.N.l’s death had been an “accident” rather than an “accident that could have been prevented.”
LAs to the obligation of the appellants upon A.N.2’3 birth, Farmer testified that they were under a court order to notify DHS of her birth and to surrender her to Arkansas DCFS as soon as Brooke was able to return to Arkansas from Louisiana. Farmer believed there was some ill intent but never articulated exactly how or why.
Brooke testified on her own behalf. She clarified that she knew she was under a court order to surrender A.N.2 upon her return to Arkansas and that she had made her doctor in Louisiana aware of the situation even before delivering A.N.2. She testified that immediately after the birth, she had the hospital call Louisiana OCS and that she gave OCS Farmer’s phone number so the birth could be reported. She believed she had complied with the court’s order.
As to her “mindset,” Brooke readily acknowledged that “mistakes were made” when she had lain down to take a nap the day A.N.1 died. She said she felt responsible for it and had to live with it every day. She explained that she used the term “accident” in response to DHS “pushing it at” her like she had done something intentional. She 'testified that she and Wayne had completed all of the services,- including drug-and-alcohol screenings, all visitations, parenting classes, and individual and separate counseling, and that she continued to attend individual counseling even though the counselor was primarily for supportive services. ,
■ At the close of the hearing, the court made an oral finding that A.N.2 was dependent-neglected because Brooke believed that DHS had no reason to take her surviving children and “there’s been no change in mindset.” Appellants argue that it is unclear how Brooke’s | .¡unchanged feelings about her children being taken by the state demonstrate that A.N.2 would be at substantial risk of serious harm.
On January 4, 2017, the court entered a written order setting out the basis for adjudication. Specifically, the court found that
A.N.2 was born while her two siblings were in foster care and had not been returned to the custody of Brooke Haney. The Court noted there was discussion back at the hearing in July about A.N.2 being removed [upon her birth] and made orders at that hearing. Brooke Haney failed to act in the spirit of those orders. The Court finds A.N.2 is at substantial risk of serious harm because the parents still have family in Louisiana and the Court has no confidence that Arkansas DCFS would have been contacted about A.N.2’s birth if not for the ■state of Louisiana. This Court does not believe there has been a change in the mindset of the parents since last October, when these children’s sibling died.
In dependency-neglect cases,' our standard of review on appeal is de novo, and we defer to the circuit court’s- evaluation of the credibility of the witnesses, Maynard v. Ark Dep’t of Human Servs., 2011 Ark. App. 82, 389 S.W.3d 627. We do not reverse the circuit court’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Figueroa v. Ark Dep’t of Human Servs., 2013 Ark. App. 83, 2013 WL 548916. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a, mistake has been made. Id,
Adjudication hearings are held to determine whether the allegations in a petition for dependency-neglect are substantiated by the proof. Ark. Code Ann. § 9-27-327(a)(1) (Repl. 2015). Dependency-neglect must'be established by a preponderance of the evidence. Ark. Code Ann. § 9-27-325(h)(2)(B). Arkansas Code Annotated section 9-27-303(18)(A) defines a dependent-neglected juvenile as any juvenile who'is at substantial risk of serious harm as a result of the following acts or omissions to the juvenile, a sibling, or another juvenile:
|fi(i) Abandonment;
(ii) Abuse;
(iii) Sexual abuse;
(iv) Sexual exploitation;
(v) Neglect;
(vi) Parental unfitness; or
(vii) Being present in a dwelling or structure during the manufacturing of methamphetamine with the knowledge of his or her parent, guardian, or custodian.
This court has addressed this issue in- several cases and almost always affirms the circuit court’s decision to adjudicate the minor dependent-neglected. However, our court has always emphasized that it is the particular facts of the case that give rise to the affirmation of the circuit court’s dependency-neglect findings, and not due solely to the status of older siblings. Here, that is exactly what the■■ circuit court found—that A.N.2 was dependent-neglected because “we have two other children that were removed from Ms. Haney, which triggered this thing [and] the discussion back in July that it would be necessary to remove the infant because of that triggering situation.”
The fact that the circuit court entered an order to remove A.N.2 even before she was born demonstrates that the court had no intention of assessing the level .of risk posed to her at the time of birth, but instead concluded long before her birth that she needed to be removed solely because her siblings were in DHS’s care. The circuit court also focused on appellants’ “mindset.” However, “mindset” alone is not a basis for adjudication. There was no testimony to explain how A.N.2 would be in the same situation as A.N.I.
Appellants argue that they cannot change the circumstances that brought DHS into their lives a year before A.N.2’s birth and acknowledge that the tragedy of the situation cannot be minimized. However, it is significant that there was no other evidence of a lack 17of vigilance by appellants toward their children either in the home or during the case, or a denial of responsibility regarding A.N.l’s death.
Accordingly, because there was no evidence presented to support the circuit court’s finding that A.N.2 would be at substantial risk of serious harm in her parents’ care, the determination was clearly erroneous. Consequently, we reverse.
Reversed.
Gruber, C.J., and Harrison, J., agree.
. Prior to A.N.2’s birth.
. The record reflects that Brooke lay down for a nap with the children and fell asleep; while Brooke was sleeping, A.N.l woke up, entered the washing machine, and drowned.
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ROBERT J. GLADWIN, Judge.
| Appellant Sonya Nate Mooney was convicted by a Craighead County jury on April 18, 2008, of first-degree murder and was sentenced to 420 months’ imprisonment in the Arkansas Department of Correction. She contends on appeal that there was not sufficient evidence to sustain a conviction of first-degree murder, that the trial court erred in allowing testimony of witnesses who had violated Arkansas Rule of Evidence 615 (2008), and that the trial court erred in failing to admonish the jury regarding comments made by defense counsel during closing arguments. We affirm.
Appellant was charged by information filed on April 11, 2006, with the capital murder of Veronica Jenkins on March 22, 2006. A mistrial was declared during the trial held August |¡>6-8, 2007, when jury members were exposed to news reports bearing on crucial elements of the case. However, during the first trial, Kristie Kidd and Patrick Kidd, husband and wife, testified on behalf of the State. Gladys Jenkins did not testify during the first trial, but remained in the courtroom during the trial and was not subject to the Rule.
At the trial held in April 2008, the State’s witnesses testified that appellant and Ms. Jenkins had been arguing via the telephone for several days leading up to the incident. Ms. Jenkins believed that appellant was stealing her boyfriend, with whom Ms. Jenkins had children. Ms. Jenkins had been staying several nights with her cousin, Kristie Kidd, because she had been evicted from her apartment in Jones-boro. The testimony was that appellant contacted several people, including Kristie Kidd and a probation officer in Jonesboro, in order to stop the telephone calls from Ms. Jenkins. Appellant testified that Ms. Jenkins had harassed her, threatened to harass her children, and followed her from her home.
On the day in question, appellant agreed to meet Ms. Jenkins at a park near the Kidds’ home. As Ms. Jenkins walked out the door, followed by Patrick Kidd, appellant was pulling up to the front of the Kidds’ house. Appellant and Ms. Jenkins met on the driveway and an ^altercation began. A neighbor reported witnessing appellant immediately strike Ms. Jenkins, who fell back. Ms. Jenkins said, “She cut me,” when she fell. Appellant offered to assist, but was told by the Kidds to leave. Appellant called 911 twice in order to get help to Ms. Jenkins. Appellant claimed that she did not intend to kill Ms. Jenkins, but only wanted to settle the dispute between them.
The defense moved for a directed verdict, arguing that the State failed to meet its burden of proof for capital murder, first-degree murder, second-degree murder, or manslaughter. The trial court denied the motion. The trial court also denied the directed-verdict motion when it was renewed at the end of the defense’s case. During closing arguments, after defense counsel outlined in detail his argument for the jury to find appellant not guilty, he made the following statement to the jury:
You are not fourteen people too stupid to get out of jury duty. You were not the fourteen with back problems. Now, when you look out there-and you-all have been here all week — there’s nobody here. You have family, a couple people that work here, people that are lost probably, a lawyer waiting to get the judge to sign an order during one of the breaks, but there’s not a big lot of excitement here. Nobody cares. I mean really, nobody cares. That’s why you’re here. [I mean, we care and I just want to thank you for Sonya.]
Appellant was found guilty of first-degree murder and sentenced to 420 months’ imprisonment. This appeal followed.
Sufficient evidence of intent
|4Directed-verdict motions are treated as challenges to the sufficiency of the evidence. Saulsberry v. State, 81 Ark. App. 419, 102 S.W.3d 907 (2008). The test for determining sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial; substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). Evidence is viewed in the light most favorable to the State; only evidence that supports a verdict is considered. Clements v. State, 80 Ark.App. 137, 91 S.W.3d 532 (2002). When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it. Saulsberry, supra. Decisions regarding the credibility of witnesses are for the trier of fact. Robinson v. State, 353 Ark. 372, 108 S.W.3d 622 (2003). The fact finder is not required to believe any witness’s testimony, especially the testimony of the accused, because he is the person most interested in the outcome of the trial. Winbush v. State, 82 Ark.App. 365, 107 S.W.3d 882 (2003). We do not weigh the evidence presented at trial nor do we weigh the credibility of the witnesses. Polk v. State, 82 ArkApp. 210, 105 S.W.3d 797 (2003).
Appellant contends that the trial court erred in failing to grant her motion for directed verdict because the State did not prove with sufficient evidence the requisite intent necessary to support a conviction for first- or second-degree murder. First-degree murder requires that the jury find that it was appellant’s purpose to cause Ms. Jenkins’s death or to purposely | ¿engage in conduct to cause such a result. Ark.Code Ann. § 5-10-102 (Repl.2006). “Purposely” is defined as a person’s conscious object. Ark.Code Ann. § 5-2-202 (Repl.2006). Second-degree murder re quires that the perpetrator cause the death knowingly. Ark.Code Ann. § 5-10-103 (Repl.2006). “Knowingly” is defined as a result of the person’s conduct when he is aware that it is practically certain that his conduct will cause the result. Ark. Code Ann. § 5-2-202.
Because there is no direct evidence of appellant’s intent, it must be proved by circumstantial evidence that is of sufficient weight so as to exclude every other reasonable hypothesis consistent with innocence. See Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000). Appellant argues that neither the fact that she had a knife in her possession at the time of the altercation, nor the killing itself, infer intent, citing Palmare v. State, 29 Ark. 248 (1874). In Palmare, our supreme court determined that the jury should hear evidence of defendant’s state of mind prior to the victim’s death in order to determine defendant’s intent.
Appellant argues that she had received threats from Ms. Jenkins. She testified that, during that time, she began carrying a knife or mace. She claims, therefore, that even though she had the knife with her at the time of the altercation, that does not imply intent to injure or kill Ms. Jenkins. Appellant contends that intent may be inferred by all the facts and circumstances surrounding the killing, including the type of weapon used, the manner in which the weapon was used, the nature, extent and location of the wounds, and the conduct |fiof the parties. See Davis v. State, 365 Ark. 634, 232 S.W.3d 476 (2006) (sufficient evidence of intent where witnesses saw Davis go to his car, return with a gun, and shoot the victim three times at close range); Porter v. State, 358 Ark. 403, 191 S.W.3d 531 (2004) (sufficient evidence of intent where witnesses saw Porter shoot a Walmart employee in the back of the head, step over the victim, laugh, and say, “Now you know I’m not playing ... that mother f- hurting now.”); Smith v. State, 337 Ark. 239, 988 S.W.2d 492 (1999) (sufficient evidence of intent finding where defendant chose to use a sawed-off shotgun rather than a .22-caliber pistol he was carrying, and said, “Do you want me to shoot you too? You want some too?”); Booker v. State, 335 Ark. 316, 984 S.W.2d 16 (1998) (sufficient evidence of intent where defendant broke into victim’s home, waited until she arrived, raped her, and stabbed her with knife and scissors from the house); Green v. State, 51 Ark. 189, 10 S.W. 266 (1889) (sufficient evidence of intent to kill where men took the victim from his hotel room to whip and beat him, resulting in multiple broken bones, severe cuts and lacerations, and a fractured skull).
Appellant claims that the circumstances surrounding the altercation with Ms. Jenkins, and continuing through the time of her arrest, are relevant to the issue of her intent. She claims that evidence that the victim provoked the killer is another circumstance that goes to the question of the killer’s intent. See Simmons v. State, 227 Ark. 1109, 305 S.W.2d 119 (1957) (where our supreme court held that, in view of evidence of disagreements, threats, and 17provocation, evidence was insufficient to establish premeditation and deliberation necessary to sustain conviction for first-degree murder but would support conviction for murder in the second degree).
Appellant claims that the evidence was that beginning in October 2005, she was being harassed and stalked by Ms. Jenkins. Ms. Jenkins was angry over a relationship between appellant and the father of Ms. Jenkins’s children. Appellant grew cautious of Ms. Jenkins as the calls increased and became more threatening. Appellant began carrying a knife or mace for pi’oteetion. On March 21, 2006, the day before the incident, appellant called the parole officer hoping to get Ms. Jenkins to leave her alone. She met with Ms. Jenkins’s boyfriend and told him to leave her alone. Ms. Jenkins called appellant around 10:20 p.m. indicating that she wanted to talk and settle things civilly.
The following day, after a morning of being stalked by Ms. Jenkins, the women agreed to meet at the park. Ms. Jenkins and appellant talked on the Kidds’ home telephone immediately prior to the incident. The Kidds believed that Ms. Jenkins was going out to meet appellant to fight. When Ms. Jenkins left the house, she was carrying her purse and keys. Mr. Kidd was outside when appellant and Ms. Jenkins met.
Appellant claimed that when the fight began, the knife she had been carrying fell out of her pocket. Appellant claimed that Ms. Jenkins was saying, “Bitch, you on my ground now. You done fd up I’ll shoot you,” and Mr. Kidd was encouraging the fight. Appellant | ^claimed she saw a gun in Ms. Jenkins’s unzipped purse. Appellant said that she reacted to Ms. Jenkins’s advances with stabbing motions, figuring if she tried to get away Mr. Kidd or Ms. Jenkins would just shoot her. When she saw blood on Ms. Jenkins’s shirt, Ms. Jenkins fell. Appellant offered help, but was told to leave. Appellant called the 911 operator two times. Ms. Jenkins’s purse had been removed from the scene by the time police arrived. Ms. Kidd testified that she moved the purse after police arrived. Appellant turned herself into the police, not knowing that Ms. Jenkins had died.
Based on these facts, appellant claims that she believed she was in danger from Ms. Jenkins. She argues that the reasonableness of her belief must be judged by the circumstances as they appeared to her at the time. Brockwell v. State, 260 Ark. 807, 545 S.W.2d 60 (1976). Appellant claims that, even though she had a knife with her, she had no intention of using it to injure, let alone kill, Ms. Jenkins. She argues that the surrounding circumstances compelled her to carry a knife for her protection. She claims that although the circumstances surrounding the altercation between her and Ms. Jenkins may have created a suspicion that she purposely or knowingly killed or intended to injure Ms. Jenkins, they did not compel that conclusion. See Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984) (where ownership of a van found in a storage unit rented by someone else, which contained drug manufacturing paraphernalia and trace drugs, plus evidence that appellant purchased chemicals, sufficient to create suspicions but not to compel conclusion that owner manufactured drugs). Appellant |aargues that the State did not present substantial evidence to support its contention that appellant intended, either knowingly or purposely, to kill or injure Ms. Jenkins. She contends that the circumstantial evidence was not sufficient to exclude every other reasonable hypothesis consistent with innocence.
The State contends that the two-inch-deep stab wound that severed an artery in Ms. Jenkins’s neck was more than bad luck. The doctor who performed the autopsy testified that there were other knife wounds present on the victim’s body that were consistent with contemporaneous defensive wounds. Appellant testified that she had a knife on her person and that she made stabbing motions at the victim, only stopping when she noticed blood on the victim’s shirt. Apparently the jury rejected appellant’s justification argument.
There is no dispute that appellant drove to the address where the victim was staying, confronted her in the driveway of the residence, and, in the ensuing altercation, stabbed her with a knife. A person is presumed to intend the natural and probable consequences of one’s actions. Leaks v. State, 345 Ark. 182, 45 S.W.3d 363 (2001). Here, it was readily apparent that there was animosity between appellant and the victim. Further, appellant made the decision to arm herself with a deadly weapon, Le., a knife, and, in an ensuing altercation, certainly had the purpose to use the knife against the victim. Only one stab, among others, was sufficient to cause the death of the victim and it is also sufficient evidence on which the Injury could consider appellant’s intent. Thus, we hold that the trial court correctly denied appellant’s motion for directed verdict.
Arkansas Rule of Evidence 615
The Arkansas Supreme Court had the occasion, in Blaylock v. Strecker, 291 Ark. 340, 724 S.W.2d 470 (1987), to examine Arkansas Rule of Evidence 615 and to address its operation and application exhaustively. There, the court held that a trial court has very narrow discretion to exclude the testimony of a witness for noncompliance with an exclusion order pursuant to Rule 615. A trial judge can exercise that narrow discretion to exclude a witness’s testimony only when the noncompliance is had with the consent, connivance, or procurement of a party or his attorney. Id. The violation by a witness of the rule of sequestration through no fault of, or complicity with, the party calling him, should go to the credibility rather than to the competency of the witness. Id.
Appellant argues that the trial court erred in allowing Kristie Kidd, Patrick Kidd, and Gladys Jenkins to testify about the contents of Veronica Jenkins’s purse on the day of the altercation where there were violations of Arkansas Rule of Evidence 615. Their testimony was related to the issue of appellant’s intent, as it directly related to her perception that she was in danger. This perception of danger was a key element of her defense.
Rule 615 expressly provides that “the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses.” We have stated that the purpose of Rule 615 |nis to expose inconsistencies in the testimonies of different witnesses and “to prevent the possibility of one witness’s shaping his or her testimony to match that given by other witnesses at trial.” King v. State, 322 Ark. 51, 55, 907 S.W.2d 127, 129 (1995) (quoting Fite v. Friends of Mayflower, Inc., 13 Ark.App. 213, 682 S.W.2d 457 (1985)).
Appellant argues that there is no dispute that Ms. Jenkins left the house with her purse and placed it on the ground with her keys prior to meeting up with appellant. Appellant testified that she saw the purse, unzipped, on the ground with a gun in it, and believed Ms. Jenkins was going to use that gun on her. The purse then disappeared from the scene. Ms. Kidd testified that she removed the purse after police arrived. The Kidds indicated that the purse was taken into the house to protect a small amount of cash it contained. Kristie Kidd and Gladys Jenkins denied there was any gun in the purse.
Patrick Kidd testified about the purse at the first trial. When the prosecutor wanted to recall Kristie Kidd about the purse, Ms. Kidd admitted to talking to her husband about the purse after he testified. The prosecutor also said he would be calling Gladys Jenkins, Ms. Jenkins’s mother, even though she had been in the courtroom throughout the first trial and heard Patrick Kidd testify about the purse. Defense counsel objected to both witnesses pursuant to the Rule. However, a mistrial was declared for other reasons before the trial court ruled on the Rule 615 objection. Appellant contends that Kristie Kidd never testified about 1 iathe purse until after she had spoken with her husband in violation of the Rule. She was able to conform her testimony to match her husband’s, thereby prejudicing appellant.
Further, Gladys Jenkins was allowed to testify, even though she heard Mr. Kidd’s testimony regarding the purse during the first trial. She was then able to conform her testimony to that given by Mr. Kidd. Appellant contends that this compounded the prejudice to her. See Solomon v. State, 323 Ark. 178, 913 S.W.2d 288 (1996) (where court remanded for a new trial when the Rule had been invoked, but victim’s three daughters were allowed to remain in the courtroom, giving them the opportunity to shape their testimonies to match other witnesses). Because the jury had to base its judgment regarding appellant’s intent on conflicting testimony, she asks for a new trial.
Our supreme court analyzed an issue under Rule 615 in Swanigan v. State, 316 Ark. 16, 20, 870 S.W.2d 712, 714 (1994):
In the Blaylock opinion, we cited Norris v. State, 259 Ark. 755, 536 S.W.2d 298 (1976), and Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975), for the controlling rationale regarding the rarely exercised discretion to exclude testimony for noncompliance with Rule 615. We stated that, with the offending witness subject to punishment for contempt and the adverse party free to raise the issue of credibility in argument to the jury, the party who is innocent of the rule’s violation should not ordinarily be deprived of the testimony.
The standard of narrow discretion, we noted in Blaylock v. Streaker, “remains as it has been for many years.” 291 Ark. at 345, 724 S.W.2d at 473. We have not changed our stance in subsequent decisions, nor do we see any reason to change it now. See Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992); Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (1988); Daniels v. State, 293 Ark. 422, 739 S.W.2d 135 (1987).
113There are three possible methods of enforcement of an exclusion order that are available to a trial judge: (1) citing the witness for contempt; (2) permitting comment on the witness’s noncompliance in order to reflect on his credibility; and (3) refusing to let the witness testify. Blaylock v. Strecker, supra.
The State contends that the trial court chose a viable option that was cited in defense counsel’s brief on the issue. The State claims that this is at least a tacit admission that such a remedy was proper. Further, the trial court’s explanation encompasses the fact that, while Kristie Kidd had talked to her husband, Patrick Kidd, about the purse, he had already testified in the prior trial. In the retrial, appellant also had the advantage of cross-examining both the Kidds regarding the location of the purse as well as any discussion they may have had regarding the purse. Therefore, defense counsel was given wider latitude to make a point regarding the gun. We hold that the trial court did not abuse its discretion in choosing a proper alternative as set forth in our case law above.
The State claims that defense counsel did not try to exclude Gladys Jenkins from testifying at the retrial. Defense counsel did not object to her testimony and did not cross-examine her with regard to any conversations she may have had with other witnesses. A party is bound by the scope and nature of his objection, and he cannot change the grounds on appeal. See Tester v. State, 342 Ark. 549, 30 S.W.3d 99 (2000). Accordingly, we affirm the trial court as to both of appellant’s objections under Rule 615.
Failure to admonish the jury
We will not reverse the action of a trial court in matters pertaining to its control, supervision, and determination of the propriety of arguments of counsel in the absence of 114manifest abuse of discretion. Cook v. State, 316 Ark. 384, 872 S.W.2d 72 (1994). Generally, such an error may be cured by a remedial instruction from the court. Id. Closing remarks that require reversal are rare and require an appeal to the jurors’ passions. Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996). Furthermore, the trial court is in the best position to evaluate the potential for prejudice based on the prosecutor’s remarks. Bullock v. State, 817 Ark. 204, 876 S.W.2d 579 (1994).
We have stated many times that the trial court is given broad discretion to control counsel in closing arguments, and we do not interfere with that discretion absent a manifest abuse of discretion. See, e.g., Tryon [v. State, 371 Ark. 25, 263 S.W.3d 475 (2007)]; Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999); Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996). “Although it is not good practice for counsel to inject them personal beliefs into the closing arguments, mere expressions of opinion by counsel in closing argument are not reversible error so long as they do not purposely arouse passion and prejudice.” Neff v. State, 287 Ark. 88, 94, 696 S.W.2d 736, 740 (1985). Furthermore, the trial court is in the best position to evaluate the potential for prejudice based on the prosecutor’s remarks. Tryon, supra; Leaks, supra.
Jefferson v. State, 372 Ark. 307, 321, 276 S.W.3d 214, 225 (2008).
Appellant contends that the trial court erred in failing to admonish the jury regarding comments made during closing arguments, which prejudiced her. Appellant argues that defense counsel’s comments during closing arguments implying that nobody cares was objectionable. However, no one was there to object on behalf of appellant. She claims that the prosecutor capitalized on defense counsel’s comments, reiterating that it was up to the jury to prove that someone cared. The combination of improper statements from both sides, without any intervention from the trial court to minimize the impact on the jury, resulted in a severe prejudice to appellant. She claims the inappropriate remarks were likely to inflame 11sthe jury’s passions thereby prejudicing them against the party that implied that they were too stupid to get out of jury duty. As a result, she argues that the case should be remanded for a new trial.
The State contends that the issue appellant complains of was not preserved for appellate review because it involves the actions of her defense counsel. Alternatively, she blames the trial court for failing to act on its own motion. It is clear that in the absence of an objection, an argument is not preserved for review. See Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). The trial coui't may have a duty to intervene only where the error is so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to intervene. Id. Here, the argument may have been improvident, but not the sort to require the trial court to intervene. Accordingly, we affirm.
Affirmed.
GLOVER and HENRY, JJ., agree.
. Arkansas Rule of Evidence 615 (2008), states as follows:
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.
. The last sentence of the quote was included in the supplemental abstract, but not the abstract supplied by appellant. | [
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ROBERT J. GLADWIN, Judge
hThe Faulkner County Circuit Court issued a divorce decree on October 21, 2016, denying permanent alimony to appellant Melissa Hundley Hays. On appeal, Melissa argues that the trial court abused its discretion by applying a public-policy argument to deny her request for permanent alimony. We affirm.
Appellee Jason Lee Hays and Melissa married on April 26, 2009, and no children were born of the marriage. Jason filed for divorce on March 17, 2016, and Melissa counterclaimed for separate maintenance, alleging that she was disabled, unable tó work, and had not worked during their marriage. Melissa sought temporary and permanent alimony, and she later amended her counterclaim to ask for a divorce. At the divorce trial, the parties stipulated that Melissa would be granted the divorce on her amended counterclaim, and Jason waived corroboration of grounds. The parties further stipulated that the home in which they had lived was Melissa’s premarital property.
12Janet Lee Hundley, Melissa’s mother, testified that her daughter is thirty-six years old and previously had only two short-term jobs, at Walmart and a veterinarian’s clinic, but she had not worked since she married Jason. Ms. Hundley said that Melissa and Jason had been together for seventeen years but had been married for only seven years. She said that Melissa is a visual learner and has an “information processing malfunction.” She said that when Melissa gets upset or gets “thrown” about something, she “just shuts down. She cannot function. She suffers from severe anxiety.” She said that Jason knew about Melissa’s disabilities, and she had explained to him that when Melissa mixes up her sentences, it is because of her learning style. She said that Melissa had done some light filing and copying under supervision for the family firm; however, she said that these skills would not translate into real-world jobs.
Ms. Hundley said that Melissa does not drink but that Jason does. Ms. Hundley said that Melissa takes medication for anxiety and that there were times, when Melissa and Jason were fighting, that she believed Melissa had overmedicated herself. She claimed that she had not seen this since Melissa and Jason had separated.
Ms. Hundley said that Jason had a new vehicle that he had purchased by trading in a truck that had been a gift to Melissa from her and her husband. She also described the condition of Melissa’s home when Jason left: it had paint all over the ceiling and carpet where Jason had begun to paint; there were holes in the wall; the cabinet doors were loose; electrical covers were broken; the dishwasher had no door; and there was only cold water connected to the washer.
IsOn cross-examination, Ms. Hundley said that Melissa could drive and that she had passed a driver’s test when she was seventeen. Melissa had gone to college for a year but could not make her “grades,” even with her mother’s tutoring. Ms. Hundley had not witnessed Melissa overmedicating since her separation from Jason, but she admitted that she had' not been with Melissa all the time. She also said that Jason had emailed her about concerns he had regarding Melissa’s overmedication. Jason had specifically asked Ms. Hundley to help him with this more than once. However, she said that she does not believe Melissa has a problem overusing prescription medications anymore. She admitted to having'asked Jason in a 2016 email to hide Melissa’s pills.
Ms. Hundley said that Jason had paid the mortgage payments on Melissa’s house but had not kept the house in good repair. She also said that because of her health issues, Melissa spent her time'playing video games, watching movies, and cleaning her house. She thought Melissa spent two or three hours per day playing video games. She said that- Melissa drove her car for grocery shopping, getting to Little Rock, or going to the doctor. She said that she trusted Melissa to deal with her doctors and to take her medications. She said that Jason would not go to couple’s counseling with Melissa in 2014, when Jason had filed for divorce the first time. After they had reconciled, Jason promised to be calmer with Melissa, and Melissa promised to find a job. She said that she had helped Melissa fill out application forms online, but Melissa could not find á job. She also had helped Melissa fill out a Social Security disability application, but Melissa’s application was denied.
Jason testified that he had paid the mortgage on the house when he was living with Melissa. He also admitted that he had caused the damage to the home depicted in | ¿photographs presented as evidence. He said that he knew of Melissa’s information-processing problem and had seen the effects of it. He said that when they had a conversation about uncomfortable things, Melissa would shut down. He said that Melissa has trouble, getting her point across and she mixes her words up in her sentences. He claimed that Melissa had always had these problems but that they had worsened.
Before he married Melissa in 2009, he had been with -her for twelve years. He was aware of her two small jobs and that they had not lasted. He said that Melissa had agreed to get a job after they married in 2009. However, from the time they were married, Melissa had never worked. He said that he thought Melissa could be a stocker at Kroger and that she wanted a job where she did not have to deal with people and could work on her own. He thought that she presented well and that someone would hire her.
Jason said that he drank to excess sometimes and that Melissa did not drink; He said that he has a girlfriend named Susan Lambert, who is unemployed, and that he does not support her. He said that Melissa was covered by health insurance through his employer. He agreed that.he had contributed more than $2000. a month to Melissa before June 2016,- However, he said that he had resisted paying spousal support because he thought Melissa needed to have something to do, and if he continued “to feed that,” he was worried for her health and safety. Jason said ,that he worked as, a conductor for Amtrak and suffered from PTSD because a girl had stepped in front of his train while he was training as an engineer. He also had injured his arm- in April 2015 and was off work for seven and a half months. Recently, he had been working two jobs to cover for another conductor, so he had been able to contribute more to Melissa. He thought that if Melissa could get a job, she could | ¿support herself. He paid $10,000 down on his new truck by trading in the 2013 truck he had owned with Melissa. They got the 2013 truck by trading in her truck to make the $1000 down payment. He owed $28,000 on his new vehicle.
On cross-examination, Jason said that Melissa played Dictionary and Trivial Pursuit and that she played video games that required complex thought. He said that these games took dexterity and that she was better- at them than he. Because of this, he thought she could hold down a menial, or higher-than-menial job. He had not seen any effort by Melissa in the last four to-five years to get a job. He said that Melissa-did not drink but did become intoxicated several. times a week when she took her medication. He said- that he had contributed money for Melissa’s care during, separation because he had not wanted her to struggle. He tried to keep Melissa’s bank account balance at $1000.
Melissa testified that Jason had been abusive by putting his hand on her and holding her to the ground. She had not worked since marrying Jason except to help her mother a little. She said that when they married, Jason told her he would take care of her and that she did not have to work. She said that she had difficulty communicating with people and understanding them. She had difficulty even getting on the phone. When Jason yelled at her, or if she did not understand something, she “just fold[ed].”
Melissa said that she saw a pain specialist for migraines and a psychiatrist for anxiety and depression. She said that she took naproxen for arthritis in her hands and hydrocodone for - headaches. Her psychiatrist had prescribed clonazepam and Zoloft. She said that when she had been with Jason, it may have looked like she was medicated, but she, had been | (¡depressed and “just falling apart.” When he left, she was “so much better and did not feel like [she] was out of it.”
Melissa said that she had played video games to escape from Jason’s abuse and it helped with her visual processing. She also cleaned her house, worked in the yard, and had applied for jobs at Target and Wal-mart. She had a high school diploma and a year and a half in college, where she struggled. She had no specialized training and zero income, and she was denied Social Security disability. She said it would cost $4000 to $7000 to repair her home. She also introduced a video containing a conversation between her and Jason in which he kept repeating, “Apply for a job.”
Melissa testified on cross-examination that she was asking for $1800 a month in alimony for life, She said that she was seventeen years old when they began dating, and Jason was twenty-six. Jason moved in with her and her parents and began attending ITT; her parents paid for everything. She denied having a problem with prescription drugs. She said that she did not think she could work “right now” and that she could play video games but not for long because her fingers would hurt.
On re-direct examination, Jason said that he had counted Melissa’s pills in the past and knew that she would run out of her pills two or three weeks before time to get a refill, especially the, clonazepam. He said that she took so much that she lost track of days and would be in a slump and a stupor when he would, get home. He. said he had tried to get her to go to rehab, but she had no interest in it, and he thought that she would overdose and kill herself. He said .he was not asking for any interest in: the house that she owned with her parents and that the Duncan Law Firm was handling their case over the oil spill in |7Mayflower. He also said that Melissa played video games in marathon sessions, five or six hours every day. He thought the pain in her hands was from holding the controller all day.
Regarding alimony, the trial court ruled from the bench as follows:
In doing my Franklin [v. Franklin, 25 Ark.App. 287, 758 S.W.2d 7 (1988) ] analysis, I think what I want to do in discussing permanent alimony is to discuss what this case is not. It is not a case where one spouse has sacrificed their dreams and desires to provide for the other spouse to achieve their goals. No career was sacrificed; there are no children of the marriage.
The parties have not become accustomed to living a lavish lifestyle. This is not a case where one party suffers some catastrophic injury that precludes them from doing anything.
If I were to completely believe Melissa’s version of events, then if this marriage had not occurred, she would still be living with her parents. -If I believe her version of events and if I deny spousal support, she would walk away in the exact same position that she entered the marriage.
You have to look at this from a procedural or from a policy standpoint. If we were to burden a spouse to be completely obligated to support his ex-spouse for conditions that spouse had when they entered into the marriage, we discourage marriage. I don’t know if “until death do us part” is still alive, but I want to still believe that everyone enters into marriage thinking that’s what’s going to happen. But if we are in a position that it is known that if you’re marrying someone who has special needs and abilities and you’re going to try to make that work but it doesn’t work, when the marriage dissolves you’re on the hook for life, it’s going to be a disincentive for those people to find marriage. I mean that’s something that will run through people’s minds. So, I cannot find that this is a case in which permanent alimony is justified.
The trial court granted the divorce, divided the portion of retirement accrued as a marital asset, and made Jason responsible for his debt and for his truck. Melissa was granted judgment of $5000 for the marital property used as a trade-in on the new truck. The trial court then awarded “bridged” alimony. The trial court considered that Jason had made mortgage payments on the house owned by Melissa, giving her a $9000 improvement value. The trial court directed that Jason pay Melissa $300 per pay period (biweekly) for nine |smonths, after which the payment would drop to $200 per pay period for an additional two months.
Melissa filed a timely notice of appeal, and this appeal followed. This court reviews cases involving alimony under the applicable law as follows:
Appeals of domestic-relations proceedings are reviewed de novo. Wadley v. Wadley, 2012 Ark. App. 208, at 2, 395 S.W.3d 411, 413. The decision to grant alimony lies within the sound discretion of the circuit court and will not be reversed on appeal, absent an abuse of discretion. Taylor v. Taylor, 369 Ark. 31, 34, 250 S.W.3d 232, 235 (2007). It should also be noted that the division of marital property and an award of alimony are complementary devices that a circuit court may employ to make the dissolution of the marriage financially equitable. Webb v. Webb, 2014 Ark. App. 697, at 3-4, 450 S.W.3d 265, 268-69. There can be no abuse of discretion, and a circuit court’s decision regarding these issues cannot be overturned unless it can be demonstrated that it exercised its discretion improvidently or thoughtlessly without due consideration. Smithson v. Smithson, 2014 Ark. App. 340, 436 S.W.3d 491.
An award of alimony is not mandatory but rather is discretionary, and the circuit court’s decision regarding any such award will not be reversed on appeal absent an abuse of that discretion. Smithson, supra. This court has recognized that a circuit court is in the best position to view the needs of the parties in connection with an alimony award. Id. The purpose of alimony is to rectify the economic imbalance in the earning power and standard of living of the divorcing parties, in light of the particular facts of each case. Id. The primary factors are the financial need of one spouse and the other spouse’s ability to pay, but other factors are the circumstances of the parties; the couple’s past standard of living; the value of jointly owned property; the amount and nature of the income, both current and anticipated, of both parties; the extent and nature of the resources and assets of each party; the amount of each party’s spendable income; the earning ability and capacity of both parties; the disposition of the homestead or jointly owned property; the condition of health and medical needs of the parties; and the duration of the marriage. Id. The need for flexibility outweighs the need for relative certainty in assessing alimony. Id. If alimony is awarded at all, it should be an amount that is reasonable under all the circumstances. Id.
Beck v. Beck, 2017 Ark. App. 311, at 8-9, 521 S.W.3d 543, 547-48 (quoting Nelson v. Nelson, 2016 Ark. App. 416, at 6-7, 501 S.W.3d 875, 880).
| nMelissa argues that the trial court abused its discretion by applying a public-policy argument concerning marriage to disabled persons in order to justify refusal of a permanent alimony award. She contends that the trial court’s decision was based on the court’s wanting to prevent those who marry disabled persons in the future from being “on the hook” to support their disabled spouses, regardless of promises made and reliance on those promises and the passing of years.
Melissa emphasizes that the purpose of alimony is to rectify any economic imbalance in the earning power and standard of living of the parties in light of the particular facts of the case. Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007). The primary factors to be considered are the financial need of one spouse and the ability of the other spouse to pay. Foster v. Foster, 2016 Ark. 456, 506 S.W.3d 808; Jones v. Jones, 2014 Ark. App. 614, 447 S.W.3d 599. Melissa also cites Franklin, supra, mentioned in the trial court’s ruling from the bench, which' lists possible factors for courts to consider in the award of alimony:
Among [the factors] are the financial circumstances of both parties, the financial needs and obligations of both the couple’s past standard of living, the value of jointly owned property, the amount and nature of the income, both current and anticipated, of both husband and wife, the extent and nature of the resources and assets of each that is “spendable,” the amounts which, after entry of the decree, will be available to each of the parties for the payment of living expenses, the earning ability and capacity of both husband and wife, property awarded or given to one of-the parties, either by the court or the other party, the disposition made of the homestead or jointly owned property, the condition of health and medical needs of both husband and wife, the relative fault of the parties and their conduct, both before and after separation, in relation to the marital status, to each other and to the property of one or the other or both, the duration of the marriage and even the amount of child support.
Franklin, 25 Ark.App. at 290-91, 758 S.W.2d at 8 (quoting Boyles v. Boyles, 268 Ark. 120, 124-25, 594 S.W.2d 17, 20 (1980)). However, Melissa contends. that these are secondary | infactors, and the primary factors are, the financial needs of one spouse and the other spouse’s ability to pay. Foster, supra.
Melissa argues that Jason demonstrated that he was able to contribute $1000 to $2000 a month for her living expenses and that she has no independent income. She contends that he has the means to continue to support his disabled wife and that she sorely needs the support. She maintains that the secondary factors listed in Franklin, supra, support her 'position. Melissa argues that the trial court abused its discretion in making the alimony decision, and if the ruling were allowed to stand, it would be a true signal to all disabled persons that, if their spouses decide to abandon them in their need, the courts simply will not assist them. She maintains that the decision here was not made given the facts of this particular case; rather, the trial court applied a broad policy statement in the case of future marriages of the disabled.
. In response, Jason claims that the trial ■court’s order should be affirmed. :We agree. In Smithson v. Smithson, 2014 Ark. App. 340, 436 S.W.3d 491, which contains similar facts to the case at bar, the trial court denied permanent alimony to the wife after a short marriage during which the wife did not work and had been granted Social Security disability benefits and the husband earned a good income. The trial court granted alimony of $1000 a month for one year. Id. On appeal, -this court stated,
. A review of the overall distribution here evidences that appellant was awarded $10,000 cash from the nonmarital home’s equity, appellant was awarded her marital portion of appellee’s retirement and investment accounts, she was relieved of significant marital debt, appellee was ordered to pay half of appellant’s accrued rental indebtedness and $2000 of appellant’s attorney fees," and both parties were relatively young and "were married a relatively short period of time. Rectification of economic imbalances is not necessarily appropriate when the marriage relationship did not influence the imbalances in earning capacity. Evtimov v. Milanova, 2009 Ark. App. 208, 300 S.W.3d 110. That appellee came into the marriage, and left the marriage, with significantly greater earning capacity does not automatically equate to a long-term sizable alimony award. An award of alimony, if one is. awarded at all, is measured by the particular facts and circumstances of the parties before the trial court. We are not to substitute our judgment for that of the trial court; we are- to determine only whether the alimony decision is reasonable under the circumstances. Whitworth v. Whitworth, 2009 Ark. App. 410, 319 S.W.3d 269. On the record presented for our de novo review, we are not left with a distinct and firm impression that a mistake was made in the award of alimony.
Id. at 8-9, 436 S.W.3d at 496-97.
In Evtimov, supra, which was relied on by the Smithson court, this court affirmed the trial court’s denial of alimony to the husband and rejected the husband’s claim that the only consideration in determining whether to award alimony should be the difference in the parties’ income' and their future earning capacity. This court noted that the trial court had divided the wife’s marital retirement asset and had made it a present' distribution to the husband,- as well as placing the, marital debt on the wife, stating, "Alimony and property divisions are complementary .devices that a trial judge employs to make the dissolution of a marriage as equitable as possible.” Id. at 11, 300 S.W.3d at 117.
As the trial court noted, Melissa leaves the marriage in the same or better position than when she entered it. She- gained'-an increase in. the equity of her nonmarital house and remains, as she was upon entering the marriage, unemployed. Thus, as Jason contends, even though the trial court did consider its own public-policy reasoning—that a person should not be required to support a disabled ex-spouse for life when the disability predated the 112marriage because the requirement may discourage marriage—public policy was not the trial. court’s sole consideration. Further, even though we find no statute or caselaw to support this “so called” public policy, the trial court also stated in its decree that rehabilitative alimony was not appropriate because it did not appear that rehabilitation of Melissa’s disability was likely. The trial court also considered that marital funds had been used, to pay down the debt on Melissa’s house and that she was retaining the $9000 benefit. Accordingly, even considering the trial court’s unsupported public-policy reasoning, we hold that there was no abuse of discretion because the trial court did not act improvidently or thoughtlessly, without due consideration.
Affirmed.
Virden and Brown, JJ., agree.
. In contrast, see cases in which alimony was awarded because the marriage was the cause of the economic imbalance and earning capacity of the parties. E.g., Murphy v. Murphy, 302 Ark. 157, 787 S.W.2d 684 (1990); Stuart v. Stuart, 2012 Ark. App. 458, 422 S.W.3d 147; Hiett v. Hiett, 86 Ark.App. 31, 158 S.W.3d 720 (2004); Anderson v. Anderson, 60 Ark.App. 221, 963 S.W.2d 604 (1998). | [
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N. MARK KLAPPENBACH, Judge
| Appellant Andrew Lee Wiseman was convicted of raping his cousin SW when she was fourteen years old. Appellant was tried before a jury in Hempstead County Circuit Court, and he was sentenced to forty years in prison. Wiseman appeals his conviction, arguing that the trial court erred in denying his motion for directed verdict that challenged the sufficiency of the State’s proof of penetration. We affirm.
On appeal, the appellate courts treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Anderson v. State, 2011 Ark. 461, 385 S.W.3d 214. The appellate court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence that is forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. The evidence is viewed in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Starling v. State, 2016 Ark. 20, 480 S.W.3d 158. Variances and discrepancies in the proof go to the weight or credibility of the evidence and are matters for the fact-finder 12to resolve. Id. The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. Accordingly, when there is evidence of a defendant’s guilt, even if it is conflicting, it is for the jury as fact-finder to resolve, not the court. Id.
Appellant, a man in his early thirties, was charged with committing rape against his teenage first cousin SW. The following citations of Arkansas law are applicable to the appeal before us. According to Arkansas Code Annotated section 5-14-103(a)(4)(A)(iv) (Repl. 2013), a person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person who. is a minor and the defendant is the victim’s first cousin. Arkansas Code Annotated section 5-14-101(11) defines “sexual intercourse” as “penetration, however slight, of the labia majora by a penis.” A rape victim’s testimony may constitute substantial evidence to sustain a conviction for rape, even when the victim is a child. Brown v. State, 374 Ark. 341, 288 S.W.3d 226 (2008). The rape victim’s testimony need not be corroborated, nor is scientific evidence required. Id. More particularly, testimony of the victim that shows penetration is enough for conviction. Kelley v. State, 375 Ark. 483, 292 S.W.3d 297 (2009).
The following is an examination of evidence presented at this jury trial, viewed in the flight most favorable to the jury’s verdict. SW was sixteen years old at the time of trial. She testified for the State. SW described going to appellant’s house for a family barbecue on Sunday, July 6, 2014. SW said that at some point she went to use the bathroom, and as she was pulling up her clothing, appellant came into the bathroom. Appellant then forced himself on SW, stating that he “had been waiting to get at [her] for the longest^]” SW said that she understood what sexual intercourse was, that appellant put his penis in her vagina and moved continually, and that it hurt. She said that appellant told her not to tell anyone and that he would buy her a phone. When he was done, SW cleaned herself with tissue and saw a little blood and “clear stuff’ on the tissue. SW was scared and shaken by the experience; she did not report the rape immediately. When she did report that she had been raped, she at first said it was her stepfather who had done it, and she gave other particular details that were untrue. SW subsequently identified her cousin, appellant, as the person who had raped her. SW admitted at trial that she had lied at first, but she did not have an explanation for why she had lied. SW positively identified appellant in open court as the person who had raped her at the barbecue at his house.
. The evidence at trial also included the testimony of state-crime-laboratory personnel (a forensic serologist and an expert forensic DNA analyst) who confirmed that testing of a swab taken from inside SW’s vagina during a sexual-assault examination conducted on July |48, 2014, revealed the presence of sperm. The DNA testing identified appellant as the source of that DNA within all scientific certainty. SW’s stepfather was excluded as a contributor to this DNA sample.
A law enforcement officer testified that SW was incoherent and did not make much sense when she was first interviewed on July 8; she was slow to answer and seemed disoriented. It was at this interview that SW identified her stepfather as the perpetrator. However, at the second interview conducted on July 14, the officer said that SW made much more sense, was coherent, and was “clear eyed and focused.” It was at this interview that SW identified appellant as the man who had raped her, denying that it was her stepfather.
At the end of the State’s, case, appellant’s attorney moved , for directed verdict arguing that the State had failed to prove that appellant penetrated SW for purposes of the rape statute. The trial court denied the motion.
Appellant took the stand anil denied the allegations, stating that he and his girlfriend had sexual intercourse immediately prior to the barbecue. Appellant also stated that there was no toilet tissue in his bathroom, so he had to go to the store to buy some during the party. Appellant’s girlfriend corroborated appellant’s version of events, stating that she and appellant had sexual intercourse before the barbecue, that she then used a towel' in the bathroom to clean herself, and then she left that towel in the bathroom.
After the defense’s case, defense counsel renewed the motion-for directed verdict, which was denied. The jury found appellant guilty of rape, resulting in the conviction and | fiSentenee that appellant now appeals.
Appellant argues that SW had lied and was not credible, such that his conviction is not supported by sufficient evidence. We disagree. Any inconsistencies in SW’s testimony were for the jury to resolve; it is not an issue for the appellate court. Allen v. State, 2016 Ark. App. 537, 506 S.W.3d 278. The uncorroborated testimony of a rape victim that shows penetration is sufficient evidence for a rape conviction. Lamb v. State, 372 Ark. 277, 275 S.W.3d 144 (2008). While a rape victim’s testimony need not be corroborated by forensic evidence, additional evidence was introduced during trial that supported SW’s testimony. Semen was found inside SW’s vagina, and the forensic DNA analyst gave expert testimony that established, within all scientific certainty, that the DNA originated from appellant. While appellant attempted to explain away this incriminating evidence, there was sufficient evidence from which the jury could conclude that appellant committed rape against SW.
Affirmed.
Gruber, C.J., and Hixson, J., agree.
. We note that the abstract contains irrelevant material, such as arraignment and pretrial hearings, the process of jury selection, chain-of-custody testimony, and the trial court's giving of jury instructions. We caution appellant’s counsel that this is excessive and not in compliance with Arkansas Supreme Court Rule 4—2(a)(5)(2016). See Patton v. State, 2013 Ark. App., 2013 WL 749735. We also caution counsel that the addendum improperly contains irrelevant discovery-related motions that are not essential or pertinent to the issue on appeal. See Ark. Sup. Ct. R. 4-2(a)(8).
. The nurse who conducted the examination had testified that the swab sample was taken from the vaginal vault, which is not in the outer area of the labia but rather “up into the body,” | [
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RITA W. GRUBER, Chief Judge
11 David Petty was found guilty in the Hot Spring County Circuit Court of first-degree assault following an altercation with his brother-in-law Robert Louton. Petty was sentenced to one year of supervised probation and ordered to complete anger-management classes and pay court costs and a $1,000 fine. On appeal, Petty challenges the sufficiency of the evidence to support his conviction. He argues that there was insufficient evidence showing that his weapon was loaded. We affirm.
The testimony at trial revealed the following events. On' September 28, 2015, Louton and his wife arrived home and found that Petty had installed fence posts on their property. Louton testified that, while his wife was “bending” some of the posts over, he noticed |2headlights from Petty’s vehicle approaching his home. He testified that he contacted the sheriffs office and was advised to leave the property but that he and his wife later returned on the advice of their civil attorney. He testified that they arrived at home and found Petty and Petty’s mother (Louton’s moth er-in-law) sitting in Louton’s front yard on the tailgate of a vehicle. He testified,
They came up the steps, I’m holding my phone with my left hand and pushing [Petty] backward .., he’s clawing and pushing at me and I’m pushing backward. I am backing up to the top of the steps, and when I got to the top of the steps, [Petty] is still pursuing me and coming at me, and I’m pushing him back. I’m pushing back and trying to hold him off and [my wife] is trying to hold her mother off and get in the front door, and then whenever [my wife] opened the door, gets in, I am at the door pushing and [Petty] comes in the house after me to pursue me. I get backed into a corner not far from the love seat.
He testified that when he realized he was almost in the corner, he shoved Petty “real hard” and “got some separation” between them. He testified that hé “pulled his weapon” and “screamed at [Petty] to leave,” and Petty “pulled his pistol” and pointed it back at him. Ms. Louton testified that Petty “attacked” her husband while they were trying to enter their home. She further testified that Petty “pulled his gun out” and pointed it as he was leaving.
Petty moved for a directed verdict at the conclusion of the State’s case. He argued,
In order for that to be a substantial danger of death or serious injury, that gun has to be loaded.' If I point an unloaded weapon at somebody you cannot create a substantial danger of death or serious injury because it’s not loaded.
Petty renewed his motion and argument after the defense rested without putting on a case. Each time, the circuit court denied the motion. On appeal, Petty argues that the State produced no evidence that the gun he used was loaded and that an “empty gun certainly is of no danger to anyone.”
|aThe denial of a motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Robinson v. State, 2016 Ark. App. 550, at 6, 506 S.W.3d 881, 886. When the sufficiency of the evidence is challenged on appeal, the evidence is viewed in the light most favorable to. the verdict. Lewis v. State, 2016 Ark. App. 257, at 2, 492 S.W.3d 538, 540. The appellate court considers only the evidence supporting the verdict. Id. The verdict will be affirmed if it 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. Davis v. State, 2015 Ark. App. 328, at 2, 2015 WL 2436974.
This court has held that a gun pointed at someone is enough to create a substantial danger of death or serious physical injury to another person. Harris v. State, 72 Ark. App. 227, 234, 35 S.W.3d 819, 824 (2000). Louton testified that Petty pointed a weapon at him as Petty was fleeing the house. Based on the testimony, substantial evidence supports the conviction, and we affirm.
We now turn to Petty’s contention in his brief that drawing his weapon was a “form of reasonable justification” and a “reasonable response under the circumstances.” To the extent that Petty argues that he was entitled to the defense of justification, his argument is not preserved for appellate review. A motion for directed verdict based on insufficiency of the evidence must specify how the evidence is deficient. Scott v. State, 2015 Ark. App. 504, at 4, 471 S.W.3d 236, 239. The reason underlying this rule is that when specific grounds are stated and the proof is pinpointed, the circuit court can either grant the motion or allow the State to reopen its case and supply the missing proof. Id. A further reason that the motion must be 14 specific is that the appellate court may not decide an issue for the first time on appeal. Matar v. State, 2016 Ark. App. 243, at 4, 492 S.W.3d 106, 109. A party is bound by the scope and nature of his or her directed-verdict motion and cannot change the grounds on appeal; appellate review is limited to those grounds that were presented to the circuit court. Robinson, 2016 Ark. App. 550, at 6, 506 S.W.3d at 886. Because Petty failed to make his justification argument to the circuit court, we are precluded from addressing it for the first time on appeal.
Were we to consider the merits of Petty’s argument, we would affirm. Justification becomes a defense when any evidence tending to support its existence is offered, and once raised, it becomes an element that must be disproved by the State beyond a reasonable doubt. Lewis v. State, 2014 Ark. App. 730, at 2, 451 S.W.3d 591, 593. Whether one is justified is largely a matter of the defendant’s intent and is generally a question of fact for the jury. Id. A defendant’s intent is ordinarily not subject to proof by direct evidence but must usually be established by circumstantial evidence. Id. Critical to this inquiry is the reasonableness of the accused’s apprehension that he'was in danger of death or of suffering great bodily harm. Id. Also critical is whether the accused used all reasonable means within his power and consistent with his personal safety to avoid the use of deadly force. Id. A defendant cannot rely on the defense of justification if the defendant created the situation necessitating his conduct, Sullivan v. State, 2015 Ark. App. 514, at 4, 470 S.W.3d 312, 315. Here, Petty sat in wait for Louton to return home. Upon Louton’s return, Petty confronted him, attacked him, and continued to pursue him into his home. Louton testified that he Rpulled a gun on Petty because he was “backed into a corner” and scared. Because Petty created the situation with Louton, he was not entitled to the defense of justification.
Affirmed;
Klappenbach and Hixson, JJ., agree.
. A person commits assault in the first degree if he or she recklessly engages in conduct that creates a substantial risk of death or serious physical injury to another person. Ark. Code Ann. § 5—13—205(a)(1) (Repl. 2013). First-degree assault is a Class A misdemeanor. Ark. Code Ann. § 5-13-205(b).
. The family members were involved in a civil dispute over ownership of the property where they resided. | [
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PHILLIP T. WHITEAKER, Judge
| ¶Appellant Lara Thompson appeals the decision of the Garland County Circuit Court awarding appellee Rachel Broussard $7,111 plus attorney’s fees of $2,000. Finding no error, we affirm.
I. Background
Thompson was the owner of Summit Gymnastics, a gymnastics studio. She agreed to sell the business to Broussard. The parties executed a document entitled “Agreement for the Sale and Purchase of Assets and Bill of Sale” in October 2014. Broussard agreed to pay Thompson $48,000 for the business by making installments of $1,500 per month for thirty-six months. Broussard made a down payment of $4,500, and Thompson kept $1,000 in receivables after the sale was made, for a total initial payment of $5,500. In addition, Thompson applied $345 in salary she owed to Broussard (who had been employed by the ^studio), and Broussard made payments on two loans—one for $152 and the other for $1,114—that the studio owed to Diamond Lakes Federal Credit Union.
Broussard operated the gymnastics studio for two months—November and December 2014. The parties began to have disputes early on, however, and by December, Thompson was threatening to sue Broussard for breach of contract. Brous-sard returned ownership of the studio to Thompson on January 1, 2015. Thompson nonetheless filed a breach-of-contract suit against Broussard on January 2, 2015, alleging that Broussard had faded to make the required monthly payments. Thompson demanded that Broussard pay her the entire purchase price of $48,000. Broussard answered and filed a counterclaim, alleging that Thompson had failed to disclose that she did not own 100 percent of the business’s assets. Broussard sought cancella tion of the contract and return of the money she had paid to Thompson.
Broussard eventually filed a motion for summary judgment, contending that the contract between the parties had been rescinded and that she was therefore entitled to a refund of the amounts she had paid toward the purchase of the business, totaling $7,111. The circuit court agreed with Broussard and granted summary judgment. The court found that the parties had rescinded the contract, that Thompson had retaken the business, and that Broussard had paid Thompson or made payments on her behalf totaling $7,111. The court noted, however, that there was still a dispute as to whether Thompson was entitled to an offset for any net profits Broussard might have earned during the two months that she ran the business.
The circuit court later held a hearing on Thompson’s request for an offset. After hearing testimony and taking evidence, the circuit court concluded that Thompson had not |:imet her burden of proof that Brous-sard made a profit for which Thompson would be entitled to a credit, and it therefore ordered that Thompson’s complaint be dismissed. The court entered judgment for Broussard in the amount of $7,111, plus costs and interest. Additionally, the court awarded Broussard $2,000 in attorney’s fees. Thompson subsequently filed a timely notice of appeal.
II. Thompson’s Entitlement to an Offset
In her first argument on appeal, Thompson argues that the circuit court erred in finding that she failed to meet her burden of proof on the issue of an offset. Our standard of review on appeal in civil bench trials is whether the circuit court’s findings were clearly erroneous or clearly against a preponderance of the evidence. Patel v. Patel, 2015 Ark. App. 726, at 2, 479 S.W.3d 580, 582; Tadlock v. Moncus, 2013 Ark. App. 363, at 3, 428 S.W.3d 526, 529. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with a firm conviction that a mistake has been committed. Patel, supra. We must give recognition to the circuit court’s superior opportunity to determine the credibility of witnesses and the weight to be given to their testimony. S. Bldg. Servs., Inc. v. City of Ft. Smith, 2013 Ark. App. 306, at 6, 427 S.W.3d 763, 766.
Before addressing the merits of Thompson’s argument, we briefly set out the general law as it relates to rescission. Our supreme court has stated that rescission is cognizable both at law and in equity. Maumelle Co. v. Eskola, 315 Ark. 25, 29, 865 S.W.2d 272, 274 (1993). Equitable rescission is distinct from rescission at law in that equitable rescission requires the affirmative powers of an equity court to rescind or undo the contract, whereas in rescission 14at law, the court merely grants restitution after the party seeking it has achieved rescission by his or her own acts. Phelps v. U.S. Life Credit Life Ins. Co., 336 Ark. 257, 984 S.W.2d 425 (1999); Moreland v. Dodds, 2012 Ark. App. 10, 388 S.W.3d 73.
Here, the parties agree that the agreement for Broussard to purchase the business from Thompson was legally rescinded when Broussard returned the venture to Thompson. Thompson does not appear to dispute that the $7,111 judgment against her accurately represents the funds that Broussard expended during her time as owner of the business. She maintains, however, that she met her burden of proof on the issue of an offset. We therefore turn our attention to the evidence presented at the offset hearing.
At the offset hearing, Thompson presented evidence consisting of testimony and bank statements. Broussard testified that she opened a bank account when she bought .the business and that she used the account for both business and personal use. She-stated that she deposited $1,253 in November 2014, .$8,207 in December, and $2,174 in January 2015, although she pointed out that she did not have control over the business during the last month. Broussard acknowledged that the bank statements showed deposits and credits, but she said some of those funds were her personal money. Broussard testified about the expenses of running the business during the two - months she had owned it, explaining how much was spent on payroll, utilities, rent, supplies, and other necessities, but she said that she could not pay the business’s bills. During, the two months she ran the gym, Broussard said, she “did not make a profit.... [she] lost money.” That was one of the reasons she returned the gym to Thompson. ^Thompson also testified at the hearing. She admitted that for the years 2013, 2014, and 2015, the business lost money.
On appeal, Thompson argues that the bank-statement evidence introduced at the hearing proved that Broussard made a profit on the business and that. she (Thompson) should be entitled to an offset equal to those amounts. Broussard responds that the bank statements showed only money "that was deposited into the account and expenses that were paid out of it. She denies that all the money deposited into the account was “income,” as Thompson describes it, and she notes her own testimony that she deposited' personál funds into the account as well as funds received via the business.
Here, the circuit court received evidence of bank deposits and business expenses. The circuit court additionally.heard testimony from both Broussard and Thompson that the business was not profitable at all. It was well within the circuit court’s purview to- deem both women’s testimony credible on the issue of whether the business was ever profitable. See S. Bldg. Servs., Inc., supra. We therefore cannot say that the court’s findings were.clearly erroneous on this point.
III. Attorney’s Fees
In her second point on appeal, Thompson argues that the circuit court erred in .awarding $2,000 in attorney’s fees to Broussard. We will not disturb an award of attorney’s |fifeeg absent an abuse of discretion, Chambers v. Ratcliff, 2009 Ark. App. 377, at 4, 309 S.W.3d 224, 226-27 (citing Artman v. Hoy, 370 Ark. 131, 257 S.W.3d 864 (2007)).
Thompson argues that in an action for rescission, attorney’s fees are not available pursuant to Arkansas Code Annotated section 16-22-308 (Repl, 1999)'. Whether an award of attorney’s fees to a prevailing party is appropriate under section 16-22-308 depends on whether the case is one primarily based on breach of contract. Gladden v. Trs. of the Pruitt Family Tr., 2015 Ark. App. 680, at 11, 477 S.W.3d 530, 536 (awarding attorney’s fees in a contract-rescission case); Jiles v. Union Planters Bank, 90 Ark. App. 245, 247, 205 S.W.3d 187, 189 (2005). Thompson maintains that the circuit court’s judgment referenced only the rescission of the parties’ agreement and not the underlying contract itself. Because there was no longer any “contract” by the time of the court’s ruling, Thompson suggests that Broussard was therefore not a “prevailing party” in a breach-of-contract action under section 16-22-308.
In support of her argument, Thompson relies exclusively on Barnhart v. City of Fayetteville, 335 Ark. 57, 977 S.W.2d 225 (1998). Barnhart, however, is inapposite. Barnhart was an illegal-exaction case in which the attorney was awarded fees under Arkansas Code Annotated section 26-35-902(a) (Repl. 1997), which authorizes an award of attorney’s fees to winning litigants in illegal-exaction cases. 335 Ark. at 59, 977 S.W.2d at 226. Appellant Barnhart, however, moved for additional fees under section 16-22-308. The circuit court denied the request, finding that her contention that her action “concerned' a contract” did not make it an action on a contract or a breach-of-contraet case. Id. at 60, 977 S.W.2d at 226. The supreme court affirmed, holding that the complaint was not primarily based on a contract |7but on an illegal exaction and that Barnhart failed to raise any breach-of-contract claim or request damages in her earlier case on appeal. Id. at 61, 977 S.W.2d at 227. In short, the court rejected Barnhart’s attempt to recharacterize her case as one that sounded in contract. Id.
On the other hand, in Beck v. Inter City Transportation, Inc., 2012 Ark. App. 370, 417 S.W.3d 740, this court distinguished Barnhart and explained that rescission is a remedy that may be used in either contract cases or tort cases:
It is basic contract law that where there is a material breach of a contract, substantial nonperformance, and entire or substantial failure of consideration, the injured party is entitled to rescission of the contract and restitution and recovery back of money paid. Econ. Swimming Pool Co. v. Freeling, 236 Ark. 888, 891, 370 S.W.2d 438, 440 (1963). Whether an award of attorney’s fees is appropriate under Ark. Code Ann. § 16-22-308 depends not on whether the remedy of rescission was granted but on whether the case is one primarily based on breach of contract.
Beck, 2012 Ark. App. 370, at 8, 417 S.W.3d at 745-46 (emphasis added). Therefore, we must look to the gist of the action that Thompson originally brought against Broussard.
Here, Thompson’s lawsuit was filed as a breach-of-contract action. It sounded entirely in contract, and the mere fact that the parties agreed to rescind that contract does not defeat the original nature of the action. Because the complaint was brought as a breach-of-contract action, the award of attorney’s fees to Broussard, as the prevailing party, was therefore appropriate under section 16-22-308.
Affirmed.
Glover and Hixson, JJ., agree.
. Broussard, who was eighteen years old when she bought the gym, said that "nobody told [her] that was a bad idea until after.”
. Thompson also cites the bank-account balance from January 2015; however, Broussard returned the business to Thompson on January 1, 2015, so any money in the bank from that month would not' be attributable to Broussard in any event. ' | [
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WAYMOND M. BROWN, Judge
| Appellant Donnell Robinson was found guilty of first-degree murder by a Chicot County jury. He was sentenced to forty years’ imprisonment. He argues on appeal that the trial court erred and abused its discretion in: (1) its failure to make specific directed-verdict motions on appellant’s behalf, thus not preserving the issues for appeal; (2) denying appellant’s motions for directed verdict based on insufficiency of the evidence; and (3) its finding that appellant had made an effective waiver, of his right to counsel and could proceed pro se. We affirm.
Appellant was charged in the July 17, 2014 murder of April Taylor. Taylor was found dead on the floor in her home due to blunt force injuries to her head. Appellant | p.and Taylor were in a relationship and had been living together until July 16, 2014, when Taylor kicked appellant out of the house. While detectives were on the scene conducting interviews with Taylor’s neighbors, they developed appellant as a person of interest. Appellant subsequently appeared and was taken in for questioning. An arrest warrant was issued for him on July 18, 2014, and he was charged by information on August 5, 2014, as a habitual offender with Taylor’s death. Appellant had his first appearance before Judge Don E. Glover on July 21, 2014. At that time, he was advised of the charges against him and was told that he would be appointed an attorney to represent him. Appellant’s plea and arraignment took place on September 8, 2014, before Judge Sam Popé. At that time, appellant informed the court that he had hired his own lawyer, Greg Robinson, to represent him. After several continuances, appellant’s omnibus hé'aring took pla'ce on March 30,2015. At that time, appellant informed that court that he had fired his attorney because the attorney had not talked to appellant about the case and because the attorney was “no good” and was án “ineffective assistance of counsel.” Appellant advised the court that he wished to represent himself and that he had done so in a trial in 2009, Upon questioning by the | «court, appellant stated:
You asked me a while ago why did I want to represent myself. That is the only way I can get my paperwork, [because with an appointed attorney, he is not going to get me the paperwork that I asked for and that I am due.
If I ask' [the attorney] to send me this, send me that, this is what you are supposed to send me because this is my guaranteed rights of the United States Constitution and Arkansas Constitution, just like I will say here now, the oath of office, you all solemnly swear to affirm and support the Constitution of the United' States and the Constitution of the State of Arkansas. You all are just rebelling against the United States Constitution because you all are not following the rules, not even Arkansas rules of criminal procedure. All I am asking for is justice right here, to follow the rules.
The court responded by telling appellant that it sounded like appellant was “just spouting off a bunch of generalities” and that he did not “know anything about the particulars.” The court found that appellant was not capable of knowingly and intelligently representing himself. The court discharged Robinson and appointed Steven Porch to represent appellant.
At the May 4, 2015 hearing, Porch informed the court that appellant “has stated unequivocally and emphatically that he wants to exercise his ... right to represent himself.” According to Porch, appellant refused to talk , to Porch or give him any information necessary for Porch to effectively represent appellant. The following colloquy took place:
Appellant: I decided that ever since my attorney messed me around, I decided that because I want my United States " Constitution of America rights that is guaranteed to me. That is what I want. And I am not getting it from you judge,
While you are talking to me, I am going to let my attorney read this here.. If he can sign this contract that he is going to take and fight for my United States Constitution, of America rights, the amendment fourth, fifth, sixth, eighth, ninth and 14th, I might would use him.
|4The only thing the contract says that he is going to defend my .United States Constitution of America rights. You can read it yourself, judge, If he ain’t going to sign it, that is the reason I am not going to use him because I know he is not for me.
The Court: There are some dangers associated with representing yourself. When you represent yourself, you are really trying, wearing two hats. One of the hats you are wearing is that you are a defendant in a case.
There are-all-allegations against you that you have committed a crime and the jury has to decide whether or not the State has met its burden of proof to prove those allegations' beyond a reasonable doubt.
The other hat you are wearing is as a defense lawyer. And sometimes it is hard to do both in my experience and observation. Not being thoroughly trained in the law, it would be really easy for you to waive some rights that you have in representing yourself and making an improper record here in this courtroom.
I am trying to talk to you to determine whether or not I ought to -let you represent yourself. It is my obligation to warn you of the dangers of doing that and that is what I am doing. Do you - have any questions about what I have said?
Appellant: No sir. All -I know is that you are not going by the United States Constitution statutes or the rules of Arkansas Constitution. And you all did sign an oath which is Arkansas Constitution 19, section 20, saying that you will promise to uphold and support the United States Constitution and Arkansas Constitution. And you are not supporting them, judge. That is perjury.
The Court: I don’t need any lectures from you. I know the oath I took. I was there when I took it. You were not. But you are stupid. You. are a fool.
Appellant: I,. Donnell Robinson, in front of this court, all of the specta tors, am getting down on my knees in front of everyone here begging you, as if you are a God to grant me my guaranteed rights of due process of law by the Arkansas Constitution, section 8, but not limited to, to grant me equal protection of law by the 14th amendment of United States Constitution of America, but not limited to, also to grant me my rights as a United States citizen and grant me my rights by Arkansas rules of criminal procedure.
| aAnd if I cannot receive these rights, I will have my family to post on the Internet to the social media, putting all of your actions on with your name first explaining your violation, bias and prejudice toward me to show proof that you judge, are not honored of trust and not qualified to sit on a bench as a judge, a judge that jumps on a person at a public place breaking and violating the laws that he is supposed to protect.
The Court: You are a fool. I will say it the last time. You do not know what you are doing.
Appellant: Well, the judge called me a fool. You heard it right here. I am a fool. But I will have your job. I’m going to sue you, judge. You called me a fool. You know the Bible says do not call nobody no fool and you just called me a fool three or four times.
The Court: You are. You keep acting the way you do, this thing is going to be checked around from judge to judge and you are going to be in the penitentiary forever. I am worried about you, because you—you are so— you do not know what you are doing. That’s right, you are so foolish.
Appellant: I am so foolish, right? Remember? I am a fool. That is what you just said, judge.
The Court: I do not know that anybody is capable of handling Mr. Robinson’s case. He has acted in such a way that I cannot do it fairly. I am recusing. I am not going to mess with him anymore. Judge Glover has already re-cused, I think. That concludes my business for today.
Appellant appeared before Judge Glover on July 6, 2015, for a hearing. When asked if he had a lawyer, the following took place:
Appellant: No sir, I am representing myself.
The Court: Okay. Do you understand you have the right to be represented by counsel?
Appellant: Yes, sir.
The Court: And you have the right to represent yourself as well. Have you ever had a lawyer to represent you?
| [Appellant: I had one but I fired him, because he was not doing his job. I would not have a problem with a lawyer if he was fighting for my United States Constitution of America rights and my Arkansas Constitution of America rights of due process of law; both of them, and of the ninth amendment too.
I am invoking, which it means calling upon my constitutional rights, right now. Because you did sign the Arkansas Constitution, article 19, section 20, oath of office, of public offices, when you got your job. You did say, I do solemnly swear to affirm that I will support the Constitution of the United States and the Constitution of the state of Arkansas. And without doing that, this case is that that would be perjury, because if you do not support the Constitution of the United States and Arkansas Constitution. And if you are found guilty of perjury, you can get two years in the penitentiary [because you violated my fifth amendment of United States Constitution of America, of due process of law.
And also, you have violated my Arkansas Constitution, article 2, declaration of rights, section 8, due process of law, but not limited to all my rights. The fourth amendment, the fifth [ajmendment, the sixth amendment, the eight amendment, the ninth amendment and the 14th amendment of the United States Constitution of America, you all have violated, infringed and abridged, meaning to cut short, to belittle. So I am invoking, calling upon, my rights as of today.
The Court: Well, just slow down a bit now. First of all, I am not on trial this morning, but you are. And I understand you are at omnibus hearing.
Appellant: I want my constitutional right issues. My fundamental rights of due process. You all are violating them.
The Court: Well, exercise your rights in whatever way you need to. Now, what I normally do in cases—you have the right to represent yourself. Normally, in cases like this, I will [apjpoint a standby lawyer who will be accessible to you for any legal assistance or help, or footwork, that you might request of him or her. And I am going to institute that process if it is not in existence already.
The public defender’s office will serve as a standby lawyer to research and will assist you in any way you want him to assist you. He will not be compelled until you serve or take advantage of your constitutional right to represent yourself.
|7Now, there is going to be a jury trial. There’s going to be rules of criminal procedure, whether you represent yourself or whether somebody else assist you, whoever handles the case will be required to follow. And being a lawyer is very similar to being a physician. Most of us, we will all have medical issues. We go and get the assistance of a doctor if we want to. That is the option we have. Some of us may work on our ailments ourselves. But you ultimately have your right to work on these issues yourself. I just want you to know that I am going to appoint a standby lawyer for your benefit.
I am going to give you time to go through all of your motions. The public defender will be available. You can talk to him if you want to; it is not required. Then I am going to call you up later. I am going to continue this momentarily.
I am going to call up Mr. Robinson. Mr. Robinson, I have read your previous case, and I am going to consider your pleadings as a motion for me to recuse. And I am going to do that. I am going to recuse and assign it to another judge to hear this matter. So you will get another court date from another judge. Have a good trip back.
Appellant appeared before Judge R. By-num Gibson on August 17, 2015, for hearing. At the hearing, Porch informed the court that appellant refused to meet with him and sent a statement to him that stated, “I, Donnell Robinson, do not and will hot accept attorney Steve Porch as my attorney. I will represent myself as pro se. The sixth amendment of the U.S. Constitution gives me the right to represent myself.” Appellant signed the letter. The court questioned appellant after noting that certain questions had already been asked and answered on the record before the two previous judges. The following took place:
The Court: Would you require any attorney, not just’ Mr.. Porch or Mr. Mazzanti, but any attorney that represented you to sign what Mb. Porch declined to sign?
Appellant: If they let my motions go, not what he is got to say, but my motion—yes sir, I would want the attorney to argue my motions. That is correct. I ain’t going to say that would apply to any attorney. But, like I said, if they cannot fight for my United States constitutional rights or my Arkansas rights, I cannot accept that attorney. But you | «can give him to me and I accept him and then he is going to fight for me, I am going to—
The Court: I will take that as a “yes.” Very well. Now, the only other questions I wish to ask you are these regarding you representing yourself. You have done it once in a case before Judge Glover. You were convicted and received 60 years. Did you conduct the voir, dire in that case-of the jury?
Appellant: Well, no, sir. I did not have too much to say, I will say it like that.
The Court: Well, you know' what voir diring the jury is?
Appellant: No, sir, but I can look it up because—
The Court: And I am sure you will. I am just asking you because it is part of the trial for you [to] select the jury. All right, with respect to rules of evidence, particularly those that govern the admissibility of competent evi-; dence, of relevant evidence, and govern the non-admissibility of hearsay unless it is subject to some exceptions, are you at all familiar with those rules of evidence?
. Appellant: I really did not understand too much of what you said, but I know about the hearsay and—
The Court: Are you familiar with rules of evidence governing the admissibility or inadmissibility of evidence because it is either incompetent, it is hearsay, or not relevant? Are you familiar with those rules?
Appellant: I am familiar with them, but before we go to. them rules, I would like—
The Court: But let me do this and then I will hear from you. Okay. I take that as a no. Those rules, let me explain to you are important, especially, in a case such as this because after reviewing a portion of the file, I see that the State’s case is based upon circumstantial evidence. In other words, there is no direct evidence. There’s nobody who is going to testify that they saw you harm the victim.- There is not going to be any confession that comes in. You have not made any incrimina- . ting statements,- so the State is going -to rely upon circumstantial evidence. And in those cases, particularly, it is -important to.be acquainted with the rules of evidence that you can make proper objections because even hearsay, .if it-comes in.not objected to, is competent evidence that can sustain a conviction. And an attorney, if a trained attorney representing you, they may be | ¡¡able to prevent hearsay from coming in; and because you do not know what it is when you see it, or hear it, you may not and it could prejudice your case. That is the reason that, particularly in the circumstantial evidence .cases, representation by a competent counsel is important. And I want you to understand, that before you waive your right to counsel. Do you understand what,I have just told you? And you still wish to waive your right to counsel?
Appellant: Yes, sir.
The Court: Okay. Now, with respect to jury instructions, in a case such as this first degree murder case, at the conclusion of the proof, the State is responsible for offering jury instructions. The defense may offer jury instructions also. That is things I tell the jury that should guide .them in their deliberations, the law. It is the responsibility of the defendant, if you believe that there is an instruction that would help your case or be favorable to you, something I should tell the jury. It is your responsibility to prepare that instruction, submit it to the court; just as if you had an attorney, the attorney would, be. And the State is not obliged to furnish instructions that may favor you on lesser-included offenses or anything like that. So knowing that, does that affect your decision in any way to-r
Appellant: No, sir.
The Court: And I do not know anything about the case you had in front of Judge Glover. I see the first trial you got sixty years where you represented yourself. I see the second trial where you did not represent yourself, apparently somebody represented you, you got ten. Big difference betwéen ten and sixty. Do you think it was because you had a lawyer?
Appellant: No, sir, because the lawyer did not do his job. He did not mention nothing about due process of law at all. He did do fifty years better than I did for myself. And at the same time, that was double jeopardy, which I can sue for that, but he was not fighting for me at all. Yes sir, I do know the difference sometimes in the outcome if you have a lawyer and do not have a lawyer.
I would like to say, if you do not mind, I was wanting to know if you are going to honor your oath of office of the Constitution—
The Court: I. have always honored my oath of office, at least I think so, and I am not going to listen to anybody’s sermon on that.
I,(Appellant: I am going to ask you another—
The Court: You are not going to ask me anything else. I am giving you the trial dates. It will be a jury trial. I will set it for pretrial. You are having the omnibus hearing right now. I am conducting a type- of pretrial here. If you want to say anything else, you will have to say it to the wall outside the courtroom because I will have you removed in a flash—if you want to remain in here, you will have to be quiet right now while I talk to my case coordinator. Do not say anything or I will have you removed- and I do not want to have to do that- but it will not bother me.
Appellant’s first pre-trial hearing took place on October $, 2015. At that hearing, the following took place:
Appellant: I want to make it clear to this court right now that I, Donnell Robinson, want an attorney appointed to me, which is my guaranteed right by the sixth amendment of the United States Constitution; and amendment 14 of the United States Constitution gives me equal protection of the law in which Dr. Martin Luther King and Ms. Rosa Parks fought for, also Mr. Dred Scott.
The Court: I agree. You are entitled to an .attorney if you want one. Do you want one?
Appellant: Yes, sir. And I also want— since Judge Pope called me a fool in court—which fool do mean stupid, and stupid do mean lack of normal intelligence—I feel like I am entitled to a psych evaluation because of—he did call me fool numerous times in court and foolish—and foolish do mean unwise, lack of wisdom or judgment. So in that case, I should be by law- a psych evaluation, but I also want an attorney appointed to me by the sixth amendment of the United States Constitution.
The Court: All right, I will [aplpoint you [an] attorney, but—all right. Now, let us take this one at a time. You want an attorney appointed and you want a psych evaluation. Have you had a psych evaluation in the past by the state hospital?
Appellant: I do not recall doing it, but Judge Pope called me a fool and so I—
IhThe Court: Let us do this, let me take the attorney business ... first. All right, Mr. Porch is here. He is the chief public defender. He is the one who filed the motion to suppress. I will appoint him at this time; and he can have a seat beside you.
Appellant: Well, is he willing to fight for my United States constitutional rights—if he is not going to fight for that, I am not going to accept him. Automatic. I want my rights, my guaranteed rights of the United States. And by you not doing that, you are obstruction of justice, and being corrupt, judge, because you are not going by the oath of office which is in Arkansas Constitution, article 19, section 20—which you did promise to uphold and support the United States Constitution and the Arkansas Constitution—and by not doing that, judge, that is perjury on your behalf.
The Court: Now, Mr. Porch is hereby appointed. If you would take a chair by the defendant.
Appellant: I need to ask you: are you violating my United States Constitution of America rights and my Arkansas Constitution of America rights that are all guaranteed to me? I want that personally from you, please, sir. Are you violating, infringing, abridging my United States Constitution of America in Arkansas Constitution of America guaranteed rights?
Mr. Porch: Your Honor, as you have appointed me counsel on that, I strongly disagree with what was just said. I prefer to be the mouthpiece.
Appellant: Section 4 gives me freedom of speech—you will not fight for my guaranteed rights, so how is he going to be a mouthpiece for me? It is just like a dog on a chain where they tell you to do, you jump and do. I want somebody to defend my rights, not somebody to sit here and tell me— piss on my back and tell me it is raining—no, sir, I will not accept- Yes, I will have a seat, but I am still going to talk—this man wants me to sit there like a slave—do not forget, Judge Pope called me a fool, so hey, I guess I am a fool—stupid.
The Court: So, therefore, he has decided to disrupt at this point—the closer we get to trial—and he has caused two judges to leave the case. This one is not going to leave the case or be baited into it because it has got to be resolved. At this point, at least, the defendant has made a | ^motion for mental eval—which the court under the circumstances is going to grant.
The trial date is postponed and we will have a pretrial after the report comes back. He will be brought back for pretrial. And Mr. Porch has not made a motion to that effect, but the Court will again relieve Mr. Porch. I will ask you to remain as standby and be present at any future hearings. As soon as I appointed Mr. Porch, he was berated by the defendant here in open court. And you cannot have dual representation, number one; number two, it was clear that Mr. Robinson would not cooperate at all and make Mr. Porch’s job impossible.
When Mr. Robinson comes back, I am going to request that the Department of Corrections (sic) furnish security and provide a stun belt under his shirt so that if there are disruptions, the defendant can be controlled. I am telling Mr. Robinson now, you have a right to be present during the proceedings, but that right is not unlimited; and if you cannot control yourself, sit down when the Court tells you to, not speak when the Court tells you to, attack counsel, attack the Court—if you cannot conduct yourself as an attorney would, or is required to in the courtroom, I am not required to have you present at trial. I want you to be present, but only if you can conduct yourself civilly and within the rules of conduct. This court stands in recess.
The next pre-trial hearing took place on February 22, 2016. At that time, appellant stated that he did not wish to proceed pro se. The colloquy that proceeded is as follows:
Appellant: Excuse me, Your Honor, I did not decide to be pro se, not at all. I am still wanting my sixth amendment right of an attorney. First, I would like to say that I want an attorney to investigate my arrest because I was not indicted like Aaron Lewis was in the Beverly Carter ease. And he had a seven-hour evidentiary hearing that Judge Herbert Wright gave him. (Unintelligible) prosecution, my equal protection of rights by the 14th amendment.
The Court: Well, at this point, I have overruled that motion because you do not | ishave—
Appellant: Yes, you do, but I would like to see this here, first, too: could I get time of death, please?
So it is the State’s position that somewhere between midnight on the 17th or 11 o’clock on the 16th, and 10 o’clock the next day on the 17th, that Defendant killed Ms. Taylor; is that correct?
The State: That is correct.
Appellant: With all due respect, I do not need no standby attorney. I need an attorney to fight for me—I need one to fight for me.
The Court: This is what I am going to do, I am going to have you removed from the courtroom at this time.
The Court: All right, I think the main thing is to make sure the subpoenas are issued and that he wishes to subpoena. I will go over with him things about voir dire but it is pointless at this point because he is not going to listen to anything without interrupting. And so he has chosen to proceed pro se, in this Court’s opinion; and I am not going to force anybody from the public defender’s office to collaborate with him, and take the abuse, or sign any contracts, or take any abuse. And so that is that and this is not his first rodeo. He has been on trial in this courtroom before-he was pro se-so he very well knows what he is doing. You can hear him outside the courtroom now. So that is that.
A pre-trial in-chambers conference took place on March 8, 2016, before a jury was to be picked for appellant’s trial. At that time, the following pertinent colloquy took place:
The Court: All right, Mr. Robinson, come on in, have a seat. We are on the record. This is a first-degree murder case. We are going to pick a jury, this afternoon.
Mr. Robinson appears here for trial in his prison attire. Let the record reflect that at the last pretrial I directed the public defender to make clothes available to him at the local jail. The public defender did that; and the sheriff called me a minute ago and said 114that Mr. Robinson declined the clothes and wanted to be tried in prison attire, his prison whites.
Appellant: That is right, sir, But I also want an attorney because he is not protecting my guaranteed rights of the United States Constitution, or the Arkansas Constitution, or the ... I am telling you that he is supposed to protect my rights. That is what the Bar Association says. The American Bar Association says he has got two obligations: to uphold the .law and to protect his client’s rights[.] He has not put in any motion; he is not put in nothing at all. I have been doing all the work. And so I am asking you right now, appoint an attorney to protect my rights. That is my sixth amendment right of the United States Constitution. I want an attorney to protect me and to defend my rights, not to ... I do not need no standby attorney, not at all. I finished 11th grade—I can read, I can comprehend—-but I need somebody to defend my rights.
The Court: I am glad you said all of that because I want the record, for appellate purposes and for my purposes, to reflect that when you pointed referring to “he” you are referring to Steve Porch, who I have appointed to represent you before—
And, number two, you had a paid attorney, a very good one, Greg Robinson from Pine Bluff. And while this case was pending—before he recused before Judge Pope in April—you fired your hired attorney because you said he would not defend your constitutional rights. When I did assign Mr. Porch to represent you during a pretrial, when you said you wanted a lawyer, you immediately stood up, handed ,him a document that you wanted him to sign, and I said no, he is not signing any document. And for that reason, and because of that opinion in the previous case involving Judge Glover, and wanting jto appear in prison whites, I know that you are trying to create error—or what we call “invited error”—in this court. And I am not even required to allow you to remain in the courtroom if you cannot conduct yourself with civility.
Now, what I am telling you is this: I am not granting you any attorney besides Mr. Porch because to do so would further continue this trial -you can argue with me so far—and I am going to send you back to the jail, and we will pick this jury without you. You can be present in the courtroom and participate in the voir dire, but only if you conduct yourself civilly. I am not required under the sixth amendment to allow you to stay in the courtroom and be disruptive—
[ -i,-[Appellant: Well, I will represent myself. I will not let Steve Porch represent me because he is not protecting my guaranteed rights of the United States Constitution, Arkansas Constitution, Universal Declaration of Human Rights, or of the Rules of Criminal Procedure. So I would have no other choice but to represent myself, even though I do not want to, but I will because Steve Porch—
The Court: Then you will conduct yourself civilly. You will not argue with the Court in the presence of the jury or the jury panel. If you do then I will, without warning at that point, remove you from the courtroom and send you back to the jail; and the trial will go on without you until such time as you can agree to abide by the rules. Now, that is that.
Appellant: I have a question.
The Court: ' No, no more questions. We are here to pick a jury. And when the jury panel is sworn, the court will ask certain questions that reflect on their qualification’s to serve in this case, then I will turn to the prosecutors, and they can ask some questions concerning this case, their qualifications. I will also allow you, if you wish; to ask any questions concerning whether or not any of them are close with law enforcement, or have any tendency to lean one way or another and base their decision on something other than the evidence. If you do anything besides ask a proper question in that respect, I will disallow it and tell you to have a seat, the same way I would the prosecutor. And, again, I certainly want you to be able to remain in the courtroom, Mr. Robinson, but I will not hesitate to remove you-this is the one warning you are given-if you do not act civilly.
Appellant: As long as he is not representing me, I am fine with that.
The Court: All right. He is not.
The jury was empaneled and the trial proceeded as scheduled. At the conclusion of the State’s case, the court stated the following:
Now, to protect the record, I am going to go to—the defendant does not know to do it. I am going to make a ruling that—treated as though he has questions of the sufficiency of the evidence for a prima facia case; and I am going to find that this is- not the case that I would direct a verdict in against the State. The trial court is not supposed to, normally, make motions, ask questions, but so that there is no fundamental error, I am going to treat this as a ruling on a motion for directed verdict. | ir,And I find that there is sufficient circumstantial evidence for this to go to the jury if there Was no further proof put on.
The court renewed the motion at the conclusion of all of the evidence, by stating:
Now, what the -Court is going to do at this point is to make the motion for the defendant. [It] is a motion to dismiss for insufficiency of the evidence. You. will renew the previous motion for a verdict and [the court will] deny-the same in order to protect the record in case there is an appellate (inaudible).
The jury found appellant guilty of first-degree murder and sentenced him to forty years in the Arkansas Department of Correction. The sentencing order was entered on March 16, 2016. Appellant filed a timely notice of appeal on April 8, 2016. This appeal followed.
As his first point on appeal, appellant argues that the trial court erred in failing to make specific directed-verdict motions on appellant’s behalf, thus preventing the preservation of the issues on appeal. Generally, a defendant does not have a constitutional right to receive personal instruction from the trial judge on courtroom procedure. Nor does the Constitution require judges to take over chores for pro se defendants that would normally be attended to by trained counsel as a matter of course. Rule 83.1(a) of the Arkansas Rules of Criminal Procedure provides that a directed-verdiet motion “shall state the specific grounds therefor.” This court interprets Rule 33.1 strictly, and failure to [ 17comply with subsection (a) “will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment.” In this case, the court did not make a specific directed-verdiet motion on appellant’s behalf. Therefore, we hold that appellant’s sufficiency challenge is not preserved. However, there is no requirement for the court to take over functions for a pro se defendant. Appellant has failed to offer any convincing argument or legal citation for his claim that the court was obligated to make specific directed-verdiet motions to preserve his sufficiency challenge.
As his second point on appeal, appellant contends that if this court finds that appellant’s sufficiency challenge is preserved, the court erred by not directing the verdict in appellant’s favor. We have already found that appellant’s challenge to the sufficiency of the evidence is not preserved because there were no specific grounds argued as required by the rules.
Finally, appellant contends that the trial court erred in its finding that appellant had made an effective waiver of his right to counsel and could proceed pro se. The Sixth Amendment of the United States Constitution, made obligatory on the States by the Due Process Clause of the Fourteenth Amendment, guarantees an accused the right to have the assistance of counsel for his defense. Article 2, section 10, of the Arkansas Constitution provides that an accused in a criminal prosecution has the right to be heard by himself and his counsel. No sentence involving loss of liberty can be imposed where there has been a h «denial of counsel. On the other hand, a criminal defendant has a right to represent himself at trial where his waiver of the right to counsel is knowingly and intelligently made.
A defendant may proceed pro se in a criminal case when (1) the request to waive the right to counsel is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct that would prevent the fair and orderly exposition of the issues. Our standard of review is whether the trial court’s finding that the waiver of rights was knowingly and intelligently made was clearly against the preponderance of the evidence. Appellant argues that the court erred in finding that he effectively waived his right to counsel. He also contends that the court erred by denying his subsequent “repeated unequivocal requests for counsel.”
Determining whether an intelligent waiver of the right to counsel has been made depends in each case on the particular facts and circumstances, including the background, the experience, and the conduct of the accused. Every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. A specific warning of the dangers and disadvantages of self-representation, or a record showing that the defendant |1flpossessed such required knowledge from other sources, is required to establish the validity of a waiver. The burden is upon the State to show that an accused voluntarily and intelligently waived his fundamental right to the assistance of counsel. The “constitutional minimum” for determining whether a waiver was knowing and intelligent is that the accused be made sufficiently aware of his right to have counsel present and of the possible consequences of a decision to forgo the aid of counsel.
Here, the record is replete with colloquies between the court and appellant as it pertained to him wanting to proceed pro se. Appellant was warned of the gener-al dangers associated with proceeding pro se, and he also knew first-hand of such danger; he was informed of the specific disadvantages in proceeding pro se under the circumstances of his case due to the State’s circumstantial case against him; and he was questioned about his understanding of the legal process. However, appellant insisted that he be allowed to represent himself. Once the court granted appellant’s wish and' appointed Porch as his standby attorney, appellant changed his mind and insisted that he'be appointed an attorney. When questioned by the court as to why he did not want Porch as his attorney, he stated because Porch would not sign his “contract.” When asked whether he would require any attorney representing him to sign the “contract,” his response suggested that he would. The court then informed appellant that the only attorney it would grant him was Porch. Appellant stated that he did not want Porch as his attorney and that he would represent |2nhimself. Porch was available throughout the trial if appellant chose to use him; however, appellant did not take advantage of Porch’s presence. We hold that appellant made an effective waiver of his right to counsel.
We note that, even in the absence of a voluntary and intelligent waiver of the right to counsel, the right to counsel may be forfeited by a defendant who engages in conduct that prevents a fair and orderly exposition of the issues. The right to counsel of one’s choice is not absolute and may not be used to frustrate the inherent power of the court to command an orderly, efficient, and effective administration of justice. Once competent counsel is obtained, the request for a change in counsel must be considered in the context of the public’s interest in the prompt dispensation of justice. The constitutional right to counsel is a shield, not a sword, and a defendant may not manipulate this right for the purpose of delaying trial or playing “cat-and-mouse” with the court. Appellant had access to competent counsel, and he was obviously attempting to prevent the scheduled trial and thwart the court system. Under these circumstances, the court was correct in refusing to appoint appellant an attorney other than Porch.
Affirmed.
Harrison and Vaught, JJ., agree.
. Arkansas Department of Human Services (DHS) was bringing Taylor’s four children for a scheduled visit, but Taylor did not answer the door. One of the older children looked through a.window and saw Taylor lying on the floor. DHS then contacted the local police so that entry could be made into the home. By the time medical personnel arrived, Taylor was dead.
. In that case, appellant (pro se) was found guilty of terroristic threatening and being a felon in possession of a firearm by a Chicot County jury. He was sentenced to sixty years’ imprispnment. He appealed his convictions on five different grounds, including his contention that the trial court erred in finding that he had effectively waived his right to counsel. This court agreed that there had been no unequivocal, knowing, and intelligent waiver by appellant of his right to counsel and reversed and remanded the case. Robinson v. State, 2010 Ark. App. 430, 376 S.W.3d 484. After a new trial, appellant was found guilty but received ten years' imprisonment.
.All quotes and colloquies are as abstracted by appellant.
. Appellant was found competent to stand trial.
. We attempted to certify this issue to the supreme court as an issue of first impression, an issue of substantial public interest, and a significant issue needing clarification or development of the law; however, it denied certification.
. McKaskle v Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984).
. Id.
. Grady v. State, 350 Ark. 160, 85 S.W.3d 531 (2002).
. Ark. R. Crim. P. 33.1(c).
. Gideon v. Wainwright, 372 U.S. 335, 342-44, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
. Barnes v. State, 258 Ark. 565, 568, 528 S.W.2d 370, 373 (1975).
. White v. State, 277 Ark. 429, 432, 642 S.W.2d 304, 306 (1982).
. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
. Bledsoe v. State, 337 Ark. 403, 406, 989 S.W.2d 510, 512 (1999).
. Pierce v. State, 362 Ark. 491, 497, 209 S.W.3d 364, 367 (2005).
. Bledsoe, supra.
. Id.
. Id.
. Hatfield v. State, 346 Ark. 319, 57 S.W.3d 696 (2001).
. Id.
. Beyer v. State, 331 Ark. 197, 962 S.W.2d 751 (1998).
. Burns v. State, 300 Ark. 469, 780 S.W.2d 23 (1989).
. Id.
. Wilson v. State, 88 Ark. App. 158, 196 S.W.3d 511 (2004). | [
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McCulloch, C. J.
The Attorney General challenges, in this proceeding, the power of the Railroad Com mission to make an order extending the time for constructing a power dam under a franchise previously granted to the Garland Power & Development Company of Arkansas, a domestic corporation.
On May 11, 1910, the State Board of Railroad Incorporation granted to the Garland Power & Development Company a franchise to erect a dam upon the Ouachita River at points mentioned, and the franchise so granted contained a provision that the “Garland Power & Development Company shall, within four years from the date of this order, put in direct operation and he prepared to deliver electric current to customers, and to develop and operate water powers upon Ouachita River in Garland and Montgomery counties.”
It was doubted whether the statute conferred the power to grant such franchise upon the Board of Railroad Incorporation or upon the Railroad Commission, the language of the statute being ambiguous; but this court held that the first-named board possessed the power under the statute. Garland Power & Development Co. v. State Board of Railroad Incorporation, 94 Ark. 422.
Since that time, the Legislature has amended the statute so as to transfer the power from the Board of Railroad Incorporation to the Railroad Commission of the State.
On. May 9, 1913, the Garland Power & Development Company filed' its petition before the Railroad Commission, reciting the former proceedings, and asked that the time for constructing the dam and beginning operation under the franchise be extended for the term of four years from that date. The reasons for the request were stated in the petition, and the commission made an order granting the extension of time. The validity of that order is challenged in this proceeding, and the Attorney General sued out a writ of certiorari before the circuit court of Pulaski County to quash the order. The circuit court rendered judgment dismissing the petition, and the Attorney General appealed to this court.
The act of May 13, 1905, under which the franchise was granted, merely empowered the State Board of Railroad Incorporation to “grant to such corporation the franchise of erecting such dam or dams, which franchise shall state the maximum compensation per horsepower to be received by such corporation for the use of the power generated.” The act contains no provision for fixing the time during which the franchise may be operated, or the time the improvement must be put into operation.
The question of the effect of the Board of Railroad Incorporation putting in the provision limiting the time to four years, does not arise in this case, and we, therefore, refrain from any discussion on that point.
What we are called upon to decide is, whether the Railroad Commission, as the successor to the Board of Railroad Incorporation, in the exercise of this power, has the authority to subsequently insert the provision or make an order extending the time.
It is plain that the commission possessed no such power, and that the order is void.
The statute only authorized the granting of franchises for the erection of dams and the fixing of maximum compensation per horsepower to be received for the use of the power generated. The Board of Railroad Incorporation was authorized to exercise only such power as was clearly expressed or necessarily implied from the language used in the statute. It could, in other words, exercise only such powers as were expressly or by necessary implication conferred, it being a tribunal created especially to exercise this particular function. The Board of; Railroad Incorporation, as well as the Railroad Commission, its successor in the exercise of this power, are clothed with authority with respect to other matters, but the statute limits its power, with respect to granting this franchise, solely to the matters indicated above. It is but the statement of an elementary principle that the powers of the board must be strictly confined to those conferred by the statute. No authorities are necessary to support that principle, and none to the contrary are cited by counsel for appellees.
The power with respect to granting the franchise is not a continuing one, and was exhausted with its exercise in granting the franchise.
The General Assembly of 1913 enacted a statute, approved March 12, 1913, which is relied omby counsel to sustain the power to grant the extension. Section 1 of the act provides that any corporation organized for the purpose of producing power for manufacturing and other lawful purposes, and which has procured a charter from the State for the development and operation of water power, “may, at any time, before ijie construction of such dam shall have been completed, file with the Railroad Commission of Arkansas, with the Secretary of State, and with the county clerk of the county or counties in which the lands pertaining to such water power are situated, an amended survey, estimate and engineer ’s report, making such changes in the location or plan of construction of its principal, power dam, and otherwise, as it shall deem necessary and advisable;” and that the commission “may, upon a hearing on said application, permit such corporation to amend its survey, estimate and engineer’s report, and make such changes in the location or plan of construction of its principal power dam, and otherwise, as may appear to it necessary and advisable.”
It is insisted that the authority of the commission to permit an amendment of the estimates, of the surveys, and the location and plans of construction, necessarily implies the power to extend the time for completing the improvement.
We do not think, however, that the statute just referred to enlarges the powers of the commission in any respect except as to those matters named in the statute itself.
Some stress is laid in the argument on the words “and otherwise” as having some significance in enlarging the powers of the commission.
But, we think that those words refer merely to the changes in the surveys, estimates and reports, and in the location and plan of construction. The commission has the power merely to “permit such corporation to amend its survey, estimate and engineer’s report, and make such chang-es in the location or plan of- construction of its principal power dam, and otherwise, as it may deem necessary and advisable.” The words “and otherwise” have no' reference to time for completing the improvement.
. Learned counsel for appellee cite the recent case of Little Rock Ry. & Electric Co. v. Dowell, 101 Ark. 223, as sustaining their contention.
That case related, however, to the power of the ciiy council of Little Rock to amend a' franchise by consent of the owner. It has no bearing on the present case for the reason that a city council is fully authorized by statute to deal With the question of granting franchises and providing utilities for the public, and the power conferred is clearly a continuing one. The city council acts in a legislative, as well as an administrative, capacity, and the power over that subject is necessarily continuing, and gives it the power to amend a charter except so far as it disturbed vested rights. The doctrine of that case has'no application here, for the statute does not confer any general power over the subject, and it was not a continuing power.
A very serious question presented is, whether the writ of certiorari is the appropriate remedy.
This is, by no means, free from doubt; but we,have reached the conclusion that it is the proper remedy.
The law on that subject was stated by Judge Battle in The case of Pine Bluff Water & Light Co. v. City of Pine Bluff, 62 Ark. 196. He states the rule to be that “when the action of the officers or public bodies is purely legislative, executive and administrative, although it involves the exercise of discretion, it is not reviewable on certiorari,” but that where the tribunal acts in a judicial or q-ifasi-judieial capacity, and makes an order in excess of its powers, which is void, it is reviewable on certiorari. “But it is not essential,” said Judge Battle in that case, “that'the officers or bodies to whom it lies shall constitute a court, or that their proceedings, to be reviewable by the writ, should be strictly and technically ‘judicial’ in the sense that word is used when applied to courts. It is sufficient if they are what is termed ‘quasi-judicial.’ ”
The test, therefore, is whether the act sought to be reviewed is done in a judicial or quasi-judicial capacity, and not merely in a legislative, executive or administrative capacity.
The rule is clearly stated in 4 Encyclopedia of Pleading and Practice, pp. 74-78, where it is said that, “The decisions as to what are, or are not, judicial acts, are so varying and frequently so directly conflicting that it is difficult to deduce from them any general rules or principles.”
In Pine Bluff Water & Light Co. v. City of Pine Bluff, supra., which involved the action of the city council in attempting to impose burdens upon the exercise of a franchise previously granted, this court held that the ordinance was legislative, and not reviewable on certiorari.
In McConnell v. Arkansas Brick & Mfg. Co., 70 Ark. 568, 589, the court held that an act of the State Board of Penitentiary Commissioners, in attempting to revoke a contract previously entered into with respect to the leasing of convicts, was an executive or ministerial act, and could not be reviewed on certiorari.
In the case of Garland Power & Development Company v. State Board of Railroad Incorporation, supra, we held that the Board of Railroad Incorporation, in the exercise of the power conferred with respect to this matter, exercised discretion which would not be controlled by mandamus, and in the later case of Ouachita Power Co. v. Donaghey, 106 Ark. 48, the same rule is announced. In neither of the cases, however, did we undertake to decide whether the board acted in a judicial or quasi-judicial capacity.
Discretion may be allowed in the exercise of legis lative, executive or administrative powers without bringing the act within the category of the judicial function. Pine Bluff Water & Light Co. v. City of Pine Bluff, supra.
We are of the opinion that, when the nature of the act involved in this case is considered, the power conferred by the statute was intended to be exercised by the board in a judicial or g«asi-judieial capacity, and that the order may be reviewed on certiorari. The authorities are far from harmonious on this question, but those cited in the briefs strengthen us in the view 'that certiorari is the proper remedy in this instance.
It follows from what we have said that the order of the Railroad Commission extending the time was void, and must be quashed. The. judgment of the circuit court is, therefore, reversed and judgment will be entered here quashing the order of the Railroad Commission. | [
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Wood, J.,
(after stating the facts). The rights of the respective parties to this controversy can only be determined by the construction of the instrument designated as a “timber deed” and set out in the statement, under which the appellee claims that it was the owner of the crossties, and that same had been sold and wrongfully converted by Leffler.
The appellant denied the title of the appellee to the ties in controversy, and contended that he was an innocent purchaser thereof for value. A proper construction of the instrument will determine all the questions in controversy.
The complaint, while loosely drawn, was not fatally defective on demurrer, and was sufficient to state a cause of action as for conversion of the crossties, for the value of which appellee sued. The defects in it should have been reached by a motion to make more definite and certain rather than by demurrer.
The correctness of the judgment turns upon the question of whether or not the instrument in evidence was a deed to appellee, creating an absolute title in it to the crossties in controversy, or whether or not it was intended as a deed to Leffler with a mortgage back to appellee • creating a lien in its favor for the purchase money advanced to pay for the timber, and also the amounts advanced to Leffler to pay for the manufacturing of the same into crossties.
Construing the whole instrument, we are of the opinion that it was a deed conveying the absolute title to the timber in controversy to the appellee. The words by which the title is conveyed are in the face of the deed, and they show that the grantor had ‘ ‘ sold and conveyed unto said Ayer-Lord Tie Company all of the white oak timber,” etc. These words undoubtedly conveyed the legal title. There are no words in the instrument anywhere conveying the timber to Leffler. The words endorsed on the back of it, to the effect that Leffler “was the absolute owner,” are not words of conveyance, and these words have no effect whatever to place the title in him. The timber, until the same was severed from the soil, was real estate, and, in order to convey to Leffler the legal title thereto, it was absolutely necessary that somewhere in the instrument there should be words expressing the fact of a sale or transfer of the title to him; that is, the words “grant, bargain and sell,” or words of the same purport. Kirby’s Digest, § 731.
The transfer of the timber growing on the land must be by deed. Any other attempted mode of transfer would be within the statute of fraud and void.
The words on the face of the deed, “by the written direction of J. S. Leffler,” and “as per directions and agreement on the reverse side hereof,” are surplusage and could not operate under the statute to make the other words of conveyance applicable to a transfer of title to Leffler.
The language, also, “Having this day and date purchased from you the within described timber, and now being the owner thereof,” could not operate under the statute to convey to Leffler the title to the timber.
So. as between the parties to this suit, the appellant and the appellee, the instrument under consideration must be hold to be i deed conveying the absolute title to the timber to the appellee. It follows, therefore, that the court was correct in instructing the jury that if Leffler cut and removed the ties from the land in controversy, without the consent of the plaintiff, that Leffler and Wofford would be wrongdoers and trespassers; and, although the defendant, appellant here, innocently purchased said .crossties from such trespassers, he would still be liable to the owners for their value, with 6 per cent interest from the date of the conversion, without deduction on account of the increase in value by the work and labor of such trespassers or wrongdoers.
The court did not err in telling the jury, as a matter of law, that appellee was the owner of the ties, for that was the proper construction to give the deed under which appellee claimed title. According to the construction given the instrument under consideration, it follows that there was no error in any of the rulings of the court in refusing and giving of instructions. The case was one to be tried in a law court, and the record is free from any error prejudicial to appellant. The judgment is therefore affirmed. | [
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Hart, J.
Bill Morris prosecutes this appeal to reverse a judgment of conviction against him for tbe crime of slander. The body of the indictment is as follows:
“The said Bill Morris, in the county and State aforesaid, on the 10th day of October, 1912, then and there maliciously, wilfully, feloniously and falsely did use, utter and publish, in the presence of H. S. Seitz, of and concerning Mrs. James Holt, words which, in their common acceptation, amounted to charge the said Mrs. James Holt with being an illegitimate child, the descendant of a negro and a descendant of a thief.
“This prosecution is with the knowledge and consent of the said Mrs. James Holt, against the peace and dignity of the State of Arkansas.”.
The testimony on the part of the State is substantially as follows: The defendant, Morris, in the latter part of October, 1912, went to the home of Henry Seitz, in Boone County, Arkansas, and, in the presence of Seitz and his wife, said that one Mrs. Holt’s father was a thief, and her mother a negro, and she was a half-breed. He made this statement in an angry manner. After he had repeated it a time or two Mrs. Seitz told him that she did not believe the statement he was making was true. The defendant replied that the statement he had made about Mrs. Holt was not true, and that he had only made it to her husband that afternoon in order to get him to fight. Mrs. Holt was a white woman, and had no negro blood in her veins.. She was the wife of James Holt, a white man.
The defendant interposed a demurrer to the indictment, and assigns as error the action of the court in overruling his demurrer.
The Attorney General seeks to uphold the ruling of the court upon the authority of Morpheio v. State, 84 Ark. 487; but we do not think that case sustains the position taken by him. It is true that the court, in stating the case, said that the defendant, Morphew, used language which, in its ordinary acceptation, amounted to charging that one Anna Morrow had been guilty of fornication with him; but the court was only stating the conclusion it had reached from reading the indictment, and was not attempting to state the language of the indictment itself. Later on in the opinion the court said: “The indictment, in plain, intelligible language, sets forth the conversation with Frank Kennedy, on which the slander is predicated.”
In the case of Laster v. Bragg, 107 Ark. 74, the court, following the decision in Miller v. Nuckolls, 77 Ark. 64, held that in an action for damages for slander it is not sufficient for plaintiff .to prove words of similar import merely, but that he must prove that defendant used substantially the same words as charged in the complaint. The court further held that a variance in the mere form of expression is not material, and that where words accompanying the actionable words are merely descriptive, and the slander proved substantially corresponds with the allegations of the complaint, there is no variance. The same rule prevails in criminal prosecutions for slander.
It will be seen, by an examination of the indictment, that the prosecuting attorney does not set out the words which were proved to have been used. He only set out his conclusion as to the meaning and effect of the words. This was not sufficient; he should have set out the language used. As we have already seen, it is necessary to set out enough of the language alleged to have been used to constitute the charge. It follows that the court erred in overruling defendant’s demurrer to the indictment..
The defendant was indicted under section .1856 of Kirby’s Digest, which reads as follows:
“It shall be deemed slander to falsely use, utter or publish words which, in their common acceptation, shall amount to charge any person with having been guilty of any other crime or misdemeanor not mentioned in this act, or to charge any person with having been guilty of any dishonest business or official conduct or transaction, the effect of which charge would be to injure the credit or business standing, or to bring into disrepute the good name or character of such person so slandered, and such words so spoken shall be actionable, and the person so falsely publishing, speaking or uttering the same shall be deemed guilty of slander, and punished accordingly. ’ ’
Slander was not an indictable crime at common law, and only became so by the terms of this statute. ■ It will be noted that the statute is very broad and comprehensive. It uses the language “or to bring into disrepute the good name or character of such person so slandered. ’ ’
Under our statute, railroads are required to furnish separate coaches for the negro and white races, and it is unlawful to permit them to occupy the same coach. Street cars are also required to segregate the two races. Separate schools are also provided for white and colored children. Under our social conditions, the white and negro races do not mingle together and by law are prohibited from marrying each other, so that under these conditions it can not be disputed that charging a white man with being a negro is calculated to bring into disrepute his good name or character. No-one could make such a charge, knowing it to be false, without understanding that i+s effect would be injurious to the character of the person so slandered. See Flood v. News and Courier Co., 4 A. & E. Ann. Cases (S. C.) 685, and case note; Spotorno v. Fourichon, 40 La. 423.
It is next insisted that the language proved does not amount to slander. Counsel for defendant insist that he was simply repeating the details of an encounter that he had had with the husband of Mrs. Holt, and that he stated at the time that he had only made the charge for the purpose of inciting Holt to fight. It will be remembered, however, that the witnesses for the State testified that the defendant spoke in an angry manner and repeated the language upon which the charge of slander is predicated a time or two before Mrs. Seitz said anything tó him. From this the jury might have found that he had used the language proved and only said that he did not believe it to be true when, after he had repeated it, Mrs. Seitz told him that she knew it was not true. If she had not brought him to.task, he might never have admitted that he knew the language was not true. Under all the circumstances under which the language was proved to have been uttered, it can not be said that the qualification the defendant finally made was made in the immediate connection in which he used the language.
For the error in overruling the defendant’s demurrer to the indictment, the judgment will be reversed and the cause remanded for a new trial. | [
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McCulloch, C. J.
Appellant stands convicted of the crime' of grand larceny under an indictment which accuses him of being a principal in the commission of the offense, not an accessory before the fact.
The testimony adduced by the State establishes the fact that one Kimmel committed the crime of grand larceny by stealing a horse in the State of Missouri and bringing the same into this State. The proof tends to show that appellant encouraged and advised the commission of the offense, but there is no testimony in the record tending to show that he was present when the offense was committed nor when the animal was brought into the State. In fact, there is no testimony showing that the stolen property was ever brought into the possession of Appellant. No't being present when the offense was committed, he could not properly be indicted as a principal, but should have been indicted as accessory. Smith v. State, 37 Ark. 274; Williams v. State, 41 Ark. 173; Roberts v. State, 96 Ark. 58; Hughey v. State, 109 Ark. 389.
The Attorney General confesses error on this ground, and it is clear that his confession must be sustained. The judgment of conviction is therefore reversed and the cause remanded for further proceedings. | [
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Smith, J.
On January 25, 1912, the appellee, White Drug Company, by R. D. White, executed four promissory notes of $37.50 each to the order of the American Manufacturing Company, a corporation organized under the laws of the State of Tennessee. Said notes were due and payable in three, four, six and seven months respectively from date, and were all attached to a printed order form for certain goods and advertising matter. On the margin of this order was written in large black type: “These notes are to be detached only by. the American Manufacturing Company.” Appellee ordered the goods and executed the notes with the express understanding that the manufacturing company execute their bond in the sum of $150, guaranteeing to appellee the faithful performance of their part of the contract. The bond was executed and delivered, and soon after the acceptance of the order and notes the manufacturing company detached the notes from the order forms and before the maturity of any of them sold them to appellant.
The first of these notes was paid at maturity, but the remaining three were each presented at maturity but appellee refused to honor them. The notes were protested and returned, whereupon appellant brought suit for $123.45, which represented the aggregate of the three notes and protest fees. The appellant claimed to be an innocent purchaser of the notes for value and before maturity, but this was denied by appellee, and the cause was tried upon that issue. The court instructed the jury, defining an innocent purchaser and declaring his rights as such, and the jury returned a verdict for the appellee, and from the judgment of the court pronounced thereon this appeal is prosecuted. Appellant insists that the court erred in its instruction to the jury submitting the question as to whether appellant was in fact an innocent purchaser, for the reason, as contended by bim, that there was no evidence to support a finding that he was not an innocent purchaser.
The grounds urged by appellant’s counsel for a reversal of the case can not be considered by the court in the absence of a bill of exceptions, setting forth the facts upon which he relies. Madison County v. Maples, 103 Ark. 44, 145 S. W. 887; Carnehan v. Parker, 102 Ark. 439; Huff v. Citizens Nat. Bank, 99 Ark. 97. Beginning with page numbered 1 of the transcript, there is what purports to be a bill of exceptions and the writing copied into the transcript bears that caption and at page 28 of the transcript and at the conclusion of the instrument, denominated a bill of exceptions, there appears a blank certificate in proper form attesting the fact that it is a true and correct bill of exceptions. But this instrument is not signed by the judge and therefore can not be treated as a certificate to the bill of exceptions. “We have held that a bill of exceptions must be an unqualified certificate of the trial judge that the matters and things therein contained are true. A qualified certificate is insufficient.” Williams v. Griffith, 101 Ark. 84. Here there is no eertifi-. cate whatever by the trial judge. Following this unsigned bill of exception are a number of pages containing the transcript of the record before the justice of the peace and a number of exhibits to depositions and following these exhibits is the following certificate: “Agreement of attorneys, the within is a copy of all of the evidence taken in the within trial. Signed Bruce & Bruce, A. C. Martin, attorneys for defendant; S. W. Rogers, attorney for plaintiff.” It is contended that this certificate makes a proper bill of exceptions under the act of April 28, 1911, entitled “An Act to regulate the practice incident to appeals to the Supreme Court in certain eases. ’ ’ This act reads as follows:
“Section 1. 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 hill 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.
“Provided, said bill of exceptions is filed within the time fixed by the court for filing the same.” .
Does this certificate comply with the terms of this act? Prior to its passage a bill of exceptions was signed either by the trial judge, or in certain cases might be attested by bystanders, and this act is intended to provide another method by which bills of exceptions may be agreed upon and become a part of the record. But litigants may avail themselves of the benefits of this act only by complying with its requirements. There is nothing about this act which rendered it unnecessary to incorporate into the bill of exceptions anything which was formerly required to be incorporated. And its effect is simply to provide that when this has been done the parties may agree to its correctness, whereupon it becomes .effective as such without the signature of the judge trying the same, provided it is filed within the time limited for filing. The bill of exceptions is primarily a notation of the objections made in the progress of the trial and exceptions preserved to adverse rulings by the trial judge thereon. The bill of exceptions should not only contain the evidence, but the objections that were made to the introduction or rejection of testimony and exceptions to adverse rulings thereon. It also contains the instructions that were given and those that were refused and the objections to rulings made by the court on such instructions and the exceptions preserved to adverse rulings thereon. It is essential that all these matters should be properly brought forward in a bill of exceptions and that there should be attached to this bill of exceptions the signature of the judge trying the case, or the agreement of the attorneys of record verifying its correctness. The certificate of the attorneys here is that the paper writing is a copy of all the evidence taken at the trial and this certificate would not be sufficient if signed by the trial judge, and.does not meet the requirement of the act set out above,,which undertakes to dispense with the necessity of the trial judge’s signature.
It appears therefore that there is no bill of exceptions, and, in accordance with many decisions of this court, the judgment of the court below will be affirmed. | [
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McCulloch, C. J.
This ease involves a controversy between father and son over the title to a quarter-section of land in Arkansas County, where appellant and appellee both reside.
The tract of land was originally owned by appellee, John A. LaCotts, and was sold by a commissioner of the chancery court of Arkansas County in the year 1906, pur suant to a decree of that court in favor of I. C. Gibson against appellee.
Appellant purchased the land at the sale, and the commissioner conveyed it to him, the deed being approved by the court and duly recorded.
The land was adapted to the culture of rice, and appellant converted it into a rice farm, expending about $5,000 in putting down a deep well and installing machinery, erecting sheds, etc.
Appellee claims that appellant purchased the land at the sale at his (appellee’s) request, and pursuant to an agreement between them to the effect that appellant would buy the land as an accommodation, for the purpose of discharging the lien of the decree, and that he would hold the title in trust for appellee and reconvey the same on repayment of the price paid. He seeks, in this proceeding, to have appellant declared to be a trustee holding the title to the land in trust for him, and the chancellor sustained his contention and rendered a decree in his favor.
The court appointed a master to ascertain the value of the improvements placed on the land by appellant, and the rents and profits which had been enjoyed by Mm, and decreed a lien in appellant’s favor for the amount due for improvements and taxes in excess of the rents and profits. The master found that the value of the improvements placed on the land by appellant amounted to $6,714.88, and that he was entitled to recover the sum of $2,224.88, the amount over and above the rents and profits received.
The learned chancellor filed a written opirnon, in which he decided that appellant should be held as a trustee on account of his own wrong. He based Ms conclusion on the opinion of tMs court in the case of Ammonett v. Black, 73 Ark. 310.
We are of the opinion, that, aeeordingHo the proof adduced, tMs case does not contain any elements of a trust ex maleficio, for the reason that the proof does not show that appellant procured the title by the commission of any fraud. Putting it in the strongest light, the testimony adduced by appellee only tends to establish a promise. on the part of appellant tó purchase the land and hold it for appellee, and a breach of that promise. This alone is not sufficient to establish a trust ex maleficio. Spradling v. Spradling, 101 Ark. 451.
Judge Riddick, in delivering the opinion of the court in Ammonette v. Black, supra, after quoting from Professor Pomeroy concerning what constitutes a trust ex maleficio, said:
“There must, of course, in such cases, be an element of positive fraud by means of which the legal title is wrongfully acquired, for, if there was only a mere parol promise, the statutes of fraud would apply.”
Appellee testified that when the land was advertised for sale, he applied to his son, John, to see if he would buy the land in. John replied, saying that he would do so, but that his brother, George (appellant), had more money than he, and that probably he would buy the land in. Appellee testified that subsequently he saw his two sons, appellant and John, standing on the street, and when he walked up to them, John remarked that George would attend to the matter for him, meaning to buy in the land, and that in reply he merely admonished them not to neglect it.
The evidence shows that appellant, after purchasing the land, took possession of it and made valuable improvements thereon without any objection from appellee until a short time before the suit was instituted.
Appellee formerly owned several thousand acres of land, and still owns about a thousand acres. On several occasions, when tracts of land which he owned were sold under execution or other process, his son, George, purchased them at his request, and he never made any objections to his purchase of any tract except this one.
Our conclusion is, that appellee has failed to establish a state of facts which would convert appellant’s acquisition of the property into a trust ex maleficio, and that the decision of the chancellor was not correct in holding that snch a trust had been established by the evidence.
Nor is the evidence sufficient to prove that the purchase of the land by appellant was intended as a mortgage or as security for the amount paid out in satisfaction of the decree. If the proof was sufficient to establish such agreement, no rule of evidence would be violated in admitting it for the purpose of showing that the title was acquired as security for money advanced; nor would the agreement be within the statutes of fraud, for, under those circumstances, the result would be the same as if the appellee, instead of.allowing appellant to become purchaser at the commissioner’s sale, in order to get title to the land as security for the money paid, had conveyed the land directly to appellant himself as security for the money advanced. In either event, the conveyance could, in equity, be shown to have been intended as a mortgage. But, in order to convert a déed absolute on its face into a mortgage, the proof must be “clear, unequivocal and convincing. ” Rushton v. McIllvene, 88 Ark. 299. We think the proof in this case falls far short of the degree of force necessary to show that the conveyance was intended as a mortgage. The proof in the case consists of appellee and his son, John LaCotts, on one side, and appellant, in his own behalf, on the other side. Appellee and his son, John, testified concerning the same transactions, but the fact that their testimony conflicts upon material details of the transaction leaves it far from convincing. For instance, appellee, in his account of the main transaction, states that, when he received word from his son, John, that the land was advertised for sale, the latter'expressed a willingness to buy the land in himself, but suggested that appellant should do that, as he had more money, and advised that appellant be interviewed on'the subject; that subsequently, he met his two sons on the street, and one of them called to him, and when he walked up to the pair, John remarked that George (appellant) said that he would at tend to it. Now, John testified that, when he told his father about the land being.advertised for sale, his father said that he had already talked with George about it, and that he told his father that if George was willing to buy. it in, to let him go ahead and do it, and that a short time thereafter he found his father and George standing on the street, and that George then told him that he need not trouble himself any more about the purchase, as he (George) would attend to it. Appellant denies that any such agreement was made, but, on the contrary, testified that his father had told him that if he cared to buy the land at the sale, he could have it just as he had done on other occasions, when he had bought in land of his father when sold under process.
Appellant’s verison of the affair, as against that given by appellee and his son, John, is strengthened by the subsequent transactions between them. As before stated, appellant put valuable improvements on the land, and no objections were raised by his father. He converted the land into a rice farm, which was in the immediate neighborhood of appellee’s home.
The proof shows that appellant entered into some sort of partnership arrangement with his brother, John, who agreed to pay him rent on the land, all of which goes to weaken the force of John’s testimony, for he entered into such an agreement notwithstanding the fact that he claims that he knew his brother, George, did not own the land, and merely bought it in as an accommodation to his father.
Appellee admitted, on his cross examination, that he was perfectly willing for appellant and his other sons to buy this land in and take an absolute title thereto, but he says that his only objection was to appellant alone getting title to it, that he was willing to give it to all four of them, but not to any particular one of them.
The fact that appellant was permitted,' without objection, to place valuable improvements on the land, and that his brother dealt with him concerning it as his own land, goes far, as before stated, to strengthen his claim that there was no agreement that he was to acquire the title otherwise than as an absolute purchase.
We are of the opinion that upon no theory can the appellee’s claim to restoration of title be sustained. The decree of the chancellor is therefore reversed, and the cause is remanded with directions to enter a decree in appellant’s favor. | [
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Wood, J.,
(after stating the facts). There ivas no error in the granting of prayer for instruction No. 11 at the instance of the State. This instruction is a copy of the statute. Section 1765, Kirby’s Digest. It does not shift the burden of proof from the State to the defendant' in- a trial for homicide; On the contrary, under it the burden of the whole case is on the State to show that the defendant is guilty of some degree of homicide. When the State has done this, then if there is nothing in the testimony adduced by the State to show that the accused is justified or excused, it devolves upon him to make such proof before he would be entitled to an acquittal. Where the testimony on behalf of the State tends to show the .killing, and that it was done as charged in the indictment, if there is nothing in the evidence adduced by the State tending to show that the defendant is guilty of manslaughter, then it devolves upon the defendant to bring forward such testimony if he would have the grade of homicide reduced from murder to manslaughter. In other words, where the killing is proved as alleged, and the testimony on the part of the State does not show, mitigation or excúse, or show a lower grade of homicide than murder, then the accused must be convicted unless he produces testimony to convince the jury that he is-innocent, or that he is guilty of a less degree of homicide than that of murder. Petty v. State, 76 Ark. 515. The statute does not shift the burden of proving guilt from the State to the defendant.
In many of the other instructions the court required that the jury should be convinced of appellant’s guilt “beyond a reasonable doubt” before they were authorized to convict appellant, and gave a correct instruction defining a reasonable doubt. So that the jury could not have understood that the burden of proof was on the ap-: pellant to establish his innocence. They were clearly told that it was the duty of the State to prove his guilt. See Thomas v. State, 85 Ark. 357; Cogburn v. State, 76 Ark. 110.
The court, at the request of the State, granted-prayers telling the jury, in effect, that before the appellant could be justified in killing Wesson, it must have-appeared to him, that the killing was necessary in order to save his own life or to prevent his receiving great bodily harm, and that he must have acted in good faith, having reasonable cause for his belief, and that if it so appeared to him, acting in good faith, and he had reasonable cause therefor, he would be excused, though he might have been mistaken as to the apparent danger. In other words, that the circumstances surrounding the appellant must have been sufficient to excite the fears of a reasonable person placed in appellant’s situation.
The court, at the instance of the appellant, gave instructions to the effect that if the appellant believed that ■it was the intention of the deceased to kill appellant, or to do him some great bodily harm, and that appellant, without fault or carelessness on his part, shot the deceased, he was justified in so doing; that it was sufficient if the appellant, acting without fault or carelessness on his part, honestly believed that the killing was necessary, if he acted under such circumstances as made it reasonable to entertain that belief.
In Hoard v State, 80 Ark. 87, this court held: That “it was not error to instruct the jury that one who killed another was justified in defending himself if it appeared to him, ‘acting as a reasonable person,’ without fault on his part, that he was in danger of losing his life or receiving great bodily harm, as the law presumes, where nothing to the contrary is shown, that the accused is of ordinary reason and holds hirii accountable accordingly.”
The instructions given at the request of the appellant followed the language of the rule approved by this 'court in Smith v. State, 59 Ark. 137, and Magness v. State, 67 Ark. 594.
The instructions given at the instance of the State followed the rule approved by this court in other cases. Palmore v. State, 29 Ark. 248; Levells v. State, 32 Ark. 585; Fitzpatrick v. State, 37 Ark. 257.
Speaking for the court in Hoard v. State, supra, Mr. Justice Riddick said: “For ordinary cases, we think .there is no substantial difference in these two ways of stating the rule, and consider it a matter of form that should be left to the taste and judgment of the trial judge.”
Other instructions were given and refused, to which exceptions were duly saved, and which we have carefully examined, but find no prejudicial error in the rulings of the court.
Appellant contends that the court erred in permitting the witness, Turner Rogers, to testify concerning the declarations of the deceased to him on Sunday morning after the shooting; but the testimony was competent as showing dying declarations. Rogers testified that the deceased-told him “that he would not get well.”
Appellant contends that the court erred in not permitting him to show that the doctors had informed the deceased after the shooting that he would get well, but the appellant did not offer to show that' the doctors imparted such information to the deceased before he made the statements shown by the testimony of the witness, Rogers. There was nothing, therefore, in this offered testimony tending to rebut the testimony of the witness, Rogers, showing that the declarations of Wesson, the deceased, were made while he was in extremis.
The testimony was sufficient to sustain the verdict. The charge of the court correctly submitted the issues that -were raised by the evidence. There was no error in the rulings of the court in the admission or rejection of testimony.
We have considered the assignments of error presented in appellant’s motion for a new trial, and find that there is no prejudicial error in the rulings of the court in any of them. The judgment is therefore correct, and must be affirmed. | [
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Wood, J.,
(after stating the facts). The court did not err in refusing to permit the offered testimony as to the general reputation of Sam Hunter in the community where he lived as a “voodoo” doctor. Appellant denied that she put any poison or compound of any kind in the beer or whiskey. The testimony therefore was not relevant.
If the appellant had admitted that she had put a compound or powders in the beer or'whiskey that she did not know to be poison, then this testimony might have been admissible as tending to show her purpose in so doing.
The testimony, as set fqrth in the statement, was sufficient to show that the bottles were in the same condition when received by the prosecuting witness, Ellen Hall, as they were when they were delivered to the. chemist to be analyzed by him. The testimony of the prosecuting witness shows that she delivered the package to Ed Hare in the same condition in which she received it, and the testimony of Hare shows that the carton which held the beer and whiskey was sealed up when he received it. He shows that none of it was opened while it was in his house, and that the next day it was taken by the prosecuting witness, and her brother to the doctor. It was admitted that the doctor, whose name was not given, would testify that he delivered the same articles to J. N. Moore, and that Moore would testify that he turned the same articles over to Bailey, and Bailey testified that he carried the same articles to Doctor Trotter, and Doctor Trotter testified that he sent the bottles of Cook’s beer and Tom Collins whiskey, the same articles that Bailey delivered to him, over to his particular friend, Dr. J. D. McElroy, and that McElroy turned it over to the State chemist, Doctor Holtzendorff. Doctor Holtzendorff shows that the package, as delivered to him, was intact and contained two bottles, one marked “Goldblume Beer,” and the other “Tom Collins Whiskey,” and that he analyzed the contents of these two bottles, and his report shows what they contained.
We are of the opinion that this testimony sufficiently identifies the beer and whiskey and shows that it was in the same .condition when it was analyzed by the chemist; so far as the contents are concerned, as it was when it was received by the prosecuting witness, Ellen Hall. Davidson v. State, 109 Ark. 420. There is nothing in this testimony to warrant the inference that any one had injected any poison into the bottles from the time they were sent by appellant and her companion from Helena on the 20th of March, 1913, to Ellen Hall, at Elaine, nor anything to warrant the conclusion that anything had been injected into the contents of the bottles from the time Ellen Hall received the same until they were analyzed by the chemist, whose report showed that they contained poison.
There was testimony tending to show a motive on the part of the appellant for the commission of the offense, and the testimony, upon the whole, is sufficient, in our opinion, to sustain the verdict finding her guilty of the crime charged. It is conceded that there was no error in the charge of the court. The judgment must therefore be affirmed, and it is so ordered. | [
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McCulloch, C. J.
This is an action instituted be-' low by appellee against appellant, a fraternal insurance society, to recover the amount of a benefit certificate issued on the life of one of its- members, now deceased.
The errors complained of are that the evidence is not legally sufficient to sustain the judgment, and that incorrect instructions were given at the instance of appellee, and that correct instructions requested by appellant were refused.
These errors must have been brought upon the record by bill of exceptions before they could be considered here.
There is in the record what purports to be a bill of exceptions duly signed by the trial judge and filed within the time allowed by the court; but there is an affirmative statement at the conclusion, reading, “This record does not contain all the evidence.” In other words, the trial judge certified that the bill of exceptions did not contain all the evidence. This being true, we must indulge the conclusive presumption that -every fact necessary to sustain the verdict of the jury was established by the evidence.
While the bill of exceptions appears to have been signed by 'the trial judge and filed within the time prescribed by the order of court, there also appears in the record an order of the court, made on the day that the bill of exceptions was filed, showing that it had not been signed by the trial judge, but was filed for his consideration. ■ Later, and after the expiration of the time for filing the bill of exceptions, there appears an order of the court striking the bill of exceptions from the files and granting appellant leave to prepare and file another bill of exceptions within two weeks from that time.
It is, therefore, clearly established by the whole record that the bill of exceptions was not, in fact, signed by the trial judge until long after the time specified in the order of the court. At the time the order was made giving a further extension, it was beyond the power of the court to do so, for the term had closed, and the court lost its poAver in the premises further than to allow, amendments to the bill of exceptions. It is within the power of the court to permit a hill of exceptions filed within time to he amended so as to make it speak the truth, hut the court has no power, after the lapse of the time, to allow a new hill of exceptions to be filed.
There is, therefore, nothing before us for consideration, and the judgment must be affirmed. It is so ordered. | [
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McCulloch, C. J.
John W. Howie, a citizen of the town of Searcy, White County, Arkansas, was a member in good standing of the Eminent Household of Columbian Woodmen, a fraternal insurance society, and held a policy or benefit certificate therein, payable to his wife, Laura O. Howie, who is the plaintiff in this action. He was killed in an encounter with the marshal of the town of Searcy, and this is an action to recover the amount of the benefit, which the officers of defendant society re fused to pay, denying liability on tbe part of tbe society on the alleged ground that bis death occurred while be was violating tbe law.
Tbe constitution and by-laws of the society are, according to tbe express terms of tbe benefit certificate, made a part of tbe contract, and they contain tbe following restriction upon tbe liability of tbe society, towit:
“If a guest bolding a covenant shall * * * die in consequence of a duel, or of combat, except in self-defense, * # * or in consequence of violation, or attempted violation, of tbe law, by such guest, * * * tbe covenant shall be void and of no effect, and all payments made or benefits which might have been accrued thereon shall be forfeited without notice or service.”
Tbe defendant on tbe trial of tbe case offered to prove that deceased, Howie, at tbe time be was killed by tbe marshal of the town of Searcy, was violating tbe law of tbe State, in that be was making an unlawful assault upon said marshal, who killed deceased in self-defense.
Tbe court refused to admit tbe testimony, or any of like character, and defendant saved its exceptions. This was error, and calls for a reversal of the case.
Tbe by-laws constituted a part of tbe contract, as before stated, and tbe proof offered by defendant tended to show a violation of tbe contract on tbe part of deceased, which prevented recovery by the beneficiary. Supreme Lodge K. & L. of H. v. Johnson, 81 Ark. 512; Supreme Royal Circle of Friends of the World v. Morrison, 105 Ark. 140.
It is insisted, however, by counsel for plaintiff that the exception is not properly preserved in tbe record, for tbe reason that tbe benefit certificate is not properly brought up. An amendment of tbe record has been made by tbe circuit court and brought here on certiorari, showing that on motion of tbe defendant to make tbe complaint more definite and certain, tbe plaintiff confessed tbe motion and in eompbance therewith filed a copy of tbe certificate with tbe complaint. Tbe record shows, by the filing marks of tbe clerk, that tbe paper was filed as a part of the pleadings before the trial commenced, and the stenographer’s transcript of the evidence, as incorporated in the bill of exceptions, shows that the policy was read in evidence, and also shows a call directing the clerk to copy the same. The paper being on file with the pleadings in the case, the reference to it in the call, was sufficient identification, and authorized the clerk to respond to the call to copy it in the bill of exceptions, which has been done. We are of the opinion that the record was complete so as to preserve this- exception, and that the error of the court is thereby made manifest. For that reason the judgment is reversed and the case remanded for a new trial. | [
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Wood, J.,
(after stating the facts). Appellant contends that the strongest force of the testimony on behalf of the State only tends to show that appellant was guilty of manslaughter, and that therefore the court erred in giving instruction No. 4. (Kirby’s Digest, §.1765.)
In Allison v. State, 74 Ark. 444, we said: “The question of whether it is proper to submit to the jury the question of the defendant’s guilt of any particular grade of offense included in the indictment must be answered by considering whether there is evidence which would justify a conviction for that offense.”
Under the testimony in this case on behalf of the State, the jury would have been warranted in finding the defendant guilty of at least murder in the second degree. The court therefore did not err in submitting to the jury the issue of appellant’s guilt or innocence of the crime of murder in the second degree. One of the witnesses testified that appellant shot Barr while the latter had his right hand on the shoulder of his brother and his left hand hanging down by his side, the same not being in Ms pocket, and that Barr was making no effort with either hand. TMs testimony was sufficient, if believed by the jury, to have warranted the jury in returning a verdict of at least murder in the second degree, and therefore there was no error in the giving of instruction No. 4 See Allison v. State, supra. Moreover, the instruction, even if improper, was not prejudicial because the verdict of the jury was for the lowest grade of homicide included in the indictment.
The court gave an instruction on reasonable doubt which fully covered the modification asked by appellant, and it was therefore not error to refuse this modification. See Petty v. State, 76 Ark. 515-517.
The appellant requested the court to give a correct instruction on involuntary manslaughter, but did not present what he considered a correct instruction. He can not complain therefore that the court did not grant Ms request. The reading of the statute defining voluntary and involuntary manslaughter without a more specific request of appellant, setting forth his prayers for instruction, was sufficient. Scoggin v. State, 109 Ark. 510.
The court, in its instructions 8 and 9, fully covered the matter presented by appellant’s prayer as to the presumption of innocence, and there was therefore no error in refusing such prayer.
Where a witness at the trial gives different testimony from that testified by him before the grand jury, the prosecuting attorney, being surprised by such testimony, may read or have the witness read, Ms testimony taken before the grand jury, and may question Mm concerning the correctness thereof. Derrick v. State, 92 Ark. 237-239. See also, Davidson v. State, 108 Ark. 191.
The separation of the. juror from his fellows wMle the trial was temporarily suspended during the thunder storm is not shown to have been prejudicial to the rights of the appellant. This separation took place before the court had exercised its discretion to keep the jurors together. At the time the juror separated himself from the other jurors, the court had not concluded to keep them together, and had not at that time placed them in charge of the bailiff with directions to keep them together with specific instructions not to allow them to separate. The record shows that at the time the juror separated himself from his fellows he was under no instructions of the court not to do so, and therefore violated no instructions of the court in so doing. No testimony was offered to show that the juror, while absent from his fellows, Avas guilty of any conduct prejudicial to appellant.
It is Avithin the discretion of the court to allow the jurors to separate or to keep them together, (Kirby’s Digest, § 2390), and as the court had not exercised its discretion to keep them together at the time the conduct of the juror here complained of occurred, the burden was upon the defendant to show that the juror was. exposed to improper influences. See Beeves v. State, 84 Ark. 572.
The record is free from errors prejudicial to appellant, and the judgment must therefore be affirmed. | [
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